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37th PARLIAMENT, 1st SESSION

Standing Committee on Environment and Sustainable Development

EVIDENCE

CONTENTS

Wednesday, May 29, 2002

1530

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

1535

1540

1545

1550

1555

The Chair

Mr. Mills (Red Deer)

1600

Mr. David Anderson

Mr. Mills (Red Deer)

Mr. David Anderson

1605

Mr. Bob Mills

Mr. David Anderson

1610

Mr. Bob Mills

The Chair

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

Mr. David Anderson

Mr. Bernard Bigras

Mr. David Anderson

Mr. Bernard Bigras

Mr. David Anderson

1615

Mr. Bernard Bigras

Mr. David Anderson

Mr. Bernard Bigras

The Chair

Mr. Bernard Bigras

Mr. David Anderson

1620

Mr. Bernard Bigras

Mr. David Anderson

The Chair

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

Mr. David Anderson

Mr. Joe Comartin

1625

Mr. David Anderson

Mr. Joe Comartin

Mr. David Anderson

Mr. Joe Comartin

1630

Mr. David Anderson

The Chair

Mr. Julian Reed (Halton, Lib.)

1635

Mr. David Anderson

Mr. Julian Reed

Mr. David Anderson

Mr. Julian Reed

The Chair

Mrs. Karen Redman (Kitchener Centre, Lib.)

1640

Mr. David Anderson

Mrs. Karen Redman

Mr. David Anderson

1645

Mrs. Karen Redman

Mr. David Anderson

The Chair

Mr. Herron

Mr. David Anderson

1650

Mr. John Herron

Mr. David Anderson

Mr. Robert Connelly (Vice-President, Canadian Environmental Assessment Agency)

Mr. John Herron

1655

Mr. David Anderson

Mr. John Herron

Mr. Robert Connelly

Mr. John Herron

The Chair

Mr. Gary Lunn (Saanich—Gulf Islands, Canadian Alliance)

1700

Mr. David Anderson

Mr. Robert Connelly

1705

The Chair

Ms. Nancy Karetak-Lindell (Nunavut, Lib.)

Mr. David Anderson

1710

Mr. Robert Connelly

The Chair

Mr. Shepherd

Mr. Robert Connelly

Mr. Alex Shepherd

Mr. Robert Connelly

Mr. Alex Shepherd

Mr. Robert Connelly

Mr. Alex Shepherd

Mr. Robert Connelly

Mr. Alex Shepherd

Mr. Robert Connelly

Mr. Alex Shepherd

Mr. Robert Connelly

1715

Mr. Alex Shepherd

Mr. Robert Connelly

Mr. Alex Shepherd

Mr. Robert Connelly

The Chair

Mr. David Anderson

The Chair

Mr. David Anderson

1720

The Chair

Mr. David Anderson

The Chair

Mr. David Anderson

The Chair

Mr. Bernard Bigras

Mr. David Anderson

Mr. Bernard Bigras

Mr. David Anderson

1725

The Vice-Chair (Mr. Bob Mills)

Mr. Joe Comartin

Mr. David Anderson

Mr. Joe Comartin

Mr. David Anderson

Mr. Joe Comartin

Mr. David Anderson

1730

The Vice-Chair (Mr. Bob Mills)

Mr. John Herron

Mr. David Anderson

Mr. Robert Connelly

Mr. John Herron

Mr. Robert Connelly

Mr. John Herron

Mr. Robert Connelly

Mr. John Herron

Mr. David Anderson

The Vice-Chair (Mr. Bob Mills)

Mr. David Anderson

CANADA

Standing Committee on Environment and Sustainable Development

NUMBER 075

1st SESSION

37th PARLIAMENT

EVIDENCE

Wednesday, May 29, 2002

[Recorded by Electronic Apparatus]

¹ (1530)

[Translation]

The Chair (Mr. Charles Caccia (Davenport, Lib.)): Good afternoon, ladies and gentlemen. We would like to welcome the Minister of the Environment, as well as Mr. Connelly and Ms. Smith.

[English]

As you know, Mr. Minister, we have had comprehensive hearings with witnesses. All of them have praised the broad range of consultations that have taken place under the auspices of the agency. I can't say the same about the broad scope of the bill, but I will leave that to you to comment upon, of course. We are now concluding our hearings. We have only the Minister of Fisheries, who has been invited, and AECL.

We would like very much to be given your leadership in interpreting the bill and in concluding, so to speak, this round of hearings, which has been extremely educational to all of us and which, I must say, has produced a wealth of constructive comments that would be extremely useful for amendments in future to the Environmental Assessment Act. It is a piece of legislation about which Canadians feel very keenly and see as a very important instrument in the overall approach to the protection of the environment and the ecosystem.

Minister, we are extremely happy you were able to come today. The floor is yours.

Mr. David Anderson (Minister of the Environment): Thank you very much, Mr. Chairman.

I see some members have already taken off their coats; do you mind if I do the same? It will make this informal, but also a little cooler.

Certainly you're correct in saying there has been considerable interest among the Canadian public with regard to the bill and the legislation. We've noticed that, of course, through these hearings, but also in the period prior to the hearings, and certainly many—not all, of course, but many—excellent suggestions that have come forward from the public and from interest groups were incorporated in the bill itself. Many of those amendments came from the public through this previous process.

With me is Robert Connelly of the Canadian Environmental Assessment Agency, whom I'm sure you know, and have seen before this committee. He's well-versed in the workings of the agency. Heather Smith is a legal adviser; once again, I think she is well known to members of the committee. And again I'm delighted to be here with my parliamentary secretary, Karen Redman, who is in so many respects my alter ego. She takes my place in the House and so often here before the committee. I'm delighted to be here myself for a change, to give her a bit of a rest.

Every year the Environmental Assessment Act applies to literally thousands of projects that are worth in total billions of dollars. Many of the projects, of course, have the potential to damage air quality, our health, our water, our wildlife, and our natural spaces in Canada, so the importance of the environmental assessment—of getting it right—is hard to exaggerate.

The bill is the result of much hard work by those directly involved in environmental assessment, either as interested citizens—the very type of people you mentioned, Mr. Chairman—or as practitioners and proponents. It represents a consensus on how to strengthen the Canadian Environmental Assessment Act. I stress the word “consensus”. As you well know from previous appearances of mine before the committee, consensus is in my view the best way to achieve environmental goals.

¹ (1535)

[Translation]

This legislation will make the federal environmental assessment process more certain, predictable and timely. It will result in high-quality environmental assessments. It will ensure more meaningful opportunities for public participation.

Mr. Chairman, the amendments contained in Bill C-19 include measures to improve federal coordination and application of the act. There is new authority for ministers to issue prohibition orders to stop project construction before an environmental assessment is complete.

Bill C-19 recognizes aboriginal traditional knowledge. It proposes to create a new class screening tool to deal with small insignificant projects in an environmentally sound manner.

Mr. Chairman, revisions to the comprehensive study-level of assessment include two new opportunities for public participation backed up by participant funding.

As a result of Bill C-19, there will be mandatory follow-up programs for projects after a comprehensive study, mediation or review panel.

The bill proposes to make the transboundary sections of the act more operable.

It requires the establishment of an electronic registry of project information.

Finally, the Canadian Environmental Assessment Agency will gain new powers, including a role to resolve disputes. The agency will also be required to establish a quality assurance program that examines completed assessments.

[English]

The message today is quite simple. We have had an open and comprehensive five-year review of the act, and it has resulted in a solid bill that will promote progress on our environmental priorities. There is probably little need to go through each of these improvements in detail. The Environmental Assessment Agency has already provided you with background briefings.

Instead, I would like to share some insights on the five-year review and the reasons behind the favourable consensus that is supporting this bill. I will also suggest further areas where the bill may be improved, based on what we have heard over the past few months of your own committee hearings.

The agency's preparations for the five-year review go back to June 1998, which is close to four years ago. Their first stop was simply to ask this question: What are the problems with the current act? And the responses came from both within and without the government.

The preliminary consultations determined the scope of the five-year review, and these preliminary consultations provided the foundation for the discussion paper, which was issued in December 1999. In setting the parameters of the five-year review, the message in the discussion paper included the follow key phrase: All concerns and suggestions about the act and its operation will be heard and considered.

For its part, the discussion paper was first an admission that there have been problems with the predictability, consistency, timeliness of the environmental assessment process; second, the quality of some of the assessments; and third, the need to ensure opportunities for public participation.

In looking back, Mr. Chairman, there was some degree of risk associated with acknowledging these broad faults and specific shortcomings of the assessment process. What if we couldn't find appropriate solutions? What if the debate became polarized and in turn became gridlocked?

But the risk was warranted. First and foremost I wanted a review focused on finding practical solutions to identified problems. The national public consultations that occurred from January to April 2000 provided the basis for the solutions, the practical solutions proposed in Bill C-19. There was also a great help in the multi-stakeholder regulatory advisory committee.

So it was a good review. It was open, timely, and comprehensive. The Canadian Environmental Network issued a press release that congratulated the agency for “striving to conduct a thorough and transparent review”. Several witnesses appearing before this committee have echoed similar sentiments.

The National Chief of the Assembly of First Nations in his testimony acknowledged the government's efforts throughout the review to communicate with first nations and to hear their views.

Karen Campbell of the West Coast Environmental Law Association stated, “For our part the five-year review process that we have participated in has been incredibly valuable and useful in better understanding how EA works.”

