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37th PARLIAMENT, 1st SESSION

Standing Committee on Environment and Sustainable Development

EVIDENCE

CONTENTS

Thursday, April 11, 2002

0905

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

Ms. Martha Kostuch (Vice-President, Friends of the Oldman River)

0910

The Chair

Mr. Stephen Hazell (Executive Director and General Counsel, Canadian Parks and Wilderness Society)

0915

0920

0925

The Chair

Mr. John Burcombe (Mouvement Au Courant)

0930

0935

0940

Mr. Peter Duck (President, Bow Valley Naturalists)

0945

The Chair

0950

Mr. Bob Mills (Red Deer, Canadian Alliance)

Ms. Martha Kostuch

0955

Mr. Bob Mills

Ms. Martha Kostuch

Mr. Bob Mills

Ms. Martha Kostuch

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

1000

Mr. John Burcombe

Mr. Bernard Bigras

Mr. John Burcombe

1005

Mr. Bernard Bigras

Mr. John Burcombe

The Chair

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

Ms. Martha Kostuch

Mrs. Karen Kraft Sloan

1010

Mr. Stephen Hazell

1015

Mrs. Karen Kraft Sloan

Mr. Stephen Hazell

Ms. Martha Kostuch

Mrs. Karen Kraft Sloan

Ms. Martha Kostuch

Mrs. Karen Kraft Sloan

Ms. Martha Kostuch

Mrs. Karen Kraft Sloan

The Chair

Mr. Julian Reed (Halton, Lib.)

Ms. Martha Kostuch

Mr. Julian Reed

Ms. Martha Kostuch

Mr. Julian Reed

Ms. Martha Kostuch

Mr. Julian Reed

The Chair

Mrs. Karen Redman (Kitchener Centre, Lib.)

1020

Mr. John Burcombe

Mrs. Karen Redman

Mr. John Burcombe

Mrs. Karen Redman

Mr. John Burcombe

Mrs. Karen Redman

Mr. John Burcombe

Mrs. Karen Redman

Mr. Peter Duck

1025

Mrs. Karen Redman

Mr. Peter Duck

Mr. Stephen Hazell

The Chair

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

Ms. Martha Kostuch

1030

Mr. Stephen Hazell

Ms. Martha Kostuch

Mr. Alan Tonks

Ms. Martha Kostuch

Mr. Alan Tonks

1035

Ms. Martha Kostuch

Mr. Alan Tonks

Ms. Martha Kostuch

Mr. Tonks

Ms. Martha Kostuch

Mr. Alan Tonks

Ms. Martha Kostuch

Mr. Alan Tonks

The Chair

Ms. Martha Kostuch

1040

The Chair

Ms. Martha Kostuch

The Chair

Mr. Stephen Hazell

1045

Ms. Martha Kostuch

Mr. Peter Duck

The Chair

Mr. Bob Mills

1050

Mr. Stephen Hazell

Ms. Martha Kostuch

Mr. Bernard Bigras

1055

Mr. Stephen Hazell

Mr. John Burcombe

Mr. Bernard Bigras

Mr. John Burcombe

The Chair

Mrs. Karen Kraft Sloan

1100

Mr. Peter Duck

Mrs. Karen Kraft Sloan

Mr. Peter Duck

Mrs. Karen Kraft Sloan

Mr. Peter Duck

Mrs. Karen Kraft Sloan

Mr. Peter Duck

Mrs. Karen Kraft Sloan

Mr. Peter Duck

Mrs. Karen Kraft Sloan

1105

Mr. Peter Duck

Ms. Martha Kostuch

Mrs. Karen Kraft Sloan

The Chair

Mr. Julian Reed

Mr. Stephen Hazell

Mr. Julian Reed

Mr. Stephen Hazell

Ms. Martha Kostuch

Mr. Stephen Hazell

Mr. Peter Duck

Mr. Julian Reed

1110

Ms. Martha Kostuch

Mr. Stephen Hazell

The Chair

Mrs. Karen Redman

Ms. Martha Kostuch

Mrs. Karen Redman

1115

Mr. Stephen Hazell

Mrs. Karen Redman

Mr. Peter Duck

Ms. Martha Kostuch

The Chair

1120

Mr. Rick Laliberte (Churchill River, Lib.)

Ms. Martha Kostuch

Mr. Stephen Hazell

1125

Mr. Rick Laliberte

Ms. Martha Kostuch

Mr. Laliberte

The Chair

Ms. Martha Kostuch

1130

The Chair

Mr. Bob Mills

Ms. Martha Kostuch

Mr. Bob Mills

Ms. Martha Kostuch

Mr. Bob Mills

Ms. Martha Kostuch

Mr. Stephen Hazell

1135

The Chair

Mrs. Karen Redman

The Chair

Mrs. Karen Kraft Sloan

Ms. Martha Kostuch

Mrs. Karen Kraft Sloan

Ms. Martha Kostuch

The Chair

CANADA

Standing Committee on Environment and Sustainable Development

NUMBER 066

1st SESSION

37th PARLIAMENT

EVIDENCE

Thursday, April 11, 2002

[Recorded by Electronic Apparatus]

¿ (0905)

[English]

The Chair (Hon. Charles Caccia (Davenport, Lib.)): The work of this committee is Bill C-19, which, for those who are following the proceedings, is a piece of proposed legislation to amend the Canadian Environmental Assessment Act.

We have heard several witnesses already. We are now in the final stretch of concluding public hearings. Today we're very fortunate to have representatives from various parts of the country and with various streams of thoughts. We have Martha Kostuch from the Friends of the Oldman River--welcome. From the Canadian Parks and Wilderness Society we have Stephen Hazell, well-known author on the subject. From Montreal we have the Mouvement Au Courant, with Mr. John Burcombe--welcome. Finally, from the Bow Valley Naturalists, Banff in particular, we have Mr. Peter Duck.

So without delay we invite you to make your presentations. Please keep in mind that the more time you leave for questions and answers, the better the meeting usually evolves because it's in that period that items are put on the table that may have not been covered adequately before. Who would like to go first?

Ms. Martha Kostuch (Vice-President, Friends of the Oldman River): I was on there first, so I'll go first, and I am going to keep my comments short. You have copies of my submission. I'm only going to highlight it, though.

The three main points I'd like to get across today are: the federal government's failure to comply with CEAA as it now exists; second, the importance of the public registry and keeping the public registry that currently exists; third, the issue of comprehensive studies versus panel reviews.

I'd like to start by showing you an example. The best example I can think of is Sunpine Forest Products Ltd. Sunpine gives a very good example of the first two points I'd like to make. To start with, it gives a very good example of the federal government's failure to comply with CEAA. In Sunpine we had to take the federal government to court to force them to comply.

I'm going to show you some pictures, but first some slides. I have some slides of the Sunpine Ram River Bridge and Mainline Road. In the case of Sunpine, the federal government scoped the project as being just the bridge over the Ram River. There are 21 bridges that are part of this Mainline Road, and the Mainline Road is 41 kilometres long, but the federal government scoped the project as only the bridge over the Ram River--the bridge and the abutments--and nothing else.

I have some pictures of the bridge and the Mainline Road, and only four slides, to show you.

This is the Ram River Bridge, and that's another picture of the Ram River Bridge. As you can see, it's part of a fairly significant road. These pictures were taken post-1996, which was when the bridge was built.

This is the clear-cutting that has occurred in the area that has been accessed by the Mainline Road and is near the Mainline Road. You can see the mountains in the back.

These are aerial pictures of the clear-cutting. That was not included in the assessment, nor was the road itself included in the assessment.

Here is another picture of the clear-cutting, near the Mainline Road, that was accessed by the bridge. I have some pictures of the actual bridge and road, which I'll pass around as well so you can see them.

The fact is that the road and bridge were clearly interdependent and linked. The bridge was of no use without the road, and the road could not be used without the bridge. Yet the bridge was assessed in isolation by the federal government; they only looked at the bridge. The project should have been defined as the Mainline Road, which, as I said, included 21 stream crossings.

So my first recommendation is that CEAA should be amended to clarify that the scope of the project to be assessed must be broadly defined and must include physical works and activities that are interdependent and/or linked to the principal project.

The second point Sunpine makes clearly concerns the public registry. In the case of the public registry, we requested the information in the public registry and that the public registry be established in the public library in Rocky Mountain House so the public could access the documents.

DFO's response was, no, you had to access the documents by going through the information process, which was totally unrealistic, knowing the timing. When that didn't work, they said, “Well, the public registry is convenient to us. We've located it in Sarnia, Ontario, and that's convenient for DFO.” The courts said, “I'm sorry; that's not acceptable. Number one, you have to provide all the documents that are in the public registry in relation to this project--all of the documents--and number two, the public registry must be convenient to the public, not to the Department of Fisheries and Oceans.”

¿ (0910)

So they ordered that the public registry be set up in a location convenient to the public and that it include all the documents. Recommendation two is that section 55 should not be amended. The requirement for the public registry to be established “in a manner to ensure convenient public access” and for the registry to contain all the records should remain in the act unchanged.

Now, my third recommendation is that the Bill C-19 amendment to establish an electronic registry should be in addition to the existing paper public registry requirements, not instead of.

The third point I want to talk about is the comprehensive study versus the panel review. To me the solution is very simple, and it's not Bill C-19, though Bill C-19 is proposed as a solution. The simple solution removes uncertainty. It does not require the development of a complex process to determine whether projects should go through a panel review or a comprehensive study, and it ensures independent review by an independent panel. It is to change the comprehensive study list to a panel review list, a very simple solution. My recommendation four is to change the comprehensive study list to a panel review list.

I have brought for your assistance a copy of all the rest of my recommendations separated out from my full brief. I have also made more detailed comments on Bill C-19 within my submission.

To conclude, the federal government needs to actually comply with CEAA. That's the biggest thing. Second is the importance of maintaining the public registry as it now exists. And third, we should have panel reviews and do away with comprehensive studies.

I would certainly invite questions. I'm not sure, Mr. Chairman, if you want to go with the other panellists or if you want to do questions first.

The Chair: Thank you.

Yes, we will run through all the witnesses. Mr. Hazell, would you like to be next?

Mr. Stephen Hazell (Executive Director and General Counsel, Canadian Parks and Wilderness Society): Thank you, Mr. Chairman, members of the committee.

I am the executive director of the Canadian Parks and Wilderness Society. We characterize ourselves as Canada's grassroots voice for wilderness. We've been involved with environmental assessments and lawsuits challenging environmental assessments, how they've been conducted, for several decades now.

I want to say a few words about one particular provision of Bill C-19, and then, with your permission, Mr. Chairman, I'd like to talk a little bit more broadly about some matters that touch on Bill C-19 but have somewhat of a broader context.

My first comment relates to the proposed amendment to section 48 of the act. This has to do with providing the Minister of Canadian Heritage, the minister responsible for national parks, with authority to conduct a cost study or a panel review where a project is likely to have significant adverse environmental effects on a national park. Jerry DeMarco, from Sierra Legal Defence Fund, has been before you already, arguing that this amendment should be made. I'm here to support what Jerry has been saying. And I think there have been other conservation groups here as well speaking on that point.

We think this would be a very useful tool for the minister responsible for parks to deal with developments occurring on park boundaries that she would otherwise not have any authority to deal with. There's been a very recent example of that in Prince Edward Island with the Greenwich resort development. The minister of national parks has no capability to assess what the effect of that development is going to be on Prince Edward Island National Park. She should have that authority. I don't know what the issue is, but I would encourage members of this committee to consider carefully that amendment.

The balance of my remarks deal more broadly with issues relating to Bill C-19 and the five-year review. In my opinion, the current bill really doesn't deal with the key challenges facing federal environmental assessment. It does do a number of important things, and I think my colleagues will probably talk about some of those. And there are some problems as well. I've mentioned one of them. But it doesn't really deal with what I feel are the key challenges facing environmental assessment.

I wanted to suggest that this committee could take on that role, independent of what you do with Bill C-19. By all means, consider amendments to the bill, pass the bill. I think there is a larger, broader task that this committee could take on, pursuant to its other responsibilities.

