ENVI Committee Meeting

MINUTES OF PROCEEDINGS

Meeting No. 11

Wednesday, December 11, 2002

The Standing Committee on Environment and Sustainable Development met at 3:50 p.m. this day, in Room 308, West Block, the Chair, The Hon. Charles L. Caccia, presiding.

Members of the Committee present: Roy Bailey, Bernard Bigras, The Hon. Charles L. Caccia, John Herron, Nancy Karetak-Lindell, Karen Kraft Sloan, Rick Laliberté, Gary Lunn, Bob Mills, Karen Redman, Julian Reed, Andy Savoy, Hélène Scherrer, Alan Tonks.

Acting Members present: Svend Robinson for Joe Comartin, Diane St-Jacques for Rick Laliberté.

In attendance: From the Research Branch of the Library of Parliament: Kristen Douglas and Tim Williams, analysts.

Witnesses: From the Canadian Environmental Assessment Agency: Robert G. Connelly, Vice-President, Policy Development; Heather Smith, Senior Counsel, Legal Services.

Pursuant to its Order of Reference of Monday, October 7, 2002, the Committee resumed consideration of Bill C-9, An Act to amend the Canadian Environmental Assessment Act (See Minutes of Proceedings, Thursday, November 7, 2002, Meeting No. 2).

The Committee resumed Clause-by-Clause consideration of the Bill.

On Clause 26, as amended,

The witnesses answered questions.

Clause 26, as amended, stood.

By unanimous consent, the Committee reverted to Clause 1.

Karen Redman moved, -- That Bill C-9, in Clause 1, be amended by

(a) replacing lines 19 to 27 on page 1 with the following:

"1998, c. 15, subpara. 50(b)(i)

(2) The portion of the definition "federal authority" in subsection 2(1) of the Act after paragraph (a) is replaced by the following:

(b) an agency of the Government of Canada, a parent Crown corporation, as defined in subsection 83(1) of the Financial Administration Act, or any other body established by or pursuant to an Act of Parliament that is ultimately accountable through a Minister of the Crown in right of Canada to Parliament for the conduct of its affairs,

(c) any department or departmental corporation set out in Schedule I or II to the Financial Administration Act, and

(d) any other body that is prescribed pursuant to regulations made under paragraph 59(e),

but does not include the Commissioner in Council or an agency or body of the Yukon Territory, the Northwest Territories or Nunavut, a council of the band within the meaning of the Indian Act, Export Development Canada, the Canada Pension Plan Investment Board, a Crown corporation that is a wholly-owned subsidiary, as defined in subsection 83(1) of the Financial Administration Act, The Hamilton"

(b) adding after line 3 on page 2 the following:

"(2.1) Subsection (2) comes into force on the day that is three years after the day on which this Act receives royal assent."

The question being put on the amendment, it was adopted.

Karen Redman moved, -- That Bill C-9, in Clause 1, be amended by adding after line 21 on page 2 the following:

"(6) Subsection 2(2) of the Act is replaced by the following:

Extended meaning of "administration of federal lands"

(2) In so far as this Act applies to Crown corporations, the expression "administration of federal lands" includes the ownership or management of those lands."

The question being put on the amendment, it was adopted.

By unanimous consent, the Committee reverted to Clause 5.

Karen Redman moved, -- That Bill C-9, in Clause 5, be amended by replacing lines 10 to 46 on page 3 and lines 1 to 11 on page 4 with the following:

"5. Section 8 of the Act is replaced by the following:

Assessments by certain Crown corporations

8. (1) A Crown corporation, as defined in subsection 83(1) of the Financial Administration Act, that is not a federal authority shall, if regulations have been made in relation to it under paragraph 59(j) and have come into force, ensure that, before it exercises a power or performs a duty or function referred to in any of paragraphs 5(1)(a) to (d) in relation to a project, an environmental assessment of the project under this section is conducted in accordance with those regulations as early as is practicable in the planning stages of the project and before irrevocable decisions are made.

