ENVI Committee Meeting

STANDING COMMITTEE ON ENVIRONMENT AND SUSTAINABLE DEVELOPMENT

COMITÉ PERMANENT DE L'ENVIRONNEMENT ET DU DÉVELOPPEMENT DURABLE

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, December 11, 2001

• 0908

[Translation]

The Chair (M. Charles Caccia (Davenport, Lib.)): Good morning everyone. Before we begin, I have a couple of announcements to make.

[English]

In very early March, there will be an exhibition in Vancouver that is a kind of world exhibit on environmental technology. It brings together manufacturers and prototype inventors from various continents. It was launched as a yearly event several years ago by John Fraser, the former Speaker of the House of Commons, and it has been a success ever since. It is an event that members of this committee must be aware of and should possibly visit.

During that week, this committee will not sit. The clerk will be able to make arrangements for passes or whatever for us during that week, and the clerk will also kindly provide each one of us with the brochure that is published for that particular type of exhibition. The name of the event is the International Conference and Trade Fair on Business and the Environment.

• 0910

I would take the liberty of urging each and every one of you to make an entry in your diary and to keep that week free so that you can go to Vancouver, on your points, to take advantage of this particular event. It is certainly worth your while. It is in the first week of March. I can't be more precise, but the clerk will be doing some digging and will supply the necessary information to each one of us.

Hotels are not cheap in Vancouver, but March is still the low season, so I'm sure you will be able to make some easy reservations. If worse comes to worst, there is always the Salvation Army hostel near the airport.

An hon. member: Do we have to go there again?

An hon. member: Oh, oh!

The Chair: Turning to the second item, next year, 2002, looks like a very busy year internationally and nationally, with events all over the place because of Rio Plus 10. The clerk will kindly provide us with a calendar of events so that we know what is going on. Of course, it is then up to each member to decide where to go and what to choose.

The third item is the Rio Plus 10 event in Johannesburg in September, and members of this committee—

Mr. Joe Comartin (Windsor—St. Clair, NDP): If I can interrupt on that point, I heard a rumour that they had changed the date and were moving it up to August. Can we get that confirmed?

The Chair: Then you are ahead of us, and that's fine. But some time in the latter part of 2002, something will happen in South Africa.

Those members of the committee who would like to go ought to so indicate to the minister, in writing, so that the necessary budgetary plans can be made. Of course, it would be great if the entire committee could be there, but some people may have other, more urgent commitments. However, if you wish to attend that event—it was very widely attended in Rio in 1992 by the members of this committee, and was very generously supported by the government of the day—then it is important that members of this committee inform the minister about their intent to travel.

Also, the clerk reminds me that at 1 p.m., the budget committee, the liaison committee, will meet to decide on the approval of the funds required to go to Washington in late January. The negotiations are coming along very well, and a notification came yesterday from the Council of Europe that they will send two parliamentarians to Washington—the chair of their committee, Mr. Wolfgang Behrendt, and another member. It is not yet confirmed, but it also looks promising that the European Parliament may send a few members to that event in Washington. So Washington is shaping up as a trilateral parliamentary event to discuss climate change first of all, and then transboundary pollution. Our researchers are therefore working hard to prepare a background paper on those subjects.

• 0915

All right, it being 9:15 a.m., it's time to start.

Welcome again to the representatives of the agency. The floor is yours.

[Translation]

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

[English]

It is a pleasure for us to be before you today to speak to you about Bill C-19. We'll also address the issue of the review process that we went through, and the conduct of the review of CEAA as well. Before doing so, however, I'd like to bring your attention to documents we provided to the clerk this morning as a result of requests made last week.

We've provided the clerk with copies of the discussion paper for the public consultation. It was released at the start of the review of the act in December 1999. And we've also provided copies of the Canadian Standards Association's preliminary draft standard for environmental assessment. In addition, Mr. Chairman, I've provided to you, in writing, details of the decision record under the act, which you requested on Tuesday of last week. I plan to follow up very soon with a second letter dealing with questions that arose on Thursday, related to the transboundary provisions of the act.

The Chair: Are you referring to Nanticoke and Lambton?

Mr. Robert Connelly: That's correct, Mr. Chairman, yes.

The Chair: And will you do that in writing?

Mr. Robert Connelly: Indeed, I intend to do so in writing, Mr. Chairman. That will follow shortly.

To begin the presentation, I will start with slide 3, on the five-year review of the act. The agency's preparations for this review began in 1998, Mr. Chairman. Our first step was to consult with those who had experience in implementing this act or had been involved in reviews associated with the act. This included practitioners with various federal departments, industry, environmental groups, aboriginal groups, and the provinces. The Commissioner of the Environment and Sustainable Development, as you know, also came out with a timely report in 1998, which provided excellent input for that review process.

All of this helped us to identify some twelve background studies that were conducted in the period of 1998-99. In late 1999, some members of this committee also wrote to Minister Anderson with their views on issues that ought to be addressed in the review.

All of this information identified to us what was working well, what issues were of concern to individuals, and what some of the problems associated with the act were. This resulted in our preparation of a discussion paper for the minister, which he released in December 1999.

I believe the discussion paper you received today was a frank admission of problems with the act. We also felt it served as a means to stimulate constructive dialogue on improvements to the act. It outlined a number of options for improvements to respond to some of the problems that had been identified.

Slides 4 and 5 summarize the public consultation process that followed the release of the discussion paper. About 800 people attended public sessions, making about 80 different presentations. In total, about 350 people participated in regional workshops, including representatives from the federal and provincial governments, industry, environmental groups, and aboriginal peoples. The public meetings in the regional workshops were independently managed and were facilitated by independent people as well. The agency's roles in those meetings were simply to act as resource people and to respond to questions.

Reports of each session were prepared by these independent consultants and were posted on the agency's website. This way, individuals attending a meeting in Halifax could see what was discussed earlier in Vancouver, for example.

We also had several meetings with provincial representatives. The provincial governments, with the exception of Quebec, submitted a joint report to the Minister of the Environment, with recommendations for change.

We made a special effort to involve aboriginal peoples in this process. The agency sought proposals from aboriginal organizations, respecting their participation in the five-year review. Funding was provided through contribution agreements with some of these organizations, in order that they could implement their proposals to us for consultation. This resulted in the Assembly of First Nations, the Inuit Tapirisat of Canada, and the Métis National Council becoming engaged in discussions with aboriginal peoples to develop recommendations for change. The agency also held separate discussions with some thirteen regional aboriginal organizations, in addition to the three national bodies I just mentioned.

• 0920

Finally, the minister's regulatory advisory committee—made up of representatives of environmental groups, industry, aboriginal peoples, and federal departments, as well as some provinces—reviewed the options in the discussion paper, developing a report for the minister, with consensus recommendations.

[Translation]

The Agency received more than 200 submissions in all. Our Web site on the five year review had more than 40 hits. The overall recommendations of the Regulatory Advisory Committee had a considerable influence all across the federal government.

