ENVI Committee Meeting

STANDING COMMITTEE ON ENVIRONMENT AND SUSTAINABLE DEVELOPMENT

COMITÉ PERMANENT DE L'ENVIRONNEMENT ET DU DÉVELOPPEMENT DURABLE

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, December 6, 2001

• 0912

[Translation]

The Chair (Mr. Charles Caccia (Davenport, Lib.)): Good morning, ladies and gentlemen. Welcome to this morning's meeting.

[English]

There are three items, not necessarily in order of increasing importance, before we start the hearing. The first one is that today, being December 6, it is the feast day of St. Nicholas, and therefore I would like to wish everybody a Happy St. Nicholas. As you know, this is the saint who is at the root of all the celebrations that have taken so many ways and colours in various places across the continent and the world. So St. Nicholas is an important figure, and will be until he is replaced by a woman St. Nicholas, who hasn't yet been seen appearing on the horizon but one day I'm sure she will.

Secondly, the arrangements for Washington and the meeting with our senatorial colleagues south of the border are proceeding well. The approval of the House leaders is scheduled for early next week, and it would be helpful if members of opposition parties could indicate to their leaders their support for this particular initiative so that they will be more inclined to give the necessary approval.

Thirdly, our colleague, Mr. Reed, held another of his fantastic Wednesday noon meetings. Yesterday it was on hydrogen and the conversion of landfill greenhouse gases into district heating, and there were some terrific success stories. Again, I would like to congratulate Mr. Reed for his excellent initiative, which is so helpful and so informative. I'm sure the lessons that are emerging from those hearings will be very helpful to those who are in charge of policy-making. I would like to thank you, again, for your hospitality and your initiative.

• 0915

Today we are going into another steep learning curve session. Without further delay, Mr. Connelly, if you would like to make your presentation, then when you have completed we'll have least a couple of rounds of questions, I'm sure. Welcome to the committee, you and your colleagues.

Mr. Robert Connelly (Vice-President, Policy Development, Canadian Environmental Assessment Agency): Thank you, Mr. Chairman, and good morning to all of you.

Today, as the chairman has proposed, this is our second opportunity to brief committee members. The focus today would be on an overview of the Canadian Environmental Assessment Act, the current act. This will be followed next Tuesday by a presentation on the proposed amendments to the act, as contained in Bill C-19.

I'd also like to note that in anticipation of that presentation, we presented to the clerk this morning or yesterday copies of the clause-by-clause briefing book for Bill C-19.

Mr. Chairman, before proceeding with today's presentation, I would like to follow up on some items that arose out of Tuesday's meeting.

Mr. Chairman, in response to one of your questions about the decision record under the act, I propose to do two things. First, I've tabled with the clerk a copy of our compliance monitoring review. This was one of 12 background studies that were conducted in support of the launch of the review of the Canadian Environmental Assessment Act back in 1999. This study looked at a sample of approximately 200 screenings conducted by 11 departments. That was roughly, also, the same size of sample the Commissioner of the Environment and Sustainable Development used in his report completed in 1998. This report examined decisions taken by responsible authorities related to issues such as public participation, mitigation, and follow-up requirements.

Second, I plan, as I go through the various steps in the process, to provide you with some general statistics on the assessments and the decisions taken, as we walk through that. So hopefully I will be able to respond to the questions you raised yesterday, Mr. Chairman.

The Chair: You're talking of a second document that has yet to be prepared.

Mr. Robert Connelly: I have not prepared a second document at this point, but I could give you the numbers that we have at this point.

The Chair: No, we would rather see, at your convenience, a thorough second document when it is completed, so that everybody can have a good overview. We don't want to receive it verbally.

Mr. Robert Connelly: Yes, I will do that, Mr. Chairman. But perhaps I can also, at the same time, give you a heads-up on the numbers as I go through the presentation.

Slide 2, then, provides the outline for today's presentation. My goal is to explain the purposes of the act, when it applies, and also the different types of assessment. I will describe how the act deals with the important issue of public participation and the role of the minister and the agency in the process.

[Translation]

The third slide sets out the overall intent of the act. The section covering intent sets out the key purposes of the act. These purposes are the following: to ensure that the environmental effects of projects receive careful consideration; to promote sustainable development; to ensure that there are no significant adverse environmental effects outside the jurisdictions in which the projects are carried out and to encourage project development in such a way as to achieve or maintain a healthy environment.

• 0920

The section covering purposes also sets out an overarching approach in terms of achieving these goals through a coordinated approach ensuring an opportunity for public participation.

[English]

Slide 4 describes when the act applies. First of all, there must be a proposed project and I'll get to the definition of a project momentarily. Then secondly, there must be a federal decision to be made about that project. These are decisions by what we call under the act federal authorities; that is, ministers, departments and agencies, and boards.

For example, a minister or a department may have a decision about whether to fund a project. The Canadian Environmental Assessment Act imposes the requirement to conduct an environmental assessment before that funding decision is taken. The act also applies in Canada and overseas through the projects outside Canada regulations. For example, development assistance programs financed or initiated by the Canadian International Development Agency are subject to the act.

Slide 5 continues with an explanation about the application of the act. Other federal entities may also be subject to environmental assessment requirements through regulations. For example, federal-provincial boards that have been set up in Atlantic Canada to deal with offshore oil and gas resources have been brought under the act as a result of the federal authorities regulations. The government has also put in place regulations that apply to Canada port authorities established under the Canada Marine Act.

Slide 6 refers to the definition of “project” under the act. Projects are undertakings that relate to a physical work such as the construction of a pipeline, a dam, or a highway—in other words, some physical work or some construction associated with such a project.

The act also provides for inclusion of certain physical activities deemed to be projects by virtue of what is called the inclusion list regulation. For example, military field exercises might not involve any physical construction, but nevertheless they have been added as an activity, or subsequently a project, as defined under the act through the regulation called the inclusion list regulations.

[Translation]

Mr. Chair, slide 7 sets out the classes of projects which do not require assessment. The regulation on which the exclusion list is based sets out the types of projects where the environmental effects have been deemed in advance to be negligible. For example, the proposed construction of small buildings with an area of under 100 square metres and which are no higher than 5 metres do not require an assessment. The building must not emit pollutants into a watercourse or be located less than 30 metres from any watercourse. This list also includes projects which are to be carried out to address emergency situations as stipulated in the Emergency Measures Act. Also featured on this list are projects designed to address an emergency situation in terms of protecting assets or the environment, or in the interest of public health and safety.

[English]

An example of such an exclusion would be the action that was taken by the government associated with the Red River flood in Manitoba involving the Department of National Defence. So that would be an example of a project excluded under that category.

The next slide, slide 8, deals with federal decisions. There are four types of decisions that can trigger the act if there is a project. The first is a project proponent, I mentioned National Defence for example. If it's planning to construct something it will be subject to the act. The second one is transferring land to enable a project to proceed—this would be federal land, of course. The third one is providing financial assistance to a project, including loan guarantees, and the final one is issuing a permit—or licence or approval—as defined in the law list regulations. These are commonly known as the four triggers under the Canadian Environmental Assessment Act.

• 0925

Slide 9 refers to the concept of self-assessment, which is one of the fundamental principles of the current act. As I mentioned on Tuesday, it was a principle that existed in the 1974 cabinet policy and that was replicated also in the 1984 Environmental Assessment and Review Process Guidelines Order, or EARPGO. It means that the federal department with decision-making authority over a project is also responsible for ensuring that the requirements of the environmental assessment have been met.

The advantage of self-assessment is that it provides for the early integration of environmental factors into the decision making of responsible authorities, and this in turn helps to promote decisions that are consistent with the goal of sustainable development. These responsible authorities are assisted by the agency that provides advice and training and interpretation of the act. In addition, there are departments such as Environment Canada, Fisheries and Oceans, and Natural Resources that are often called upon to provide scientific and technical advice in support of those assessments.

Slide 10 describes the screening level assessments, which account for the vast majority of projects assessed under the act, in the range of over 99% of all assessments. These assessments are frequently of small routine projects, such as the demolition of a small building on a military base, but may be of medium-size projects, such as the extension of a highway.

The term “screening”, I must admit, is sometimes misinterpreted to perhaps imply a cursory or brief examination of the environmental effects of a project. This is not necessarily the case. Under subsection 16(1) of the act, screenings must consider all factors, and I would draw these to your attention as indicated in the slide: environmental effects, including effects from possible accidents and cumulative environmental effects; the significance of these effects; mitigation measures to deal with these effects; and public comments.

Screenings have included public meetings and public comment periods on the screening report as well. Screening may involve a significant amount of research on the part of the proponent and government agencies. Screening reports, however, can be very small; they may be only a few pages in length in some instances, in the very tiny projects that are assessed, but they can involve reports and studies as long as several hundred pages. So we have quite a variety and range of projects that are subject to the act at the screening level.

Class screening—I think it's a term that was mentioned on Tuesday when we had our discussion—is also used as a means to streamline the assessment process for routine or repetitive projects. An example of this would be the class screening Parks Canada has developed for municipal-type projects in the town of Banff in Banff National Park.

After a screening is completed, one of three possible decisions may be taken. The first one is, the project is allowed to proceed because it has been concluded that it is not likely to cause significant adverse environmental effects. Second, the project is not allowed to proceed because it is likely to cause significant adverse affects, and those effects cannot be justified. Or third, the project can be referred to a mediator or an independent review panel because either it is uncertain whether it will cause significant adverse effects, it is considered likely to cause such effects, or there are public concerns that warrant such a reference to a panel. Those are the three possible decisions that arise from the screening part of the process.

• 0930

Mr. Chairman, since the act came into force, there have been approximately 5,500 to 6,000 screening level assessments per year, and by the time we see the seventh anniversary of the act, which is coming soon, there will have been about 40,000 screenings initiated. The information we have from departments indicates that some 60 of those projects were turned down from the time the act came into force until the end of March 2001. The first year of the act saw some 29 turned down, while in the last fiscal year 11 were not approved.

