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37th PARLIAMENT, 1st SESSION

Standing Committee on Environment and Sustainable Development

EVIDENCE

CONTENTS

Thursday, June 13, 2002

0910

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

Mrs. Karen Redman (Kitchener Centre, Lib.)

The Chair

Mrs. Karen Redman

0915

The Chair

Mrs. Karen Redman

The Chair

Mrs. Karen Redman

The Chair

Mrs. Karen Redman

The Chair

0920

Mrs. Karen Redman

The Chair

0925

Mrs. Karen Redman

The Chair

Mrs. Karen Redman

The Chair

Mrs. Karen Redman

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

0930

The Chair

Mr. Julian Reed (Halton, Lib.)

The Chair

Mr. Robert Connelly

Mr. Julian Reed

The Chair

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

The Chair

Mrs. Karen Redman

Mr. Robert Connelly

0935

Mrs. Karen Redman

Mr. Robert Connelly

Mrs. Karen Redman

Mr. Robert Connelly

Mrs. Karen Redman

0940

Mr. Robert Connelly

Mrs. Karen Redman

The Chair

Mr. John Herron (Fundy—Royal, PC)

0945

The Chair

Mr. Robert Connelly

Mr. John Herron

The Chair

Mr. Robert Connelly

Mr. John Herron

0950

The Chair

Mrs. Karen Redman

Mr. John Herron

Mrs. Karen Redman

The Chair

0955

Mr. Robert Connelly

Mr. John Herron

Mr. Robert Connelly

Mr. John Herron

Mr. Robert Connelly

Mr. John Herron

Mr. Robert Connelly

Mr. John Herron

The Chair

Mr. John Herron

Mr. Robert Connelly

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

1000

Mr. John Herron

Ms. Heather Smith

The Chair

Mr. Robert Connelly

The Chair

Mr. Robert Connelly

The Chair

Mr. Robert Connelly

The Chair

Mr. John Herron

Mr. Robert Connelly

1005

The Chair

Mr. Julian Reed

Mr. Robert Connelly

Mr. Julian Reed

Mr. Robert Connelly

Mr. Julian Reed

1010

Mr. Robert Connelly

Mr. Julian Reed

The Chair

Mr. John Herron

The Chair

Mr. John Herron

1015

Mr. Robert Connelly

Mr. John Herron

Mr. Robert Connelly

1020

Mr. John Herron

Mr. Robert Connelly

Mr. John Herron

The Chair

1025

Mr. Robert Connelly

Mr. John Herron

1030

The Chair

Mr. Robert Connelly

Mr. John Herron

The Chair

Mr. Robert Connelly

The Chair

Mr. Robert Connelly

Mr. John Herron

Mr. Robert Connelly

Mr. John Herron

Mr. Robert Connelly

Mr. John Herron

Mr. Robert Connelly

Mr. John Herron

Mr. Robert Connelly

Mr. John Herron

The Chair

CANADA

Standing Committee on Environment and Sustainable Development

NUMBER 080

1st SESSION

37th PARLIAMENT

EVIDENCE

Thursday, June 13, 2002

[Recorded by Electronic Apparatus]

¿ (0910)

[English]

The Chair (Mr. Charles Caccia (Davenport, Lib.)): Before we start with an exploration of the many amendments, we will have a couple of observations. And before the observations, let me bring you up to speed on conversations with our researchers and Stephen Hazell about the report this committee could prepare over the summer on the broader significance of the Environmental Assessment Act in future and future amendments to it on the broader issues brought to the committee's attention by a number of witnesses.

The clerk has spoken with Mr. Hazell, and he would be willing to write a report. The sum in question is well below $10,000, I'm told. It is within the means and the scope of this committee. At the same time, Kristen Douglas and Tim Williams have indicated that they would be quite happy to work with Mr. Hazell and go over the evidence that has been produced for the committee so as to facilitate his task and work in tandem with him to produce an even better report. Today I'm just bringing you up to date on these conversations. It would be my intention to put forward a motion, which is already being circulated, but without a specific amount, on Tuesday for a further discussion and possibly for adoption. But rather than keep it until next week, I thought I would inform members of this committee about the conversations so far.

Madam Redman.

Mrs. Karen Redman (Kitchener Centre, Lib.): Mr. Chairperson, I have a couple of questions of clarification. I don't want to stop your train of thought, so if it's appropriate, I'll ask them now, or I'll wait until you are finished.

The Chair: Are they on this issue? I was going to move to Bill C-19 now, so please go ahead.

Mrs. Karen Redman: Mr. Chairman, I would seek some clarification. Almost all the witnesses who have come before us have talked about how thorough and transparent the five-year review has been, and that's certainly what we're looking at in Bill C-19, so I'm seeking further clarification on the possible engagement of Mr. Hazell. Why would this report be proposed at this time, and exactly how do we see it being relevant to Bill C-19? What would you see as the timing of this report, seeing that we're now into clause-by-clause on Bill C-19?

I actually recall questioning Mr. Hazell when he first appeared as a witness. I forget the date--not his most recent appearance, but one previous to that. I asked if he felt that a larger issue--if that's what you're inferring we ask Mr. Hazell to look at--should be part of this review. In my recollection, though I don't have the exact quote, he said he felt it was outside the scope of Bill C-19 and hoped we would vote on Bill C-19, move it through, and pass it, perhaps saving this discussion for another day.