Our discussions with the Aboriginal peoples were very useful and led to good suggestions that are reflected in Bill C-19 and the Minister's report to Parliament.

The vast majority of Canadians who took part in the consultations emphasized that while the core fundamentals of the Act are sound, there is room for improvement.

Bill C-19 and complementary initiatives contained in the Minister's report to Parliament outline the actions the government is proposing with a view to making the necessary improvements.

[English]

Slide 7, Mr. Chairman, refers to the minister's three goals for a revised process: making the process more certain, predictable, and timely; ensuring high-quality environmental assessments; and providing for meaningful public participation. In dealing with the proposed bill, I'd like to address each of these three goals in terms of some of the changes that have been made to meet each one.

Slide 8 outlines the first one in general terms, regarding the issue of certainty, predictability, and timeliness of the process. Focusing the act on appropriate projects will be achieved through a reduction in the number of assessments of small, routine projects, and expanded coverage resulting from closed loopholes. The agency will also have a larger role to play, especially when it comes to the coordination of assessments with other jurisdictions. The revised comprehensive study process will add certainty by eliminating the possibility of a second assessment of the same project by a review panel.

With respect to the second goal, that being high-quality environmental assessments, slide 9 describes some of the initiatives to promote high-quality assessments. For example, the agency will lead a quality assurance program. Follow-up programs will become mandatory for projects after comprehensive study, mediation, and panel review. Bill C-19 also proposes to recognize the results of regional studies, which should be a helpful tool for the consideration of cumulative effects.

[Translation]

Public participation provides sponsors and government policy makers with information on possible environmental impacts, as well as public concerns and values. It enhances public confidence and acceptance of project decisions.

[English]

Slide 10 lists initiatives to promote public participation, including a new Internet-based registry, new requirements to provide opportunities for public participation, and an expansion of the participant funding program for comprehensive studies. In his report to Parliament, the minister has also committed to the establishment of an aboriginal advisory committee to complement legislative amendments such as the recognition of aboriginal traditional knowledge.

Slides 11 to 17 will describe some of the specific clauses in more detail. In order to keep the presentation brief, I will focus on the main changes, not some of the minor ones that include things such as changes to subtitles.

First of all, an amendment in clause 1 proposes to close a loophole created when the Canada Marine Act removed port lands from the definition of “federal lands” in the Canadian Environmental Assessment Act. The change will mean projects involving the transfer or lease of port lands will undergo environmental assessment in the future.

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Two new purposes are proposed in clause 2 of the act. The first recognizes the importance of cooperation and coordination with the provinces. Each year, we have about 160 or so projects that require both federal and provincial assessments. We work with provinces to ensure that each project undergoes one assessment that meets the requirements of our act as well as the requirements of the provincial process. And the second new purpose recognizes the importance of communication and cooperation with aboriginal peoples.

Clause 6 would require new authority to regulate non-federal entities—or “prescribed authorities”, as they are called in the bill—that operate on federal lands. As a result, the government could bring local airport authorities under the act through regulations, such as was done for the Canada Port Authority in 1999.

The next slide, slide 12, deals with clauses 6 to 8. It starts with the amendment proposed in clause 6, to delete subsection 10(2) of the act in order to close a loophole that has meant the act does not require assessments of federally funded projects on reserve lands. In the future, with this change, we will apply the act throughout the country for those decisions involving federal funding.

In addition, the scope of the regulations that could be used by band councils for projects on their lands has been expanded beyond assessments triggered by funding decisions. Also, projects subject to the Canadian International Development Agency are currently subject to the act. Clause 6 proposes to allow for regulations to adjust the process for CIDA in order to better reflect the unique circumstances associated with overseas development assistance.

Clause 7 proposes new authority for ministers to issue prohibition orders enforced through an injunction, to prevent construction activities that alter the environment before an EA decision. These orders would be enforced through court injunctions. In the event that an environmental assessment commenced and somebody started to commence construction before it was completed, this prohibition order could then come into play.

During the five-year review, we heard the need for better federal coordination, especially when several departments are involved in a single assessment. The idea of getting our federal departments operating together was deemed a real concern. Under clause 8, there will be a federal environmental assessment coordinator for each assessment. The coordinator will have the powers necessary to ensure better coordination, and will also contribute to achieving more consistent application of the act. For example, the coordinator will be able to set timelines and make decisions about the timing of decisions regarding public participation. The agency will take on this role for comprehensive studies and all projects involving other jurisdictions.

[Translation]

Slide 13 starts with clause 9, which explicitly recognizes that community and Aboriginal traditional knowledge must be considered when a project is being assessed. This same clause also recognizes the results of regional studies. Our intention is to encourage such studies by working with the provinces and Aboriginal leaders, who are responsible for reviewing the environmental effects of existing activities, as well as future projects that could affect a particular ecosystem or region.

Regional study findings are a valuable tool for identifying cumulative effects—in other words, the combined impact of several projects carried out in a single region over a long period.

Clause 10 provides for opportunities for public participation at any stage of the screening process. In the past, this section of the Act was misinterpreted, since it was believed that during the screening process, public participation was generally limited to comments on the screening report.

• 0930

Clause 11 sets out a new way of using class screening reports, with a view to replacing project specific assessments. As a tool, class screening is used to assess smaller, routine projects that have predictable environmental impacts and can be handled using accepted design standards and mitigation measures.

[English]

Slide 14 deals with clauses 12 to 17. Clause 12 makes it clear that a responsible authority may impose mitigation measures that are beyond its normal scope of business. For example, the Navigable Waters Protection Act is silent on matters of environmental protection. Nevertheless, the Canadian Environmental Assessment Act adds a kind of a super-added authority so that a permit for a bridge under the NWPA could also include requirements necessary for the protection of migratory birds.

Clauses 13 and 14 will enhance the role of the Minister of the Environment during the comprehensive study process. For example, early in the comprehensive study process, the minister will be responsible for making a decision about whether the assessment should continue as a comprehensive study or be referred to review panel. At the end of the comprehensive study, the minister will have new authority to set out mitigation measures and to follow up requirements. The minister may also require further information or action to address public concerns before making a decision about the project. These clauses remove a significant cause of uncertainty for proponents by eliminating the possibility that a project could be referred to panel review after it has already undergone a detailed examination through a comprehensive study.

Clause 15 proposes to remove what has proved to be a barrier to the use of mediation provisions. A failed mediation will no longer be automatically referred to a review panel. Instead, the responsible authority may make a decision based on the mediator's report and the information generated earlier in the assessment.

Turning to slide 15, clause 18 proposes to allow a panel to prevent the public disclosure of sensitive environmental information, such as nesting sites of rare species that may be attractive to poachers. If passed, clause 19 would make follow-up programs mandatory for all projects undergoing a comprehensive study, mediation, or panel review. This will help us achieve our goal of high-quality assessments.

Last Thursday I provided an explanation of the current structure of the transboundary provisions of the act. As I indicated to the chairman earlier, I will be providing further information on that in writing in order to spell those provisions out more clearly. However, I would offer right now to explain one additional change being made in those provisions.