I would add that this information is somewhat incomplete. For example, we do not have details on why certain specific projects were turned down. I'm answering this in response to your questions on Tuesday in terms of the numbers. We do not have data on projects where an assessment was started but never completed. I'm now talking about projects at the screening level. We have anecdotal evidence of projects that have not been proposed because the proponent realized the project would never succeed in getting through the environmental assessment process, but that kind of information is not documented. It resides, if it exists, in the files of other departments that are required to implement the process at the screening level.

Without going into too much detail about next week's presentation on Bill C-19, I would like to say that we are proposing to address some of the shortcomings associated with a paucity of data. We propose to require departments to post a notice of the commencement of an assessment and the decision taken after the assessment on a new electronic registry that will be accessible to the public through the Internet. The bill also requires the agency to establish a quality assurance program that will generate this type of data, and we will therefore be in a better position to have more statistics, we hope, in the future with Bill C-19 than we have at the present time.

Slide 11 describes the second type of assessment, namely comprehensive studies. Comprehensive studies by definition are in-depth examinations of projects that may have significant environmental effects. These are larger projects, such as the construction of a pipeline over 75 kilometres in length. These projects are all identified in regulation through what are called the comprehensive study list regulations.

Under the act to date, 36 comprehensive studies have been completed and another 21 are underway. In addition to the factors looked at in screening, comprehensive studies must consider all the factors under subsection 16(2) of the act, and these include, as shown in the slide, the purpose of the project, alternative means of carrying out the project, requirements for follow-up programs, and the capacity of affected renewable resources to meet present and future needs.

After a comprehensive study the Minister of the Environment decides that either the project should proceed because the effects are not likely to be significant or it should be referred to a review panel because the effects are likely to be significant or it is uncertain whether they are likely to be significant.

Mr. Chairman, again, in response to one of the questions you had on Tuesday about the decision record, so far all 36 projects that have been assessed through the comprehensive study process have been approved. There are, however, some projects where the comprehensive study has yet to be completed because the proponent and the government are still trying to find ways to mitigate potentially significant adverse environmental effects.

• 0935

For example, the comprehensive study for a proposed gold and copper mine in British Columbia began in 1997, and this study is currently on hold while the proponent and the Department of Fisheries and Oceans examine ways to prevent the destruction of valuable fish habitat. So it has gone part-way through. It has been held up because there are some environmental problems that are still under investigation.

The redesign of projects and mitigation measures also goes beyond proposals associated with industrial developments. For example, the comprehensive study of a 24-kilometre road to connect the Kincolith Band of the Nisga'a Nation to a B.C. provincial highway system included a number of mitigation measures that were designed to protect the region's grizzly bear population. They included spot closures so that bears are not discouraged from using their established fishing sites during salmon spawning season; closure of local landfills; a new solid waste management plan; a public awareness campaign; and a monitoring program, including the tracking of grizzly bear numbers.

[Translation]

Slide 12 deals with the provisions built into the act on mediation. The Minister of the Environment may refer a project to a mediator upon agreement from all interested parties. The mediation body submits a report to the Minister of the Environment and to the responsible authority. We have never seen any projects where all the interested parties failed to agree on an appropriate process. This is because of the deterrent effect played by the fact that all failed mediation is referred to a commission.

[English]

Slide 13 deals with the process established by independent review panels. It is in effect the fourth type of assessment associated with the act. Historically, review panels have been one of the strengths of the act. They are appointed when warranted by public concerns or when the environmental effects of a proposed project are uncertain or likely to be significant.

The act also allows for cooperative joint reviews with provinces, aboriginal governments that have responsibility for environmental assessment, other countries, and international organizations.

A total of ten panels have been appointed since the act came into force, and six have been completed since 1995. Panels hold informal public hearings that allow individuals, organizations, and expert witnesses to provide evidence. The agency provides the administrative support necessary for the panels to function. The members themselves are appointed by the Minister of the Environment, and they are from outside government.

Some departments can be quite active in the panel review process and provide scientific and technical advice during the panel review. I noted on Tuesday last that the Berger inquiry during the 1970s provided the model that has become the foundation for review panels under the act.

The panel completes its report at the end of its review, and it is made public, of course. The responsible authority is required to respond to the panel report on behalf of the government. The act requires that this response of the responsible authority be approved by cabinet. So a response to a panel report is done following a cabinet review of that response.

Mr. Chairman, in response to your question regarding the decision record under the act, the government has accepted all environmental-related recommendations of the six panels completed since January 1995.

• 0940

Slide 14, Mr. Chairman, addresses the important issue of public participation. Ensuring there are opportunities for public participation in the environmental assessment is, as I stated earlier, one of the purposes of the act. Public participation is important for several reasons, as we also discussed on Tuesday. It provides interested persons and organizations with a fair opportunity to contribute to the process and to see how their contributions are used. Project proponents and government decision-makers receive information about the possible environmental effects, and decisions can better reflect community values. Effective public participation also builds greater public trust and acceptance in the environmental assessment process and decisions that come out of the process.

In support of public participation, the act currently requires the establishment of public registries for projects and provides participant funding during mediations and review panels. We have also created an index where departments voluntarily place information about projects. This is not a mandatory requirement. It's called the federal environmental assessment index, and that can be found on the agency's website.

Slide 15 describes the current requirements respecting public participation. During the screening level of assessments, the decision on whether to provide opportunities for public participation is at the discretion of the responsible authority. In practice small, routine screenings usually proceed without public participation, while more complex screenings can include public meetings and open houses and an opportunity for comment on the screening report before the responsible authority makes a decision.

However, with regard to draft class screening reports, the act provides a mandatory opportunity for public comment on that report before it is finalized. Comprehensive study reports also undergo public comment before the responsible authority takes a decision. Reviews by a mediator by definition, of course, would include all interested parties. Review panels, as you well know, are a public process with hearings and opportunities for the public and groups to intervene.

Slide 16 describes the role of the Minister of the Environment in the current process. After a comprehensive study, it is the minister who has the final decision on whether a project should be subject to a second assessment by a mediator or review panel. The minister is responsible, as I mentioned, for appointing mediators and members of those panels.

For projects without one of the triggers, the minister may also use the transboundary provisions of sections 46 to 48 to refer a project to a mediator review panel if there is potential for significant adverse effects in another province or country or on federal or aboriginal lands. These transboundary provisions have not been used to date, in part, not the sole reason, because there is a technical legal barrier, which we will speak to later.

The Chair: On that note, Mr. Connelly, on page 3 of your presentation it says that one of the purposes of the act is to prevent significant transboundary effects. Are you in contradiction with your own legislation?

Mr. Robert Connelly: No, Mr Chairman, and I'd be glad to explain this in more detail. Under the definition of environmental effect, there is a requirement for every project that is subject to the act to also examine any transboundary environmental effects. So the transboundary provisions in the act are put there as a safety net in the event that there is a project not subject to the act but for which there are potential significant adverse effects of a transboundary nature. So it's a kind of safety net that exists in cases where the act would normally not apply. These particular transboundary sections are a rather extraordinary type of provision under the act.

Under the transboundary sections, the minister also has the authority, I would add, to stop certain projects until an assessment is complete or if a review panel determines the project is likely to cause significant adverse transboundary environmental effects. The minister may also issue guidelines and codes of practice regarding the application of the act.

• 0945

Slide 17 further describes the role of the Minister of the Environment. The act requires that the minister establish a participant funding program for projects that have been referred to a mediator or review panel, and it is the Minister of the Environment who recommends regulations to the Governor in Council respecting the application of the process. These include obviously the four key regulations that were required to implement the process in the first place—the law list, the exclusion list, the inclusion list, and the comprehensive study list regulations—and includes other regulations that extend the environmental assessment process to other bodies, such as the Canada Port Authority. The minister may also enter into agreements with other jurisdictions and may establish research and advisory bodies such as the Regulatory Advisory Committee.

I have two slides left. Slide 18 outlines the role of the agency. It is an independent body. It reports directly to the Minister of the Environment, separate from Environment Canada. We have a total staff of 100 people across the country, headquartered in Hull and six regional offices. We provide training and guidance to departments and others. We also provide recommendations to the minister in support of his decisions under the act. We've also recently launched a research and development program, and we provide support to review panels and mediators.

With my final slide, I would conclude by referring to the review process itself. The act requires the minister to conduct a review. Preparations for that began in 1998. There was an extensive consultation program put in place during that period. The minister tabled his report to Parliament on March 20, 2001.

We found that the review supported the core strengths of the act as they exist today, and we believe Bill C-19, plus the report to Parliament, addresses many of the problems that have been identified in that process. We will talk more next Tuesday about the review itself and the proposals in Bill C-19.

Mr. Chairman, that concludes my presentation. I would be pleased to respond to your questions and those of the members.

The Chair: Thank you, Mr. Connelly, for your comprehensive review of the act.

We'll start right away, without delay. We have Mr. Bailey, Mr. Bigras, Mr. Comartin, and Madame Kraft Sloan.

Mr. Bailey.

Mr. Roy Bailey (Souris—Moose Mountain, Canadian Alliance): Thank you very much, Mr. Chairman. I would hope that we'd make two rounds this morning.

I want to address something that perhaps shows a bit of my background. On a scale of one to ten, at this time I would give the environment people in Canada about a five, which is not too bad.

If the environment is going to become an issue, if the environment in totality is going to be a national thing, I think we have to recognize that there is a role to play in assisting the provinces, which guard their education under section 93 very jealously.

I've been in some classrooms, and when you pull the environment in, it's a beautiful chance; you can touch on the geography, and you can even touch on the history. I would recommend giving that some consideration. I don't know how much effort is being put forward, but if the provinces would follow the lead of the federal government in taking a look at the federal programs going on, the processes, and so on.... It can be broken down to different levels, and if we provide that information and the provinces do the same thing, then I can assure you that if you're looking down the road 20 years, you're going to see the public's attitude toward what you people are doing and what we hope to achieve is going to be remarkable indeed.

We know now that the university offers classes in this study. Not too many of our high schools have it as part of their curricula, and it should be, whether it be incorporated with...and so on.

