OP-ED | Bill C-69 and the intersection of identity and pipelines

Lawyers are stumped. TV show anchors are flummoxed. Some energy companies state they are facing an impossible task.

What is it that has so many seasoned professionals bewildered and at a loss as to what to do? It’s the directive in Bill C-69 that requires an environmental assessment of proposed projects to consider “the health, social and economic effects, including with respect to the intersection of sex and gender with other identity factors.”

It’s this last bit that has some people worried. They aren’t sure exactly what it means to assess a project’s effect in light of the intersection of sex, gender and other identity factors. And it can be difficult to make a connection between this puzzling language and the reality of building a major project such as a pipeline.

The concept is not terribly difficult to understand, nor is the burden on the project proponent onerous. But the government hasn’t done a great job of explaining that.

Bill C-69 was introduced by the government several months ago and is currently under review by the Senate. It replaces the current environmental assessment process for projects with a new and somewhat different process.

The new wording means that when a project is proposed, its potential positive and negative effects have to be assessed, including how the project could affect different people differently.

Not all people are the same, and not everyone will experience the benefits and effects of the project in the same way. Some people will get jobs; some won’t. Some people may see their house values rise; others may experience an increase in their rents. Some people may find it harder to provide for their families through hunting or fishing; for others, it won’t matter.

What this new wording does is require that the assessment looks specifically at how the project’s risks and benefits are distributed differently among different groups. Do men and women both have an equal opportunity to benefit from the jobs offered? Is the land that the project will use important for certain groups in particular? Are there particular groups that are more likely to experience health problems as a result of the project?

It is unlikely that anyone would have a problem with ensuring that specific groups aren’t unfairly hurt or jeopardized, or that some groups don’t unfairly benefit at the expense of others. It is appropriate that project proponents figure out what these effects might be and how to address them. Already, some companies in Canada are world leaders in addressing these issues.

But the language in Bill C-69 is confusing, and without explanation and clarity, there is much misunderstanding and concern. Some people worry the clause means that a company could be taken to court if half of the site managers, construction workers and suppliers aren’t female. Other people are concerned they will have to commit resources to demonstrating that that there are no sex, gender or identity implications that will need to be analyzed even when in areas where they aren’t relevant – for example, when looking at the effects of soil disturbance on plant growth.

While these kinds of questions and consequences may not be what the government intended by including the clause in Bill C-69, the inclusion of this wording without much explanation has been like waving a red flag in front of a bull: Predictably, the bull is mad and charging.

Will having this new language in the legislation matter? In practical terms – not really. The evaluation of effects with respect to gender and other identity factors has been happening for years within federal assessments, even though similar language does not appear in the current legislation.

One reason for this is that the terms of reference for the environmental assessment – developed by the federal regulator – have almost always specified that vulnerable populations be examined individually, despite the lack of this language in the legislation. Another reason is that international best-practice guidance on impact assessment says the same thing, and that mitigations must be developed to minimize adverse effects.

So then, how do we calm things down? The first answer is better communication. Specific, concrete examples are needed to help the public, industry and stumped lawyers grasp what some of the ways are that a project could actually influence different people differently – and why it is important.

The second answer is recognizing that including this phrase is virtue signaling on the part of government; that while having the phrase within Bill C-69 is not actually necessary in order to ensure that impact assessments look at effects on vulnerable groups, it reinforces the government’s overall commitment to gender equality.

The last piece is recognizing that those who are objecting have some reasonable concerns. Establishing this requirement in legislation means that a decision is open to legal challenge if the standard isn’t met – but there is not yet precedent for what constitutes “legally adequate” assessment of sex, gender and other identity factors in the context of project assessment.

Ensuring that projects are built well is in everyone’s interest – and understanding how different groups are affected differently is key. But so, too ,is ensuring that where new concepts are introduced, clarity follows.

Jennifer Li