Significant Amendments Announced to the Accord Acts-Update

Our July 2023 article Significant Amendments Announced to the Accord Acts detailed the then newly-announced proposed amendments to the Atlantic Accord legislation. A year later, the amendments have not been passed, but instead are still going through the federal legislative process, without a clear indication of either when or even if they may be passed, or what the amended form will be before it is passed.

The Winding Road…

The amendments to the Accord Acts are set out in Bill C-49, An Act to amend the Canada–Newfoundland and Labrador Atlantic Accord Implementation Act and the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act and to make consequential amendments to other Acts.

After being first announced in May 2023, Bill C-49 was introduced to House of Commons and referred to Committee review on 17 October 2023. The Committee review process from January to April was extensive, with various presenters before the Committee and Committee members challenging the Bill on various basis. These ranged from the level of control the environmental or wildlife conservation provisions would provide the federal cabinet, to concerns about the implications of the offshore renewable industries that would be regulated under the Bill, to advocacy that the Bill should require a plan to phase out offshore petroleum production altogether.

It was also highlighted that amendments were required due to references to the Impact Assessment Act, significant portions of which had been found in the intervening period to be unconstitutional by the Supreme Court of Canada. The federal government announced it would introduce amendments to the Impact Assessment Act. The Committee’s amendments allow these sections of Bill C-49 to come into force when the anticipated revisions to the Impact Assessment Act are introduced without impeding the coming into force of Bill C-49’s other provisions.

Other amendments which were ultimately recommended by the Committee and adopted by the House of Commons included wording that increased the consideration of fisheries issues in the awarding of any offshore renewable licenses.

Bill C-49 was then sent to the Senate and was forwarded to the Senate Standing Senate Committee on Energy, the Environment and Natural Resources on 6 June 2024. The Bill is also receiving significant review before the Senate Committee process. There have been 4 separate hearing dates, with additional hearings now set over until September. The September hearings will deal in part with representatives from the Assembly of Nova Scotia Mi’kmaw Chiefs, who have written to claim the federal government failed to satisfy its duty to consult on the Bill. There is no indication as to when the Senate Committee may conclude its review and report to the Senate.

What’s next?

Eventually the Senate Committee will report on its examination of Bill C-49 to the Senate. The Committee may recommend the Bill move forward without amendment, recommend amendments to the Bill, or recommend the Senate not proceed further with the Bill.

If Bill C-49 proceeds without further amendment, the next steps will be a final Senate vote on Third Reading, and (assuming it passes) Royal Assent. If further amendments are recommended and approved by the Senate, the Senate version of Bill C-49 will have to go back to the House of Commons for reconsideration in its amended form. This would likely result in additional delays in enacting Bill C-49.

In the unlikely event the Committee recommends the Senate not proceed with Bill C-49, the Senate must consider the recommendation. If the Senate adopts this recommendation, Bill C-49 would effectively fail, and the Federal Government would have to start again with a new Bill.

Conclusion

In addition to industry, the Government of Nova Scotia and Newfoundland and Labrador are participating by testifying before Committees and watching with significant interest. Whatever version of Bill C-49 that is eventually passed have to also be adopted and passed by the provincial legislatures as amendments to each’s provincial legislation, due to the mirror nature of the accord Acts.

The debate and controversy surrounding Bill C-49 appears to originate both from substantive concerns as well as some level of political maneuvering. It will be interesting this fall to see how it progresses and what additional issues may arise.

With significant assistance from Chris Cleary, a summer law student in our St. John’s Office.