First of all, I want to walk you through some of what I believe are the real key challenges facing federal environmental assessment and perhaps suggest how the committee might deal with them.

There are four challenges that I think are important. One is that the current regime doesn't assess the environmental effects of major projects of Canada-wide importance that haven't been triggered by one of the four CEAA triggers. That's one challenge.

The second relates to cumulative environmental effects. How do we come to grips with the cumulative effects of many small projects on sustainability and ecological integrity?

Thirdly, how can we engage environmental assessment to meet other government commitments? And I think this is really almost the most important point of all. We have government commitments to reduce greenhouse gases. We have government commitments with respect to biodiversity, with respect to the ecological integrity of national parks, but by and large, the federal EA system is not engaged to meet those objectives. How can we take the federal EA and actually apply it to meet some of these existing government commitments? So that's number three.

Fourth, how do we assess the environmental effects of proposed government policies, programs, and plans?

¿ (0915)

On the first point, this question of looking at major projects, Canadians look at the federal system and think, what is going on? On the one hand, you have panel reviews of airport expansions for Toronto and Vancouver, but Dorval comes along and there's no federal assessment at all.

Another example is major ski resort developments. For the Sunshine ski development in Alberta there was a panel review, but there was no federal involvement, and nothing happened on the federal front with respect to other ski resorts, at Whistler-Blackcomb, for example.

For huge projects like the CANDU nuclear reactor sales to China, with $1.5 billion in federal loan guarantees, no federal EA. It's the same for the proposed sale to Turkey. Canadians look at that say, why isn't the federal government involved in some way? It seems so spotty. It doesn't seem to make sense.

There are reasons why assessments were or were not done in each of those cases, no doubt, but what I'm arguing is, for the federal government there are some projects that should be assessed at a national level because they are of national importance. That has not been done. That sort of analysis has not been done as part of the Bill C-19 process. I suggest that this is something this committee could take on. Think about that. How do we actually make the federal EA system make sense as a part of the overall system?

I'm not saying the federal government should be doing everything. I don't believe that. I believe there has to be some focus, and there may be some areas in which we actually want to delegate it to the provinces, the northern territories, the first nations, or whomever.

So my first point is that the act should define a Canada-wide interest in environmental assessment that justifies a federal lead on major projects that may not require any federal decision.

The second point relates to assessing cumulative environmental effects. I think it's important to note that the current act has an important innovation in it, in that it does require assessment of “any cumulative environmental effects that are likely to result from the project in combination with other projects or activities that have been or will be carried out”. That's an important advance. By and large, it hasn't been implemented very well. In several large projects there has been assessment of cumulative environmental effects. In the Great Whale project it was done to a certain extent, and in the case of the Cheviot coal mine it was done only because CPAWS and CNF successfully brought an action against the federal government that compelled the government to do that. Ultimately, a fairly decent cumulative effects assessment was done.

This is something I really don't think has been effectively dealt with through the Bill C-19 process. I don't think you're likely to get amendments through the Bill C-19 process that will really address the question of cumulative environmental effects, but it is something this committee should think about as part of its considerations on the bill or some other process. It's up to you. That's the second point.

Third, this is where we really have to give some serious attention. Under the federal...at the moment the purpose really is to identify adverse environmental effects, assess their significance, and design mitigating measures. That's what it's all about, but by and large that whole process is not linked to meeting other federal commitments with respect to the environment. It doesn't, by and large, deal with biodiversity. It doesn't, by and large, deal with reducing greenhouse gas emissions. It doesn't, by and large, deal with the ecological integrity of national parks. How do we make that happen? It just seems crazy. We're spending tens of millions of dollars on federal EA, but it's not explicitly directed towards achieving other government commitments. How can we do that? It's not dealt with under the Bill C-19 process.

I do want to mention that these aren't brand-new ideas. The Canadian Environmental Assessment Agency has been thinking about some of these things. They do have guidelines on climate change, and they do have guidelines on biodiversity, so they are thinking about it.

¿ (0920)

But it's not in the law. Right now the law says “assess the significance of the environmental effects”. Well, what is that? Great efforts have been given to figuring out what “significance” actually means. I was part of it when I was at the agency, but it's very difficult; it doesn't mean anything. What means something to people is, for example, the DFO policy: “no net loss of fisheries habitat”. That's something people understand. That's a clear policy objective. DFO, for all its faults--and Martha could speak for a while on that subject--nonetheless has a clear policy objective, and if we really focused on using environmental assessment to meet that objective, we would actually have some serious environmental protection going on. So I'm suggesting we capture some of those core ideas--biodiversity, reducing greenhouse gas emissions, ecological integrity of national parks and other federally protected areas--and orient the environmental assessment system towards achieving those objectives.

It hasn't happened in the Bill C-19 process. The minister didn't want it to happen; the minister wanted a very scoped and narrow five-year review. I'm not faulting anyone at the agency for what has or has not been done. But this is something this committee could take on if you felt it was important.

Let me give you one example of how this might work. Right now, the Mackenzie Valley pipeline is coming up, and a lot of people have been thinking about how the environmental assessment of the pipeline will actually work. It's not, in the documents released so far--and there are a number of agencies involved, including the Environmental Assessment Agency and different northern claims EA groups--obvious what we're trying to achieve out of all of this. We're going to go through this great process and identify environmental effects. What then? How does that relate to protecting biodiversity--the caribou, for example--or how does it affect reducing our greenhouse gas emissions? We have to think that through in advance. That's the challenge, and I don't have the answers necessarily, but as I say, it's something I think this committee could take on.

The final thing I wanted to talk about was so-called “strategic environmental assessment”. That is the assessment of proposed policies and programs of the federal government. Bill C-19 deals with projects--dams, forestry operations, pipelines, this sort of thing. What I'm talking about is government policy. How do we ensure that government policies are actually environmentally sane?

Since 1990 there has been a so-called cabinet directive that Robert de Cotret brought in when he was Minister of the Environment that has said all ministers, before they bring forward a submission to cabinet, are to examine the environmental effects of that particular proposal. It's not a legal requirement, but it was a policy requirement issued by the Privy Council Office. It was revised in 1999--substantially weakened in 1999--by the current government. Since that time, really, there's been virtually no information about strategic EAs that have been done, that I'm aware of. In the period between 1990 and 1999, there was some information that was publicly available, and I've written a paper on that with my colleague, Hugh Benevides, if there's interest.

The question is how we do this. Given cabinet secrecy, how do we ensure that the next federal budget makes sense from an environmental point of view? It's not an easy issue. I've made some suggestions in my brief about some bare-bones legal requirements that might be considered. I don't think this committee can consider those suggestions as part of the Bill C-19 process, but I do think it's important that it be taken on, and I think this committee is perhaps the right body to do it at some point.

I would urge you to consider those remarks, and I would love to hear your questions.

Thank you.

¿ (0925)

The Chair: Thank you.

Monsieur Burcombe, s'il vous plaît.

[Translation]

Mr. John Burcombe (Mouvement Au Courant): Good morning, Mr. Chairman and committee members.

My name is John Burcombe. I represent the Mouvement Au Courant, which is a volunteer group established in 1989. The group has two major objectives: first, to ensure the rational use of natural resources and, second, to promote public participation in decision-making processes.

We are very familiar with the environmental assessment process conducted by Quebec's Bureau d'audiences publiques sur l'environnement, the BAPE, having participated in some 30 public hearings organized by the BAPE.

At the federal level, Mouvement Au Courant has participated in the assessment process for several projects in Quebec and elsewhere in Canada. Most recently, the group submitted comments on Hydro-Quebec's Toulnustouc hydro electric project comprehensive study report.

The aspects of the Canadian Environmental Assessment Act, which I will refer to from now on as the Act, of particular interest to us are the definitions of environment, environmental effect and project. After covering these particular aspects, we will be making comments on the options available for projects subject to a comprehensive study, the public registry and the need for future review of the Act.

It is useful to compare certain provisions of the Act with Quebec legislation, particularly with respect to definitions. Although the Act—when I say Act, I am referring to Bill C-19—does not seek to amend definitions, I would like to begin with comments on the importance of definitions and their impact on the scope of the Act.

In the Act, the current definition of the word environment, which deals solely with the biophysical environment, is outdated. The definition contained in Quebec's Environment Quality Act (EQA), is much broader, even though it dates back to 1972. The definition used in this Act states that the environment comprises:

the water, atmosphere and soil or combination of any of them or, generally, the ambient milieu with which living species have dynamic relations.

This definition is still valid because it allows for the addition of economic, social and cultural aspects, as required by case law. The current concept of “environment” applied by Quebec's Bureau d'audiences publiques sur l'environnement is attached to our submission.

In our opinion, any attempt to define “environmental affects” and “projects” limits the application of the Act. Is it really necessary to define them? These expressions are not defined in the Quebec legislation, in which the approach is different.

Pursuant to section 22 of Quebec's Environment Quality Act, which also dates back to 1972, a certificate of authorization must be obtained for any action likely to be harmful to the environment, unless it is exempt. Regulations, similar to the exclusion list annexed to the Act, specify the exclusions. The difference is that the scope of the Act is limited in two ways: first, by the assessment process and, second, by the exclusion list. However, it does not stop there.

¿ (0930)

By defining “environmental affect”, the Act introduces a third restriction. In our opinion, how the scope of the Act is defined should be changed in order to broaden its sphere of application.

I will now focus specifically on the provisions of Bill C-19 pertaining to comprehensive studies.

In 1978, the Quebec legislation was amended in order to permit public participation in the review and assessment of certain major projects. There are two assessment options: an internal assessment by the ministère de l'Environnement and a public assessment. The approach adopted depends entirely on the technical characteristics of the proposed action. The Canadian Environmental Assessment Act, on the other hand, provides for three main assessment options: the preliminary study, the comprehensive study or an assessment by a review panel, with far more discretion in terms of the approach adopted and public participation. Bill C-19 would reduce the amount of discretion, particularly with respect to projects that fall into the “comprehensive study” category, where it would be decided early on in the assessment whether a project will be subject to public hearings before a panel. In our opinion, there may not necessarily be, at this stage of the assessment, enough information to make an informed decision. Given the limited number of projects involved—indeed, there were only about 10 in 1999—our solution would be to subject all projects in the “comprehensive study” category to a panel review. This the same recommendation that Martha made earlier.

In our opinion, at least where Quebec is concerned, this change would have very little impact, because many of the projects on the “comprehensive study” list are already subject to public review. Generally speaking, the thresholds are lower in Quebec. To avoid duplication of work, collaboration is possible and unofficially practised. Information drawn from BAPE hearings is used in comprehensive study reports, and federal expertise is recognized by Quebec's ministère de l'Environnement. Nonetheless, those two jurisdictions have different impact acceptability criteria. In our opinion, this is normal and acceptable.

I will now deal with the matter of the registry. At present, the Canadian Environmental Assessment Agency keeps a registry of projects assessed under the Act; namely, the Federal Environmental Assessment Index. The index is supposed to contain information on the who, what, when, where and why of each project. The effectiveness of the Index depends on the non-regulated cooperation of the authorities responsible for project assessment.

After seven years of problems, the Index is beginning to serve its purpose; namely, informing the public on projects in a timely manner, so that the public is able to provide input before the project is approved. Until now, the public registry provided for under section 55 of the Act; that is, the registry of records pertaining to the review of a particular project, has been established and maintained by the responsible authority, as it sees fit. Ease of access depends on the willingness of the responsible authority. Bill C-19 essential aims to integrate the Index and the public registries, a formidable task given the thousands of files processed in one year.

We agree in principle with this approach; however, the new regime should not and could not replace the existing system, which should be improved. We agree that all records of an administrative nature should be available in electronic format in the new registry, ith a user-friendly filing system.

¿ (0935)

However, certain records, namely drawings and maps are difficult to consult on screen, take a long time to download and require a large amount of memory. Hard copies of lengthy records with drawings and maps will continue to be necessary and must be easily accessible to individuals interested in a specific project. We believe that the responsible authority should provide paper copies if requested. We have suggested a way that this could be incorporated into Bill C-19, even though this may be something that could be included in the regulations.

