On June 21, 2019, the federal government of Canada (Canada) passed Bill C-69, new legislation that will materially reform the federal environmental assessment regime in Canada. The reforms will see the National Energy Board (NEB) replaced by the Canadian Energy Regulator (CER) and the Canadian Environmental Assessment Act, 2012 (CEAA 2012) replaced by a new Impact Assessment Act (IAA). See our initial reviewof the proposed reforms.
Bill C-69 was subject to a review by the Standing Senate Committee on Energy, the Environment and Natural Resources. On June 5, 2019, after hearing from interested parties across the country, including members of Osler’s Regulatory, Environment, Aboriginal and Land Group, the full Senate passed a suite of close to 190 amendments to Bill C-69. Canada agreed to accept roughly half of these, but largely rejected the proposed amendments put forward by Conservative senators as well as several amendments proposed by independent (formerly Liberal) senators that would have improved the Bill. Although the final amended version of Bill C-69 can be considered an improvement over the original draft, the new legislation introduces considerable uncertainty into the federal environmental assessment processes, and key issues that plagued Bill C-69 from the outset remain.
Bill C-69, as amended, introduces considerable uncertainty into the review process
Bill C-69 will exacerbate the ongoing issues of regulatory uncertainty and protracted timelines that currently exist under CEAA 2012, which are seriously impairing Canada’s ability to attract investment. Environmental assessments under the IAA will continue to take longer than necessary and will provide Canada with the opportunity to repeatedly “stop the clock,” thereby raising the spectre of indefinite delays. In addition, Bill C-69 allows for a degree of public participation that will not serve to provide the Impact Assessment Agency of Canada (Agency) or CER with the best available, relevant evidence. Rather, all interested persons, many of whom may have no connection to the project being reviewed, will be allowed to opine on and object to the project on unrelated grounds that may be completely outside the proponent’s control. Overall, the process has become increasingly politicized and represents a shift away from decision-making by expert quasi-judicial bodies. Further, while Bill C-69 attempts to address perceived public concerns with the current regulatory regime, in our view it will likely serve to make the process less efficient and will not improve the environmental outcomes of the regulatory process.
Summary of noteworthy amendments proposed by the Senate and passed by the House
The following summarizes some of the noteworthy amendments to the original version of Bill C-69 that were included in the final version of the Bill that was passed into law, including some of the few amendments that improve the Bill relative to its earlier version: MORE