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37th PARLIAMENT, 1st SESSION

Standing Committee on Environment and Sustainable Development

EVIDENCE

CONTENTS

Tuesday, April 9, 2002

0905

The Chair (Mr. Charles Caccia (Davenport, Lib.))

Mr. Jeff Barnes (Member, Board of Directors, Canadian Construction Association)

0910

0915

The Chair

Mr. Robert B. Gibson (Individual Presentation)

0920

0925

0930

The Chair

Mr. Franklin S. Gertler (Legal Counsel, Grand Council of the Crees of Quebec (Eeyou Istchee))

Mr. Diom Romeo Saganash (Director of Quebec Relations, Grand Council of the Crees of Quebec (Eeyou Istchee))

0935

0940

0945

The Chair

Mr. Bob Mills (Red Deer, Canadian Alliance)

Mr. Jeff Barnes

0950

Mr. Bob Mills

Mr. Jeff Barnes

Mr. Bob Mills

Mr. Jeff Barnes

Mr. Bob Mills

Mr. Robert Gibson

0955

Mr. Bob Mills

Mr. Robert Gibson

The Chair

Mr. Bernard Bigras (Rosemont--Petite-Patrie, BQ)

1000

Mr. Diom Saganash

Mr. Bernard Bigras

Mr. Diom Saganash

1005

The Vice-Chair (Mr. Bob Mills)

Mr. Guy St-Julien (Abitibi--Baie-James--Nunavik, Lib.)

The Vice-Chair (Mr. Bob Mills)

Mr. Diom Saganash

1010

Mr. Brian Craik (Director, Federal Relations, Grand Council of the Crees of Quebec (Eeyou Istchee))

The Vice-Chair (Mr. Bob Mills)

Mr. Guy St-Julien

The Vice-Chair (Mr. Bob Mills)

Mr. Guy St-Julien

The Vice-Chair (Mr. Bob Mills)

1015

Mrs. Karen Redman (Kitchener Centre, Lib.)

Mr. Jeff Barnes

Mrs. Karen Redman

Mr. Jeff Barnes

Mrs. Karen Redman

Mr. Robert Gibson

1020

Mrs. Karen Redman

Mr. Robert Gibson

Mrs. Karen Redman

The Vice-Chair (Mr. Bob Mills)

Mrs. Karen Kraft Sloan (York North, Lib.)

Mr. Robert Gibson

1025

Mrs. Karen Kraft Sloan

Mr. Robert Gibson

Mrs. Karen Kraft Sloan

Mr. Franklin Gertler

The Vice-Chair (Mr. Bob Mills)

Mr. Jeff Barnes

1030

Mrs. Karen Kraft Sloan

Mr. Robert Gibson

Ms. Ginnette Lajoie (Environment Coordinator/Analyst, Grand Council of the Crees of Quebec (Eeyou Istchee))

1035

The Vice-Chair (Mr. Bob Mills)

Mr. Bernard Bigras

1040

Mr. Diom Saganash

The Vice-Chair (Mr. Bob Mills)

Mrs. Karen Kraft Sloan

1045

Mr. Robert Gibson

Mrs. Karen Kraft Sloan

Mr. Robert Gibson

Mrs. Karen Kraft Sloan

1050

Mr. Robert Gibson

Mr. Brian Craik

Mr. Jeff Barnes

1055

The Vice-Chair (Mr. Bob Mills)

Mr. Robert Gibson

The Vice-Chair (Mr. Bob Mills)

Mr. Jeff Barnes

The Vice-Chair (Mr. Bob Mills)

Mr. Joe Comartin (Windsor--St. Clair, NDP)

1100

Mr. Robert Gibson

The Vice-Chair (Mr. Bob Mills)

Mr. Alan Tonks (York South--Weston, Lib.)

Mr. Diom Saganash

1105

Mr. Brian Craik

1110

The Vice-Chair (Mr. Bob Mills)

CANADA

Standing Committee on Environment and Sustainable Development

NUMBER 065

1st SESSION

37th PARLIAMENT

EVIDENCE

Tuesday, April 9, 2002

[Recorded by Electronic Apparatus]

¿ (0905)

[Translation]

The Chair (Mr. Charles Caccia (Davenport, Lib.)): We'll begin today's meeting with testimony from representatives of two organizations.

[English]

We are starting today with the Canadian Construction Association, followed by the Grand Council of the Crees of Quebec, or Eeyou Istchee. We welcome the witnesses--old friends and new friends.

Before starting, may I welcome back Mr. Mills from his western adventure, and congratulate Mr. Bigras for his very fine speech in the House yesterday.

We now have quorum and can start. There may be one or two of us who at 10 o'clock will have to relinquish the room to participate in the debate on the pesticides bill, but it will be a short disappearance. I will invite a colleague to take the chair during that absence.

Without any further delay, we will start with Mr. Barnes. If you can compress your statements into short presentations, by the time we finish with everybody we will have time for questions and answers.

Mr. Jeff Barnes (Member, Board of Directors, Canadian Construction Association): Thank you, Mr. Chair, and thank you to the members of the committee for providing me the opportunity to speak to you today on Bill C-19.

[Translation]

I'm delighted to have come all the way from the beautiful province of New Brunswick to be here with you this morning.

[English]

As you know, I am here representing the 20,000 member firms that make up the Canadian Construction Association. The CCA, of which I am a member of the board of directors, is the national voice of the non-residential construction industry, representing companies that work in the industrial, commercial, and institutional sectors.

Most Canadians are unfamiliar with the importance of construction to our national economy. Did you know, for example, that in 2001 the gross output value of construction services in the Canadian economy totalled over $132 billion, which represents approximately 11% of Canada's gross domestic product? Furthermore, in 2001 construction employed some 871,000 Canadians, which makes up almost 6% of the Canadian labour force. Mr. Chair, with these numbers, it's easy to understand why construction is easily Canada's largest industry.

As a national voice of this industry, CCA is committed to working with the federal government to pursue common objectives and common goals. The protection of the environment, while enabling sustainable economic development, is undoubtedly one of the common goals we each face. That is why CCA has had a member on the Regulatory Advisory Committee for the Canadian Environmental Assessment Act since its inception in 1992. I personally have been CCA's representative on RAC for five years. In this capacity, I have been an active participant in the five-year review of the Canadian Environmental Assessment Act. As well, I am vice-president of environmental sciences of Jacques Whitford Environment Limited, a national environmental consulting firm that specializes in environmental assessment, particularly under the Canadian Environmental Assessment Act.

CCA feels that Bill C-19, as it is drafted, is a strong piece of legislation that incorporates an unprecedented degree of multi-stakeholder consensus on critical changes that are necessary to improve Canada's environmental assessment process. A lot of good work has gone into the development of the bill, and we fervently hope that the bill will be proclaimed in this session of Parliament. We feel that the strengthening and improving of the federal environmental assessment process through the five-year review and Bill C-19 are tremendously important to attracting and retaining investment in Canada and supporting economic growth.

In particular, CCA supports the changes that were included in Bill C-19 with respect to determination of the comprehensive study versus panel tracks of review. The introduction of this new ministerial decision point in the process to confirm the track of review and remove uncertainty and possible duplication we believe will greatly improve the certainty, predictability, and fairness of CEAA.

We are very pleased to see that Bill C-19 includes many of the consensus recommendations of RAC that were included in RAC's report to the Minister of the Environment in May 2000. CCA fully endorses the consensus recommendations of RAC, as these recommendations represent significant progress in finding common ground among a wide range of government, industry, first nations, and environmental stakeholders.

The consensus-building process engaged by RAC members is constructive, progressive, fair, and should stand as a model for other environmental initiatives with diverse stakeholders. The participants in RAC all bring a high level of relevant knowledge and experience as well as diverse perspectives to the table. As a result, the recommendations that come out of this consensus-building process are strong and well deliberated. That is why CCA was disappointed to note that a critical issue, upon which multi-stakeholder consensus was reached by RAC, has not been addressed in Bill C-19--that is, the issue of scope determination.

The membership of CCA is greatly concerned by litigation associated with application of CEAA. In that regard, CCA feels very strongly that much of the litigation to date has arisen from the dissatisfaction of the public and stakeholders with certain aspects of the conduct of particular environmental assessments. These include the lack of notification in screenings, the quality of environmental assessment, and the scope of environmental assessment.

We feel that many of the proposed measures--for example, early public notification and the provision for a lead responsible authority--will do much to reduce the frequency of litigation. However, Bill C-19 does not act on recommendations 5.1, 5.3, and 5.4, of the RAC consensus report to the Minister of Environment regarding scope determination.

¿ (0910)

What exactly do we mean by scope determination, and why is it so important? Scope determination is a critical step in the environmental assessment process, as it requires the responsible authority or minister, depending on the review track, to consider the appropriate scope of the project that should be assessed, and the appropriate scope of the assessment itself. Through this exercise, the responsible authority or minister has the discretion and ability to limit the scope of the environmental assessment and focus the resources of all stakeholders on issues of relevance and importance.

CEAA, as it currently exists, requires the responsible authority or minister to determine the scope of the project, the factors to be assessed, and the scope of those factors. However, in practice, the manner in which these decisions are made and communicated is very inconsistent. As a result, there is a great degree of uncertainty for proponents, who cannot be sure they are studying all the issues that need to be studied, and face the possibility that the requirements might change late in, or following, the review process. There is also a great degree of uncertainty for the public and stakeholders, who cannot be sure if the issues of greatest concern to them are being assessed.

Dispute regarding the scope of the project and the assessment is at the heart of much of the litigation so far advanced in relation to CEAA. Where a scope determination is not made or is poorly articulated, the requirements of CEAA are such that all of the environmental effects--and I mean all of them--of a project must be assessed. Without the limitations of scope determination that has reasonably exercised the discretion of the responsible authority or minister, the requirements of a defensible environmental assessment, in the courts and in the eyes of the public, become very difficult to achieve.