First, as I have mentioned previously, these provisions apply to proposed projects that do not otherwise trigger the act. Second, there must be a potential that the proposed project may cause significant adverse environmental effects in other provinces, another country, or on federal or aboriginal lands. Third, there must be no other federal power duty or function to be exercised or performed. For example, a single requirement under the Fisheries Act to have fish screens in place for water intakes is an example of an exercise of such power that has rendered these clauses inoperable. To some extent, this last legal test has proved to be an impediment to the use of these sections, and amendments are proposed in clauses 22 to 24 to remove this legal barrier.

On slide 16, clause 26 outlines the details of the new Internet-based registry of project information, including requirements for a notice of the commencement of an assessment. Unlike the existing, voluntary Federal Environmental Assessment Index, participation in the registry by departments would be mandatory. The agency will be responsible for establishing and maintaining the registry.

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Clause 29 proposes to extend participant funding to comprehensive studies. And finally, the authority for the Governor in Council to make regulations has been adjusted in clause 30, to correspond with other changes in the bill, such as new requirements that could be made to apply to local airport authorities.

[Translation]

Clauses 31 and 32 contain amendments aimed at enhancing the Agency's role with respect to promotion, compliance, implementation of a quality assurance program and dispute resolution.

Under clause 33, the provisions of Bill C-19, if passed by Parliament, will come into force by order in council. Once the amendments have been accepted, projects currently being assessed will go forward under the former Act, whereas new projects will be subject to the revised process.

[English]

Looking at the last slide, Mr. Chairman, what we hope to achieve is an improved process that provides better information to government decision-makers. In this way, we see environmental assessment as a valuable tool to help deliver the government's environmental priorities on a project-by-project basis. It is a tool that complements other federal laws used to protect the environment, including the Canadian Environmental Protection Act, the Fisheries Act, and the proposed Species at Risk Act.

Thank you, Mr. Chairman. I'd be pleased to respond to any of your questions.

The Chair: Thank you, Mr. Connelly. I hope your blood pressure didn't reach the ceiling while taking us through this very exciting set of slides.

Some hon. members: Oh, oh!

The Chair: Clearly, this is a bill that will not cause the business or corporate sector to commit hara-kiri, nor will there be a tremor on Wall Street when they hear about the fact that it is before this committee.

The discussion paper, which you kindly distributed this morning for public consultation, is as exciting as a sleeping pill. You can also add to that the docile nature of the agency and the high level of public indifference caused by the fact that 99.9% of the applications examined by the agency have been approved.

You see, what do you do when you are asked to widen an expressway or a highway—as you did in Ontario a couple of years ago—and objections are raised about the fact that the widening would damage considerably a very valuable ecosystem and marshland and wetlands, and all the agency can propose is to prevent the cement from the construction site from trickling into the river being crossed? Something is needed to give the public a sense of assurance that the emphasis of the agency is not so much to help the proponent, but to protect the environment. I don't know whether we're going to achieve very much with this bill. I'm also asking myself what the scope will be of the amendments that can be introduced in the light of the weakness of this bill.

However, we will start our round of questions with Mr. Mills, Monsieur Bigras, Mr. Comartin, Mr. Herron, and Madame Redman.

• 0940

Mr. Bob Mills (Red Deer, Canadian Alliance): I'd like to ask about a couple of areas. Going through the bill, it does seem to streamline and fix some of the problems that possibly exist. But I'm particularly interested in a couple of areas. First, the constant thing you hear from the provinces is that the provincial and federal departments very often butt heads and end up doing an environmental assessments that are simply a duplication of what the other has done. The provinces constantly say they're on the ground, they're closest to the projects, they've done their environmental assessments, but the feds then come in and say they don't need any of that information, they'll do their own. I interpret from the bill that this possibly is being addressed, but I wonder if you could be more specific.

The other thing is the transboundary issue—and I do apologize for being away last week, because you may have covered this. A project that I've been involved in extensively is the proposal for possibly as many as twelve power plants being built right on the border between Washington and B.C. How might this bill or improvements to it trigger a Canadian reaction? Obviously, if the Canadian government was there on the proposed Sumas 2 power project, it was not conspicuous in any way. There was no involvement, except for a few little indications by the minister that he knew what was happening.

I was at the hearings. No Canadian representative was there. Nobody was saying anything, yet all of that air is coming into Canada, and the aquifer supplying the water is in Canada. There is going to be a huge impact on that airshed, yet there was no Canadian involvement at all in indicating a concern for Canadians. What will this bill do to change this inaction that we have this time, so that we see new action next time?

Every time I think about environmental assessment, I come to a bridge that was built and didn't even touch the banks of the river—and this committee has heard this story before. The bridge was built, but then it was denied by an environmental assessment because, although it didn't touch ground anywhere near the river, the shadow of the bridge might affect the fish that might want to swim underneath that bridge. All of the activity on the bridge was in the winter, when there was ice and snow, but there was a huge environmental assessment problem from the standpoint of the Canadian government. As I say, the bridge was way up on the sides and didn't even come close to the river, but the shade was going to affect.... That seemed very ridiculous to the people in the area, particularly because fish were already swimming underneath it. How does this new bill fix that sort of thing?

Mr. Robert Connelly: To respond to the three questions you have raised, Mr. Mills, first of all, with respect to projects subject to both provincial and federal environmental assessment, what we have achieved—and I believe it's working fairly well with the provinces, the one exception being Quebec—is a harmonization agreement across the country, and individual bilateral agreements with provinces. The whole idea behind them is to work in a cooperative fashion to reduce duplication of effort. There is overlapping jurisdiction in the environment field, as we well know, so our objective has been to reduce duplication of effort, to work together cooperatively, and to bring the expertise that exists at both levels of government to the table to try to ensure that a thorough, effective environmental assessment will result.

One of the problems we have had in this has been the coordination of the potentially multiple responsible authorities at the federal level that can trigger our federal act at different times. The idea of coordinating them has been a problem. In the bill, we have therefore introduced the concept of a federal environmental assessment coordinator, which will be the agency's role in cases in which federal-provincial jurisdictions are involved. We believe this is the key means and key change in the bill in terms of assisting us, as a federal government, to be able to improve our cooperative work with our provincial colleagues.

• 0945

With respect to the second question on power plants constructed or at least being proposed in the United States, our act is really only able to deal with projects that originate within Canada. and may have an impact on, say, the United States. In a legal sense, through our piece of legislation, we would not have the authority to intervene in a project in that other country.

Through the United Nations, we have worked to develop a convention on environmental assessment in a transboundary context. Canada played a leading role in that, I might add, and that convention is in place. It has been signed by both Canada and the U.S., but it has only been ratified by Canada. We don't quite have the reciprocal arrangements in place with the United States yet, but we are pursuing them. In addition, we are working under the North American Agreement on Environmental Co-operation, through the Commission for Environmental Cooperation, to develop an agreement on transboundary environmental impact assessments with the United States and Mexico. We've been working at that for a while, and those negotiations are still underway. Through those kinds of arrangements, we hope we will have certain common elements like common notification of information, exchange of information, sharing of that information, discussions on mitigation measures, and those kinds of things, once that evolves further.

