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37th PARLIAMENT, 2nd SESSION

Standing Committee on Environment and Sustainable Development

EVIDENCE

CONTENTS

Wednesday, December 4, 2002

1540

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

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

The Chair

Mrs. Karen Kraft Sloan

The Chair

Mrs. Karen Kraft Sloan

The Chair

Mrs. Karen Kraft Sloan

The Chair

Mrs. Karen Kraft Sloan

1545

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

The Chair

Mr. Gary Lunn

Mrs. Karen Kraft Sloan

Mr. Gary Lunn

The Chair

Mrs. Karen Kraft Sloan

The Chair

Mr. Gary Lunn

Mrs. Karen Kraft Sloan

The Chair

Mrs. Karen Kraft Sloan

The Chair

Mrs. Karen Kraft Sloan

The Chair

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

1550

The Chair

Mr. Robert Connelly

Ms. Heather Smith (Senior Counsel, Canadian Environmental Assessment Agency)

The Chair

Ms. Heather Smith

The Chair

Mr. Robert Connelly

Ms. Heather Smith

The Chair

Ms. Heather Smith

1555

Mr. Gary Lunn

Ms. Heather Smith

Mr. Gary Lunn

The Chair

Ms. Heather Smith

The Chair

Ms. Heather Smith

The Chair

Ms. Heather Smith

The Chair

Ms. Heather Smith

The Chair

Ms. Heather Smith

The Chair

Ms. Heather Smith

1600

The Chair

Ms. Heather Smith

The Chair

Ms. Heather Smith

Mr. Roy Bailey (Souris—Moose Mountain, Canadian Alliance)

Ms. Heather Smith

The Chair

Ms. Heather Smith

The Chair

Mrs. Karen Kraft Sloan

Ms. Heather Smith

Mrs. Karen Kraft Sloan

Ms. Heather Smith

Mrs. Karen Kraft Sloan

The Chair

Ms. Heather Smith

Mrs. Karen Kraft Sloan

Ms. Heather Smith

Mrs. Karen Kraft Sloan

Ms. Heather Smith

1605

Mrs. Karen Kraft Sloan

The Chair

Mrs. Karen Kraft Sloan

Ms. Heather Smith

Mrs. Karen Kraft Sloan

Ms. Heather Smith

Mrs. Karen Kraft Sloan

Ms. Heather Smith

Mrs. Karen Kraft Sloan

Ms. Heather Smith

Mrs. Karen Kraft Sloan

Ms. Heather Smith

The Chair

Ms. Heather Smith

The Chair

Ms. Heather Smith

The Chair

Ms. Heather Smith

The Chair

Ms. Heather Smith

The Chair

Ms. Heather Smith

1610

Mrs. Karen Kraft Sloan

Ms. Heather Smith

Mr. Gary Lunn

Ms. Heather Smith

Mr. Gary Lunn

The Chair

Ms. Heather Smith

The Chair

Ms. Heather Smith

The Chair

Ms. Heather Smith

Mr. Gary Lunn

1615

Ms. Heather Smith

Mr. Gary Lunn

Ms. Heather Smith

The Chair

Ms. Heather Smith

The Chair

Ms. Heather Smith

The Chair

Ms. Heather Smith

1620

The Chair

Mr. Gary Lunn

Mr. Julian Reed (Halton, Lib.)

The Chair

Mr. Gary Lunn

The Chair

Mr. Roy Bailey

1625

Ms. Heather Smith

The Chair

Mrs. Karen Redman (Parliamentary Secretary to the Minister of the Environment)

The Chair

Mr. Julian Reed

The Vice-Chair (Mrs. Karen Kraft Sloan)

Mr. Charles Caccia

1630

The Vice-Chair (Mrs. Karen Kraft Sloan)

Mrs. Karen Redman

1635

Mr. Robert Connelly

The Vice-Chair (Mrs. Karen Kraft Sloan)

Mr. Roy Bailey

Mrs. Karen Redman

Mr. Roy Bailey

Ms. Heather Smith

Mr. Roy Bailey

Ms. Heather Smith

Mr. Roy Bailey

The Vice-Chair (Mrs. Karen Kraft Sloan)

Ms. Heather Smith

The Vice-Chair (Mrs. Karen Kraft Sloan)

Ms. Heather Smith

The Vice-Chair (Mrs. Karen Kraft Sloan)

Ms. Heather Smith

The Vice-Chair (Mrs. Karen Kraft Sloan)

Mr. Julian Reed

1640

Ms. Heather Smith

Mr. Julian Reed

The Vice-Chair (Mrs. Karen Kraft Sloan)

Ms. Heather Smith

The Vice-Chair (Mrs. Karen Kraft Sloan)

Ms. Heather Smith

The Vice-Chair (Mrs. Karen Kraft Sloan)

Ms. Heather Smith

The Vice-Chair (Mrs. Karen Kraft Sloan)

Mr. Charles Caccia

1645

The Vice-Chair (Mrs. Karen Kraft Sloan)

Mr. Roy Bailey

The Vice-Chair (Mrs. Karen Kraft Sloan)

Mrs. Karen Redman

The Vice-Chair (Mrs. Karen Kraft Sloan)

Mr. John Herron (Fundy—Royal, PC)

The Vice-Chair (Mrs. Karen Kraft Sloan)

Mr. Charles Caccia

1650

The Vice-Chair (Mrs. Karen Kraft Sloan)

The Chair

Mr. Gary Lunn

The Chair

Mr. Gary Lunn

Mrs. Karen Redman

The Chair

Mr. Gary Lunn

1655

The Chair

Mr. Gary Lunn

The Chair

Mr. Gary Lunn

The Chair

Mr. Gary Lunn

The Chair

Mrs. Karen Redman

The Chair

Mr. Robert Connelly

1700

Mr. Gary Lunn

Mr. Robert Connelly

Mr. Gary Lunn

Mr. Robert Connelly

1705

The Chair

Mr. Brian Masse (Windsor West, NDP)

The Chair

Mr. Brian Masse

The Chair

Mr. Serge Cardin (Sherbrooke, BQ)

The Chair

Mrs. Karen Redman

Mr. Serge Cardin

The Chair

Mrs. Karen Redman

Ms. Heather Smith

1710

Mr. Serge Cardin

Ms. Heather Smith

Mr. Serge Cardin

Ms. Heather Smith

Mr. Serge Cardin

Ms. Heather Smith

Mr. Serge Cardin

1715

The Chair

Mr. Gary Lunn

The Chair

Mr. Gary Lunn

The Chair

Mr. Gary Lunn

The Chair

Mr. Gary Lunn

The Chair

Mr. Gary Lunn

The Chair

Mr. Gary Lunn

The Chair

Mr. Gary Lunn

The Chair

Mrs. Karen Redman

The Chair

1720

Mr. Brian Masse

The Chair

Ms. Heather Smith

The Chair

Ms. Heather Smith

The Chair

Mrs. Karen Redman

The Chair

Mrs. Karen Redman

The Chair

Mrs. Karen Redman

The Chair

Mrs. Karen Redman

The Chair

Mrs. Karen Redman

The Chair

1725

Mr. Gary Lunn

The Chair

Mr. Gary Lunn

The Chair

Mrs. Karen Redman

The Chair

Mrs. Karen Redman

The Chair

CANADA

Standing Committee on Environment and Sustainable Development

NUMBER 007

2nd SESSION

37th PARLIAMENT

EVIDENCE

Wednesday, December 4, 2002

[Recorded by Electronic Apparatus]

¹ (1540)

[Translation]

The Chair (Mr. Charles Caccia (Davenport, Lib.)): Good day. We continue with the task at hand.

[English]

Yesterday we started wrestling with the labyrinth surrounding the monster called G-23, and we brought it so far as dealing with the Bloc...

Mrs. Karen Kraft Sloan (York North, Lib.): Point of order, Mr. Chair.