The language of CEAA, without the reasoned limitations of discretion afforded in section 15 and section 16, requires the assessment of any conceivable environmental effect of the project. CCA believes this problem can be simply and effectively addressed by making the documentation or publication of scope determination mandatory through Bill C-19. This clarity around the scope of the project, and of the assessment, is essential for participants in the environmental assessment process to share a common understanding of what is being assessed.

Further, CCA believes the scope determinations made, in relation to a comprehensive study track of review, should be made available for public comment. We recognize that government departments might balk at the requirement, due to the perceived increase in effort required at a time when many departments are short on resources. However, we believe the investment of a little extra time upfront in the process will do much to reduce overall review timelines, and will certainly avoid costly and time-consuming litigation for all parties.

It is also possible that responsible authorities may wish to reserve the flexibility to change the scope of the project or assessment later in the review process. However, this sort of uncertainty is not tenable if the environmental assessment process is to be fair, predictable, certain, and timely for all stakeholders. These are stated objectives of the renewed federal environmental assessment process, as noted in the minister's report to Parliament.

Amending Bill C-19 to require the mandatory documentation and publication of scope determinations preserves the discretion and ability of the responsible authority or minister in making these important decisions, while at the same time providing a substantially greater degree of transparency and certainty to all participants in the process.

We also note with concern that the current language of Bill C-19, specifically clause 13, could prohibit the publication of a scope determination made in relation to a comprehensive study, if that determination is included in a report from the responsible authority to the minister. We are concerned that the contents of such reporting might be subject to rules of cabinet confidentiality, and if the scope determination is not previously made public, through the public registry, for example, such rules might prohibit its subsequent publication.

In such an event, it is then possible that the participants in a comprehensive study would never know the scope of the project or the assessment. This is completely untenable for a fair and certain process, and will certainly generate additional legal challenges and process delays, despite the otherwise favourable aspects of including this new comprehensive study track determination.

¿ (0915)

In summary, CCA strongly encourages the standing committee to seriously consider the amendment of Bill C-19 to require mandatory documentation and publication of scope determinations for all assessments, to provide for timely public comment on scope determinations made in relation to comprehensive study reviews, and to ensure that the language of Bill C-19 does not in any way prohibit the publication of scope determinations in relation to comprehensive study reviews. Suggested legal language in this regard is attached for your convenience to our submission.

[Translation]

On behalf of the CCA, I want to thank you for your attention. I welcome your comments and would be happy to answer your questions.

[English]

Thank you very much, Mr. Chair.

The Chair: Merci, Monsieur Barnes.

Next on the speakers list we actually have Mr. Gibson. I made a mistake earlier of assuming that he was here together with Mr. Barnes to speak for the Construction Association, a gigantic faux pas for which I hope Mr. Gibson will forgive me. Mr. Gibson is with the University of Waterloo.

We welcome you, and the floor is yours.

Mr. Robert B. Gibson (Individual Presentation): Thank you, Mr. Caccia and members of the committee.

I am not representing the Construction Association. I am currently a visiting scholar at the Sustainable Development Research Institute at the University of British Columbia, although, as Mr. Caccia said, I am normally at the University of Waterloo. I am representing no one other than myself here.

I'm basing my comments on way more years than I care to remember now in environmental assessment work broadly defined at most jurisdictional levels, from the global to the municipal, including most jurisdictions in Canada, and working for, with, and occasionally against federal agencies and provincial ones and first nations, NGOs, private sector consultants, etc. I'm sure I've offended just about everybody, and as an academic, one has the opportunity to do that without all that much peril.

I have sent the committee three things. One, some time ago, was a paper that has been published in a law journal since on Bill C-19 and its deficiencies and the parent legislation's deficiencies. The second is the notes for a presentation here, which are lengthier than I'm going to get permission to go through, so I won't burden you with reading them into the record. But you have them all, and in translation, I believe.

To that is appended an old document from 1994 that deals with one of the matters raised in the submission, namely, application of the process to the strategic level of policies, programs, and plans. The submission has benefited greatly from consultations with a variety of colleagues, including members of various Canadian environmental law associations. I should give them due credit, burden them with no responsibilities.

The paper looks at two elements. One is 13 of the main components of Bill C-19 that overall are probably mildly positive and could in every case be improved somewhat. There are details about how that could be done, and I'd be happy to talk about that, if you wish. I'd rather focus my attention on the second matter, namely, the major omissions from Bill C-19. Mr. Barnes is quite right in referring to Bill C-19 as a product of multi-stakeholder consensus, although it may be an incomplete product thereof.

In the course of that, it has not been possible to address what I think are the six key needs of improvement under the federal legislation. The main underlying problem I see is that there is a fairly fundamental tension between the purpose of the legislation, which is to contribute to sustainable development, or sustainability, and the actual substance of many of the provisions of the law.

This has come to practical effect in a couple of recent panel decisions in the case of the Voisey's Bay mining and milling project. The panel involved there required the proponents, through the guidelines for preparation of an environmental impact statement, to show that the undertaking would in the end leave the communities and ecosystems affected better off than when they began--the concept of a net improvement.

¿ (0920)

I think it should be obvious that the whole idea of sustainable development is premised on the idea that what we're doing now is not sustainable. So it amounts to reversing direction from progressive unsustainability to something that is improving our situation. You can't do that by merely reducing the negative effects. That just makes you go down the hill more slowly; it doesn't move you in a progressive direction toward greater sustainability.

The panel, recognizing this tension between the purpose of improving the situation and the normal interpretation of the law, which is to mitigate the most significant adverse effects, chose the higher test. The same test is included in the guidelines prepared in the Red Hill Creek Expressway case, now suspended. It suggests that panels are interpreting the law as requiring the higher test. They're taking the sustainability commitments seriously and consequently requiring improvements.

The law is not very well designed to do that. There are a variety of ways in which this appears, and those are the six main omissions that I see here. Some of them are quite easy to correct and some them, frankly, aren't. I'll just go through these quickly and we can discuss as you wish.

The first of perhaps one or two simple ones is the definition of “environment” and “environment effects”. The Canadian law adopts a baroque definition of “environment”, intended, apparently, to avoid direct consideration of social and economic effects. This is not without historical reason, although not with any logical reason, in my view. The original environmental assessment law, the National Environmental Policy Act of the United States of 1969, defined environment to include, reasonably, the intersecting aspects of social, economic, cultural, and biophysical matters. The Ontario environmental assessment law--the first one in Canada, in 1975--has essentially the same definition. These are clearly workable approaches, and are much more realistic.

Panels that go into real communities, finding real people wanting to talk about their real issues, find that most people don't distinguish clearly between direct and indirect social effects. Most panels are forced to listen to that stuff anyway, because that's the way the world really works. I think it is reasonable that that should be included. I've included some legal wording you could use.

Secondly, and maybe even more simply, there should be a requirement under CEAA to take into account positive as well as negative effects. A colleague of mine, who was once the director of fish and wildlife in Prince Edward Island, attempted to persuade the proponents of the fixed link bridge to include some habitat enhancements in the project. It would have been not very difficult. It would have been not very expensive. It would have been of substantial long-term benefit. He was not successfu, and for a variety of reasons, the main one of which was that the proponent really had no motivation in law, coming out of the environmental assessment process, to think of enhancements of just how to mitigate most significant adverse effects. We miss all sorts of potential gains there. It seems utterly unreasonable to exclude.

Third is the consideration of purposes and alternatives. These can be considered under CEAA, but usually retroactively. They are additional matters that can be required by the responsible authority or the minister, and often are, but usually after the proponent has already gone to the trouble of figuring out what he or she wants to do. It's an add-on requirement that is highly inefficient and usually not very effective.

Purposes and alternatives are often best considered at the planning, programatic, or policy level. In Ontario's experience over many years, the main alternatives to new hydro generation projects, transmission line projects, were essentially demand management. There's all manner of literature that suggests it's cheaper to do demand management than to build new stations to provide more supply. Yet, for a variety of reasons, the existing proponents were uninterested in doing this.

¿ (0925)

They were forced to consider it eventually through constant battles at the project level. It became very clear that it was much more sensible to do this at a demand-supply policy and plan level, and they were eventually forced to do that. The amount of struggle it took to get that far was undue. There are all sorts of arguments why it would be more efficient to provide good guidance for project level assessments through good assessments at the plan and program level. It's especially true of agencies such as CIDA, the Canadian International Development Agency, which does a lot of program work. Trying to apply CEAA simply at the project level is not very useful, often enough.

Finally, two last points. The law, as it currently stands, is intended to avoid significant adverse effects, unless they are “justified in the circumstances”. Justified in the circumstances is not defined in the law, and while some reasons may be given, the decision-making on what qualifies as a justified circumstance lies outside the realm of the law and outside the realm of public discussion and lies without any criteria of application.

As a minimum, it would seem reasonable, in a law that is supposed to contribute to sustainability, to require that the “justified in the circumstances” happen when those circumstances are in some large measure contributing to sustainability. If there is ever a justification of significant adverse effects--something I would question in any event--that should only be where there is a strong argument that overall there are grounds for thinking that we're contributing to sustainability.

If you think of the alternative, which is that we can justify something that's non-sustainable over the long run, you would seem to be offending government policy in any event. I don't see a good reason for avoiding that, and it would be usually a benefit to specify the criteria to be applied, at least generally.

The final thing is that we've had a long 30 years of discussion about whether there should be powers of enforcement. The current federal law relies on a super-added provision whereby existing permits and licences can be used to extend beyond their normal range to include other things that aren't normally included. So a permit under the Navigable Waters Protection Act can include air pollution considerations. You might imagine that's a fairly clumsy way of trying to apply limitations on an approval. It's certainly a highly uneven one, since the various laws from various years for various purposes have quite a range of mechanisms for actual enforcement.