Mr. Chair, in view of all this concern over conflict of interest, I will admit to having been a long-time director of the West Coast Environmental Law Association. Tom Berger and I for many years were the only two honorary directors. I did try hard to find the money—from the law association, among others. So having fully confessed all my previous sins, let me turn now to the next page of my presentation.

The five-year review confirmed that there are problems with the current environmental assessment process. One of the key messages, however, was that the act does not need a major rewrite. It's always possible to rewrite any piece of legislation—to go back and say let's start from square one—but it was clear from the review that this wasn't necessary.

Wendy Francis of the Canadian Parks and Wilderness Society....

I think I had contributed to them from time to time, so please once more accept my admissions of potential conflict of interest.

Bob, thank you for smiling indulgently when I do this.

They still send us mail, even though my membership, I'm sure, has lapsed.

At any rate, I quote:

...the Act does not need a major overhaul. In general, the structure, scope, and process of the Act are appropriate. However, the way in which CEAA is being applied is deficient in many ways.

¹ (1540)

One of our more demanding critics, Martha Kostuch from Friends of the Oldman River, noted that, “The main problem with CEAA is not the Act, but the lack of commitment by the federal government to implement the Act.”

It's because of those concerns that we have focused so much effort in Bill C-19 on improving the application of the act. Strengthening the role of the agency, the federal environmental assessment coordinator provisions, and the quality assurance program will make a profound difference. It's because of these concerns that the Government of Canada has committed new funding of approximately $51 million over the next five years to implement the revised process.

Mr. Chairman, members of the committee may wonder why such diverse interests have acknowledged that Bill C-19 will improve the current act. The answer lies in the fact that the bill will improve the effectiveness and the efficiency of the current process.

Industry and provinces have applauded the federal environmental assessment coordinator provisions because these changes will bring a greater measure of certainty, predictability, and timeliness to the process. Environmental groups have also supported these provisions in recognition of the positive effects that will arise from a more consistent application of the act.

The quality assurance program is another example of where diverse interests converge. The environmental community clearly sees this program as improving the quality of assessments, and industry recognizes that improving the way the act is implemented will minimize opportunities for litigation.

[Translation]

Mr. Chairman, I know the committee has been grappling with the question of how to involve the public in environmental assessment. Ensuring there are meaningful opportunities for public participation is one of my key goals for a revised process.

Jeff Barnes, a practitioner of environmental assessment and representative of the Canadian Construction Association, highlighted a serious problem when he told this committee that there have been situations where the public finds out about a project “when the bulldozer arrived on site.”

The solution proposed by Bill C-19 is to require mandatory notice at the start of an assessment on the new electronic registry. Providing public access to information at the start of an assessment will benefit all participants in the process.

Efforts to promote public participation will provide government decision-makers with better information about possible environmental effects. Final decisions will more accurately reflect community values. Proponents will be in a better position to address public concerns and, in turn, will obtain more acceptance and understanding of their projects.

¹ (1545)

[English]

Mr. Chairman, the committee has heard from witnesses about how this bill could be improved. This is of course a natural part of a parliamentary process, but my position has been consistent throughout the development of this bill. We are interested in practical solutions to identified problems, and the work of the committee has brought some of those problems to light. Let me turn now to areas where this bill can be further improved.

I am concerned that the Federal Court decision on the Red Hill Creek Expressway that followed the introduction of Bill C-19 could be used by proponents to avoid the requirements of the act. This decision is troubling. Paul Muldoon of the Canadian Environmental Law Association raised this issue with you, as did Arlene Kwasniak from the Alberta-based Environmental Law Centre.

In the Red Hill Creek decision, the Federal Court ruled that a federal environmental assessment was not required because the regional municipality had taken “irrevocable decisions” to construct the entire expressway prior to the enactment of CEAA. This government had always interpreted the phrase “irrevocable decisions” in the act as referring to the decisions of federal authorities. The Federal Court decided otherwise.

Well, Mr. Chairman, whether this act applies to a project cannot simply depend on whether the proponent, the province, or anyone else has already made a decision relevant to it. If so, proponents might plan their projects in such a way as to make “irrevocable decisions” before seeking federal decisions; in so doing they could attempt to prevent the application of CEAA.

On this particular concern, I intend to table an amendment that proposes to close this loophole, or this potential loophole. The change will make it clear that projects requiring federal decisions also require an environmental assessment, even if a proponent has taken decisions to move the project forward.

Mr. Chairman, federally funded projects on reserve lands do not currently require an assessment. First nations raised this matter during the five-year review and have welcomed the way in which Bill C-19 closes this loophole.

Bill C-19 also includes a complementary authority for regulations to enable band councils to undertake assessments. The committee heard from Michael Cox of the Confederacy of Mainland Mi'kmaq about the positive effects such regulations will have in the future. The Assembly of First Nations has, quite correctly, suggested that the responsibility to conduct these assessments must be linked to corresponding decision-making power. This is currently not the case in Bill C-19. It is important that these regulations for band councils are workable. There is no value in requiring a band council to do an environmental assessment of a project if the band council subsequently is powerless to influence or stop the project.

I intend to table amendments to respond to these concerns of first nations so that future regulations for band councils apply to those projects over which they have decision-making authority.

¹ (1550)

[Translation]

A technical problem with the current wording of the act has inhibited the appointment of review panels using the transboundary sections. Bill C-19 provides a solution to this problem. In his testimony, Natan Obed of the Inuit Tapiriit Kanatami welcomed these changes that also respond to recommendations of the Panel on the Ecological Integrity of Canada's National Parks.

The Sierra Legal Defence Fund has suggested that more can be done to use environmental assessment to protect the ecological integrity of Canada's national parks from projects outside park boundaries. Unfortunately, their specific proposals would place an unreasonable operational burden on Parks Canada, by requiring the assessment of too many small projects. Simply building a house near the boundary of a national park could require a comprehensive study. This investment of resources on small inconsequential projects would not reap any corresponding environmental gain.

We have to apply our resources to projects that deserve the most attention. As Stephen Hazell of the Canadian Parks and Wilderness Society told you: “There has to be some focus to the act”.

I agree that an important part of this focus needs to be on the issue of the ecological integrity of Canada's national parks. I intend to table amendments to section 48 that make specific mention of Canada's national parks and their ecological integrity. These amendments will explicitly recognize CEAA as an instrument for protecting the ecological integrity of national parks. This new clause will complement Parks Canada's excellent environmental assessment program that covers 800 to 1,000 projects each year.

[English]

To eliminate a significant source of uncertainty, Bill C-19 proposes to remove the possibility that a project could be subjected to a second environmental assessment by a review panel after it has undergone an in-depth examination during a comprehensive study.

Mr. Chairman, I only have to think back to a project in my home province of British Columbia to understand the uncertainty inherent in the current comprehensive study process. The example is the City of Kamloops, which proposed a new groundwater collector well for a reliable emergency source of quality water. Even though this project went through a comprehensive study, it faced the uncertainty generated by the potential of a second environmental assessment, which would have involved several more months of redundant effort by a review panel.

Bill C-19 resolves this problem by obliging the Minister of the Environment to make a decision early in a comprehensive study as to whether a review panel should be used instead. Under the revised process, the Minister of the Environment gains new powers to set mitigation or follow-up measures at the end of a comprehensive study. In addition, the minister will be able to request further information or require actions to address public concerns. These new powers will further ensure the quality of the comprehensive study. The revised comprehensive study process also includes two new opportunities for public participation, as well as participant funding.

Mr. Chairman, environmental groups have suggested that there needs to be an explicit opportunity for public comment on scoping decisions in the comprehensive study process. Industry is also seeking publication of these scoping decisions. I can agree with both suggestions. I intend to table amendments requiring publication of draft scoping decisions for public comment during a comprehensive study.

Turning to the new electronic registry, it represents, Mr. Chairman, a significant leap forward in promoting public participation. However, somewhat to my surprise, virtually every environmental group and several individuals have expressed serious concerns about inadvertently losing access to documents not on the electronic registry. This is perhaps one of the more important issues facing your committee.

Of course, the goal is to provide more opportunities for public participation, not less. The goal is to facilitate access to documents, so individuals can participate more effectively in the assessment process. To deal with this, I intend to propose amendments to retain the system of paper-based registries for each project, in addition to the new electronic registry. The proposals in Bill C-19 will be integrated into section 55 of the existing act. Again, after experience has been gained, this can be reviewed to see whether changes can be made in the future.

Mr. Chairman, there have also been cases of citizens being required to go through the Access to Information Act to obtain documents related to specific assessments. This goes against the spirit of the act, and is contrary to recent court decisions. In order to act in a fully transparent manner, which is the objective, I believe the public should not have to use the Access to Information Act to get environmental assessment documents. The new Canadian environmental assessment registry provisions to be tabled will contain new elements, to make it clear that responsible authorities cannot fulfill their public registry obligations under the Canadian Environmental Assessment Act in this way.

¹ (1555)

[Translation]

Mr. Chairman, in closing, I believe we can do a better job of linking environmental assessment to our environmental priorities such as clean air, clean water, protection of Canada's biodiversity and climate change. Improving the environmental assessment process through the passage of Bill C-19 is a crucial first step.

[English]

As I mentioned earlier, the agency began preparations for the review in the summer of 1998. Bill C-19 has been before Parliament for over 15 months. The new $51 million in funding promised for environmental assessment, of course, depends on royal assent of the bill.

