Minor tweaks won’t fix major flaws in Bill C-69

Bill C-69, which restructures the environmental assessment process for proposed energy projects, is in the news again. In the wake of the federal election, talk of western alienation, and Prime Minister Trudeau’s selection of a new cabinet, the bill, formerly considered a done deal, might be back on the table for discussion. Or is it?

In the National Post, Jesse Snyder noted that most of Bill C-69 has already passed into law—what’s left is some potential tweaking to “improve” the legislation. Calgary Mayor Naheed Nenshi, having discussed the bill with the prime minister, is fine with that. His focus is on “improving” the bill, not on parliamentary procedure. That’s all well and good, but the flaws in Bill C-69 will not be fixed by some tinkering around the regulatory edges. Let’s review its fundamental flaws.

Bill C-69 will lengthen the regulatory process by adding a new phase before the review itself commences. It “establishes a planning phase for a possible impact assessment of a designated project, which includes requirements to cooperate with and consult certain persons and entities and requirements with respect to public participation.” Part of the problem with current environmental assessments is that they take too long. It’s hard to see how adding a new phase of consultation at the front end will reduce the timelines.

Neither will throwing open the doors to multiple intervenors in appealing proposed projects, regardless of their direct relationship to the project. Bill C-69 removes the “standing” test for public participation, which previously limited public participation to those who would, in theory at least, be directly affected by the construction or operation of a proposed project. Without a standing test, the regulatory process is open to participants far away from the proposed project who are unlikely to have economic interests in the project or to shoulder its environmental effects.

A little tweaking will also not fix the regulatory “science problem” Bill C-69 was promised to improve. A government “Chief Science Advisor” will oversee the new process. This sounds impressive until you realize Bill C-69 also calls for the use of “Indigenous knowledge” and the consideration of the “intersection of sex and gender with other identity factors.” Both highly subjective criterion.

As Queen’s law Professor Bruce Pardy observes, Bill C-69 takes an inherently flawed subjective environmental assessment process and makes it worse. Environmental assessments will now consider a wider variety of objections to project approval. It signals government receptiveness to constituencies hostile to project approvals. Further, he notes that while the Trudeau government said the bill would establish principles and markers to guide decisions, in reality it will instead simply make environmental assessment—an inherently arbitrary, subjective and political process—even more so. It will further provide legitimacy for discretionary decisions divorced from substantive legal criteria.

Clearly, some slight nips and tucks—buried deep in the weeds of a regulatory process that’s virtually impenetrable to the average citizen—will not repair Bill C-69. The flaws in the original legislation are well-documented. Government should replace bad legislation with better legislation, not a last-minute electorally-driven “openness” to consider last minute pre-implementation tweaks.