There are examples of registries, I would invite the members of the committee to consult the Internet site of the Bureau d'audiences publiques sur l'environnement in order to view examples of the documents available and see how they are dealt with by this organization.

It should also be noted, although clear information pertaining to projects subject to public hearings is readily available, one must go through the Access to Information Act to obtain the least bit of information on thousands of other projects reviewed internally each year by Quebec's ministère de l'Environnement.

Finally, as regards future reviews, we feel that it is important to review the Act periodically, every five years. We have included two suggestions that would add this review to Bill C-19.

Those are my comments, Mr. Chairman.

¿ (0940)

The Chair: Thank, Mr. Burcombe.

[English]

Mr. Duck, would you like to start?

Mr. Peter Duck (President, Bow Valley Naturalists): Good morning, Mr. Chairman and members of the committee. I'd like to thank you very much for this opportunity to share with you our hopes for Canada's environmental assessment process.

I have a quick bit of background that isn't in our formal submission. Personally, my experience in environmental assessment is as a practitioner of small-scale environmental assessment and also as serving as a proponent. In fact, it's somewhat ironic that I sit in front of you today as a proponent who has been issued permits to conduct activities that should have had environmental assessment under this act but in fact have not.

I'm here as a member and president of the Bow Valley Naturalists, an organization that has endeavoured to share nature with Canadians for 35 years. Over that time we have been privileged to live on federal land and therefore have had the opportunity to follow Canada's environmental assessment process through the early years, the environmental assessment and review process, and into the current Canadian Environmental Assessment Act.

I hope our submission can give you the benefit of that very close relationship that we have with the federal agency, Parks Canada, which is often considered to be at the top of the class in federal environmental assessment. That close relationship allows us to share some of the best of environmental assessment and some of what we consider some of the worst practices that go on out there in the real world. Our short submission has offered you some examples of both.

Our message today is that environmental assessment is environmental assessment. At all of the so-called levels of assessment, the fundamental steps are the same and need to be followed. As the Banff National Park management plan states, the goal of environmental assessment is to produce assessments of superior quality. We believe that applies to both the process and the substance. In order to achieve that, of course, adequate and dedicated funding is essential to achieve both of those goals.

Since screenings represent 99% of the environmental assessment at the federal level, we need to be sure that we are treating them with the diligence they deserve. I think that emphasis on screening will come through in our submission.

With respect to Bill C-19, we believe that as a result of this review, with a few exceptions, Bill C-19 is getting better at the process end of things. That's important. Our submission lists some of those highlights.

In Banff, we constantly struggle with the substance of environmental assessments, especially when budgets get stretched, especially in an environment of self-assessment, which is touted as one of the tenets of this particular act.

Our hopes for your consideration.... I've listed a number of areas in my submission where we would like to see some improvements. I'm not going to go through all of them here, but I think I'll go through a larger number of them that I think are important to us.

If we want to move toward sustainable objectives, we must require the consideration of alternative approaches to achieving the need that project proposals say they're attempting to achieve. That means we must be looking at alternatives at all levels of assessment. That's not required at the screening level. It remains an option for 99% of the environmental assessments that are done.

Much of this act hangs on the determination of “significant”. Stephen has already referred to that. If we're to achieve consistency and transparency, we need to establish and use criteria for making these decisions. It's important for the public to know how that determination is being made. It may change over time, and it may change from one assessment to another, but we need to have those frameworks out there so that the public understands how those decisions are being made.

Screenings are often big, complex projects. My intention today was to put the stack of over a thousand pages of environmental screenings that our group has had to deal with over January and February.... That's involved in just three proposals, each one in excess of 300 pages.

¿ (0945)

Environmental screenings are not park benches all the time. A lot of them are significantly large projects such as the building of a four-lane highway through Canada's flagship national park in Banff, and yet can be done as screenings.

If we're going to be serious about the public having a meaningful opportunity to participate and having the ability to go through those mounds of paper, understand them, comment on them, attend sessions with responsible authorities, get out in the field and see what's actually being talked about, I'm advocating that participant funding is just as appropriate at the screening level as it is now in Bill C-19 appropriate at the comprehensive study level. Maybe it's not appropriate for all screenings, but there is certainly a lot of work out there that is just as complex as comprehensive studies.

I share concerns about the existing registry provisions. They're good. We like them. What's proposed in Bill C-19 should be complementary, not a replacement.

Early and transparent scoping of projects is essential, so the public can understand where an environmental assessment is going. If they're having problems with a particular process, they know from the beginning that there's something they need to deal with.

Projects always have a real-world context. Local circumstances and cumulative effects must be considered for all class screenings. There's a proposal in our submission to make sure that happens.

Another area that perhaps is representing the best of environmental assessment in Canada is how Parks Canada is moving toward addressing emergencies. The act allows projects to be exempt from assessment in the scenario where there's an emergency. Well, that's fine. But once the emergency has ended, what happens? There's no reason why you can't go back after the fact and conduct an environmental assessment and come up with appropriate mitigation measures to deal with what was required during the emergency scenario. We've offered an example there and an opportunity to improve.

I also share Mr. Hazell's concerns about projects outside of national parks. As an example, last June I petitioned the minister under this act to initiate an environmental assessment of a project near the town of Banff, just outside the Banff National Park boundaries. I'm still waiting for a response to that petition. Will we or will we not have an environmental assessment? In the meanwhile, the provincial government has approved the project but has not triggered their own formal environmental assessment process, and so here we sit. The boundaries of our national parks are threatened by projects outside the boundaries, which are not getting proper assessment. Nor is Parks Canada being given the opportunity to inform themselves, even internally, how they need to revise their management practices to address the issue going on outside their boundaries.

I believe it's time to catch up to where we were before the Canadian Environmental Assessment Act and start assessing the effects of programs and policies that stimulate activities and projects that have effects on the environment--something that was part of the original EARPGO.

I'm also advocating that we include a sunset clause. This is a tremendously dynamic field. Over the last five years, because of things such as cumulative effects that are required in the act, we've seen a lot of effort go into trying to figure out how to understand effects, how to understand them, how to monitor the environment. The more we monitor, the more we understand the environment, the more our management practices can change. Policies change regularly. We're looking at a legislation change here within a five-year period.

We need to have some kind of a provision, a sunset clause, if you want to call it that, that sets a time limit for the period in which an environmental assessment is valid, so that if information changes, we actually have an opportunity to go back and readdress the issue.

There are some other points in our submission, but I think I'll leave that for now. I'm really here, as are my colleagues, to hear your interests, to hear your concerns. I'd welcome questions at this point.

The Chair: All right. Thank you, Mr. Duck.

We have on the list Mr. Mills, Mr. Bigras, Madam Kraft Sloan, Mr. Reed, Madam Redman, and Mr. Tonks.

Mr. Mills, the floor is yours.

¿ (0950)

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

As experts in your fields, could you comment on a couple of broader areas around public consultation and how to get the public involved early enough? Certainly, Martha and I have often been through experiences where the public has gotten involved far too late in the process, way down the road after a great deal of money has been spent and a lot of things have happened.

How might each of you address this issue of public involvement and how to motivate it? How do we let them know what's happening, and can we improve on this through this act?

As well, Martha and I could talk about the road and the bridge. We need to talk about the fact that this road, I believe, still has a locked gate on it; it is not for public access. This raises a larger issue about the trade-offs that have to occur. Even if we talk about Kyoto, an old forest doesn't absorb as much CO₂ as a young forest. Do we not have to have forest projects? Do we not have to have access roads and bridges in order to be part of those trade-offs we have to make?

Finally, in an environmental assessment, how realistic is it to ask companies to provide us with alternatives, as has been mentioned? What would this do to the cost? Is it realistic to ask for those alternatives?

So, fire away.

Ms. Martha Kostuch: I'll gladly start, Bob. I'd love to talk at length about some of the things you've raised, but I don't want to take all the time.

As far as public involvement, one thing to do is to require early notification of the public. The new electronic registry that's proposed would assist in this, but the proponent also has a duty and a responsibility as well to go early to the public to seek input. There's always a risk of someone coming along at the end, but the more opportunity provided earlier on, the better.

As for Stephen's comments about policy assessment, we should be addressing some of these issues well before we get to a specific project because we're assessing things that go well beyond the scope of a particular project. People should be involved in the policies and programs level. The question of whether the forest should have been allocated to Sunpine was never asked. It was never addressed. There was never a public opportunity for people to say they wanted to allocate the forest to Sunpine or to say how much of it should be allocated.

Because this question was never asked, we're then left with trying to assess the impacts of a bridge and a road. That's part of the problem. We're assessing each single project but not the broader issues. Several people have spoken to this.

With respect to the road and the bridge, I have shown some slides and some pictures to get across the idea that we're not talking about an insignificant bridge over an insignificant river. This bridge has major impacts. Yes, there is a locked gate on the road. It is not a public access road unless you have an ATV. Off-highway vehicles have free access to it; on-road public vehicles do not. Nevertheless, it has had significant impacts on the environment, huge impacts on the environment.

Yes, there have to be trade-offs. There's no question about that. We have to balance environmental protection with development. We never opposed the forestry development. We are still not opposed to the logging or the forestry development. The fact is there was a better alternative to accessing this lumber. The company itself in its studies, and I brought those studies along, showed that there was a better alternative, with less impact on the environment, that could have still accessed the same timber.

That alternative was rejected because it was more costly and the company wanted to make more money. So the environment was sacrificed for the sake of the company making more money. In fact, the provincial government biologists themselves said that this was the worst alternative.

This was ignored by the province. It wasn't even considered by the federal government because it defined the project as only the bridge. The consideration of need or alternatives was not required in the screening, as Peter has said. These things were not considered. If they had been, the road and the bridge would never have been built.

¿ (0955)

Mr. Bob Mills: Yes. I drove on that road, and we had to stop probably 20 times for deer and elk crossing. In fact, we even saw a black bear right on the road. As far as the bridge itself is concerned, it doesn't even come close to the water; it's up on the shores. I was told that it would shade the river and that maybe that would then cause the fish not to go back and forth. Well, it's not even near the water. It's far away from the water, so I really question some of those statements about impact.

It just seems to me that it's part of those trade-offs as to whether it should go ahead or not. The jobs...and for the members of the committee, Martha is from my riding, and this bridge and road are in my riding. That's why I'm so familiar with it, and I have mentioned it before. Those are just some of the things we need to look at in environmental assessments.

I agree with most of your other points, by the way.

Ms. Martha Kostuch: In fact, no one ever raised concerns about the bridge shadowing the fish in the river.

Mr. Bob Mills: The biologist I talked to did.

Ms. Martha Kostuch: Well, they certainly didn't raise that concern in all the documentation they provided. Their documentation--and I have copies of it.... The section of the Ram River where the bridge is to be built provides habitat for mountain whitefish and for spawning, rearing, and overwintering sites. Cutthroat and golden trout have also been noted within the waterway. The concern was not the shadow over the river but the sedimentation from the construction of the bridge, the roads, the logging, and the 21 stream crossings very high up in the headwaters of 21 streams, which would contribute to the damage to the fish's habitat. It was the fragmentation of wildlife that would be caused by the road. It was the increased access and the impact of that access on increased fisheries in the very sensitive cutthroat trout fishery, which is internationally renowned. It was the increase in hunting and poaching that would have impact on the wildlife.

Those are well documented, and I brought copies of Sunpine's own report, which states the impact the road would have on sensitive wildlife and on fisheries habitat. So if there's any question, I brought the information along to document that this road would have and has had significant impact on fisheries and on wildlife and that there were better alternatives with significantly less impact that would have provided access to the timber.

[Translation]

The Chair : Mr. Bigras, please.

Mr. Bernard Bigras (Rosemont--Petite-Patrie, BQ): Thank you, Mr. Chairman. My question is for Mr. Burcombe.

First of all, I would like to congratulate you on your brief. Since we began reviewing Bill C-19, this is the probably the first time that we have had such a good summary of Quebec's environmental assessment process in terms of its definitions, the administration of the law, the consultative process or access to the paper Registry which, as you said, is still the only tool that is accepted.

