ENVI Committee Meeting

37th PARLIAMENT, 1st SESSION

Standing Committee on Environment and Sustainable Development

EVIDENCE

CONTENTS

Thursday, May 9, 2002

¿

0905

Mr. Neil Townsend (Executive Director, Transboundary Watershed Alliance)

Mr. David MacKinnon (Coordinator, Whitehorse Office, Transboundary Watershed Alliance)

¿

0910

¿

0915

Mr. Neil Townsend

¿

0920

The Vice-Chair (Mr. Bob Mills)

Mr. Peter Ewins (Director, Arctic Conservation, World Wildlife Fund Canada)

¿

0925

Mr. Joshua Laughren (Director, Marine Conservation, World Wildlife Fund Canada)

¿

0930

The Vice-Chair (Mr. Bob Mills)

Mr. William J. Borland (Director, Environmental Affairs, J.D. Irving Ltd., New Brunswick Environmental Industy Association)

¿

0935

¿

0940

The Vice-Chair (Mr. Bob Mills)

Chief Gibby Jacob (Squamish Nation, First Nations Environmental Assessment Technical Working Group of British Columbia)

¿

0945

¿

0950

The Vice-Chair (Mr. Bob Mills)

¿

0955

Mr. Neil Townsend

Mr. Roy Bailey

Mr. Neil Townsend

Mr. Roy Bailey

Mr. Neil Townsend

Chief Gibby Jacob

Mr. Roy Bailey

Mr. Peter Ewins

À

1000

The Vice-Chair (Mr. Bob Mills)

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

À

1005

Mr. Bernard Bigras

Mr. Peter Ewins

Mr. Bernard Bigras

Mr. Peter Ewins

À

1010

Mr. Bernard Bigras

Chief Gibby Jacob

Ms. Michelle Ellison (Member, First Nations Environmental Assessment Technical Working Group of British Columbia)

Mr. Bernard Bigras

Ms. Michelle Ellison

The Vice-Chair (Mr. Bob Mills)

Mr. Julian Reed (Halton, Lib.)

Mr. Julian Reed

À

1015

Mr. Julian Reed

Mr. Julian Reed

The Vice-Chair (Mr. Bob Mills)

Ms. Hélène Scherrer (Louis-Hébert, Lib.)

À

1020

Ms. Hélène Scherrer

Ms. Hélène Scherrer

Chief Gibby Jacob

À

1025

Ms. Michelle Ellison

The Vice-Chair (Mr. Bob Mills)

Mrs. Karen Redman (Kitchener Centre, Lib.)

Mr. Peter Ewins

Mrs. Karen Redman

Ms. Michelle Ellison

À

1030

Chief Gibby Jacob

The Vice-Chair (Mr. Bob Mills)

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

À

1035

Mr. Alan Tonks

Mr. David MacKinnon

Mr. Alan Tonks

Chief Gibby Jacob

À

1040

The Vice-Chair (Mr. Bob Mills)

Mr. Peter Ewins

Mr. Charles Caccia

Mr. Peter Ewins

Mr. Charles Caccia

À

1045

Mr. Peter Ewins

Mr. Charles Caccia

Mr. Peter Ewins

Mr. Charles Caccia

Mr. Peter Ewins

Mr. Charles Caccia

Mr. Peter Ewins

Mr. Charles Caccia

Mr. Charles Caccia

Mr. Charles Caccia

Mr. David MacKinnon

À

1050

Mr. Charles Caccia

Mr. David MacKinnon

Mr. Charles Caccia

The Vice-Chair (Mr. Bob Mills)

Mr. Charles Caccia

Mr. David MacKinnon

Mr. Charles Caccia

Mr. David MacKinnon

Mr. Charles Caccia

Mr. Neil Townsend

Mr. Charles Caccia

The Vice-Chair (Mr. Bob Mills)

Mr. Neil Townsend

The Vice-Chair (Mr. Bob Mills)

Mr. Neil Townsend

The Vice-Chair (Mr. Bob Mills)

Mr. Neil Townsend

The Vice-Chair (Mr. Bob Mills)

Mr. Neil Townsend

À

1055

The Vice-Chair (Mr. Bob Mills)

Mr. William J. Borland

The Vice-Chair (Mr. Bob Mills)

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CANADA

Standing Committee on Environment and Sustainable Development

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NUMBER 071

l

1st SESSION

l

37th PARLIAMENT

---

EVIDENCE

Thursday, May 9, 2002

[Recorded by Electronic Apparatus]

¿  (0905)  

[English]

    The Vice-Chair (Mr. Bob Mills (Red Deer, Canadian Alliance)): I'd like to call the meeting to order.

    I will start by welcoming our guests. I certainly apologize for the times when you have been bumped. I understand that it has been because of Bill C-5. If you've been following that, you might even blame some of the members of the opposition for that, but we won't get into that one, and we won't take a vote on it.

    I understand that some of you had even more difficulty with the plane, but that's out of our control. Just to make you feel better, on the second-last flight I took to Ottawa, we got here at 5 a.m. The plane was five hours late. Going back, it was then three hours late. So it happens to all of us, and I know how unpleasant it is.

    If we can follow the order that we have on the schedule, we'll start with the Transboundary Watershed Alliance. You have a lot of material here, gentlemen. I'd ask you to keep it in summary form, if you could. That will let our members have time to ask you questions. Thank you.

    Mr. Neil Townsend (Executive Director, Transboundary Watershed Alliance): Thank you, Mr. Chair.

    My name is Neil Townsend, and I'm the executive director of the Transboundary Watershed Alliance.

[Translation]

    We would like to thank you for giving us the opportunity to participate in today's session.