So I urge the committee to deal with the bill expeditiously. I offer you both my time and any support my staff and officials can provide to help move this along.

Thank you, Mr. Chairman.

The Chair: Thank you, Mr. Anderson. It's very heartening to hear that you intend to produce a number of amendments. We look forward to receiving them. Your reference to the fact that the bill has been before Parliament for over 15 months has to be put within that context, as the amendments the government wishes to put forward are not yet ready.

For the record, this committee started examining Bill C-19 on February 4 of this year. Until Christmas we were involved intensively with Bill C-5, the species at risk legislation. So as far as this committee is concerned, this work was initiated less than four months ago.

During the question and answer period, perhaps you can indicate when this committee might receive the amendments you referred to in your presentation.

We'll begin our questioning with Mr. Mills.

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

I just have a couple of comments.

First, I'm not going to tell you the environmental groups I've had memberships in, so we are even on those grounds.

Second, we did hear from a lot of people that the consultation process was open and comprehensive. In experiencing the Kyoto consultation, I guess the only problem I have with this is it was exactly the reverse. But I would hope this might be changed.

Third, I think as far as the written registry is concerned, everyone pointed out to us how important it was. From the smalltown perspective, I believe that certainly must be there. I was pleased to see you included it in your comments.

I have a couple of questions. Now, we're told that this speeds up the process of environmental assessment. Maybe we haven't seen the amendments to do this, but I'd like to know how you perceive that this will speed up the process. I am also concerned--and am aware of--small groups being able to hijack environmental assessment processes. I'd like to know how this is being protected against in this new change with Bill C-19.

Finally, as you know, the Sumas energy project has been approved. You and I have discussed this project many times. Both of us know there is a problem with the quality of the air shed. How can we get environmental assessment to apply to something like Sumas, and other such problems?

º (1600)

Mr. David Anderson: Thank you very much, Mr. Mills.

I believe the consultative process has been open and comprehensive, and I did not hear any words of yours complaining that this had not been.

With Kyoto, I'd point out, of course, we had the tables, which met for two and a half years. These included 450 representatives of industry, environmental groups, and experts of varying kinds, who began the process. Then, of course, we went into a major federal-territorial--

Mr. Bob Mills: The consultation was by invitation only. That's not consultation.

Mr. David Anderson: I would describe it as an attempt to scope out, which has taken a great deal of time. We will continue with public consultations, as well as consultations with industry and other specialized people—the technical consultations. Of course, the provinces, territories, and I will be having yet another meeting, probably in early October.

So there has been a fair amount of discussion on this. Whether it has been adequate, of course, depends upon what you determine as being adequate. I think it has been quite extensive. More criticism has come my way about delay because of all this consultation process than the opposite, but I guess that may be a matter of opinion.

On the written registry, I'm again interested that you referred to small communities. Previously, small communities criticized us for always having the written registry in the big towns. You always had to travel to see it, therefore an electronic registry would be an easier process for small communities. Again, perhaps we've squared the circle by having both in this, as suggested. But it is interesting that the advantage point, as you correctly point out, varies somewhat with respect to where you're sitting—in a small town or a larger city.

On amendments, I know this is tempting the gods, but I'm confident you'll see them next week. Early next week, the middle of next week, a week from now, I hope you'll have them in your hands. Again, it tempts the gods to say that, but that's my expectation.

On your final two questions about small groups hijacking the process, it is true that all process is open to manipulation, and it is true that, in this area, process can lead to uneven results in terms of cost, uneven results in terms of time taken, and finally, uneven results. That said, I think the experience we've had and the amendments that have been proposed in Bill C-19, the ones you will be proposing, and the ones I've talked about that will come forward next week, will tend to improve the process and reduce litigation. Litigation is always uncertain, and, with due respect, litigation doesn't always achieve superior results.

On Sumas, it is an American permitting process you referred to—the Washington State Energy Facility Site Evaluation Council. The process is not complete, but it is their process. I think we have to recognize, however, that if we are to succeed on the American side of the line with our interventions, we have to come with not just clean hands but clean air as well.

It has to be recognized that we have been hampered in our presentations in Washington state because we in British Columbia are permitting new facilities that are substantially and manifold more polluting per unit of power than are the American ones. They are using gas as fuel, but are still more damaging. I'm referring, of course, to the Harmac proposal and the currently constructed Campbell River proposal. That has hurt us.

The second thing that has hurt us is the unwillingness to recognize that there are many sources of pollution. To the Americans, some of the critics appeared to not be coming with clean hands; they were promoting the very subdivisions that were creating the vast increase in the population of vehicles contributing to atmospheric problems in the Fraser Valley, yet they were objecting to the production of power. They were using power, but objecting to the production of power. That has hurt us.

Again, this is not to say whether or not the decision of EFSEC was correct; it's simply to say we have to recognize that it's best to go into that kind of international forum with a clear record on our own side. That is why it is so important to support such things as the clean air agenda, which will reduce the loading of air pollution in the Fraser Valley from the 30% that currently comes from private vehicles, light vehicles, to 10%. That's going to happen over the next few years with our clean air agenda. It will make a major difference that will be substantially greater than the increase in the Fraser Valley of Sumas 2, as revised.

º (1605)

This is not to say we support Sumas 2; we don't. We oppose it because we still think it increases loading. There are a good number of other things we'd like to do in the Fraser Valley; municipalities, the provincial government, and we are going to have to cooperate to make sure that we continue to improve air quality there as well as ask the Americans to improve air quality on their side.

Mr. Bob Mills: The only other comment I have is that when I went to speak with the governor in July, he said, do you want me to take you out to the harbour to see Victoria's sewage? That was also his comment regarding cleaning our own hands, so we do have to do that.

The problem, though, is that air shed, and it seems to me that we need environmental law, some form of law, where we can in fact get transborder agreements. Whether it's going after the Sumas River that comes from the U.S. into Canada or whatever, there should be some way we can go after them on environmental issues and question a project even though it's in the U.S., because it does affect our environment.

Mr. David Anderson: That's quite correct, Mr. Mills, and that is why Environment Canada was so active on the application of the first Sumas 2 proposal. It was rejected by EFSEC on the basis of information provided by Environment Canada. We provided the technical information that served to have that rejected. They then revised the proposal, eliminated the use of diesel, and said they would fire it only with natural gas. That changed the dynamics of the process, which ultimately led to the revised proposal being accepted by EFSEC, which is not to say we approved of that.

We have indeed been able to take part to the point where we were instrumental in having the original proposal turned down. We have mechanisms and we can use them.

Now, with respect to the air sheds generally, we have an agreement with the Americans known as the Ozone Annex. It covers the six eastern provinces and 14 states, not the whole of the continent. We want to extend that at least into western Canada, particularly into the British Columbia-Washington state air shed areas. We've had discussions with Washington state, the United States Environmental Protection Agency, the GVRD, and the Fraser Valley Regional District, and they've all agreed to cooperate. We are spearheading an effort to have an air quality approach on a binational basis in that area as well.

Here are some quick figures. If we succeed as we expect to with our Ozone Annex with the United States, we'll be reducing the amount of nitrous oxide in Ontario, which of course flows down the St. Lawrence system into Quebec and the Maritimes, by some 44%. The target is 50% across the board, but I think we'll probably achieve at least 40% on NOx, so we're making some quite radical changes over the next decade.

There are two things I'd suggest. One, you need to have the agreement in place. Second, you need to have some element of provincial cooperation because it's not possible for me always to use federal legislation to dragoon provinces into doing the right thing. And third, you have to have public support for this approach.

Don't ask for things to happen too quickly, but there are some good examples of transboundary cooperation. As I said, we've already started the process of having that extended to the air shed that encompasses the Fraser Valley and northwestern Washington.

º (1610)

Mr. Bob Mills: We heard that when we were in Washington as well, Mr. Chair, if you recall.

The Chair: Thank you, Mr. Mills.

Mr. Bigras.

[Translation]

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

I have several questions on Bill C-19. First of all, as regards environmental assessment to protect the ecological integrity of Canada's national parks, you state clearly on page 7 of your brief that you reject the proposals made by the Sierra Legal Defence Fund, because you think “their specific proposals would place an unreasonable operational burden on Parks Canada, by requiring the assessment of too many small projects.”

In your 1997 election platform, the Red Book, you say on page 51:

Under current government policy, the evaluation of projects under the Canadian Environmental Assessment Act must weigh the impacts of each project on parks and protected areas, and on those areas being considered for protection. In its upcoming five-year review, the government will determine whether the CEAA should be amended to incorporate this policy.

So that was part of your election platform in 1997. Does your rejection of the Sierra Legal Defence Fund's proposals not amount to a decision not to subject all projects, including small projects, to the environmental assessment process?

Mr. David Anderson: Thank you for quoting the Red Book. It is an excellent source of information for Canadian members of Parliament.

Mr. Bernard Bigras: For opposition members as well.

Mr. David Anderson: Particularly for the opposition members. I think you quoted the words “the government will decide whether”. Unfortunately, I do not have a copy of the Red Book here. That is unfortunate. One should never be without the holy book, that is the Red Book.

Mr. Bernard Bigras: Yes, it is like the catechism. I confess I sinned in this regard, because I do not have the book with me.

If I understand you correctly, you cannot tell us whether the bill complies with the commitments you made during the 1997 election campaign. That is what I understand you to be saying.

