Skip to main content
The Globe and Mail
Support Quality Journalism.
The Globe and Mail
First Access to Latest
Investment News
Collection of curated
e-books and guides
Inform your decisions via
Globe Investor Tools
per week
for first 24 weeks

Enjoy unlimited digital access
Enjoy Unlimited Digital Access
Get full access to
Just $1.99 per week for the first 24 weeks
Just $1.99 per week for the first 24 weeks
var select={root:".js-sub-pencil",control:".js-sub-pencil-control",open:"o-sub-pencil--open",closed:"o-sub-pencil--closed"},dom={},allowExpand=!0;function pencilInit(o){var e=arguments.length>1&&void 0!==arguments[1]&&arguments[1];select.root=o,dom.root=document.querySelector(select.root),dom.root&&(dom.control=document.querySelector(select.control),dom.control.addEventListener("click",onToggleClicked),setPanelState(e),window.addEventListener("scroll",onWindowScroll),dom.root.removeAttribute("hidden"))}function isPanelOpen(){return dom.root.classList.contains(}function setPanelState(o){dom.root.classList[o?"add":"remove"](,dom.root.classList[o?"remove":"add"](select.closed),dom.control.setAttribute("aria-expanded",o)}function onToggleClicked(){var l=!isPanelOpen();setPanelState(l)}function onWindowScroll(){window.requestAnimationFrame(function() {var l=isPanelOpen(),n=0===(document.body.scrollTop||document.documentElement.scrollTop);n||l||!allowExpand?n&&l&&(allowExpand=!0,setPanelState(!1)):(allowExpand=!1,setPanelState(!0))});}pencilInit(".js-sub-pencil",!1); // via darwin-bg var slideIndex = 0; carousel(); function carousel() { var i; var x = document.getElementsByClassName("subs_valueprop"); for (i = 0; i < x.length; i++) { x[i].style.display = "none"; } slideIndex++; if (slideIndex> x.length) { slideIndex = 1; } x[slideIndex - 1].style.display = "block"; setTimeout(carousel, 2500); } //

Pro-pipeline supporters rally outside a public hearing of the Senate Committee on Energy, the Environment and Natural Resources regarding Bill C-69 in Calgary, on April 9.

Jeff McIntosh/The Canadian Press

Finn Poschmann is a resident scholar with the Fraser Institute.

In the politically loud June run-up to the passage of Bill C-69 – which overhauls the federal environmental-impact assessment process through what is now Canada’s Impact Assessment Act – a group of premiers wrote to Prime Minister Justin Trudeau. They complained about the act’s potentially sweeping powers and the risk of provoking a constitutional crisis, then asked that the government accept amendments then on the table.

Mr. Trudeau, with apparently unintentional humour, responded that the premiers were being divisive by having said anything about it. But the premiers had a good point. The next Parliament would be wise to address their issues with another look at the act, with amendments that would improve clarity and limit fresh incursions on provincial responsibilities – since the federal government seems intent on injecting uncertainty over the constitutional law that holds our federation together.

Story continues below advertisement

The conflict, at its core, revolves around our Constitution’s 1867 framework, which divvies up federal and provincial powers and responsibilities. This division and the arguments it generates are good things, because when courts are strict in how they interpret the division, they defend our freedoms.

Quebec’s 1937 “padlock law” made it illegal to use any building “to propagate communism or bolshevism by any means whatsoever.” When Canada’s Supreme Court overrode the law in 1959 as an unconstitutional provincial incursion on criminal matters, many Quebeckers saw it as British imperialism, but most, including the Court, saw it as a win for freedom of expression. The Court’s decision depended on clarity in provincial versus federal powers.

The question of how natural resources should be developed within a province, and whether they should be, is undoubtedly within the given province’s constitutional domain. When transporting the product means crossing provincial or international borders – for example, through transmission lines or pipelines – the federal government has the final say. Ottawa can order the building of a pipeline or transmission line, even if a province doesn’t want it. And when it comes to environmental matters, responsibility is shared.

There’s the rub. The new act hands the federal government authority and discretion over which projects get designated for review, under what criteria, by whom and by when. The word “may” appears many hundreds of times, as in, “The Governor in Council may, by order …” add or remove any environmental, health, social or economic matter on the list of review criteria. The criteria could be absolutely anything.

The act’s review requirements could apply to just about any project, other than on lands subject to a land claims agreement, so some First Nations projects would get a bye. Amendments proposed by the Senate would have excluded the construction or expansion of in situ oil sands extraction operations and excluded wind and solar projects. It’s not surprising that cabinet rejected the first idea, and probably for the better that they rejected the second.

Another rejected amendment would have excluded “greenhouse gas emissions generated from another physical activity or designated project located downstream from the designated project” from the review criteria. If you are proposing a natural gas pipeline, others may have standing to object on the basis that the gas feeds some other activity that emits carbon dioxide.

Cabinet also rejected amendments imposing shorter and firmer timelines on various approval stages. A long process is one thing, but embedding uncertainty about a decision timeline into the law is bound to further chill investment proposals.

Story continues below advertisement

And cabinet rejected the Senate’s simple proposal to mitigate the act’s stress on national unity, which was to make explicit that nothing in the act would alter provincial environmental protection law – suggesting Ottawa is intent on overriding provincial environment law.

Admittedly, Ottawa could override just about anything through amendments to the Criminal Code, but that would be heavy-handed and messy. From Ottawa’s perspective, it would be better to wield the hammer through environmental law.

While cabinet accepted some of the Senate’s amendments, none would have reined in the act’s potential jurisdictional mischief. And in choosing what to put in the new act and what to leave out, the federal government has signalled more regional conflict over environmental matters – and that few pipelines or much else will be built for a long time.

The premiers and the opposition are right to cry foul. But whoever forms the next government should be aware that some easy and non-embarrassing fixes to the new act are readily available. And changes should be made, if we want much to ever be built in our energy-resource sector.

Keep your Opinions sharp and informed. Get the Opinion newsletter. Sign up today.

Your Globe

Build your personal news feed

  1. Follow topics and authors relevant to your reading interests.
  2. Check your Following feed daily, and never miss an article. Access your Following feed from your account menu at the top right corner of every page.

Follow topics related to this article:

View more suggestions in Following Read more about following topics and authors
Report an error
Due to technical reasons, we have temporarily removed commenting from our articles. We hope to have this fixed soon. Thank you for your patience. If you are looking to give feedback on our new site, please send it along to If you want to write a letter to the editor, please forward to

Welcome to The Globe and Mail’s comment community. This is a space where subscribers can engage with each other and Globe staff. Non-subscribers can read and sort comments but will not be able to engage with them in any way. Click here to subscribe.

If you would like to write a letter to the editor, please forward it to Readers can also interact with The Globe on Facebook and Twitter .

Welcome to The Globe and Mail’s comment community. This is a space where subscribers can engage with each other and Globe staff. Non-subscribers can read and sort comments but will not be able to engage with them in any way. Click here to subscribe.

If you would like to write a letter to the editor, please forward it to Readers can also interact with The Globe on Facebook and Twitter .

Welcome to The Globe and Mail’s comment community. This is a space where subscribers can engage with each other and Globe staff.

We aim to create a safe and valuable space for discussion and debate. That means:

  • Treat others as you wish to be treated
  • Criticize ideas, not people
  • Stay on topic
  • Avoid the use of toxic and offensive language
  • Flag bad behaviour

Comments that violate our community guidelines will be removed.

Read our community guidelines here

Discussion loading ...

To view this site properly, enable cookies in your browser. Read our privacy policy to learn more.
How to enable cookies