Building Canada Strong: lawyers weigh in on ‘coordinated consultation’

Lawyers on both sides of the Indigenous bar agree that the Building Canada Strong Act’s (Bill C-39) promise of coordinated consultation is a genuine improvement, but only the manner of implementation will decide whether the bill works.

There are, however, sharp differences in their views.

Thomas Isaac, the Vancouver-based chair of Cassels Brock & Blackwell LLP’s Aboriginal law group and co-lead of the firm’s national major projects team, advises energy, mining, infrastructure and other companies, as well as governments, on consultation and project-related regulatory matters. He believes Bill C-39 creates a sound, lawful framework that puts the onus squarely on government to make timely decisions.

Aashish Oberoi, who practises in the Toronto and Yellowknife offices of Olthuis Kleer Townshend LLP and advises Indigenous governments on self-government, the protection of lands and natural resources, and negotiations with proponents and governments, sees a compressed timeline full of uncertainties and broad new ministerial discretion that could erode the trust projects depend on.

Transport Minister Steven MacKinnon introduced Bill C-39 in the House of Commons on Sept. 21. In the government’s announcement of the 243-page omnibus bill, Dominic LeBlanc, the minister responsible for One Canadian Economy, described its standard for review as “one project, one review, one year.”

The upshot is that the bill dictates a “one window” approach that assigns responsibility for certain projects to a single expert federal assessor. The government says its provisions will ensure that federal decisions arrive within one year of a proponent submitting a comprehensive application.

More specifically, Bill C-39 amends the Impact Assessment Act (IAA) to allow the environment minister to issue a single decision that covers all permits for which a proponent has applied. The amendments also allow the minister to permit some preparatory work to begin before a decision is issued, where that is in the public interest.

The bill would also change the rules on project conditions. Currently, the minister may add, remove, or amend conditions only if doing so does not increase the impact of adverse effects. Bill C-39 would allow the minister to make those changes when the amendment is in the public interest.

For pipelines, designated power lines and offshore renewable energy projects, the Commission of the Canadian Energy Regulator would become the sole assessor, with decisions due within one year of receiving the required information and studies.

First-instance judicial reviews under the Building Canada Act would be heard by the Federal Court of Appeal rather than the Federal Court.

Other amendments would require the competent minister to weigh technical, economic, and practical feasibility when setting conditions for permits under the Species at Risk Act and would allow third parties to use habitat credits under the Fisheries Act.

From a duty-to-consult perspective, the bill would amend the Impact Assessment Act and the Canadian Energy Regulator Act to formalize the roles of the Impact Assessment Agency of Canada, the Canadian Energy Regulator (CER) and the Canadian Nuclear Safety Commission (CNSC) in coordinating Crown consultations, to ensure one consolidated federal consultation on a given project for each affected Indigenous community.

Isaac sees the proposed legislation as progressive.

“The devil will be in the details, the implementation,” he says. “But at face value, and that's the only thing I can speak to at this point, it's a very positive move.”

He rejects the notion that a one-year clock is unrealistic.

“Getting an assessment done in one year, even for the biggest project, is possible. The legislation has the potential to streamline the process to produce timelier, more robust and more respectful consultation.”

The legal test for determining whether the Crown has met its duty to consult, Isaac says, is reasonableness.

“Measured against that standard, having the best-placed federal regulator lead and coordinate consultation within a sound, transparent regulatory framework is consistent with the law.”

But he’s concerned about the political will.

“Does the federal government have the stomach to make timely decisions on projects that they have properly and fully consulted on, but where they still don’t have unanimous or full Indigenous agreement?”

Isaac distinguishes inadequate consultation from endless consultation.

“It’s one thing not to consult properly, but the idea that consulting is never-ending is not consistent with the law.”

For his part, Oberoi cautions that it’s too early to properly assess the bill, an evaluation possible only when the government implements the legislation.

“At first glance, there are significant concerns. We don’t actually know how agencies will manage to carry out comprehensive reviews in the amount of time given.”

A key problem is an unanswered question about when the clock starts. As Oberoi reads the bill, the year begins only once an application is complete and all requisite studies, which can run to thousands of pages, are finished.

“But what counts as complete?” he asks. “How much information sharing is required before regulators treat an application as complete? How much engagement with First Nations is required before the clock starts?”

Engagement, he adds, is a foundational concern.

“You can’t just go through permitting without local support,” Oberoi says. “The country is littered with examples of rushed permitting resulting in contaminated sites, which we now have to spend billions to clean up.”

Oberoi is also concerned about the new public-interest standard for changing permit conditions.

“What does it mean, and how will it be used? So far, there’s no guidance.”

Most proponents, Oberoi says, understand that consultation and engagement are built on trust.

“If you make changes that undermine the trust needed to make progress, it will hurt the process. First Nations aren’t against economic development: They just want it done right.”

Oberoi says coordinated consultation is something First Nations have been seeking for years.

“These days, it’s not unusual for federal departments to bombard First Nations with uncoordinated requests. A one-window approach with a coordinator could address that, but if it leads to rushed consultation, it’s a step backward.”