Are Bill C69 amendments reasonable compromise or death knell for new pipelines?

Sonya Savage, Alberta energy minister, at Wednesday press conference flanked by Ontario Energy Minister Greg Rickford

Ding! The bell rang Tuesday night signaling the next round of the Bill C69 heavyweight bout, as the Trudeau government rejected almost all Conservative senators’ amendments to the controversial legislation. Environment minister Catherine McKenna claims the changes would have gutted the Liberals’ reform of Canada’s environmental assessment process for large projects like pipelines, while six premiers – five conservatives, one independent – demanded in a letter that all 180 amendments be accepted. Ding! Ding!

Kenney took exception to Trudeau’s comment in the House that the premiers were being “irresponsible” and threatening “national unity.”

The letter repeats many of the objections Canadians have heard over the past year from industry groups like the Canadian Energy Pipelines Association – that C69 would kill new pipeline projects, for instance. The premiers encouraged the government and the House of Commons to “accept the full slate of amendments to the bill,” which were a combined package from independent and Conservative senators that were then passed by a Senate vote.

McKenna chose not to follow the advice of Premiers Jason Kenney (Alberta), Doug Ford (Ontario), Scott Moe (Saskatchewan), Brian Pallister (Manitoba), Blaine Higgs (New Brunswick), and Bob McLeod (Northwest Territories).

“We will take a look at the amendments made by the senators,” Prime Minister Justin Trudeau said Tuesday in the House of Commons. “We will make a decision on which ones would improve the bill and make it better, and that is what we will be doing.”

According to a rough count by independent Alberta senator Paula Simons, the government accepted 62 amendments as written and changed another 37, for a total of 99. “Has the government ever accepted 99 amendments on a bill?” she asked in an interview. “I’m guessing, not being a Senate historian, but I suspect if you looked it up, all the amendments governments have accepted from the Senate since 1867 might not total 99.”

Simons says she a “glass is half full kind of girl” and thinks the Senate’s changes will make Bill C69 palatable to the Alberta oil and gas industry.

“And make no mistake. These amendments aren’t window dressing. They represent fundamental changes to a seriously flawed bill – changes that will make the bill clearer and fairer,” the former Edmonton Journal columnist wrote in a Facebook note explaining her position. ”

“These amendments will, among other things, de-politicize and streamline the project approval process, by taking away the minister’s power (and responsibility) to micromanage each step of the assessment process. They will make economic factors part of the assessment rubric. They will give the regulator the power to figure out who exactly gets to intervene at a hearing, and how.”

In a press release posted late Wednesday, Alberta Energy Minister Sonya Savage criticized the Liberals for being “willing to sacrifice every single one of the 533,000 jobs created by the oil and gas industry across Canada in an attempt to fill a misguided political promise,” and called the government’s decision “unacceptable and very disappointing.”

The industry took the same position. “If Bill C69 passes in its current form, it is difficult to imagine that any major new pipeline projects will be proposed or built in the future,” Chris Bloomer, CEO of the Canadian Energy Pipelines Association, said in a press release, and called on the Senate to re-introduce the rejected amendments when Bill C69 returns from the House.

Martin Olszynski, a professor of energy and environment law at the University of Calgary, says many of the rejected amendments were “pretty egregious” and deserved to be deleted. As an example, he points to the “privative clause” amendment that would have required legal challenges to first receive permission from the Federal Court of Appeal, making it difficult, if not impossible, for project assessments to be challenged in court.

“If you’re dealing with Trans Mountain Expansion or Northern Gateway, you can understand why the industry would want to restrict litigation,” he said in an interview. ” But, of course, it wouldn’t restrict the litigation that matters, which is indigenous peoples’ [under Section 35 of the Constitution Act of 1983]. You can’t find a way around that.”

Simons expected many of the amendments would be rejected by the government. “We compromised in order to get the bill out of committee. Each [senator] accepted some amendments that we didn’t agree with it,” she told Energi Media.

She points out that some amendments were likely put forward knowing full well they would be rejected, giving government opponents ammunition to criticize in advance of the general election this fall. “If you’re going to put amendments in that are not really good faith amendments, you can’t honestly [complain] if they come out.”

Bill C69 was flawed legislation that should never have been passed by the House of Commons in the first place. The Liberals pushed it through before it had been properly reviewed and amended in committee. Government officials tried to argue that problems would be addressed in the regulations, but both the former NDP government and industry pointed out that bad legislation can’t be fixed by good regulations, that the bill needed work before being enacted.

The demand by industry and the Kenney government that 100 per cent of the amendments, even the awful ones, be accepted is not a reasonable position.

According to Simons and Olszynski, C69 is much improved and deserves to become law. It’s hard not to agree with them.

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