I would like to begin by asking you some questions about the definition. I understood you to say that, in the Canadian Act, the scope of the definition pertains to the biophysical environment whereas the Quebec Act, which dates back to 1972, is broader and includes social, cultural and economic aspects. You feel that this definition in the Quebec Act is valid. That is how you described it.

As regards the protection of the environment and the assessment process, how does this definition and the Quebec approach stipulated in the Quebec legislation compare to the definition currently in force in the Canadian Act?

À (1000)

Mr. John Burcombe: I believe that case law has changed the way we view what the environment comprises. In the beginning, we said that the environment was made up of soil, air and water but attitudes have changed since then. Case law has indicated that the definition should be much broader. In our opinion, it is time that we amended the definition in the Canadian Act so that it reflects the current situation. The definition of environment much be broader. With a broader definition, all of the issues will be taken into account.

Right now, in our opinion, the Canadian Act is too restrictive in that certain social, economic and cultural aspects can only be given consideration in conjunction with environmental effects. We believe that these considerations need to be incorporated into the primary study. We must be aware of these aspects right from the start and they must be examined just as we examined the biophysical effects. This is why the definition needs to be changed.

Mr. Bernard Bigras: In your brief, you indicated that you had participated in BAPE's public hearings on the Toulnustouc project. BAPE did hold public hearings, and you probably know that before this project was undertaken... You said very clearly here, and I fully agree with you, that the Quebec Act and the BAPE recognize federal expertise in matters pertaining to some of its jurisdictions.

However, it must be pointed out, in this particular project, approval from the Canadian Department of the Environment was a long time in coming. We had to wait a long time before we were able to obtain authorization. We did get it, of course, but we had to wait quite some time before we were able to obtain the expertise and the environmental assessment from the Canadian Department of the Environment.

Correct my if I'm wrong, but, in my opinion, the consultation process in Quebec is adequate. If you do not believe that this is true, say so. What could we do to make it possible to obtain, more quickly, an assessment from the Canadian Department of the Environment for projects underway in Quebec that require federal expertise? We are in full agreement that Canada should participate because we want collaboration, but we want efficient collaboration so that we will be able to achieve this concept of sustainable development, namely, achieving environmental protection and economic development, especially in a case of clean development projects.

Mr. John Burcombe: Yes, we did participate in the public hearings on the Toulnustouc project. It is true that, once the Quebec public hearings were completed and approval had been obtained from the federal government, approval still had to be obtained from Fisheries and Oceans. The proponent, in fact, was not prepared to cooperate as quickly with Fisheries and Oceans.

All the toeing and throwing between Hydro-Quebec and Fisheries and Oceans took a great deal of time and this all took place following the public hearings. It is only by requesting access to the documents that we were able to follow, to some extent, the progress of the file following the Quebec part of the process.

In order to speed up the process, I think that the proponent has to be more flexible in the approach taken. The policy of Fisheries and Oceans, which states that there must be no net habitat loss, is very stringent. It appears that it was very difficult to convince Hydro-Quebec about all the compensation that would be required to ensure that there was no net loss. I cannot go any further than that, but that is my analysis of why the approval was delayed.

À (1005)

Mr. Bernard Bigras: I would like to add a small comment to that. You talked about the toeing and throwing between the proponent and Fisheries and Oceans. I can tell you about the toeing and throwing between Fisheries and Oceans and the Department of the Environment. There may have been some toeing and throwing between the proponent and Fisheries and Oceans, but this was also going on between departments within a government.

I will conclude by asking a question. Do you feel that the Act, the regulations, the definition, the administration, the Quebec consultation process, the Quebec government's official acknowledgment of the paper Registry and the Quebec Ministry of Environment's acceptance of federal expertise constitute, essentially, the best collaboration and that this collaboration should be encouraged in environmental assessment?

Mr. John Burcombe: As I said, right now cooperation between federal and provincial authorities is not official. There is no bilateral agreement for Quebec. I hope that this will work to a certain extent. I think that this example could be good for other provinces.

The Chair: Thank you, Mr. Bigras.

[English]

Madam Kraft Sloan, please

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

Madam Kostuch, in the recommendations you handed out to us, your first recommendation is a suggestion that CEAA be amended to clarify the scope. I'm just wondering if you have any wording to that effect that might be useful for committee members.

Ms. Martha Kostuch: I do, and I have some copies to pass around with suggested wording on the determination of scope, of interdependence, and linkage. I'll just read them into the record, but I also have copies to hand around.

For determination of scope of project with respect to interdependence, I would recommend adding a subsection 15(4):

If it is not possible for the physical work or physical activity comprising the project to proceed without the undertaking of another physical work or activity, then that other physical work or activity shall be considered as a component of the project.

And add a subsection 15(5) dealing with linkage:

If a decision to undertake the physical work or physical activity makes the decision to undertake another physical work or physical activity inevitable, then that other physical work or activity shall be considered as a component of the project.

Now let me tell you this wording comes out of a guide that is currently in existence. The Canadian Environmental Assessment Agency has a guide to help the responsible authorities determine what the scope of a project should be, and this is the wording that currently appears in their guide. But that's all it is right now, guidance. They don't have to follow it. What we're suggesting is taking what's currently in the guide to provide assistance to the responsible authorities and making it legislation, so that it's no longer discretionary but indeed part of the act.

Mrs. Karen Kraft Sloan: Thank you.

Mr. Chair, I have a question for Mr. Hazell.

On page 5 of your brief, you have a sentence that is sort of a marvel of understatement. I'm wondering if we could have an opportunity to hear a little bit more about it.

You said the CEAA assessment of the gigantic Tolko logging project in northern Manitoba, 11 million hectares, was limited to two bridges and their abutments. I'm wondering if you could share with committee members a little bit about that particular project.

Secondly, was this a screening or some other level of assessment?

You have also suggested there might be some national interest in a project of this size, and you mentioned a few other projects like the CANDU reactor sale to China that did not have an environmental assessment at all.

So tell us a little bit about the Tolko project, and whether this was a screening or another level of assessment. And then, how would you put into legislation this idea of national interest?

À (1010)

Mr. Stephen Hazell: First of all, the Tolko project was very similar to Sunpine, although with Tolko we're talking about a huge area in northern Manitoba, which is part of a forest licence that was issued by the province. There was a lot of litigation over that, and I guess it's now the leading case. It's just incredible that we would do this to our northern boreal forests--issue these forest management cutting licences over such huge areas, and then the federal government would just walk away, in essence.

We mentioned other projects, like the CANDU reactor sales, etc., which are still subject to ongoing litigation. When you're talking about such gigantic projects, how can the federal government not be involved? When you cut 11 million hectares of boreal forest in northern Manitoba, we know now that has gigantic implications for greenhouse gas emissions. It's not because of the trees that are lost, but because of the release of gases from the soils and the muskeg.

So it has huge implications, and we're just walking away from it, partly because of what Martha talked about, in terms of the scoping of the project. The result of the case seems to be that there's a kind of open season on really tightening down the project scoping, which is most unfortunate.

The second part of your question was on how we can have the federal government assess projects that are on a national scale. I don't pretend this is easy, but there are certain clear areas of federal authority we can talk about, where there are transboundary issues. In the act right now there is authority for the Minister of Environment to strike panel reviews in certain situations where there are transboundary environmental effects. So that's where we could clearly define projects.

Where we have a proposed mine that is going to contaminate a river that flows into the United States, the feds should be there with bells on. If that tramples on...well, they should just be there as part of a joint process with the feds or first nations--it doesn't matter.

When we're exporting nuclear reactors to tyrannies, the federal government has a strong interest in it and they shouldn't hide behind a crown corporation, and in this case several crown corporations.

For the Cheviot project, the only reason the feds got involved was because there was this ludicrous idea of dumping tons of tailings into narrow valleys that were the habitat for particular endangered species, and because of the Fisheries Act. But these kinds of backdoor triggers are ludicrous.

Where something is close to a national park and affects the ecological integrity of that park, there should be no question about the feds being there. Whether it's Parks Canada or Environment Canada, it doesn't matter. It's something of importance nationally, so let's try to think through how we're going to make it happen.

How do we actually do this? A schedule in the act could set out categories of projects for which a Canada-wide assessment would be required. That would be one way to go. There would be lots of discussion on what should be on or off the list and it will never be complete, but it would at least be a start.

That's a long-winded answer, Karen. Thank you.

À (1015)

Mrs. Karen Kraft Sloan: Thank you. I'm just wondering, Mr. Hazell, if you can tell us if it was subject to screening or another level of assessment.

Mr. Stephen Hazell: I believe there was a screening of Tolko, was there not?

Ms. Martha Kostuch: Tolko was screened just for the two bridges. There were native issues involved and a number of land claims issues. There were transboundary issues with the Province of Ontario. None of those was addressed because they were limited. The screening was only of the two bridges and the abutments.

Mrs. Karen Kraft Sloan: When we hear about the thousands and thousands of screenings that are undertaken in this country, which quite overwhelmingly are the majority of type of environmental assessments, an 11-million-hectare project was a screening.

Thank you.

Ms. Martha Kostuch: It was only the two bridges, and it wasn't even 11 million acres.

Mrs. Karen Kraft Sloan: And it was only the two bridges.

Ms. Martha Kostuch: It was the two bridges and the abutments and nothing else.

Mrs. Karen Kraft Sloan: Exactly, that's all that was looked at. Thank you.

The Chair: Mr. Reed.

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

I'm heartened to hear of the call for looking at the broader picture rather than just the specific entity, if you like. It seems to me, when we've heard a parallel quest for this from the Canadian Hydropower Association, that the broader picture be looked at, that is, all the impacts be looked at, not just the perceived negative impact.

What happens when trees are harvested? I don't think consideration is ever given to the amount of carbon that goes into storage as a result of that harvesting. I don't think when a hydro power project is being assessed that any consideration is given to the offset of greenhouse gas emissions because of that. I do agree that we should be looking at the broad picture.

Just to clarify my mind on this picture of clear-cuts, I take it that picture was taken in the wintertime.

Ms. Martha Kostuch: Yes, that was taken in the winter with snow.

Mr. Julian Reed: Do you know how deep the snow was?

Ms. Martha Kostuch: That was taken two winters ago and it was actually a light-snow winter.

Mr. Julian Reed: How old would those clear-cuts be?

Ms. Martha Kostuch: Those are relatively fresh clear-cuts. This is not meant to be necessarily opposed to clear-cutting, and they will regrow. Both you and Bob have raised the issue of whether clear-cutting is beneficial for Kyoto and whether hydro dams are positive for greenhouse gases. I would love to get into that, because I think those are important issues. Right now they are not being included in environmental assessments.

I do think we have to weigh the broader issues and we can't say this is good or bad. We have to consider the whole scope. But to say that clear-cutting or that new forests are better for greenhouse gases I think is a wrong thing to state. There are many issues that you have to discuss with respect to that.

Should environmental assessments be looking at greenhouse gas implications? Definitely. They're not right now. In fact, they're being excluded. In Suncor the greenhouse gas issue was not addressed. I think we do need to get at these broader issues, but we can't say that clear-cutting is good or bad without looking at that issue.

These were taken in the winter. Yes, they will regrow. There are positives and negatives to clear-cutting. This certainly was not shown to say all clear-cutting is bad. It was only shown to say that this should have been looked at. It should have been considered in an environmental assessment, and it was not.

Mr. Julian Reed: Thank you.

The Chair: Madam Redman.

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

I'd like to pose my first question to Mr. Burcombe.

Quebec is the only province that didn't sign the 1998 harmonization agreement with environmental assessment. I'm wondering if you've noticed problems of coordination and cooperation between the levels of government as a result of that.

À (1020)

Mr. John Burcombe: I think Mr. Bigras pointed out that there are some problems. The fact that there are two jurisdictions means that each one has to look at a project from its own point of view. Up to now the federal part seems to take longer. My opinion is that this is because the federal requirements are stricter than the Quebec requirements. If there's to be harmonization, it would have to take that into account.

Mrs. Karen Redman: Notwithstanding two separate points of view, specifically the cooperation and coordination, do you feel there has been an impediment because they haven't signed on to the harmonization agreement?