So I guess the short answer is that this bill and this act are not able to deal with projects that originate in another country, but we are looking at different mechanisms to do that.

With respect to your third point about the project you mentioned, without knowing all the details of the project, I really think that comes down to an issue of the quality of the environmental assessment. Sometimes we may find...in fact, mostly we find the quality needs to be improved with the assessments. In some cases, perhaps the judgment that is sometimes used is not as solid as it could be, and perhaps the example you've given illustrates that. The one—

The Chair: It could very well be a science issue, Mr. Mills, more than an assessment issue. Therefore, I would urge you to perhaps consult some biologists on this matter. I will put you on the second round, because we're running out of time.

Mr. Bigras.

[Translation]

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

I would like to pursue the point raised by Mr. Mills. Mr. Connelly, you were correct to point out that Quebec really participated very little, if at all, in discussions on this bill, but it is important to remember in that regard that Quebec—not in 1994, but in March 1992, under Robert Bourassa's administration—had expressed strong opposition to this by having the Quebec National Assembly pass a motion denouncing the federal environmental assessment process.

Having said that, it was my hope that some way could be found to ensure, through this bill, that the federal government would not directly interfere in areas of provincial jurisdiction. And yet when I read clause 22, which gives the Minister enhanced powers—because I see that the Minister will enjoy greater discretionary power than the current Act now provides and that the bill will allow him to interfere in an area which falls within the jurisdiction of Quebec—I must say that raises a lot of questions in my own mind.

This is my question to you: under clause 22, to what extent will decisions made by the BAPE—the Bureau d'audiences publiques sur l'environnement du Québec, which excludes fewer projects, is more transparent in terms of public participation and does not have a self-assessment process—be respected by the federal government?

• 0950

Mr. Robert Connelly: Thank you, Mr. Bigras. Clause 22 deals with transboundary issues. As I pointed out in my presentation, our goal is simply to eliminate one of three existing constraints. I believe this is closer to Parliament's original intention, as regards the potential use of this clause.

You also mentioned that the Bureau d'audiences publiques sur l'environnement du Québec will be holding public hearings. When a project is being addressed by both the BAPE and the federal government, federal authorities give due consideration to the BAPE's results, as part of the decision-making process required under federal legislation.

Mr. Bernard Bigras: Mr. Connelly, I guess you are telling me that if the Bureau d'audiences publiques sur l'environnement arrives at a specific finding with respect to a specific project, under this clause, the federal government cannot proceed with an environmental assessment. Is that what you are telling us?

Mr. Robert Connelly: No. The federal government can use those results in any decisions it is required to make.

Mr. Bernard Bigras: So, the BAPE's decision is not decisive, so to speak. The federal government can still decide to proceed with an environmental assessment and come to a decision that is different from the BAPE's.

Mr. Robert Connelly: That is certainly possible, because the finding—and I think it's probably better to use that term—of the Bureau d'audiences publiques is not an actual decision. Even at the provincial level, the BAPE acts as an advisory body to the Quebec government to aid the decision-making process, in the same way, at the federal level, a review panel presents its findings and the government then proceeds to make a decision.

Mr. Bernard Bigras: In your presentation, Mr. Connelly, you said that the regional process was a valuable tool. Your slide on page 13 says: "Explicit recognition of results of «regional studies»". How can you say you will be recognizing the results of regional studies when, as you have just explained it, the BAPE's decisions will not necessarily be abided by and the federal government could well decide to proceed with its own environmental assessment?

Mr. Robert Connelly: Mr. Chairman, Bill C-19 aims at encouraging regional studies. This is the first time regional projects have been mentioned. The value of regional studies is that they provide more information with respect to the state of the environment in a given region. We have suggested that information be used in assessing a unique project. Those results could also be used later to gain a better understanding of cumulative effects.

Mr. Bernard Bigras: I have one last brief question for you.

What is the logic in the following situation? The federal government can carry out environmental assessments on provincial territory, and yet the Export Development Corporation, which theoretically reports to the federal government, is not covered by CEAA, even under this bill. What is the logic in that?

• 0955

Mr. Robert Connelly: The Act is... Excuse me.

Mr. Bernard Bigras: You can answer in English, if you like.

[English]

Mr. Robert Connelly: I can try to respond in English.

[Translation]

The Chair: Perhaps he cannot answer it.

[English]

Mr. Robert Connelly: Perhaps I will just leave that question, Mr. Bigras.

[Translation]

The Chair: Thank you, Mr. Bigras.

[English]

Mr. Comartin.

Mr. Joe Comartin: Mr. Connelly, on the CIDA provisions in proposed section 10.1, under clause 6, I know the chair asked you some questions about this issue in the first briefing session, but I want to go back to it. If I say nothing is mandating the government to actually pass these regulations, am I reading this section right?

Mr. Robert Connelly: Mr. Comartin, that is correct.

Mr. Joe Comartin: If the decision is made to pass these regulations, which department will actually prepare them? Who would actually do the background work on them?

Mr. Robert Connelly: Those regulations would be developed by the agency for the Minister of the Environment, who would bring the regulations forward through the Governor in Council. The process in preparing the regulations involves considerable consultation through our regulatory advisory committee, and also through our normal consultation process, which is quite extensive.

Mr. Joe Comartin: Has any background work been done in that area up to this point?

Mr. Robert Connelly: We have had some preliminary discussions with CIDA on some of the principles that we would look at for future regulation.

Mr. Joe Comartin: We're not at the drafting stage of the regulations?

Mr. Robert Connelly: No, we're not. Of course, that would depend on the disposition of the law by this committee and Parliament. We need to wait until such time as we find that giving the government such regulation-making power has been agreed to before we can proceed too far.

Mr. Joe Comartin: And your sense is that the existing act does not provide that regulatory power.

Mr. Robert Connelly: Under the current act, we have the ability to deal with projects outside of Canada, and we have such a regulation in place to govern CIDA's activity at the current time. That regulation would remain in place until such time as we were to develop something unique to CIDA. It was felt some more flexibility was needed in the regulation-making authority for CIDA in order to enable them to better address the kinds of projects they deal with in other countries. For example, we have looked at perhaps some adjustment to the nature of the project as defined under the “Projects outside Canada” regulation, to enable, as CIDA has suggested, certain other types of projects they customarily get involved in to be included under a new regulation.

Mr. Joe Comartin: Can you tell us what the policy decision was on why this section is not mandatory? That is, why is it not mandatory that the regulations be drafted and implemented?

Mr. Robert Connelly: That is a fairly generic legal issue. The legislation requires one to do certain things, and it makes provision to develop regulations through the Governor in Council. We have the provision to do that, but not until a regulation is actually developed. We are not required to develop that regulation under the law.

Ms. Heather Smith (Senior Counsel, Legal Authority, Canadian Environmental Assessment Agency): [Inaudible—Editor]

Mr. Robert Connelly: Yes.