• 0950

I'd just like your comment on that, Mr. Connelly. I think we're doing something, but I really don't think we're doing enough.

Mr. Robert Connelly: Mr. Chairman, in response to Mr. Bailey, I would just say that I probably agree with him that overall we could improve our education of people in the environment area. In our area, under the Canadian Environmental Assessment Agency, we have done a number of things, such as develop a short, simple little booklet for students to help explain environmental assessment and how they can even do that in their daily lives. If they're doing something at their home, even, these are some of the simple little things one can take into account.

I think we have to do more. You mentioned the university system and the education system, how it has evolved, and I've seen that over the years. When I first went to university, there was no such thing as an environmental studies program, but today we have a number of graduates working in the agency who have degrees in environmental studies. So it's an indication, I think, of how things are evolving in a very positive way.

Mr. Roy Bailey: I have just one final question on that, because I'm very concerned about that. I really believe that coming from the federal government down to the provincial education departments, without getting too pushy with them, I think they would welcome and encourage some assistance in drawing up some curricula that would help them deal with their individual province. I really believe there should be some money at the federal level for this purpose, because it's going to make the whole education system a lot easier.

For instance, I know you're aware of the green school projects. They have boomed across my area, but there could be more done. It's a learning process that just gets outside of the realm of environment. It's a beautiful program, and I would encourage you. I thank you for doing that.

Mr. Robert Connelly: Thank you.

The Chair: Thank you, Mr. Bailey.

[Translation]

Mr. Bigras.

Mr. Bernard Bigras (Rosemont—Petite-Patrie, BQ): Thank you, Mr. Chair.

I would like to come back to the Canadian Environmental Assessment Act and to ask you two questions. The first question deals with the role of the Minister of the Environment within the process. My second question has to do with a certain type of discrimination that exists to a certain extent in terms of specific project promoters. I will explain what I mean a bit later.

Firstly, we opposed this bill as early as 1992. Why? Because we believe that this bill leaves too much room for discretionary decision. I want to focus on the role of the minister, among others. I have the proposed subsection 46(1), among others, in mind. This subsection gives an important role to the minister. It enables the minister to take direct action in areas of provincial jurisdiction. The second last line of this subsection of the bill even states that the minister may intervene if “the minister is of the opinion that the project may cause significant adverse environmental effects”.

As a result, I have the following question. You recognize that the minister does have discretionary power. This power does exist. Just to what extent, if the minister is of opinion, can the federal government directly intervene in the assessment of projects? There is a lot of leeway here. I would like to hear your assessment and your interpretation of “if the minister is of the opinion” in subsection 46(1).

Mr. Robert Connelly: Thank you, Mr. Chair.

[English]

Mr. Bigras, under subsection 46(1), the minister.... Let me back up a little bit. Subsection 46(1) is one of the transboundary clauses under the act. As I mentioned, it serves as a safety net. The minister may become engaged in situations where there is a project not normally subject to the act. The authority the minister would have to do this would be associated with the part in section 46 dealing with interprovincial matters, or for example international matters, and the minister would only become involved in a review if he determined that there was a potential for significant adverse impacts.

• 0955

So we have seen this as truly a safety net. Obviously, and this has occurred in practice, the minister would work closely with provinces to determine if a suitable environmental assessment can be done using the provincial process in that instance in order to deal with the potential for significant adverse transboundary impacts.

[Translation]

Mr. Bernard Bigras: Mr. Chair, I understand what Mr. Connelly is telling me. I have read it correctly. I know that there is a safety net and that the minister does have discretionary power.

My question is quite clear. Under what circumstances can the minister decide to intervene directly under this section? Give me some examples. For example, would it be when the minister deemed the assessment process in a particular province not to be consistent with the federal government's criteria and philosophy in terms of environmental assessment?

I am aware that the minister has discretionary power. I know that there is a safety net, but I would like you to tell me what the parameters for ministerial intervention are, in a case where the minister deems that the federal government should take action. Give me the parameters governing any potential intervention by a minister under the proposed subsection 46(1).

[English]

Mr. Robert Connelly: Mr. Chairman, I would be glad to respond to Mr. Bigras.

Under that same section, if you look at subsection 46(3), there is a requirement for the minister to respond to a petition. The minister might be petitioned by a member of the public, or in some instances by representatives in another country, the United States for example, and the minister is required under this section to investigate the petition. He must determine, first of all, whether the act would normally apply to such a project. If it doesn't, then he can look at the potential use of these clauses. He must also make sure that there is no other federal law—or power, duty, or function, as we use the term—that applies to the project. And thirdly, he would only intervene to look at the transboundary effects, and it would be limited to the transboundary effects, in the event that a determination was made that there's a potential for significant adverse impacts. In arriving at that latter conclusion, he would clearly look at the results of any assessment done by any other jurisdiction. So that's the process the minister goes through to take that decision.

The Chair: Thank you, Mr. Bigras.

Mr. Comartin, followed by Madam Kraft Sloan, Mr. Reed, then the chair.

Mr. Joe Comartin (Windsor—St. Clair, NDP): Thank you, Mr. Chair.

Mr. Connelly, you said there were about 40,000 screenings conducted, but you don't have specific data on the number that were in some form initiated but not proceeded with, even to the screening stage. Can you give us some sense? Is it 10% of the 40,000, is it 5%, is it 50%?

Mr. Robert Connelly: It's really hard to guess, I must say. One of the difficulties we have had, and this I might add was also something pointed out by the Commissioner of the Environment and Sustainable Development in the audit that was done in 1998, is that the information to provide that kind of answer does lie with all of the different departments that are subject to the act. There are some 30 different federal departments involved in the act.

• 1000

They tend to document screenings that they start and complete on. If a project is withdrawn for various reasons, often there is little evidence of the reason behind that. So for the projects that are subject to the screening level of assessment, we in the agency do not get that kind of information, other than just perhaps the total number of projects subject to the act and the ultimate decision as to whether to proceed or not. That's about all the kinds of information we normally get and that is required for departments to report to us.

I think it's quite clear that we need to improve on the knowledge of how the screening process functions under the act. We believe there are some changes being introduced in Bill C-19 to assist in that regard.

Mr. Joe Comartin: We'll talk about that some more on Tuesday.

Mr. Robert Connelly: Yes.

Mr. Joe Comartin: You indicated the agency has about 100 staff. Of that 100, how many work directly on the screenings?

Mr. Robert Connelly: The screenings themselves are done and undertaken by the responsible authorities and would not directly involve the agency or its staff.

Where we have been increasingly involved, however, in recent years is in providing some coordination of the various departments, and obviously some advice on whether the project is consistent with the requirements of the legislation. We provide training and so on. We do not get directly involved in the conduct of the screening, because that is the responsibility of the other departments.

Mr. Joe Comartin: My attention was attracted to the review on page 13, where the major impediment identified to environmental assessments was inadequate resources, which ran at 27%. Have you addressed that? Has the agency addressed that with individual departments about providing sufficient resources to conduct screenings?

Mr. Robert Connelly: Based on my knowledge, the answer is no, in terms of the current act, Mr. Comartin.

As part of the proposed changes in Bill C-19, the minister announced when the report on Bill C-19 was introduced in Parliament that there would be some additional $51.2 million provided over five years to assist departments in responding largely to the changes, I must admit, associated with Bill C-19. These are obviously what we consider to be improvements in the overall management of the act. To my knowledge, there have not been additional resources provided to administer the current act in recent years.

The Chair: Thank you, Mr. Comartin.

Madam Kraft Sloan, please.

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

A comprehensive study can trigger a panel review of the process for EA—is that correct?

Ms. Heather Smith (Senior Counsel, Legal Services, Canadian Environmental Assessment Agency): Yes, a comprehensive study can trigger a panel.

Mrs. Karen Kraft Sloan: You have around 30,000 to 40,000 screenings that occur. According to the chart on page 4 in “Strengthening Environmental Assessment for Canadians”, there are about ten panel reviews, five that have been completed and five that are active. I'm wondering, how many of those ten panel reviews out of the 30,000-plus were actually triggered through the screening process directly, as opposed to going through a comprehensive study?

Mr. Robert Connelly: Mr. Chairman, in response to Mrs. Kraft Sloan, I can indicate that all of those ten panels were triggered from the screening process and were not triggered after the comprehensive study.

I am corrected. Can I just consult with one of my colleagues?

Mrs. Karen Kraft Sloan: Sure, as long as it doesn't eat into my time, Mr. Chair.

• 1005

Mr. Robert Connelly: Ms. Kraft Sloan, perhaps we have a slightly different interpretation of your question. I think my information is correct, but let me just reiterate. Some of those projects that went to panel are on the comprehensive study list, but they went directly to a panel. The point I want to make is that following a completed comprehensive study we have not then gone to the panel review process after that.

Mrs. Karen Kraft Sloan: As I understand it, the comprehensive review cannot automatically trigger the panel review. So once you get into the comprehensive study you don't necessarily have to complete it, but it does go up to a panel review. I'm talking about projects that have had a screening only and haven't gone to a comprehensive review, whether it was completed or just barely begun. It was the screening itself that triggered the panel review, and it didn't go to a comprehensive study.

Mr. Robert Connelly: Let me respond to that. A project won't move from a screening to a comprehensive study. If there is another level of assessment for projects at the screening stage, it would be directly to panel or mediation. A project is deemed to require either a comprehensive study or panel review simply because it's listed on the comprehensive study regulation.

Mrs. Karen Kraft Sloan: Yes, I understand that, but I'm wondering how many panel reviews are initiated because of the screening process, as opposed to going.... You're saying that some of them would have gone from the screening, but because they're listed on the comprehensive study list they're factored into that?

Mr. Robert Connelly: Yes, that's correct.

Mrs. Karen Kraft Sloan: If you could give us something in writing that would be very helpful.

Mr. Robert Connelly: We can provide a more detailed breakdown for you on that.

Mrs. Karen Kraft Sloan: I'm wondering what was the trigger, because as I understand it, mitigation is not going to solve problems of significant impact or uncertainty, and also public concerns. I'm wondering, what were the triggers in those cases? Was it public concern or was it significant impact?

