Bill C-69 and Bill C-48: What do they mean for Canada’s Oil and Gas future?

Updated: May 28, 2019

With all the buzz going on Bill c-69, Bill C-48 and the newly passed Bill 12 from Alberta, Naturalresource.ca blog will answer your questions on what these bills are about and how they will impact the Oil and Gas industry in Canada if they are passed.


What is Bill C-69?


Bill C-69, entitled: 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. Bill C-69 proposes major changes to the current regulatory review process intended for energy projects.


Currently, regulatory review processes are conducted by the National Energy Board, bill c-69 aims to change this as it introduces a new “Canadian Energy Regulator” which according to Pembina Institute, “demonstrates the government has worked to fulfill its mandate to modernize the National Energy Board and ensure robust and fair project reviews.”

Aside from introducing a new “Canadian Energy Regulator”, bill C-69 also proposes a change from “environmental assessment” to “impact assessment”, which means that the Canadian Environmental Assessment Agency would be replaced by a new “Impact Assessment Agency”.


The emphasis here is on the transition of an environmental assessment process to an impact assessment process, which expands the factors for consideration beyond the biophysical environment of water, land, air, fish and wildlife, which also means that they are not only looking on the adverse environmental effects but also the “impact” both positive and negative, to health, social and economic factors.


Other notable changes as summarized by Norton Rose Fulbright:

  • CER members will each have a 10-year term limit, these members will be governed by a board of directors. Both groups must have one indigenous member.

  • Increased Indigenous engagement between the Impact Assessment Agency and Indigenous Peoples, unlike the previous legislation, it is explicitly said on Bill C-69 wording that indigenous traditional knowledge “must” be considered and not “may” be considered

  • the proposed bill also requires the Governor-in-Council, the minister and the IAA to consider impacts to the section 35 rights of Indigenous peoples, which means that the Impact Assessment Agency would need to consider right issues that are usually handled by the courts, and consequently would mean the need for increased resources and support.

  • The provincial “substitution” provision remains, but with additional conditions for its acceptance, including mandatory consultation of Indigenous groups. Under the CEAA 2012 substitution provisions, many British Columbia projects, in particular, did not undergo federal environmental assessments because the CEAA agreed to rely on the provincial environmental assessment regime. However, given the bill’s broadened scope of inquiry, the IAA may well consider provincial regimes as no longer “substantially similar” to the new Impact Assessment Act.

  • Consistent with other environmental assessment regimes, individual assessments must consider completed higher-level “strategic” assessments. The federal government has announced that the first such assessment will address climate change.

  • Although the government proposes less time to make a decision on a project description and claims that the changes will reduce the timelines, increased mandatory public participation and consultations with no time limits set, might increase timelines for project assessments.

Why does this matter?


The changes proposed will mean increased public participation, expansion of the list of factors to be considered on project reviews and also overhauling the governance of said processes to reduce conflict of interests between government bodies.

CEPA has commented that the said changes will “make an already complex system more complicated, while ultimately raising uncertainty and the potential for litigation. Contrary to the government’s stated intentions, Bill C-69 in its current form will be a significant barrier to future investment, putting jobs at risk.”


Norton Rose Fulbright commentary suggests that these proposed changes will move the energy projects away from those with energy expertise. “The new legislative language seeks to address friction points from the current regime but, like any legislation, may result in unintended consequences”.


Pembina Institute on its statement says that the proposed changes is critical to the relationship between the Government of Canada and the Indigenous people, as it is a necessary action the government has to take to make sure that the United Nations Declaration of the Rights of Indigenous Peoples (UNDRIP) principles be operationalized when dealing with projects that concern Indigenous peoples.


In conclusion, Bill C-69 is created with good intentions in mind, but certain parts of the legislation as it is currently written allegedly will pose risks to jobs and investments and will need to undergo further amendments to address these concerns.


Update on Bill C-69: Currently, the Senate committee on bill c-69 just passed new amendments to Bill c-69, which “seeks to overhaul the environmental review process for new energy and transportation projects.”

The Senate committee will now be going to the reporting stage. (Global News)


What is Bill c-48?

The proposed Oil Tanker Moratorium Act, Bill C-48, was released in May 2017 as part of the Oceans Protection Plan, which aims to formalize the banning of oil tankers on British Columbia’s north coast.


Why does this matter?

Arguably, Canada has no need for Bill C-48. The country already implements a world-class marine safety standard. According to CAPP. “The federal government has been a leader in ensuring that Canada has a world-class marine safety system that continues to evolve over time. Modern-day tanker safety measures are robust and include the use of state-of-the-art tanker navigation, double hull design, segregated ballast tanks, inert gas systems, compartmentalization and seafloor mapping. “

Banning oil tankers on BC’s north coast will shrink an already small market for Canada’s oil and gas.

According to CAPP, “if implemented, the bill would prevent large oil tankers (those carrying more than 12,500 metric tons) from anchoring, loading or unloading, and transporting oil and other petroleum products such as partially upgraded bitumen and synthetic oil along B.C.’s North Coast. The moratorium zone would extend from the Canada-Alaska border to the northern tip of Vancouver Island.”

This, in turn, would restrict market access to Canada’s oil. In a statement released by CAPP, “Bill C-48 as written, would prohibit marine access on the British Columbia north coast ports to Asia for a very broad range of hydrocarbons.”


Update on Bill C-48:

The bill has been defeated on the recommendation of Senate committee not to proceed with the bill. The bill is not dead, the Senate still has to vote on Bill C-48, and will go through another third reading, where amendments can be added. (Global News)


Sources:


Federal Bill C-69

Mondaq: http://www.mondaq.com/canada/x/678478/Environmental+Law/New+Federal+Environmental+Assessment+Legislation+Bill+C69

Norton: https://www.nortonrosefulbright.com/en/knowledge/publications/af78c6aa/new-federal-environmental-assessment-legislation-bill-c-69

CAPP https://context.capp.ca/energy-matters/2018/og101_what-is-bill-c69

Fraser Institute https://www.fraserinstitute.org/blogs/trudeau-sticking-with-bill-c-69

Pembina https://www.pembina.org/media-release/canadian-energy-regulator-act


Federal Bill C-48

Fraser institute https://www.fraserinstitute.org/article/oil-opponents-target-tankers-despite-sparkling-safety-record

CAPP https://energynow.ca/2019/04/what-is-bill-c-48-and-five-things-to-know-about-it-capp/


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