Dissenting report – FINA Subcommittee on Part 3 of C-38

New Democrat members of the Finance Subcommittee object in the strongest terms to the Conservative Government’s decision to bury extensive changes to environmental, fisheries, species at risk, and energy legislation a budget bill. The extensive and complex changes proposed, the rushed and often interrupted committee hearings, the extremely limited consultation, and the lack of opportunity to draw on the expertise of the standing committees on Environment, Fisheries, and Natural Resources have prevented a proper and robust evaluation of the proposals contained in Part 3 of C-38.   New Democrats note that witnesses were given extremely short notice of an invitation to appear, and those that were able to testify had little or no time to prepare. The subcommittee had no written briefs to consult and the public had little opportunity to participate in the hearings. The main report developed by the subcommittee is highly selective and grossly mischaracterizes the expert opinion that numerous witnesses presented to the Committee. As the main report does not accurately reflect the numerous concerns raised in witness testimony and by Canadians about this process and the sweeping changes proposed in this bill, New Democrats offer below a dissenting report on Part 3 of C-38.

The Conservative’s Trojan horse budget bill will result in less protection for the environment, weaker regulation for resource project assessments, reduced public accountability and more discretionary power in the hands of Ministers to make sensitive environmental decisions. Witness after witness raised concerns about the scope of the changes contained in the bill and the lack of government consultation, and urged the government to split the bill to allow for proper study. Former Progressive Conservative Fisheries Minister Thomas Siddon suggested that “responsible members of parliament from all parties would take those environmental provisions of clauses 52 to 169 and bring forth a separate piece of environmental modernization legislation.”

Bill C-38 contains a wholesale repeal of the Canadian Environmental Assessment Act (CEAA), replacing it with new legislation that will reduce the number of projects that will be assessed and allow the Minister substantial latitude to exclude projects from a review of their environmental, social and economic impacts. The “CEAA 2012” introduced by C-38 will subject assessments to artificial time limits and even allow the Minister to exempt projects from review all together.

The full impact of these changes were brought sharply into focus by Will Amos of Ecojustice, who stated that “improvements to CEAA are achievable, but not by eviscerating the federal role in environmental assessment, devolving reviews to provincial/territorial governments, and by imposing artificial timelines on a much smaller number of projects.”  With respect to the Conservative’s inaccurate contention that unnecessary duplication is rife in the present environmental assessment process, New Democrats note that this issue has largely been addressed by previous changes. An Environment Canada presentation, dated September 6, 2011 and released through access to information, explains:  “Amendments made in 2010 have made the CEA Agency responsible for most comprehensive studies; this change is yielding positive results as all agency-led comprehensive studies have started in alignment with provincial reviews, preventing process duplication […] All provinces have EA (environmental assessment) processes; harmonization agreements and project-specific arrangements are intended to prevent duplication.”

Witnesses also raised serious concerns about the risk of increased litigation, noting that a weak environmental assessment process increases the chance of costly legal challenges for project proponents down the road. Chief Shawn A-in-chut Atleo of the Assembly of First Nations underscored this problem: “In its current form, part 3 of C-38 clearly represents a derogation of established and asserted first nations rights. If enacted, it will increase the time, costs and effort for all parties and governments, as first nations will take every opportunity to challenge these provisions.” Jamie Kneen of MiningWatch Canada pointed out that weak social license to will cost industry more in the long run: “Lawsuits and direct action will also create greater uncertainty and unpredictability, and can be reasonably expected to more than counter any anticipated efficiency gains.”

In addition to curbing the timeline of the review process and limiting the number of projects that will be reviewed, C-38 also excludes many Canadians from giving their input on major resource projects. In order to participate in public hearings, Canadians will now have to be “directly affected” by the project or be deemed to have “relevant information or expertise”, terms that are subject to conflicting interpretation and would potentially exclude many from the consultations.  New Democrats find it particularly concerning that the Minister was unable to define what “directly affected” means.

Environment Commissioner Scott Vaughn summed up the result of these changes:  “What is clear is that there will be significantly fewer environmental assessments. The range is from currently 4,000 to 6,000 a year to probably 20 to 30 a year which will be under the federal regime.”

In addition to dramatically reducing federal involvement in environmental assessments, the Conservative budget bill also contains serious and extensive changes to the Fisheries Act. Presently, the Fisheries Act is the cornerstone of Canadian fisheries management and is counted among the world’s best frameworks to protect fish and fish habitat for future generations. Peter Meisenheimer, Executive Director of the Ontario Commercial Fisheries Association, pointed to the critical role of fish habitat protection in section 35 of the current Act: “That is a lynch-pin of fisheries management in this country.” 