Mr. Robert Connelly: I could include that in the written response to you, Ms. Kraft Sloan.

Mrs. Karen Kraft Sloan: Good.

Mr. Robert Connelly: Certainly one of the very important issues we look at would be the issue of potential significant environmental effects, and public concern has a role in that, obviously.

Mrs. Karen Kraft Sloan: I hope the chair bears with me, but I won't be able to be here on Tuesday. So I'm wondering how “significant effects” is defined under Bill C-19.

Mr. Robert Connelly: The question of “significant effects” or the term “significance”, Mr. Chairman, is not defined in CEAA, nor is it defined in Bill C-19. Rather, what we have done is we have developed criteria to assist in the determination of significance. There is a considerable amount of guidance material that has been made available to do that. Part of the rationale behind this is that the term “significance” is so dependent not only on the nature of the project but also on the environment wherein the project might be placed. We have considered that criteria would be the appropriate way of assisting in making a determination on the question of significance.

Mrs. Karen Kraft Sloan: Mr. Chair, in this document, “Strengthening Environmental Assessment for Canadians”, panel reviews have been identified as a core strength of the act, which is very laudable. However, when you take a look at 30,000 to 40,000 screenings that are done under the act, you only have around ten that are panel-reviewed. Although this has been identified as a core strength of the act, it seems that while it may be a core strength it indeed is a very rare core strength.

The other concern I have is that when you take a look at a comprehensive study, Mr. Chair, these are done in-house, whereas a panel review is conducted by independent expert witnesses.

• 1010

The courts have also stated that they have no role in making decisions around science or planning, or no role in science in planning. So we have a situation where 10 out of 40,000 assessments are being conducted by independent experts, which have been identified as the core strength in the current statute, and there is really no other avenue open to individuals when we're taking a look at what actually happens in practice. The courts themselves see that they do not have a role in science or planning, whereas the most logical place for this to happen, in an independent, non-biased, expert way is through the panel review.

So I'm wondering, building on what you've said in your review and having identified the fact that the review is the basis for Bill C-19, what improvements have you made to Bill C-19 to ensure that there are more panel reviews?

Mr. Robert Connelly: If I could go back a little bit in response to that question, when the CEAA was introduced, it introduced the idea of comprehensive studies, which you referred to, so there is greater attention under CEAA than used to be the case for larger projects. We've completed, as I mentioned, 36 comprehensive studies during that period of time. Another 21 studies are underway.

Comprehensive studies are a new approach that offers quite a bit of rigour and ensures consistency across the country in terms of the application process. With Bill C-19 we are making some changes to that comprehensive study process. We're adding in, for example, the requirement to provide funding for people who participate in the comprehensive study process.

There are some other features that provide some greater responsibility for the Minister of the Environment in the comprehensive study process. We're also altering it so that the decision on whether a project should be subject to a comprehensive study or a panel review will be taken much earlier in the process. I do not know at this point whether that will influence the creation of more panels or not. I think that is perhaps a judgment call that will have to come with some experience.

Some of our staff feel that it may result in more panels in the future. Others are not so sure. So I think it may be difficult to speculate on that. Those are the key changes that we are proposing in terms of Bill C-19 as it affects the possibility of more or fewer panels.

Mrs. Karen Kraft Sloan: Mr. Chairman, I have one other question.

The Chair: Go ahead—a short question.

Mrs. Karen Kraft Sloan: It's very short. Thank you for the indulgence of the chair. I'm very happy about that.

I'm wondering who makes the determination and what's the process for determination regarding public concern as the trigger. In other words, if public concern is the trigger for a panel review, who makes it and how does that happen?

The Chair: A brief answer, please.

Mr. Robert Connelly: On the issue of public concern, I might point out that referrals to panels have been made historically under CEAA on the basis of both factors—public concern, and the potential for significant adverse effects.

On the issue of public concern and who makes that determination, the determination is made either by the minister of the responsible authority or the Minister of the Environment when a referral is made. It is based largely on the evidence that those ministers would receive from the public regarding their concerns. We look very carefully at the nature of the concern and its relation to the environmental effects of the project that is under consideration at that stage.

Mrs. Karen Kraft Sloan: And you'll get back to us on the number of projects that have been bumped up to panel review via significant effects or environmental effects versus public concerns?

Mr. Robert Connelly: Yes, we'll provide that information to you.

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

The Chair: Thank you, Madame Kraft Sloan.

Mr. Reed, Mr. Tonks, and the chair, and then we'll have a second round.

• 1015

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

There are three items that jumped out at me when you were presenting the slides. I'm going to introduce them today, and we'll discuss them in more detail as the review goes on.

The first was on slide 3. The question is, does “transboundary” include international boundary? We have a responsibility for impact across that boundary. Is there a treaty or an understanding that the reverse situation exists? I think of those power plants in the northwestern United States that are close to the border, and there is a concern about their impact. So do we have a remedy process?

Mr. Robert Connelly: Mr. Reed, let me respond to those questions.

First of all, we have three different transboundary provisions in the act, one deals with the international effects that you referred to, and I'll come back to that in a moment. The other deals with interprovincial effects, and the third deals with effects of a project that might be outside federal lands but could have an impact on those lands. An example might be a national park, where there might be a project adjacent to it that could have a significant adverse effect on the park. Those are the three transboundary clauses that exist under the act as a safety net.

With respect to the international aspect, there is an international convention, called the UN Convention on Environmental Assessment, in a transboundary context. Both Canada and the U.S. have signed that convention. Canada has ratified it. The U.S. has not at this point. However, I might add that we would not be obligated to respond to reciprocal situations until such time as the U.S. ratifies that under that convention.

Mr. Julian Reed: Thank you.

Mr. Robert Connelly: The second point I would raise with respect to this issue of environmental assessment in a transboundary context is that we are working under the North American Agreement on Environmental Cooperation, through the Commission for Environmental Cooperation in Montreal. We are working with the United States and Mexico on a transboundary agreement under that, that the three countries could agree on.

So there is progress being made in that area, but we do not have in place something that would be readily operable at the present time with respect to the United States.

Mr. Julian Reed: Thank you.

The second thing that jumped out at me was, on slide 8, concerning the issuing of permits, licences, or approvals, is the body that issues the permits, licences, or approvals the same body that comments? Is it the commenting body, or is it a different body?

Mr. Robert Connelly: Perhaps I can respond by illustrating how that might function in practice. That might help in responding to the question.

If you take, for example, the Department of Fisheries and Oceans, they're a very frequent responsible authority under our act for a lot of the major projects. They must conduct an environment assessment prior to the granting of an authorization to destroy fish habitat. So that is the trigger. Prior to granting that authorization, they must ensure that an environmental assessment is conducted.

So in practice, the proponent and the proponent's consultants will do a lot of the environmental studies that are required. Those requirements will be specified by DFO. Many other departments, especially on the major projects, will become very much engaged in reviewing that material, making comment on it. Then, at the end of the day, the Department of Fisheries and Oceans would make a decision on whether appropriate mitigation measures have been provided or not, and at some point decide whether they would grant that authorization or not. They're very much, as a responsible authority, involved in the review, but they also pull in expertise from other departments and from provinces.

• 1020

Mr. Julian Reed: Do they issue the permit too?

Mr. Robert Connelly: The Department of Fisheries and Oceans, in this instance, would be the one.

Mr. Julian Reed: That's what I needed to hear.

All right, the third one that jumped out, if I have time, has to do with participant funding. Are there any limits to participant funding, and if so, what are they?

The Chair: Make it a brief answer, please.

Mr. Robert Connelly: Yes, Mr. Chairman.

The limitations are probably those imposed more by the treasury and the budget than anything. If you look at, for example, the Voisey's Bay panel review, we provided about $380,000 to assist that project, whereas I believe for the Georgia Strait crossing project, which is under review right now, a pipeline project, the amount of money available is about $100,000.

Mr. Julian Reed: The only reason I say that—and I'm going to dwell on that a little more as we go on—is in my experience in my previous incarnation as a provincial member of Parliament, I can remember in Ontario there being virtually no limits, and it spawned a whole lot of quasi-consultants who made a whole lot of money, and it spawned the creation of a lot of NGOs that didn't previously exist. So it became a money pot for people who knew how to work the system.

Thank you, Mr. Chairman.

Mr. Robert Connelly: Perhaps, Mr. Chairman, I could just make a comment on that. I am familiar with the situation Mr. Reed is referring to. May I just say that the amount of money we've had available in the federal program is quite a bit less, actually, than was provided at the time he's speaking about.

Mr. Julian Reed: Thank you.

The Chair: Mr. Tonks, please.

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

I'm interested in how you're going to link such documentation as this review that you have provided for us and the findings of the review. When I get a document such as this on short notice, I go immediately to the summary, and in yours, a few things just jumped out at me.

First, under the general provisions, there's the statement: “EA can be seen as a paper exercise, a formality that occurs late in the planning process.” I'm wondering, as we look at the review, whether we take that kind of statement into consideration.

Similarly, it says the review made it clear that federal coordination regulations were not being used by two particular departments. It doesn't state which departments they are. I would be concerned with respect to that. If you have a template, then the template should be equally applicable across departments. When you have exceptions, that undermines the integrity of the environmental process.

I'm not looking to you to respond to these in particular. I'm just commenting on the flavour of this report and the manner in which it's considered.

You talk about scoping. When I was involved in municipal government, this whole issue of scoping in the preliminary project development was seen to be sometimes rather ad hoc, and concerns were raised with respect to that.

There are a few other things that I thought were quite important: documentation with respect to mitigation, reporting out as a result of the documentation, and the public right to know. It reminds me of our species at risk legislation, where we attempted to be very definitive in terms of a registry of mitigation under that particular act.

So I guess just generally my question is how are you going to in fact take some of the findings here, in addition to a number of other concerns, and deal with them within the whole context of the act?

Thank you.

• 1025

Mr. Robert Connelly: You very quickly zeroed in on some key features in that background study.