Where a minister has no duty

(2) Notwithstanding section 5, a Minister of the Crown in right of Canada is not required to ensure that an environmental assessment of a project is conducted by reason only of that minister's authorization or approval under any other Act of Parliament or any regulations made under such an Act of the exercise of a power or performance of a duty or function referred to in paragraph 5(1)(a), (b) or (c) in relation to the project by a Crown corporation within the meaning of the Financial Administration Act.

Precedence of federal authority

(3) If a Crown corporation is the proponent of a project and proposes to do any act or thing that commits it to carrying out the project in whole or in part and a federal authority other than the Crown corporation is required under paragraph 5(1)(d) to ensure the conduct of an environmental assessment of that project, the Crown corporation is not required to ensure that an environmental assessment of the project is conducted but, for greater certainty, it may accept a delegation from the federal authority under section 17."

The question being put on the amendment, it was adopted.

By unanimous consent, the Committee reverted to Clause 30, as amended.

Karen Redman moved, -- That Bill C-9, in Clause 30, be amended by

(a) replacing lines 28 to 37 on page 25 with the following:

"(c.1) exempting, in replacement of exemptions made under paragraph (c), in relation to any Crown corporation to which this Act applies or in relation to the Canadian International Development Agency, any projects or classes of projects to be carried out outside Canada and any federal lands from the requirement to conduct an environmental assessment under this Act that"

(b) adding after line 47 on page 25 the following:

"(2.1) Paragraph 59(f) of the Act is replaced by the following:

(f) prescribing, for the purposes of paragraph 5(1)(d), the provisions of any Act of Parliament or any instrument made under an Act of Parliament;"

(c) replacing lines 15 to 17 on page 26 with the following:

"federal lands and that are subject to an environmental assessment whose conduct a Crown corporation to which this Act applies must ensure, in prescribed"

(d) replacing lines 28 to 30 on page 26 with the following:

"to be satisfied by the environmental assessment of those projects whose conduct the Crown corporation ensures;"

(e) replacing lines 35 to 46 on page 26 and lines 1 to 27 on page 27 with the following:

"(j) for the purposes of section 8, designating Crown corporations that are not federal authorities individually or by class and respecting the manner in which those corporations or classes of corporations conduct environmental assessments of, and follow-up programs for, projects, as well as any action to be taken in respect of projects during the assessment process, which manners and actions may vary by corporation or class of corporation;

(j.1) for the purposes of section 8, respecting the application to a Crown corporation that is designated, or is a member of a class that is designated, under a regulation made under paragraph (j) of the laws from time to time in force in any province;

(j.2) varying or excluding any procedure or requirement of this Act or the regulations as it applies to Crown corporations that are federal authorities, individually or by class;

(j.3) for projects to be carried out outside Canada and any federal lands, prescribing, in relation to Crown corporations to which this Act applies, any physical activity or class of physical activities in replacement of those prescribed under paragraph (b);"

The question being put on the amendment, it was adopted.

By unanimous consent, the Committee reverted to Clause 26, as amended.

By unanimous consent, Karen Redman moved, -- That Bill C-9, in Clause 26, be amended by replacing lines 14 to 42 on page 21, lines 1 to 44 on page 22, lines 1 to 40 on page 23 and lines 1 to 26 on page 24 with the following:

"Establishment of Registry

Canadian Environmental Assessment Registry

55. (1) For the purposes of facilitating public access to records relating to environmental assessments and providing notice in a timely manner of the assessments, there shall be a registry called the Canadian Environmental Assessment Registry, consisting of an Internet site and project files.

Right of access

(2) The Registry shall be operated in a manner to ensure convenient public access to it. This right of access to the Registry is in addition to any right of access provided under any other Act of Parliament.

Printed copy

(3) For the purpose of facilitating public access to records included in the Registry, in the case of a screening or comprehensive study, the Federal Environmental Assessment Coordinator and, in any other case, the Agency shall ensure that a printed copy of any such record is provided in a timely manner on request.

Internet Site

Establishment and maintenance

55.1 (1) The Agency shall, in accordance with this Act and the regulations, establish and maintain an Internet site to be generally accessible through what is commonly referred to as the Internet.