The Chair: Yes.

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

Before we get into this discussion, I just want, from a process point of view, to understand from the officials what will be happening with all of these amendments regarding the replacement of “assessment of environmental effect” with “environmental assessment”.

As you know, the government gave us a chart indicating where they would be willing to replace “assessment of environmental effect” with “environmental assessment”. If members are willing to take out their charts, they will realize that a number of--

The Chair: If you allow me to complete my little overture, I will arrive at exactly that, as well.

Mrs. Karen Kraft Sloan: That's excellent, Mr. Chair.

The Chair: If I may be allowed, therefore, to continue....

Mrs. Karen Kraft Sloan: My fear was that you might head down a substantive discussion road, which would preclude my ability to have this problem solved. As you know, it's going to take quite a while to go through the discussion on the registry.

The Chair: All right. We'll take that into account as well, of course.

I want to welcome the newcomers to the committee.

[Translation]

I'd like to welcome our colleagues who are here for the first time.

[English]

In the work we arrived at yesterday, we managed to deal with the Bloc Québécois amendment 11, Karen Kraft Sloan's amendment 18, and the Alliance amendment 14. That was it.

Today we will be the beneficiaries, I hope, of an amendment by the government that is rather complex and has already triggered a point of order. Therefore, before we go further into this labyrinth surrounding G-23, it would be helpful to have some explanations from the officials, along the lines suggested by the vice-chair. We would also like them to confirm that the amendment that will be distributed today will take care of L-2, PC-21, and CA-18, as we were told. Then there are implications regarding the registry involved in this committee.

Madam Kraft Sloan would like to make another observation, so she has the floor.

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

While I share your concerns on the government amendment on the registry and how the other amendments might be incorporated into it, I was actually referring to another matter. However, I will address the registry issue right now, and then speak to the other matter, if you don't mind.

Because the members haven't even seen the registry amendment, and we all know this business of incorporating amendments into a large amendment is a very tricky sort of thing, it would only be fair to stand that section down and have an opportunity to take a look at it overnight.

¹ (1545)

Mr. Gary Lunn (Saanich—Gulf Islands, Canadian Alliance): Might I make a quick point on that same point, Mr. Chair?

The Chair: Let her finish. One at a time.

Mr. Gary Lunn: Okay. It's on the same point.

Mrs. Karen Kraft Sloan: I'm certainly willing to hear other comments on this.

Mr. Gary Lunn: Really briefly--

The Chair: Have you completed your point?

Mrs. Karen Kraft Sloan: No, I have a second point. If Mr. Lunn would like to make a point on my first point, we're going to sound like “Who's on first” very shortly, but that's okay.

The Chair: Just a moment. Text is being distributed now. The suggestion is being made that people be given a chance to look at it overnight.

Mr. Lunn.

Mr. Gary Lunn: I concur with that. The only thing I would say, because we do need an opportunity to look at it and obviously can't just deal with it, I would like to hear the officials spend five or ten minutes explaining how they've incorporated all these sections they've referred to, give us their explanation, go through it and then stand it down until tomorrow. My point is that I wanted the officials' comments on it today, so we can digest it tonight.

Mrs. Karen Kraft Sloan: Mr. Chair, I'm certainly—

The Chair: Madam Kraft Sloan on a second point.

Mrs. Karen Kraft Sloan: Thank you.

In response to what Mr. Lunn said on the first point--because I believe, if I can be so bold as to suggest, Mr. Chair, that's kind of the point we're on right now--I think it would be very useful for the officials to go through this new amendment. However, when these things are gone through without proper debate, what often happens is that members' positions may be established in a discussion that is not a full discussion. The problem in not having a full discussion is that we haven't had a proper opportunity to analyze the material.

If we're going to proceed with what Mr. Lunn has suggested, then I would implore members to maintain an open mind and allow us an opportunity to bring other arguments forward on Thursday, so we have a good--

A voice: May I respond to the point of order?

Mrs. Karen Kraft Sloan: It's not a point of order, Mr. Chair--

The Chair: Exactly! It was a suggestion.

Mrs. Karen Kraft Sloan: It's not a point of order, Mr. Chair. I was adding on to what Mr. Lunn had to say.

On my second point, Mr. Chair, if I may be so bold as to bring forward a second point, I was referring to the chart the officials had prepared with regard to a number of amendments that Mr. Comartin had brought forward. This has to do with Mr. Comartin's amendments regarding the replacement of “assessment of environmental effects” with “environmental assessment”.

In this particular chart, the officials have identified sections of the act where they feel this would be appropriate. For example, they have identified clause 5 in Bill C-9, and they say a new motion is required. They also say, in clause 6, that they have to reopen G-5 to make the change.

I wanted to know if the officials were bringing this forward and, as our researcher has pointed out, it may well be in this new package. I'm only trying to identify when this issue is going to be dealt with.

The Chair: Mr. Connelly, you look puzzled, and I'm sure you can clarify a number of things. Evidently you're in charge now of dispelling all sorts of confused thinking around this table. Therefore, you have the floor.

Mr. Robert Connelly (Vice-President, Canadian Environmental Assessment Agency): Thank you, Mr. Chairman. I hadn't appreciated that my puzzled look would draw your attention that way.

In response to Ms. Kraft Sloan's comment about the chart, this chart was handed out to members, I believe, two weeks ago. This is our proposal on how we might be able to respond to the proposal by Mr. Comartin to replace the term “assessment of environmental effects” with “environmental assessment”. There are some places where we felt such a replacement could occur very easily, and others where we felt we couldn't accept the change. We'd be glad to explain why.

We are ready, obviously, to discuss it at any time, Mr. Chairman. I believe that was Mr. Herron's proposal, so I leave it to you to decide the appropriate timing.

¹ (1550)

The Chair: Are there any other comments?

Mr. Lunn has suggested that we defer until tomorrow morning the examination of the package that was distributed. It is identified by the title “Change to 9(1)” on the front page, so that we know what we are talking about. The clerk informs me that he will have these pages renumbered so that they will fit into our growing collection. That means we can now put this on the back burner.

Mr. Connelly, in this new package you have distributed, is there an amendment to clause 25?

Mr. Robert Connelly: Let me defer to Ms. Smith on that one, Mr. Chairman. We'll verify that.

Ms. Heather Smith (Senior Counsel, Canadian Environmental Assessment Agency): Yes, there is an amendment to clause 25.

The Chair: Clauses 25 and 26?

Ms. Heather Smith: Yes.

There's a motion just before the motion that replaces G-23, and at the top of the page I've written “rewritten ss 54(3)”. That is in response to two motions in our book: NDP-46 and KS-17. They both seem to be aimed at trying to clarify subsection 54(3) of the act. When you look at subsection 54(3), you can understand why they wanted to do that.

The Chair: Thank you.

Before we start with clause 27, which seems to be the first clause available that we could tackle without difficulty, could Mr. Connelly take the members of this committee through the bundle of amendments, which has been circulated, so as to make it easier for members to be prepared tomorrow morning?

Mr. Robert Connelly: Mr. Chairman, I will call on Ms. Smith to take us through that, because she has been working carefully with the drafters.

Ms. Heather Smith: Mr. Chair, would you like me to take you through every motion?

The Chair: Yes, please.

Ms. Heather Smith: The vast majority of these motions are aimed at addressing the provisions that are set out in the chart. You'll notice, however, there are some that are notably absent related to clause 5, section 8 of the act. There will be motions coming on that at some point, I expect, but they're not ready yet.

The first motion you have in your package amends clause 6 and section 9 of the act. That relates to the power to make regulations for port authorities. So those are the first two pages, one in French and one in English.

Just for the ease of people as they're going through this big pile of papers, the government drafters have a particular way of numbering their motions. It makes sense once you understand the code. You see either an “e” or an “f” at the top of the page. That's for English and French. The next number you see is the clause number of the bill, so 006 is clause 6. The next number is the page number, and at the end is the line number in the bill. So you can follow the motions all the way through to figure out where they are. But for ease I also wrote at the top what it was getting at.