Mr. John Burcombe: It's a political point. Quebec decided not to go for a combined project analysis, and we have to live with that. I'm not sure whether it makes too much difference. The Quebec process is good for the projects it looks at, but it looks at a very restricted number of projects. The federal process is supposedly much larger, but it has its own problems of not involving the public in particular.

Mrs. Karen Redman: Based on your experience with the application of the act in Quebec, do you feel the proposed amendments improve the federal process?

Mr. John Burcombe: There will be improvements, particularly in regard to public participation--which was an earlier question. If indeed the index is up to date and the register becomes a means of informing the public when a project starts in order that the public can get involved from the beginning, then that certainly would be a big improvement, because up until now it's been very difficult to know what projects are happening. You find out about projects only after they've been assessed, and that is obviously no good for public participation.

In general, it's unfortunate that Bill C-19 does not go into strategic environment assessment. I think it's getting to be a consensus that we need to get the public involved and to look at things ahead of projects. We need to look at plans, programs, and policies, and do the evaluation at that level before we start looking at actual projects.

Mrs. Karen Redman: Just picking up on a couple of the points you've already made, the fact that Quebec is outside of the harmonized agreement, and you say that the federal level is actually a little bit more stringent, do you sense within the provinces that there's an appetite for looking at a strategic environmental assessment?

Mr. John Burcombe: I think up until now governments have wanted to avoid it. There's getting to be more and more pressure for an evaluation in advance of projects, and I hope that pressure leads to something in the federal law, and in provincial law also.

Just to come back, certainly with the changes in Bill C-19, the coordination by the agency should help make sure that people get involved and that the process works in a much better fashion.

Mrs. Karen Redman: And if I could, to Mr. Duck, as chair of the CEN caucus for the five-year review, you've been involved throughout the whole process. If you'd like to give your comments, how would you characterize the agency's approach to the five-year review? Do you feel it's been open and transparent?

Mr. Peter Duck: The opportunities for the public to participate in that process were carried out across the country. There was an opportunity for people to come and express their views. In addition to the public sessions and so forth, the Regulatory Advisory Committee provided some fairly intense discussion on some issues, trying very hard to find areas where there was common ground. I think that was very productive, and it's reflected in the bill. There are things there that reflect that this bill can move forward on these points.

What Bill C-19 reflects, though, are the areas of common ground. The difficult issues, things like cumulative effects, for example, things like trying to figure out how this act can move in the direction of being closer to something that encourages sustainable development, which Mr. Hazell has brought up, require time to sit down and discuss. And you can imagine, with the diverse interests that are around the table on these sorts of things, a one-year review process with the time the agency has available to them just doesn't allow the opportunity to get into those kinds of discussions with enough depth.

So I think the points are well taken. If there are some serious issues coming out of the process, this committee could perhaps take them on and make sure there's time for Canadians to get engaged at a deeper level on those issues.

À (1025)

Mrs. Karen Redman: In your opinion, what would be an appropriate venue to have those kinds of discussions? If this process isn't it, can you envision what process would get us to the point where we could reach consensus on those contentious issues at a deeper level?

Mr. Peter Duck: I guess I don't have enough experience with discussions at that level. Certainly, the Regulatory Advisory Committee is in place and it has people with a tremendous amount of experience in environmental assessment. Those people are getting together on a reasonably regular basis and have a good working relationship through that committee. That is one opportunity to make sure those things move forward, and whatever comes out of that committee should then go out into the broader public arena.

Beyond that, I don't think I have enough experience with other processes. I think there are some other people here who do.

Mr. Stephen Hazell: Mr. Chairman, if I could respond as well to that last point, the agency had a fairly narrow brief, and that's what the minister wanted. He had other things on his plate, so he wanted this done expeditiously. But the result has been that Bill C-19 and the five-year review was fairly limited in its scope and what it dealt with.

For the interest of the members of the committee, the final chapter in my book actually deals with this very issue of the five-year review process. How should it have been handled? What sorts of options were available for reconsidering federal environmental assessment?

My advice was not taken, but I guess that's not new. But where do we go now? What do we do now? We have Bill C-19 and we hope it will be moved through and passed. How can we go about it? How can we come at it? One approach is to have the committee take it on. You can do that, I think. Another approach would be to have a multi-stakeholder group look at it.

If it's the Regulatory Advisory Committee, I think the key point is it cannot be directed by the agency. The agency did a pretty good job with the five-year review, given its mandate. But the problem was that it was being directed by the agency, and the agency has certain interests and the government has certain interests. You have to take it outside of government for awhile, and the minister and the civil servants have to let go--let an independent group think about this, think about the bigger picture, and come back. Ultimately, it will come back to the government for decision. It'll come back to Parliament for any legislative changes. But it has to be a process that's independent of the government. Now, I think this committee could do it, but....

The Chair: Mr. Tonks, the chair, and then a second round.

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

Ms. Kostuch, you've indicated that the electronic registry, which is provided for in the legislation, is not sufficient in terms of public access to information. If there were recommendations that would establish another regimen of public information, what would be the components of that? What would you like to see? How would you design it?

Ms. Martha Kostuch: I would leave the existing public registry and put what the agency is proposing in Bill C-19 in addition to that. I think it's a good addition, but not as a replacement.

I think it's very good to have what they're proposing electronically, in the timing they're proposing, to be in there, but not to lose what we won so hard, fought for in court, that the existing act provides. I am connected to the Internet, but I can't review.... This is only one of perhaps many documents--in fact I think more--that we got through our court order through the public registry. In fact, when the court said you have to set up a public registry in a convenient location, they sent me all the documents. I then became the public registry. I was considered the convenient location and they sent me a file box of documents. Well, that was fine and I didn't mind that. I had proposed the public library, but I just happened to be as public as the public library. I have a good relationship with them as well, as Bob well knows. So I became the public registry.

Could I have accessed those same documents through the Internet? No, it would have been impossible. It would have been impossible to have these maps available electronically through a public registry. I think what I want to see is for us to retain what's currently there and what the courts have upheld on convenient access to all of the documents. These documents would not even have to be posted under the proposed amendments.

What I propose is keep what we have and add as an addition what the agency is proposing in Bill C-19. I think it's a very good addition and would improve the existing situation. I just don't want to see it replace what we currently have.

À (1030)

Mr. Stephen Hazell: Mr. Chairman, can I make a very quick additional point?

What we're losing, the specific legal or legislative point, is the standard of convenient public access. That is in the current bill. It says the public is entitled to convenient public access to the public registry. That is being lost in the amendments.

Ms. Martha Kostuch: Plus a whole range of documents. That's the second thing. So one is convenient public access, and the second is the scope that the documents cover. The scope is much narrower in the proposed amendment. Those are the two things we would lose if it were replaced.

So add it on, by all means. Don't replace it.

Mr. Alan Tonks: Thank you for that.

You've indicated again, Ms. Kostuch, that the comprehensive study list should become part of the panel review list. If that were not to happen, are there elements of the comprehensive study process that you would support, that you think are absolutely critical?

Ms. Martha Kostuch: No. The problem is, now, in the proposed bill, you would put a process early on to make the decision of which direction it goes in. So, number one, it adds to the complexity, and it adds to the timeframe. Now you're going to have to figure out right at the beginning whether there are significant environmental effects, whether there are uncertain environmental effects, and whether there's significant public concern. How are you going to make that determination before you have the information? And it's going to add to the process and the complexity.

Now I'm going to challenge the court early on, instead of later. That's all that's going to change. I'm still going to be back in court, and I don't want to be in court, quite frankly. I really don't want to be in court. I'd rather be out protecting the environment than in court, and I'd rather the federal government be doing their job so I don't have to take them to court.

My goal is not to go to court. My goal is to see the environment protected and to have the federal government do what the law says they should do. I've won all my court cases.

Mr. Alan Tonks: I have to ask one other question, if I may, also of Martha Kostuch. It's pursuant to my colleague's questions, and it just came to my mind.

During the screening process with respect to the Oldman River, which I assume isn't named after my colleague....

Voices: Oh, oh!

Mr. Alan Tonks: From your perspective, how would it have been possible, even if it was mandatory during the screening process to have adverse effects defined and mitigation thereto and even if it was absolutely mandatory to propose an alternative proposal or proposals? Just in a practical manner, so I can understand that, what would you have put forward as alternatives?

À (1035)

Ms. Martha Kostuch: First, that was not a screening but a full panel review, which we won in the Supreme Court of Canada, and that was under EARPGO and not this act.

It's named after Napi, who is the old man of the Peigan Indians.

Mr. Alan Tonks: So you're not suggesting we should change that.

Ms. Martha Kostuch: No. It wasn't named after Bob.

There were alternatives proposed--

Mr. Alan Tonks: At that time.

Ms. Martha Kostuch: --very good alternatives: reducing demand, that is, putting in better irrigation systems that would use less water, less water consumption; and off-stream storage. In fact, all the reviews, including the province's reviews and the federal reviews, said the dam should not be built, that there were better alternatives that were much better economically, environmentally, and socially. In fact, the federal government's own panel review, which we won after going to the Supreme Court of Canada, said the dam should not be built and in fact should be decommissioned for all the impacts on the environment, the economy, and socially, that there were better alternatives to meet the needs that were supposedly met by the Oldman.

Now we're back in the same situation. The same situation exists. They're now saying there isn't water to fill the reservoir and we need more dams. Well, indeed, we don't need more dams. We need better use of the water we have.

Mr. Alan Tonks: I want to understand. Is that a result of narrow scoping? You made the point earlier. I'm not sure it's related to this, but--

Ms. Martha Kostuch: No, it was the timing and the fact that the federal government didn't do what they were required to do. They didn't do the environmental assessment until we took them to court, until they were forced to do it by the Supreme Court of Canada.

Unfortunately, what happened there is timing. The dam went ahead. We were denied an injunction, after we won in the Federal Court of Appeal. We did not get an injunction based on balance of convenience. The Supreme Court decision came out after the dam was already 50% constructed, and the court said, let them go ahead and do it. So it was a timing issue.

Mr. Alan Tonks: I see.

Ms. Martha Kostuch: If the federal government had done what they should have done, when they should have done it, the dam would never have been built. So that wasn't a scoping issue. That was timing and the federal government not doing--

Mr. Alan Tonks: So it wasn't a deficiency in the act.

Ms. Martha Kostuch: Well, in fact the act didn't exist at that time. It was being done under the EARPGO.

Now, the Sunpine Road would never have been built if the federal government had approached this with the proper scope and looked at alternatives and need. It would not have been built; the existing North Fork Road would have been upgraded to meet the timber transport needs. It would have caused much less destruction to the environment. So that is an issue of scope but not the other one.

Mr. Alan Tonks: All right. I didn't mean to resurrect that issue. I only wanted to understand the issue around the scope as it applied to the projects. I'd lost sight of it in terms of the two projects you were relating to us.

Okay. Thank you, Mr. Chairman.

The Chair: Thank you.

I have two brief questions and then we'll go on to the second round.

Ms. Kostuch, in your presentation you said something to the effect that the federal government should comply with its own legislation. Could you explain why, in your view at least, this is not happening--namely, that it is not complying with its own legislation? To what factors do you attribute this?

Ms. Martha Kostuch: I attribute it to a lack of political commitment. It's that simple. The Department of Fisheries and Oceans in particular is not committed to the Environmental Assessment Act. It is not committed to the intent of the act at all--it never was.

In fact, if you go back to when the act was passed, when it was proclaimed in 1995, the Department of Fisheries and Oceans issued the 35(2) directive that said it was going to put in place a new, unlawful scheme so it didn't have to trigger the act at all.

Under this scheme, which is currently before the Commission for Environmental Cooperation for the development of a factual record, it opted to give letters of advice to those who propose to destroy fisheries habitat that tell them what they need to do to avoid triggering the Canadian Environmental Assessment Act. We went from over 10,000 projects being given 35(2) authorizations the year prior to CEAA coming into effect to 135 the year after CEAA came into effect.

Not only did it do this, in order to escape CEAA, but now it is defining projects as narrowly as possible, again to escape the effects of CEAA and its whole purpose and intent, which is to provide proper scope and assess the environmental effects, weigh all of the pros and cons, the things DFO is now giving such narrow scope to. In fact, in response to our recent win over Suncor, DFO said it was going to scope projects even more narrowly because it didn't want to be required to mitigate environmental effects outside of its limited scope.