Ms. Smith has just reminded me that CIDA is actually a federal authority and is subject to the act right now. The regulation spells out more clearly the operational circumstances governing how they would operate under the act.

• 1000

Mr. Joe Comartin: Mr. Chair, I have just one more question.

Given the history of the concern over a number of projects CIDA has funded to the detriment of the environment in those regions—I'm just speaking historically now—would it not be one of those cases in which the regulations should in fact be mandatory? Do we not have enough of a case study on that particular agency to give us great cause for concern?

Mr. Robert Connelly: That's something the committee may wish to look at, but the dilemma created is that a law designed for domestic purposes has certain difficulties when it's applied in the same context outside of Canada. For that reason, it was felt appropriate to develop a mechanism that would allow for those different circumstances abroad.

Mr. Joe Comartin: Will any review of these regulations by this committee be built into the process at all?

Mr. Robert Connelly: No, I don't believe that would be the normal practice of the committee in reviewing a bill to look at existing regulations.

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

The Chair: Mr. Herron, please.

Mr. John Herron (Fundy—Royal, PC/DR): Because I'm a little bit new to the act, I want to go through just a couple of points, following the same line of questioning on proposed section 10.1 that Mr. Comartin followed.

If I have this square, to be considered a valid EIA under CEAA, CIDA would have to oblige the agency to give notice in Canada that an EIA is underway; disclose the terms of reference; post a result in the CIDA public registry; invite public comments; and have an independent panel review the EIA and deliver its findings. Is that roughly how it would work?

Mr. Robert Connelly: I believe you're referring to the way the act would operate domestically, Mr. Herron. As I mentioned to Mr. Comartin, the regulation-making provision allows for some variance of that in operating abroad, in order to reflect some of the unique circumstances in which CIDA would find itself operating. For example, I think it would be difficult to imagine sending a Canadian environmental assessment panel to conduct hearings in another country, so I think we need to look at how to design a regulation to respond to those unique circumstances abroad.

Mr. John Herron: From an environmental assessment perspective, there has been a certain level of concern about the lack of rigour involved in the assessment of the dam built in Belize. A certain concern has been expressed by opponents in regard to that particular project, in that this lack of rigour did not provide for an environmental assessment despite the expenditure of about $460,000 in federal funds. During that debate, an argument was put forth by the government that the limited amount of that $460,000—which was originally slated to be $250,000—was used for environmental purposes that were in the rough scope of an environmental assessment. The concern comes up under the new act when we define whether “physical” is work being done or a project that is to be undertaken. The reason given for not doing a true EIA in the Belize project was that this was a technicality because it was done before the project started.

• 1005

Do you believe proposed section 10.1 provides clarity that any undertaking, even if it's only the lead-up to the actual physical work, would have to include would have to include doing a true environmental assessment? And I have another example after this one, too.

Mr. Robert Connelly: At the present time, the act is triggered by federal funding, as you have correctly noted. A project also has to be defined under CEAA to allow for an assessment to be done. You need a decision point and you need a project to be defined.

In this instance, our information is that CIDA's role had been involvement in the conduct of a feasibility study for a proposed dam in Belize. It seems that feasibility study, or at least the decision subsequently taken to proceed with the project, did not involve CIDA. In other words, their work was a feasibility study, and a component of that included looking at some of the environmental issues surrounding the project. As I understand it, on the basis of the feasibility study, CIDA did not pursue the project any further. From a technical perspective, from a legal perspective, the act did not apply to the feasibility study because no decision was taken to enable the project to proceed.

In the future, under a new regulation...you've raised a very good question about what kinds of undertakings or what kinds of work or activities of CIDA should be subject to that new regulation. This is something we could indeed look at as a possibility.

Mr. John Herron: I think some of the legal opinion right now is that what's in proposed section 10.1 doesn't cover that specific scope that we just referred to in that Belize example.

Another example that raises some concern is the allocation of federal funds for a particular project overseas when that project has an environmental aspect to it. The feeling is that the agency should be engaged. When Monsanto funded an agricultural biotech project in China, it was deemed that no environmental assessment was to be utilized for that either. Why would we not use it in the Chinese Monsanto biotech example. I'm not sure if the terminator gene aspect of Monsanto's program is going to be utilized in China or not, but perhaps you folks are. But given that it's one that has been pulled off the market here in the Canadian perspective, why would we want to fund or facilitate that particular project if that particular product is to be utilized without an environmental assessment?

Mr. Robert Connelly: I'm not familiar enough with the details of the example you're using, Mr. Herron, but I would just come back in general to state that for an environmental assessment to be conducted under CEAA, there has to be a defined project and a clear federal decision-maker. I don't know if those two factors would apply in this instance.

Mr. John Herron: If there was a defined project and a clear driver on behalf of the federal government, and if an environmental assessment was not undertaken, then might we have an oops?

Mr. Robert Connelly: If those two factors were present—a federal decision-maker and, again, a project as defined under the act—then the “Projects outside Canada” regulation could apply.

Mr. John Herron: Thank you, Mr. Chairman.

The Chair: Madame Redman, please.

Mrs. Karen Redman (Kitchener Centre, Lib.): Thank you, Mr. Chairman. I want to make a comment, and then I have a question.

I would go back to the Sumas 2 project Mr. Mills referred to, and would indicate that the first proposal was largely stopped due to the written interventions made on behalf of Environment Canada, which talked about some of the concerns and objections we would have to their proposal. In fact, the Minister of the Environment has spoken with Washington Governor Garry Locke, as well as with Administrator Christie Whitman, who is head of the EPA, and he has voiced some of our concerns about the quality of the airshed in that area. I believe the proposal has been resubmitted, but the Department of the Environment and the Minister of the Environment were certainly very active in monitoring what was happening south of the border.

• 1010

One of the things in your letter, Mr. Connelly, deals with the statistics of the Canadian Environmental Assessment Act. Statistics are significant, but when dealt with in isolation, they sometimes don't tell the whole story. A comment was made earlier in this meeting about the fact that a lot of approvals had been given. I notice that, in the middle, under “Current Status”, you say, “In some situations, an assessment may be put on hold while necessary mitigation measures are developed.” Can you reiterate or point out for us the fact that this environmental assessment process is more than just a thumbs up or a thumbs down at the end of the day? Perhaps you could briefly talk about how this assessment impacts projects and does indeed look after the good of the environment.

Mr. Robert Connelly: Thank you, Ms. Redman.

One of the purposes of the act is to promote sustainable development. The act is designed in a way that tries to ensure that projects that do proceed are well designed, and that their impacts on the environment are either avoided or are reduced to the point of being insignificant. To describe what happens, when a project enters the environmental assessment process and proceeds to the end, it will generally be a kind of iterative process. The design may well change as the project moves through the process. Alternatively, as is more frequently is the case, mitigation measures are identified and those ultimately become the conditions set to allow the project to proceed.