The second motion has to do with changing “assessment of environmental effects”.

¹ (1555)

So those are the first two motions. In the third motion, it's the same change, but to proposed subsection 9.1(1) of the act, as noted at the top of the page.

In the next one, it's the same change, but to proposed subsection 9.1(2).

The next one, again, is to change “assessment of the environmental effects” to “environmental assessment”. This particular motion would require reopening a motion that the committee has already passed, which was amendment G-5. We rewrote the motion to make that change.

Mr. Gary Lunn: Which page are you on?

Ms. Heather Smith: We're on page e006-006.08a. I'll read that number off every time I turn the page.

Mr. Gary Lunn: Hang on a minute. I'm not with you.

The Chair: Would you mind starting from the beginning, Madame Smith, and take us through amendment by amendment?

Ms. Heather Smith: Okay.

At the very top of the page it says “Change to 9(1)”. The second page is the French version.

The Chair: Yes, those can be put together, but in each case, can you give us the effect of the amendment?

Ms. Heather Smith: Yes, it's one in the package of amendments that Madame Kraft Sloan referred to in this famous chart. It is aimed at making changes to section 9 of the act, which deals with port authorities. The only effect of the change would be to change the expression “assessment of environmental effects” to “environmental assessment”.

[Translation]

In the French version, the words “évaluation des effets environnementaux”are being replaced with “évaluation environmentale”, an expression defined in the act.

[English]

The Chair: So we're proceeding in conformity with--

Ms. Heather Smith: With the chart.

The Chair: —where it reads “new motion required”.

Ms. Heather Smith: Yes, that's right.

The Chair: In other words, that's what you are now delivering on.

Ms. Heather Smith: That's right.

The Chair: Fine, and then...

Ms. Heather Smith: So those are the first two pages, and the first motion is to change proposed subsection 9(1).

The next page is e006-004.30a. It's a change to proposed subsection 9(2). It's the same kind of change. This particular change is the same as the first part of amendment PC-4.

The next page after that is the French version.

So then we move to e006-005.17a. That's a change to proposed section 9.1 for the act. That deals with power to make regulations for prescribed authorities, like airport authorities.

º (1600)

The Chair: So it's proposed subsection 9.1(1)—

Ms. Heather Smith: That's right.

The Chair: —which is different from proposed section 9.1, which you read at the beginning.

Ms. Heather Smith: That's right; that was proposed subsection 9(1). There is a regime under proposed section 9 and a regime under proposed section 9.1.

The next page is a French version.

The next new motion is e006-005.23.

Mr. Roy Bailey (Souris—Moose Mountain, Canadian Alliance): That's e006-005.23a.

Ms. Heather Smith: Yes.

It's the changes to proposed subsection 9.1(2). It's the same change. We're changing the term “assessment of environmental effects” to “environmental assessment”.

The Chair: Next.

Ms. Heather Smith: The next is the French page, then I'm turning to the next English motion, which is e006-006.08a. That could change to subsections 10(1) and 10(2). This is a motion we've already dealt with--it was motion G-5--but it didn't have the change of the term “assessment of environmental effects” to “environmental assessment”. So the only change to G-5 is that change, but this would require reopening G-5 to make that change.

The Chair: Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: Just to be very clear here, this fits with the line on the side.

Ms. Heather Smith: Yes, the red lining.

Mrs. Karen Kraft Sloan: The text here has a line. That was G-5, then. Is that correct?

Ms. Heather Smith: That's right, yes.

Mrs. Karen Kraft Sloan: Okay.

The Chair: Next.

Ms. Heather Smith: Overall we would find the red lining and underlining confusing in some of these motions.

Mrs. Karen Kraft Sloan: That's the reason why you reproduce so much text in these sections, because you already have a motion and then this fixing up.

Ms. Heather Smith: Yes, just reopen the same motion. But there's no other change to it other than that change.

Mrs. Karen Kraft Sloan: Okay.

Ms. Heather Smith: I'm turning past the French version. I'm now on motion e006-006.24a. Again it's the same type of change from “assessment of environmental effects” to “environmental assessment”. But it's the change to subsection 10.1(1). This is the regime that allows for the environmental assessment process to be varied for CIDA.

The next motion after that is motion e010-010.41a. This is a change to subsection 18(3). It's part of a government counter-proposal to motion L3. If you were to consider this and accept it, it would require reopening clause 10 to do it, because we closed that clause.

I'm turning past the French version of that. I'm now on e020-018.11a. This is another one of a long series of amendments to change “assessment of environmental effects” to “environmental assessment”. This particular provision isn't in the bill, but the section is open.

º (1605)

Mrs. Karen Kraft Sloan: Just for verification.

The Chair: Yes, Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: Thank you.

So we're looking at e020-018.11a.

Ms. Heather Smith: Yes.

Mrs. Karen Kraft Sloan: So what is the text beside the line again?

Ms. Heather Smith: The reason why there's a line on the side is because any time you add new text to the bill you're supposed to red-line it—this is a red line even though it's black—to indicate that it's new to the bill. It's the text of the act, and the only change to the text of the act is to change the expression “assessment of environmental effects” to the expression “environmental assessment”. That's the only change.

Mrs. Karen Kraft Sloan: No, I realize that this text beside the line is new text. But is this text that has been amended? We have amended the bill with this section.

Ms. Heather Smith: This text isn't in the bill right now.

Mrs. Karen Kraft Sloan: That's what I thought you said.

Ms. Heather Smith: Yes. But it's in the act. If you want to make this change in the bill, this is one of the few places in the act where that expression, which isn't in the bill right now, is used. We can bring it into the bill and make that change, so that the act will be consistent with that use of the phrase. That's why this amendment is proposed.

Mrs. Karen Kraft Sloan: Oh, I see. Okay

Ms. Heather Smith: It's for consistency purposes.

The Chair: Ms. Smith, on the chart you've prepared for us, where does this particular amendment appear?

Ms. Heather Smith: Do you have the two pages?

The Chair: Yes.

Ms. Heather Smith: On the back of the second page, you'll see some text, which is just a short explanation. It relates to NDP-37. Just below that, there's a note saying that subsection 40(3) needs to be amended too.

The Chair: Thank you.

You realize you're turning us into a bunch of downtown lawyers, one of them being a parliamentarian.

Anyway, move on to—

Ms. Heather Smith: I'm turning past the French version of that motion. I am now e020-018.23(a). This is the same change, from the term “assessment of environmental effects” to “environmental assessment”. It's a change to subsection 40(2) of the act. It also incorporates our motion G-17, which corrects a drafting error.

The Chair: This is also described at the top of page 2 of your memo.

Ms. Heather Smith: Yes, that's right.

This incorporates the changes the government supports. So if you look at that page, where it talks about NDP-37, it doesn't incorporate the (a) part of NDP-37, or the (c) part, but it does incorporate the (b) and the (d) part.

The Chair: Thank you.

Ms. Heather Smith: I'm turning past the French version. I'm now at e021-018.34. It's the same change again, from “assessment of environmental effects” to “environmental assessment”. It's a change to section 41 of the act.

I'm turning past the French version of the motion. I am now on motion e025-21.03(a). I described this motion earlier, which takes subsection (3) of section 54 and rewrites it to incorporate the ideas expressed in NDP-46 and KS-17. Those motions were both aimed at clarifying subsection 54(3). When we looked at subsection 54(3), we realized that it could do with some clarification.

I'm turning past the French version of that motion now. I'm on motion e026-021.14(b). This is a rewrite of motion G-23, which is the complete rewrite of the registry provisions, which were introduced in the spring to incorporate the paper registry and the electronic registry. As noted at the top of the page, this incorporates KS-18, CA-14, and L-2. It relates to L-3, but, as the chair has properly noted, it does not completely incorporate L-3. It also incorporates PC-21 and CA-18. I can take you through it briefly and show you where these places are.