The reasons for this are in the murky depths of history as well, and they mostly have to do with jealousies about the power of the Minister of the Environment to deal with things outside a narrowly environment mandate. It may be that as this process, like European and other ones, gradually moves to being sustainability-oriented in a serious way, this becomes a process that should report to Parliament rather than to one single minister. As I say, there are some of these things I'm suggesting here that are rather more ambitious than others. That would be one of them.

I think in the end that's where this process probably needs to move, if there is serious dedication to sustainability.

Perhaps I'll stop there and respond to attacks or questions, whatever should come up. Thank you.

¿ (0930)

The Chair: That's very helpful, Mr. Gibson. Your paper is extremely helpful.

We'll proceed now with Dr. Gertler. Would you like to take the floor?

Mr. Franklin S. Gertler (Legal Counsel, Grand Council of the Crees of Quebec (Eeyou Istchee)): It's not Mr. Gertler who is going to speak, Mr. Chairman, it's Mr. Saganash who is delivering the brief. Thankfully, for once the lawyer has shut up.

[Translation]

Mr. Diom Romeo Saganash (Director of Quebec Relations, Grand Council of the Crees of Quebec (Eeyou Istchee)) [The witness speaks in his native language]

First of all, I'd like to thank the members of this committee for the opportunity to appear today.

Twenty-six years ago, we signed the James Bay and Northern Quebec Agreement with Canada and the Government of Quebec. We were promised that in the face of development projects and resource exploitation, there would be a permanent, adapted and fully effective regime of environmental and social protection in our territory, Eeyou Istchee.

Mr. Chairman, section 22 of the James Bay and Northern Quebec Agreement calls for an effective federal presence in the formation of policy and in the review of projects that involve matters under federal jurisdiction. We were promised a special status whereby we would be part of the social and environmental impact assessment procedure at all levels and stages and in its interpretation and application. Moreover, in addition to providing that “the environmental and social protection regime applicable in a territory shall be established by and in accordance with the provisions of this section”, we were promised that the regime would not be changed without Cree consent.

What do we find today? Today the regime is essentially neglected and rendered non-operative by Canada. That part of it that functions minimally, the James Bay Advisory Committee on the Environment, is not accorded its proper role in policy formation and is underfunded. Canada denies that federal assessment can be triggered under section 22 and instead imposes the Canadian Environmental Assessment Act on our territory in violation of the section of the treaty just cited.

In the past we have made submissions on Bill C-19 without response from Canada. Similarly, the James Bay Advisory Committee on the Environment referred to in the treaty as the preferential and official form for responsible governments concerning the regime has made similar submissions, only to be similarly ignored. Frankly, from our perspective, the approach by Canada to the constitutional rights of the Cree people as set out under section 22 of the James Bay agreement has been both cavalier and high-handed.

Rather than working with us in a relationship of mutual respect, Canada has worked to circumvent its obligations under the treaty. While we are promised a special regime in our territory, Canada has sought to replace this regime with environmental legislation that applies elsewhere in Canada and does not fulfill the requirements of our treaty.

Canada bases its position in this regard on the comments of a federal judge, ironically enough, in a case on the Eastmain-1 project. In this region, Justice Décarie decided that Eastmain-1 was exempted from environmental review by being part of the original La Grande complex approved by the James Bay and Northern Quebec Agreement. In addition, as comment on the regime, not as part of the decision, he stated that projects are either provincial or federal, and that in almost all cases there is no federal role. He argued that hydro projects should not be subjected to federal environmental review under the James Bay agreement regime because they are under provincial jurisdiction.

The binding decision on this, however, is not the Décarie judgment, but rather that of Justice Rouleau, who decided in the Cree Regional Authority v. Canada in 1992 that the correct application of section 22 cannot be based on the notion that projects are either federal or provincial in nature.

Projects also involve impacts, and these often involve matters within federal and provincial competence, as they did in the Great Whale project, which was the subject of the Rouleau decision. Look at the decision in the Supreme Court in the Friends of the Oldman River Society case, where it is clearly stated that the responsibility for environmental protection falls on the shoulders of both the federal and provincial governments. By analogy to the Supreme Court of Canada Cree case on the jurisdiction of the National Energy Board, it would be surprising if the elaborate federal regime under section 22 of the James Bay agreement were set up by Canada never to be used. This would have been an example of bad faith.

Frankly, to date we feel cheated by the crown in this matter. The evidence of the crown's lack of sincerity in this regard is the fact that even the triggers of the Canadian Environmental Assessment Act are those that involve matters within federal competence. The triggers do not rest on some contrived theory of jurisdiction of projects overpowering other considerations.

Our brief explains that it was regime-envisioning matters of federal or provincial mixed competence that was the basis of section 22 environmental and social impact assessment and review procedure guaranteed by the Constitution of Canada. We ask you to make good Canada's commitment to us in 1975.

¿ (0935)

One may ask what section 22 provides that the Canadian Environmental Assessment Act does not. In particular, section 22 provides specifically for a social protection regime and in addition, environmental protection. CEAA does not set this out as a co-equal requirement to environmental protection.

Number two, the treaty regime is specifically to protect land tenure and resource allocation, as well as our environment, our communities, our society, and our economies.

Number three, section 22 of the agreement provides for a special status and involvement of the Crees in impact assessment. Our government--not Canada, as in CEAA--appoints the members of the review and policy formation committees.

Number four, the assessment bodies are permanent and not subject to the whims of multiple “responsible authorities”--I use the term lightly--and ad hoc panels, when on rare occasions there are panels, under the Canadian Environmental Assessment Act.

Number five, section 22 of our treaty allows for public scoping for impact assessments and decisions based on such assessments rather than the black-box approach of CEAA, where decisions are usually made behind closed doors.

Number six, in the treaty we must agree to changes in the process rather than having them imposed by a remote and uncaring government.

Number seven, section 22 has constitutional protection, while CEAA does not.

Number eight, the assessment and review of projects must take into consideration the guiding principles set out under section 22.2.4, whereas the Canadian Environmental Assessment Act does not.

Number nine, harmonization of federal and provincial processes for review must be agreed to by the federal government, the Quebec government, and the Crees in the James Bay and Northern Quebec Agreement, which is not the case for CEAA.

Our brief contains eight recommendations with which you can address this situation. We ask you to implement these and amend the Canadian Environmental Assessment Act legislation to clarify implementation of the James Bay section 22 regime.

We must state that if the constitutional rights of women or of the provinces were dealt with in such a cavalier manner by Canada, as has been the case for Cree rights under section 22, there would be considerably more unrest in this country.

Let me give you a case in point: the Rupert diversion project, Eastmain-1. We expect section 22 of the federal process to be applied in a review of this project. It is a project that impacts an historic waterway, as this river was the route by which the Hudson's Bay Company sent goods to its inland posts and received fur from the interior. Long before that, it was an important travel route for our people, as it is today, and it is the subject of Cree legend concerning creation. This river also has an important sturgeon fishery as well as cisco, whitefish, and walleye fisheries. The cisco fishery at the Notimeshanan is of historical importance to the people of Waskaganish, who use it to this day. The river is also a significant part of the ecology of Rupert Bay, an important staging ground for the migration of snow geese, and a habitat frequented by beluga whales.

We recently signed an agreement with Quebec in which we have agreed to the construction of the project, subject to it being passed by environmental review procedure and subject to whatever design stipulations or remedial works are set out by the review. Quebec will submit the project to its review process under the treaty.

Canada has been dithering and we understand may be contemplating imposing the Canadian Environmental Assessment Act regime on us. The Departments of Fisheries and Oceans, Indian and Northern Affairs, and others, including Heritage Canada, have been silent. The Cree people have not in the past and will not in the future sit idly by while Canada violates our rights to due process concerning our communities, our traditional activities, our environment, and our future in northern Quebec. In this regard, we see the Government of Canada as standing in the way of important decisions that the Cree people have a right to be involved in about this development project.

¿ (0940)

We see the Government of Canada as blocking development. We are ready to harmonize the federal with the provincial review process under section 22 for the Rupert diversion and Eastmain project. With the involvement and consent of the Crees, our treaty provides for such measures of coordination. It is Canada's position against implementing the treaty process that is a problem.

We are even ready to conduct this harmonized review for this project without prejudice to the positions of the parties on the overall application of the section 22 review process. Is Canada ready to cooperate in this regard?

The Government of Canada has approached section 22 of the James Bay and Northern Quebec Agreement in a reactionary manner. It has sought out reasons for not implementing rather than ways to respect its constitutional commitment to us. It ignores us rather than seeking to work with us in the ongoing definition of the treaty regime for the review of proposed development projects.

This attitude of arrogance is not new. It precedes this government, and this fact gives us the clear impression that the will of the government in power is not even a factor in these decisions, made by others who seek to minimize our rights. As parliamentarians, you are not constrained by existing statutes or by advice by the Department of Justice on how to minimize Canada's implementation of treaty promises.

We come before you to ask that you seek ways to implement section 22 of our 1975 treaty in a manner that respects the rights of the Cree people and is in keeping with the constitutional priority these rights have over other federal legislation. Our proposed amendments can be found on pages 28 to 31 in our brief.

The agreement recently signed with the Government of Quebec concerns the future of our economic and community development. The agreement has strong implications with respect to the sustainable development of the James Bay region of Quebec, and indeed the future development of Quebec itself.

Our recent agreement concerns Quebec's part in this development. Canada is the other major signatory to the James Bay and Northern Quebec Agreement and a beneficiary of the development made possible by it. Yet Canada has made little effort to deal with its commitments in the treaty. Areas such as Cree housing and infrastructure development, community centres, and basic commitment to the economic development of the region, not to mention police services, justice, governance, and the Cree Trappers Association, all set out in the treaty of 1975, are subject to Canada's neglect, an ongoing process of denial, and stalling on the implementation of Cree rights.

Until there's recognition by Canada of a strong role in the future development of northern Quebec, and a commitment to deal with the Cree Nation on a nation-to-nation basis, the development of the region will continue to be threatened and uncertain.