To answer your question about how we have incorporated some of those factors into the whole review process, I would point out that this is one of twelve background studies we commissioned in 1998-99, so about two years ago. We actually consulted with a number of people early on as to even what they thought would be appropriate for us to study, just to help us identify some of the problems. The document you are referring to is one such study.

The twelve of those studies were actually quite crucial to us in rolling this all into what we called a discussion paper to promote discussion on how we can improve this act. That discussion paper was issued by the minister in December 1999 to launch the review of the act.

We rolled the key features, all of the ones you've mentioned in fact, into that discussion paper and promoted discussion through a consultative process across the country. Then that in turn resulted in a whole series of recommendations that we've tried to factor into Bill C-19.

Mr. Alan Tonks: I see. Would that discussion paper be helpful in terms of a background report to understand the thrust of the act?

Mr. Robert Connelly: Yes. We'd be glad to provide it to members of this committee. Some of the material, again in a further boiling down, is reflected in the minister's report to Parliament, but the discussion paper itself contains additional information. We'd be very pleased to give that to the committee.

Mr. Alan Tonks: Okay.

Thank you, Mr. Chairman.

The Chair: Thank you, Mr. Tonks.

I have one question, Mr. Connelly. It has to do with an article that appeared two days ago in the Globe and Mail by Martin Mittelstaedt, who is a highly respected environmental reporter, as you know. Mr. Mittelstaedt deals with the issue of the pollution created by two stations near the border, power generating stations owned by the Ontario government, one in Nanticoke and the other one in Lambton.

In his article he indicates that both the Attorney General for New York, Elliott Spitzer, and his counterpart in Connecticut, Mr. Blumenthal, had asked for an environmental assessment of the plans by Ontario Power Generation to install new pollution control equipment. But it turns out that only one-quarter of the generating units at Nanticoke, which is the largest coal-fired generating station in North America, and only half of the Lambton coal-fired plant near Sarnia will be equipped with catalytic reduction equipment. Both plants, according to the states of New York and Connecticut, are big sources of smog, acid rain, and global warming emissions.

The agency you represent, the Canadian Environmental Assessment Agency, according to this article, concluded that Ontario's power equipment will not cause significant environmental effects in the United States, leaving therefore the Minister of the Environment unable to order a review.

This morning you indicated to us, on page 3 of your presentation, that the purpose of the existing act is to prevent significant transboundary effects.

By the way, on the record we should say that the act, as it stands now, was the result of very intensive committee scrutiny some nine years ago, at which both the Liberal Party and the NDP, then in the opposition, put forward some 200 amendments, which were accepted by the government at report stage and at third reading. So the document we are dealing with today is the result of some pretty intensive committee work in a very constructive manner and with a government that was quite open to amendments at that time. I'm referring to the government in power in 1992.

• 1030

So, Mr. Connelly, I find it extremely difficult to go to Washington, as we are planning to do, in order to convince the Americans to come on board on climate change and also to cooperate with us on transboundary pollution, to bring this message to them and discuss it, if we ourselves are so remiss in relation to the abatement of transboundary pollution. I find it extremely disturbing to learn that the agency would make these kinds of recommendations considering the mandate and the purposes of the act. Actually I'm inclined to think that the agency is in contradiction to and perhaps in breach of its own act. What are your comments?

Mr. Robert Connelly: Thank you, Mr. Chairman. I would be glad to respond to your comments and question regarding this project. It will also give us an opportunity to illustrate the nature of the transboundary clauses, in this case section 47, dealing with international effects.

For the particular projects you referred to, both the Lambton and Nanticoke generating stations, at least a proposal by Ontario Power Generation, as you correctly indicated, is to install selective catalytic reduction scrubbers, which would reduce the levels of NOx. The net reduction is primarily NOx. That's my understanding in terms of the net effect of this.

This is a project where we would look first of all at the question, is there a trigger? Is there a federal decision to make that would trigger CEAA in the normal sense of things? The answer to that was no. If it had been triggered in the normal sense, we would have automatically looked at a very broad environmental assessment meeting all of the factors under the act.

So if, in the first instance, the project is subject to the act, to one of the triggers, such as probably a permit or licence, then the assessment will be done in a very broad manner. The answer to that question was no, there is no federal decision associated with—

The Chair: The answer to which question?

Mr. Robert Connelly: To the question of whether this project is triggered by one of the four triggers of CEAA: funding, proponency, permitting, or land transfer. And the answer to that was no. So it's not a project that is normally subject to the triggers of CEAA.

We then looked at the next step, in part because we were petitioned by the two governors of Connecticut and New York, as you referred to, under the transboundary provisions. So this has a potential application for the transboundary provisions.

We looked at the next sieve, if you will, or the next constraint in that section: Are there any other federal laws that might apply to any decisions associated with those projects? The answer to that was no.

We then looked at the next issue, which was that we must then investigate the issue of significant adverse transboundary impacts. In effect we have done a small environmental assessment internally to do that, and our conclusion was that since these scrubbers are being installed to reduce NOx and the transboundary effect of this is an air transfer, the net result there would be a reduction of certain pollutants, not an increase. Hence we had really no choice but to conclude that there would not be significant adverse transboundary impacts associated with that.

• 1035

The Chair: Yes, but just a moment. You are using dangerous words. You are referring to a reduction of transboundary pollution, which is true in relation to what will be partially installed, but there is an increase in transboundary pollution resulting from the decision to switch to coal and other forms of energy. So the reduction is on an increase, not on the current emissions.

Mr. Robert Connelly: Mr. Chairman, the plants currently are coal-fired and have been coal-fired since the beginning, I think. There is no switch to coal here. They are existing coal-fired plants. What is being proposed is a reduction of nitrogen oxides, and that is what we were required to examine: what would be the transboundary effects? The conclusion we reached for that particular project, which is the installation of these catalytic converters, is that the effects in fact would be less than they are today.

The Chair: Well, my understanding is that there is a switch planned to higher-sulphur-content coal in the years ahead, in order to produce more power at these two stations.

You said you did look at the purpose of the act that aims at preventing significant transboundary effects, and your conclusion is that these two stations will not lead to significant transboundary effects. Is that correct?

Mr. Robert Connelly: The conclusion we reached is that the addition of these catalytic converters, scrubbers essentially, which is the project as defined under the act—the project is to install scrubbers—will not result in any significant adverse transboundary impact.

The Chair: Well, then, how do you explain that the attorneys general of two states are asking for a reduction of this transboundary pollution?

Mr. Robert Connelly: Well, this goes beyond the Canadian Environmental Assessment Act, but I believe the minister has also indicated that he will be discussing this with Ontario, using means such as the Canada-wide post-2000 acid rain strategy and also the development of national standards for mercury and electrical power generation. So he is using other means of looking at the broader issue of reducing emissions from power generation facilities in Ontario.

The issue we've had to deal with, though, is very simply the application of the transboundary provisions of our act, and we felt we had no other conclusion to reach but the one we did.

The Chair: We'll come back on the second round, Mr. Connelly.

Mr. Bailey, please.

Mr. Roy Bailey: Thank you, Mr. Chairman.

On page 11 of your handout this morning—and this was partly answered by Madam Kraft Sloan—you use the term “significant environmental effects.” Do you have any clear-cut definition, or does that definition change from project to project? You obviously have guidelines. Are these guidelines available when you start a project? Oh, fine. And people can attain those, right?

The second question takes me to page 15. Does the public have the ability to access all the documents related to an assessment, or are some of those documents actually kept by the assessment team?

Mr. Robert Connelly: Thank you, Mr. Bailey. You raised two issues there. Just to put it on the record, yes, we do have criteria to assist in the determination of significance, and that is part of the material we provide for departments as guidance.

As to your second question, I've just lost it; I'm sorry.

Mr. Roy Bailey: The second question was does the public have the ability to access all the documents related to an assessment, or do some of those documents become a private thing?

• 1040

Mr. Robert Connelly: I'm sorry that I missed your second question there.

The answer is that assessment documents are available on the public registry set up by departments, which is essentially their filing cabinet, I guess, if I could describe it in simple terms. In some instances, at the screening stage, departments will take the decision—they have that discretion under the act—that the project is very tiny, very small, and there is not necessarily a need, in their view, to go out and proactively consult with the public. Nevertheless, even in that instance, if the public wishes to get some information, they certainly have that right. On the larger projects, of course there is mandatory consultation, and we are much more proactive as a government in putting that information in the hands of interested participants.

Mr. Roy Bailey: I have one last question. I'm told that the legislation of our neighbours to the south is really minute compared to ours. I'm told the regulations and the act itself are just a few pages, and we have hundreds of pages. In looking at what we have and what they have, why is ours so long and complicated? And the question coming out of that is, is that because we have been more specific, or have they been too general?

We have so much more legislation, and yet they seem to cover everything. As our chairman indicated, in the original study, there were hundreds of amendments. Is that the reason we have such a huge document, the act?

Mr. Robert Connelly: I often hear the opposite concern when I talk to people in the United States, so in part it depends on who you talk to about the stringency and the amount of documentation that either Canada or the United States is required to produce under their respective environmental assessment acts.

All I can say is that the U.S. environmental assessment process, under the National Environmental Protection Act, has a lot of similarities with our Canadian federal process. The triggers, for example, are very much identical, and a lot of the practices are similar. There are differences too, obviously, but there is some similarity.

I'm not really sure, in answer to your question, that there is a substantive difference in the amount of documentation between one and the other. That's my conclusion.

Mr. Roy Bailey: Thank you, sir.

The Chair: Mr. Comartin, please.

Mr. Joe Comartin: Thank you, Mr. Chair. I'm recognizing the time factor here.

Mr. Connelly, let me just make the statement that I'm concerned—and this is where I was going with my prior questions—about the review done by the agency, and whether in fact there are enough resources, either in the departments or in the agency, to properly monitor the act as it is.

This was highlighted by the Auditor General's report this week on ACOA. Specifically the chapter on ACOA—it's chapter 6, page 9—goes through a series of criticisms of ACOA. In the cases mentioned, it says ACOA ignored the act, did not put necessary conditions when they'd done the reviews and assessments, and then did not enforce even when they did put conditions in.

