In Canada, major infrastructure projects, such as the building of an interprovincial pipeline, a nuclear energy facility or large-scale mine are subject to federal review. For energy projects, that review is governed by two pieces of legislation: the National Energy Board Act (NEBA) and the Canadian Environmental Assessment Agency Act (CEAA).
Bill C-69 is a piece of government legislation titled “The modernization of the National Energy Board and Canadian Environmental Assessment Agency.” It seeks to overhaul both the NEBA and CEAA, changing how major infrastructure projects are reviewed and approved in Canada. Changes would include replacing the National Energy Board with a new “Canadian Energy Regulator” and an altered federal environmental assessments process to include a broad range of impacts to be reviewed by a new “Impact Assessment Agency.” The bill has been passed by the House of Commons and has now been referred to the Senate for review.
Currently, major energy projects are reviewed by the National Energy Board, which consults with the public, experts and stakeholders to evaluate a project according to a variety of economic and environmental factors. Upon completing a review, the regulator produces a report, outlining recommendations. The federal government receives this information and uses it to determine whether to approve a given project based on the “national interest.”
The process for these reviews are governed by the NEBA and CEAA: the Acts provide definition, for example, on who can participate in the review, how long a review should last, and what criteria are to be used in evaluating a project.
The government has positioned the changes to the NEBA and CEAA embodied in Bill C-69 as a means of eliminating regulatory uncertainty, providing clarity, avoiding legal action, and increasing Indigenous and stakeholder engagement.
While these goals are ostensibly positive, there is a growing consensus among industry groups and business leaders that the bill falls short of its aspirations. It lacks clarity on key issues, creating the likelihood that it 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.