Turning to the first one, KS-18, which is a motion the committee passed yesterday, when we looked at this motion, it seemed to be better placed in subsection 55(1), and seemed to flow from what the obligations of the agency were with regard to the electronic registry. So we took the text and proposed it as subsection 55.1(4), which is on the third page of the English version of the motion you have before you.

º (1610)

Mrs. Karen Kraft Sloan: Mr. Chairman, are we are still on G-23?

Ms. Heather Smith: Yes, I'm still on G-23.

Mr. Gary Lunn: On the third page?

Ms. Heather Smith: On the third page of the English motion.

Mr. Gary Lunn: Right at the bottom where it says sub(4).

Ms. Heather Smith: Right at the bottom. You'll see a little heading, it says “Printed copy”, and a line on the side and a sub(4).

The Chair: Would that be KS-18?

Ms. Heather Smith: That's our version of KS-18.

There were some wording changes that the legislative drafters recommended to the motion that was passed by the committee yesterday. The first one was they suggested that the text to KS-18 of “the agency shall make available” was ambiguous about whether somebody was going to walk away with a copy, so we suggested using the word “provide” instead of “make available”, so that it's clear they get a copy.

Also, in the text of KS-18 it specified on “written request” the agency was to provide a copy, and that seemed to be overly rigorous. If you didn't have access to the Internet, it would make more sense to just be able to pick up the phone and ask for a copy and the agency would be required to provide it. So we took the word “written” out.

The third change we made to the actual text was the motion used the term “hard copy”, and the drafters thought that was slang, so they suggested replacing with “printed copy”. They particularly ran into a problem with how to express that in French. And the French text is

[Translation]

“exemplaire imprimé.”

[English]

The Chair: Where is the CA-14?

Ms. Heather Smith: If you turn back to the first page of the English version of the motion, 55.1(2), you'll see that it says “within 14 days after the commencement of an environmental assessment”, and that's the essence of the motion CA-14.

The Chair: Thank you.

Ms. Heather Smith: The motion L-2 is incorporated at the top of page 2 of this motion in (b.1).

L-2 used the term “a notice of the scope of the project”, and after discussion with the drafters, we believe that the term “description” is a requirement that would require more information than a notice. When you compare the use of the word “notice” elsewhere in the registry provisions, it's a very cursory amount of information that would have to be provided, and a description would be more fulsome in comparison with the term “notice”. That's why we proposed the word “description” instead of the word “notice”.

Mr. Gary Lunn: Which letter are you on?

º (1615)

Ms. Heather Smith: It's (b.1).

Mr. Gary Lunn: Thank you.

Ms. Heather Smith: So (b.1) incorporates motion L-2, but there is a wording change, which is a change from “notice” to “description”. We believe that what we were doing was improving upon the motion.

The Chair: Carry on.

Ms. Heather Smith: The next change relates to motion L-3, and that is found in the middle of the second page of this motion under (i).

Again, L-3 used the term “notice”, and we replaced that with the word “description”. And there are also limitations around when a description of the scope of the assessment would have to be put on the registry. There are two situations. The first is in a case of a screening where a responsible authority gives the public an opportunity to participate in the screening. The second would be when a project is referred by the Minister of the Environment for a comprehensive study. But that is something less than what is proposed in L-3.

The Chair: Carry on, please.

Ms. Heather Smith: The next change is PC-21, which is incorporated into proposed paragraph 55.1(2)(q.1) on page 3 of the English version of that motion. The number is different from the number that was proposed in the motion because the original motion referred back to the text of the bill, as opposed to the text of G-23. There were some wording changes between PC-21 and proposed paragraph 55.1(2)(q.1), but we believe we captured what Mr. Herron was after in that motion.

The last motion that's incorporated in the text is CA-18, and that is found in proposed subsection 55.3(2), which is found on page 4 of the English version of the motion. Mr. Lunn originally proposed a subsection (3). We incorporated the motion he proposed into proposed subsection 55.3(2).

As we understood Mr. Lunn's motion, he was trying to put a limitation on the frequency with which the class screening statements could be put on the registry, so they could be done more often than every three months, but not less often than every three months. That's what we understood the motion to be, and that's what we tried to reflect in the text.

So those are the changes we made and the motions we incorporated into that motion.

The Chair: Thank you. Carry on.

Ms. Heather Smith: I'm moving past that motion. I'm now at the French version and I'm moving past that motion now.

I'm now turning to motion e030-26.15. This is in the regulation-making section of the act, and there are a number of changes in that section changing the expression “assessment of environmental effects” to “environmental assessment”. That's what this one is doing in proposed paragraph 59(i.1) and proposed subparagraph 59(i.1)(ii).

Turning past the French version of that motion, I'm on motion e030-27.41. This one makes the same change to the regulation-making powers that are set out in proposed paragraphs 59(k.1) to 59(k.5).

I note in particular with regard to those provisions that there were a number of motions that were introduced by the NDP that seemed to be getting at the same sections. But when we examined them, they are taking out cross-references to sections that are set out in...I think it's proposed section 9 of the bill. So the NDP motions are contingent upon passage of motions that the NDP has proposed elsewhere.

Turning past the French version of that motion, I'm now on motion 030-29.28(a). This is not one of the package that's referred to on the chart. This is a new regulation-making power that is proposed as a consequence of a change that came about through NDP motion 24 that related back to subclause18.(3). Members will recall that in subclause18.(3) we had “in prescribed circumstances”, and we agreed at that time to change the text to be “in accordance with regulations”. We needed to create a regulation-making power to go with it, and that's what this motion is designed to do.

I'm turning past that motion--I'm sure we're all relieved to see I'm on the very last one, which is e030-28.33. Again, this is another one of those amendments to change “assessment of environmental effects” to “environmental assessment” in proposed paragraph 59(l). It replaces motion G-30.

There was one other place on the chart where I noted a motion would be required, and that was for clause 33 of the bill, which is a transition clause. After discussion with the drafters, we determined it wouldn't be appropriate to make that change there, since there are regulations under the current act where assessments of environmental effects would be under way during the transition period.

º (1620)

The Chair: Thank you for taking us through. It was very helpful. And it certainly looks as if the overall quality of the bill has been considerably improved.

Mr. Lunn.

Mr. Gary Lunn: I was going to suggest, Mr. Chair, that since we've just gone through these, I believe we could probably deal with about half of it. All these sections dealing with “assessment of environmental effects” to “environmental assessment” we could probably get out of the way and only be left with G-23 for tomorrow. Since we've just gone through them and they're fresh in our minds--I don't think there's anything too controversial--I put that suggestion out in the interest of time. We could deal with them rather quickly.

Mr. Julian Reed (Halton, Lib.): Mr. Chair, I would support that.

The Chair: I appreciate the spirit in which you make the suggestion. Under normal circumstances I would certainly, if the committee agreed, proceed with what you're saying. But I'm told there may be some conflict of lines, and the drafters and advisers at the table would prefer to have time this evening to go over the whole package, to be sure it is in good order.

Mr. Gary Lunn: Fair enough.

The Chair: But maybe tomorrow morning we could pick up on your suggestion.

Are there any other suggestions?

Mr. Bailey.

Mr. Roy Bailey: Just for review now, Madam Smith mentioned this is something that has to be pulled and then replaced. Just describe the procedure by which that is done. You're taking out the act, as it were, and putting in the new act. You're taking out the carburetor and putting in the new carburetor, right? What's the process for that? What do you do?

º (1625)

Ms. Heather Smith: You'll find in the motions, where I said we had to do that, a sort of language is inserted that will place it in the proper place in the bill. Once it's placed in the bill, you just vote on that the way you'd vote on anything else. It's within the scope of the bill to do this, because the sections in question are already open.

