Note: While this discussion refers to bill C-69, the discussion focuses solely on the changes to the National Energy Board and the introduction of the Canadian Energy Regulator Act.
The Brief
Nearly one year ago, the federal government introduced bill C-69
Bill C-69 repeals the National Energy Board Act and introduces the Canada Energy Regulator Act in its place, among other things.
Bill C-69 introduces, allegedly, subjective criteria like social impacts and gender-based analyses into the regulatory process in the energy sector.
Prime Minister Justin Trudeau spoke about the social and gender impacts of construction projects in rural areas in late 2018 which caused some backlash.
Groups like the Native Youth Sexual Health Network have been advocating for inclusion of gender and social impacts years prior to 2018.
The Known
Bill C-69 requires that a CEO and a Board of Directors to be established. The CEO is to be separate from the Chair.
Bill C-69 requires one of the commissioners and one member of the Board of Directors to be Indigenous.
Bill C-69 may require a potentially more robust analysis on the impacts relating to gender and social impacts.
Bill C-69 requires the new Canadian Energy Regulator to establish an advisory committee by including at least one First Nations, one Inuit and one Métis, who is to be recommended by an Indigenous organization. Indigenous organization means an Indigenous governing body or any other entity that represents the interests of an Indigenous group and its members. An Indigenous governing body means a council, government or other entity that is authorized to act on behalf of an Indigenous group, community or people that holds rights recognized and affirmed by section 35 of the Constitution. See here for a brief overview of section 35 rights.
Bill C-69 requires the new Canadian Energy Regulator to consider Indigenous knowledge. Indigenous knowledge means the Indigenous knowledge of the Indigenous peoples of Canada.
The Unknown
Bill C-69 likely creates some uncertainty regarding how energy projects will consider social and gender impacts; bill C-69 does not provide any guidance on how these impacts should be considered.
Bill C-69 centres certain kind of Indigenous voices by defining Indigenous organizations to apply in only limited contexts.
Bill C-69 assumes a pan-Indigenous to establishing its committee as the recommendations must come from Indigenous organizations which do not include organizations outside the definition as set out above.
Throughout 2018, there has been coverage of bill C-69 that ultimately covers a limited range of views. Such views focus primarily of those in the energy sector. On February 6, the Senate’s Standing Committee on Energy, the Environment and Natural Resources will hear from witnesses like Natural Resources Canada, Nuclear Safety Commission, and, among others, Transport Canada. Other groups attend on February 7. There is limited discussion as to how other groups view the impact of this bill, especially those groups who have a history of advocating for certain changes in energy and related projects (See here).
Globally, there is an increase in narratives about how energy and related projects impact Indigenous communities, specifically Indigenous women and girls. These narratives often focus on the increase in human trafficking around natural resource extraction sites. The response to such narratives, however, do not involve increasing social supports for Indigenous women and girls, a group allegedly impacted at great rates by human trafficking despite the lack of any reliable statistics. The response, instead, focuses on increasing policing and criminalization of these same communities, particularly Indigenous women and girls. For example, historically, the anti-prostitution provisions in Canada were found in one of two pieces of legislation until the introduction of the Criminal Code. That legislation was the Indian Act. Today, prostitution is presumed to be human trafficking. Accordingly, there is no difference in how the law treats or views prostitution.
There is a difference in how governments and related bodies respond to the social and gender impacts of energy and related projects, however. The difference being that such responses tend to focus on increasing funding for groups policing these vulnerable and marginalized groups and increasing penalties under the Criminal Code. The consequence being more funding for policing Indigenous women and girls, and less money for social supports like safe housing or access to non-judgmental services. And, this is what I fear will be the inadvertent and hidden consequence of bill C-69.