Mr. David Anderson: In all seriousness, Mr. Bigras, you must understand that it is impossible to subject each proposal for any change whatsoever around a national park to a review of the type that would be conducted in the case of a large mine or a major hotel complex, including golf courses. It is very important that the review be in keeping with the proposed development project. That is what I suggested when I said that...

[English]

unfortunately, their specific proposals would place an unreasonable operational burden on Parks Canada.

[Translation]

What we have to do is improve the proposals they made so that we avoid imposing an unreasonable burden. My point is that I see nothing practical in their proposals. Practical details are the most important aspects of this review of the legislation.

º (1615)

Mr. Bernard Bigras: On page 6 of your brief, you say, with respect to the application of the Canadian Environmental Assessment Act to some projects, that you plan to table an amendment that would close some loopholes. You say and I quote:

This change will make it clear that projects requiring federal decisions also require an environmental assessment even if a proponent has taken decisions to move the project forward.

Does this mean that the amendment will make crown corporations such as the Export Development Corporation subject to the Canadian Environmental Assessment Act? Are we to understand that you intend to table amendments along these lines?

[English]

Mr. David Anderson: With respect to Export Development Canada, Parliament has already passed amendments—in December of last year—on Bill C-31. Those provide the statutory authority for an environmental review process that assesses projects supported by Export Development Canada. This is indeed covered by that. The environmental process deals with federal decisions about proposed projects, and that is a distinction.

We plan to propose regulations for other selected crown corporations and other local airport authorities, as I believe I have already referred to you, and as I committed to in my report to Parliament on the five-year review. But Export Development Canada has been dealt with by Bill C-31.

[Translation]

Mr. Bernard Bigras: Is my time up, Mr. Chairman?

The Chair: You still have some time left.

Mr. Bernard Bigras: If I may, I would like to talk a little about the Johannesburg Summit, because it is not every day that we have the minister at our committee. I do not know whether we will have an opportunity to see you again before the Johannesburg Summit, but I have a few questions to ask you about this.

In May 1992, your colleague, the current Minister of Finance, thought the Rio Agreement in 1992 was, and I quote:

This agreement, which Canada signed, is even weaker than the modest promise contained in the Green Plan, which was to stabilize greenhouse gases at the 1990 level by the year 2002.

As you know, emissions in Canada have increased by some 20% since 1990. How would you describe Canada's environmental record in three months in Johannesburg?

Mr. David Anderson: You know exactly what the figures are, Mr. Bigras. Yes, it is true that economic growth in Canada, which has been so important in reducing the debt, supporting the health care system and so on, also comes at a cost, and this cost was an increase in greenhouse gases. So we know that there has been an increase.

We have suggested four ways of achieving the objective of reducing the 1990 level by at least 6%. We are discussing this with the provinces and territories, and I certainly hope that in Johannesburg, we will be ready to say that there is a public will in Canada to ratify the Kyoto Protocol. That is my opinion; you are very familiar with my position. However, at the very least, we will be able to decide whether or not the protocol will be ratified. That is the plan. It is very clear, and everyone is aware of it.

At other conferences in the past, all the countries in the world have understood Canada's position very well. They know what our figures are. A number of them are jealous of Canada's economic growth. A number of them have not enjoyed the same economic success that we have. Very few of them have enjoyed such a level of success, but they are familiar with all this information. This is not a new issue.

In Johannesburg, we are not going to get into long stories as to what has happened and what has not happened. The beginning of the first time period under Kyoto is in 2008; it is not this year. I certainly hope that Canada will be able to achieve its objective by 2008.

º (1620)

Mr. Bernard Bigras: Mr. Chairman, I have one final brief question, which is also about the Johannesburg Summit, and I will conclude with that.

A recent study done by the University of Victoria found that Canada had one of the worst environmental records of all industrialized countries.

How would you describe Canada's environmental record three months before the Johannesburg Summit?

Mr. David Anderson: We will certainly be using the standards most accepted by international companies and countries. That is the World Economic Council standard. I believe it was developed by the University of Columbia and another university. This standard was established by two American universities. Canada ranks fourth, behind three Scandinavian countries. That is the international standard.

The problem with the study by the University of Victoria, where I myself studied and taught, is that it disregards Canada's situation as a country whose economy is based on natural resources to some extent. It disregards the distances in Canada, the Canadian climate and our low population. Thus, the study disregards all the major factors affecting our situation, and is therefore of little use. The study of the international system is much more effective and realistic. I do not want to criticize my own university; I just want to say that internationally, I think the international standard will be accepted.

We ranked fourth out of 123 countries, I believe. When we look at the facts, we see that in some areas, we may have ranked 14th or even 40th. It is possible to improve our position without working too hard, and we will try to do so. I am not content with our fourth-place ranking. I want Canada to be first or second, and I think that is possible. The Scandinavian countries sometimes benefit from the problems they had 50 years ago. I think it will be possible for us to improve our ranking in the future.

[English]

The Chair: Merci, Monsieur Bigras.

Mr. Comartin, please.

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

Mr. Minister, I note--on page 10, I think--that you're urging us to deal with the bill expeditiously. As you may be aware, on a number of occasions since we began consideration of the bill, we've adjourned meetings and put them off because we were dealing with Bill C-5. So I'm wondering if you could advise the committee on whether Bill C-5 is going to come before the House again before the summer break.

Mr. David Anderson: Well, I devoutly hope that Bill C-5 will be here in the House within a week. But we'll see; I don't know.

Mr. Joe Comartin: With regard to Bill C-19, you posited the openness of the consultation process with the RAC. We heard from some of the members of the committee who, although they praised the open consultation, noted that the recommendations they made were not followed through in a number of ways. I can think of a couple of sections around the definitions of environmental impact. From my perspective, at least, perhaps the most important recommendations they made were to make the bill and the act less discretionary. These were not followed through in any of the proposed amendments under Bill C-19.

Could you comment on this, please?

º (1625)

Mr. David Anderson: Sure. Inevitably, recommendations come, and are evaluated. Many recommendations contradict other recommendations that are made. Under such circumstances, you can be pretty sure that many people will be disappointed their recommendations were not accepted and others were.

So all you can do is evaluate them on the merits. The people who come before your committee will frequently—and quite legitimately—come with a particular vantage point of a particular section of society or the economy. When considered overall, recommendations that might be great if you're doing an environmental assessment of a hydro dam might turn out to be considerably more difficult if you're dealing with a coal-fired plant. Therefore, when you choose the general recommendations that will apply to all, you tend sometimes to choose what you think will have the most useful overall effect.

As for being less discretionary, there is a constant cry for less discretionary legislation. The dilemma is that less discretionary legislation frequently means more difficult legislation to implement. If you had thought of everything beforehand, less discretionary legislation is great. But if you hadn't thought of everything beforehand, you've left loopholes, which you are then constantly plugging. Remember, there are a large number of ingenious people out there looking for loopholes. So the less discretionary you make your legislation, frequently the more difficult and less successful you make it.

So the issue is again a question of balance. How far do we set up systems that are entirely court-operated and automatic? And how far do we set up systems that take into account the fact that there will be dramatically differing circumstances across the country for differing projects and proposals? It's a constant yin and yang. On the one hand, it seems great to have discretion. Then, on the other hand, somebody points out the errors of discretion, so you go the other way. Then you set up a more rigid, legalistic system, and get into some of the problems you face in jurisdictions such as the American one, which are not ones we'd want.

So it goes both ways. All we can say is we're struggling for the balance. Your discussion in the committee and your recommendations will help form where the balance should be.

Mr. Joe Comartin: You were quoted at one point as saying the panels were a core strength of the federal environmental assessment process.

Since the inception of the act, we've had over 30,000 proposals. We've had 10 panels. Do you think this reflects the core strength of the process you were looking for when the bill was originally passed?

Mr. David Anderson: Again, I don't think you should judge the strength and quality of a bill by the number of times you wind up in a particular situation. You don't judge the success of criminal law by the number of times individuals have been given the maximum sentence for offences X or Y. That's not the way you do it.

Sometimes you judge the success of your legislation in a different way. We take the decision on a case-by-case basis. There are plenty of other ways of making assessments. They shouldn't be disparaged because they're not a particular type. The level of effort corresponds to the size, complexity, and the potential for adverse effects.

So I think the comprehensive study process is a good one. We shouldn't say it's an indication of success or otherwise of the legislation. I don't think the number 10 is relevant, one way or the other, in this regard.

Mr. Joe Comartin: We heard several horror stories from witnesses last week. Perhaps the one that caught my attention most was the project that's going ahead now at the Bruce Peninsula. We're going to have the largest depository of radioactive waste in this country there.

For some reason, this legislation as it stands--and I suggest as it would be amended with Bill C-19--did nothing to provide for an environmental assessment. Do you think that should have called for a panel?

º (1630)

Mr. David Anderson: Well, I understand you will be hearing from the Canadian Nuclear Safety Commission about the details of that environmental assessment. It will be reporting to you on the extensive study it did. Its view was that program technology and management practices associated with it will be satisfactory to mitigate any potentially significant environmental effects. I think you're going to have to consider its testimony on this, which would obviously be more thorough than mine.

But once again, the importance of an issue doesn't necessarily result in the panel approach or some other approach. It's about whether it has been appropriately handled. Has the concern been appropriately heard? Those are the questions you will be putting to the Canadian Nuclear Safety Commission when it comes.