My question is, how does this proposal relate to the clause-by-clause dealing with Bill C-19?

¿ (0915)

The Chair: That's a very good question. Definitely, this proposal would be parallel and would not interfere with Bill C-19, which has to proceed. Mr. Hazell, if the committee approves the motion, would work in the summer and prepare a draft. The draft would be circulated in the fall. Hopefully, when we finish with Bill C-19, we will then examine the draft and transform it into a good report on the broader issues, but that exercise would be parallel and would not interfere with the work on Bill C-19.

Mrs. Karen Redman: For further clarification, Mr. Chairman, do you see that this committee would talk about some of the parameters or some of the issues that may have come up and again are outside the scope of Bill C-19 and this five-year review? At what point would the committee then give that kind of input to the researchers, as well as Mr. Hazell?

The Chair: It would be along the lines set by the paper Mr. Hazell produced for this committee last week. It would be on the broader issues that need to be tackled by any government in the long term, and his report would, I think, benefit from the work of the researchers, particularly in screening the evidence received by this committee. The whole intent is to produce something that could be useful both to the agency for its own internal discussions and to the government, once it has had a chance to examine it and to reply to it in the usual form.

Mrs. Karen Redman: If I can just reiterate what I think I'm hearing, Mr. Chairman, you're suggesting that this committee review the paper submitted by Mr. Hazell because those would be the parameters under which we would be embarking on this report, were we to so choose.

The Chair: As I recall, the paper he produced the last time was virtually a draft outline of what he would be doing by expanding the items in those six or seven pages. You may well read it, you may add other dimensions to it as time progresses, but that is the backbone of the study.

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

The Chair: Thank you, because your questions on what is being proposed here have to be clarified also in other people's minds. We'll come back to this on Tuesday and flesh it out when we have more details.

There are two points that need to be made here, in case there are members in this room who are still preparing amendments. First, please avoid amendments to a section in the act not in the bill. It has come to my attention that in some cases amendments have to be ruled out of order because they are attempting to amend the parent act, so to say, and not the bill. The focus is on the bill. One can understand the temptation to change the parent act, but that cannot be done. I'm talking here to Mr. Comartin, Madam Kraft Sloan, and others who are, I understand, in the process of having their amendments translated or finalized.

There is a second point, which is unavoidable, because we all operate in separate cells, and that concerns when there are already a considerable number of amendments with a line conflict. In other words, if more than one member is producing an amendment on the same line, that creates the well-known problem of having to decide which amendment comes first and which cannot be put because of precedence given to an amendment by another member. So the process is very scrupulous. The amendment that will be given precedence is the amendment that is received first by the clerk. Where there's a conflict, therefore, those who come forward with an amendment that was sent in later will not see their amendment put forward, for that very reason. I don't know whether I'm clear enough, but I'm trying my best.

So keeping these two items in mind, we went yesterday through this whole bundle, and it was incomplete. We have right now 96 amendments, but I'm told there may be another 80 amendments coming, so we will be at 170, roughly. Most of the government amendments seem to be technical or language amendments, but some are very substantive, some are intermediate. So this morning we will at least have a review of the substantive amendments by the government and by anyone here today who wishes, like Mr. Herron, for instance, to explain to the committee the specifics of their amendments, so as to gain time when we go into the clause-by-clause effort. As promised, we will not call the clauses today, but we will use this session to gain better insight into the scope of the amendments, and through that process, we will probably accelerate the work when we come to the clause-by-clause, beginning next Tuesday.

Madam Redman.

¿ (0920)

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

My question is very much along the lines of the timetable of this committee and the clause-by-clause. I do appreciate the fact that some people are still getting their amendments in, but I would respectfully request that we know when there is a cut-off date or whether or not we will be accepting new amendments all the way through. When do we assume we will be finished and actually start voting on them?

The Chair: We'll certainly start clause-by-clause on Tuesday. I anticipate a fairly speedy process at the beginning. Then it will become a bit heavy going as we progress. I'm not setting a deadline for amendments, because it just creates unnecessary tensions. Everyone has been informed that the current week is really the deadline. There may be some situations when some source will suddenly feel the necessity to make an amendment. As we did with Bill C-5, I see no reason to rule out proposals that may be useful. I hope, however, that this type of intervention will be very rare and only be proposed in situations that really warrant an amendment.

¿ (0925)

Mrs. Karen Redman: For further clarification, Mr. Chairperson, do you see us starting to vote clause by clause when you say we will start on Tuesday?

The Chair: Yes. On Tuesday we'll start with clause 2, and call the clauses one by one. We'll go through the usual process, as we did with Bill C-5. I think we will make fairly fast progress in the early clauses. Then we'll slow down, because we hit the mountains, so to speak.

Mrs. Karen Redman: Mr. Chairman, as we celebrated the first birthday of this legislation on June 1, as I believe it was, I would like to go on record as saying, from the government's perspective, we would be more than happy to have additional meetings, perhaps even night meetings, if this were the wish of the committee, in order to expedite this very important piece of legislation.

