Jamie Sarkonak: Mark Carney’s ‘one project, one year’ mirage

The newly tabled revamp to the federal infrastructure approvals process — Bill C-39 — comes with the tagline, “One project, one decision, in one year.” But this seems to be more a suggestion than a rule.

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If passed, the bill would make numerous changes to federal laws that determine whether or not infrastructure gets built. The intent is to streamline the approvals process and to give a better estimate to prospective builders of when to expect a green light.

So, while proponents at present must work with multiple federal authorities to get their project approved, sometimes one after another, Bill C-39 would designate one federal authority as the point of contact.

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In cases where multiple assessments are needed from different federal bodies, Bill C-39 would have these run at the same time, rather than in sequence. Sequential assessments have been a problem in the past: a positive outcome under the Impact Assessment Act, which can take years to obtain, can be derailed by a negative Species at Risk Act assessment — or it can be later tossed out in court. This was what happened to Canadian Nuclear Laboratories when it tried to build a long-term nuclear waste storage facility at one of its research sites in Ontario.

And, when certain federal authorities are deciding what conditions to impose on a project they would like to approve under certain legislation, Bill C-39 would require them to take into account the “technical, economic and practical feasibility” of said conditions. This would apply to the Canadian Energy Regulator (CER), the federal transport minister with respect to the Canadian Navigable Waters Act, the environment minister with respect to the Canadian Environmental Protection Act, and the ministers who carry out the Species at Risk Act.

The bill is still in its early days, but at this point it’s received more praise than criticism. Part of that is no doubt marketing: the bill is couched as a way to grow the country’s independence and focus on what we can control, which is a major reason many Canadians support this country being an “energy superpower,” according to federal public opinion research conducted back in March. The prime minister knows his audience.

But it’s true that a more simplified project approval process is needed. It wasn’t surprising that Alberta Premier Danielle Smith showed optimism when asked about it the new legislation. And, in an interview with the Globe and Mail, Cenovus Energy board chair Alex Pourbaix called it “fantastic”: “The devil is always in the details, but if we can truly get to one review, a decision in one year — that makes the Canadian regulatory permitting system very similar to the U.S. and other places in the world whose economies are going great guns.”

That is exactly where the problem lies with Bill C-39: the details. There are a number of major caveats to “One project, one decision, one year” that threaten to get in the way of a timely, simple decision.

One issue, put simply in the federal backgrounder, is that “One project, one decision would not apply” to projects regulated by the Canadian Nuclear Safety Commission (CNSC) and the CER. For projects that fall under CER authority — pipelines, power lines and such — the draft legislation merely states that the CER “may” work with other federal authorities to co-ordinate their respective reviews, Indigenous consultations and the timing of their decisions. The CNSC is given a similar option: it “may” co-ordinate the review process and Indigenous consultations with other entities.

Additionally, some projects will see the introduction of new masters. The government backgrounder puts it more simply than the legislation: projects with “potential significant adverse federal impacts” are to be made “jointly with the minister responsible for the relevant sector” or cabinet. At present, under the Impact Assessment Act, a second minister is not involved in making these decisions. Perhaps this change will amount to a trivial extra signature in practice, but it could also lead to more bureaucracy and delay.

A whole lot of delay is worked into the draft legislation, regardless of the notional “one year” timeline.

“One year” also comes with an asterisk. Under the Bill C-39 scheme, timelines for complete reviews on new pipelines and power lines under 300 kilometres by the Canada Energy Regulator can be extended by 90 days to facilitate more Indigenous consultations. A complete review in these cases would be required within 300 days of the proponent’s application and a decision would be required “as soon as possible” afterwards, which means a 90-day extension would push the decision past its one-year time limit. The draft legislation would also allow for time to be excluded in calculating whether timelines for issuing approvals have been met. The amount of time and the justification for it would be up to the government, so if an approval was running behind schedule, the government could just declare it is on time.

New pipelines and power lines over 300 kilometres would run under slightly different timelines, but the overall time limit for the government to come to a decision would be 365 days. And just like for shorter pipelines, there would also be the option to exclude time from the overtime calculation, as well as the option for a 90-day Indigenous consultation extension.

Similarly, reviews under the Impact Assessment Act would have a 300-day timeline — but these would be extendable by 90 days by the environment minister, or any indefinite period by cabinet.

That’s all to say, a number of escape hatches have been worked into the legislation to account for delay and stalling — whether from slow-walking bureaucrats or disgruntled Indigenous groups — that can likely be expected in response to any major project proposal. Whether the time limits on Indigenous consultation are even constitutional is another question. It’s easy enough to legislate a 90-day timeline, but it’s a marathon to defend in court.

Judges have alreadydemonstrated an expectation of perfection when it comes to governments carrying out the duty to consult in the past — sometimes to the point of derailing projects mid-construction, after millions have already been spent. They will not likely take kindly to what Indigenous litigants will almost certainly frame as an arbitrary consultation deadline.

And here lies the core problem that Bill C-39 can’t really address: Indigenous constitutional rights have been over-interpreted by the courts to the point where it’s very difficult to provide certainty, no matter what the latest fix-it-all bill in Parliament says. This will be solved by supporting intellectual production in legal spheres and fighting duty to consult cases with all the federal government’s might. This, the Carney government doesn’t seem interested in doing. In fact, it continues to support the legal brainstorming of the decolonial cause, which undermines efforts to get more development off the ground.

As for the existing excesses of the Impact Assessment Act, namely, the excessive consideration given to potential socioeconomic impacts of projects, as well as confidential “Indigenous knowledge” — they would remain very much intact. The new processes for handling power lines and pipelines specify that these be considered in deciding the conditions of approval, as well as “health, social and economic effects, including with respect to the intersection of sex and gender with other identity factors.”

Even if the bill does have flaws, improvements to the status quo should be welcomed. But the spectre of the duty to consult has not been chased off, and the writers of this bill know it, given all of the optional timelines they’ve worked in. When it comes to Bill C-39 in its current form, keep your expectations tempered.

National Post

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