The Chair: Thank you, Mr. Comartin.

We have Mr. Reed, Mr. Lunn, and the chair.

Mr. Julian Reed (Halton, Lib.): Thank you, Mr. Chairman.

Minister, you have succeeded in zeroing in on some of the concerns we heard from witnesses, certainly about the way in which the Canadian Environmental Assessment Act is being applied, and this is obviously a concern of yours. The appointment of review panels you've also addressed here as well, and I think that's to the credit of this bill.

There are two things I'd like to raise with you. One is the scope of an environmental assessment, as was brought up by the Canadian Hydropower Association. It urged this committee to urge you, if you like, to make sure that when an environmental assessment is done on a hydropower project, it also includes the benefits at the other end--in other words, the offset of greenhouse gases and those things about hydropower that are good for the environment--instead of just dealing with the tunnel vision of the mechanical process itself.

So I just would urge that this thought be transferred to you when it comes to the business of doing an environmental assessment. Yes, a lot of people don't like dams, for instance, but on the other hand, what's the alternative poison? I think we'd better get a grip on this when we are doing environmental assessments into the future and as we are dealing with Kyoto and that whole area.

The other issue I'd like to raise with you was registered with us last week by a witness and concerns a decision by Fisheries and Oceans to reverse an order for an environmental assessment. This had to do with a proposed quarry on the Credit River--and I will state my conflict of interest there, because I live on the Credit River about 20 kilometres downstream from this quarry.

But there's no question about it; there appeared to be enough groundwater impact there to precipitate an order for an EA, which apparently was later withdrawn. That concerned me a great deal, because we don't know what took place between the ministry's making the decision and then withdrawing it.

But I do know I've lived all my life on the Credit River and I do know the critical importance of groundwater maintenance in that area. All of the population in the area depends on groundwater. If there's no environmental assessment, I just don't know how we can determine that impact. We have quarries all around Halton, and they all have an impact on the recharge areas so necessary for the supplying of potable water.

º (1635)

Mr. David Anderson: Thank you, Mr. Reed.

On the first point, the scope of environmental assessments and the representations you've received from some of the hydro people, yes, it is difficult to scope things appropriately so all benefits are taken into account. I certainly hope greenhouse gas emission reductions are taken into account in any assessment of such a project.

There is another issue that concerns me. I'd appreciate your expert views from your own experience, also those of the committee. By its very nature, hydro power tends to take longer to permit than, say, a coal-fired plant. Because the process is longer, the bias tends to be toward a coal-fired plant. So by getting involved in a very intense, complicated, legalistic, detailed examination—which is right—you somehow skew the decision-making process of the electric utility executives into favouring what may be a less attractive source of power.

Mr. Julian Reed: That's quite correct, sir. Ontario has just gone through that by approving two 600-megawatt gas-fired plants in Mississauga, instead of taking the longer-term, more environmentally sound approach.

Mr. David Anderson: Well, again, I won't make judgment on which is more environmentally sound, but I'll say there's also a situation in Quebec. There are some issues there related to the permitting time for different sources of power.

So this is also to be borne in mind when we start making things immensely complex and more legalistic. Sometimes, just by process, you skew decisions. That's a difficulty, and it inevitably is going to be a difficulty with anything that involves water because of the time it takes to study fish. You have to go through lifecycles of fish, sometimes, to get adequate scientific information.

So I can assure you that I'm sensitive to this issue and will look at it, but it is also one reason for having more discretion rather than less.

Second, there's a concern of DFO with respect to, I think, the Rockfort quarry. If in fact there is harmful alteration, disruption, or destruction of fish habitat, CEAA would be triggered. But DFO is the determinant of that, and the minister will be before you soon, I gather, so I'll leave it to him to answer the question.

But you raised an excellent point, that drinking-water quality is quite different from fish habitat. It may be that we're not having an adequately wholistic approach to water quality aspects because of this very clear focus on strictly fish habitat through the federal law.

That's a matter that also worries me, that the triggers sometimes may not be the most important triggers for a particular area's concern, important though they may be in the abstract or in the overall. From a regional point of view, they may not be the right trigger, and that sometimes leads to what appears to be an uneven application of federal involvement in issues such as water quality.

We're going to have to take that into account, Mr. Reed, particularly in light of the second Walkerton report; how do we properly fulfill the federal role for water quality?

Mr. Julian Reed: Thank you.

Thank you, Mr. Chair.

The Chair: Thank you, Mr. Reed.

Madam Redman, Mr. Herron, Mr. Lunn, and the chair.

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

Minister, the definition of “environment” in the act appears to be quite broad. It includes earth, land, air, water, all the layers of the atmosphere, and how all organic and inorganic matters in living organisms interact. Yet some witnesses--and I'm thinking right now of Professor Gibson of the University of Waterloo--suggest that the definition of environment should be broadened even further to include social, economic, cultural, and heritage matters.

You're not proposing those amendments, that we change the definition of environment, and I'm wondering if you could tell us why.

º (1640)

Mr. David Anderson: The reason is straightforward. We already have enough complexity on the environmental side. If we brought in these other social, economic, and cultural factors, we would probably lose the clarity of the environmental concern. Cost-benefit analysis for the benefit of local people would then substitute for analysis of the impact on fish, or the impact on wetlands, and waterfowl habitat. People would come back and say, “Did you have a comprehensive discussion here? This is very important”. So you could tend to get flooded out by these other issues, to the detriment of environmental values.

The other aspect to this is that most of the other areas—and I won't say totally—are more highly politically charged. It is very much a political debate as to what is good development, and where the jobs are necessary or not. Hopefully, we are on a more scientific basis in our analysis of environmental impact.

So there again, what is political should perhaps be left to the political process. The environmental aspects should be a major component of this, but not the only one.

Funnily enough, we're having the same debate with respect to the conference on sustainable development in Johannesburg. To some countries, sustainable development means development, pure and simple; sustainability comes later, when they are wealthy. To some, the environmental aspects of the Rio and Stockholm conferences—which preceded the Johannesburg conference—are being scrubbed. I talk about a three-legged stool—the environment, social, and economic—and I've had a lot of trouble getting clarity on what we're really going to be doing in Johannesburg, because of the mix of economic, social, and environment.

Yes, you must consider all three in sustainable development, but sustainable development decisions are more politically charged than environmental assessment decisions.

Mrs. Karen Redman: Thank you.

One of the other issues we heard a lot about from witnesses, which you also referred to in your speech, is the Red Hill Creek Expressway and the treatment it got through the courts.

The agency said that the court's decision created a potential loophole that project proponents might use to actually avoid environmental assessment requirements in the future. We also heard concerns about this issue from the Canadian Environmental Law Association and the Environmental Law Centre.

I think it's positive the government is taking action to address this problem--it's good to see this--but one of the other issues that has come up in witnesses' interventions is the question of why the government did not appeal the Federal Court decision. I'm wondering if you can comment on this.

Mr. David Anderson: Let me say that the government did not like the decision. As I indicated in my opening remarks, we feel it creates an opportunity for rule-beating by people getting in there first and declaring it's irrevocable: “We've cut down the tree, it's too late” or “We built the building. Sorry, it's too late to worry about whether it should be where it is.” That approach is not to be encouraged. We don't want to encourage that. And we feel that, as a side effect of the court decision, we could see that. By not appealing, though....

First of all, as I mentioned earlier...and this is not a criticism of courts, it's just a fact of life. Judicial decisions have an element of the uncertain to them. That's why people go to court. If it were clear, both lawyers would know it, and they'd never go to court. Courts exist because people disagree as to what the outcome will be, and what the judges will decide. So this is not a criticism of courts but a recognition of reality that you don't know what the outcome will be when you go to court, particularly when you've lost in the court below.

So going to the Supreme Court would have been a lengthy process. It would have been very expensive, with no certainty of outcome. Furthermore, given the particular circumstances of the Red Hill Creek Expressway, an appeal was not going to advance that situation very much at all. So we said, okay, we'll stick with that decision, but through amendments we'll wipe out the effects of the court decision in respect to rule-beating, and people getting in there and doing something before the environmental assessment begins.

I hope we've dealt with this problem effectively. But going to court, in my judgment and the judgment of my colleagues, was not going to help much in this particular instance.

º (1645)

Mrs. Karen Redman: Okay.

We heard last week a particularly compelling panel of people who have actually gone to court over the need for EAs in regard specifically to Tolko and the Rockfort quarry, which I think has already been referenced, among others.

Clearly, one of the very positive things in this bill, which came out of the discussions, is that all levels of government felt they needed increased funding in order to take advantage of environmental assessments and make sure this program was effective. When Bill C-19 receives royal assent, there will be $51 million in new funding. Can you tell us exactly what that will be used for? The witnesses took that as very good news, but maybe you could enlarge on it.

Mr. David Anderson: I'm glad the witnesses took it as good news, because it is good news. That said, we don't want to use it all up on process. It's very easy, when you increase money, to simply increase the level of sifting of the sand, and process goes up in cost. Results don't materially differ; you're simply paying for process.

What it will do, among other things, is establish an electronic registry, which I talked about, that will help any Canadian obtain information on the Internet. There will be support for the mandatory follow-up, which I talked about. The quality assurance program will have extra money. There will be, of course, participant funding, which is a focus of many intervener representations to you.

