Published: November 17, 2018
The recent Federal Court of Appeal’s decision regarding the Trans Mountain Expansion Project (TMX) is evidence Canada’s regulatory system not only creates uncertainty for industry and investors, but also is so complex even the Government of Canada and National Energy Board have not met regulatory requirements. Bill C-69 will add to the complexity and therefore will not prevent decisions like TMX. Instead, Bill C-69 will create greater regulatory uncertainty and litigation risk, both of which will result in decreased investor confidence. Amendments to the Bill are required to ensure key items are well defined at an early stage (such as the scope of the impact assessment, and the scope and process for consultation) and to ensure various discretionary decisions made under the Impact Assessment Act (the Act) may only be challenged in limited circumstances and are provided appropriate deference.