The Chair: All right, we'll keep that in mind. Thank you. We'll certainly make good use of the additional week next week. If members wish to meet in July and August, I will be glad to receive their indications on this.

We are fortunate to have the agency's officials here this morning. We welcome you again. Maybe you can take us through your amendments? Would you like to proceed, perhaps by eliminating the technical amendments or changes in language and instead giving us an insight into the substantive amendments you are proposing?

Mrs. Karen Redman: Mr. Chairman, our eminently capable staff are here to take us through the amendments. We have flagged about six substantive amendments. If you want, I could introduce them, and we'll go through them. If people have flagged other government amendments that they would like to discuss, we're fully prepared to do that at this time.

I would ask colleagues to turn to page 5 in the government amendments, the Red Hill Creek amendment, G-2. This proposed amendment follows through on what the minister said when he was here before the committee. It closes the potential loophole created by the Red Hill Creek Expressway decision of the Federal Court. It proposes to create a new interpretative clause in section 2 of the act. It will clarify that an undertaking that falls within the definition of project continues to be a project for the purposes of the act until a federal authority, such as the department, or a body regulated under the act, such as the Canadian Port Authority, takes a decision following an environmental assessment. In other words, projects that need a federal decision will not be able to proceed until the requirements of the act have been met.

I would ask Mr. Connelly if he would like to add anything to this proposed amendment on behalf of the government.

Mr. Robert Connelly (Vice-President, Policy Development, Canadian Environmental Assessment Agency): Thank you, Mrs. Redman.

As as a reminder of the history of this, because it might be helpful to put this into context, perhaps I could indicate that when Bill C-19 was tabled in March last year, it was prior to the Red Hill Creek decision, so there's nothing in Bill C-19, as it stands today, to deal with this issue. The concern we had with the court ruling was that we felt proponents in the future could argue that they could undertake certain actions, like clearing trees and doing certain preliminary construction work, and then claim that they had taken an irrevocable decision. As a result, paragraph (c) would no longer have applied. So this is the loophole we are trying to close with the proposed government motion.

¿ (0930)

The Chair: Are there any questions?

Mr. Reed.

Mr. Julian Reed (Halton, Lib.): I take it that there's no retroactivity in this.

The Chair: Apparently not.

Mr. Connelly.

Mr. Robert Connelly: No, there is not. It simply closes the gap on the issue of what would constitute an irrevocable decision. So it's meant more for future activities, developments, or proposals, to ensure that it would be clear that it is the government that would decide whether or not a decision was irrevocable.

Mr. Julian Reed: Thank you.

The Chair: While we are considering the government amendments, I will invite Mr. Bigras, who has an interesting number of amendments, and Mr. Herron to do the same with their amendments. Then we can move--

[Translation]

Mr. Bernard Bigras (Rosemont—Petite-Patrie, BQ): As far as the operation is concerned, I would like to know if we are just talking for the sake of talking. We have other committees, a lot of work in the House and a bill on pesticides which, in about half an hour, will be returned to the House. I think that we are wasting our time right now. A motion should be subject to a vote. I don't know if you are trying to kill time to ensure that the motion passes. I am going to have to leave you because I have something else to do; I will let my colleague, Herron, explain his amendments.

[English]

The Chair: Mr. Bigras, I understand your point. We hope to see you again on Tuesday.

Madam Redman.

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

The next substantive government amendment that I would ask the committee to turn to is on page 13. This is a section that deals with band council regulations. The Assembly of First Nations has raised a concern about Bill C-19 that it would require assessments where band councils have no corresponding decision-making powers over a proposed project. This proposed amendment will limit the requirement to do an assessment to situations where the band council actually has decision-making authority as to the project proponent, as a source of funding or when a band council grants permission under a bylaw or a similar instrument. This structure is based on the triggers of the acts of federal authorities and other bodies covered by the regulations. Again I would use the example of the Canadian Port Authority.

This follows through on what the minister expressed when he was here to address the concerns of the Assembly of First Nations. As he noted when he was before the committee:

It is important that these regulations for band councils are workable. There's no value in requiring a band council to do an environmental assessment of a project if a band council is powerless to influence or stop a project.

Again, I would ask Mr. Connelly if there's anything he would like to add on this amendment.

Mr. Robert Connelly: Perhaps I could again assist the members by attempting to put this into context. We have in Bill C-19 a proposal to amend section 10 to close a current legislative gap for projects that would receive federal funding on Indian reserves. In recent discussions we've had with the Mi'kmaq and Nova Scotia Indians on a pilot project to look at developing such a regulation--in fact, one of the previous witnesses before the committee spoke about this issue--we came to realize that the way in which we had worded Bill C-19 with respect to section 10 had some limitations. This motion is attempting to correct that problem.

¿ (0935)

Mrs. Karen Redman: Mr. Chairman, if there are no questions on that section, I would ask the committee to turn to amendment G-12, public consultation on scoping decisions. This has to do with comprehensive studies, Mr. Chair. This proposed government amendment follows through on the commitment made by the minister to provide an explicit opportunity for public consultation on scoping decisions during the comprehensive study process. It responds positively to the concerns that were raised by the Canadian Environmental Law Association, among others. The consultation will occur prior to the Minister of Environment's decision on whether to continue the assessment of a comprehensive study or to refer the project to a mediator or a review panel.