In some instances, such as the example that I did use in the letter, we will find a project will be put on hold or will not proceed simply because mitigation measures cannot be found or the project needs some significant redesign before it proceeds further. We rarely have statistics to pick out those kinds of projects and to report them at the present time. Similarly, other than through anecdotal means, we rarely have a list of projects that may just start into the process or may never enter the process simply because the developer feels the project would not be able to proceed through that process. With Bill C-19 and the new proposed registry, I might add, we will have access to a lot of that type of information, allowing for very much improved statistical records on how projects do evolve as they go through the environmental assessment process.

The Chair: Thank you, Madame Redman.

Mr. Reed, please.

Mr. Julian Reed (Halton, Lib.): I just have a question about how you come to a conclusion about whether an environmental assessment is major or minor, or do you? I expect you do that, and I just wonder what the process is.

Mr. Robert Connelly: I would respond to that question, Mr. Reed, by referring to the term “significance”, because it is a term we frequently use in environmental assessments to determine whether the project and its effects will be significant or will have a significant adverse effect on the environment. In the conduct of an assessment, we look at what all of the potential impacts of that project might be and how one can design mitigation measures to reduce those impacts. A lot of that is based on predictive modelling and on experience with similar projects over the years. To some extent, we look back at what we've learned, and we try to project that into the future to look at what impacts might be associated with the project. That experience is applied. A lot of scientists are involved in the assessment to assist assessors to reach conclusions about how important or how significant those effects might be.

• 1015

Mr. Julian Reed: Is that quite a detailed process? Does it take a lot of time?

Mr. Robert Connelly: It can take a lot of time, but it depends on the size and complexity of the project. With some of the smaller projects, it can be done in a fairly short period of time. Also, we spoke about this on Tuesday of last week, but I might add that because a fair bit of judgment is involved, it is extremely important to involve the public in assisting in determining the value or the importance of those particular impacts locally.

Mr. Julian Reed: For small projects that might presumably result in a classification being minor in nature, are class assessments valuable, or would they be valuable?

Mr. Robert Connelly: Yes, indeed, they are quite valuable for two reasons. I believe they will improve the efficiency of assessment of smaller projects on the one hand. On the other, because they introduce what I would call standard mitigation measures for those kinds of projects, I think we probably also improve the quality of the mitigation measures and the quality of the assessments at the end of the day as well.

The Chair: Thank you, Mr. Reed.

[Translation]

Ms. Scherrer.

Ms. Hélène Scherrer (Louis-Hébert, Lib.): Thank you, Mr. Chairman.

I have a comment to make and then I would like to hear your reaction. I question what seems to be a desire to focus more on so- called major projects, and less on what are referred to as small, routine projects.

As I see it, when you're dealing with major projects, there are generally a number of actors involved and the public is kept informed. There is substantial media coverage and as a result of that, the public and all the major players are aware of the issues. I am very concerned about these small routine projects that can have very damaging effects on the environment as a whole. However, because they're considered to be small routine projects, they are not given the attention they deserve and they tend, because they come back regularly, to have very harmful long-term effects.

I would like to know what your reasons are for wanting to focus more on the major projects and pay less attention to the small routine ones.

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

Ms. Scherrer, you are right that we are paying a lot of attention to the major projects. Very often the public directs most of its attention towards major projects. Between 5,500 and 6,000 projects are handled every year through our process. Most of these projects are small. Naturally, assessments of small projects are carried out with less rigour than would be the case for major projects, although an assessment is made of small projects as well.

One of the criticisms made with respect to our process was that we have been reviewing too many small projects; as a result, we are attempting to find some way to reduce the number of projects that are reviewed by concentrating on those that are most significant in terms of their potential environmental impacts.

Ms. Hélène Scherrer: Can I ask another question on a completely different topic? I want to come back to this idea of including or recognizing port lands. Can you explain exactly what that involves? Does this mean that up until now, lands owned by port authorities were not subject to environmental assessments? For example, if a port authority filed a land use project, was it not required to consider the potential environmental effects of that project? Is that what this means? Did this also include part of the water within the jurisdiction of the port authority?

• 1020

[English]

Mr. Robert Connelly: Thank you for that question, Madame Scherrer. In response, I will indicate that we have a regulation at the present time that governs port authorities; however, that regulation is limited to projects for which the port authority itself is effectively a proponent. As a port authority, however, if it were to transfer land or lease land to somebody else to use for a project, that would not be subject to the act. One of the changes that we're proposing to make in Bill C-19 is to amend that definition in order to allow those projects to be covered under the port authority regulation as well.

[Translation]

The Chair: Thank you, Ms. Scherrer.

Mr. Tonks, please.

[English]

Mr. Alan Tonks (York South—Weston, Lib.): I'm sorry to have missed the first part of the presentation.

I'm interested in the point raised by Madam Scherrer. Having been in Montreal and having seen the old port and the development around it, and with the City of Toronto engaged in a major initiative with respect to the port authority—in fact, a court case is outstanding at this time between the City of Toronto and the port authority—I'm very interested in the issue of jurisdiction vis-à-vis the port authorities and this new authority that you relate to in your presentation.

In your presentation, on the slide covering clauses 25 to 30, it says there can be modifications with respect to making regulations. Is it the authority to make regulations...with respect to waiving an environmental assessment, can that be done by regulation—in the Toronto Port Authority, for example—with respect to entering into a long-term lease with any kind of entity, to build housing, or whatever?

In terms of the requirement for an environmental assessment, I would like to know the mechanics of how it works, and whether or not there are—I think I knew how it would operate under the old act, but I'm not sure with respect to this—implications to being able to make regulations that would affect the port authorities?

Mr. Robert Connelly: In the case between the current act and Bill C-19, Mr. Tonks, there really is no difference in the application with respect to the question you're asking. What we are proposing in Bill C-19 is to expand the triggers under CEAA that will apply to projects on port lands or initiated by port authorities.

The current act, through its regulation, applies whenever a port authority is a proponent. Although I didn't mention it, it's also the case that it applies whenever the port authority funds a project, but it does not apply in situations in which the port authority would transfer land to allow some other use to occur. In some instances, it might also actually issue an authorization or permit to allow something to occur, but that will not trigger the act at the present time. We're making modifications to the regulation-making provisions in order to include all of those future triggers as well, so it will be more consistent with the way the act applies elsewhere in the country.

• 1025

With respect to exclusions—if I can use that word—and whether or not there are any situations in which the act might not apply to certain projects, we do have an exclusion list regulation. The act gives us the authority to exclude certain types of projects through regulation, and we have done so. At the present time, we have such an exclusion list regulation, but it really only deals with very minor projects at this point.

We also have another regulation called an inclusion list regulation that would cover activities that are not considered physical works. For example, low-level flying activities wouldn't apply to ports, but a low-level flying activity can be designated as a project under the act by adding it to that list.

Mr. Alan Tonks: I don't think the aspect of low-level flying is all that outrageous when you take into consideration the Toronto Port Authority, inasmuch as it does operate an airport. There are a lot of high flyers and low flyers around there.

