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Andrew Evans: Lost jobs, smaller paycheques, and fewer chances—How permitting reform can free a regulation-choked Canada

Commentary

London city councillors look on as Prime Minister Justin Trudeau speaks at a housing project in London, Ont. September 13, 2023. Nicole Osborne/The Canadian Press.

A majority of Canadians think that Canada is broken after years of stagnant incomes, affordability challenges, rising crime, government failures on basic functions like healthcare and immigration, and a deepening cultural malaise. But decline is a choice, and better public policies are needed to overcome Canada’s many challenges. Kickstart Canada brings together leading voices in academia, think tanks, and business to lay out an optimistic vision for Canada’s future, providing the policy ideas that governments need to ensure a bright future for all Canadians.

Try building anything in Canada today and the roadblocks are immense. The average time to get a building permit for a Vancouver duplex? 325.5 days. The approval process for the Trans Mountain Pipeline took seven years while actual construction of the project took only four years (and that was with COVID disruptions to contend with). It still fares better than Energy East, an exemplary warning of the byzantine complexities and excessive veto points that exist in the current approval processes that can drown even the most experienced actors in never-ending red tape and financial ruin.

This deliberate choice to impede key sources of investment that help feed our accustomed way of life directly contradicts what Ottawa should be aiming to do. Today’s future outlook for major natural resource investments has dropped by $258 billion in the past eight years, while the OECD recently highlighted the above-average regulatory hoops that Canada forces proponents through. At its core, this squandered investment represents lost jobs, smaller paycheques, and fewer chances for people to enter the middle class.

To fix this, Canada’s government must recognize it is part of the problem. We have overengineered our permitting processes, sending a signal to the private sector that we’re not interested in its capital investment or the development of new natural resource and infrastructure projects.

The Canadian government structure is built on the principle of subsidiarity, which dictates that decisions should be made at the closest level of government that can fulfill the decision. For example, garbage pickup is best accomplished at the municipal level, while the federal government is best equipped to handle national defence. This guiding principle, if followed, allows each level of government to accomplish what it is best at and prevents them from tripping over one another in a bureaucratic and jurisdictional battle.

The Trudeau government has failed to abide by this principle. Since 2015, the federal government has been attempting to undermine the Constitution and insert itself into areas of provincial jurisdiction. One of the most prominent is the assault on resource projects, best embodied in the Impact Assessment Act, but also present in recent “greenwashing” oversight legislation. Adding another level of federal oversight to already lengthy and legally intensive processes does nothing but send the signal that already complex and undefined bureaucratic burdens will be redoubled.

A paradigm shift is needed in how we approach project permitting to kickstart Canada’s economy. Adopting a mentality that the project will be approved, not if it will be approved, and working within a strict, time-limited framework to develop reasonable alternatives or mitigating actions can change the way that we understand our public resources. Too many projects are blocked by those who either want to extract concessions or are ideologically opposed, endangering our common future prosperity for their narrow-minded interests.

This problem is so entrenched that it threatens to persist beyond the next election. As things stand, Canada will not attract new investment simply because the government changes. Definitive actions must be taken to show a clear break from past prejudices against development. With a continuing productivity and wealth crisis on our hands, we cannot afford to have the wrong incentives for companies—an untenable state of affairs, as the Bank of Canada has acknowledged in increasingly forceful terms.

The repeal of the Impact Assessment Act (already ruled unconstitutional), is a definitive move that can provide this clear signal. But as Ian Brodie recently pointed out in his Substack, while legislative changes are certainly necessary, they will take a long time to enact—and with the prospect of a hostile Senate, potentially even longer. Changes must be made quickly if we are to restore Canadian prosperity in a timely manner.

A new minister of environment should make it clear on day one that all projects that are not within activities regulated by the federal government will be deferred to the provinces. This would immediately restore Ottawa to its constitutionally-designed role and allow the principle of subsidiarity to be re-established. Deferring to the provinces on such projects will also make it clear to the provinces that, in regards to regulation, they are the masters of their own fates—how attractive they are to new and increasing investment is in their hands.

As I’ve written before, the American approach to this can teach us much. However, we can also avoid mistakes that they have encountered. Creating a stricter statute of limitations to limit frivolous and excessive legal challenges that unnecessarily endanger project decisions can help to restore overall confidence in the permitting process. Working to create a bureaucratically defined, Supreme Court-accepted duty to consult pathway on what is actually required for projects to proceed will clear up uncertainty and legal haze that Ottawa has been happy to allow to stymie approvals. Enacting defined, concrete time limits on bureaucratic decisions will mean that completion timelines can be more bankable.

