Canadian Lawyer InHouse

September/October 2019

Legal news and trends for Canadian in-house counsel and c-suite executives

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40 www.canadianlawyermag.com/inhouse sion projects didn't take as much time to re- view, but they still took 42, 49 and 38 months, respectively, so between three-and-a-half and more than four years, said the study. In an article on the study, written by consultant Jonathan Drance, senior advisor Glenn Cameron and partner Rachel Hutton, all of Stikeman Elliott LLP, the authors state that the "declaratory policy" of the federal government has been to complete these re- views between two and two-and-a-half years. The wait-time problem is "structural" and not a partisan issue, as it has persisted over Liberal and Conservative administrations, says Drance. "We've lacked that clarity of policy and di- rection and support at the federal level, really, for the last 25 years under administrations of both parties," he says. The provinces manage much more quickly, with timelines in the scope of 18 months to three years, state the authors. The ability of provincial reviews to sign off on major energy projects in half the time or less lies not in tools or resources but in political will, says Drance. For a provincial government, a major energy project comprises a much larger piece of the economic pie, he says. "I've come to trace it to the fact that indi- vidual projects are just not as significant at the federal level as they are at the provincial level. And where you see a project is a signif- icant priority for the government, then rules are adopted, the attitudes are communicated openly to the public and to regulators, and you tend to find a balance in terms of timing, to review a project and accept or reject it," Drance says. Another significant aspect of energy and infrastructure projects is Indigenous consent. Proposed pipelines in traditional Indigenous territory have galvanized certain Indigenous groups and sparked massive protests, such as the hereditary chiefs of the Wet'suwet'en Nation in B.C. and the Dakota Access Pipeline on the Standing Rock Indian Reservation in North Dakota. In 2016, the Trans Mountain Pipeline was blocked by the Federal Court of Appeal because the federal government failed in its duty to consult. Provincial, territorial and federal govern- ments have a duty to consult Indigenous groups when a planned project could impact Aboriginal and treaty rights recognized under s. 35 of the Constitution Act. Drance says In- digenous consultation is a "significant" aspect of the delays found in the Stikeman Elliott study, "but in a different way than you might initially think." Just as with environmental assessment, when it comes to Indigenous consultation, it is a lack of enthusiasm and high-level devotion to the projects that spell their doom, Drance says. It is typically federal and not provincial consultations that fall short of the mark, he says. Even though many provincial reviews are challenged in court, the degree of consulta- tion done at the provincial level tends to be sufficient, he says. "If you look at the record from the decided cases at the federal level — the Northern Gateway case and the Trans Mountain case — the criticism by the Federal Court of Appeal in each case was virtually identical," Drance says. "It was that, at the critical moment of consultation, it wasn't the core priority of the FEATURE Moving at a snail's pace Energy projects suffer long wait times due to lack of political motivation, a recent study by Stikeman Elliott found IN 1980, in response to Prime Minister Pierre Elliott Trudeau's National Energy program, the late Ralph Klein — then the mayor of Calgary — said, "Let the eastern bastards freeze in the dark," immortalizing the bumper-sticker slogan that epitomized an oil-focused Western Canadian resentment. There are new political factors, but the political dynamics remain the same. The oil price crash in 2014 and the subsequent economic hardship in Alberta and Saskatch- ewan have upped the stakes in the political divide, which now centres on climate change, the carbon tax and pipelines. For the latter, instead of glowering east, Western Canada is directing its disdain to the west coast, as B.C. Premier John Horgan and Alberta Premier Jason Kenney face off over the Trans Moun- tain Pipeline. A study of major energy projects by law- yers from Stikeman Elliott LLP suggests that those concerned about the oil and gas sector may want to aim their blame back at Ottawa, like old times. For pipelines, the average length of a federal environmental review was almost 70 months or just less than six years, according to the study. Oilsands projects typically took longer, averaging 74 months or more than six years. Liquid natural gas, generation and transmis-

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