(Clause 26 allowed to stand)

The Chair: We will now start with clause 27, which is one of those rare clauses--we should open a bottle of champagne to celebrate it--that has no amendments. That is almost shocking. Something is wrong here.

(Clause 27 agreed to)

(On clause 28--Participation of deputy ministers)

The Chair: We come now to clause 28, with a government amendment on page 149.

Would Madam Redman like to present it?

Mrs. Karen Redman (Parliamentary Secretary to the Minister of the Environment): Mr. Chair, I move government amendment 24. This is a technical amendment to ensure that the agency has access to all relevant information for its quality assurance program. The changes are in both official languages, and correct a drafting error.

(Amendment agreed to) [See Minutes of Proceedings]

(Clause 28 as amended agreed to)

(On clause 29--Members of the board)

The Chair: Now we come to page 151, an amendment in the name of the member for Davenport, who will relinquish the chair and invite one of the available volunteer vice-chairs to take his place, so he can present the amendment.

Mr. Julian Reed: Somebody spelled “striking” incorrectly.

The Vice-Chair (Mrs. Karen Kraft Sloan): Would the member for Davenport like to have the floor now?

Mr. Charles Caccia: Yes, thank you, Madam Chair.

This amendment is not an easy one to put forward, but because of the experience garnered over the last ten years in the implementation of this particular law, it is one that becomes more and more necessary for, hopefully, favourable consideration. That is the necessity of changing the law so the making of regulations for the purpose of establishing a comprehensive study list be given to the Minister of the Environment rather than to the entire cabinet.

You will recall one witness--I don't remember exactly who it was--who made the point to ask in a brief that, considering the fact that cabinet is overloaded with a number of duties, responsibilities, paperwork, and memoranda, the task of preparing this list ought to be assigned to the environment minister. Give it to him--after all, he's the overall concerned political figure in cabinet--rather than to cabinet, where, as you know, very often there are conflicting interests in play.

To make a long story short, Madam Chair, the witness who appeared before us was advancing the notion, which I thought was most desirable, of leaving the decision for preparing the list to the Minister of the Environment of future days.

Therefore, I would like to move this motion in the hope that the parliamentary secretary might come forward with some kind words and possibly some support. I think that increasingly the assessment role of environmental impacts ought to be a responsibility of the minister who has a concern for the environment, just as fisheries matters are the concern of the Minister of Fisheries and Oceans and northern affairs matters are the concern of the Minister of Indian Affairs and Northern Development.

It is difficult to understand--and I will conclude with that--why matters that impact on the environment should instead become a responsibility of cabinet, as the law has said until now, rather than attributing this responsibility specifically to the minister in charge of the environment, in whose name this particular bill and proceeding in the current legislation have actually been promoted.

Thank you.

º (1630)

The Vice-Chair (Mrs. Karen Kraft Sloan): Thank you very much.

Madam Redman.

Mrs. Karen Redman: Thank you.

I will begin with incredibly kind words: nobody questions the member for Davenport's conviction and his dedication to the environment, Madam Chair.

However, we don't support the motion before us. A comprehensive study list has been in place since 1995. There are approximately one hundred types of projects that trigger a comprehensive study. Just so we're all very clear on that, a pipeline more than 75 kilometres in length, for instance, automatically qualifies for a comprehensive study. It's what goes on the list, not each individual project, because there are criteria that, once they're achieved, automatically trigger something going on the list. It's deciding what is on that list, not a project-by-project discussion of, oh gosh, do we put project x on the list or not? There are physical criteria that decide whether or not a comprehensive study is the route we take. There are, as I said, a hundred types of these projects.

As to deciding what those criteria are or what that list looks like for a comprehensive study, this could potentially impact 30 departments and agencies that come under the act. It's still our feeling that this is best left to the Governor in Council.

I just want to reiterate, it's not whether or not an airport project would trigger a comprehensive study. That's relatively arbitrary and that's done by the definition of the actual project. It's what the hundred criteria are on the list.

I don't know if Mr. Connelly or Ms. Smith want to add to that.

º (1635)

Mr. Robert Connelly: Madam Chair, just in response to Madam Redman's comment, I might add a couple of points. I believe that the reason it was established that the governor in council would make such recommendations on the recommendation of the minister was, as Madam Redman has pointed out, because of the fact that these regulations affect so many other departments.

I would also add one additional point here, and that is that since the regulations came into force in 1995, when the act came into force, I believe we have made amendments on two occasions. We've not had difficulty in the sense of bringing the matter back to special committee of council for a decision. We've not been constrained, we felt, in terms of the workload of cabinet in that regard.

The main factor has been the fact that the reason it's set up the way it is with the special committee of council making the decision is simply because of the fact that it touches upon the mandate of many other ministers. I think that's the only reason.

Thank you, Madam Chair.

The Vice-Chair (Mrs. Karen Kraft Sloan): Mr. Bailey.

Mr. Roy Bailey: Most acts indeed touch other agencies. If you were to take a look at the sections of the acts pertaining to agriculture, you'd find they also touch other agencies, but perhaps none as much as environment does. It seems to me that environment now--did you mention 30...

Mrs. Karen Redman: There are 30 departments and agencies.

Mr. Roy Bailey: Is the language that is being suggested here similar to that in which other departments...the minister would be held here and the others would kind of fall in under that umbrella type?

Ms. Heather Smith: This particular type of power is not dissimilar to a power the Minister of the Environment has under the Department of the Environment Act, which the minister used to create what is known as the EARPGO, which was the predecessor to the environment act, the Environmental Assessment and Review Process Guidelines Order.

There certainly are other places in legislation where ministers have the power to make regulations, and the Minister of the Environment has that power elsewhere.

Mr. Roy Bailey: Elsewhere within the act?

Ms. Heather Smith: Not within the Canadian Environmental Assessment Act, but under the Department of the Environment Act, for example.

Mr. Roy Bailey: Thank you.

The Vice-Chair (Mrs. Karen Kraft Sloan): Madam Smith, if I'm hearing you correctly, what you're saying is that there is precedent indeed where the minister has made regulations even though it affected the workings of other departments.

Ms. Heather Smith: There's a similar type of power that says that the minister may by order under the Department of the Environment Act, but it's the same effect. It's a legally binding instrument like a regulation.

The Vice-Chair (Mrs. Karen Kraft Sloan): Right, but in this situation the regulations are being made by GIC.

Ms. Heather Smith: Elsewhere in the Canadian Environmental Assessment Act the section 59 powers are Governor in Council powers. That's correct.

The Vice-Chair (Mrs. Karen Kraft Sloan): Right, but that's not to suggest that the Minister of the Environment in other situations is not able to make regulations by order or otherwise.

Ms. Heather Smith: There are examples where ministers have that power, yes.

The Vice-Chair (Mrs. Karen Kraft Sloan): You seem to be getting a bit of contradictory advice here.

Mr. Reed.

Mr. Julian Reed: Thank you, Madam Chair.

Just for clarification, is it right to assume that the passage of this amendment would draw more power to the minister than is reasonable, considering that there are so many other departments involved in this process? Am I interpreting the proposed amendment properly, that it tends to draw power to the minister when in fact there are other considerations that have to be looked after, and therefore that would be the reason for keeping it with Governor in Council?

º (1640)

Ms. Heather Smith: I hesitate to comment on that, because it's more of a policy judgment about the appropriateness of whether the Minister of the Environment should have those powers given, what is being decided in that case. So I prefer not to give an opinion.

Mr. Julian Reed: All right then. I'll deliver my opinion. Thank you.

It seems to me that the debate has shown that the Minister of the Environment acting alone could isolate these other departments and therefore not give them the proper opportunity to be heard. In this case, I do believe that it removes the minister from that spirit of interaction and necessary cooperation with other departments of government.

Thank you, Madam Chair.

The Vice-Chair (Mrs. Karen Kraft Sloan): Madam Smith, does the Minister of the Environment isolate other departments in areas where the Minister of the Environment makes the regulations or makes an order?