We have a vision of Canada and of Quebec that includes a strong Cree Nation with a recognized role in decisions concerning our future and the future of our territory, Eeyou Istchee. With Quebec, we have just concluded an agreement that sets the process in motion towards such a future. We invite Canada to change its ways, but we believe this cannot be done by the Department of Indian Affairs, by the agency, or by any other department acting on its own. The commitments of Canada, inscribed in the Constitution, to the Cree people and to the development of the James Bay region of Quebec can only be implemented with a decision at the highest levels of government and in cooperation with the Cree Nation. We invite Parliament to be part of this solution.

Thank you, Mr. Chair.

¿ (0945)

[English]

The Chair: Thank you, Mr. Saganash.

We'll certainly examine very carefully the eight recommendations you have given us, for which I thank you.

As far as your comments on the Department of Justice's quality of advice, as outlined on page 28, I can assure you there is more than one member of this committee who shares your views fully.

We now have no more witnesses to speak, I presume. So we are ready to start. On the list I have Mr. Mills, Monsieur Bigras, Monsieur St-Julien, Madam Redman.

Mr. Mills, please.

Mr. Bob Mills (Red Deer, Canadian Alliance): Thank you, Mr. Chair.

Thank you, guests, for appearing.

Mr. Barnes, I would like to know just how often projects are actually changed or altered as a result of environmental impact studies. In other words, how complete and how often and how much cost does that usually mean in a project?

Mr. Jeff Barnes: Mr. Mills, I have the benefit of actually writing many environmental assessments--that's what I do for a living--and I would say that almost without exception, our projects change the result of environmental assessment. It results in improved planning and good sound environmental decisions in relation to the project and the management of its environmental effects.

My experience has seen that in fact sometimes the costs of the project in an overall context are reduced by careful planning associated with the requirements of environmental assessment. They translate themselves into better-designed solutions, more careful consideration. So there isn't always an additional cost; in fact, there are some reductions in cost.

However, proponents across the country I think now are well in tune with the need to plan their projects with environmental protection and related social management in consideration. It's a cost of doing business. Generally speaking, I don't think it's perceived in a negative way as a result.

¿ (0950)

Mr. Bob Mills: How do we get the public involved? We talk about we want openness and we want everything filed and so on. How do we get the public involved early enough?

Mr. Jeff Barnes: Well, several of the amendments in the act speak to this, I think in a very favourable way--the improvements in relation to public notification for screenings. In the current CEAA there's really no requirement for the public to be informed about screening level assessments.

This has been the root of all evil, I think, for the public. They're finding out about environmental assessment decisions when the bulldozers arrive on site, and then when they investigate they find an assessment has been done, but they weren't consulted.

So making it mandatory that early in the process an environmental assessment is under way is a very good step. However, I would say that part of the frustration that we see with stakeholders in the public relates to the fact that they don't have opportunity to influence the scope of the environmental assessment.

Our recommendations in that regard are focused on getting the responsible authorities under the minister to articulate what the environmental assessment will entail--what is the project that's being assessed, how far do we need to go, what issues do we need to address--so that we all know. I think if we let the public know of an assessment under way, if we share with them decisions in respect of what will be assessed, we will see a lot happier outcome and hopefully less litigation.

Mr. Bob Mills: My experience has been that a lot of companies now look at getting the public involved long before the bulldozers arrive and so on. Is that pretty well universal across the country?

Mr. Jeff Barnes: It's a long and slow process, but I would say that certainly most companies have come to the recognition that it's essential to get out there and find out who the affected public and stakeholders are and talk to them before you finish your design plans and so on. It only is grief if you fail to consult, design, and then find you have to make changes.

Mr. Bob Mills: Mr. Gibson, you mentioned that alternative options are critical. Are you proposing that when a project is put forward those options should be there right from the start?

Mr. Robert Gibson: Yes. The options come at the very beginning, at the conception of some undertaking, whether it's at the project level or is a program--or a policy for that matter. The key design principle here is that this works only if proponents know from the outset of their planning that this is an obligation. If they find out later on, then it's something you have to back up and add in. That's typically frustrating for the proponent and is done as a matter of filling out forms rather than through any devotion to the idea; therefore, it's not very effective as a step. While it's useful to have a mechanism in the current law that says the minister can require thus and such, it's not effective unless that is known by the proponent from the outset. Well, if you always do it that way as a matter of practice, eventually proponents get to know.

The second difficulty in the current law is that it has been applied only at a comprehensive project planning level, where you have the bigger undertakings, which are a tiny fraction of what's out there. The benefits of taking a careful look at the purposes and alternatives are no less applicable for the very small undertakings.

Here's one quick example. In Waterloo, where I normally live, the creek that goes through town will be in danger of flooding if there is much more urban sprawl at the headwaters: there will be more impermeable surfaces. The city decided that what it would do was essentially to improve the stream running from the beer store to the liquor store. What they were going to do was put cement all along the bottom of it and make it nice and straight so the water would flow through very quickly. Well, what would have happened, of course, is that it would have flowed quickly to the next part of the river, which would then have had to be improved, and so on all the way down to Lake Eerie.

The sensible conclusion, drawn by the local residents, was if the cause is at the headwaters, deal with it there; do the kind of approach to watershed planning that would have water retention ponds and infiltration mechanism, etc., through the design of the upstream developments. This is what they subsequently did. They would never have done it had they not been required to defend what they were going to do under the environmental assessment law. They were forced to defend their position publicly and they knew they weren't going to be able to do so, so they withdrew the whole idea, thought about it again, looked at alternatives, and did something that was much more efficient. In the end, for the taxpayers, it was enormously less expensive.

The kinds of benefits I've seen in environmental assessment are chiefly through the forced consideration of different ways of doing things.

¿ (0955)

Mr. Bob Mills: With respect to the balance between socio-economic and environmental factors, what should the weighting be?

Mr. Robert Gibson: I think that most of the serious literature on environmental assessment informed by sustainability is that it's not a question of balancing. That is the normal way of speaking, and you're with the vast majority of people who talk about balancing the one against the other. Often we'll trade jobs against the environment and that kind of thing.

The message of the Brundtland commission's work, particularly looking at poverty and environmental protection on those grand, longstanding UN mechanisms, was that you can't have environmental protection without poverty reduction; they're like this. It's not a question of balance; it's a question of you have to do them both or both suffer. In essence, for our long-term benefits, it's the same story. The real challenge is how to integrate the consideration of socio-economic well-being and human health, stuff we tend to put in a box over here, with the consideration of the protection of the biophysical environment, which we put in another box and give to some other minister.

For administrative purposes you have to divide things up, but in reality the world isn't divided up that way; it's all interdependent, just like poverty reduction and protection of the environment. That's why it tends to be a problem to try to separate things, and when everything emerges from the administrative obligations of dividing mandates up, you end up with administrative convenience driving logic, and you defeat what you're trying to accomplish.

The Chair: Thank you, Mr. Mills. It sounds familiar.

Mr. Bigras, s'il vous plaît.

[Translation]

Mr. Bernard Bigras (Rosemont--Petite-Patrie, BQ): Thank you, Mr. Chairman.

First of all, I'd like to thank the witnesses for their presentations, in particular the Grand Council of the Quebec Cree which submitted a very technical brief, albeit one that is carefully worded and deserves the committee's special consideration. We will certainly bear the Council's comments and recommendations in mind.

As for the matter at hand, an observation on page 11 about the current situation in Canada caught my attention. The brief notes the following:

Canada has acted contrary to its constitutional fiduciary and Treaty duties, taking a minimalist, mechanical and adversarial [...] approach to legal issues of all kind. This has meant ongoing refusal to apply the section 22 federal E&SIA procedure to development projects which clearly involve matters of federal jurisdiction.

You state on page 12 of your brief that the problem is not section 22, but rather the way in which this provision is interpreted and applied. Further on, you state that the Cree have reached an important agreement with the Government of Quebec. Which aspects of this particular agreement should be included, and currently are not, in basic treaties with the federal government? You maintain that this is an important agreement for the Cree. Which aspects of it would you like to see mirrored in a federal agreement?

À (1000)

Mr. Diom Saganash: In this morning's presentation, I was referring to the new Agreement with Quebec. Of course, the Grand Council of the Cree hopes that a similar agreement can be reached with the Government of Canada, particularly on matters covered in this new agreement, specifically economic development and community development. That is our hope.

As for the matter under consideration this morning, most of the questions of concern to us were already addressed in a treaty signed nearly 27 years ago. Provision was made in that treaty for a harmonization and cooperation process when questions arose over a development project under joint jurisdiction. As you aptly pointed out, the problem lies in the application of the regime set out in the Agreement.

Let me give you another example. Section 22.2.4 of the James Bay and Northern Quebec Agreement lists a series of guiding principles. The environmental assessment process makes provision for advisory committees to take these guiding principles into consideration when assessing a project's impact. A full set of guiding principles is listed in the agreement, but they are absent from the Canadian Environmental Assessment Act. Let me give some examples.

The section in question reads as follows:

[English]

“The responsible governments and the agencies created in virtue of this Section shall within the limits of their respective jurisdictions or functions as the case may be give due consideration to the following guiding principles”.

[Translation]

A set of guiding principles is then listed.

[English]

It includes the protection of the hunting, fishing, and trapping rights of the native people in the territory; the environmental and social protection regime with respect to minimizing impacts on native people; the protection of native people, societies, communities, and economies with respect to development activity in the territory; the protection of wildlife resources and physical and biotic environment; and the rights guaranteed to the native people under section 24.

[Translation]

All of these guiding principles are already set out in our Agreement and we would like to see them included in the legislation.

A development project is slated to begin shortly. The Rupert-Eastmain project calls for the partial diversion of the Rupert River. We're hoping to reach an agreement with both levels of government to harmonize applicable procedures.

Mr. Bernard Bigras: Let me put the reverse question to you. I asked which parts of the agreement between the Government of Quebec and the Cree you would like to see included in a federal agreement. What are your reasons at this time for refusing to apply the federal process to matters set out in the Quebec-Cree agreement?

