Vagueness and Generality Could Have an ‘Intersectionality’ in Making Bill C-69 Unworkable

Commentary, Economy, Ian Madsen

The federal government has boxed itself into a corner in its attempts to square the process for reviewing and approving large mining, pipeline or other projects with the private sector’s desire to have any such process be clear, simple, relatively quick, and not itself be an insuperable obstacle to making big, risky investments.  For Canada is now no longer a low-risk, high return venue for investment.

Under Ottawa’s proposed legislation, Bill C-69, a proposed project would qualify for such a review if [it]:  

“Causes a change to the environment on federal lands, in a province other than where the project is being carried out, or outside Canada

Causes a change to the environment in Canada that affects the physical and cultural heritage of Indigenous peoples, or their health, social or economic conditions

Has an effect on fish, aquatic species and migratory birds

Causes a change to the environment of structures or sites that are of historical significance

The public would have the opportunity to provide comments on the project during this phase”

These conditions are broad, and general, but seem to be in line with previous procedures, except for the second one, regarding the physical and cultural effects, or health, social or economic conditions of Indigenous peoples.  This is dangerously close to having anything that might disturb the existing conditions being considered deleterious, if not directly, then in how people within First Nations reserves or nearby consider themselves disturbed or inconvenienced. These changes that by any objective measure may not directly affect them in any negative way.  

One example of this could be the protest by ‘traditional leaders’ in northwest-central British Columbia of the Coastal Link gas pipeline surveying crews’ activities on lands with tenuous aboriginal claims against them (only one First Nation in BC has signed treaties with the federal or provincial governments, which is part of the problem in pipeline and other disputes in that province).  While the elected First Nations council leaders have all agreed to right-of-way access on their lands or traditionally accessed-or-used lands, these other actors have persisted in their crusade, abetted by environmental ‘activists’. This overly broad language in the Bill, even if mitigated by other more limiting language elsewhere in the document, has the effect of condoning or allowing such unsanctioned disruptions and obstruction.

As for the Impact Assessment, here is the approach the Bill takes:

Factors to be considered during an impact assessment

Impact assessment criteria would include factors currently contained in the Canadian Environmental Assessment Act. Bill C-69 would also require the agency to take into account:

“The impact the project may have on Indigenous groups

The project’s contribution to sustainability

The project’s effect on the federal government’s ability to meet environmental obligations and climate change commitments

The intersection of sex and gender with other identity factors

The need for the project and any technically and economically feasible alternatives

The agency’s findings would be released in a public report; members of the public would have an opportunity to provide comments before the agency prepares a final report and submits it to the government.”

The first criterion is quite broad and general.  Almost anything, anywhere, could have one or more effects on Indigenous groups, even if only psychological, let alone a big mine or construction project, or a pipeline that will entail considerable disruption on the ground of the right-of-way, and plant life and possibly water bodies.  However, to forestall problems in the courts that have stymied other pipeline projects, this sort of condition needed to be put in the document. Yet, there should be explicit detail about what sorts of things affecting First Nations could or should be considered in any such impact review.

The contribution to sustainability clause is as wide as interstellar space.  It could be used to stop nearly every large project, except hydroelectric dams, solar installations, wind turbine farms, or, strangely, some mining projects that produced rare metals, zinc, copper, lithium, cobalt, or anything else used in batteries or electric motors or permanent magnets.  No fossil fuel-related project is, by definition, ‘sustainable’, in that they all rely on finite resources that will deplete over time.

The ‘environmental obligations and climate change commitments’ clause is also similarly extremely broad and general and would bring anything fossil-fuel-based into jeopardy, since all of them involve, ultimately, burning hydrocarbons and thus emitting carbon dioxide, a greenhouse gas, or leaking or expelling methane (another greenhouse gas) from natural gas.  As the current government in Ottawa has compelled Canada to constrict and even reduce carbon dioxide and methane emissions, this could make it very difficult, in theory and in practice, to approve any or all oil, liquids or gas pipelines or even transmission or distribution systems which, of course, will facilitate fossil fuel production and combustion.

The ‘intersection of sex and gender with other identity factors’ clause, assuming it is not an earnest contribution (i.e., joke) from Titania McGrath of ‘Woke’ fame, would be puzzling, if this whole C-69 enterprise were not already an exercise in Political Correctness.  There would seem to be nothing in particular that a pipeline, mine, or construction project would offer in terms of sex, gender, identity or any such aspect, but this could be a way to inject hiring quotas for such projects; e.g., for women, non-white minorities, minority religions or cultures, immigrants, Indigenous people, or other ‘identity groups’.  As many engineering and construction firms already have commitments to ensure participation by some or all of these groups, and also make strong efforts to involve affected First Nations residents by training them in useful trades for this sort of work, and assist them in some subcontracting business on top of it, this may not be too onerous, but the requirements could be made more stringent.  If this clause were made more clear and specific, then there might not be the concern, or derision, that could arise should C-69 be passed into law.

It is understandable that the federal government wants to cover all conceivable bases in impact assessment and review in order to ensure that such a debacle as the TransMountain court-ordained disapproval does not occur again.  However, this draft law is so full of giant, exploitable holes that it actually could make things much worse for anyone, or any group of people trying to build large projects that would make our economy stronger, generate jobs, and improve our trade balance, strengthen our currency, and improve our standard of living and quality of life.  This draft should be tightened and made far more explicit in its requirements, or scrapped and re-written in consultation with experts that have knowledge about what would pass muster in our demanding legal system.