I would ask Mr. Connelly or Mr. Clarke if they have anything to add.

Mr. Robert Connelly: We believe this is an important addition to the revisions to the comprehensive study process. We also believe it does respond to a lot of submissions made by various witnesses before this committee showing a real desire to have a clear statement on the scope of the project and the scope of the factors that will be assessed at the time of the commencement of a comprehensive study review under the act.

Mrs. Karen Redman: The next government amendment is G-20, the parks ecological integrity amendment. Bill C-19 introduces changes to make transboundary sections of the act more operable. The proposed amendment follows through on the minister's commitment to provide explicit focus in the act for national parks and their ecological integrity. As the minister noted, these amendments will explicitly recognize CEAA as an instrument for protecting the ecological integrity of national parks, and these changes complement Parks Canada's excellent environmental assessment program, which covers between 800 and 1,000 projects annually.

Again, I would ask Mr. Connelly if there is anything he would like to add by way of explanation of this amendment.

Mr. Robert Connelly: I think the statements are quite clear, and I have nothing further to add on this particular amendment.

Mrs. Karen Redman: Then I would ask the committee, Mr. Chair, to turn to government amendment 23. This was an issue we heard about repeatedly from many witnesses, and it has to do with the paper-based registry. The minister referred to this when he was before the committee, that is, seeing that the paper-based registry required under the existing act would be retained in the revised environmental assessment process. The changes integrate both the new electronic registry that is proposed in Bill C-19 and the requirements for a paper-based registry in section 55 of the current act. It is certainly the goal of Bill C-19 to provide more opportunities for public participation. This registry will consist of a government-wide Internet site of project information, as well as retaining the paper-based public registry called project files. As with the current paper-based registry, project files will be accessible to the public and will include all scientific, technical, and other documents.

The proposed amendment, Mr. Chairman, adds two new features. The first is the recognition in proposed subsection 55(2) that the public's right to have access to documents under CEAA is in addition to the rights provided under the act. It explicitly enshrines this right, and will prevent departments from forcing the public to use the process under the Access to Information Act when seeking information about assessment. That fear was something we heard from witnesses, so we're expressly trying to address it. The second new element requires publication of scoping decisions on the Internet site for projects that undergo a comprehensive study.

Again, I would ask Mr. Connelly if there is anything he'd like to add to this.

¿ (0940)

Mr. Robert Connelly: On this issue, Mr. Chairman, let me say that when we included in Bill C-19 the idea of having an electronic registry, we saw this, as we still do, as a very important step forward in having the ability to require notification at the commencement of all assessments. However, when we did that, it was not our intention in any way to prevent or make more difficult public access to public files. In light of the concerns we heard from witnesses, we have brought forward this amendment to ensure that features that existed previously for public access would be maintained.

This particular motion has a lot of legal language around it because of the effort to integrate the two pieces and ensure that there was full replication of the previous paper-based registry. That's why it looks fairly complex here.

Mrs. Karen Redman: Mr. Chairman, on first blush, those would be the substantive ones we highlighted to go over with the committee. If there are questions on any additional government amendments, we'll be happy to speak to them at this time. If not, I'll be happy to respond to any of the discussion on any other amendments committee members may wish to bring forward.

The Chair: Thank you very much. That was extremely helpful, particularly for us to get a better understanding of the last amendment, G-23.

Mr. Herron, would you like to explain your approach to the committee?

Mr. John Herron (Fundy—Royal, PC): I don't know if there are any other opposition members who want to go first--

Some hon. members: Oh, oh!

Mr. John Herron: --but given that you've let this little fifth party go ahead first, I appreciate it, sir. I'm just getting warmed up with respect to some of these amendments we've brought forward, so I'd ask my colleagues to accept a little vagueness in some of my remarks. These are the thematic approaches that would be a normal course of action, I trust. These are the themes we'd like to be able to follow throughout the act itself.

One aspect we're quite concerned about came up after some questioning we had when the minister was here with the officials, and I think the term was that it could be somewhat problematic. I bring amendment PC-7 to the attention of members. It's on the aspect of the Minister of the Environment's capacity to delay a project, given that he or she may deem it to be problematic, and have that delay last for a period of 14 days. That's okay, but there's no capacity for the Minister of the Environment to extend that beyond the 14 days, if necessary, without having a more difficult, litigious approach, perhaps going to court. What I'm trying to do is provide more discretion and flexibility to the Minister of the Environment.

¿ (0945)

The Chair: Mr. Connelly, would you like to comment? This would be the deletion of the proposed “Order not to be reissued” subsection. Is there merit in that approach?

Mr. Robert Connelly: Mr. Chairman, I recall that Mr. Herron raised this also when the minister and we officials appeared a short time ago. We think the idea has some merit. We'd be interested in it. I think the intent here was not to reduce the authority, which Mr. Herron is concerned about. It is a suggestion worth looking at seriously.

Mr. John Herron: Even if this wording I provided isn't perfect, we can go with it. If the government wants to table an amendment that addresses a similar concern, that's fair ball too. It's a suggestion.