Ms. Heather Smith: I'm not sure I understand the question. Does the Minister of the Environment isolate...

The Vice-Chair (Mrs. Karen Kraft Sloan): I'm seeking a point of clarification because in this situation Mr. Reed has said that if this amendment were to go through, in other words if the Minister of the Environment was responsible for making the regulations other than GIC, it would mean then that the minister would isolate these other departments. You have given an example where the minister has powers through giving orders, or what have you, where he or she is essentially making regulations. So I'm asking the question whether in those cases the Minister of the Environment isolates other departments.

Ms. Heather Smith: Those powers aren't used very often, so I can't really... I wasn't around when the minister used the power to make the EARPGO in 1984, for example. The powers have been rarely used since then. I know there are ministerial powers under other pieces of legislation. I'd say generally speaking they probably don't have the same kind of horizontal impact as say the Environmental Assessment Act does.

The Vice-Chair (Mrs. Karen Kraft Sloan): Even though EARPGO was indeed a process for making decisions around environmental assessment.

Ms. Heather Smith: That's right.

The Vice-Chair (Mrs. Karen Kraft Sloan): Mr. Caccia.

Mr. Charles Caccia: I would like to thank colleagues for their interventions and questions.

Perhaps I can conclude by making the following observation. What we have before us is called the Canadian Environmental Assessment Act. It's not called the Canadian financial assessment act or the Canadian I'm-not-sure-on-resources-assessment act. It has the word “environmental” in it clearly after the word “Canadian”. Therefore it is obviously a piece of legislation that has as its centre point the care of the environment.

While I appreciate the point made earlier on the spirit of cooperation by Mr. Reed, I think that spirit of cooperation would still exist around the table regardless of how the list is composed, whether it is composed through Governor in Council or whether it is composed by the Minister of the Environment, because the Minister of the Environment could never get away by compiling a list that is not comprehensive. The minister would have to accept the input from all the departments that are affected by a specific proposal.

Nevertheless, it stands to reason that it should be a decision that rests finally with the Minister of the Environment considering that this is an act carrying a name that reflects his or her mandate, whoever happens to be the Minister of the Environment of the day. Therefore, it stands to reason that the responsibility of preparing whatever comprehensive study list is required for whatever project should rest with the Minister of the Environment of the day.

As to the procedure, it seems to me that the procedure would be simplified if the agency, instead of going to cabinet and depending on cabinet, which meets sometimes once a month in summer and once every two weeks, would just go to the minister and deal directly with the minister. I think it would have a much better performance record and a much more streamlined operation, more efficient, and in the end would give equal if not better results.

Thank you.

º (1645)

The Vice-Chair (Mrs. Karen Kraft Sloan): Thank you, Mr. Caccia.

Mr. Bailey, please.

Mr. Roy Bailey: One of the difficulties I'm having is to somehow picture this. I can't envision the Minister of Environment unilaterally making a decision that would contravene some other minister's authority. I have to throw that out, but we keep talking that way, so maybe we shouldn't talk that way. I see it as a parallel. The Minister of Environment, on environmental issues, is the umbrella over the other acts. Therefore, if we were to support this, we are giving him the power only to act on those things that fall under the act, be it obviously with Fisheries and Oceans, and Parks Canada, and you go on and on. But it isn't that you're placing him in a dictatorial position that would nullify or make void some of the acts in the other.... So it's not bad.

Thank you.

The Vice-Chair (Mrs. Karen Kraft Sloan): Thank you, Mr. Bailey.

Madam Redman and Mr. Herron.

Mrs. Karen Redman: Thank you, Madam Chairperson.

I want to be really clear about what we're talking about. We're not talking about individual projects and whether they are appropriate for comprehensive study. We're talking about the criteria on the list. It's changes to the list that we're talking about. Again, I would reiterate, as Mr. Connelly pointed out, that twice since 1995 the hundreds of types of projects that trigger a comprehensive study have been amended.

This is not something that's done on a case-by-case basis. For instance, in the township of Oxford, looking at their water supply, that is not a project that has to go to the GIC so that the Governor in Council says, gosh, should this be a comprehensive study? If it meets one of the hundred-project criteria on that list, it has the comprehensive study. So what we're talking about is amendment to the hundred-project list. It's not something that happens really frequently, and changing that list does impact 30 agencies and departments.

I would also reiterate that, as much as the Minister of Environment indeed has concern around environmental issues, I would contend and ask the members of this committee to stop and think that the Department of Fisheries probably holds a great deal of expertise in fishery matters and clearly may have as much or more expertise than the Department of Environment. That's the spirit of cooperation in pooling expertise by which the government feels the Governor in Council is still the most appropriate place to change the list.

The Vice-Chair (Mrs. Karen Kraft Sloan): Mr. Herron, and the member for Davenport.

Mr. John Herron (Fundy—Royal, PC): I want to add a comment as to why I think Mr. Bailey seems to be supportive, and why we are, and this comes down to political accountability. I think there's very little accountability in government any more. If it's focused on the department, the Minister of Environment, we know who made the call. I think it makes sense from a democratic reform perspective.

Thank you, Madam Chair.

The Vice-Chair (Mrs. Karen Kraft Sloan): You're welcome.

Mr. Caccia, please.

Mr. Charles Caccia: I want to very briefly say that the parliamentary secretary's intervention is very helpful because it stresses the importance of the criteria guiding the formation of the list, which becomes then the overall umbrella, the bible, so to say, that leads then to the elaboration for each individual, specific project. But it's the preparation of the criteria guiding the minister that ought to be under the jurisdiction of the Minister of Environment, since it is a bill, a piece of legislation, that invokes the environment and the proper management of the environment when it is impacted by certain human activities. So even more, therefore, because of the fact that there are a hundred criteria at stake, one could argue that it is desirable that the matter be given to the minister responsible for the legislation, rather than having the whole cabinet involved as if one could not trust sufficiently the judgment of the minister of the day.

º (1650)

The Vice-Chair (Mrs. Karen Kraft Sloan): I think we're ready to call the question.

There are six in support and six opposed. I support it.

(Amendment agreed to—See Minutes of Proceedings)

The Chair: We go now to government motion G-25, on page 152, because....

Mr. Gary Lunn: What happened to JS-21? Has it been withdrawn?

The Chair: I'm told JS-21 is being withdrawn.

Mr. Gary Lunn: Thank you.

Mrs. Karen Redman: Mr. Chair, I move amendment G-25, which ensures French-English concordance. It clarifies that the participation funding program must be established for projects that undergo comprehensive study, mediation, and review panel.

(Amendment agreed to—See Minutes of Proceedings)

(Clause 29 as amended agreed to)

(On clause 30)

The Chair: We come now to a motion in the name of Mr. Lunn, on page 153, which, I'm told, is in conflict with a number of other motions. Anyway, if this carries, then PC-22, NDP-47, and BQ-12 cannot be put. So I'm alerting Mr. Herron— who has dissolved in thin air—about this danger.

Mr. Lunn, you are the first one in line. You have precedence over the others.

Mr. Gary Lunn: Thank you very much, Mr. Chair.

The intent of CA-19 is to delete proposed paragraph 59(c)(iii) and maintain the current wording of the act under the section.

The new language reads, “have a total cost below a prescribed amount and meet prescribed environmental conditions”, as opposed to the current wording, which requires federal authority be minimal to the scope of the overall project. The new wording would allow the government to set the standard of its involvement as high or as low as it chooses—after the bill is passed—which, I would respectfully submit, is inappropriate.

º (1655)

The Chair: Could you please indicate to the committee, in terms of language, what the net effect would be of your amendment?

Mr. Gary Lunn: Do you mean what it would do or--

The Chair: Yes.

Mr. Gary Lunn: It would delete proposed paragraph 59(c)(iii).

The Chair: Completely.