The troublesome part—and this is exactly what the Auditor General said—is that this was highlighted in the 1998 report from the Commissioner of the Environment and Sustainable Development, but the practice continues in 2001.

I don't think this is an isolated case. I believe that report showed other situations where departments were in fact going ahead and giving approvals before taking into account the environmental assessments, as they are required to do under this act.

I suppose my question is, what's your assessment of that? Is ACOA a notable exception or is it a more common problem? Secondly, do the amendments in Bill C-19 go in any direction to address this?

• 1045

Mr. Robert Connelly: You have referred to the recent AG's report regarding ACOA. Let me go back a little bit. It's also quite right to state that ACOA was also audited in 1998, and there then was a follow-up report in 2000. It is disappointing to see the same results, frankly. I just became aware of that information this morning also. We will follow up with ACOA to try to understand what the problems are there, and see how we might be able to see some improvements made in their practices.

I would, though, skip ahead to Bill C-19 and say we have recognized this problem. One of the features of Bill C-19 is to give the agency the authority for a quality assurance program to try to get more of a handle on those kinds of practices, identify them, and work with the department to correct them.

We also have in Bill C-19 the requirement to establish a public registry so that more of the kind of information that has been hard to get will be made available by electronic means, so that we and the public in fact will have more opportunity to monitor and see what's actually happening.

The Chair: Make this your last question, Mr. Comartin.

Mr. Joe Comartin: Would the quality assurance agency that you're proposing be part of your agency, as opposed to in the department? And if that's the case, what additional resources are you going to require to implement that?

Mr. Robert Connelly: The answer to the first question, Mr. Comartin, is yes, this would be a new responsibility of the agency that doesn't exist today. We have received in total about $20 million over five years—about $4 million roughly per year—to handle our new responsibilities under Bill C-19, and part of that clearly will be the quality assurance program. I don't have the breakdown by different features of the act, but funding is provided to allow us to carry out those new responsibilities if Bill C-19 is approved.

Mr. Joe Comartin: I have just a quick question, to follow up. Will that quality assurance program include some type of educational program for the rest of the public service?

Mr. Robert Connelly: The answer to that is yes also. The commitment is made in the report to Parliament by the minister to deal with education and training of other departments. We're developing a lot of in-house programs, courses, and guidance material that will be available in advance, in the hope that Bill C-19 will proceed and we'll have some improvements to the act. We're gearing up for that already so that we can hit the road running, so to speak, when that time comes.

The Chair: Thank you, Mr. Comartin.

We have roughly fifteen solid minutes to share among Madam Kraft Sloan, Mr. Reed, Mr. Tonks, and the chair.

Madam Kraft Sloan, please.

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

In your report “Strengthening Environmental Assessment for Canadians”, you have stated on page 25 that clarifying opportunities for public participation and screenings is a very important thing to do. Certainly 99% of all environmental assessments are screenings. Public participation is currently discretionary. You identify in the last paragraph in this section that you're going to be developing ministerial guidelines for criteria to be considered by responsible authorities. This seems incredibly discretionary.

Wouldn't it be better to have this criterion in the legislation as to when public participation would be triggered for screenings? Because it doesn't seem to me that you're going to clarify the opportunities. You're adding more discretion on top of the discretion.

• 1050

Then on page 23, I understand there will be a mandatory requirement for information placed in the public registry; however, if you take a look under the seventh bullet, it says one of the things that would have to be included is the screening or comprehensive study report upon which the responsible authority's decision is based, or information on how to obtain a copy. It's also not clear to me that there would be a mandatory requirement for the technical reports.

So here we have a situation where you have to include information, it's a mandatory requirement, but the public still doesn't have access to that information. It's still discretionary. So I'm wondering if public participation needs to be clarified, if it's an important foundation of this act, and how this will be addressed in Bill C-19.

Mr. Robert Connelly: There are a few questions there that I'll be pleased to respond to.

With respect to the question of screening, there is one amendment proposed in Bill C-19 that would permit responsible authorities to consult with the public at any stage during the screening process. That indicates that the current language has been seen by some departments to be somewhat limiting to consultation only at the final stage of screening. So there's one improvement made there.

With respect to ministerial guidelines, we actually have a multi-stakeholder committee in place working on development of those guidelines at the present time. This is in the context of our regulatory advisory committee. That will certainly be an improvement over where we are today, once we develop those guidelines.

One of the dilemmas we've had with the screening aspects of the process—and in fact the Commissioner of the Environment and Sustainable Development has pointed out this problem also—is that we probably include too many small projects under the act, and there should be more of a focus on the larger ones. There have been recommendations to look at ways that some of these smaller projects could be excluded under the act, so there are plans to do that as well so that we can focus the attention of departments on those that really count.

With respect to the registry itself, we've identified in the bill all of the various pieces of information that will need to be put on the registry. You've pointed out one section where a document, such as a screening document or a comprehensive study report, either will be placed on the electronic registry or there will be an indication of where it can be obtained from the responsible authority. In large part the reason we have made that discretionary is simply because of the cost associated with placing that kind of document, which in some instances could be quite lengthy, in our electronic information system that we're proposing to develop.

Mrs. Karen Kraft Sloan: But the current statute requires that information be provided to the public, if they request it, in a way that's accessible, and there are instances I'm aware of where individuals who had requested this information did not get it until after the project had started. So we are not providing any assurances to the public that this will be addressed in the new legislation.

If you were to develop criteria as to the triggers for public participation around the screening process, then you could deal with some of the issues you've already suggested, but put it into legislation, as opposed to just through ministerial guidelines, which does nothing to deal with the issue of uncertainty.

The Chair: Please comment, Mr. Connelly.

Mr. Robert Connelly: Obviously this will have to be looked at very carefully, and I know you will look at it when Bill C-19 comes forward to clause-by-clause.

• 1055

There will be a requirement for departments to make information available under the act. If it is not available on our electronic registry, it will be available through the normal channels of providing that information by departments, because the contact point will be identified.

I know, Ms. Kraft Sloan, we've had some difficulties along the lines of what you have referred to, with some departments not being as willing to make documents available as we would like to see. We have taken steps, when we are aware of those kinds of problems, to secure those documents for the public, and we would hope that improvements are coming in Bill C-19.

Also I would add that we do have the possibility, after we develop these ministerial guidelines, to develop a regulation if we feel that is necessary. So we do have some ability to move beyond just a guidance document, if that is considered appropriate.

The Chair: Let's hope that “if” is not a big one but a very small one.

Mr. Reed.

Mr. Julian Reed: Thank you, Mr. Chairman. My question is fairly brief.

When you did your assessment concerning the scrubbers with OPG, did you anticipate that they might change the fuel after the installation of the scrubbers, that they might move to dirtier coal? The reason I ask the question is this, and I think maybe this is what the chairman was trying to get at. The old Ontario Hydro owned two coal mines in Pennsylvania. Whether they still do or not I don't know, but I do believe at one point they were persuaded to stop using that coal, because it was too polluting. Would the installation of these scrubbers provide a licence to them to go back to the dirtier product?

Mr. Robert Connelly: I'll have to get back to you on that. I'm not 100% sure of the answer to that, and I would not want to suggest something that might be incorrect. So I think I'll have to get back to you, and I can do so at the meeting on Tuesday.

Mr. Julian Reed: Thank you.

The Chair: I have two brief questions, Mr. Connelly.

Can you assure this committee that you are absolutely certain that the agency gave the right decision to the minister on the Lambton and Nanticoke issue, the one we discussed earlier?

Secondly, does the experience that the agency has with that issue, namely of transboundary pollution, point to any weaknesses in the act that ought to be corrected?

Mr. Robert Connelly: Mr. Chairman, in answer to your first question, I can say with confidence that, in terms of the way the act is designed to deal with transboundary effects, being limited only to the project that is proposed—in this instance, the installation of a scrubber—we reached the appropriate conclusion. I feel very confident in that.

With respect to the act itself and those clauses, I guess we'll get into that discussion when we get into more detailed review of Bill C-19. I would add that they are unusual clauses in the sense that they are a safety net. Whether that safety net needs to be broadened or not is a matter that I'm sure this committee will look at carefully.

The Chair: Are there provisions in Bill C-19 that would permit an assessment to take place on transboundary pollution of the kind that, in your opinion, is not possible under the existing legislation?

Mr. Robert Connelly: Yes, Mr. Chairman, there is one change that we are proposing in those transboundary clauses that we feel will be an improvement.

• 1100

I mentioned that there are three factors one has to consider in the application of those clauses, the first being to make certain it is a project not subject to the act in the first instance. The second one is an examination of the significance of those particular transboundary impacts, and that is not a review of the whole project but rather just the transboundary impacts.

The third—and this is where we're proposing a change—is that we are also required to look at whether there is any other federal legislation, power, duty, or function that would apply to the project. We are proposing to delete that third constraint I just mentioned from the act as it is at present.

The Chair: Then would it be fair to conclude, Mr. Connelly, that there is a discrepancy between the purpose of the act as presented here this morning and the act itself in its inability to be invoked in order to prevent transboundary pollution?

Mr. Robert Connelly: The act is set up in fact to—

The Chair: If it is set up to prevent transboundary pollution, then how come the agency gave that kind of advice to the minister?

Mr. Robert Connelly: The reason here is that the act is set up to deal with specific projects. It's not designed to correct situations that might arise from existing producers of certain pollutants. It's to look at new projects when they come along. This project that we looked at in fact is the installation of a new scrubber, and it was a sound conclusion to have reached that the transboundary emissions coming from these plants in fact would be reduced because of the addition of these scrubbers.

The Chair: Then from what you are saying, you seem to be confirming that there is a gap, a discrepancy, between the body of the act and its purpose. The purpose is very clearly outlined on page 3 of your presentation this morning: to prevent significant transboundary effects. One would think that in the past eight years, the act would have been used to look at transboundary pollution. You are informing us that this is not possible for certain technical reasons, ergo the conclusion that there is a discrepancy between the purpose of the act and its application through the body of the act.