The Chair: We have an identical amendment from Mr. Bigras, but Mr. Herron's amendment was received first.

Mr. John Herron: And I'm here.

Some hon. members: Oh, oh!

The Chair: So yours will take precedence.

Mr. Connelly, can you perhaps next week have a firm opinion, one way or the other, on this amendment?

Mr. Robert Connelly: Yes, we can look at that, Mr. Chair. I think we understand the intent behind the proposal by Mr. Herron. We will look at it more thoroughly.

Mr. John Herron: The other concern I have is that with these sorts of things, it's helpful to provide flexibility and discretion. That gives us the capacity to find alternatives, to seek solutions. So I'm extremely amenable to the concept. There is language that is, in my view, somewhat problematic.

I'd like to go to PC-3. The terminology used in this clause really applies to two different amendments, this and PC-4. The concern we have is the terminology used for crown corporations. I believe you should lead by example, that there shouldn't be any differentiation. For what we expect of the private sector, the public sector should at least have an equitable litmus test. It talks of reviewing an assessment of environmental effects, as opposed to an environmental assessment. I don't think it's necessarily that problematic to have an assessment of environmental effects, but in the act itself there is no definition of what that is.

When I've tried to put concepts of this nature in an act before, whether it's on CEPA, pesticides, or even species at risk, the officials more often than not say, Mr. Herron, we accept the approach you're taking, but given that there's no definition, it's a very problematic phrase for us to use, because we don't know how it will be interpreted by the courts. I've heard that come from officials quite often. This is the same kind of situation. If that terminology needs to be used, okay, but why would we not have a definition in the act to provide more clarity to the courts in that regard?

¿ (0950)

The Chair: There is a traditional reticence by the government to cover crown corporations, if I remember correctly.

Mr. Connelly, how do you see the possibility of this amendment? It would have far-reaching impacts, right? The whole crown corporation community would not take it lightly.

Madam Redman.

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

When the minister did his report to Parliament, he committed himself to develop further regulations for crown corporations that would take advantage of the improvements in Bill C-19. One of the challenges before us that I would present to Mr. Herron and ask him how he would react is the difference among crown corporations. There's a vast variety. We look at CBC, the National Capital Region, Canada Post, the Canada Port Authority. There's a vast variety of corporations. I just wonder if he would like to react to a one-size-fits-all approach, which is basically what he's suggesting now with this amendment.

Mr. John Herron: I guess what's really connected is that the issue of environmental assessment of what the CBC or some of those crown corporations may be doing on a day-to-day level isn't really the concern of the act, so those are not really issues to be addressed. It's where certain crown corporations would have a larger environmental engagement because of what their operations would be. I don't see the point in the question exactly.

Mrs. Karen Redman: Perhaps, Mr. Chair, I could just further clarify. Look, for example, at the Canada Port Authority environmental assessment regulations. These were brought into force in 1999 and already provide a practical and effective model for regulating crown-like bodies. I wonder if this is something Mr. Herron has turned his attention to.

The Chair: In addition, Mr. Connelly, can you indicate to the committee the difference in approach between what is proposed in Mr. Herron's amendment and what is being proposed in Bill C-19, perhaps by way of a specific example, in addition to what Madam Redman just requested?

¿ (0955)

Mr. Robert Connelly: Perhaps I could just explain how the act at present is set up with respect to crown corporations, and then deal with the proposed changes in Bill C-19.

At the present time we have a provision in the act to develop a regulation for crown corporations. It's a type of one-size-fits-all situation. We have made--

Mr. John Herron: So that's a type of one-size-fits-all?

Mr. Robert Connelly: Under the current act it is. However, in Bill C-19 there are changes to allow for regulations to be developed that would be more tailored to the unique features of each crown corporation.

In addition to that, we have put in some other triggers with respect to crown corporations. For example, if we had a regulation for a crown corporation that is in the business of leasing land, we would be able, with Bill C-19, through regulation, to bring them in the future under the act.

I would also add two other points. In some circumstances, crown corporations are subject to the act at the current time simply because there might be another trigger. For example, if there is a requirement for a Fisheries Act authorization, it would be the Department of Fisheries and Oceans that would trigger CEAA, and the crown corporation would be a proponent in that situation. So in some instances initiatives of crown corporations are subject to the act at the present time, but not always.

What the minister has committed himself to in the report to Parliament, through the changes in Bill C-19, is to proceed to develop regulations in the future, tailor-made types of regulations, that would respond to the unique circumstances of those crown corporations that would be selected for such a regulation.

Mr. John Herron: I guess my concern is this. Maybe this is the track the chair was going down, and I think I understand where Madam Redman was coming from. The unique features of some crown corporations, such as the CBC, may not be as problematic in what they do on a day-to-day basis, but are we suggesting that for something that would potentially have a different environmental character, such as Atomic Energy of Canada, we would do it through a regulatory framework, as opposed to making them subject to the act?