Mr. Gary Lunn: Yes.

The Chair: Thank you.

Could we have a comment?

Madam Redman.

Mrs. Karen Redman: We do not support this amendment because it basically retains the provisions to exclude projects through regulations. This is based on a minimum level of federal involvement in the overall project. The problem we've had is that attempts to develop such regulations have failed. It's really difficult to quantify regulatory decisions, such as those under the Fisheries Act, and to determine what is meant by “minimal”. That's why we've proposed in Bill C-9 a regulatory-making authority to exclude projects based on their overall cost as long as certain environmental conditions are met.

We feel that Bill C-9 has vast improvements and will get around looking at small projects. Assessing a dollar value and making sure that certain environmental conditions are met is a surer way to go forward with this and allow us to concentrate expertise and money on larger projects that have significant impact.

The Chair: Mr. Connelly.

Mr. Robert Connelly: Just to expand on Madam Redman's comments, perhaps I could provide Mr. Lunn with more detail on the problem we've had in terms of the existing regulatory-making provisions.

I believe his amendment would in effect retain the provisions we currently have under the act. That would be the net effect. We did work with our departments and our regulatory advisory committee at one point fairly early on after CEAA was proclaimed, to try to develop such a regulation. We really found we couldn't because it was very hard to determine what constitutes minimal federal involvement. For example, is a permit for a small component of a project minimal? If two or three departments are contributing a certain amount of money to a project, is that minimal, even if you add up the total amount that all three contribute? Those are the kinds of issues we had to debate.

In the end, we concluded that we really could not develop such a regulation because of the difficulty of defining what minimal federal involvement might be. That is why we dropped that idea and put forward the concept of a minor project regulation, which would be based on the establishment of total cost, provided prescribed conditions are met. The reason we've introduced this is to help deal with this challenge we have, which a number of witnesses spoke about, and that is we've received a lot of criticism that we're assessing too many small things under this act.

As we continue to add in new requirements with the registry and so on, we place more and more requirements on very small projects. So what we are trying to do is find a means to allow the small projects to be in effect excluded under the act and focus the resources we have on the major projects.

A number of tools are available to do that. One is our current exclusion list regulation, which excludes things if it's determined they are insignificant. We do have the model class screening process, which we'll get to later, and replacement class screening, a new tool that was introduced, which will assist us in that regard.

I think we felt this was kind of a tool of last resort, if I could use that term. If after using those other tools we found that we still had a real problem of assessing too many small things, we might, in consultation with our regulatory advisory committee, be able to come up with a reasonable cost and reasonable prescribed conditions. As long as a project is at least 30 metres from a water body or as long as it is located in an area where there are no known species at risk would be examples of prescribed conditions we would propose coming up with. This would be developed in consultation with our regulatory advisory committee, obviously. The government on its own wouldn't randomly pick a number out of the air and establish that as a cut-off.

I just wanted to lay out those factors in response to the motion.

Thank you, Mr. Chairman.

» (1700)

Mr. Gary Lunn: Thank you.

The intent of my amendment was exactly so that they couldn't just randomly pick a number out of the air. After we passed the bill, then they could decide how high or how low they'd choose after the bill was passed. So basically we're just going to pass this section, and it will be up to the regulations to determine whatever that number may be. It is my understanding right now that we're basically just leaving it wide open. Am I correct in that? Basically, you can set the threshold at a later date--correct?--after we pass the bill.

Mr. Robert Connelly: Mr. Chairman, the answer is correct, in response to Mr. Lunn's question, because we don't have a number in mind. The reason we don't is because we really would have to do an analysis of all the small projects and establish what their cost value would be. We don't have that kind of data at the present time. All I was saying was we'd want to ensure that whatever that number is, it is reasonable, and we would work with our regulatory advisory committee to assist us in establishing that test of reasonableness.

Mr. Gary Lunn: In the original wording—and I acknowledge what you're saying—I believe it's problematic. I see that, but I'm not too sure that what you're replacing it with is not problematic as well.

So my rationale was, why are we changing something where we don't even know what the threshold is going to be? Are we better off just to leave it with something that's...

I deleted this amendment because I didn't believe it was going to do the job, although I acknowledge that the current wording of the act is also problematic. I'm not too sure how far up the scale we're improving it.

Thank you.

Mr. Robert Connelly: Mr. Chairman, I think we found that the current wording wasn't workable. The new wording would be workable.

I must say, I do understand your unease about it, but as I was saying, we felt that we needed a simple means of trying to...if we needed to, as a fallback tool, if I could use that term, if we needed to assist in removing many of these small projects that are inconsequential and for which there is really very little public interest from the process.

Mr. Gary Lunn: Thank you.

(Amendment negatived)

» (1705)

The Chair: I would be inclined to call amendment PC-22, page 154. Anyway, we'll have to give him a chance if he's around.

The same applies to amendment NDP-47. Perhaps we could call amendment NDP-47.

Welcome, Mr. Masse. You have the floor.

Mr. Brian Masse (Windsor West, NDP): Thank you, Mr. Chair.

I would like to stand down this motion until the next day, if possible, likely for withdrawal.

The Chair: You want to stand it, then?

Mr. Brian Masse: I want to stand it down for the likelihood of withdrawal.

The Chair: For the likelihood of withdrawal, which is good news. Yes, thank you.

Mr. Herron might wish to do the same, but we don't know.

We now come to....

[Translation]

Mr. Bigras and his amendment which can be found on page 156.

Do you wish to speak to the amendment, Mr. Cardin?

Mr. Serge Cardin (Sherbrooke, BQ) Yes, Mr. Chairman.

The following is noted in lines 22 and 23 on page 25 of the bill:

physical works, in the opinion of the Governor in Council, have insignificant

The purpose of this amendment is to delete the words “in the opinion of the Governor in Council”. The reference is to environmental effects which, “in the opinion of the Governor in Council”, are insignificant. I think more than just the opinion of the Governor in Council is required. I have a problem with this wording which, to my way of thinking, is subjective and rather arbitrary. Therefore, not only should the Governor in Council be of the opinion that the environmental effects are insignificant, he should be certain of that fact. That's what we're getting at by deleting the words “in the opinion of the Governor in Council” in lines 22 and 23 and in lines 42 and 43.

The Chair: Thank you, Mr. Cardin.

Are there any further comments?

Ms. Redman.

[English]

Mrs. Karen Redman: Thank you very much.

My question is, if you were to take out “in the opinion of”, who would then make the decision? Somebody has to make that decision, so if it's not the opinion of the Governor in Council, who's the decision-making body or person in that instance?

[Translation]

Mr. Serge Cardin: It isn't clear from this reference to “in the opinion of the Governor in Council” that the opinion is based on outside advice. I would imagine that the Governor in Council receives third party advice as well as the advice of experts. The impression we have here is that the Governor in Council is forming his own opinion. Therefore, there is something rather subjective or arbitrary about this provision, the feeling that the Governor in Council alone makes the decisions. We want it to be clearly understood from this provision that the Governor in Council is certain of what he says. Of course, he can always base his opinion on outside analyses or studies, and I imagine that will be the case, but the words “in the opinion of” found in these two clauses give the impression that a certain amount of subjectivity and arbitrariness is involved in the decision-making process and that decisions will not necessarily be backed by outside expert advice.

We want it to be clear from the provision that the Governor in Council is certain the environmental effects are not significant.

The Chair: Ms. Redman.

[English]

Mrs. Karen Redman: I would ask Ms. Smith to comment on this.

[Translation]

Ms. Heather Smith: Mention was made of the arbitrary nature of the opinion of the Governor in Council. However, there are limits to the kind of opinion that can be expressed. It must be proven that the adverse effects, if any, are not significant before regulatory authority can be invoked. By specifying this authority, we're giving the court permission to ask whether or not the opinion of the Governor in Council was reasonable under the circumstances.