We hope that the agency will be strengthened in different parts of Canada where it's a bit thin on the ground. We don't have a big agency, and this is going to improve it. We also want to stress dispute resolution and avoid litigation. That's another area where the agency is, I think, doing great work, but it's expensive, particularly to develop new expertise and new capacity.

I mentioned the band councils. That's not going to be cheap. It will cost money, and it has to be recognized as such. And then we've talked about the new class-screening reports.

So that's where the money goes. I might add, we already spend about $40 million a year on environmental assessment. And every time we spend this kind of money on process, you'll always have a slight unhappiness that you're not spending it on protecting wetlands, that you're not doing something for the environment. You're spending it in rooms like this, in courtrooms or hearing rooms.

Of course, process is very important, but you want to make sure it is cost-effective process. So I'll be cautious on that. Whenever I'm told there are not enough conservation officers in the national parks, I am concerned, because process in courtrooms, classrooms, and hearing rooms takes up a lot of money that could otherwise go for more conservation officers on the ground.

I like process. It's a good process. But I know it's expensive, and it's the cost that worries me, because there are a lot of other demands on departmental budgets, and of course, on the environmental side, there are many crying needs, not just demands.

The Chair: Thank you.

Mr. Herron.

Mr. John Herron (Fundy—Royal, PC): Thank you, Mr. Chair.

I want to apologize first off, Mr. Minister, that I missed your formal presentation, as I was out. But I was able to glance through most of it, and I've had some briefings on questions I'd like to pursue.

I'm going to try to get four questions in, if I can, Mr. Chair.

My first question deals with the mandatory review of the act. The legal requirement, the first review of CEAA, is weaker than what we had in CEPA '88, CEPA '99, and even the proposed SARA, because, as many witnesses have said, we look at only a snippet of the act itself.

My question is, why do we have a weaker mandatory review under CEAA than we have with SARA and CEPA? And given that fact, should we be concerned that there is a trend that down the road we could see the Canadian Environmental Protection Act, or a species at risk act, if we ever get one, have a similar review mechanism, as opposed to a wholistic review every five years?

That's my first question.

Mr. David Anderson: There is a number of reasons. In my presentation, I did go into an analysis of the work that began in 1998 prior to the review, the scoping of the effort, which was dealt with at some length. And certainly, I urge you to review those pages.

Part of it may also be the fact that the challenge is less in environmental assessment than it might be in endangered species, in terms of clearer objectives. It may be that the initial writing of the legislation got it right the first time and there isn't a great deal to be done the second time around. There is a host of possibilities as to why the scoping came out to be less that way.

With respect to the five-year reviews, we have to be careful of these, as legislators. Think of the metres of federal statutes and regulations there are. If all of them are to be reviewed every five years, that means one-fifth of everything we do and have in the statute books has to be reviewed every year.

Some pieces of legislation may be perfectly adequate and don't need an automatic review every five years, because there'll be other issues that the parliament of the day thinks is more pressing. And as you know, many new things have come since you've been a member of Parliament that you didn't expect when you were elected. So it's difficult to set up these automatic reviews and to say these have priority over what the parliamentarians five years hence may think are the critical issues—nevertheless, forget that, we're forcing them to consider something by legislation today.

So I always think people should be a little cautious about five-year reviews, unless you think it is possible to review one-fifth of all federal legislation every year. And I don't think it is.

º (1650)

Mr. John Herron: The concern is that a lot of the witnesses who came before this committee really wanted to talk about regarding aspects of CEAA that were not in Bill C-19. It only addressed a certain component of it, and they think that opportunity was lost. A wholistic review would not preclude the government from actually adjusting only the aspects they cared to adjust.

I have a second question. I understand that there's a large concern that the panel process is not utilized the way it should be when we have a “significant environmental effect”. Your previous response earlier today was that you look at this on a case-by-case basis.

Given the testimony I have heard, can you cite a couple of real, tangible examples of what this case-by-case basis would be? What would actually trigger a panel review? We've only had a few dozen out of several thousand possible reviews, so there's a concern in this regard.

Mr. David Anderson: Again, I don't wish to repeat what I've said with respect to the panel process. I don't think you should judge legislation by the number of times you use a certain type of approach. Again, I cite the idea that criminal law should not depend on the number of times you sentence a person to maximum sentences. I don't think that's an example of the success of legislation.

I'm going to turn to Robert to comment on the ten panels and the two examples you thought might be appropriate.

Would you do that, please?

Mr. Robert Connelly (Vice-President, Canadian Environmental Assessment Agency): Sure, thank you, Minister.

The fundamental reasons for appointing a panel are based on the determination of the significance of the environmental effects associated with the proposed development and/or the level of public concern associated with the proposed project.

Over the years we have developed some guidance documentation, some criteria, that identify the kinds of factors one would look at in assisting in determining significance. For example, one would look at things like the value of the ecosystem that might be impacted by the project. Increasingly we are looking at, for instance, are there species at risk that could be impacted by a project? Is the project in a proximity to a national park?

Those would be examples of criteria we promote that ought to be considered in making this kind of determination, Mr. Herron.

Mr. John Herron: Specifically on Bill C-19 itself, I see a strong reference on page 4 of your presentation to the concerns you focused on in reviewing Bill C-19. You focused on improving the application of the act because it was felt that the problems weren't really with CEAA but more with government implementation of it.

On this point, there's an immense amount of concern that this act is just plain old discretion, discretion, discretion. To counteract that, can you name a couple of tangible aspects of CEAA where we are actually guaranteed some mandatory action, where we know that something would in fact happen? Can you name a couple of sections of CEAA where in fact we actually will do something, as opposed to just plain old discretion?

º (1655)

Mr. David Anderson: I would first take issue with you on the matter of discretion. It is easy to set up systems. This costs us $40 million a year, plus another $10 million coming—$50 million a year; that's a lot of money. It's money taken away from our conservation work. It's money taken away from our land acquisition. It's money taken away from a vast range of environmental objectives that would leave a lasting legacy for our children. It's money that's used up in rooms like this.

I'm not an instinctive believer in the idea that discretion is bad and legal process is good. I've expressed that to you before.

I'm going to turn to Robert again to give examples with which he's familiar from the legislation. You're asking for experience, which he has.

I do think you have to be cautious, Mr. Herron, about making a knee-jerk assumption—discretion, bad; legislation, good. It's not that way in real life.

Mr. John Herron: That's clearly not my perspective. But there is a concern that there's not enough of a balance of discretion with mandatory measures.

Mr. Robert Connelly: Thank you.

Your question is probably directed largely at the issue of the quality of environmental assessment. I'll indicate to you some of the provisions in Bill C-19 that I believe will improve the quality of those assessments in the future.

First, there is a proposal in Bill C-19 to require mandatory follow-up after assessments of major projects. This would include projects at the comprehensive study and panel review levels. The idea there is to gather information so that we can learn from our experiences and better apply them to future cases. There is also a requirement for the agency to establish a quality assurance program, which has been lacking, in a formal sense, since the act was implemented. There is also a role for the agency to promote and monitor compliance with the act.

I might mention one other matter that is quite important, which the minister has referred to. That's the new concept of a federal environmental assessment coordinator. It is a role that will be played largely by the agency, and should improve the consistency of the application of the act in the future.

Mr. John Herron: Thank you very much.

Again, my apologies to the minister for not being able to be in both places at the same time.

The Chair: Thank you, Mr. Herron.

Mr. Lunn.

Mr. Gary Lunn (Saanich—Gulf Islands, Canadian Alliance): Thank you, Mr. Chair, and welcome, Minister.

I'll start with just a quick comment. I believe you said something to the effect that you hope this bill actually gets back to the House sometime toward the end of next week. I'm not too sure that can happen, considering we won't be starting clause-by-clause until sometime next week, and we don't have your amendments. I guess we'll get your amendments early next week. I think we have some awfully tough time constraints. It will be interesting to see when we actually get it back to the House.

I have three specific questions. In clause 8, there's talk of the appointment of a federal environmental assessment coordinator, to ensure there's coordination among all levels of government. The concept is actually quite a positive one, but I'd like a few specific comments on it because it's very vague. We don't have any details on who appoints this person, how long the appointment is, what their specific duties are, who they are accountable to, or salaries. The concept of having a coordinator is a positive aspect, but it's very vague.

Secondly, I note you said in your speech it's going to include complementary authority for regulations, to enable band councils to undertake assessment. I think there are some positive aspects to that, as well, but I want to know if the same powers you're giving to local band councils to do these environmental assessments will also extend to municipalities; whether they will also be able to undertake similar assessments to properties under their control. I appreciate municipalities are not federal jurisdiction, but are there any aspects to include the municipalities at the same level or similar to that of the bands?

Third, I believe there are provisions for mediation. I heard from a few of the witnesses that if mediation failed it could get sent to a review panel. A number of points could be agreed on by all parties in mediation. They could sign off, and all that. The concern was raised that if mediation were successful, at least in part, and the parties signed off on that agreement and came to a conclusion, the part they signed off wouldn't be binding and they would have the ability to reopen that.

Would you be open to amendments that would ensure that once they've signed off, it would be binding?

» (1700)

Mr. David Anderson: Thank you very much, Mr. Lunn.

Certainly, I appreciate the fact you find the concept for the coordinator positive. I think it is a positive approach. Basically, the concept is to get a point person responsible for responding to some of the criticism, that there are too many government departments, there's too much passing between offices, etc.