Mr. Robert Connelly: Mr. Chairman, in response to Mr. Herron's question, we could, through the regulation-making provisions we have under the act at the present time, plus the proposed amendments in Bill C-19, bring in a regulation for Atomic Energy of Canada Limited. We could do that today. We'd have to do it through regulation. I would note in passing, though, that most of the projects initiated by Atomic Energy of Canada Limited in Canada are subject to licensing decisions by the Canadian Nuclear Safety Commission, and so at least are covered under the Canadian Environmental Assessment Act at the present time, in most instances.

Mr. John Herron: What about abroad?

Mr. Robert Connelly: That is a different issue.

Mr. John Herron: So it's--

The Chair: So we have a better understanding, could you tell us what the difference is between an environmental assessment and an assessment of environmental effects?

Mr. John Herron: That's a good question.

Mr. Robert Connelly: I'll turn to my colleague Heather Smith to assist us in that explanation, as there are some legal issues with that difference as well.

Ms. Heather Smith (Senior Counsel, Canadian Environmental Assessment Agency): The term environmental assessment is defined in the act. Basically, we interpret that to be the process that's set out in sections 15 to 45 of the Canadian Environmental Assessment Act. The expression assessment of environmental effects is used to describe what are basically environmental assessments using any other process that is not set out in sections 15 to 45. So it can cover assessment processes of municipal governments, provincial governments, and aboriginal governments under self-government agreements, regulatory schemes, such as the ports authority regulations, which are set up under the act, and international processes. We describe any process that's not the one set out in sections 15 to 45 as an assessment of environmental effects to distinguish between what you have to do under the act and any variance from it. That's why you find those two terms in the act.

À (1000)

Mr. John Herron: Why wouldn't we have a definition, then?

Ms. Heather Smith: Right now it covers everything that is not in sections 15 to 45, and if you were to try to define it, you would probably exclude something inadvertently.

The Chair: Could you prepare a memo for the next meeting of this committee outlining the difference between the two concepts in legal terms, as you just did, but also conceptually, so that we understand what on earth we are dealing with here?

Mr. Robert Connelly: Yes, we can do that, Mr. Chairman.

The Chair: Could you also indicate, perhaps not now, but at a later date, why the harbour commissions and CIDA are covered by your very lengthy amendments and EDC is not? In other words, certain crown corporations are included, while others are not. Considering the impact EDC's activities have on the environment, a natural question is, why was it not included?

Mr. Robert Connelly: I can respond to the latter question right now if you wish, Mr. Chairman. The provisions in the act and Bill C-19 would allow, in effect, a regulation to be developed for any crown corporation. However, one exception does exist, and that is changes made recently to the Export Development Act that create within that act an environmental review mechanism similar to environmental assessment, and it expressly excluded the application of the Canadian Environmental Assessment Act to those undertakings.

The Chair: Are you happy about that exclusion?

Mr. Robert Connelly: I think my happiness or the lack of it is really not the issue, Mr. Chair. I'm just giving you the facts as to what has happened here.

The Chair: We'll go back to Mr. Herron. Mr. Herron, as we proceed, perhaps you could clarify whether we are still on PC-3 or PC-4 in your line of questions.

Mr. John Herron: Yes.

Something just struck me on this. If we provide a different regulatory framework for crown corporations--and it's not my intent to pick on AECL, which has a larger environmental character to it--you raised a very real point, that they are subject to other Canadian statutes where we would have an environmental assessment. But you said that if a project of that nature were to be done abroad, it would be a different issue altogether. By not making them subject to an environmental assessment, could the bar potentially be lower on the environmental assessment aspects for a project that is done abroad than it would be for a project done domestically?

Mr. Robert Connelly: Mr. Herron, I would simply explain again the different situation in the context of AECL operating abroad. Within Canada, if AECL undertakes some project under the act--if it is a project, it's defined under the act--and if there is a licence or a decision to be made by the federal government--and inevitably, AECL does require a licence for its projects from the Canadian Nuclear Safety Commission--we have a means of triggering the Canadian Environmental Assessment Act domestically, because we have a licensing department, in effect. In those instances AECL is a proponent. When you get offshore, operating perhaps in another country, as a government, we don't have the same regulatory mechanisms for something that might take place in, say, India, as we would have in Canada. That is the difference.

À (1005)

The Chair: Mr. Reed.

Mr. Julian Reed: I wanted to put on record that there is a public perception that government, crown corporations and government activity, is somehow excluded from the rigours of environmental law. I've seen this practised at the local level, where environmental common sense is thrown to the winds, but the response is, that's government, they can do whatever they want. I'm trying to wrestle with this question of why certain government agencies should be exempt from the Environmental Assessment Act, because it appears to me to perpetuate that perception. That's what I'm trying to wrestle with.

Mr. Robert Connelly: Mr. Chairman, let me respond to Mr. Reed's question by pointing out that the way the act is structured, with the motions to amend, we would have the regulatory mechanism to bring selected crown corporations under the act in the future. We have an ability to do that, but it would be through a regulatory mechanism rather than having them subject to the act, as a department would be today.

Mr. Julian Reed: What I'm getting at is, while I, as a private entrepreneur, might undertake a project that would be subject to this act, certain crown corporations, doing exactly the same thing, would not necessarily be.