Mr. Diom Saganash: To answer the first question, Mr. Chairman, one element in the Quebec-Cree agreement that we would like to see included in an agreement with the federal government is this concept of dealings between nations. The Canadian Constitution recognizes aboriginal populations in this country and the new agreement with the Government of Quebec recognizes the existence of the Cree nation. The Government of Quebec deals with the Cree as it would deal with a nation.

I don't believe I said the Cree refused to apply the provisions of the Canadian Environmental Assessment Act on their land. We're saying that the guarantees made to the Cree in the James Bay and Northern Quebec Agreement, that is a guarantee of direct participation in committees, and so forth, are absent from the federal legislation. When inconsistencies arise between the legislation and the treaty, the Constitution holds that the treaty takes precedence over the legislation. This is a fundamental principle, one that we would like to see applied to this process.

À (1005)

[English]

The Vice-Chair (Mr. Bob Mills): Mr. St-Julien.

[Translation]

Mr. Guy St-Julien (Abitibi--Baie-James--Nunavik, Lib.): Thank you, Mr. Chairman.

First off, I'd like to thank Mr. Saganash and his team, as well as Grand Chief Ted Moses, for the recently signed agreement between the Cree and the Government of Quebec aimed at ensuring the future of the Cree. To my way of thinking, you are among the great leaders in Canada, Mr. Saganash.

I have two questions for you. Firstly, which jurisdictions are responsible for the review of the 2002 Eastmain-Rupert James Bay hydroelectric project?

Secondly, I found you to be extremely polite in your brief. Do you think the government will uphold section 22 of the agreement signed on November 11, 1975? Twenty-six years have passed and the government has failed to comply with 75 per cent of the agreement's provisions respecting economic development, housing, off-shore islands, justice, policing, health and - today's topic - the environment. Your presentation to the committee today was excellent. Just so you know, government officials all work in major urban centres, not in remote regions. Over 50 per cent of Cabinet ministers in Ottawa are unaware of your existence. Do you actually think that they are going to be more respectful of section 22 twenty-six years after the fact?

We all have some fiduciary responsibilities in so far as the James Bay Agreement is concerned. There's not one single federal government official who has any idea of what's going on. Even ministers are in the dark. Although we have an excellent chairman and outstanding members, I would be surprised to see anything different happen. If they acted any differently, I would be the first to attest to this fact publicly. In your opinion, 26 years after the agreement was signed, why is no one in Ottawa listening to your concerns?

Thank you, Mr. Chairman.

[English]

The Vice-Chair (Mr. Bob Mills): This could take several days, but try to keep it brief, please.

[Translation]

Mr. Diom Saganash: Mr. Chairman, with me here this morning are some colleagues, including the Director of Relations between the Grand Council of the Cree and the federal government. I'll let Mr. Craik respond to your second question.

As for your first question, namely what process should apply in the case of the new project provided for in the new agreement with Quebec, it is both delicate and complex. I would say that at the very least, the provincial process set out in section 22 should apply to this project, as should the federal process set out in the same provision. To the extent that this project will have an impact on off-shore islands and James Bay, I think the process established for Nunavut should also apply in the case of this project. Surely the Canadian Environmental Assessment Act should apply as well. Moreover, the whole question of inherent Cree rights and jurisdictions not resolved by the James Bay Agreement remains an issue.

Therefore, in my view, at least six processes should apply in the case of this project, hence the importance - and I want to stress this point - of endeavouring to harmonize these processes. For the past 27 years, certain provisions in the JBNQA have allowed for the possibility of harmonizing these processes in the case of a specific undertaking. I can read you the relevant provision, namely section 22.6.7 of the James Bay Agreement.

Section 22.6.7 reads as follows:

À (1010)

[English]

“The Federal Government, the Provincial Government and the Cree Regional Authority may by mutual agreement”--donc, cela devrait être à tout le moins une entente tripartite--“combine the two impact review bodies provided for in this Section, in particular paragraphs 22.6.1”, qui est le processus provincial, “and 22.6.4”, qui est le processus fédéral, “provided such combination shall be without prejudice to the rights and guarantees in favour of the Crees as established by and in accordance with this Section.”

[Translation]

Therefore, the possibility of harmonizing different processes has existed for nearly 25 years. We relish the opportunity to take such action with a view to being able to assess this project in a practical manner, given its importance to the Cree as well as to Quebec.

Mr. Brian Craik (Director, Federal Relations, Grand Council of the Crees of Quebec (Eeyou Istchee)): Regarding Cree participation in project reviews, the Grand Council has been an active participant in the review process in Northern Quebec for the past 25 years. We operate in the various communities in three different languages. We have reviewed mining, hydroelectric, forestry road and tourism infrastructure projects. We have considerable experience with the review process and know how to ensure community participation. We have no problem in that area.

Where we do have a problem is with government officials. I see no desire on the part of politicians to draft legislation that truly meets the needs of Northern Quebec or takes into consideration Cree rights that are safeguarded in the Canadian Constitution.

That's why we feel so strongly about consultations between the Cree and parliamentarians. What is needed is political action to resolve the situation. Now, all we feel is despair when we look at the kind of legislation being drafted by organization such as the CEAA. Officials talk about ways of transmitting information to communities. We've been doing just that for the past 25 years. However, when called upon to do a review of a project involving a small bridge over a river, the CEAA awarded a contract to a New Brunswick firm. Company representatives travelled to Weswanipi and the residents of this community wondered who these people were. They couldn't speak Cree. The residents wondered if anyone was available to translate for them, what the ramifications of the visit were and what would become of any information they would share with these representatives. Answers were not forthcoming.

Will the Grand Council of the Cree remain silent in the face of the federal government's plans to deal with other large projects in the same manner? The answer to that question is no.

[English]

The Vice-Chair (Mr. Bob Mills): Mr. Craik, I'll just add that this does happen in other parts of the country too, where someone arrives from some place else and doesn't understand the issues. It's not just in James Bay it happens.

Ms. Redman.

[Translation]

Mr. Guy St-Julien: On a point of order, Mr. Chairman. I have to leave to attend a meeting of the Aboriginal Affairs committee. I would like those members present to give their unanimous consent to my request to have the submission of the James Bay Cree appended to the minutes. Thank you.

[English]

The Vice-Chair (Mr. Bob Mills): Is there consent?

Some hon. members: Agreed.

[Translation]

Mr. Guy St-Julien: This means the full text of the brief will be appended to the minutes. Thank you very much.

[English]

The Vice-Chair (Mr. Bob Mills): We put it in as an appendix.

Ms. Redman.

À (1015)

Mrs. Karen Redman (Kitchener Centre, Lib.): Thank you, Mr. Chairman.

I would like to direct my first questions to Mr. Barnes. A notice of commencement is to be posted in the Canadian Environmental Assessment Registry under Bill C-19. Do you think it would be possible to use this notice mechanism for publishing the proposed scope of a project to be assessed? I'm thinking specifically in the case of projects undergoing a screening level of assessment.

Mr. Jeff Barnes: Yes, absolutely, that would work. There's no reason why you couldn't do that.

We've recommended some wording that would incorporate, as well.... Do you have our brief in front of you? If you put in a new paragraph in subsection 55(2) in respect of the registry, you could, in fact, also call for scope and determinations to be included on the public registry. We would strongly encourage this. I think if everybody knew what the rules were and everybody was involved up front on screenings, then we would not see the dissatisfaction we see with many of the participants in the environmental assessment process, especially stakeholders and the public.

Mrs. Karen Redman: In scope and determinations--and there's a mandated comment period--if these were published even with minor construction projects, wouldn't this create some hardship in some cases for your members?

Mr. Jeff Barnes: First of all, remember it's the responsible authority that has to make that determination, it's not the proponent, so there's no cost involved for the proponent per se. However, you raise a question that is perhaps related to another issue--that is, whether we're doing assessments on the right issues.

We would certainly argue that we're doing a lot of environmental assessments on fairly unimportant projects that just happen to be triggered. I know the agency is working hard on reviewing the exclusion lists, and so on, to make sure we focus on assessments that do have substantive or important environmental effects.

So reducing the number of assessments would certainly be very helpful, and I know they're working on that, but I think there needs to be a real hard look at that so we can focus our efforts on those projects that could really potentially result in environmental effects and could benefit from review.

Mrs. Karen Redman: Thank you very much.

I'd also like to propose a question, and not an attack, to Dr. Gibson. You indicated in your comments that the Canadian Environmental Assessment Act, which was designed to address individual projects, may not be the right vehicle to address strategic regional or sectoral environmental issues in the absence of a specific project that's being proposed. Can you share with us your view on what would be a better way to approach this very important issue, which actually goes right to the heart of sustainable development and that debate?

Mr. Robert Gibson: That is not a question for which there is a 30-second answer.

The present law is focused on projects. There is no reason why an environmental assessment law can't deal with a strategic environmental assessment, assessments of plans and programs, etc. There are lots of laws in the world collection of environmental assessment laws that are scoped more broadly. There are some jurisdictions that almost exclusively do their assessment at the strategic level because they can't afford to do it at the project level--Malawi, for example.

Can you do it under this kind of law? The answer is yes. Would it be possible to expand the current CEAA to deal with strategic level work? Certainly. The Ontario environmental assessment law, through its class environmental assessment mechanism, which is different from how the federal government does it, applies, for example, to the forest operations on crown land, which they have done an overall review for. Through that, they have identified a particular process for specific undertakings within that broad framework. The policy level or programmatic level assessment specifies what you do at the project level, providing much greater efficiency and coherence for what happens at the project level. It is done under the Environmental Assessment Act. British Columbia has a provision in their law that allows for strategic level assessments, and they applied it to salmon aquaculture.