On the band councils, no, there's not the same desire or the same possibility of giving the powers to municipalities that are coming to band councils. This is because municipalities are a creature of the province, and the province is of course responsible. It's a question of federal powers going to band councils or of them having inherent powers, as the case may be—I won't get into that argument—but it's different from a municipality. Therefore, we do not have the same ability to grant powers.

With respect to mediation, I entirely agree with the view you're putting forward. Yes, when people sign off, they should sign off. Unfortunately, Yogi Berra seems to be the person they listen to; it's not over until it's over, and then it's not over. You see this approach from some people in mediation in other fields, and you're well aware of it from your experience as a lawyer.

Another dilemma comes if you sign off on something, then there's some variation that comes down the pike later on, and then everybody says “Deal's off”. The variation may or may not be material, but it allows an opportunity for once more picking up the issue.

How we deal with that is going to be important, and I can only suggest, by the comments I've made, that I'm aware of the concern you're expressing. We're going to have to watch it, because we don't want it to be yet another level people play with before going back to the legal approach, simply using this as an opportunity for further delay. Delay is not good from the environment's point of view, from the proponent's point of view, or from the intervener's point of view; it's not good as a general rule.

Mr. Gary Lunn: I'm encouraged to hear you say that.

Mr. David Anderson: I would simply say that we're aware of it, and unless Robert wants to add a few words about something beyond my understanding, I'll leave it at that.

Robert, do you want to comment on the first and the third?

Mr. Robert Connelly: Yes. Perhaps I'll just respond quickly to Mr. Lunn's comment on the coordinator.

It is envisaged in the act that the agency would be the coordinator for comprehensive study projects--in other words, the major projects and those that are interjurisdictional, ones that involve, say, a review undertaken jointly or on a cooperative basis with a province. Those have been the areas of the major problem in terms of coordination. The idea is simply to assist in getting our federal house in order. A good deal of the money the minister referred to will actually be going to hire people in our regional offices to perform that function.

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The Chair: Ms. Karetak-Lindell.

Ms. Nancy Karetak-Lindell (Nunavut, Lib.): Thank you, Mr. Chair, and thank you, Minister, for the information.

I'm very new to the committee, and my questions are along the lines of Mr. Herron's.

I've read some of the information I received, and there are a few references to “reasonable burden”. Then there's another one about “public concern”. People who come from less-populated areas such as rural areas are always wondering, how do you determine public concern and reasonable burden? When there are very few people expressing a concern, does that have the same weight as the population of Toronto protesting something? Who determines what “unreasonable” is? What level of public concern qualifies as enough for a review?

The other information I received was that Bill C-19 would not apply to crown corporations, and I'm just wondering why that is and what the implications are.

My last question is this. I understand that you would refer a project to a review panel and that a review panel would involve the appointment of independent experts. With our land claims agreement we already have the Nunavut Water Board and the Nunavut Impact Review Board. Do they qualify? Could it be decided to appoint one of them as a panel to hold the hearings, or would there have to be a parallel set of hearings, which would probably see the same people and cause duplication?

Thank you.

Mr. David Anderson: Thank you, Nancy.

Reasonable burden has to be determined case by case. For public concern, you have to do it on the basis of who speaks up.

This sounds unsatisfactory, but how do you know about public concern if people do not speak up? There's a saying that “if you ain't squealing, you ain't being gored”. People have to squeal when they feel their rights are being affected. That was told to me long ago, when I was a backbench politician. I think most of our political people very quickly understand that you have to speak up. Silence is assumed to be assent. It means the people who are involved have to be susceptible to local considerations

It may be that in your part of Canada, in Nunavut, culturally, people do express concern differently from how they might in Toronto. In Toronto, obviously, they're writing to the Globe and Mail and the National Post. You do not have newspapers of the same type. You have maybe a different way of handling things. It may be handled more through band councils, for example, as in British Columbia, than it might be in the public domain.

So you need to have people involved in the processes who are sensitive to the issues and the local cultural values. It will not be possible beforehand to determine it in a general sense. I think you have to wait for the specifics of what this takes into account, what this proposal will do, and who should be the ones consulted or listened to.

We always have this issue with respect to, for example, some of the national parks issues. How much do you listen to the people who live there, on the ground? How much do you listen to the people who live 2,000 kilometres away but, nevertheless, as Canadians, are owners of the park? It's difficult.

On crown corporations, we have an improvement with respect to the regulatory authority governing crown corporations. We're going to develop regulations for specific crown corporations and selected crown corporations, as I again reported in my report to Parliament on the five-year review. The model we will use is the Canada Port Authority Environmental Assessment Regulations that we have put into effect and that would be the basis for it.

Crown corporations are, therefore, not exempt from the act. A crown corporation is covered just like a private corporation. In addition, as I mentioned, we'll be developing specific regulations one by one.

Finally, on the project review panels, perhaps Robert could comment on it. My expectation is that we will be able to incorporate members, but I don't think we're able to simply call the local board, the water board of the Northwest Territories, the Yukon, or Nunavut, for the purposes of this act.

I think that would be the case, but Robert may want to add to this.

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Mr. Robert Connelly: I think probably the short answer to your question is yes. For example, with the Nunavut Impact Review Board, CEAA was set up to recognize that there will often be situations where we might want to enter into a joint or cooperative review with another jurisdiction. The flexibility is there to have a cooperative or joint review with members appointed by the Minister of the Environment, for example. There is also the potential for members of a standing board, such as NIRB, to be considered in a common panel. We avoid duplication by virtue of eliminating the possibility of two separate panel processes.

The Chair: Thank you, Ms. Karetak-Lindell.

Mr. Shepherd is next, followed by the chair.

Mr. Alex Shepherd (Durham, Lib.): Thank you.

As you know, I'm not a regular member of this standing committee; I have to apologize that I'm not 100% up to speed on this piece of legislation. It twigged on me, though, when you were talking about federally funded projects on reserve lands currently not requiring an assessment. Do I assume from this that non-federally funded projects either do or do not require an environmental assessment?

Mr. Robert Connelly: Your question I believe, Mr. Shepherd, was also for projects on Indian reserves. Is that correct?

Mr. Alex Shepherd: Yes. For Indian reserves with projects that are not federally funded, in other words, they're funded by a private source, they're not required to have an environmental assessment. Is that correct?

Mr. Robert Connelly: The answer to that will depend on whether there is some other federal decision-making responsibility.

For example, a project could be funded by the band but require an authorization, let's say, under the Fisheries Act because of the potential for fish habitat destruction, and that would still trigger this act.

What we're proposing to fix here is a problem in the sense that we have inconsistency--the so-called funding trigger. Whenever the federal government provides funding for any project, the act is triggered. The one exception for that is funding on Indian reserves, and that's a loophole or a gap it is proposed in Bill C-19 to correct.

Mr. Alex Shepherd: I realize that some of this is the jurisdiction of DIAND, but where a band council, for instance, decides to get into an agreement, say, with a gaming authority to build a casino with no federal funding, do I conclude there's no requirement for an environmental assessment?

Mr. Robert Connelly: Thank you for that clarification.

It is possible there would be no requirement, and that also is part of the reason why this new regulation would be developed. The band itself could use the new regulation-making power under CEAA to conduct its own environmental assessment in a situation where there was no federal decision.

Mr. Alex Shepherd: However, the conclusion could be that the band simply decided not to have an environmental assessment; it was not required to have one.

Mr. Robert Connelly: If a regulation was in place such as the one that is being proposed in Bill C-19, then that requirement would exist in the future.

Mr. Alex Shepherd: Okay, but getting back to your proposed amendment, it talks about “federally funded”, so if it's not a federally funded project the band simply could decide it doesn't want to do an environmental assessment; is that correct?

Mr. Robert Connelly: But with the new regulation, the act will also allow the band itself to apply CEAA for a project that does not receive federal funding.

Mr. Alex Shepherd: But at their discretion.

Mr. Robert Connelly: No, not in the future. If they wanted to build a casino, and there was no federal funding and no other federal decision-making involved, with that regulation in place they would be obliged under the regulation to conduct their own environmental assessment.

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Mr. Alex Shepherd: So you're requiring a reserve to conduct environmental assessments on all projects, regardless of whether they're federally funded or not?

Mr. Robert Connelly: Through this regulation that potential would exist, yes, in the same way that CEAA applies elsewhere.

Mr. Alex Shepherd: And where the government is entering into self-governance agreements--in other words, the actual reserve is disappearing through a self-governance agreement--I presume these regulations would also be intact, or that it be suggested they be intact within the self-governance agreement. Is that correct?

Mr. Robert Connelly: Yes, in fact it recognizes the possibility that bands will have increased potential for self-governance. Under CEAA, through this new regulation that is being proposed, that band, if it had that decision-making responsibility--if it had self-government--could apply this regulation, allowing it to conduct its own environmental assessments.

The Chair: Thank you, Mr. Shepherd.

I have three brief questions.

Mr. Minister, Manitoba's Future Forest Alliance, in the person of its president, Donald Sullivan, in his very thoughtful brief put forward the notion that there is a fundamental contradiction between sections 5 and 15, on the one hand, and sections 46, 47, and 48 on the other, and he gives an example in connection with large projects in the boreal forests.

Would you be agreeable to asking Mr. Connelly to examine this alleged contradiction, and if it turns out to be a substantive one, to propose to this committee a proper solution that would deal with this particular observation?