Mr. Robert Connelly: That's a very good question, in the sense that the answer is not simple. In a number of circumstances, the equivalent project by the private sector or a crown corporation would be subject to the act. It depends very much on the way in which the act is triggered. If you had a development by a private sector company that required a permit or licence from the federal government, say through the Fisheries Act, again using that example, and you had a crown corporation undertaking something similar, it might also require a permit or authorization from the Department of Fisheries and Oceans. So in that sense, that particular crown corporation would be treated the same way as a private sector developer. There may, however, be circumstances where no such triggers exist. Let's say there's an undertaking by a crown corporation on land that it manages and there's no federal decision as such. In that instance, the act would not apply unless we had a regulation in place.

Mr. Julian Reed: It's a legislated double standard we're living under at the present time.

À (1010)

Mr. Robert Connelly: Well, we have provision, Mr. Reed, to bring crown corporations under the act in future. The commitment has been made by the minister in his report to Parliament to do that over time for selected crown corporations.

Mr. Julian Reed: Thank you.

The Chair: The floor is yours, Mr. Herron. As you make the intervention, could you also comment on whether it would be fair to say your amendment PC-4 is dependent on the passing of PC-3?

Mr. John Herron: There's an intentional connection between the two. If you go further into that particular clause, concern arises over the phrase used in the act: a Crown corporation within the meaning of the Financial Administration Act or any corporation controlled by the Crown corporation, shall, if regulations have been made in relation to it under paragraph 59(j) and have come into force.... The key word is “if”. Although there is a commitment by the Minister of the Environment in his report to make regulations, why can't they be under the same framework, an accepted framework, of CEAA and the flexibility in what needs to be done be addressed in how the assessment is undertaken, as opposed to having for certain a temporary loophole? If the regulations have never been made, they're not subject to anything under regulations. They're subject to essentially no specific law.

If we want to change that to “the Minister will make regulations for Crown corporations”, that's another approach we could take. This is the specific concern the environmental law organizations had in that regard.

Does that address your question, Mr. Chair?

The Chair: I hope so, but it has only answered my first question. Thank you.

Mr. John Herron: I don't want to take up the committee's time, but we've spoken about the crown corporation concern we have. I don't think it's necessarily appropriate to have a two-tier approach for a crown corporation.

There's another concern I would like to raise, and it will be the last one I'll do for the moment. I see there is a problem when we use PC-13 concerning model or class. I would be interested in hearing the officials' comments on the amendment itself. My concern stems from the fact that the intent of this amendment is to ensure that there are no replacement-class screenings, only model-class screenings. A replacement-class screening will not, in many folks' view, including my own, take into consideration the local circumstances of cumulative effects the project might have. I completely concur with the idea that the model should be utilized and then adjusted for the cumulative effects. With a class alternative, there seems to be a consensus amongst the environmental law community that the cumulative effects will not be taken into account.

Where I'm a little scared about this comes from a legal precedent perspective. The Americans will be building a lot of power plants in the next decade or so. Each of those power plants may not necessarily be that problematic, but it's about where they are located, not whether they are built, with respect to prevailing winds etc. Under that kind of model, if we have a class approach to these power plants, we're not really considering the larger cumulative issue. What do we say to the Americans down the road once the government of Canada, hopefully, takes up this issue about the siting of U.S. power plants? Our own Environmental Assessment Act doesn't even address that kind of concern.

À (1015)

Mr. Robert Connelly: Mr. Chairman, let me respond to Mr. Herron by saying that I appreciate the concern he's raised and the example he's given. We would not envisage class screening as applying to a project of that magnitude. As you correctly indicated, we have the mechanism now for class screening, the model-class screening. It is starting to get more support and more attention than in the initial stages of CEAA, I might add, and we have a number of models we have initiated or that are under way.

I would just like to clarify what we are proposing to do with respect to replacement-class screenings. These would be for very small projects--I can give you some examples in a moment--that are of a repetitive nature and where the impacts are generally quite small. We have felt, as a number of witnesses have also indicated when appearing before you, that one of the criticisms with this act is that it often applies to too many small projects and there ought to be greater focus on the larger ones. This is something we're sympathetic to. We felt that rather than taking an approach, which could be done, of excluding a lot of these smaller projects, we might find some benefit in bringing in a concept called a replacement-class screening. This would be a kind of code of practice. In other words, if you have this type of project, you follow the mitigation measures that are outlined in this replacement-class screening, and then the project can simply proceed. It was seen as a means of dealing with the smaller projects and reducing the administrative burden associated with them.

Mr. John Herron: Could you explain how this would make any difference on the ground from the tool kit you have right now under model-class, such as time saved, how much more efficient it would be?

Mr. Robert Connelly: One of the reasons the model-class screening did not gain a lot of acceptance initially from responsible authorities was that with the model-class screening, you still have to do a project-specific report. There is additional work involved in that. That was seen as a disincentive, in some ways, to using the class screening tool under the bill at the present time. We still want to keep that, mind you, but what we're proposing with the replacement is that if you have a project that fits in this replacement-class screening concept, all you would have to do, as a responsible authority, is make sure you follow the code of practice. There would not need to be a specific report written up on that project. Some examples I have here would be the construction of small health care facilities on Indian reserves, the construction and removal of fences on agricultural lands. These are examples of the kinds of things we're looking at for replacement-class screenings.