Yes, the Governor in Council is the body that decides, but the opinion of the Governor in Council must be reasonable under the circumstances. Otherwise, a court will argue that it's unreasonable and substitute a reasonable opinion for the opinion of the Governor in Council.

» (1710)

Mr. Serge Cardin: Nevertheless, the impression we're left with is that it isn't clear whether or not the environmental effects are not significant. As everyone well knows, the decision ultimately rests with the Governor in Council. I don't know whether this is true of the English version, but I'm convinced that this element of certainty is lacking from the French version.

Ms. Heather Smith: We're talking about the person who will have decision-making authority. If we omit the reference to the opinion of the Governor in Council, the decision will rest with the courts. If we maintain this reference, we give the Governor in Council decision-making authority, but with certain limits. The opinion must be reasonable. If the Governor in Council makes a decision deemed unreasonable under the circumstances, the courts will quash that decision. The legislation gives the Governor in Council some leeway to make decisions based on his judgment. However, the decision must be reasonable under the circumstances.

If we omit these words, the courts will ultimately be left to decide whether the requirements have been met. If we retain the words “in the opinion of”, we allow the Governor in Council sufficient leeway to use his judgment. That's the difference.

Mr. Serge Cardin: Could we retain the words “in the opinion of” and add an element of certainty as to the absence of significant environmental effects? Would you care to suggest something to us?

Ms. Heather Smith: In place of “in the opinion of the Governor in Council”?

Mr. Serge Cardin:Yes.

Ms. Heather Smith:Not really, because we find this expression in a number of laws. It affords the Governor in Council some leeway to use his judgment under the circumstances. It's a commonly used expression.

Mr. Serge Cardin: Most likely we would need to add an element expressing certainty that the effects are not significant: “sont liés à un ouvrage et dont...” We cannot even do that. We would need to say: “à son avis, on a la certitude que...”.

Ms. Heather Smith: You're touching on the authority provided for in the CEAA, the authority not only to evaluate projects but to exercise judgment as well. As part of the process of evaluating a specific project, the person doing the evaluation is asked to use his judgment and is given a certain amount of leeway to do just that. In the same way, the Governor in Council enjoys some leeway to use his judgment when making regulations. It's a philosophical question. Should the Governor in Council be granted this leeway, yes or no?

Mr. Serge Cardin: Mr. Chairman, I don't often sit on this committee, but I am nevertheless surprised that in the environmental field, a rather delicate sector, a certain amount of leeway is given, although the limits aren't quite clear. Therefore, I'd like to see some element of certainty as to the absence of adverse environmental effects.

» (1715)

The Chair: Shall I call the vote?

[English]

(Amendment negatived—See Minutes of Proceedings)

The Chair: We are rapidly losing members here. We're dangerously close to losing quorum. I understand it's because there is the unveiling of former Governor General Romeo LeBlanc's portrait in the Centre Block at 5:30. So I will entertain a couple of amendments, but not too many. We will adjourn at 5:25 at the latest.

Mr. Lunn, page 157, please.

Mr. Gary Lunn: Thank you very much, Mr. Chair.

I'll speak to both CA-20 and CA-21, if I may, because they're similar. I can make the same argument. These two amendments are paired in order to return proposed paragraph 59(c.1) and proposed subparagraph 59(c.1)(ii) to reflect the original act's wording. It's to avoid ministerial discretion, as defined in amendments CA-15 and CA-16.

What happened to CA-15 and CA-16?

The Chair: We stood CA-15.

Mr. Gary Lunn: It's been a while, Mr. Chair, but the notes I had made at the time are that subparagraph 59(1)(c)(iii) could not just be deleted but must be added to ensure there are regulation-making authorities for the new authorities in Bill C-9 over crown corporations, CIDA, and port authorities.

It's not even making sense to me at this point in time. It did at the time, a while back, so possibly... It's been a while since...

The Chair: Well, you obviously want to bypass paragraph (c).

Mr. Gary Lunn: And that's exactly my reading, so I'm going to withdraw these, Mr. Chair. I read them exactly the same way.

The Chair: CA-20.

Mr. Gary Lunn: Yes.

The Chair: CA-20 is withdrawn.

Mr. Gary Lunn: And CA-21. They are both paired.

The Chair: Thank you.

Mr. Gary Lunn: So withdraw CA-20 and CA-21.

The Chair: As well as CA-21 on page 159. Thank you.

Mr. Gary Lunn: They were tied originally with CA-19, which we just defeated, so that's the reason for my withdrawing.

The Chair: Right. Now we come to G-26, a motion in the name of the government.

Madam Redman.

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

I move G-26. This is a motion that captures the concept that regulations could apply individually or to a class of crown corporations. It was inadvertently left out of the French version of this paragraph, so we are basically amending a drafting error.

(Amendment agreed to—See Minutes of Proceedings)

The Chair: We'll go then to a motion in the name of Mr. Comartin, which I suppose you would like to stand for tomorrow.

» (1720)

Mr. Brian Masse: I would like it to stand down and possibly withdraw it.

The Chair: All right.

Then we come again to the member for Davenport.

Would it be possible for you, Ms. Smith, to indicate to this committee whether it would be appropriate to consider this amendment now consequential to the amendment carried earlier?

Ms. Heather Smith: L-5?

The Chair: L-5.

Ms. Heather Smith: I think it is.

The Chair: It would be consequential.

I'm told that the vote on L-4 would apply to L-5. Is there agreement?

Mrs. Karen Redman: I'd like to hear more.

The Chair: It's a consequential amendment.

Mrs. Karen Redman: Meaning that L-4, which has been passed, makes no sense without L-5.

The Chair: Is that agreed? It is agreed. I understand it is consequential. Fine, thank you.

(Amendment agreed to—See Minutes of Proceedings)

The Chair: Then we come to G-27, a motion by the government. Does this incorporate portions of NDP-49 or doesn't it, or does it stand alone? It stands alone.

Madam Redman, would you like to move it?

Mrs. Karen Redman: I would so move G-27, Mr. Chair. This proposed amendment is consequential to the changes made to retain section 55, which is retaining the paper-based public registry.

The Chair: Is this consequential to G-23, Madam Redman?

Mrs. Karen Redman: Yes, it is.

The Chair: We haven't done G-23 yet, have we? So we have to wait until we've dealt with G-23. So we have to stand this for the time being.

We have now on page 164 a motion in the name of Mr. Comartin, which we'll stand until tomorrow, hopefully.

And we come to motion G-28. Madam Redman.

Mrs. Karen Redman: Mr. Chair, I move G-28.

This amendment pertains to the projects outside of Canada regulations and they're intended to apply to projects carried out at Canadian embassies and consulates abroad. Currently the regulations are not applicable to embassy projects, and this would capture them. Embassies are technically federal lands, and these regulations do not currently apply, so this amendment would capture them.

(Amendment agreed to—See Minutes of Proceedings)

The Chair: And finally, to conclude, because we're close to 5:30, Mr. Lunn's motion, CA-22.

» (1725)

Mr. Gary Lunn: Thank you very much, Mr. Chair.

The basic intention of this motion is to remove different regulatory regimes for crown corporations unless they are outside Canada. I do not see why there should be different rules for crown corporations that are operating inside Canada. So unless they're located outside, I do not believe there should be a different regulatory regime. However, I'm open to discussion if someone can convince me otherwise.

The Chair: The discussion would be a little bit lengthy, I suppose. Why don't we stop here? It's almost 5:30.

Mr. Gary Lunn: I can move this tomorrow, sure.

The Chair: And we'll proceed with it tomorrow with fresh minds so as to allow members a chance to go and watch the unveiling.

Thank you for your cooperation.

Mrs. Karen Redman: Where will we start tomorrow?

The Chair: We'll start at page 167.

Mrs. Karen Redman: Are we going to go back and deal with the G-23?

The Chair: Sorry, yes, we'll go back to the package first of all. Thank you.

The meeting is adjourned.