It shouldn’t be difficult to improve the process by which pipelines are approved in Canada. The status quo is literally a bust.
For proof, look at the federal government’s decision last year to purchase the Trans Mountain pipeline from Kinder Morgan, after the company’s exasperated board halted investment in its long-planned expansion of the existing line.
Kinder Morgan first filed an application with the National Energy Board in 2013. In 2016, the NEB approved the project with conditions, and cabinet greenlit construction.
And then everything fell apart.
The government of British Columbia suddenly reversed its approval of the expansion after the NDP won election in 2017. Then it passed a law stopping any increase in the amount of bitumen transported through the province and said it wanted to consult with Indigenous peoples on the issue, without giving a deadline for those consultations.
That’s when Kinder Morgan announced it was putting the $7.6-billion project on hold; it subsequently agreed to sell the existing line to Ottawa for $4.5-billion.
Its timing was impeccable: The day after shareholders approved the sale, the Federal Court of Appeal overturned the NEB’s approval of the Trans Mountain expansion on the grounds the regulator had failed to properly consult some Indigenous groups, and had erred in not considering the expansion’s impact on tanker traffic off the B.C. coast.
Trans Mountain is in limbo, and these days you have to wonder whether Canada can ever get another pipeline built that crosses a provincial border. The approvals process is broken. And the Trudeau government’s proposed reform appears to make this terrible system a bit worse.
What’s needed? Less politicization of the regulatory process. More certainty. And decisions, whether thumbs up or down, rendered within a reasonable amount of time. Unfortunately, Bill C-69 does not not appear to deliver.
At its basic level, the bill kills the NEB and replaces it with the Canadian Energy Regulator. It also gives the responsibility for assessing the impact of proposed projects to a separate body called the Impact Assessment Agency of Canada.
The biggest flaw in the legislation, now before the Senate, is that it gives the federal cabinet a veto over all projects. Under the current system, the cabinet only gets final say on NEB-approved projects that have a major environmental impact; with the proposed law, it will have final say on everything based on the vague notion of “the public interest.”
That is an unacceptable politicization of the process, and it’s self-defeating. Why would a company spend millions of dollars on an approvals process when, at any minute, a politician with an election on her mind might confuse the public interest with her own?
The Liberal bill also fails by giving intervener status at impact-assessment hearings to anyone, rather than limiting it to people with relevant expertise, or those directly affected by a project. It is easy to imagine hundreds of people and groups demanding standing in an effort to waylay a proposal.
And, while the proposed law sets a reasonable time limit on the approvals process, it also allows the cabinet to stop and start the clock as it sees fit. Project proponents will have zero guarantee that their case will be decided quickly.
If the government’s goal with Bill C-69 is to give the oil industry more certainty, it fails. If its goal is to give opponents a bigger say in the approvals process, it succeeds to a fault.
Major pipeline and other resource projects should be judged on their impact on their immediate environment and on Indigenous peoples, and on the possibility of mitigating any impacts that cannot be avoided.
The consultation period should have a hard deadline, and the factors to be considered should be clear, and based on the most recent jurisprudence, such as the Federal Court of Appeal decision on Trans Mountain.
Things like downstream greenhouse-gas emissions, or “the intersection of sex and gender with other identity factors,” as the law proposes, should be kept out of the discussion.
And once an independent body has weighed the evidence and reached a conclusion, its decision should not be overturned by cabinet except for narrow and specific reasons, and not because of the mutable notion of the public interest.
Canada needs a new way to get pipelines built. The Trudeau government’s plan isn’t it.