Will the Trudeau Liberals’ new industrial assessment policy, Bill C-69, be the end of pipeline projects? Or will it be a useful tool for projects to proceed, doing so in an environmentally friendly manner?
When it comes to answering these questions, I don’t put much weight in the opinions of many of this debate’s main players due to their bias or their ignorance.
Politicians must be loyal to their party. Industry folks have to look out for their jobs, and I’m also skeptical of green and social justice activists because they are funded by U.S. interests to block pipelines. And most people, including most politicians, only dimly grasp regulatory law and how it will play out in our courts.
That said, I have found a few fair and informed people to rely on, most notably Andrew Roman, who testified at the recent Senate committee hearing’s on Bill C-69.
Roman is both non-partisan and expert. He’s retired from his Toronto law firm but worked in administrative law for more than 45 years, including on numerous environmental regulatory cases, representing government, business and Indigenous groups.
Out of the committee hearings, the Senate agreed to more than 200 amendments to Bill C-69, with the Trudeau Liberals now agreeing to about half of those amendments.
But the bill has not been fixed, Roman said.
He’s still going over details of what the bill does and doesn’t include, but says many of the changes fail to address the major problems with C-69, mainly that it pushes a process that is far too time consuming and political and includes many new regulations that will act as legal triggers for court challenges.
“C-69 is still, I think, a no-pipelines law, even with these amendments,” he said.
“On pipeline issues we seem to have ‘government by Greenpeace.’ … I don’t see any responsible corporate board of a pipeline company agreeing to devote $1 billion and 8-10 years to this process, with its many new litigation triggers.”
The Liberals have made worse the politicization that started under former prime minister Stephen Harper. “Harper took a big step in the wrong direction and I think this takes it further,” Roman said.
Before Harper, the National Energy Board heard all the evidence during the hearings, but also made the final decision on approving the project. If any group objected to that decision, it could appeal to the federal cabinet.
Harper changed the process so that the board only made recommendations, with cabinet having the final say. Under C-69, cabinet will remain the final decision maker, and the environment minister will also have increased power through the process.
“The (final) decision remains to be made by the least qualified persons, cabinet members, who have neither the time nor the knowledge to read and understand the 10,000-plus pages of scientific evidence,” Roman said. “Regardless of which political party is in power, the real world political decision will most likely be made on the basis of a few pages of political polling advice, which the cabinet understands, not the scientific evidence, which it doesn’t … The cabinet can then say, ‘Well, we’ve read the latest polling information and we think this is an unpopular project so we’re not going to approve it.’ And five years of hearings just disappears.”
The new process also increases the number of factors that a new assessment agency must consider, such as the implications of a project on gender issues. All this extra work will drag out hearings, Roman said. “Federal assessments are already the longest and slowest assessment process that exists among the developed countries, two times as long as in the United States.”
In the end, it’s hard to imagine how anyone will benefit from this new process, save for the green and social justice groups paid to thwart Canada’s oil and gas development.
It’s possible that good intentions have been driving the Liberals, a heartfelt urge to protect the environment but to also proceed with responsible resource development. But it seems like the Liberals are naive about the legal consequences of this new process. With the way Environment Minister Catherine McKenna regularly slights the oil and gas sector, one wonders if malice isn’t also at play.
This isn’t likely to end well when it comes to jobs and prosperity. Prime Minister Justin Trudeau speaks of wanting to partner with Indigenous groups on major industrial projects as part of reconciliation, but his own assessment process will prevent that.
As Andrew Roman asks, “How do you partner with people if there are no more projects?”