Crown-Indigenous Relations Minister Carolyn Bennett is calling for patience from jittery oilpatch proponents worried about the government’s controversial overhaul of environmental legislation — telling them to embrace better relations with Indigenous peoples or risk seeing even more energy projects held up by the courts.
In a year-end interview with CBC News, Bennett, who counts Bill C-69 as the fulfilment of part of her mandate from Prime Minister Justin Trudeau, said the bill is designed to do away with the “residue” of a system introduced by the former Harper government that cut regulatory red tape but paved the way for several court challenges.
“This shouldn’t be frightening,” Bennett said. “It’s better and achieves the certainty proponents need.”
The Liberal government has pointed fingers at the Harper regime for pipeline failures. But in its August ruling on the Trans Mountain expansion project, the Federal Court of Appeal was clear that the Liberals have a far from perfect record on the file.
The lead author of that decision, Justice Eleanor Dawson, described the Trudeau government’s Phase 3 efforts with Indigenous peoples as a “failure” — using that word well over 100 times in a 272-page decision.
The court quashed cabinet approvals for Trans Mountain and nullified licensing for the $7.4 billion project on the very day Kinder Morgan shareholders approved the sale of the pipeline expansion project to Ottawa.
C-69, tabled before the court ruling, seeks to address some of those concerns about Indigenous consultation. For instance, the court said federal consultants were glorified “note-takers” who thoroughly documented Indigenous concerns but did virtually nothing to accommodate affected communities.
‘Tick off that box!’
“There’s no question. To include Indigenous people at the beginning, and Indigenous knowledge, is the way you get it right … so you don’t end up foundering in court or with other huge delays,” Bennett said.
“People want to know they’ve been heard. The reason we now prefer the world ‘engagement’ over ‘consultation’ is because it used to be people would come, they’d write down a bunch of things, and then they’d go in to a back room and decide. It can’t just be public consultation … ‘Tick off that box!'”
Bill C-69 creates a new “pre-assessment” phase that will require proponents of a natural resources project to prepare (among other things) an ‘Indigenous Engagement and Partnership Plan.’ Minus the jargon, that means a report that shows how the company has addressed Indigenous concerns, what it’s done to mitigate risks and what sort of financial accommodation might be in play. The government added this layer to get companies to address pressing issues early.
Meanwhile, the ‘standing test’ — which determined who could testify before the regulator assessing a project — has also been removed, paving the way for greater participation by Indigenous groups (and any group that can demonstrate an interest in the project). It also will now be mandatory to provide funding to support Indigenous participation in these public hearings.
The new law also stipulates that, when making a decision on a project, the environment minister must consider any adverse effects that the decision may have on the rights of Indigenous peoples, as recognized and affirmed by section 35 of the Constitution Act, 1982.
Bill C-69 is one of the last big pieces of legislation the government wants passed before the next election. It’s now before the Senate, where it is facing a rough ride from the Conservative opposition.
The bill, thanks to the support of Trudeau-appointed Independent senators, has been sent to the energy committee for further review in the new year.
The government’s point man in the Senate, Peter Harder, has defended the legislation, saying it will make major fixes to prevent more court rulings like the one that sidelined the Trans Mountain project.
“Bill C-69 is centred on environmental sciences, additional approval stages, as well as thorough and clear consultation with Indigenous peoples — this is embedded in the legislation,” he said.
“These are the very issues that the Federal Court of Appeal highlighted as necessary when moving forward with major resource projects. That is exactly what Bill C-69 seeks to remedy while providing clarity to industry and investors.”
While some First Nations have championed these reforms as welcome changes that affirm Indigenous rights, energy proponents worry that they’ll only prolong an already lengthy process and give the environment minister too much power to kill a project, even after it has been through a thorough assessment.
Some also fear a wave of project opponents, freed from the ‘standing test,’ will overwhelm the regulatory process.
A letter-writing campaign, directed by Rick Peterson, a failed Conservative leadership candidate and an Edmonton-based investment banker, has generated tens of thousands of letters to senators demanding they overhaul the bill or kill it outright.
“Bill C-69 is so terrible … it would be the hammer that drives the nail in the coffin of resource sector investment in Canada,” Peterson said in an interview with CBC News.
“This bill would choke off investment in Canada’s resource sector by imposing environmental and review standards that are clearly focused on a green agenda rather than on responsible resource development. We’re not going to stand by and let that happen to our economy and our resource sector families.”
‘Let’s get this bill passed’
Bennett said much of the opposition simply amounts to overheated rhetoric. She said the federal government already has had some success regionally with the model it is hoping to replicate nationally with Bill C-69.
“Let’s get this bill passed. We’re saying, ‘Try it, you’ll like it,’ because we’re still dealing with the residue of previous policy,” Bennett said, adding a pre-assessment process can make a “mediocre” project better.
She pointed to the joint federal-territorial-Indigenous impact review board in Nunavut that recently endorsed a large mining project backed by TMAC Resources. The Madrid-Boston Project, near Hope Bay, is said to have more than 3.5 million ounces of recoverable gold. The project is expected to create jobs for local Inuit and generate millions of dollars in revenue for the cash-strapped territory.
Most importantly, the Inuit will actually have an equity stake in the gold mine — something that has so far been denied to coastal First Nations and other reserves in the B.C. interior that are along the path of the Trans Mountain expansion. The project deal also protects sacred sites.
Bennett called the Hope Bay project a “quality enterprise” that “is just inspirational to many other places. I don’t think people should be frightened. It’s better and achieves certainty that the proponents need.
“With the new policy, and with our experience in the North, and with the amount of consultation that went in to Bill C-69, I think we have found that balance that really works.”