Mr. David Anderson: Yes, certainly I'd be happy to do that, Mr. Chairman. I believe the reference was to the Tolko case, which did not have triggers initially; later on, these triggers were discovered, by reason of the need to build a bridge over a river, to affect the Navigable Waters Protection Act. There was therefore federal involvement at that time. Certainly the alleged conflicts within the act itself will be looked at by Mr. Connelly.

The Chair: Thank you.

The next question has to do with a rather disturbing brief presented to this committee by the Inverhuron and District Association dealing with the issue of the Bruce Nuclear development. In their rather brief and succinct exposé, they made a number of recommendations, but basically they proposed certain deletions and certain definitions. Finally, they made a number of recommendations with respect to the public registry and how it should be amended.

Would you see merits in having this brief examined by your officials so that we can receive an assessment of the observations raised in this brief, which in essence deals with the impact on children and the observed epidemiological effects measured in terms of leukemia resulting, according to the presenters of this brief, from the nuclear power plant?

Mr. David Anderson: Certainly, Mr. Chairman.

The Canadian Nuclear Safety Commission is handling the Bruce used fuel storage facility. It is not unusual that something that has an environmental aspect is not handled by my department. For example, food inspection is handled by other departments. Pesticides, as you know, are handled by other departments, by Health. So this is not unusual.

I guess the real question is, if an organization believes the Canadian Nuclear Safety Commission has not done an adequate job, or that, because of its involvement in previous decisions, it is not the appropriate body to analyse this itself, and we were then called upon to look at it, of course we would, but they do have a comprehensive study process, and the assessment done was comprehensive.

Again, I would be happy to look at it, but I can't necessarily guarantee that my department would be the one that would do the assessment in final form. It might well be that the Canadian Nuclear Safety Commission would review it first and determine whether their procedures were adequate or not.

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The Chair: It would be sufficient if the agency were to examine the proposed amendments and inform this committee about their comments and feasibility.

Mr. David Anderson: Certainly I can take it up with the Nuclear Safety Commission, as you're suggesting, and see what their views are on the amendments. That would certainly be acceptable to me. I'd be quite happy to do that.

The Chair: Finally, my question is related to the question posed by your parliamentary secretary, who raised the Red Hill Creek decision not to appeal. If I understood you correctly, the decision not to appeal was made, apart from certain side effects, by the conclusion that the judicial decision would be uncertain, and therefore the government decided not to appeal.

Are we to conclude that it is the policy of the Government of Canada that it will not appeal unless it has absolute certainty that it will win the appeal?

Mr. David Anderson: Certainly not. That would be an inappropriate conclusion.

The Chair: Thank you.

Mr. Bigras.

[Translation]

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

With respect to Bill C-19, you are aware that the Cree want to be exempt from the provisions of the Canadian Environmental Assessment Act. This is due in part to the provisions of the James Bay and Northern Quebec Agreement. What they're actually calling for is a better nation-to-nation relationship between the Cree nation and the federal government.

Do you not think, on the basis of a nation-to-nation relationship, that the Cree people should not be subject to the provisions of the Canadian Environmental Assessment Act, particularly since the James Bay and Northern Quebec Agreement, which has already been signed by the federal government, already provides for special status for the Cree people, and, inevitably, environmental assessments as well.

[English]

Mr. David Anderson: Mr. Bigras, I would not support exempting a Cree territory from this legislation. The bill is a bill of general application across Canada. It applies throughout. Provinces have made similar requests and they have been rejected. It would be difficult to accept excluding this on Cree territory, as a result.

[Translation]

Mr. Bernard Bigras: Mr. Chairman, the Cree people are asking for a nation-to-nation relationship with the federal government.

I have a second question. In light of the nation-to-nation relationship that Quebec is hoping to achieve, would it not be more legitimate to accept that projects carried out in areas that are mainly under provincial jurisdiction, and that have been reviewed by national Quebec environmental impact studies not be examined again under the Canadian Environmental Assessment Act.

The Toulnoustouc case is crystal clear. The Quebec Environmental Public Hearings Office ruled on this matter, and it was re-examined. You know what happened. A green energy project was delayed in Quebec, even though a decision had been made on the basis of national assessment studies done in Quebec.

Thus, is it not important for the Canadian Environmental Assessment Act to recognize nations?

Mr. David Anderson: Mr. Bigras, I think that the best approach is cooperation between the two levels of government, the provincial and the federal level. There can be cooperation and reviews that minimize or eliminate the problems you mentioned. In the case of joint projects, we can draw on the skills and wisdom of the two levels of government. I think the provinces and the people of Canada, whatever their province, and people generally, benefit when the two levels of government are involved.

It is unfortunate that the Province of Quebec does not agree with this, but I hope that in the future, we will be able to have effective, joint environmental reviews without having a different process for the federal government.

As regards the Cree, I have here a quote from Matthew Coon Come, who is a Cree himself, but who is also the head of the Assembly of First Nations. He appeared before this committee and said:

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[English]

Certainly I would agree that there has to be some kind of national governing policy, because at times we as first nations may want to do certain things that may contravene certain legislation. The province also does the same thing. So you have to have some national standards.

[Translation]

That is the Grand Chief of the Assembly of First Nations, but also the former Grand Chief of the Crees who said it is important to have standards in Canada. That does not mean that we do not want to have closer cooperation with the Crees and with the Province of Quebec. I hope to achieve that, but the federal government prefers not to have a situation in which Canadian law does not apply in certain parts of the country.

[English]

The Vice-Chair (Mr. Bob Mills): Gentlemen, we have two more questions and we're running out of time. Could I ask members to make them as quickly as possible and the minister to keep his answers as brief as possible?

Mr. Comartin.

Mr. Joe Comartin: I want to go back to the Bruce Inverhuron project. Just in terms of the system working...and again, Mr. Minister, I don't see that the amendments to Bill C-19 are going to change anything in this regard.

What happened there was that the design itself was changed after the filing of the project documents, and then it was allowed right on through, as I understood it, to your office. It seemed to be a total denial of any kind of a due process, a fair process, by any analysis I've ever done of our accepted legal process. And I don't see Bill C-19 correcting any of that.

Are you satisfied with that process?

Mr. David Anderson: Well, no, Mr. Comartin, what I am satisfied with is that the Canadian Nuclear Safety Commission is coming to this committee, and that will be, I think, the most appropriate time to proceed. This, as you know, was the decision of a predecessor—it was not me who made the decision—and I think they're probably in a better position than I am to go into this matter with you.

Mr. Joe Comartin: But if those facts are right, the people in that community had no real opportunity to deal with what is a major project. Realistically, they didn't get their day in court--and I don't want to stretch that into the litigation side--or any kind of a fair process.

I guess what I'm asking is, if those facts are right, are you satisfied, as the minister, that the assessment process is working?

Mr. David Anderson: Well, there was a comprehensive study process, Mr. Comartin. I don't know whether you were aware of it at the time.

Mr. Joe Comartin: But the design changed after that process was under way and they--

Mr. David Anderson: And that's exactly the question, it seems to me, to put to the Canadian Nuclear Safety Commission. I don't know the extent of the design change. I don't know the implications with respect to the process of examination. That's the type of question I can't answer for you now, because I was expecting that question to be handled by the specific presentation here from the commission.

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The Vice-Chair (Mr. Bob Mills): We'll move on to Mr. Herron.

Mr. John Herron: My question is actually quite specific.

First, I have a micro-comment following up on where Ms. Karetak-Lindell left off, and the quote that you need to squeal if you're getting gored. Well, I think the people in Caledon and those involved with Manitoba's Future Forest Alliance feel like they were gored, and they were squealing, but no one was listening with respect to a panel review in that regard.

My question goes to this: here's an issue where something is mandatory that I believe should actually be discretionary, sir. You mentioned earlier that you're now able to prohibit activities until a project decision has been made. We think that's a very good thing, but you've failed to address the issue that is of great concern--namely, that this prohibition has a validity of a mere two weeks only, and there's a mandatory aspect in that you can only make this prohibition one time only.

Why would you deny yourself the discretion to be able to make a future prohibition and thereby provide some discretion to give yourself some more time? I don't know why, in that aspect, you'd want to make it a mandatory issue so you only have one crack at it for two weeks.

Mr. David Anderson: Certainly, Mr. Herron, I'm pleased that I have been able to persuade you that there are virtues to discretionary actions by ministers. I will turn, however, to Mr. Connelly to ask why I'm limiting my discretion in this regard. I'm delighted that you suggest it should be greater, but he will have to respond as to why we have put in that restriction.

Mr. Connelly.

Mr. Robert Connelly: Thank you, Minister.

The restriction of 14 days is there to--

Mr. John Herron: Only one time? That's the next question.

Mr. Robert Connelly: Yes, that's the way it is at the moment. We appreciate that the witnesses have brought this concern to our attention.

Mr. John Herron: You would accept an amendment to change this, then?

Mr. Robert Connelly: I'm not suggesting that. I'm saying it's something we're looking at now, Mr. Herron.

Mr. John Herron: Okay. We're looking for some good stuff.

Mr. David Anderson: The challenge, Mr. Herron, is to phrase an attractive amendment.

The Vice-Chair (Mr. Bob Mills): Thank you, Mr. Minister, for appearing. I don't believe there are any other questions, so thank you very much.

This meeting is adjourned.

Mr. David Anderson: Thank you, Mr. Mills.