With these changes and more, Ottawa can help to show provinces how the process of reform can be undertaken. Crucially, fixing the permitting mess we find ourselves in is more than just a problem for Ottawa to solve. The provinces must be allowed to perform their constitutionally dictated roles and must be part of the solution if we are to see meaningful, lasting nationwide reforms. Having restored a more traditional and orderly role for the federal government, the provinces may be more receptive to such overtures.

Encouraging reforms in provinces across the country will help to drive increased investment, jobs, and tax revenue for those that enact them in a market-sensitive manner. This is the most important first step in improving our moribund productivity. By adopting a more neutral position and deferring to the provinces on the changes they want to see and how to execute them, the federal government will assume a role akin to a coach and a model for best practices.

Variance across the effectiveness of provincial permitting regimes at the outset of this new model could be expected depending on the province in question. But with the departure of meddlesome federal intervention, the provinces would be able to experiment and improve their permitting systems as they saw fit. Ottawa’s exit will allow the conversation to turn to how to improve those systems and make them more efficient.

Andrew is a Master’s student at Columbia University, where he is also a research assistant at the Center on Global Energy Policy.

Dave Snow: The Canadian Human Rights Tribunal will not be able to handle the deluge of cases from the Online Harms Act

Commentary

Nicholas Marcus Thompson of the Black Class Action Secretariat and Bernadeth Betchi, CHRC employee, speak on the accreditation of the Canadian Human Rights Commission, Ottawa, June 10, 2024. Justin Tang/The Canadian Press.

The organization has only issued 63 decisions in five years

The Canadian Human Rights Commission appears to be in disarray. Just as its scope is set to rapidly expand under the Online Harms Act, its incoming chief commissioner, expected to start work this week, is under scrutiny for posting social media links comparing Israelis to Nazis, while a Senate committee has accused the entire organization of anti-black racism.

In light of all this, it is worth investigating how Canada’s federal human rights institutions are operating. To do so, I reviewed every published decision at the Canadian Human Rights Tribunal between January 2019 and June 2024.

The results reveal a government organization that has actually issued very few decisions and has limited experience dealing with anything related to online hate speech, particularly antisemitism. Major concerns that the incoming Online Harms Act could “overload” Canada’s human rights institutions seem well-founded.

The federal human rights framework

To understand the commission’s role, it is first necessary to distinguish between four national human rights instruments and institutions. First, the Canadian Charter of Rights and Freedoms is part of the Canadian Constitution. It is designed to protect individuals from rights violations by governments. Charter-based rights claims are adjudicated by courts.

By contrast, the Canadian Human Rights Act protects Canadians from discrimination and harassment when employed by or receiving services from three types of organizations: the federal government, federally-regulated private companies, or First Nations governments. Each province and territory has a separate human rights framework to prevent discrimination in fields of provincial jurisdiction, which includes housing, education, and most places of employment.

The Canadian Human Rights Commission investigates complaints of discrimination and harassment under the federal Act. The commission then refers the most serious complaints to the Canadian Human Rights Tribunal, an administrative body. The remaining complaints are either dismissed, settled, or decided by the commission for procedural reasons. Between 2019 and 2023, the commission received a total of 4,508 new complaints and referred 626 to the tribunal.

Once a complaint is referred to the tribunal, if mediation between parties cannot be agreed upon, a tribunal member holds a hearing to determine the scope of discrimination or harassment and to issue remedies. Tribunal decisions are administrative rather than judicial rulings, though they are subject to judicial review by the Federal Court of Canada.

As University of Ottawa law professor Stéphane Sérafin notes, the human rights framework differs from criminal or civil litigation, because the human rights commission, not the complainant, “takes up the burden of proof and the costs of prosecution.”

Though this is “intended to alleviate burdens that might deter individuals from bringing otherwise valid discrimination complaints before the Tribunal,” this model raises the possibility that the complaints process can be weaponized. Recent years have seen prominent examples of the weaponization of provincial tribunals, such as when a British Columbian transgender woman brought 15 (ultimately unsuccessful) complaints against estheticians who refused to wax male genitalia.

While the Canadian Human Rights Tribunal decisions have not been as newsworthy as provincial ones, the Canadian Human Rights Commission has been making headlines.

Dave Snow is an Associate professor in political science at the University of Guelph and a senior fellow at the Macdonald-Laurier Institute.

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