Mr. Chairman, I have one other one, just for the sake of my own knowledge.

With the establishment of an interim waterfront authority that is going to have to interact with the port authorities, I would think several projects will require environmental assessment. I would really like to know the process for engaging an EA with a port authority. Who notifies whom? How do the triggers start to occur in a situation like the cleanup of toxic waste in port authority lands, for example?

Mr. Chairman, in the covering letter that was sent to you, it was noted that there was a failure with the CSA to find a standard development process. I know we talked a little bit about this the other day, but why was it not possible to round out a template that was easy for lay persons to understand, saying that this is the way it is? I'd be interested to know. In other capacities, I've met with CSA people on regulations and so on, and I've always found them quite ready to facilitate a consensus on processes and standards and so on. From their perspective, why was it not possible for them to reach their own consensus?

Mr. Robert Connelly: You asked two questions, so let me begin by going back to the ports question, first of all. I'll also use the same example of decommissioning.

For a project, under the act at the present time, potential triggers would capture such a project even without the ports regulation, if I could start by saying that. For example, if that decommissioning was right at the water and could potentially affect fish habitat, the Department of Fisheries and Oceans would trigger CEAA in any case, so we'd have a trigger through the normal mechanism. However, to be certain that all projects might be captured by an activity on port lands, we have introduced this new regulation as a kind of safety net. Through C-19, we're also adding additional triggers to ensure that our original intent will be met, so that all projects of any size that aren't excluded will be covered under a revised ports regulation if C-19 is approved.

Your second question dealt with the Canadian Standards Association. An enormous effort was actually made by all of the people engaged in that exercise, in order to try to develop a common standard for screenings. When we sponsored the project as an agency, we were the ones who supplied the funding to allow the CSA work to proceed, and our hope was that we might be able to develop a standard screening procedure that could be used by all jurisdictions across the country.

• 1030

The draft that you have—and I don't have it in front of me, but it might have been numbered as draft 14—indicates the number of iterations they went though. I can only say it illustrates the great difficulty one finds in the business of environmental assessment in terms of reaching a consensus on a lot of questions. As you have indicated, the CSA has often reached a consensus on many standards. It was unable to do so in this particular case simply because of, as I understand it, a lot of different points of view involving those who participated in that process.

The Chair: Thank you, Mr. Tonks.

I have one brief question, and then we'll start the second round.

Mr. Connelly, would you see any difficulty arising from an amendment to the act that would provide for a review every five years, and not just once, as is contemplated now?

Mr. Robert Connelly: Mr. Chairman, that is a question we're pleased to leave with this committee to reflect on. You're quite correct. As it's presently worded, the act required the review to be conducted by the Minister of the Environment five years after it came into force. Without an additional clause or a similar clause in the future, this would be the last review. We didn't put forward a proposed amendment in that regard. We wanted to defer that matter to this committee in terms of what it thought most appropriate.

The Chair: Were there any reasons for not putting forward a proposal of that kind in your package?

Mr. Robert Connelly: Frankly, we thought it was a matter that was best addressed by the committee, Mr. Chairman.

The Chair: Thank you very much.

We'll begin the second round with Mr. Mills, please.

Mr. Bob Mills: You mention that more attention will be paid to the aboriginal perspective. Again, I'll use an example of a problem I'm aware of, in which a hazardous waste site was developed. There were two private ones, and one that was developed on aboriginal land. The private ones charged approximately $1,000 to handle some waste, although I'm not sure of the exact quantity. On the aboriginal land, it was $200 for the same quantity. It was looked at and it was certainly complained about by the two private companies, but it was decided that the federal government would remain hands-off and not pursue this because it involved aboriginal lands. Would this new bill result in that being pursued and in an environmental assessment being done under the same regulations? The reason it could be done more cheaply on the aboriginal lands was that the same care for these chemicals was not being taken. Would this new act take care of that situation?

Mr. Robert Connelly: I'll respond to that in a fairly generic way, Mr. Mills, because I don't know the specifics of the case.

At the present time, we do have a gap or a loophole that we are proposing to fix with Bill C-19. It has to do with the funding trigger, but I don't know whether that would have come into play in this case or not. I'll give you an example of the loophole. At the present time, any time the federal government provides funding for a project, it will trigger the act in a very general sense, with the one exception being for projects on Indian reserves. We are proposing to close that gap under Bill C-19.

In addition—and this may be more appropriate—we are also making provision for a regulation to be developed so that the bands themselves will have their own environmental assessment process that deals with projects that may not have a federal decision associated with them. If there is a federal decision associated with a project, then CEAA would apply.

So we're trying to move forward to improve the triggers that exist under the act today as they apply to reserves. Secondly, we're trying to offer the means of a regulation that could be developed by the band council to cover off perhaps other types of projects that would not necessarily be subject to a federal decision.

• 1035

Mr. Bob Mills: As a second question, when new landfill sites and sewage treatment plants are being developed or old ones are being expanded, I've been told the federal government doesn't get involved because they're strictly a provincial matter. It would seem to me that when those landfills are leaking into groundwater, and when that sewage is going into rivers that cross boundaries, from province to province, that would involve a federal assessment. It seems like it's a sort of municipal-provincial issue, while the federal government—I might be wrong here—plays a very minor role when it comes to those two examples.

As well, I would ask about dumping sewage into oceans. It would seem to me that the federal government should be pretty involved in stopping those kinds of projects.

The Chair: That's the case with the City of Victoria, for instance.

Mr. Bob Mills: I didn't use specific examples, but I could have.

Mr. Robert Connelly: Let me respond, Mr. Mills, by again indicating that we need a project. To use the example you gave, if a new sewage treatment plant is being built, that would be a project under the act. And we also need a federal decision for the act to apply.

In many instances, the act does apply to waste treatment plants or new and proposed waste treatment plants, simply through the funding trigger. As an example that I would use, we had an environmental assessment panel review of a proposed treatment plant for Halifax a number of years ago. That was conducted under the environmental assessment process. Now, the project didn't proceed in the end because of funding, as I understand it, but it is still being looked at. Nevertheless, an environmental assessment was done.

Also, the government's infrastructure program that is underway now involves a number of sewage treatment plants or improvements to sewage treatment plants. Those are subject to the act because the federal government is putting money into the project.

Mr. Bob Mills: So it's “no money, no assessment”, is that it?

Mr. Robert Connelly: That is one simple test, yes.

A second trigger that might also apply to proposed sewage treatment plants might be an authorization under the Fisheries Act. Again, you'd have to look at the specific design of the project, but if that project were to intrude into a watercourse and have an effect on fish habitat, an assessment would have to be conducted before that authorization could be granted.

Mr. Bob Mills: Wouldn't it be better to have it in this legislation, as opposed to having to depend on the Fisheries Act or some other act?

Mr. Robert Connelly: Mr. Mills, the way the act is set up, it relates projects to the heads of federal power—in other words, to federal decision-making. It doesn't deal categorically with specific types of projects, so that all sewage treatment plants, for example, would be subject to the act. You have to relate it to a federal decision associated with that project. That is the fundamental principle of the act, and it has been the fundamental approach used right from the outset.