There are Canadian examples. It is not difficult to do it in one way or another. The specifics are tricky because there are policies of various kinds, at various levels. Plans and programs are somewhat easier. The process that is in the appendix that I provided distinguishes between policies and plans and programs.

The issue I was raising was that this is part of what is evolving in environmental assessment globally. We are expanding the application to that level. We were also expanding application to the broad definition of environment. We are expanding to positive effects. We are expanding to sustainability criteria. Once you've done that kind of thing, you have really expanded the whole conception here beyond something that is narrowly defined in an environmental assessment process to something that approximates sustainability assessment. The Europeans are now doing sustainability assessment, for example, of proposed trade regimes.

This is a gradual thing. At some point you have to face the issue of where this should report. Should it report to an independent agency? How far should the arm's length be? Should it go to the Minister of Environment still, or should it go to Parliament, like the Auditor General would be? There are different models, and I think they're worthy of discussion. I don't think there's one that's clearly better than another. But the principle remains that you can get tremendously improved efficiencies and coherence by focusing some of your resources at that level rather than merely at the project level.

That is most obvious when you think of cumulative effects. I have a bunch of grad students who are working at cumulative effects of diamond mining in the Slave geological province in the Northwest Territories. Doing that project by project, burdening each individual proponent with the cumulative effects of the whole, is not a very efficient way of doing that, nor particularly fair. If we had something that was more of a programmatic level to look at the overall effects of various development things associated with diamond mining in that area, it would be much more efficient, much more sensible. You would get much more benefit. You would have much more clarity for those new proponents coming into the process, and so on.

À (1020)

Mrs. Karen Redman: I do appreciate your answer, and it's quite fulsome, given the time that we've been allocated.

As my last question, what is the appropriate venue, in your opinion, to have that discussion?

Mr. Robert Gibson: A lot of that discussion has happened. There is extensive literature about how you do it. Specifically, I would think if this is not something the committee has particular language it is going to agree on at this stage, then that could be a clear direction of something in the next five-year review that you certainly should have. You could say we want to have a full discussion, including these principles that will determine how the strategic levels should be legislated, where this should report, and how it will adhere to the sustainability purpose of this whole exercise. Then we could discuss other details. I think a specified requirement of that kind would be very reasonable, and that could go right in the law, as did the five-year review in existing law.

Mrs. Karen Redman: Thank you, Mr. Chair.

The Vice-Chair (Mr. Bob Mills): Mrs. Kraft Sloan.

Mrs. Karen Kraft Sloan (York North, Lib.): Thank you very much, Mr. Chair.

I have a couple of questions, and I apologize to the witnesses for being late this morning.

Mr. Gibson, in your paper you talked about the review process itself, and you said that while it had a largely open component, “...it was also a closely managed exercise with important aspects that were neither open nor transparent”. I'm wondering if you would like to comment on that and if any of the other witnesses would like to comment on the review process as well.

Mr. Robert Gibson: The chief non-transparent parts were separate, parallel discussions held with the provincial representatives and internal discussions within government among the various responsible authorities and proponent departments. These happened simultaneously with the discussions of the regulatory advisory committee and the overall public debate. If the regulatory advisory committee, for example, is working on a process that is a multi-stakeholder consensus process, you can easily see how that can be undermined by a parallel process where some of the parties are also negotiating.

I have the greatest respect for multi-stakeholder processes, but there are some rules that have to be followed for them to work adequately, and really, that has to be the venue in which the debate takes place. You can't have these side things where people don't have the incentive to do the compromising honestly above the table.

À (1025)

Mrs. Karen Kraft Sloan: Just so we're clear, Mr. Chair, there were members of the RAC process who were engaged in separate, non-transparent discussions as well.

Mr. Robert Gibson: Well, then there were people who weren't directly in the RAC process who were representing a variety of government agencies. This is not uncommon in these kinds of discussions, but it's I think inherently problematic.

Mrs. Karen Kraft Sloan: I'm wondering if Mr. Saganash, any other representatives from the Cree, or Mr. Barnes would like to comment.

Mr. Franklin Gertler: Mr. Saganash has asked me to take a stab at that. I'll be very brief on this point.

In the submission put in by the Grand Council at the beginning and further on in the discussion of the environmental assessment process, it set out quite clearly that the Cree rights under the treaty as we know it are constitutionally guaranteed. It provides that the James Bay Advisory Committee on the Environment be the official and preferential forum and gives that body a supervisory role over the development and implementation of environmental assessment in the territory covered by the agreement.

In that context, the whole point was to create a situation where the Crees were in the room not simply as supplicants, not simply in this position of coming before a committee or putting in a submission with all the rest of the great unwashed. To be in a situation where that has occurred and then to have it compounded by there being, frankly, no reflection of those submissions in the minister's report to Parliament and in the bill are factors that raise serious questions about the adequacy and effectiveness of the process. For the Crees this creates a situation where Bill C-19 is in many ways nibbling at the margins of the issues. There are lots of fine tinkering and designing, polishing this sort of fetish of the perfect process, but it's not the god of the process we should be serving.

Meanwhile, the federal government is completely abdicating and avoiding its obligations in a very large part of the territory. This is still Canada up there. These are major projects affecting major watersheds, and they raise climatic issues, migratory bird issues, and endangered species issues. For Canada to be saying we won't apply the treaty process, we're simply going to apply CEAA as a kind of a come-along afterthought to the provincial regime under the treaty so none of the harmonization mechanisms work, is an unacceptable position. That's what our brief talks about doing: apply the treaty...federal process, and at the same time make sure that...you shouldn't just say don't apply CEAA and apply the treaty, and then not have the federal government engaged on the federal side of the treaty. The two have to go together.

The Vice-Chair (Mr. Bob Mills): Mr. Barnes.

Mr. Jeff Barnes: Thank you, Mr. Chairman.

I will be brief, unlike Franklin's false promise. We served on RAC together, so I can take that shot at him.

On a more serious note, I find it very difficult to criticize the extensiveness of the process that was conducted by the Canadian Environmental Assessment Agency. It involved not only the RAC consensus process, but discussion with federal and provincial agencies and the aboriginal community, a very extensive public consultation process. I think the various tracks of review and recommendations and discussion led to a very informed Bill C-19.

I'd further add that from my experience on RAC particularly, that consensus-based process clearly worked very well. We found that our conclusions were very similar to what we were hearing in different fora. I was very pleased to see that RAC's recommendations very largely resulted in a very substantive contribution to what we actually see in Bill C-19. I think the process was excellent.

À (1030)

Mrs. Karen Kraft Sloan: Thank you, Mr. Chair. I just wanted to ask a second question about Dr. Gibson's paper.

You pointed out that Bill C-19 proposes formal recognition of community knowledge and aboriginal traditional knowledge. You go on to talk about the difficulties of integrating community and traditional aboriginal knowledge with an assessment process, and there was this hope that the amendments in Bill C-19 would address it.

You go on to say in your paper:

“...merely allowing consideration of community and traditional knowledge falls well short of requiring consideration of such knowledge where available. Moreover, the five-year review report itself treats respect for community and traditional knowledge as a public participation initiative, not a way of enhancing the quality of environmental assessments.”

This is a whole different issue separate from science, what is western science and what is aboriginal science. I'm wondering if you could comment on it. Again, I would ask Mr. Saganash if the Cree would like to make a comment, and Mr. Barnes.

Thank you.

Mr. Robert Gibson: I agree that this is a step forward in Bill C-19. At least there is the symbolic recognition of this kind of information, which is often the most detailed, lengthy, ecological, and social data available of any kind.

I was just pointing out that the step that's being made here is not a very large one, allowing the consideration of something we would have thought was allowed already. In fact, logically we might have thought it was mandatory, if you're doing a good job in this area. It indicates that there is recognition that what seems to be logical and necessary isn't happening regularly enough and has to be mentioned again. It's just disappointing that the mention is so weak. It should be obligatory to consider good information where it's a variable anyway. It wouldn't seem to be a big stretch to require that.

It's merely indicative that it's listed as a public involvement thing rather than an issue of really improving the process. You would presume that if this is really useful data--and I would argue that it often is crucial data--it should improve the process. That should be its main benefit. Calling it merely a public involvement is sort of a tokenistic comment about improving our PR in some way. This isn't about PR; it's about better assessment.

So it's kind of insulting the way it's put. I'm sure it's not intended to be that way. But I think it's indicative that there is a further step yet to be taken, and I don't think it's a big one.

[Translation]

Ms. Ginnette Lajoie (Environment Coordinator/Analyst, Regional Authority, Grand Council of the Crees of Quebec (Eeyou Istchee)): I'd just like to add that when we talk about aboriginal knowledge, it becomes abundantly clear that the Canadian Environmental Assessment Act is not up to scratch. As far as this proposal is concerned, the act's provisions have no teeth. The submission of the Grand Council of the Cree illustrates very well the fundamental problems we have encountered in the application of this legislation, whereas section 22 of the James Bay and Northern Quebec Agreement already sets out an appropriate environmental assessment process.

As you so aptly put it, there are two issues here. First, the issue of participation. Just because we choose to participate doesn't mean that proper consideration is automatically given to aboriginal knowledge. That's the first element to consider.

The issue of direct participation in the environmental assessment advisory committees, as provided for in section 22, is absolutely critical. The federal legislation makes no provision for our participation at this level. There are methodological considerations. Aboriginal knowledge cannot be discounted. These stores of knowledge are vast indeed. How to go about incorporating this knowledge into the process is also problematic.

Again, our brief illustrates very clearly the importance of complying with the provisions put in place nearly 27 years ago.

À (1035)

[English]

The Vice-Chair (Mr. Bob Mills): Mr. Bigras.

[Translation]

Mr. Bernard Bigras: Thank you, Mr. Chairman.

I have another question. I wouldn't want to have to do the government's job, but I would like to be able to understand how the absence of an adequate agreement with the Cree regarding the implementation of section 22 adversely impacts the federal government.