The problem is that the Minister of the Environment and the agency are very committed to environmental assessment. And the agency has tried very hard--damn hard--to get good environmental assessment, but it doesn't have the commitment of the full federal government in doing this job. The federal government is itself not following its own red book commitments with respect to environmental assessment. That's why we have to keep going back to court--and we're winning virtually every case.

À (1040)

The Chair: In his presentation, Mr. Hazell quotes a new book by a certain E. O. Wilson, The Future of Life:

Environmentalism as an argument has been comprehensively won, but as a practice is almost extinct.

Do you have any comments on this quote?

Ms. Martha Kostuch: I don't think this is the case. If you go to the people in Canada, they care about the environment and are doing things to protect it.

The practice is only extinct throughout the majority of the federal government, not for the people of Canada. Survey after survey shows this. Canadians care about the environment and want it protected. Kyoto demonstrates this. Canadians want Kyoto put in place. Canadians are standing up for the environment and practising environmental protection.

The problem is not inaction. Industries are doing a lot. Industries are leading the federal government. Industries are doing more than the federal government in many cases. Suncor was very willing to protect the environment and to do a full environmental assessment. Suncor wasn't the problem; it was the Government of Canada.

The Chair: Mr. Hazell and Mr. Duck, in your interventions you made a reference--particularly you, Mr. Hazell--to a missed opportunity. Mr. Duck made a reference as to how something could be generated in order to examine what is missing by the way of a certain process, which, if I understood you correctly, would be.... Well, let me put it this way: would you be willing to prepare a brief to this committee in due course that would be the result of the consultation among you and the environmental assessment community that would give this committee an idea as to what should be done in order to deal with the broader and more comprehensive nature of the issues that are not being presently contemplated in Bill C-19?

Mr. Stephen Hazell: Speaking for myself--I can't speak for the environmental assessment caucus, which both Martha and Peter have been involved in, and myself as well, in different lives--I think we'd be delighted to do that. We'd be delighted to help out the committee in any way we could to try to address the challenges federally that Bill C-19 doesn't tackle. I'll let my colleagues also respond.

I wanted to say something partly in response to Martha's earlier comments about environmental assessment. I think we have a problem with the idea of environmental assessment. What Martha says is true. But I also think that environmental assessment hasn't really caught on. It's widely seen that acceptance among federal departments is grudging. I think Martha has mentioned DFO, but it's other departments as well.

Within industry it's seen as a burden. They don't see why they're doing it. It's a formal thing--you know, check off the boxes in triplicate and get this thing out of the way. That's how it's seen. It's not seen as an opportunity to actually make projects better.

Mr. Reed, your comments about what is the upside--when you look at a project, let's not just look at the negative stuff, but what's the positive stuff, and then we can have a comparison of different alternatives--that may help to make it a bit more positive.

The idea of environmental assessment is not catching on. I would invite in this broader consideration how else we can characterize what we're doing in assessing what developments are doing to nature. Can we think about that in somewhat different ways from environmental assessment?

Environmental assessment is a term that's been around a long time. I mean, EARP was initially established in 1973, so that's 29 years ago. The guidelines order was 1984. We're still coming at it more or less the same way. We've got more bells and whistles and more legal requirements, etc., but the basic concept hasn't changed. The committee could think about that a little bit as well.

I don't think we really want to just assess the environmental effects of projects and let decision-makers make decisions. I think we have to think about what we need to conserve biodiversity. That's what we really care about. We don't care about doing environmental assessment. We care about protecting our wild lands, protecting our wildlife, conserving biodiversity, ensuring that climate change doesn't destroy the planet. That's what we care about--how we will adjust the process to address those goals that everybody shares.

À (1045)

Ms. Martha Kostuch: On process, the environmental assessment and planning caucus is proposing to hold a conference on strategic EA, a workshop and conference. That's one mechanism to begin discussing it.

One option would be for this standing committee to have a process to consult on the broader issues of the EA and where we should be going. As Stephen has rightly pointed out, we're not talking now about environmental assessment; we're talking about how we turn to environmental assessment as one tool to becoming environmentally sustainable and looking at the broader issues.

This standing committee perhaps should be developing the process. Peter and John and I are all active, and Steve has been in the past, on the environmental assessment caucus. We would certainly be willing, I'm sure, to put forward a brief on what we would see the process looking like. But the standing committee we would see as one avenue.

Mr. Peter Duck: I think what Martha just mentioned and you suggested is a good idea is that we go back to the environmental community and get some sense of what sort of process they think would be required to address these issues. I would be pleased to undertake to do that, to the extent that's possible with such a diverse group, and to get back to the committee.

The Chair: Thank you.

On the second round, Mr. Mills.

Mr. Bob Mills: Thank you.

I think you've made it clear that there's a lack of commitment on the part of the federal government, and I think that's possibly true for provincial governments as well. The big concern is cooperation between the feds and the provinces. Hopefully, Bill C-19 and its amendments will help that at least partly.

I want to use an example and ask you how we could make Bill C-19 work in this situation. I'm talking about a power project in Washington state. The Sumas River starts in Washington state and flows into B.C. and then into the ocean. There is a proposed power plant. The pollution will come into the Fraser Valley, which will hold it. It is already the second most polluted area in Canada. The water for that project comes from an aquifer in Canada, and the natural gas comes from Canada. The power comes into downtown Abbotsford and then to the coast and down to California, if that is the best market. So there are a lot of environmental impacts in Canada.

We have 6,000 people in the city of Abbotsford getting involved. The Government of B.C. is an intervener. As a Canadian citizen I was able to be an intervener in those proceedings on the environmental impact studies in the U.S. All I could find out about Canada is that we probably weren't going to have any environmental impact studies. The federal government was not officially involved in that project. They did not ask to be an intervener. I met with the governor. He acknowledged that he knew the environment minister. But certainly there was no involvement on a formal basis

How can we get something like an environmental assessment? I can't believe it wouldn't happen automatically and the Canadian government would get involved. I don't see Bill C-19 and the improvements to it making a difference.

À (1050)

Mr. Stephen Hazell: I think Martha wants to say something on that.

I think there's at least one avenue we should actively explore. I'm not that familiar with this project, but it seems to me that it's ideal for a reference to the International Joint Commission. The International Joint Commission has done these sorts of environmental assessments before. You may recall the situation with the Trail smelter. It was a similar situation. A smelter in Canada was sending a lot of emissions down to the United States. The International Joint Commission conducted what in essence was an environmental assessment. This goes back half a century. So a reference to the IJC would perhaps be in order. The Honourable Herb Gray is now the Canadian chair.

The other point is that the federal government could initiate the environmental assessment pursuant to section 48 if it affects federal lands. I don't see any reason why they couldn't just do one. If the Americans don't like it, let's provide some serious ways in which Canada could get involved under the NEPA process. Presumably, there's a NEPA assessment on this happening in the U.S. I can't imagine that there isn't.

It's just a matter of somebody pushing for it. Maybe it's something the folks in the environmental community should be taking up.

Martha.

Ms. Martha Kostuch: There are a couple of things. One is that bilateral agreements are working quite well with the provinces where they exist. The Alberta bilateral agreement is working relatively well, and there is a lot of cooperation on agreements--where they're triggered by both levels of government. Remember, though, that the vast majority of environmental assessments under the federal scheme are not covered by environmental assessments under the provincial scheme, at least not in Alberta. But I think the bilateral agreements are working well.

You're right. Bill C-19 does nothing to fix the problem. I know the project you're talking about, and it has had quite good coverage out in the west, and it does nothing to address that. But there is nothing to prohibit the federal government from, number one, calling the federal CEAA, and number two, participating in the U.S. environmental assessment, except political will. That's the only thing preventing it--political will.

The Commission on Environmental Cooperation under the NAFTA side agreement has been trying to get an environmental assessment agreement with the three governments of Canada, Mexico, and the United States for a long time. It has stalled out. Certainly that agreement was intended to deal with just what you're talking about, how we can have cooperative environmental assessments where there's a transboundary impact. That is going nowhere. And certainly this is an issue that could come under their domain, and I'd encourage you to talk to the commissioner for environmental cooperation on the need to move forward with that agreement--which is one of the priorities under that side agreement.

[Translation]

The Chair: Mr. Bigras.

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

Mr. Hazell raised an important issue. He talked about the whole issue of the independence of the environmental assessment process. Mr. Hazell gave the Canadian agency as the example. He said that, essentially, the government appears to be both judge and jury in these environmental assessments. He even said, and I say this with all due respect for the government officials sitting at the back, that he hoped that the officials would withdraw from the agency so that there would be greater independence.

My question pertains to the environmental assessment process in Quebec and its independence. I would like to know whether or not the Bureau d'audiences publiques sur l'environnement du Québec is independent. If so, what are the benefits of this Quebec approach in terms of the environmental assessments conducted on Quebec territory?

À (1055)

Mr. Stephen Hazell: Thank you, Mr. Bigras.

[English]

When I was talking about independence, I was talking more about the need for an independent review of the whole legislative scheme, rather than the independence of the particular body undertaking an environmental assessment.

Under the federal process, when you have a panel review or a mediation, you do have an independent group of individuals who are charged with undertaking the assessment. So for any panel review that one can name, at least in recent history, you have a group of experts who come together and are charged with carrying out the assessment. In that sense, it is independent in the way that the commissioners of the BAPE process are independent. So I don't see a big difference there between the two processes.

[Translation]

Mr. John Burcombe: Mr. Chairman, if I may, I would like to respond as well.

In Quebec, the BAPE is recognized as an independent agency to a certain extent. Of course, the BAPE is part of the Ministry of the Environment but it has its own chairman and a code of ethics. Furthermore, each BAPE panel is independent and can act as it sees fit. The decisions or recommendations made by the panel depend to a large extent on who is sitting on the panel. There is, therefore, always some uncertainty in every decision or recommendation made by the BAPE. It must be pointed out that the BAPE simply makes recommendations. It does not have any decision-making authority. It is always up to the government to make the final decision.

Mr. Bernard Bigras: I have a small question. Do you feel that the way this organization operates, the work it does, the way it consults, are adequate for project evaluations? I know that it is not a decision-making organization, we agree on that, but as far as its recommendations are concerned, do you feel that it is quite reliable and there is no direct intervention? In a nutshell, do you feel that this process works relatively well?

Mr. John Burcombe: It is a good process, partly because it is not a legal process. The general public can go there and present its opinion, ask questions, but one of the problems lies in the fact that the witnesses are not compelled to testify under oath and there is always the possibility that you are not getting the truth. Proponents are not compelled to provide information that is not requested. If the right questions are not asked, you don't get the right information. This is a shortcoming that exists in all panels, but the BAPE does have a good track record and I think that it is an example that could be followed elsewhere.

[English]

The Chair: Thank you, Mr. Bigras.

Madam Kraft Sloan, please.

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

Mr. Duck, in your brief on page 2 you say there is a great need for a standard that will establish a framework for conducting EAs in a consistent and independent manner.

You had also spoken about the process that the Canadian Standards Association had taken up that was suspended in its final stages.

If I look at the document that was prepared by the minister in response to the review on the act, there are three goals. The first two, I think, are quite applicable to this issue of setting a standard process or developing standards for EA. The first goal is a certain predictable and timely process and the second one is a high-quality environmental assessment. So I think those two goals fit very nicely with what was probably going on with the Canadian Standards Association.

I'm wondering if you could comment about the process itself and if you could tell us why this was stopped right in its final stages.

Á (1100)

Mr. Peter Duck: Why was the process stopped? As far as we can tell, it was stopped because of this process. People became too busy. I think there was a letter sent from one of the provincial participants saying that now, because of the five-year review process, they didn't have time to continue on with that process. I believe that's the last correspondence we had from that committee.

I think we'd been going at that particular process for two, going on three years. There was a lot of time involved with a lot of stakeholders around the table. They were trying to get into a little more of the specifics that aren't specified in the Canadian Environmental Assessment Act about what bases you need to run around to complete an environmental assessment. And some of the things we are talking about are things that get done in advance of this particular bill being triggered.