Contents

(2) Subject to subsection 55.5(1), the Internet site shall include

(a) within 14 days after the commencement of an environmental assessment, notice of its commencement, except where a class screening report is used under subsection 19(5) or (6);

(b) an agreement contemplated by subsection 12.4(3);

(b.1) a description of the scope of the project in relation to which an environmental assessment is to be conducted, as determined under section 15;

(c) a statement of the projects in respect of which a class screening report is used under subsection 19(5) or (6);

(d) any declaration referred to in subsection 19(4) and the report to which it relates or a description of how a copy of the report may be obtained, and any declaration referred to in subsection 19(9);

(e) notice of termination of an environmental assessment by a responsible authority under section 26;

(f) notice of termination of an environmental assessment by the Minister under section 27;

(g) any public notices that are issued by responsible authorities or the Agency to request public input into an environmental assessment;

(h) notice of a decision of the Minister to refer a project under paragraph 21.1(1)(a);

(i) where the responsible authority, in accordance with subsection 18(3), gives the public an opportunity to participate in the screening of a project or where the Minister, under paragraph 21.1(1)(a), refers a project to the responsible authority to continue a comprehensive study, a description of the factors to be taken into consideration in the environmental assessment and of the scope of those factors or an indication of how such a description may be obtained;

(j) the screening or comprehensive study report taken into consideration by a responsible authority for the purpose of a decision under section 20 or 37 or a description of how a copy of the report may be obtained, except where a class screening report is used under subsection 19(5) or (6);

(k) an environmental assessment decision statement under subsection 23(1) and any request made under subsection 23(2);

(l) notice of the referral of a project to a mediator or review panel;

(m) the terms of reference of a mediation or a review panel;

(n) if the Minister has ordered the conclusion of a mediation under subsection 29(4), notice of the order;

(o) a report of a mediator or review panel or a summary of the report;

(p) a response under paragraph 37(1.1)(a) to the report of a mediator or review panel;

(q) except where a class screening report is used under subsection 19(5) or (6), the decision of a responsible authority, made under section 20 or 37 concerning the environmental effects of the project, and a statement of any mitigation measures the implementation of which the responsible authority took into account in making its decision;

(q.1) a notice stating whether or not, pursuant to subsection 38(1), a follow-up program for the project is considered appropriate;

(r) a description summarizing any follow-up program and its results or an indication of how a full description of the program and its results may be obtained;

(s) any other information that the responsible authority or the Agency, as the case may be, considers appropriate, including information in the form of a list of relevant documents in which case a description of how they may be obtained shall be provided; and

(t) any other record or information prescribed under paragraph 59(h.1).

Form and manner of Internet site

(3) The Agency shall determine and notify the public

(a) what the form of the Internet site is to be and how it is to be kept;

(b) how records and information are to be included in it;

(c) what information must be contained in any record referred to in subsection (2);

(d) what records and information are to be included in the Internet site, in addition to any record referred to in subsection (2);

(e) when information must be included in the Internet site, provided such inclusion is at least 30 days before any decision is taken by a responsible authority, the Minister or the Agency;

(f) when information may be removed from the Internet site; and

(g) how access to the Internet site is to be provided.

Duty to contribute records - Agency

55.2 (1) The Agency shall ensure that the records referred to in paragraphs 55.1(2)(b), (d), (h) and (k) are included in the Internet site.

In the case of mediation or review panel

(2) The Agency shall, in the case of a mediation or an assessment by a review panel, ensure that the records referred to in paragraphs 55.1(2)(b.1), (f), (g), (l), (m), (n), (o), (p) and (s) and any record or information referred to in paragraph 55.1(2)(t) are included in the Internet site.

Duty to contribute records - responsible authorities

55.3 (1) A responsible authority shall ensure that the records referred to in paragraphs 55.1(2)(a), (e), (i), (j), (q), (q.1) and (r) and, in the case of a screening or a comprehensive study, the records referred to in paragraphs 55.1(2)(b.1), (g) and (s) and any record or information referred to in paragraph 55.1(2)(t), are included in the Internet site.

Statement - paragraph 55.1(2)(c)

(2) A responsible authority shall ensure that the statement referred to in paragraph 55.1(2)(c) is included in the Internet site every three months or with any other greater frequency to which it agrees with the Agency.