As I understand it, the James Bay Agreement divides the designated lands into lands under either federal or provincial jurisdiction. If I'm not mistaken, three territories comes under provincial jurisdiction, while one is under federal jurisdiction. That isn't the case? I thought territories had been designated as 1A, 1B or something of that nature.

If I understand correctly, given the agreement with the Government of Quebec regarding the implementation of section 22 of the Agreement, and given what I would call the “misunderstanding” with the federal government over the application and interpretation of section 22, and the impact this has had, judging from what I read on page 12, the result has been an ongoing refusal to apply the federal assessment process set out in section 22 to development projects for which the federal government clearly has some responsibility. Therefore, given the absence of an agreement to implement section 22 of the Agreement and in light of the fact that the federal legislation fails to take your demands into consideration, ultimately shouldn't the government be made to understand that harmonization can only be achieved with another government, a government that has reached an agreement with the Cree over the implementation of section 22 and where the agreement in question meets your expectations and where the provincial legislation is perhaps more adequate? Basically, isn't it harder for you to work out a harmonization agreement when no such implementation agreement exists and when you feel the federal environmental assessment legislation is not up to scratch?

À (1040)

Mr. Diom Saganash: First of all, to my way of thinking, it's not necessary to have an implementation agreement in place in order to actually implement the provisions of an agreement or treaty such as the JBNQA. The treaty signed 27 years ago was declared valid by an act of Parliament. As a rule, such treaties apply fully without any need for an implementation agreement. That's my first point.

Secondly, the changes that we're proposing on pages 30 and 31 of our brief are clear enough so that section 22 of the JBNQA and the federal process set out in section 22 can apply to various projects, particularly the one that we've discussed at length this morning, namely the Eastmain project which calls for the partial diversion of the Rupert river.

I'd just like to mention one thing. We are still discussing with the Government of Quebec the process that will be applied in the case of this project. For now, the Quebec government does not see any need to apply the federal process set out in section 22. Traditionally, the Quebec government has taken this stand on the issue. The federal government appears to agree with its provincial counterpart and both are thinking about signing a joint administrative agreement, one that would exclude the Cree. Such a move would run counter to the provisions of the JBNQA. Therefore, we are nowhere near to reaching an agreement on the project, or on the process to be applied.

Admittedly, the National Assembly took a different approach following the signing of the JBNQA. It subsequently passed about twenty pieces of legislation to amend existing laws and to implement the agreement's provisions. On the environmental front, a second chapter in the Environment Quality Act applies solely to those lands covered in the treaty. Basically, this separate chapter recalls the provisions set out in section 22 of the JBNQA in so far as the assessment process is concerned.

The federal government took a different approach. It chose instead to introduce umbrella legislation to give effect to and implement the provisions of the JBNQA. The legislation in question stipulates that if another federal act is found to be incompatible with the JBNQA, the provisions of the Agreement take precedence to the extent of the incompatibility.

The 27-year history of this Agreement remains a problem for us even today. Each time legislation is introduced in either the House of Commons or the Quebec National Assembly, no reference is made to this Agreement signed by the Cree. Yet, its provisions should have guaranteed us certain rights as well as an appropriate level of involvement in all environmental assessment processes.

Again, the changes proposed in Bill C-19 fail to take into account the provisions set out in the JBNQA. That explains why we are here today to remind you once again that we in fact negotiated this agreement 27 years ago.

Like it or not, this agreement involves three parties and all three parties must be consulted. This should have been the case since the signing of the agreement, but that hasn't happened. Therefore, I propose that the government, in order to assume its full responsibilities, incorporate the amendments discussed on pages 30 and 31 of our brief into the bill. Thank you very much.

[English]

The Vice-Chair (Mr. Bob Mills): Ms. Kraft Sloan and then Mr. Comartin.

Mrs. Karen Kraft Sloan: Thank you very much, Mr. Chair.

I want to follow up on the discussion we were having a little earlier, and this talks about the issue of information and data and community knowledge and science and all that stuff. It seems to me that when we are making public policy decisions, we don't always make good ones. I think this committee has seen the effect of not-so-great public policy decisions. Part of the problem with that is difficulties in problem identification and problem framing and understanding what is really lying at the root of the challenges we face.

I read with a great deal of interest in your presentation, Dr. Gibson--and I apologize for picking on you, but I'm certainly encouraging others to jump in--when you were talking about the narrow definition of environment and environmental effects. It seems to me that there was a previous line of thought that was being entertained by the witnesses, and that you, Dr. Gibson, had essentially said if there is information out there, we should be using it as part of the environmental assessment process, because it is indeed a planning process. You had put forward your concern around the narrow definition of environment and having it far more inclusive. What does environment really mean? It's not just the natural landscape. As human beings, we often forget that we are in nature and nature is in us. The implication is that there are a lot of other elements often left out of the process.

I'm just wondering, Dr. Gibson and Mr. Saganash and Mr. Barnes, if you would care to comment on how we can make Bill C-19 a better bill with regard to this issue of a narrow definition of environment and environmental effect.

À (1045)

Mr. Robert Gibson: As I mentioned in my original presentation, this is not a step that is unusual in environmental assessment law in many jurisdictions now. It's not unusual in Canadian jurisdictions when there is harmonization of process, when there are joint panels. In the Voisey's Bay case, for example, with Newfoundland and Labrador, with the memorandum of understanding with the Innu and the Inuit there was a broad definition of the environment applied, because it was required by other parties. Even under CEAA, there has been de facto and, under law in that case, broad application of assessment with a comprehensive definition of environment.

Moreover, in practical circumstances under the existing law there has often been attention to these matters in any event, if only because environmental assessment typically is the only open public process for deliberating about all aspects of a project. It's just not reasonable or practical to deny people the opportunity to talk about what they care about, and it intersects necessarily.

This really is not much more than recognition of a reality the process has to face on a day-to-day basis anyway, and being clear about it so there is less confusion among all the players. It's difficult for proponents who look at the law, respond to what it requires, find in practice that they end up having to talk about all this social stuff, which they may have out of good practice done anyway, but may not have done or at least not in the right framework. It delays things. I think it's unconscionable that we haven't dealt with this long since. But since it's so easy to do, I would think this was fairly obvious and easy to prepare.

Mrs. Karen Kraft Sloan: We're both talking about the relationship of the various elements. So it's not, as you said before, one against the other, but it's all of these things integrated together, as well as how they relate to each other.

Mr. Robert Gibson: That's true, although I shouldn't be unduly simplistic here and undermine my position by being a simple mind.

Mr. Mills' question earlier about the balancing is fundamentally correct. There is still balancing of trade-offs. I argue that it's not between the social and the environmental. It may be between efficiency and equity. It's about things that we really care about to get us towards sustainability.

I've just done a fairly detailed paper for the Canadian Environmental Assessment Agency's research and development project on how you do sustainability-based decision-making about significance--one of the big questions in the law. It turns on this question of how you set up some sensible process for specifying the real trade-offs that you have to have on things that really matter. The things that really matter aren't in the social environmental category. They are things such as the overall integrity of a social ecological system, recognizing there are people in almost every environment we're worried about for environmental assessment purposes.

How do you improve the efficiency of our use of energy and materials, which is a social, business, environment, nexus kind of problem? How do you provide greater equity across generations or within generations? Those are the things you really care about when it comes to delivering sustainability, and sometimes they're at war with each other. So you have to figure out what you're willing to compromise and what you aren't. It's not a trivial question at all; I didn't mean to imply it was. It's something that needs serious attention, and it is getting serious attention because we are now dealing effectively with sustainability assessment in all sorts of jurisdictions.

Mrs. Karen Kraft Sloan: If I can be clear about what you said, maybe we're not talking about socio-economic conditions versus ecological conditions. Maybe we're talking about equity versus efficiency. When we're labelling things in the traditional frame, or the traditional categories, we're really talking about something else.

À (1050)

Mr. Robert Gibson: Sure. There are certainly cases such as if you had a decision at a policy level to have a higher price of gasoline to encourage energy efficiency, the negative effect of that is probably most heavily felt by people who are poor, have some beat-up old car they have to drive to work, and there's no public transit. That's a case where your social ecological integrity question in the long term is at war with your desire to be equitable and not victimize people who are already disadvantaged. You have to figure out some way beyond that. When you recognize there's a conflict there, then maybe you think of some way you can get the same result with another alternative, which is where this alternative thing comes in. It is not simple, but the world isn't, so we have to deal with it.

Mr. Brian Craik: I want to add a little bit about traditional knowledge and the question you posed. I suppose when it comes down to any particular project, when you talk about trade-offs, we talk about, in a sense, the types of trade-offs that occur, because there are naturally going to be some. As time goes on in the evaluation process, we see that certain things work, certain things don't work. So we try to push the frontier of our evaluation further to get some guarantees that certain things would be done a certain way, so that, for example, employment could be created in the village or something like that.

Similarly, traditional knowledge can't be seen as something static. At its very edge, traditional knowledge is being created all the time by people who are out on the land and interacting with the environment. There's a big moral dilemma surrounding traditional knowledge, because at a certain point you can take a snapshot of that--take five years and put all that traditional knowledge in a computer--but the fear of the aboriginal people at that point, or of the local people if you're not dealing with aboriginal people, is that they're somehow excused from the process at that point, because someone else who sees all that knows better.

There's a balance to be had there, and there's nothing that can replace some kind of equitable participation of the real people who are on the ground, combined with an amassing of data and knowledge that can be used by the people on the committee, so they can better understand what the people on the ground are really seeing and how they understand it, and also so they can better, perhaps, have some insights as to scientific and social questions posed that are not evident without this local knowledge.

Mr. Jeff Barnes Mr. Chairman, I think there is a false perception here that's being perpetrated by Dr. Gibson's view that somehow socio-cultural and economic environmental effects can't be assessed under CEAA. This is not the case.