At that time, some of the things that hamper happened even after the requirements of the act were in place, moving on into follow-up procedures for addressing issues that resulted from follow-up programs.

It was a good process, with lots of expertise around the table. It still didn't address the substance issues of environmental assessments, that is, the quality of expertise that goes into conducting environmental assessments. The fact of the matter is, you need absolutely no expertise to conduct an environmental assessment. And while the CSA process was starting to define the bases that needed to be touched on in a little more detail, it still wasn't addressing the real substance issues of having people who understand the environment involved in producing credible documents and credible statements in environmental assessment.

Mrs. Karen Kraft Sloan: Are you expecting to see this process begin again? There has been no indication that--

Mr. Peter Duck: No, there is no indication from us that the process will necessarily proceed.

Mrs. Karen Kraft Sloan: How would you recommend that we get a copy of this document? Is it a public document?

Mr. Peter Duck: It was presented for public review. That's as far as the final draft of that document went. It was draft 14, which gives you a sense of the number of iterations it had been through. I imagine there must be copies of that around with the Canadian Standards Association. I have one with me today that could be copied.

Mrs. Karen Kraft Sloan: Has the agency or has the department responded to those draft documents or draft 14? Can we get a copy of those responses, if they exist?

Mr. Peter Duck: It was out for review. There were responses from a variety of the stakeholders, including the provincial, federal, and municipal governments. They would be filed with the Canadian Standards Association. They have a fairly rigorous process. I think it would be best if you approached them as to whether they're willing to issue those comments. The comments themselves weren't public. It was only the document itself that went out for public review.

Mrs. Karen Kraft Sloan: We should be able to get comments from the federal government on this issue.

Mr. Peter Duck: Not necessarily. It was an internal CSA process, and that's part of what makes the process a successful one. There are very strict rules around how it goes.

Mrs. Karen Kraft Sloan: Perhaps, Mr. Chair, we should look into this, as a committee.

Another question I have for Mr. Duck and Madam Kostuch is that you are concerned about the ability to stop projects that are clearly in contravention of the act. Sometimes we have heard from members of this committee saying they are concerned about frivolous and vexatious actions on the part of the public to stop these projects, and they're concerned about some of the financial implications for proponents of projects. I'm just wondering about this. If this was something that could be done, do you think this would result in proper usages? Given your experience on the act, Mr. Duck--or elsewhere, if the other witnesses would like to comment--what might the typical proponents of these projects feel about this ability to stop projects that are indeed in contravention of the act?

Á (1105)

Mr. Peter Duck: My first response on this frivolous and vexatious thing is that the courts have the opportunity not to listen to frivolous and vexatious arguments. So there's protection right there. If the court feels it's frivolous and vexatious, the court won't entertain the activity.

The reality of the situation is people have a life. From the public view, this is all done on volunteer time. I think you'll find that in reality people aren't bringing frivolous and vexatious concerns. They have real, honest issues that are affecting their lives and they would like to see them addressed. And if they're there, if they're taking time away from work, as I often do, losing money to participate in the environmental assessment process, it's not because it's frivolous and vexatious; it's because it's an important issue that needs to be addressed.

Ms. Martha Kostuch: I'd like to echo Peter. The courts can prevent frivolous and vexatious. It's easy to get a dismissal. We've never been dismissed for being frivolous and vexatious--ever.

Yes, you can look at the financial implications to the proponent. But what about the financial implications to others? The Oldman Dam cost close to $1 billion, flooded over 35 kilometres of superb fisheries habitat, and caused significant damage to the Peigan Indians, which still hasn't been resolved. We can talk about the financial implications to the proponent of not proceeding if the acts are not obeyed, but what about the environmental consequences, with the social implications and the financial implications, of proceeding in contravention of the act?

Again, the courts can balance that. The courts are not going to grant injunctions if they're not warranted. So I don't think that's an issue.

Mrs. Karen Kraft Sloan: Thank you. I don't believe it's an issue either, but it's certainly something that is echoed around this table often enough.

Thank you. Is there a third round?

The Chair: We'll try.

Mr. Reed.

Mr. Julian Reed: Thank you, Mr. Chairman.

I'd like to pick up briefly on the frivolous and vexatious. I have a question following from that. Should a plaintiff who has a case dismissed because it's frivolous and vexatious be financially responsible for the costs?

Mr. Stephen Hazell: Again, that's up to the court to determine. In Canada, if say CPAWS as an applicant brings an application for judicial review to say the Federal Court trial division, and the Federal Court trial division--which they never have, CPAWS has never lost any of its cases yet either--says that's frivolous and vexatious, typically, under Canadian law, costs follow the event, so that typically an applicant would be compelled to pay party and party costs to the respondent. So there are certain court costs that would be payable to the respondent in that situation.

Mr. Julian Reed: Have you ever seen that happen?

Mr. Stephen Hazell: Costs typically follow the event.

Ms. Martha Kostuch: And indeed they have--

Mr. Stephen Hazell: That's normally how it works in Canadian law.

Mr. Peter Duck: I paid a $40,000 judgment against our group.

Ms. Martha Kostuch: You win.

Mr. Julian Reed: I have a brief anecdote I'd like to tell, and then I'll follow with a much briefer question.

Some years ago I applied to put an impoundment on a river, and during the process of that application I was lectured about the methane emissions that would be generated, the warming of the water, and the mercury that would be released through it all. It was about the same scope as a beaver pond. Finally, in my frustration with the biologist, I said, “Do you mean you want me to go around with my little six-quart basket of dynamite and pop every beaver dam in Haliburton County, of which there are very many?” “No, no”, said the biologist, “we don't want you to do that; they're made by nature.”

My question to each one of you is, are human beings part of nature?

Á (1110)

Ms. Martha Kostuch: Very much, and I certainly do not oppose all dams. I think there are some very beneficial dams--

A voice: Mainly built by beavers.

Ms. Martha Kostuch: Beavers and humans. I think we've seen, for example, Ducks Unlimited put in projects that have had significant benefits for migratory birds, for birds of all kind, and other wildlife.

Yes, humans are part of nature, and by our very existence we have an impact on the environment and the environment impacts us. Should we stop all development? Absolutely not. But should we have development that's in the best...that's sustainable? Absolutely.

Mr. Stephen Hazell: Humans are part of nature, absolutely, but we have to remember that humans are by far the most abundant large mammal on the planet, and our populations continue to expand. We have to take that into account because of our population, because of the incredible impacts we have on the environment. There have been studies done on ecological footprints. For example, there is the really important work that Dr. William Rees from the University of British Columbia has done on the ecological footprint of human beings on the environment. How many acres or hectares of land does it take to support each human being? Some of the calculations are that we already have too many people for the prime reproduction of the planet's core.

So, yes, humans are part of nature, and I think actually we should encourage that sort of thinking, to think of humans as a part of nature, as large carnivores or omnivores that are wreaking havoc on the landscape.

The Chair: Madam Redman, Mr. Laliberte, the chair.

Mrs. Karen Redman: Thank you, Mr. Chairman. Perhaps you could ask Mr. Duck and Mr. Burcombe if they could nod in agreement that humans are part of nature.

My colleague, Mr. Mills, was talking about the Sumas projects. I would like to note that this is televised, and that perhaps if the people of the United States know who the environment minister is, it's because Environment Canada made at least three submissions to the Washington body looking at the Sumas 2 project, because we're very cognizant of the fact that there was a connection to Canada.

As well, I would like to thank Mr. Duck for talking about the Canadian Standards Association paper and invite my colleagues to look at it. The agency did send us copies of those comments, and if we're unable to find them in the mountain of paper on our desks, please contact the agency. They were circulated in December, and we'd be pleased to recirculate those.

Ms. Kostuch, you mentioned earlier about transboundary effects, and I want to point out again for people who have not had the opportunity to read the entire report what the recommendations of the assessment of the Environmental Assessment Act were. Actually, despite the fact that there has been in the act an ability to look at transboundary effects, there were technical problems in the wording of this provision. It was felt that this inhibited the application, and we actually have brought forward amendments that will make these sections more operable and more consistent with the original text. That has been seen to be an improvement in the act and something the agency moved to support.

Ms. Martha Kostuch: I agree. That's definitely an improvement, but even with that improvement we still need to have the political will, because that has not stopped very many from being assessed. It stopped the Genesee project in Alberta from being assessed, but really, the lack of political will to use the transboundary section, and not the technical impediment being corrected by Bill C-19, has been the big problem.

Mrs. Karen Redman: Mr. Hazell, you earlier held up your book, and on page 153 you include an interesting comment about the dangers of making environmental legislation overly prescriptive. I'll read it for everybody:

In reforming EARP, the environment community sought to entrench as many legal obligations as possible. In hindsight, it is perhaps clearer that the most effective environmental laws are not necessarily the longest.

This committee has been faced with several calls for amendments to Bill C-19, to make it more prescriptive and less flexible. As someone who has worked on the issue from within the government and is now outside of the government, what's your advice to us as parliamentarians, as we grapple with this issue?

Á (1115)

Mr. Stephen Hazell: I think you have to look at each amendment as it comes, but I stand by what I say there that CEAA is a very complicated regime. It's really hard for anybody to understand; it's hard enough for lawyers to understand. So I think this is a very general problem you have federally. We have these very complicated environmental laws and regimes--CEPA, SARA, CEAA--and I'm not convinced they have to be so complicated.

Part of the problem is that the legal advice the federal government gets doesn't really recognize the fact that the federal constitutional authority is a lot broader than Justice thinks. You could make things a lot simpler just by virtue of recognizing you have some authority under a whole series of cases going back to R. v. Crown Zellerbach Canada Ltd., Oldman, etc. Let's take advantage of the constitutional authority we have. Anyway, that's a separate issue.

It is true that sometimes it's better to have shorter, simpler provisions. That allows the civil servants to do their jobs and not be constantly looking over their shoulders to kind of figure out whether they've complied with a regulation or not. That's partly me speaking as a former bureaucrat.

Mrs. Karen Redman: I appreciate that. I think your unique perspective, having been within government and now being outside of government, is very productive.

We've touched a lot on the cumulative effects of the amendments within this bill, and indeed environmental assessment. If anyone hasn't commented, I know the chair has already charged this group with coming back with a process. We have received incredibly positive feedback on the process from RAC's involvement in how we looked at bringing forward Bill C-19. We had delegations here from the Canadian Construction Association, and they too felt the improvements we were making strengthened the bill and made it more workable.

Given the concern that we're continuing to hear about cumulative effects, I'd just like to hear again that this has been a good process, and perhaps that's another piece of a process that isn't necessarily part of what we're dealing with immediately. Is there a consensus that we're not at the point now in this process where we can grapple with that issue?

Mr. Peter Duck: I guess it depends on how much time there is. Coming out of the Regulatory Advisory Committee we realized it was a complex issue. Given the number of things on the plate on any given meeting agenda, there just wasn't time to sit down and deal with that, as one example of one of the issues that was on the table, to everybody's satisfaction. There wasn't the chance to hear everybody around the table and address the issues.

Ms. Martha Kostuch: Certainly the agency's process is one of the more open processes we've had. With RAC and the combination of going out, I'm not critical of that process--of doing this Bill C-19 and coming up with this.

Where do we go from here? I think that's the big question. A lot depends, of course, on whether the House is prorogued or not and whether you finish dealing with this. It's your choice. Do you finish with Bill C-19? How long will the House be sitting? Can you finish before you prorogue, or do you take on the bigger issue now? You need to make that choice.

We will come back with a suggested process for how to deal with the bigger issues. Then it will be your decision whether or not to finish with the Bill C-19 review and this review and take on a new review, or if the House is prorogued, to combine the two and do the bigger review as part of the five-year review process or an add-on.

The Chair: Thank you.

Mrs. Kostuch, we have no choice. When the bill is before the committee, we cannot interrupt the process. We have to complete the work before we consider any other business.

Mr. Laliberte.

Á (1120)

Mr. Rick Laliberte (Churchill River, Lib.): Thank you, Mr. Chair.

I have a question for Martha.

You refer in your brief to an example of Suncor. I believe the tar sands operations have certainly excelled, and great interest has been put on them.