The Chair: Thank you, Mr. Mills. That was an interesting question.

[Translation]

Mr. Bigras.

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

I would like to talk about clause 8, which creates the position of Federal Environmental Assessment Coordinator. The role of the Coordinator is to “ensure that the federal authorities that are or may be responsible authorities [...] are identified”. I don't see the word “province” mentioned anywhere in this clause. It talks about authorities that are or may be responsible authorities. A committee can be struck, as stated in proposed sub-clause 12.3(a): “establish and chair a committee composed of the federal authorities that are or may be responsible authorities”. Are the provinces included in your definition?

• 1040

[English]

Mr. Robert Connelly: In response to your question, Mr. Bigras, I would point out that the act deals with the federal government and how we may be able to coordinate our federal departments under the act to ensure good cooperation and coordination within the federal family, in order to ensure that multiple decision-makers are all engaged in the review of the project at the same time. This is of great value in situations in which we are working cooperatively with another jurisdiction—another province, for example—because it will allow us to be better prepared to be more efficient in working with our provincial colleagues in a cooperative assessment.

[Translation]

Mr. Bernard Bigras: So, if I understand you correctly, the answer is no. Authorities that are or may be responsible authorities do not include the provinces. Nowhere in this clause does it say that a province could take part in the work of a committee to be chaired by the Coordinator. I just wanted to be sure that the province... This is a fairly important clause. It states that the Federal Environmental Assessment Coordinator:

(c) in consultation with the federal authorities that are or may be responsible authorities, determine the time of any public participation.

So, this in a way could trigger an assessment. Basically what I want to know is whether the provinces will be at the table or not.

[English]

Mr. Robert Connelly: The act obviously cannot force provinces to be part of that committee, but it will certainly allow for them to be present if they so desire. That is the intent behind it.

[Translation]

Mr. Bernard Bigras: I have no further questions, Mr. Chairman.

[English]

The Chair: Mr. Reed.

Mr. Julian Reed: In the overview, something jumped out at me, and that was the statement that the courts are now shaping many areas of public policy. That concerns me to a great extent, because I'm not sure we have struck a balance with the elected body vis-à-vis the courts. I take it these are constitutional challenges that are being referred to in this overview. I'm wondering whether the bulk of those challenges come from the provinces or whether they come from the federal government, and whether there have been very many of them. I would be loathe to think the courts should be shaping government policy. Something about that process rings as undemocratic.

The Chair: I'm not so sure these officials are here to tackle that type of question.

Mr. Julian Reed: With respect, Mr. Chairman, it's in here, so I'm curious to know if there have been many cases or many challenges constitutionally.

Mr. Robert Connelly: Mr. Chair, perhaps I can respond by dealing with the facts Mr. Reed has asked about.

Since 1995, we have had challenges on some 32 projects under the act, just to put that into perspective. I would add that, on the same basis, that is actually fewer than we had under the EARPGO provision I talked about last Tuesday, so there has been a drop in the number of cases we have had under CEAA.

The nature of the challenges has often simply been around the application of the act and whether the project was scoped appropriately or not, or whether or not the project should have been treated at either the comprehensive study stage or panel stage of the process.

So that's a bit of an overview of the nature of the court challenges we've had to date.

• 1045

Mr. Julian Reed: Given the nature of those challenges, I would suggest the shaping of public policy by the courts is perhaps not as significant as the statement here implies.

Mr. Robert Connelly: In response, let me indicate that the court has assisted in the interpretation of the act. There have been cases or situations in which it has been recognized that some question is associated with the interpretation, and that's where the court has provided some direction. With new legislation, it's not unusual to see challenges regarding the interpretation of certain clauses, and I think that's what has happened in this instance.

Mr. Julian Reed: Thank you.

The Chair: Thanks, Mr. Reed.

Madame Scherrer? No?

Mr.Tonks.

Mr. Alan Tonks: No, I'm satisfied.

The Chair: Mr. Bailey.

Mr. Roy Bailey (Souris—Moose Mountain, Canadian Alliance): First of all, I just want to make a comment on bullet 2 of slide 13. You mention the bill will allow for clarification that provides for “opportunities for public participation”. I'm pleased to see that, because that in itself is—I think I emphasized this before—imperative in a program like this, and it's imperative for what we hope to achieve.

Also, I want to refer to slide 15. Somehow, I have the idea that this act supersedes other acts. Am I right in making that assumption? The way that statement reads, when it comes to the environment, the environment could supersede, say, the Fisheries Act or some other act. Is that correct?

Mr. Robert Connelly: I think you've raised two points, Mr. Bailey.

First, regarding the public participation noted on slide 13, at any stage in screening, that is an important change. Again, I think that reflects the desire to improve the opportunities for public participation. Under the act as it is at present, some have interpreted the act to only apply at the screening stage, whenever the final screening report is produced. We feel that is often very late in the process, so we want to make it very clear that the public can participate at any stage, and not necessarily just at that point.

With respect to your second question, I would use the word “super-added” rather than “supersede”, in the sense that any time another piece of legislation like the Fisheries Act, the Nuclear Safety and Control Act, the National Energy Board Act, etc., is involved, this act requires those regulatory bodies to conduct an environmental assessment before they issue their authorization or licence. It puts a kind of a super-added power on them to conduct the assessment before they proceed with their permit or licence.

Mr. Roy Bailey: Finally, I'm interested in an example you cited in your letter to our honourable chairman, because you're talking about an area of Canada where I once served, although I'm not going to tell you how long ago.

You mentioned the example of this comprehensive, 24-kilometre study that preceded the road to connect the Kincolith Band to the B.C. highways. In bullet 2, though, as an example, you have said, “closure of local landfills and a new solid waste management plan”. In your terminology, what do you mean by “solid waste”? Secondly, if it's what I think it may be, is it possible to achieve that in a remote area where it may not be possible to operate machines in order to make that possible?

• 1050

Mr. Robert Connelly: Mr. Bailey, I think what this illustrates is that sometimes in an environmental assessment, the assessors will look at matters that might go beyond just the road construction itself, in order to minimize impacts on a certain species. In this instance, I believe the concern was that at the same time the road was to be built, measures should be taken to look at the closure of some of these landfills because of the obvious attraction that grizzly bears have to the landfills. In this instance, additional measures were taken that I think improve things for the grizzly bears.

The solid waste management plan referred to here essentially was a means of instituting regular garbage pickup, frankly, in order to minimize the fact that some of the garbage might just be dumped rather randomly along the roadway.

The Chair: With Mr. Bailey's question, we can conclude our round of questions today.

Mr. Connelly, Ms. Smith, and Mr. Clarke, we thank you for your appearance, and we look forward to further exchanges and interesting discussions.

I wish you all the best wishes, the best greetings of the season, and we will see you in the new year.

This meeting is now adjourned, and we will resume as soon as we come back from Washington.