Nov. 6, 2019

Why I and many others are upset with Bill 69

Here is a tiny bit of the Act, perhaps 10% of the 393 provisions and the twenty or more other Acts and Regulations that had to be changed. I have a comment after each one.

A. Preamble

‘And whereas the Government of Canada is committed to 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;’

So, how will this play out in a litigation about a project. Would the Court consider it? 

B. Definition of the word ‘effects’

‘effects within federal jurisdiction means, with respect to a physical activity or a designated project,

(a) a change to the following components of the environment that are within the legislative authority of Parliament:

(i) fish and fish habitat, as defined in subsection 2(1) of the Fisheries Act,

(ii) aquatic species, as defined in subsection 2(1) of the Species at Risk Act,

(iii) migratory birds, as defined in subsection 2(1) of the Migratory Birds Convention Act, 1994, and

(iv) any other component of the environment that is set out in Schedule 3;

(b) a change to the environment that would occur

(i) on federal lands,

(ii) in a province other than the one where the physical activity or the designated project is being carried out, or

(iii) outside Canada;

(c) with respect to the Indigenous peoples of Canada, an impact — occurring in Canada and resulting from any change to the environment — on

(i) physical and cultural heritage,

(ii) the current use of lands and resources for traditional purposes, or

(iii) any structure, site or thing that is of historical, archaeological, paleontological or architectural significance;

(d) any change occurring in Canada to the health, social or economic conditions of the Indigenous peoples of Canada; and

(e) any change to a health, social or economic matter that is within the legislative authority of Parliament that is set out in Schedule 3. (effet relevant d’un domaine de compétence fédérale)’

Wow! How do you define cultural, historical, social, economic and traditional ? 

C. Definition of environment 

‘environment means the components of the Earth, and includes

(a) land, water and air, including all layers of the atmosphere;

(b) all organic and inorganic matter and living organisms; and

(c) the interacting natural systems that include components referred to in paragraphs (a) and (b).‍ (environnement)’

Good look with that!

D. Definition of sustainability

‘sustainability means the ability to protect the environment, contribute to the social and economic well-being of the people of Canada and preserve their health in a manner that benefits present and future generations. (durabilité)’

How many trucks can you drive through this? So, totally open to Interpretation. 

E. Schedule 3 Power 

Schedule 3

(2) ‘The Governor in Council may, by order, amend Schedule 3 to add or remove a component of the environment or a health, social or economic matter.’

 So the Cabinet, politicians, will decide what’s to be included or excluded, not an independent group. 

 F. Schedule 3

SCHEDULE 3 

(Section 2, subparagraph 7(1)‍(a)‍(iv), paragraph 7(1)‍(e) and subsection 7(2))

 Components of the Environment and Health, Social or Economic Matters

 PART 1 

Components of the Environment

PART 2  

Health, Social or Economic Matters

Nothing here!

G. Here are some Ministerial Powers Under the Navigable Waters Section of the Act

Powers Of Minister 

Terms and conditions
(9) ‘The Minister may attach any term or condition that he or she considers appropriate to an approval including a requirement that the owner give security in the form of a letter of credit, guarantee, suretyship or indemnity bond or insurance or in any other form that is satisfactory to the Minister.

Effect of approval

(10) An approval issued under this section in relation to a work replaces any approval previously issued in relation to that work.

Contiguous area

(11) The Minister may, in an approval, designate an area contiguous to a work that is necessary for the safety of persons and navigation and, for the purposes of the approval, that area is considered to be part of the work. 

Compliance with requirements

(12) The owner must comply with the approval and maintain, operate and use the work in accordance with the requirements under this Act.

 Approval after activity begins

(13) The Minister may, if he or she considers that it is justified in the circumstances, approve the construction, placement, alteration, rebuilding, removal or decommissioning of a work after the construction, placement, alteration, rebuilding, removal or decommissioning begins or is completed.

Transfer

8 If the ownership of a work to which an approval relates is transferred, the transferor and the transferee must immediately give written notice of the transfer to the Minister, in the form and manner, and containing the information, specified by the Minister.

 Amendment of approval

9 (1) The Minister may amend an approval by amending or revoking any term or condition of the approval.

Amendment resulting from order

(2) The Minister may otherwise amend the approval, including by adding terms and conditions, to reflect any changes to the work resulting from an order made under section 11 or 13.

Other amendments

(3) The Minister may otherwise amend the approval, including by adding terms and conditions, if he or she considers that

(a) the work that is the subject of the approval interferes more with navigation at the time in question than it did when the approval was issued;

(b) the work causes or is likely to cause a serious and imminent danger to navigation;

(c) the amendment of the approval is in the public interest; or

 (d) the owner consents to the amendment.

 Suspension or cancellation

(4) The Minister may suspend or cancel an approval if he or she considers that

(a) the owner has not complied with the approval;

(b) the approval was obtained by a fraudulent or improper means or by the misrepresentation of a material fact;

(c) the owner has not paid a fine or penalty imposed under this Act;

(d) the owner has contravened this Act; or

(e) the suspension or cancellation is in the public interest, including by reason of the record of compliance of the owner under this Act.’

Wow, and this is only one part of the Act.

 Final Comment: Now, one might see why the Frustration.