The issue relating to the environmental assessment is again the discussion of cumulative and comprehensive studies, because it's not only one project; it could be a number of projects, and it will be a number of projects. In terms of the airborne or waterborne impacts within that region, it affects the boreal region not only in Alberta, but it impacts Saskatchewan and the Northwest Territories as the water flows north. It's also at a confluence. The Churchill River headwaters are within that area.

In balancing the interests of oil and the interests of the boreal region and also the traditional foods--there are many freshwater fish markets being created because of the lakes--how do you see governments addressing issues of transboundary cumulative effects? How does this act have an impact on this, and how do you see the oil sands and its cumulative impacts affecting this into the future?

Ms. Martha Kostuch: I'm glad you asked that question. It comes back to the strategic EA question, policy review. The federal government, preferably in cooperation with the provincial government, should conduct a strategic EA of oil sands development and look at it in a broader sense. What are the positives, the benefits from it, and what are the impacts? Is oil sands development sustainable? Is it in the interests of Canadians and, more broadly, North Americans, the U.S., or is it not? The reason we will not be able to meet Kyoto is oil sands expansion, very simply. Yet that issue was not even addressed by the federal environmental assessment. It was identified as an uncertainty and the courts did not, unfortunately, rule on the need to refer that issue to a panel review. They commented, but they did not rule on that issue.

So under Suncor we did not get a review of what the implications are for greenhouse gases. You're right, it wasn't Suncor itself and their expansion we're concerned about. It is the totality of the oil sands development and the huge impact it will have on transboundary air quality, on greenhouse gases, and climate change, on the boreal forests, on waterways. The federal government should be conducting a strategic EA.

Another question is this. Why is the federal government subsidizing oil sands expansion by favourable tax breaks? You're contributing to our failing to meet Kyoto. Did you look at that, in considering whether you should give those tax breaks and faster write-offs? Did you even consider the environmental implications in making the decision to give tax breaks to oil sands development? Did you consider the impacts on our ability to fund health care when you gave those tax breaks? Those are the issues we should be looking at in a strategic EA, not in a project-by-project environmental assessment.

Now we're forced to say, okay, we, the environmentalists, don't have strategic EA, so we have to try to get at those issues by project-by-project assessment. So we tried to use Suncor. And indeed we have a meeting scheduled with the federal government as a follow-up to the Suncor decision to try to look at how we can get at some of these broader issues. We are going to follow up with them, but the question that has to come back to this committee and to the federal government is this. How should we be looking at these issues? You're right, they're very important issues, and they're not project-specific issues.

Mr. Stephen Hazell: Mr. Chair, may I make a quick response to Rick, because there's another possibility. With regard to the strategic EA, I agree totally with what Martha said. There is precedent for doing what is called regional environmental assessments. There was a Beaufort Sea panel some 20-odd years ago that looked at oil and gas development in the Beaufort Sea generally. That was a very important piece of work done by a federal panel looking forward, I suppose, to oil and gas development offshore in the Beaufort Sea.

Environmental groups have asked for something similar to be done with respect to diamond mining in the Northwest Territories. We didn't get it. We asked for it regionally. We didn't get it. We wanted to look at...okay, you're going to have a bunch of these diamond mines, all sorts of new roads being built, a possible new port on the shores of the Arctic Ocean. How is that all going to fit together, folks? We asked for it. We didn't get it.

Conceivably--and I don't know what the political feasibility of this is--you could have a regional environmental assessment of oil and gas development in northeastern Alberta. Maybe you could involve folks from Saskatchewan as well as the Northwest Territories. That's another option that could complement the strategic EA.

Á (1125)

Mr. Rick Laliberte: In your knowledge of the Suncor case, was it focused on Alberta as a jurisdiction?

Ms. Martha Kostuch: Alberta did a review and focused only on Alberta. It did not look at any transboundary effects. The federal government did a comprehensive study. In that comprehensive study, they identified as “unknown” the transboundary impacts on Saskatchewan and they identified as “unknown” or “uncertain” the climate change impacts. Looking at the act, you would say, well, you have all these uncertain and unknown impacts; it should go to a panel review to look at them. That did not happen.

We don't know. Saskatchewan was never involved in the review. Most of the air pollution--over 90%--will go out of Alberta. Oil sands expansion--the ones that are on the table--will result in a 29% expansion of greenhouse gas emissions from Canada, not from Alberta but from Canada. Only the oil sands expansion alone will result in a 29% increase in greenhouse gas emissions from Canada. We're trying to get a 6% decrease Canada-wide, and the oil sands expansion alone will increase our emissions by 29%.

Again, it was identified as an uncertainty, but it never even went to a panel review. So we don't know. It's still unknown.

Mr. Rick Laliberte: Thank you.

The Chair: Thank you, Mr. Laliberte.

There are a couple of requests for a third round, but let me first make these couple of points. One, the exchange between Mr. Mills and Madam Kostuch on the Commission for Environmental Cooperation in Montreal perhaps should be pursued by this committee by inquiring with the commission whether they are willing to come forward with a brief and expand on that item, so as to get a better understanding in-depth of that issue.

Ms. Kostuch, could you briefly answer whether...? Looking at your recommendations, unfortunately, recommendation number five, I am told, cannot be acted upon because it would not be possible to find a section in Bill C-19 that could be amended by the amendment that you are proposing, and therefore it would be ruled out of order, at least at first sight.

As to number six, when you propose to amend the act to require proponents to obtain a CEAA approval, which act are you referring to?

Ms. Martha Kostuch: I'm actually referring to the Canadian Environmental Assessment Act. I put forward these recommendations and did not limit them to Bill C-19. I do see your mandate as broader than Bill C-19. But I'm recommending that the Statutes of Canada, 1992, the Canadian Environmental Assessment Act, an act to establish the federal environmental assessment process, be amended, which would make it mandatory for proponents to obtain a CEAA approval.

Á (1130)

The Chair: Thank you for the clarification.

Mr. Mills, then Madam Kraft Sloan.

Mr. Bob Mills: I'd like to get a little further into this public consultation. Several things have been mentioned here, one of them by Ms. Redman just a minute ago, where the government and the department may well think they were doing their part in Sumas. But let me tell you that the people of Abbotsford, the city council of Abbotsford, and the Government of British Columbia don't think the federal government has done a damned thing about concern about the environmental impacts. The very fact that the government might think so....

I used an example today of consultation on Kyoto in Alberta, which is going on at 12 noon in Calgary, in a room that has 40 seats. I have a whole list of experts, scientists, professors, and average citizens who want to hear the briefing on Kyoto. We're going to hear the minister say that they've consulted on Kyoto with 40 people, an invited guest list, in Calgary at 12 noon today. That's not consultation. That's not public involvement.

We also hear your statement that this much material is what the public has to go through. That's not consultation. You just can't absorb all that and feed your family and do all the other things that average Canadians have to do.

I still come back to the question. How can we help the public to get involved? What can we do? I know this is a huge, broad question, but that's really where it's at; it's down there, at the average level, where we really do consult and listen to Canadians.

Ms. Martha Kostuch: Indeed, I think Canadians are doing a damned good job of having input. Whether or not it's wanted by the federal government, we are getting our input one way or another.

You talk about the federal government's involvement in the project in B.C. I didn't see you raising the same issues and questions in the same projects in Alberta. We have Genesee and we have Keephills that have the same impacts--in fact, greater impacts. Where were you? The federal government tried to get in the door there, at least, but because of the problems in the existing act, they were not able to get in the door.

As far as Kyoto goes, it's time to shit or get off the pot. We've had 15 round tables. The federal government consulted. They had 15 round tables and they had hundreds of Canadians involved in that, including provincial governments, industry, and environmental groups. They consulted to hell. The Alberta government has not had any consultation on the positions they're putting forward on Kyoto--not any. In fact, they've refused to involve CASA in climate change policy issues. The Alberta government is putting out all these positions without having consulted the public at all, but the federal government, as part of a national process, had 15 round tables on all the major issues. They've consulted to death.

Mr. Bob Mills: Do you think Canadians really do understand what Kyoto is all about, all the sides, the science and the arguments?

Ms. Martha Kostuch: I think Canadians understand it and they want action on it. They want the federal government to stop talking and they want the federal government to start acting.

Mr. Bob Mills: I wish I thought you were right.

Ms. Martha Kostuch: Well, I've seen the 15 round table productions and all the effort that went into those. There have been economic studies. There have been all kinds of studies done. We don't need more studies; we need action. We need action by the federal government now.

Mr. Stephen Hazell: Could I comment briefly? This is a slightly different subject. With respect to public involvement in environmental assessment federally, funding is an issue. If you expect members of the public to be able to digest the material that's put forward--as Peter mentioned, sometimes you get stacks of stuff to read--there has to be some funding to do that. You can't expect people to take a week out of their lives to digest a ton of material. So there has to be funding.

There is some public participation funding available through the agency. By and large, it's pretty limited, though. I know sometimes funding is actually an issue as to whether or not a panel review is struck. There's always the question within the civil service. Here's a project. It probably should go to a panel review, but who's going to pay for it? Where's the money going to come from? Public participation is sometimes limited because of lack of funding. We're not talking about a lot. The agency is pretty parsimonious and I think it uses its money very well, but it does need more money to help out.

Á (1135)

The Chair: Madame Redman.

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

I actually find a nice segue from what Mr. Hazell has just said, and I would like to refer back to Ms. Kostuch's remarks around the participation of Canadians in the Kyoto process.

I would like to reiterate and point out that when we were in Bonn, Germany, we not only had an aboriginal chief with us, we had industry with us, NGOs, and the Ministers of the Environment from Alberta and Ontario, as well as Quebec. I underscore that they were there on the Canadian government's dime. There were comments that came back to us, especially from the aboriginal leader, that he was one of the few delegates internationally that came to all our briefings.

Since 1997 this government has been going through very meaningful consultations, very well expressed by Ms. Kostuch, and we quite agree with her that we had to have that information before we took action. Those figures on which we can base a good decision should be coming by the end of the month, and the Canadian government intends to continue consulting Canadians.

The Chair: Thank you.

Madame Kraft Sloan has the last word...or Mr. Bigras, perhaps.

Madame Kraft Sloan, briefly please.

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

It's really unfortunate that Madame Kostuch isn't very clear on this particular issue. As I understand, it's our second round of round tables.

Anyway, going back to Bill C-19, there was a story in the Calgary Herald on Sunday that talked about the Oldman River Dam Environmental Advisory Committee releasing its final report. I guess I have some degree of concern when I hear “final report”, or “final set of recommendations”. So I'm wondering if this will be the end of their monitoring of the dam's report.

But in it, the report says, with regard to fish habitat impacts of the dam, it does not believe target habitats have been maintained. It states that many questions regarding the habitat cannot be answered because the necessary baseline data has not been acquired. It also goes on to state that many questions about the dam's impacts outside the environmental area have not been answered as well.

So I'm just wondering, with regard to follow-up, if follow-up has been better under CEAA than it was under EARPGO, and if it's not, if Bill C-19 addresses this issue and improves it.

Ms. Martha Kostuch: No, follow-up has not been better under CEAA, and yes, I hope Bill C-19 will help to address that.

Some of my colleagues, in earlier submissions, have made some improvements, perhaps, to strengthen that, but I certainly see that as one area of improvement. We also need it for screenings. So we need to expand it, but I think it's a step in the right direction.

Mrs. Karen Kraft Sloan: And especially when screening resulted in two bridges and their abutments and 11-million hectare--

Ms. Martha Kostuch: That's still a problem. It doesn't address that problem. That's a different problem.

Mrs. Karen Kraft Sloan: Thank you.

The Chair: Thank you.

That concludes our hearing this morning. Mr. Bigras is waiving his right to intervene--Merci, monsieur Bigras.

On behalf of the members of the committee, let me thank you for your very substantive and very helpful input this morning, for the short term and the long term. Madame Kostuch, Mr. Hazell, Monsieur Burcombe, and Mr. Duck, we certainly appreciate your knowledge, your input, and your commitment, and perhaps we might have another opportunity to discuss things further. Again, thank you very much.

This meeting is adjourned.