Project Files

Establishment and maintenance

55.4 (1) In respect of every project for which an environmental assessment is conducted, a project file shall be established and maintained, in accordance with this Act and the regulations,

(a) by the responsible authority from the commencement of the environmental assessment until any follow-up program in respect of the project is completed; and

(b) where the project is referred to a mediator or a review panel, by the Agency from the appointment of the mediator or the members of the review panel until the report of the mediator or review panel is submitted to the Minister.

Contents of project file

(2) Subject to subsection 55.5(1), a project file shall contain all records produced, collected or submitted with respect to the environmental assessment of the project, including

(a) all records included in the Internet site;

(b) any report relating to the assessment;

(c) any comments filed by the public in relation to the assessment;

(d) any records relating to the need for, design of or implementation of any follow-up program; and

(e) any documents requiring mitigation measures to be implemented.

General

Categories of information that may be made publicly available

55.5 (1) The Registry shall contain a record, part of a record or information only if

(a) it has otherwise been made publicly available; or

(b) the responsible authority, in the case of a record under its control, or the Minister, in the case of a record under the Agency's control,

(i) determines that it would have been disclosed to the public in accordance with the Access to Information Act if a request had been made in respect of that record under that Act at the time the record came under the control of the responsible authority or the Agency, including any record that would be disclosed in the public interest pursuant to subsection 20(6) of that Act, or

(ii) believes on reasonable grounds that it would be in the public interest to disclose it because it is required for the public to participate effectively in the environmental assessment - other than any record the disclosure of which would be prohibited under section 20 of the Access to Information Act.

Applicability of sections 27, 28 and 44 of Access to Information Act to third party information

(2) Sections 27, 28 and 44 of the Access to Information Act apply to any information described in subsection 27(1) of that Act that the Agency or a responsible authority intends be included in the Registry with any modifications that the circumstances require, including the following:

(a) the information is deemed to be a record that the head of a government institution intends to disclose; and

(b) any reference to the person who requested access shall be disregarded.

Deemed application

(3) This section applies with respect to a responsible authority that is a parent Crown corporation but is not a government institution within the meaning of the Access to Information Act as if it were such a government institution.

Protection from civil proceeding or prosecution

55.6 Notwithstanding any other Act of Parliament, no civil or criminal proceedings lie against a responsible authority, the Agency or the Minister, or against any person acting on behalf of them or under their direction, or against a director or officer of a Crown corporation to which this Act applies and no proceedings lie against the Crown, the Agency or any responsible authority, for the disclosure in good faith of any record or any part of a record pursuant to this Act or for any consequences that flow from that disclosure or for the failure to give any notice required under section 27 or 28 of the Access to Information Act if reasonable care is taken to give the required notice."

The question being put on the amendment, it was adopted.

The Chair ruled that the following amendments were consequential to the previous amendment.

-- That Bill C-9, in Clause 8, be amended by replacing lines 29 and 30 on page 8 with the following:

"fulfilment of their obligations under subsection 55.3(1), paragraph 55.4(1)(a), and section 55.5;"

Accordingly, the amendment was adopted.

-- That Bill C-9, in Clause 30, be amended by replacing lines 1 (third line) to 8 on page 26 with the following:

"(h) respecting the dissemination by responsible authorities of information relating to projects and the environmental assessment of projects and the establishment, maintenance and operation of project files referred to in section 55.4, including facilities to enable the public to examine physical or electronic records contained in the files, the time and manner in which those records may be examined or copied by the public and the transfer and retention of those records after the completion of any follow-up program;

(h.1) prescribing records or information to be included in the Internet site by the Agency or a responsible authority;

(h.2) respecting the charging of fees for providing copies of documents contained in the Registry;

(h.3) for the purposes of subsection 38(1) or"

Accordingly, the amendment was adopted.

-- That Bill C-9, in Clause 30, be amended

(a) by replacing line 22 on page 29 with the following:

"section 55.6 to the Canadian Internation-"

(b) by replacing line 26 on page 29 with the following:

"provisions of sections 55 to 55.5 in their"

Accordingly, the amendment was adopted.

