Uncertainty on the environmental assessment front — Lexpert

Shawn Denstedt Q.C.

July 3, 2019

Shawn Denstedt, Osler’s Vice Chair of Western Canada, tells Lexpert that Bill C-69 has created “a lot of uncertainty” with respect to the environmental assessment process. In her article, author Elizabeth Raymer discusses the potential impact of Bill C-69, An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts — which has passed Second Reading in the Senate. Shawn explains why he feels there might be a “wait-and-see attitude” with respect to investment as a result of the Bill.

“There is still a lot of uncertainty over how the environmental assessment process will end up, as a result of Bill C-69,” Shawn tells Lexpert.

“What will the regulatory system look like? And how will it impact investment? I think there’s a wait-and-see attitude,” he says. “People who might invest in Canada say, ‘until Canada sorts itself out, we’re going to sit on the sidelines.’ I think that is the number one trend or issue facing investment in Canada right now.”

If passed, Bill C-69 could affect how major infrastructure projects are reviewed approved in Canada, according to the article. Shawn says that it would also create greater regulatory uncertainty and litigation risk.

“Bill C-69, in my view, will not solve the uncertainty issue in relation to environmental assessment; it will make it worse the way it’s currently drafted,” Shawn tells Lexpert. He adds that the Bill being drafted within the context of individual projects is a “less than ideal way in which to make policy decisions,” and it lets go of the expertise available under the Calgary-based National Energy Board (NEB) for regulating energy projects, by separating the Environmental Review from the NEB’s mandate.  

“The problem with that is the people who are best equipped to understand the impacts of energy development are no longer charged with that obligation,” Shawn says.

He says that the NEB was created as an expert regulator in all aspects of the energy sector, and “by separating those functions, we’re doing the exact opposite of what sustainable development really means, which is to actually integrate those decision-making processes.”

For more information, read author Elizabeth Raymer’s article “Uncertainty on the Environmental Assessment Front,” on July 3, 2019 in Lexpert.