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Editorials Globe editorial: Bill C-69 kills the National Energy Board but keeps all the problems

In April of this year, a spokesperson for Rachel Notley said the Alberta Premier was working closely with Ottawa to soften the contentious parts of a bill that redefines how pipelines and other resource projects are assessed and approved in Canada.

Six months later, Bill C-69 has been adopted by the House of Commons and sent to the Senate, and Ms. Notley is angry. She criticized the legislation on Tuesday and announced she will send two ministers to appear before Senate hearings on the bill, the dates of which have not been set. “We haven’t seen the movement we had hoped to see,” she said.

From that, it would appear the Trudeau government has dug in it heels on the bill, which kills the National Energy Board and replaces it with the Canadian Energy Regulator. It also hives off the NEB’s responsibility for assessing the impact of proposed projects, such as the stalled Trans Mountain pipeline expansion, and gives it to a separate body called the Impact Assessment Agency of Canada.

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If the government has indeed decided it will no longer consider amendments to Bill C-69, it is wrong to do so. The legislation is flawed in critical ways.

For instance, while the part of the bill creating the Impact Assessment Agency recognizes in its preamble that “a transparent, efficient and timely decision-making process contributes to a positive investment climate in Canada,” the legislation does little to support that claim.

Instead, the bill’s main priority is to “foster sustainability,” with sustainability defined as “the ability to protect the environment, contribute to the social and economic well-being of the people of Canada and preserve their health in a manner that benefits present and future generations.”

That reference to “economic well-being” is one of very few in the law. Almost all of the emphasis is placed on the assessment and potential mitigation of the assumed negative environmental impacts of a project, and on the need for extensive consultation with Indigenous peoples.

In fact, when the bill lays out the “factors to be considered” by the new assessment agency in examining a proposed project, there is no specific mention made of the potential economic benefits – things such as jobs created, investment spurred, provincial economies grown.

There are, however, plenty of potential negatives that must be considered: everything from the ability of the government "to meet its environmental obligations and its commitments in respect of climate change,” to “the intersection of sex and gender with other identity factors.”

As far as Ms. Notley and others are concerned, the government is saying that downstream emissions of greenhouse gases get specific emphasis while the ability of Alberta to expand its oil industry is an afterthought. It is no wonder that people in the oil industry feel it’s unlikely the Trans Mountain expansion would have been approved by the proposed new assessment agency.

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Those same critics point out that the bill is vague about time limits for consultations and about the government’s ability to have the final say on all projects. The law does little to reassure investors their projects will be given timely consideration and won’t be subject to political gamesmanship.

And on the question of consultation of Indigenous peoples, while the bill rightly puts an emphasis on that critical matter, it fails to state what that consultation must involve. This is in spite of the fact that the NEB has a spotty record of properly consulting affected communities, resulting in a raft of jurisprudence overturning its decisions – the recent Trans Mountain decision being just the latest of many.

That same Federal Court of Appeal decision clearly lays out what proper consultation looks like and how it can be achieved. It would be easy enough to use the ruling as a guideline for the new agency, and yet Bill C-69 adds no clarity to what has been a complex issue.

In fact, it does the opposite. The Trans Mountain ruling reinforced the point that the right to be duly consulted does not amount to a veto, but Bill C-69 says the government “is committed to implementing the United Nations Declaration on the Rights of Indigenous Peoples.” The UN declaration, which repeatedly refers to Indigenous peoples' right to “free, prior and informed consent," implies a veto.

The Liberal government has never explained this contradiction, one more good reason it should listen to the critics of Bill C-69.

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