Numerous witnesses expressed concern that the changes in C-38 would dismantle this critical fish habitat protection, limiting it to very narrow circumstances.  The additional element of increased ministerial discretion for Cabinet to decide which projects are reviewed and over-rule regulatory agencies raised particular concern. Preeminent scientist Dr. David Schindler warned that rules must be “specifically worded in the legislation […] and not left to the whim of a minister who has no scientific background, period.” Mr. Siddon deplored that the changes in C-38 will erode the provisions of 144 years of history, makes “Swiss cheese” out of the Federal Fisheries Act with the serial list of exceptions and exemptions opening up a field day for court challenges.

National Chief Atleo was highly critical of the Conservative’s failure to consult on C-38, noting that this disregards a core federal duty towards First Nations. He warned that “First nations will vigorously oppose any attempts by the crown to erode or evade lawful obligations and responsibilities.”

New Democrats regret that the committee process imposed by the Conservatives did not allow these and many other elements of the bill to be fully studied.  Terry Reese, Executive Director of the Ontario Federation of Cottagers’ Associations, summed up the concerns of many witnesses when he stated that this bill “diminishes the existing law, and as a result, is bad for Canadians.”

The overwhelming recommendation of a significant number of witnesses was that these sweeping changes require better scrutiny.

• National Chief Atleo of the Assembly of First Nations: “Part 3 of Bill C-38 needs to be withdrawn to take the time to work with first nations to ensure their rights and interests are reflected and will not be compromised through such legislation. Failing that I would recommend that the legislative amendments in part 3 be separated from the main bill to ensure appropriate study and amendments can take place with engagement and input from first nations.”
• Will Amos of EcoJustice: “It's our opinion that this is the most significant and devolutionary set of environmental law reforms that have ever been presented to Parliament. There is no law that we can recall that has ever in such a broad and structural manner changed the federal environmental governance regime. Thus, our main message here is that Canadians are not ready for this. Parliament is not ready for this. There has been inadequate process to consider the transformative changes that are being proposed and we would urge this committee to recommend back to the finance committee that Part 3 of Bill C-38 be excised and be separated and re-tabled, if the government deems appropriate, in a stand-alone bill.”
• Former federal Fisheries Minister Thomas Siddon: “I think it's extremely important you separate the bill. That was the message in the letter that four ministers signed to the Prime Minister. [. . .] This is the wrong way to go about it. This is the wrong committee to be dealing with these questions and responsible members of Parliament of all parties would take those environmental provisions of clauses 52 to 169 and bring forward a separate piece of environmental modernization legislation, whatever you want to call it.”
• Christian Simard of Nature Québec: “Considering what has been put before us, how many natural lakes and rivers will be used for routes without any assessment, analysis or protection, and possibly for other tailings sites? While there are peat bogs in Northern Quebec and Northern Canada, these wetlands are not necessarily fishable but are essential to the ecosystems. It is crucial that we do not establish this type of discretionary system that functions by exception. That is why Nature Québec is calling for a major change and the withdrawal of these provisions of the budget implementation bill.”
• Jamie Kneen of MiningWatch Canada: “I'm here to urge you to ensure that the environmental provisions of Bill C-38 are given proper consultation and debate. Part 3 of C-38, with which we are concerned today, is seriously flawed and in our view, to allow it to proceed without very major amendment would be irresponsible. With all due respect to the experience and knowledge of this committee, there is simply no way of adequately addressing part 3 as part of C-38. These provisions must be separated and debated on their own and, if needs be, removed and re-submitted to a new legislative process.”
• Terry Rees of Federation of Ontario Cottagers' Associations: “I'm disappointed I'm not addressing these comments and concerns, frankly, to the fisheries committee, and instead that these important matters are being considered as part of an unrealistically complicated, unprecedented omnibus Finance bill. The timing and design of this approach short-circuits the democratic process and certainly doesn't allow for the type and amount of reasoned discussion that fundamental important public policy deserves.”
• Tony Maas of WWF Canada: “Urging the members of this committee to use your influence to separate the reforms to the Fisheries Act from Bill C38 so that they can be addressed in a timely but thorough manner through a reasoned, multi-stakeholder, and importantly a science-based consultation process so we can together work towards a goal of creating solutions to protect and restore the health of our remarkable freshwater fisheries and the habitats and ecosystems that sustain them.”

Consequently, New Democrats present a single recommendation to the Standing Committee on Finance: that Bill C-38 be split into two or more pieces of legislation, and that Part 3 be referred to the appropriate committee or committees for thorough study and consideration.