Let me just go back to when CEAA was drafted originally. The definition of environment was drafted, as it is, I think in very careful recognition of the jurisdictional issues associated with the federal government versus the provincial jurisdiction for many of the social and cultural related issues. The definition was felt to be appropriate and a balance and reflective of federal jurisdiction.

Now, let me just go on to say that it does identify the definition that environmental effects that result in socio-cultural or economic changes are in CEAA in every environmental assessment. However, some of these more important issues--cultural issues or things such as employment and related things associated with projects--can be included. This comes back to my earlier points about scope determination. Paragraph 16(1)(e) of the Canadian Environmental Assessment Act allows the responsible authority or the minister to include “any other matter” for consideration. When you do proper scoping with public involvement and stakeholder involvement, you can identify those issues that are important that need to be assessed and include them in the assessment and you can articulate them in the scope determination at the outset of the assessment .

The real problem with changing this definition and what would appear to be a logical thing to do is that for the 4,500 assessments of projects that are not really all that substantive in terms of their environmental effects, or at least the manageability of environmental effects, you end up adding all the socio-cultural and economic dimensions. What that means is we're expanding assessments of projects unnecessarily, I believe, in many cases.

For example--and again I have to correct Dr. Gibson as well, who said that we only have to assess adverse effects--I agree that practice does in fact emphasize the adverse effects of projects, but the act says you have to assess the environmental effects of the projects, not just the adverse ones but also the positive ones. An environmental assessment that doesn't reflect that is not in fact conducting the assessment as required by the law. My point is that what we need is a tightening up of responsible authorities in doing their job, identifying what the issues are, and making sure these important socio-cultural and economic issues are in environmental assessments as appropriate, while respecting the amount of effort required for environmental assessment and the jurisdiction of the federal government.

Thank you.

À (1055)

The Vice-Chair (Mr. Bob Mills): Very briefly, Mr. Gibson, do you wish to reply?

Mr. Robert Gibson: Thank you.

Social issues are, in my view, not outside of federal jurisdiction. I suspect those of you who've wrestled with the federal jurisdiction will be familiar with a variety of social activities of this government. The history, as I understand it from my years working in this process, is much more about jurisdiction within government than between governments as a reason for this difference.

My learned colleague is right that you can consider these matters as additional things that can be added into the process. The difficulty with that is they're added in late. I think that advance proponents consider this matter in any event. They often have to do it because they're in other jurisdictions that do require it. I see no excuse really for relying on a late, retroactive identification of direct social effects. Lots of other jurisdictions are able to do that.

Is there additional work involved? Yes. But I think we start with what is important to be addressed and then figure out how to make it most efficient and put our resources on the things that are most important. That may have effects on how you deal with screening, etc. I'd certainly be open to further discussion on that.

On the matter of assessing positive effects, the law does not specify that you have to look at this. It certainly does allow it. But the key decision functions in the law talk about avoidance of significant adverse effects, period.

The Vice-Chair (Mr. Bob Mills): Mr. Barnes, you're shaking your head. In fear of Mr. Comartin...at least he'll never be late again. But very briefly, Mr. Barnes, just a rebuttal, please, and then we could go to Mr. Comartin.

Mr. Jeff Barnes: I think there's nothing like an example. If we do an environmental assessment of a very simple project in an urban environment that's funded by a federal department, and therefore is a project and requires environmental assessment, say, in an industrial park in suburban Ottawa, and if we follow this logic that we have to consider all environmental effects, including all socio-economic effects, the project will employ ten workers to build the building.

I would argue that in the case of employing ten individuals in Ottawa, it's a positive environmental effect, no question, but it would have to be assessed in a screening of such a small building. And to what end? How does that help us? It just increases bureaucracy and scope to the environmental assessment, with no net benefit, while on important projects where such economic factors are important, they can be included. They are included when there are direct effects, as was mentioned earlier.

The Vice-Chair (Mr. Bob Mills): Mr. Comartin.

Mr. Joe Comartin (Windsor--St. Clair, NDP): Thank you, Mr. Chair.

Let me start by apologizing to both the committee and the witnesses for being as late as I was, but there was another pressing issue, which I have to say was more important than this at this time.

I want to address a question to Professor Gibson. I'll apologize secondly for this, if it has already been covered, but I just felt it was really important and I want his input.

Professor Gibson, in your brief to us on problem four, I'm not clear, and it may be because I don't fully understand the addendum you sent us from the West Coast Environmental Law Association, that paper they did in 1994. I'm not clear where we would in Bill C-19 deal with the problem you're raising here around, as you put it, “the strategic level of policies, programmes and plans”. Where would you want to see Bill C-19 amended, what part of it? Can you be specific on that?

Then the second part of that question is whether you have seen any specific wording that would let us address this problem, that we could use as amendments.

Á (1100)

Mr. Robert Gibson: There is specific wording in the West Coast Environmental Law brief that we wrote eight years ago or so. There is specific wording, different but also meritorious, in the Environmental Law Association brief, which you also have, although I don't think they've presented yet. There are specific provisions that have been suggested.

Bill C-19 doesn't deal with this matter directly. I guess there is a question of whether the committee is comfortable with going beyond the immediate range of Bill C-19 to add a few things. I suspect that's something that has been done before in the history of parliamentary activity, but I defer to your greater knowledge on that matter.

On other particulars, there was a question that related to that earlier. If this is not something the committee feels capable of providing the text to Parliament on as an addition to what's in Bill C-19 now, it certainly would be at least possible to suggest this as something that must be done in the preceding number of years. It could be included in another five-year review provision requiring specifics. It could be something that in an additional committee report you would recommend that the parliamentary research office do some work on, that CEAA do some work on, that there be reporting.

I imagine you have a variety of vehicles for ensuring that work gets done on a matter and that there is direct response to Parliament on the options available and the strengths and weaknesses thereof. I think in a bold gesture you could accept the wording that we have proposed, but I'm sure there's somebody out there who would want to give sober second thought to that person. It might not be just in the Senate.

The Vice-Chair (Mr. Bob Mills): Mr. Tonks.

Mr. Alan Tonks (York South--Weston, Lib.): Yes, just a clarification from Mr. Saganash.

Thank you for your deputations, all.

With respect to treaty issues and nation-to-nation relationships, in other committees I've sat on as we were attempting to go on with better employment equity legislation and species-at-risk issues, this issue of nation-to-nation relationships has come up.

Does the act get ahead of these issues to the extent that we can harmonize and rationalize relationships between band councils vis-à-vis treaty lands, and are the provisions with respect to increasing intervenor funding, the provisions that give authority to band councils to have jurisdiction over the environmental assessments, not progressive steps, setting aside that there is a continuation of this nation-to-nation issue that will be with us and, hopefully, that we can resolve at some point? But are you satisfied that this legislation is progressive in the sense that it's getting beyond that?

Mr. Diom Saganash: First of all, on the concept of nation-to-nation relationships between governments and first nations, most often these relations are provided for in the treaties we sign with each other. In our case, as I mentioned and tried to explain here, we did this back in 1975.

Many of the provisions, concepts, and principles we find under section 22 of the James Bay and Northern Quebec Agreement are extremely progressive. At that time, almost 27 years ago, we were already talking about environmental and social protection. As a matter of fact, that's the title of chapter 22 of the James Bay and Northern Quebec Agreement--the environmental and social protection regime.

There are many reasons for this. One is that a lot of our people wanted continued protection of their traditional way of life. A fair percentage of our people still make a living hunting, fishing, and trapping in the vast territory of James Bay. They need continued guarantees that this way of life will be protected by environmental legislation.

I agree that some of the provisions proposed in this bill are progressive, but the fundamental point I wanted to bring here is my impression that your committee is trying to reinvent the wheel with this draft bill. In the case of the James Bay Crees, we've already signed a treaty. There are many provisions under that treaty with the same concepts you're proposing now, but we did it back in 1975.

A second thing is that the Indian Act doesn't apply to the Cree communities. As you know, chapter 9 of the James Bay and Northern Quebec Agreement dealt with self-government. Since 1984, federal legislation called the Cree-Naskapi Act replaced the Indian Act in the case of the Cree and Naskapi communities.

As I said earlier as well, above and beyond the provincial assessment and review processes and the federal review assessment processes, there's also a local review process provided for under the James Bay and Northern Quebec Agreement in chapter 22. This again is something that was negotiated back in 1975. It's basically what we're calling for.

I mentioned this earlier: whenever Parliament proposes to adopt new law and is drafting proposed legislation or regulations, these treaty provisions are never taken into consideration. We almost forget about the James Bay and Northern Quebec Agreement whenever we draft proposed legislation or regulations. It's never taken into consideration.

Basically, that's our message here. Our view--and I maintain it very firmly--is that there are many guarantees we have under the James Bay and Northern Quebec Agreement we do not find under the present draft legislation you have before you. We have a guarantee under the James Bay and Northern Quebec Agreement of being directly involved on the assessment and review panels. We don't necessarily have this under CEAA.

We have a guarantee under the James Bay and Northern Quebec Agreement that projects will be assessed based on the guiding principles provided under section 22.2.4 of the agreement. We don't have this under CEAA.

There are many guarantees we have under the agreement that we do not find under the proposed act. Therefore, it can easily be argued that in cases where there's inconsistency between the act and the agreement, it is the James Bay and Northern Quebec Agreement that takes precedence, clearly. That's constitutional law in this country.

Á (1105)

Mr. Brian Craik: I want to add that the Crees have participation on the review panels over the full extent of their traditional territories, something like 310,000 square kilometres of land. They are participating in determining and deciding, with Quebec and with Canada, what the decisions will be on development.

One problem you're going to encounter across the country are the bands who feel that this will apply to the reserve but perhaps not to the full extent of their treaty area. The viability of these communities is determined by their relationship with the larger environment.

Á (1110)

The Vice-Chair (Mr. Bob Mills): I don't believe there are any other questions.

I'd like to thank our witnesses for appearing today.

This committee will stand adjourned until Thursday at nine o'clock. Thank you.

Grand Council of the Crees (Brief)-e