À (1020)

Mr. John Herron: I'd really like to seek the officials' input on my amendment PC-21 on proposed subsection 55(2). There's an immense amount of concern that the follow-up aspect of our environmental assessment program is not carried through. We heard that through numerous decks of information that were provided to committee members, and also through testimony itself. This amendment would oblige the responsible authority to explain or justify its decision to have a follow-up program or not. It would also ensure that reason is given for refusing to allow the project to go ahead. This would appear in the public registry. It would provide information about why they chose to do that type of follow-up as opposed to perhaps another one. At the end of the day, what this comes down to is that without a comment from the responsible authority that ends up in the public registry, we never know if a follow-up has actually taken place or not.

I'd like to see what the officials have to say about this particular amendment. I hope I can garner support for it from both sides of this table down the road. It's the accountability mechanism. Right now it's not public at all whether or not follow-up has been done. The Canadian public has no access to that kind of information. If it's provided in the public registry, perhaps there could even be a reason it wasn't necessary to do the follow-up. Well, then they could put that in that public registry and say so.

Mr. Robert Connelly: We think we have a section in the registry that deals with this, but we're just trying to dig it out, if you could bear with us a bit.

Mr. John Herron: I'm betting you don't.

The Chair: While the witnesses are collaborating, Mr. Herron, could you also explain to the committee your motion PC-18, which is rather massive? Certainly, it would be helpful to understand what prompted you to propose it.

Are you ready to comment on the former amendment, Mr. Connelly?

À (1025)

Mr. Robert Connelly: Yes, Mr. Chairman, I think I can respond to Mr. Herron.

Mr. Herron, I think we have responded to your concern. I would refer you to the government motion G-23. Proposed paragraph 55(2)(r) indicates that there would be a requirement for “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”.

Mr. John Herron: My first response, as I just see it now, is, if it achieves what we're after, fine. We'd like to have a chance to take a look at it, maybe using the same language. It seems to have merit, and I'd like to have a look at it.

Mr. Chair, to address your concern on PC-18, it's my researcher's belief that the officials themselves and the government may have made amendments that address a similar concern as well. Essentially, what the amendment is intended to do is ensure that we maintain the ecological integrity within our national parks and that activities of development within a national park go through the level of scrutiny of an environmental assessment, which I think it's incumbent on us to do, given that they are national parks. I believe you may have amendments of the same nature as well.

À (1030)

The Chair: Would that be G-20 Mr. Herron is referring to?

Mr. Robert Connelly: Yes, Mr. Chairman, that's correct. That is the government motion on the issue of national parks and ecological integrity. I guess we have to look carefully at Mr. Herron's motion to see if it is, as he suggests, very similar. I think it probably is, but we'll have to look carefully at it.

Mr. John Herron: We need to determine whether there's commonality between the two, whether the government amendment is a better approach than ours or vice versa. I suspect how that might end up, but we can discuss that later on. But that's the intent of the amendment, sir.

The Chair: Would it be fair to say that you need until next Tuesday to examine the amendments, other than the government amendments, so that you are in a position next week to make a comment?

Mr. Robert Connelly: On this particular amendment?

The Chair: No, in general. You are evidently facing a large number of amendments that will require your comment, and we'll certainly turn to you for a comment. Do you have enough time before next Tuesday to arrive at a position for each non-government amendment?

Mr. Robert Connelly: Yes, I believe we do, Mr. Chairman. We're scrambling a bit today because we only received some of them yesterday, some even this morning, I think. But between now and Tuesday we've lots of time to look at these various motions.

Mr. John Herron: On your amendment, I was a little concerned. The good news is that we have the Canada National Marine Conservation Areas Act. The bad news is that your amendment doesn't refer to it.

Mr. Robert Connelly: I'm not sure what the nature of the question is, Mr. Herron.

Mr. John Herron: In G-20 you refer to the National Parks Act. Why would you not make a comment with respect to the marine conservation act as well?

Mr. Robert Connelly: The reason is that there's also an existing section in the act at the present time that refers to federal lands, and I think--and we'd have to verify it--that particular section would cover marine parks as well.

Mr. John Herron: Wouldn't it be more simple to use “and marine conservation act”?

Mr. Robert Connelly: That's an item we could examine, Mr. Herron. It may be covered. I guess it's a question of whether you want explicit reference or not.

Mr. John Herron: This may be one of these issues where, if it might do some good, you include it, and it won't hurt not to. To provide more clarity, that might be a better approach to take.

Mr. Robert Connelly: That's certainly something we could look at.

Mr. John Herron: Her Majesty's Official Opposition rests.

The Chair: Are there any further comments or questions? If not, I am inclined to adjourn the meeting.

This exercise, as you have noticed, requires a lot of detailed attention. It is rather complex, and I think the past hour and a half has been helpful as a learning process. The officials will have time between now and Tuesday to examine the amendments that are still to come. I hope they will be ready very soon. The explanation by Mr. Herron of his amendments has at least given us an idea of the intent behind them.

If the committee is in agreement, I will adjourn.

Some hon. members: Agreed.

The Chair: Thank you.