[CaptainCrunch]

Andrew Roman's breakdown of C-69 and the problems with it


https://andrewromanviews.blog/2018/1...ssessment-law/

Whereas the Government of Canada is committed to…..

• achieving reconciliation with First Nations …. based on recognition of rights, respect, co-operation and partnership;
• using transparent processes that are built on early engagement and inclusive participation and under which the best available scientific information and data and the Indigenous knowledge of the Indigenous peoples of Canada are taken into account in decision-making
• assessing how groups of women, men and gender-diverse people may experience policies, programs and projects and to taking actions that contribute to an inclusive and democratic society and allow all Canadians to participate fully in all spheres of their lives;

However, the government is unlikely to achieve:

• reconciliation with FNs via an adversarial hearing process in which one side has to be the winner and the other side the loser, particularly if some FNs support and others oppose the pipeline;
• transparency via a process in which those who decide the assessment do not hear the parties, while those who hear cannot decide
• transparency when some parties are permitted by the Act to provide their evidence and opinions in confidence, as secret evidence is not transparent
• an inclusive and democratic society by assessing and taking unspecified “actions” against the impact of a pipeline on unspecified “groups of women, men and gender-diverse people”.

If the key intended results conflict with the Act itself, and thus, will not be achieved, honesty requires that either the description of the intended results be amended or the Act be amended to correct the conflict.

hree Basic Problems With Impact Assessment Not Addressed by C-69

1. The CEAA and the NEB Act give the NEB conflicting duties. Is this supposed to be an assessment process or a licensing process? The two are not the same. The numerous upstream and downstream impacts the CEAA requires the NEB to assess (e.g. of tanker traffic in the ocean) are much broader than the conditions of licence that the NEB and the Cabinet can impose under the NEB Act. Downstream tanker traffic is not part of a pipeline proponent’s project. What happens in the ocean is not within the proponent’s control. Therefore, conditions of license cannot include anything about tanker traffic because the pipeline would have no way to comply with such conditions. While assessment of tanker traffic may be mandatory for CEAA purposes it is irrelevant for NEB Act pipeline licensing purposes. This conflicting mixture of two different processes in one proceeding needs to be resolved by amending C-69.
2. The CEAA already required too many potential future environmental, social and economic impacts to be considered. Several are of marginal relevance, and use vague language that encourages litigation. C-69 lengthens, rather than shortens the list of mandatory considerations.
3. The persons who conduct the public hearings (the NEB or the new Impact Assessment Agency) have no authority to decide anything. On the other hand, the persons who decide everything (the Cabinet) do so in secret, with no public participation. C-69 gives the Minister even greater political control over the hearing process, increasing politicization while reducing transparency.

Three Basic Problems With Consultation of First Nations

1. The positions of FNs on a pipeline are often divided. While many support pipelines that provide many FNs with jobs and income, a few FNs are unalterably opposed. The purpose of opposed FNs in participating in the Crown’s consultation process is not to arrive at an agreement to accept the pipeline but to collect evidence for a successful court challenge. They have every right to do this, but the government has no duty to enact legislation that makes successful court challenges easier.
2. Under our system of government the public service employees doing the consulting can have no authority to decide anything or make any commitments to FNs on behalf of the Cabinet.
3. The Cabinet cannot meet and consult repeatedly with 100+ FNs potentially affected by the pipeline. Thus, the people doing the consulting are necessarily just the conduits of FNs’ concerns to the Cabinet. However the FCA in TMX held that performing this role was inadequate. That decision should have been appealed, but was not.

Litigation Triggers in the IAA

1. Secret Evidence of “Indigenous Knowledge”

A pipeline company going through the IAA process will be concerned that some FN witnesses may present their “Indigenous knowledge” in confidence, attacking the proponent’s evidence.
The IAA has no definition of “Indigenous knowledge”. The hearing is about possible impacts of the pipeline many years into the future. There can be no “knowledge” of the future. There are only predictions.
This secret “knowledge” may cause project approval to be denied. As the law is written, the proponent will be denied an opportunity even to know the evidence against it, and therefore, denied a fair opportunity to challenge it.
The IAA does permit someone to apply for disclosure of the secret evidence subject to certain conditions. However, no disclosure may be granted unless it is necessary for “procedural fairness”. When a proponent and an FN are disputing disclosure of secret evidence, the hearing will probably be suspended while the procedural fairness issue goes to the FCA, and perhaps also to the SCC. In any event, the resolution of this issue may not be simple or quick.
2. Unrealistic Statutory Time Limits
The TMX hearing had some 1,600 participants. The IAA emphasizes greater public participation. To hear from an unlimited number of public participants presenting an unlimited volume of evidence would require unlimited time. Pipeline opponents will sometimes organize numerous individuals to make repetitive, scripted presentations, to maximize delay. The Agency will have to impose time limits, at least on oral submissions, thereby potentially triggering court challenges. To reduce the risk of successful court challenges, the Minister will probably have to grant one or more extensions of time beyond the statutory time limit for completing the hearing.
3. Problem Language
Vague, over-inclusive language in the IAA – of which there are numerous examples – will also be potential litigation triggers for one side or the other. Such language will not be helpful to anyone. I have seen an environmental group seeking support for the legislation on social media, encouraging Senators to approve C-69 quickly despite industry objections. However, if environmental advocates understood that the vague language and undefined action words in C-69 can be interpreted in ways that harm rather than help the environment, they, too, would want the legislation made more effective through better drafting.

Any ways its a pretty interesting in depth look at the bill and includes discussions around extra-ordinary ministerial power over projects, how it places various agencies in direct conflict, and opens up every project to litigation.