Mr. Robert Connelly: I guess I would reiterate that I would disagree with that, because the act is set up to look at new projects, new proposals, at the planning stage. In this instance, the project is defined as the installation of a scrubber, which in fact will reduce transboundary impacts, not increase them.

The Chair: Then the presentation by the agency this morning should read “prevent significant new transboundary effects”. Your presentation does not say that. The emphasis is not on “new.”

Mr. Robert Connelly: I accept that, Mr. Chairman, and it would have helped if I had put in the word “new,” very much so.

The Chair: I would like to have a clarification on this particular item at our next meeting, as to what exactly the act says in its preamble and what are the provisions in the act that prevent the implementation of transboundary effect. This is a serious issue, Mr. Connelly, as you can see from the way it has been picked up by the two attorneys general and by the advice given by your agency.

Does Ms. Smith wish to add something?

Mr. Robert Connelly: Yes, I believe Ms. Smith wishes to add something. We'd be obviously pleased to elaborate further if you wish, Mr. Chairman.

Ms. Heather Smith: Mr. Chairman, your question points to the larger context in which the Canadian Environmental Assessment Act fits in the federal process.

• 1105

The Canadian Environmental Assessment Act isn't designed really to act by itself. It fits into other pieces of legislation, particularly regulatory pieces of legislation. So one of the triggers, for example, is a regulatory trigger. The environmental assessment process gathers the information to inform the decision, but the actual power to follow up and take action of a regulatory nature sits in other pieces of legislation.

In the context of OPG, which you were talking about here, there are powers to deal with that situation in federal legislation, but they're not in CEAA; they're in CEPA, in the international air pollution provisions of the Canadian Environmental Protection Act.

The Chair: Did the agency's advice to the minister include that particular observation you just made?

Ms. Heather Smith: I believe part of the context that informed the OPG decision was the work Canada and the United States are doing together under the Canada-United States Air Quality Accord.

The Chair: No, that's not my question. My question is whether your recommendation to the minister included the observation you just made, namely that it is through CEPA that this type of issue ought to be pursued.

Ms. Heather Smith: I believe the minister was aware that—

The Chair: Was it contained in your recommendation or not? Was that observation part of your recommendation?

Ms. Heather Smith: I can't answer that question.

The Chair: Well, then, I would like to know that next time.

Members, do you wish that we return after the vote, or is the round of questions adequate for this morning?

Mrs. Karen Kraft Sloan: I'd like to come back.

The Chair: We would have to form a quorum, so we can come back for another round.

Mr. Alan Tonks: Mr. Chair, I have to be at HRDC after the vote, so I won't be back.

Mr. Roy Bailey: I think we should call that it for now.

Mr. Joe Comartin: I have some more questions.

The Chair: You have. Then we'll try to form a quorum and come back right after the vote for another round of questions. This meeting is temporarily suspended.

• 1107

• 1124

The Chair: We will resume our sitting for another round.

Perhaps Mr. Bailey would like to start.

• 1125

Mr. Roy Bailey: Thank you, Mr. Chairman.

I am interested, Mr. Connelly, in a point that was raised by my colleague, Mr. Reed. This group is an assessment group. After an assessment has taken place on any project—and he mentioned a term that is familiar to me.... Let's say an assessment is done on a coal-fired electrical plant, but after the assessment the source of the coal changes to the point that you have a 10% increase in the sulphide in this low-grade coal, which would then directly affect the original assessment. Whose responsibility is it to report the difference in the fuel that leads to a difference in the emissions? Is there an agreement with the company, or will some other branch in the government alert you to the assessment?

Mr. Robert Connelly: I should perhaps explain the role an environmental assessment has in the decision-making process. It is a process that is used to inform the decision-maker as to whether, in this instance, to grant a licence, permit, or something like that. So in that context, using the example you have given, the assessment would be used by the regulator, so to speak, to issue the permit.

Generally, after that, if there is a change in the operation of the plant, using the example you gave, that would normally not re-trigger an environmental assessment, but would cause the regulator to look at whether the permit and the conditions of the permit were still appropriate or not.

I might add further that generally, in the area of something like coal-fired emissions, those particular emissions would be permitted by provincial governments and not by the federal government. So the mechanism to make the correction would lie with the regulator, in that instance. In the example you gave, it would be a provincial environment department, in most instances.

Mr. Roy Bailey: I have just one question in conjunction with that, because I know our time is limited. Mr. Connelly, I know a little bit first-hand that this has taken place because the source of the coal changes. It would seem then that the responsibility would be on the company for the scrubbers, or whatever may need to take place, or the changes therein, albeit it may be a crown corporation.

Is it not the responsibility because of the licence or permit that was given to, in this case, a crown corporation, to notify the environment branch within the province? What are, generally, the penalties for not doing that? Are they provincial, as well?

Mr. Robert Connelly: Generally, the provincial permitting systems would establish the emission level. For example, emissions of particulate matter or sulphur dioxide, for example, are two substances or pollutants that might alter with the change in coal composition. They tend to set the limits. If the new coal were to exceed those allowable limits, there would be penalties under their respective pieces of legislation.

Mr. Roy Bailey: Thank you. I have more, but we'll move on.

The Chair: Thank you, Mr. Bailey.

Madam Kraft Sloan, Mr. Reed, Mr. Savoy, and the chair.

Mrs. Karen Kraft Sloan: Mr. Chair, I will defer to Mr. Reed and then I'll come back. Thank you.

Mr. Julian Reed: I'm finished, thank you.

The Chair: Mr. Savoy.

Mr. Andy Savoy (Tobique—Mactaquac, Lib.): Thank you very much, Mr. Chair.

Thank you for attending today.

I have a general question first. What do you see as the most serious shortcomings or problems with the act, as it currently is?

• 1130

Mr. Robert Connelly: There are probably three areas, in particular, we have identified, and I think the commissioner also identified them in his report in 1998. These are not in any particular order of priority, but the first would be how to improve the quality of the assessments that are being conducted, particularly at the screening level.

The second one would be the whole issue of certainty and timeliness. We have found, for example, that because this is quite a decentralized process the way it is administered, with each responsible authority taking decisions from one part of the country, or even within the same department, we sometimes see some real inconsistencies in the way the act is implemented or interpreted. We have also seen, because of a lack of coordination, as one example, the review process might be delayed substantially, so we have a timing problem as well. We like to try to complete the review efficiently as we can.

The third area where I think we really need some improvements would be in the area of the public and their involvement. We feel we have introduced some changes, through Bill C-19, to improve that.

Those would be the three main areas, Mr. Savoy, that I think would be, in very general terms, our main problems and main challenges.

Mr. Andy Savoy: If we understand that the comprehensive studies generally impact the largest jobs, and hence the projects that will have the largest impact, do we not want to use our strength, which is our panel review, for each of those jobs, or are we satisfied with the internal mechanisms we use now?

Mr. Robert Connelly: The option, of course, is presently in the act to go from a comprehensive study through to the panel review. We are introducing some changes to the comprehensive study process to beef that up. It gives an enhanced role for the minister and greater opportunities for public involvement in that process.

The act is generally designed to try to apply the appropriate level of assessment to the appropriate project. As the complexity or concern rises, you go from a simple screening ultimately to a panel review. So there is going to be a judgment call there, to some extent, as to whether a project would appropriately be subjected to a panel review process, or alternatively the comprehensive study stage.

Mr. Andy Savoy: Have you encountered problems with identifying or stipulating screening versus comprehensive studies? The cut-off point is what I'm speaking of. Have there been problems where, in retrospect, you've determined you should have gone with the comprehensive study in a situation instead of the screening?

Mr. Robert Connelly: The comprehensive study regulation was initially developed in 1995 and had to be in place in order to proclaim CEAA. We have looked again at some of the entries in that list and have made some modifications.

For example, initially—and this was obviously an error on our part—we had a very high threshold for mining smelters. In the case of one project, we were informed that one of the largest smelters in the world was being proposed. This was in connection with the Voisey's Bay project. We came to realize that even one of the largest smelters in the world was still below our threshold.

So we have made some modifications to that regulation, as a result of experience in a number of areas. I'm just giving you one example where that has occurred.

Mr. Andy Savoy: Do I have time for one more, Mr. Chair?

The Chair: Yes.

Mr. Andy Savoy: Whether it be watershed contamination or air pollution loading by various contaminants, we have to look at cumulative effects. I think a very serious shortcoming of this act or the practice is the inability to look at, or lack of focus on, cumulative effects in watersheds and airsheds. Could you comment on that?

• 1135

Mr. Robert Connelly: I would comment on this, Mr. Chairman, by saying that it's indeed a challenge. The act does require examination of cumulative effects. We have recognized that there are challenges at the project-specific level. If you're looking at a project in an area where there are other projects being planned, it is a challenge in terms of dealing with the complexity of all those additive effects.

We have, for example, introduced one change in Bill C-19, which is to encourage the use of what we would call regional studies—to the extent we can use a regional study—to be able to use the results of that to assist us in addressing the issue of cumulative effects. So there's a slight modification being made in Bill C-19 we hope will assist us in better addressing the issue of cumulative effects in the future.

Thank you, Mr. Chair.

The Chair: Thank you, Mr. Savoy.

Madam Kraft Sloan.

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

I just wanted to build on some of the things Mr. Savoy had brought forward. Certainly the issue of cumulative effects has caused a great deal of controversy in terms of the act. While it is true that you have said that there is a requirement to consider cumulative effects for a particular project or for other projects or activities, if you take a look at subsection 16(3) in the act, it's up to the responsible authority to determine the scope. That's as I understand it in the current legislation. We have a situation like the species bill, where it says “thou shalt do it”, but two sections later it says “only if the GIC says you may”. We've been around that area before.

The issue of cumulative effects has been identified in your review, particularly with regard to trying to deal with issues around goal number two, which is a high quality of environmental assessment. I would suggest that with respect to goal number one, which deals with certain predictable and timely processes, it would be a good idea for the sake of certainty to understand what exactly is going to be scoped out in a particular project and how other projects and activities will be dealt with.

