By: Hugh Benevides
Legislation Commented On: Bill C-69, An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts
Much debate has occurred in recent months about Bill C-69, the federal government’s attempt to make good on election promises to strengthen and restore public trust in environmental decision-making. (Martin Olszynski addressed some of the problematic claims last September; other ABlawg posts have looked at various aspects of the Bill). As further set out below, the critics and opponents of Bill C-69, which was referred to a Senate committee in December following Second Reading, refuse to acknowledge that the proposed Impact Assessment Act will give Canadians the chance to have greater input into proposals affecting their communities, and to better trust decisions about projects like mines, dams—and yes, pipelines. It promises to do so by ensuring that people who care about a proposed development can participate meaningfully in its assessment, with a view to more lasting environmental, economic, social and health benefits.
If the renewed Senate – which, as an unelected body, has greater continuity of membership and institutional memory – is to perform its “scrutiny, advice, publicity and persuasion” roles, then its members need to hear all sides of a story. But because (or in spite of the fact that) media values and practices are in flux, mainstream media outlets are repeating falsehoods about this Bill, making it more difficult for the truth to reach Senators and the public.
The most problematic claim, voiced for example in Independent Senator Doug Black’s October 4 speech in the Senate chamber and perpetuated elsewhere, is that economic factors, including the economic benefits of proposed projects, are not included among the criteria to be considered in impact assessments (at 1450). Nothing could be further from the truth.
As a starting point, economic considerations have always dominated project decision-making, which is clear when one considers project approval rates. The Canada West Foundation recently conducted an analysis of all the projects listed on the Canadian Environmental Assessment Registry as of October 1, 2018. It found that 95% of the projects that completed the federal assessment process were approved. Most relevant here, 73% of projects (8 of 11) were approved even where significant adverse environmental effects were found to be likely. This includes highly controversial project approvals like the Site C dam in British Columbia and the Muskrat Falls project in Newfoundland and Labrador.
In addition, and contrary to the critics, Bill C-69 actually makes the explicit consideration of economic factors mandatory for the first time. In fact, a pivotal provision, section 22, says an impact assessment “must take into account … the changes to the environment or to health, social or economic conditions and the positive or negative consequences of these changes that are likely to be caused by the carrying out of the designated project” (emphasis added).
An assessment must also consider the extent to which a proposed project contributes to “sustainability,” a defined term in the Bill that encompasses a project’s ability to protect the environment, contribute to social and economic well-being, and preserve Canadians’ health, all in a manner that benefits both present and future generations (see section 2). Scrutiny of longer-term, intergenerational impacts will complement an informed examination of shorter-term impacts, before a project may be approved.
Economic considerations are also encompassed in the Bill’s definition of “effects,” meaning changes to the environment or to health, social or economic conditions, and the consequences of these changes (see section 2). The word “effects” appears six more times in section 22, ensuring that the economic risks, benefits and uncertainties of a proposal will be part of its assessment.
In his speech, Senator Black also mentions section 63 of the proposed Impact Assessment Act, which stipulates the factors upon which project decisions must be based, saying “there are no economic factors” there, either.
In fact, the ultimate assessment decision made by the federal environment minister or cabinet must be based on both an impact assessment report (which will summarize all of a project’s likely effects, including economic) and a consideration of “the extent to which the designated project contributes to sustainability,” a factor that includes economic well-being (section 22(1)(h)).
And while the Bill requires the decision-maker to consider things like climate and sustainability, it also allows them to approve a project despite adverse impacts, because the project might bring jobs and other benefits. (Some suggest that Bill C-69’s approach is too lax, given the gravity of the climate change challenge). Such discretion has always been the case in federal assessment. The difference in the proposed law is that the decision-maker will now need to give reasons for the decision, bringing some transparency and accountability to the process. You may not like a final assessment decision, but you’re more likely to have confidence in it, and in the process that leads to it.
Far from being absent, economic factors will be a main consideration in every assessment carried out under Bill C-69. To claim otherwise is patently incorrect.
Assessment was always intended to provide a counterweight to the fact that “development” has social and environmental costs in addition to financial costs. In order to take such costs into account, they need to be brought to the attention of those affected, not merely to the attention of proponents and governments. Only then are decisions likely to proceed fully-informed, with a higher degree of consensus.
Even as they demand a higher profile for economic considerations, the critics’ larger claim seems to be that scrutinizing all of a project’s impacts will bog down or even prevent its approval.
However, rather than stopping projects, Bill C-69 has been designed to enable federal assessments to do what they have always been meant to do: consider all the possible outcomes—both positive and negative—of an action before deciding whether and how it should be carried out, thereby avoiding unwanted consequences. Impact assessment is a matter of looking before we leap (“impact preview” might be a better term). It should be neither confused nor conflated with regulatory processes that may follow the approval of a project. Similarly, the role of the agency that specializes in assessments is properly separate and distinct from that of regulatory bodies that conduct those later processes.
In fact, the assessment planning phase proposed in Bill C-69 is meant to allow involved parties—including the proponent, governments having jurisdiction over the project, and people from the affected communities, including Indigenous communities—to identify earlier the issues that are truly important, rather than wasting time and resources later on issues that are not. This should render the process both more effective and more efficient.
Some critics also object to conducting gender-based analysis plus (GBA+) as a component of assessment. While the objections have largely drowned out the facts in mainstream media, explanations of the importance of GBA+ are readily available (see for example Jennifer Koshan’s ABlawg post). While GBA+ has been done in assessments before, Bill C-69 will require that it be done, in the interest of affected individuals and families.
As noted above, only rarely has a project not been approved — and then, only when its downsides were so egregious that no anticipated economic benefits, however fanciful, could have made it look good. That is not likely to change under Bill C-69.
Another oft-repeated, assumed truth about the proposed law can be addressed summarily: the notion is circulating widely that Bill C-69 is designed to make pipelines impossible to build.
Far from being “the no more pipelines bill,” Bill C-69 will apply to a range of projects in sectors across Canada and will help communities participate meaningfully in decisions about their healthy long-term futures. While not perfect, it can begin restoring public trust in the review of projects, which was badly damaged by the law put in place by the government that was in power in 2012.
This post may be cited as: Hugh Benevides, “Claims that Bill C-69 Needs More Focus on Economic Factors Ignore the Reality of Government Decision-Making and the Bill’s Details” (January 17, 2019), online: ABlawg, http://ablawg.ca/wp-content/uploads/2019/01/Blog_HV_Bill_C69_Economic_Factors_Reality_Jan2019.pdf
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