Clause 26, as amended, carried.

On Clause 30, as amended,

John Herron moved, -- That Bill C-9, in Clause 30, be amended

(a) by replacing, in the English version, line 20 on page 25 with the following:

“reasons of national security, or”

(b) by replacing, in the English version, line 24 on page 25 with the following:

“environmental effects;”

(c) by deleting lines 25 to 27 on page 25.

After debate, the question being put on the amendment, it was negatived by a show of hands.

Clause 30, as amended, carried on division.

By unanimous consent, the Committee reverted to Clause 8, as amended.

Svend Robinson moved, -- That Bill C-9, in Clause 8, be amended by adding after line 11 on page 10 the following:

“(2) The federal environmental assessment coordinator may, under subsection (1), request that any relevant reports, information or other materials be distributed to identified specialists, experts, stakeholders and other interested parties, and that any relevant reports, information or other materials be made accessible to the public for the purposes of public participation.”

After debate, the question being put on the amendment, it was negatived on the following recorded division:

Clause 8, as amended, carried.

By unanimous consent, Clause 5, as amended, carried.

By unanimous consent, the Committee reverted to Clause 1, as amended.

Svend Robinson moved, -- That Bill C-9, in Clause 1, be amended

(a) by replacing line 5 on page 1 with the following:

""study", "environment", "environmental effect" and "exclusion list" in subsection"

"environmental effect" means, in respect of a project,

(a) any change that the project may cause in the environment in the short-term and long-term, including any change in health and socio-economic conditions, any change that is likely to result from the project in combination with other projects or activities that have been or are being carried out or are reasonably anticipated and any change in physical and cultural heritage, in the aboriginal or treaty rights of Aboriginal peoples, including the use of lands and resources by aboriginal persons, or in any structure, site or thing that is of historial, archaeological, paleontological or architectural significance; and

(b) any change to the project that may be caused by the environment, whether any such change occurs within or outside Canada."

(b) by adding after line 18 on page 2 the following:

""aboriginal government" means a council of a band within the meaning of the Indian Act or another governing body established under an agreement between Her Majesty in right of Canada and aboriginal people;"

(c) by adding after  line 21 on page 2 the following:

""significant adverse environmental effect " means an environmental effect that:

(a) contravenes an applicable environmental legal standard;

(b) displaces or endangers a designated or protected environmental feature or population;

(c) displaces a human community; or

(d) causes a proven chronic effect on human health."

After debate, the question being put on the amendment, it was negatived by a show of hands.

Bernard Bigras moved, -- That Bill C-9, in Clause 1, be amended by replacing line 15 on page 2 with the following:

“ry, the Northwest Territories or Nunavut, and lands that are described in An Act approving the Agreement concerning James Bay and Northern Quebec (Quebec), ”

After debate, the question being put on the amendment, it was negatived on the following recorded division:

Karen Redman moved, -- That Bill C-9, in Clause 1, be amended by adding after line 21 on page 2 the following:

"(5) Section 2 of the Act is amended by adding the following after subsection (2):

For greater certainty

(3) For greater certainty, any construction, operation, modification, decommissioning, abandonment or other undertaking in relation to a physical work and any activity that is prescribed or is within a class of activities that is prescribed for the purposes of the definition "project" in subsection (1) is a project for at least so long as, in relation to it, a person or body referred to in subsection 5(1) or (2), 8(1.1), 9(2), 9.1(2), 10(1) or 10.1(2) is considering, but has not yet taken, an action referred to in those subsections."

After debate, the question being put on the amendment, it was adopted on division.

Clause 1, as amended, carried.

Clauses 33 and 34 carried.

The Title carried.

Bill C-9, as amended, carried.

ORDERED, -- That the Chair report Bill C-9 with amendments to the House as the First Report of the Committee.

ORDERED, -- That Bill C-9, An Act to amend the Canadian Environmental Assessment Act, as amended, be reprinted for the use of the House of Commons at Report Stage.

At 5:55 p.m., the Committee adjourned to the call of the Chair.

Eugene Morawski
Clerk of the Committee