Now, I have a couple of questions. The first one relates to the fact that I understand there has been a process with the CSA around developing standards for screening. This deals with some of the questions Mr. Savoy raised around cut-offs or screenings and when it becomes a comp study. I believe it also probably deals with cumulative effects as part of the broader context and the broader discussion. I'm wondering if you could speak to that process and also table any reports or documents you have with regard to the work that was done with the Canadian Standards Association around standards for screening.

Also, while I think it's laudable that there is a provision in the bill that would either require or enable the government agency to utilize regional studies in examining cumulative effects, I'm also wondering how that plays with the current statute, which says in subsection 16(3) that the scope of the above factors will be determined by the responsible authority. As you know, we've had many very interesting cases that have come before the courts where it has been identified that only a bridge has been looked at in an 11-million-acre issue. In the case of the 407, the highway has been looked at section by section versus looking at the cumulative effect of all those bridge crossings, etc.

So my question is, can we have information on the CSA report and have tabled any documents that relate to it, and how will you then address this problem of discretion under the cumulative effects section in the current statute?

The Chair: Mr. Connelly.

Mr. Robert Connelly: Thank you, Mr. Chairman.

• 1140

I'll deal first of all with the reference to the Canadian Standards Association study. This is an initiative the agency funded a few years ago, and our role in that was to encourage the CSA to develop a standard for environmental assessment, for screening. We participated actively at the table.

It has not been possible to complete the project, and the reason for that was largely that the CSA could not develop a consensus among all the different participants on this matter. The agency pushed very hard to continue this, to encourage its development, but at the end of the day the CSA will not issue a standard unless it has the consensus of those around the table, so the initiative has in effect been put on hold. I can certainly provide you with the latest draft of the study for as far as it got, but it wasn't completed.

As for the second issue, cumulative effects, let me just say in addition to my earlier response that we have developed some additional guidance material on the assessment of cumulative effects. We have an operational policy statement the agency has issued. We run training programs to assist people in understanding cumulative effects and how to deal with them in the context of environmental assessment.

It is indeed a judgment call, as you have pointed out, Ms. Kraft-Sloan, in the sense that the extent to which one looks at a scope of assessment or at how far away from the source pollutants might be present to affect the environment is something that is determined on a case-by-case basis.

The Chair: Thank you.

Mrs. Karen Kraft Sloan: We'll see some of those cases, Mr. Chair, as we go through this process. But we will receive documentation around the CSA process, will we?

Mr. Robert Connelly: I will supply that.

Mrs. Karen Kraft Sloan: Thank you very much.

The Chair: Thank you.

Mr. Comartin.

Mr. Joe Comartin: Thank you, Mr. Chair.

Mr. Connelly, you said of the review panel's recommendations that the government accepted all six of them. I just want to be sure we're not into semantics here. Did they implement the recommendations coming out of those review panels in each case? You used the term “accepted”, and I just want to make sure that they were actually implemented.

Mr. Robert Connelly: Mr. Chairman, in response to Mr. Comartin, let me say that the process used is that cabinet will consider the recommendations of the panel and the government is required to respond to the recommendations. Now, the environmental provisions of those panel reports have been accepted, and that's the comment I made earlier.

With respect to their implementation, that is a question that I and I think the agency cannot easily answer, unfortunately. We are making changes through Bill C-19 to establish a follow-up program for those projects that go through comprehensive study and panel review. I think that's an improvement in terms of trying to learn from experience for the future, particularly with respect to larger projects, but we do not have at the present time that kind of information readily available.

Mr. Joe Comartin: I want to go back to the regional assessments, which I understood from your comments were, in effect, an attempt to deal with the cumulative effect. There's been some suggestion from some commentators that there's a risk here. By just looking at it from a regional assessment standpoint, you almost end up creating a cookie-cutter effect, where you have a template.

The example thrown at me was the Diavik Diamond Mine in the north. Each time we now look at a diamond mine, we'll use the same template, when in fact we should be flexible enough to look at it as a new project. Do you have any concerns about that occurring? Do you see any pattern of that developing in the regional assessment methodology?

Mr. Robert Connelly: Mr. Comartin, I would hope that this would not occur. I would hope that when you have a regional study—if we were in the ideal situation of having the opportunity to do a regional study—and are then able to consider individual projects within that context, if that project were then to go ahead and operate in that area, we would presumably look again at the regional study and keep the information on the state of the environment up to date. That is certainly what we would hope to see happen in that situation.

• 1145

Mr. Joe Comartin: Are you seeing any trends at all at this point?

Mr. Robert Connelly: In the particular example you have raised, the case of the diamond mines in the Northwest Territories, I must say I don't have the answer to that.

Mr. Joe Comartin: That's all, Mr. Chair. Thank you.

The Chair: Thank you.

Mr. Connelly, on the Nanticoke generating plant, which is the largest coal-fired station in North America, I am told, and on Lambton near Sarnia, I'm told the province's plan would allow for more than 50,000 tonnes of smog emissions per year. At the same time, the treaty between Canada and the U.S. limits Ontario's electricity sector to 39,000 tonnes of smog emissions per year.

Simple arithmetic would therefore lead to the conclusion that there is here an increase of at least 11,000 tonnes of emissions per year, which one would be inclined to describe as new, going back to our earlier discussions. If this does involve new emissions, then I would go back to my earlier question and ask you whether the agency has lived up to its mandate, namely to prevent significant transboundary effects, which earlier, before the vote, was corrected to read “prevent new significant transboundary effects”. These 11,000 tonnes of yearly emissions would point to the strong possibility that they are new. Why, then, did the agency make the recommendation as it did and as it was reported a couple of days ago?

Mr. Robert Connelly: Mr. Chairman, I don't have the numbers in front of me you've referred to, but I will go back to my statement about the act, that it looks at new projects. In fact, one of the purposes of the act is to simply ensure that projects that are to be carried out—and that's the way the purpose is stated, “that are to be carried out”—in other words, “new proposals”; it does not deal retroactively with existing conditions.... It clearly deals with projects that are to be carried out, so “new projects”. I think there is a precise definition in the act that defines what a project is, and I would reiterate, the project in this instance was the catalytic converters—the scrubbers—which would reduce transboundary emissions. We can provide you with more information on that on Tuesday, in terms of the answer to Mr. Reed's question, I believe, about the coal and the possibility of that changing.

The Chair: I'm sure you will want to remove any doubts in the minds of this committee's members that this recommendation by the agency seems, at least from the information we have, to be an enormous fiasco and to be the wrong type of recommendation—because it looks as if this is new stuff, and transboundary pollution is a responsibility of the agency if it is to implement the act. If that were the case, then again I would ask you to come back to this committee and indicate the faults in the current legislation that you may want to identify in order to avoid a repetition of this type of recommendation as experienced in Nanticoke and Lambton.

• 1150

Mr. Robert Connelly: Thank you, Mr. Chairman. We will be pleased to respond to this on Tuesday.

I would reiterate that we believe that as far as the act is concerned this was a proper application and a logical conclusion to reach. We will reiterate it on Tuesday as well with respect to new projects.

The Chair: It is possible the wrong legal advice was given, Mr. Connelly. I, and the committee members as well, would like to be reassured that the right advice was given.

Mr. Gar Knutson (Elgin—Middlesex—London, Lib.): May I ask a supplementary on that?

The Chair: Mr. Knutson.

Mr. Gar Knutson: On the same issue, as I understood what you said, adding catalytic converters is a good thing; there's no adverse effect to adding catalytic converters, and because the criterion in the act is adverse effects, it didn't trigger the act.

The question from Mr. Reed and Mr. Caccia is if you just look at spending all this money on catalytic converters, which sounds like a great thing, that's great, but if it's part of a more general plan of pumping more coal through the station, dirtier coal or otherwise, and at the end of the day it's part of an overall plan that's going to end up with more pollution, then, while looking at the narrow issue of adding catalytic converters is a good thing, the overall plan isn't so good.

That question, plus the question of Madame Kraft Sloan about Highway 407.... If there were 50 kilometres of highway being built and each time they applied for four or five miles of approval involving one or two bridges at a time, and at the end of the day there were 50 bridges but you had just looked at one or two at a time and decided there were no “significant” effects—so you could do it by a minor process instead of a major process—the question I have is, in this act as it's written and in the experience we have to date, are there giant loopholes that allow you to say “Well, what we did was legal”, but allow us to say “Well, what you did was not in the best interests of overall environmental protection”? If I can be a token layman here, that I think is the lay version of the question.

I think where the committee is going is toward saying “These were loopholes. Look at the experience: these were examples where everything was legal but clearly there wasn't environmental protection at the end of the day.”

I just throw that out as a closing comment.

The Chair: You have the last word, Mr. Connelly.

Mr. Robert Connelly: Thank you, Mr. Chairman and Mr. Knutson.

The act is set up to look at new projects. In a normal sense, when the act triggers a project, we'll look at a wide array of alternatives. So if you were looking at a new greenfield site, or a project that was being planned today—let's say not an existing but a new coal-fired plant—and if that were subject to our act and the transboundary provisions, you would look at the kinds of things I think this committee is very interested in with respect to those coal-fired plants.

However, we have an existing facility. We have transboundary provisions that allow us as a safety net to be involved, but we can only look at the transboundary adverse impacts. In this case it was the air emissions. As I mentioned, those have been reduced, or would be reduced under the proposal. I will verify this, but I know in the assessment we would have looked at all aspects associated with the potential to increase any of those emissions.

For example, I know part of the process in the scrubbing system is the injection of ammonia into the flue gases. We looked carefully to make sure the injection of ammonia would not add increased levels of ammonia in the exit of those flue gases. The conclusion was it would not. That's the kind of thing that would be looked at in the context of the transboundary air emissions.

• 1155

I realize that is not a broad environmental assessment of the entire operation of that plant, nor of its contribution to the broad issue of smog reduction in Ontario. What I am saying is that's the way the act is written in terms of those transboundary clauses.

The Chair: Thank you, all. Thank you to Madam Smith, Mr. Connelly, and Mr. Clarke. We'll see you again on Tuesday morning.

The meeting is adjourned.