Bill C-69, a centerpiece of Canadian Prime Minister Justin Trudeau's controversial policy initiatives set to reshape the country's environmental permitting process, is on its last legislative lap. But the debate over how it will look in final form has exposed deep political and industry divisions.
"It has become a political lightning rod," said Kevin Hanna, an expert on Canada's environmental assessment process and a professor at the University of British Columbia.
The bill proposes major changes to federal permitting in Canada, addressing issues such as the cumulative impact of projects, climate change, consultation with First Nations and permitting timelines, among other things. Years in the making, Bill C-69 has passed through the House of Commons, where Trudeau's Liberals hold a majority. And after going through two of three readings in the Senate, the legislative body's Committee on Energy, the Environment and Natural Resources is dissecting it for potential amendments, which senators said are almost certain to come.
The energy sector has broadly opposed the bill, while the mining sector has expressed more support with some reservations.
"It's not a straightforward 'We love it. We hate it,'" said Justyna Laurie-Lean, vice president of environment and regulatory affairs at the Mining Association of Canada.
Laurie-Lean said the bill as it stands would be better for most of its members in the mining industry than existing legislation, much of which falls under the Canadian Environmental Assessment Act of 2012, or CEAA 2012.
"The challenge with the act, as with CEAA 2012, is that it impacts different sectors differently," Laurie-Lean said. Pipeline construction is largely federally regulated, crossing provincial boundaries, unlike mining projects that are regulated intensely by both provinces and the federal government. It can be hard to find common ground.
"It's a completely different perspective from ours," Laurie-Lean said.
A question of progress
The question of how much Bill C-69 will differ in practice from CEAA 2012 is subject to much debate. Laurie-Lean sees the new bill as an improvement in some respects, filling in gaps on timelines in CEAA 2012, for example. Both the new bill and current legislation have timelines that can allow for the clock to start and stop at the discretion of the government, but Laurie-Lean criticized CEAA 2012 as being "unpredictable" and creating delays.
The new bill has a longer, 180-day initial timeline for scoping out projects and potential issues, whereas current legislation has a 45-day window. But the longer window is an improvement for industry, in Laurie-Lean's view.
"You're spending more time upfront, but you'll be saving time overall," the executive said.
Osler lawyer Martin Ignasiak, a regulatory expert who recently spoke to the Senate committee, disagreed. He doubted the new legislation will be more efficient. "We certainly think that Bill C-69 is going to result in a much more complicated and time consuming process."
Ignasiak, like other critics of the bill, described it as overly broad, trying to do too much at the project level on issues of national policy such as climate change and consultations with First Nations. He also sees the bill as letting more stakeholders get involved in the permitting process than what is possible under CEAA 2012.
"It tries to solve so many problems, it doesn't achieve better outcomes in any of those areas," Ignasiak said. "And on the flip side, it creates an incredibly unpredictable, expensive and time consuming process for those trying to advance projects."
Taking a position closer to Laurie-Lean's, Hanna doubts that Bill C-69 would be more onerous. "Projects are not going to move any slower or any faster under Bill C-69 than they did under CEAA 2012," he said. "And projects under CEAA 2012 didn't move any faster than under the previous process."
Hanna expects Bill C-69 to be a net benefit for industry. "The new process is more likely to get these things through than the older process, which had become legally problematic," he said, noting that the new process may help industry avoid litigation by improving the consultation process.
Like Ignasiak, however, Hanna said Bill C-69 tries to tackle too much at the project level on broader policy issues such as climate change. Whether that becomes an issue for industry will depend a lot on how regulations and potential amendments clarify Bill C-69, Hanna said.
"These are big policy questions ... that need a national conversation," Hanna said.
Senate debate
As it stands, the bill is being scrutinized by the Senate's Committee on Energy, the Environment and Natural Resources, chaired by Sen. Rosa Galvez.
Galvez supports the bill as a necessary update of Canada's permitting process, addressing more deeply issues such as First Nations consultations and climate change. But the committee's deputy chair, Sen. Michael MacDonald, described the legislation as a potential disaster for the resource industry in Canada that would be "job killing."
The committee is to relay recommendations on possible amendments to the Senate in a report due May 9. The Senate is expected to vote on the bill by the end of May. Assuming it makes amendments, it would go back to the House of Commons for a vote on the potential changes.
"One thing that is becoming very evident is that Bill C-69 is not perfect," Galvez said.
Meanwhile, its passage faces a time crunch. Canada has a federal election scheduled for October 21 that, as the polls stand, will pit the Liberals against the Conservatives, which have a lead, according to recent surveys.
That could put a squeeze on regulation-making if Bill C-69 is passed, as widely expected. Laurie-Lean said she worries that the process could be rushed and recommended that the government defer the bill from going directly into law so Canadian officials can work through drafting them.
"The window for actual thoughtful development of regulations and proper training of staff, making sure everything's in place, is becoming just absurd," Laurie-Lean said.