The Ghost of the Harper OmniBus Legislation Continues on with Bill C-69

By Sara Mainville

On February 8, 2018 the Federal Government introduced Bill C-69, “An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigational Protection Act and to make consequential amendments to other Acts” at several media events throughout the day.   During each event, the “better rules” phrase was used to brand this legislation, presumably as the correction needed to improve on the former Harper government’s 2012 legislative changes that stirred us all to be “Idle no more.”  It is now very clear that the uncertainty caused by a unclear path to a final approval was the mischief that this government was most pre-occupied with.

It must be noted at the outset that Bill C-69 does not withstand an analysis using the 10 Principles announced by the Federal Government almost one year ago.  Yes, principle 9 may have set the overarching theme, as it is the principle that compromises all principles in that “an innovative and flexible approach” must be allowed “to build over time”.  With the great fanfare that was the Federal Regulatory review, a robust Impact Assessment regime was expected and Bill C-69 is not nearly that transformative. 

As discussed in past blogs on the Federal Regulatory Review including the promise of the EA Expert Panel report and the disappointment in the contents of the Federal Discussion Paper, the ghost of CEAA 2012 and its lost promise of certainty and efficiency continues to haunt the regulatory review.  Timelines are found in the legislation that may or may not frustrate the ability of First Nations to advance their rights and interests within and alongside the Impact Assessment process.  A project list approach in the legislation is promised to balance the interests of certainty within industries with the need to do impact assessments to “foster” sustainable development in Canada.  Indeed, the consultation on the proposed regulation has already begun despite only having draft legislation announced on the same day that proposes the project list approach.

Bill C-69 is most troubling because the legislation’s promise is that its level of certainty should guide all future governments towards sustainability.  Bill C-69 fails because it will allow future governments to ignore or to interpret the legislation narrowly, without the need to amend key features promised as beneficial guarantees to First Nations.  First Nations wait impatiently for real measures to implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).  UNDRIP is not, as several Ministers have mentioned around the Federal Regulatory review, “a promise kept” by the Trudeau government.  Bill C-69 is clear evidence of this.  The absence of any mention of any article, principle or the Declaration itself in Bill C-69 is a clear signal that this Government is going to continue rely on the common law and the courts to recognize rights rather than facilitating these discussions in a “rights recognition” framework within legislation.

The legislation itself includes three policy choices that First Nations may want improved as these features lacks specificity and legislative wording requiring or guiding their use within the proposed regime. 

The Impact Assessment Act includes a legislated planning phase with a lot of details to be left for regulations and interpretation.  The Impact Assessment Agency will require an initial project description from a proponent, as prescribed by regulations.  In addition, the Agency will consult with other jurisdictions, including Indigenous jurisdictions (narrowly defined in the Act) regarding an “issues list” that will be provided to the project proponent.  The planning phase includes the requirement of a project notice being provided by the proponent, the information requirements being set in a regulation that is now posted as a consultation document on the Ministry’s website.  From a First Nation perspective there is more to be done here.  Particularly, with regard to the over-reliance on the proponent to lead the planning phase and to provide the project notice.  In addition, the Act is under-inclusive about who is participating in the defining features of the assessment including the project description, the issues list, and the project notice.  Most First Nations would be advantaged to be involved within those important planning aspects of the Impact Assessment process.

Since it is February, we are all enamoured with the letter “V” and so are the media when they quiz the federal government about what this legislation is going to do to establish or reject that First Nations hold a right to veto development on their land.  First Nations have, since the very first contact, established that they are the decision-makers on their land.  The interactions from the treaties of the eighteenth and nineteenth centuries are all about decision-making and sharing.  Sharing and treaty-making requires partnerships, partner is a word that the Trudeau government likes to use in its relationship with First Nations, and good partners rarely make unilateral decisions without considering the impacts on their partner.   This is the importance of the principle of free, prior and informed consent.  Consent is the path forward to the reconciliation of two societies who share land, and as much as we love Valentines in February, you do not get many once you run roughshod over their independence and rights through careless decision-making.   Veto is inconsistent in the land of treaty partners.  Shared decision-making and problem-solving processes are how to build long and lasting relationships.

It is most disappointing to see the second feature of the Act, the unilateral decision-making of a government run Agency, the Minister, and the Cabinet.   It is useful to ensure Indigenous representation in some of these bodies, most notably within the Canadian Energy Regulator Act with review panels and assessment board, however the promise of the implementation of  UNDRIP was shared decision-making and recognition of Indigenous self-determination rights.  The “Indigenous governing body” in the bill is a promising feature with no teeth and a very narrow definition of jurisdiction.  In fact, it is quite disappointing to see that “rights recognition” within this legislation is only of contingent rights established through modern land claim and self-government agreements and a small window or space open to inherent jurisdiction through government agreement in section 144 of the Act.  This approach can be easily ignored by the federal government, and it will be very difficult for First Nations, on a project-by-project basis, to establish “jurisdiction” claims and negotiations of a final agreement on environmental/regulatory jurisdiction in the face of an impending major project development.

One of the most interesting discussions was the promise of Regional Impact Assessments (RIA), as a solution to the uncertainty caused by ignoring treaties and section 35 rights as their traditional lands were being developed without them.  This discussion took place within the Multi-Interest Advisory Committee, an advisory group to the EA Expert Panel and also to the Minister of Environment and Climate Change.  RIA could identify the baseline cumulative impacts already experienced by the First Nations and other Indigenous groups and support a discussion of co-development and co-governance in future development.  This was of interest to some First Nations as it looked like something that could be foundational to treaty implementation.  Bill C-69 allows RIA to lie dormant as a tool that the Minister may use as opposed to being a requirement under certain important circumstances.

At one engagement a First Nation representative mentioned the word “proponent” in assessment processes, stating that this means that if you are not a “proponent” you are likely an “opponent.”  This is the problem with development in Canada. It displaces the decision-making authority of First Nation governments.  When learning about law in Indigenous society, we discuss the core value of laws place in our society as dispute resolution or peace-making.   More space for Indigenous laws, recognition of jurisdiction, and shared decision-making will make development so much less conflict-based and be the #betterrules we all aspire for.

Bill C-69 is a large piece of legislative proposals and OKT will give more detailed analysis of its features in the coming days.