[English]

    Thank you for this opportunity to present our concerns in relation to Bill C-19, An Act to amend the Canadian Environmental Assessment Act. Our presentation to the committee this morning will essentially follow on our February 21, 2002, written submission.

    The Transboundary Watershed Alliance, or TWA, is an alliance of 21 conservation and environmental organizations from both sides of the border, working to maintain and replenish the diverse abundance of fish and wildlife species and their habitat in the transboundary watersheds of British Columbia and southeastern Alaska. As members can see on the map, this vast region of 130,000 square kilometres includes seven major watersheds, stretching from the Unuk watershed in the south to the Alsek watershed in the north.

    The TWA is mandated to promote the coexistence of healthy communities and healthy ecosystems within the transboundary watersheds. The TWA encourages the adoption of long-term, conservation-based planning to ensure the survival of these magnificent river systems and to recognize and respect the central role of first nations communities that have lived in the watersheds for millennia. We believe the ecological integrity of the transboundary watersheds, as systems and irrespective of international borders, should be protected. These relatively pristine transboundary watersheds are facing and will continue to face a myriad of development challenges, from proposed roads and mines to large-scale forestry and energy projects.

    Environmental assessment provides an important and valuable tool for ensuring that the needs of tomorrow are not compromised by the actions of today. The TWA welcomes this opportunity to acknowledge the progress that Bill C-19 represents and to highlight the shortcomings and deficiencies that we hope the standing committee will be able to address.

    I'd like to turn it over to my colleague David MacKinnon, who will present the first part of our presentation.

    Mr. David MacKinnon (Coordinator, Whitehorse Office, Transboundary Watershed Alliance): Thank you, Mr. Chair. My name is David MacKinnon, and I coordinate the Whitehorse office of the Transboundary Watershed Alliance.

    With respect to Bill C-19, An Act to amend the Canadian Environmental Assessment Act, beginning with clause 2, the purposes clauses confirm the need for better cooperation and coordinated action between federal and provincial governments. However, in relation to the harmonization efforts between governments, we bring to the committee's attention several serious concerns.

    In British Columbia, and perhaps in other provinces, the provincial assessment standard or process is not equal to the federal standard or process. Expected changes to the B.C. Environmental Assessment Act will exacerbate this problem. The B.C. Environmental Assessment Office has identified draft legislative parameters for environmental assessment change that include a less prescriptive and more flexible process; increased emphasis on risk management; no appeals on process decisions; proponent design of the terms of reference and designation of who is to be consulted during pre-application; cost-recovery authorization; and elimination of a legislated requirement for project review committees, the basis for public participation.

    The expected changes to EA legislation should be clear warning signals to the federal government and members of this committee that a strengthened, not weakened, federal environmental assessment presence is needed via Bill C-19. The TWA recommends that the committee amend Bill C-19 to make sure that any harmonized or joint process will meet or beat the federal standards and processes described within the CEAA.

    With respect to clause 8, the TWA welcomes the federal environmental assessment coordinator provisions. Our experience indicates that this will ensure a more consistent application of the act. We support the recommendations put forward by West Coast Environmental Law and other witnesses, relating to the scope of the proposed coordinator's responsibilities. We agree that the agency should be the coordinator in all circumstances.

    The TWA believes the clause should be expanded to include a reference to specific minimum timelines for public participation. Consideration of the seasonal and traditional activities of small communities should also be mentioned. The TWA suggests that a reference be added to Bill C-19 that the project coordinator, upon request, will provide a public meeting facilitator. It is an unfortunate reality that public meetings can and do deteriorate to the point of chilling public comment, due to the polarization of views on proposed projects.

    The TWA asks that the committee consider and debate the variety of witness suggestions and recommendations to improve and clarify the position, scope, duties, responsibilities, and powers of the proposed federal environmental assessment coordinator, and that it amend clause 8 accordingly.

    On clause 9, the TWA welcomes this new proposed section. In proposed section 16.1, the inclusion of community knowledge and aboriginal traditional knowledge in an environmental assessment ensures that the potential local and regional impacts of development will be heard and considered. This provision will contribute to a better understanding by the proponents, stakeholders, responsible authorities, and federal authorities, of the overall implications of a proposed project. This is especially true for socio-economic and cultural considerations in addressing the need for alternatives to a proposed project or regional development.

    The TWA notes that concern has been raised to this committee that the use of mandatory or discretionary language in this clause may appear to compel the provision of community knowledge or aboriginal knowledge. The TWA agrees with this concern; however, we believe the inclusion in Bill C-19 of the prior consent language found in article 8(j) of the UN Convention on Biological Diversity, to which Canada is signatory, would address these concerns. The government should be required to consider the consensual provision of local knowledge in relation to a project, and the TWA hopes that the committee will be able to find a balance between witness concerns on sharing knowledge and the potential loss of the community voice being heard.

    In proposed section 16.2, the recognition of regional studies is a key improvement to the CEAA that will ensure the consideration of cumulative environmental effects at the landscape or regional level. The lack of regional effects considerations is a profound deficiency in current EA processes throughout Canada. We question, however, the use of language in proposed section 16.2 that restricts what studies can or cannot be considered when determining cumulative effects in a region.

¿  (0910)  

    The State of Alaska has consistently asked for integrated regional watershed planning in the Taku watershed, a request continuously ignored or denied by the Province of British Columbia. The TWA shares this desire for a regional approach. The current project-by-project assessment practices are detrimental to both the socio-economic aspirations of local communities and the rich biodiversity found across this region. They also place at risk the land-based activities undertaken by first nations communities, as well as their cultural values. The TWA believes the inclusion and consideration of regional studies, where available, should be mandatory and not discretionary. This would also make for considerably smoother negotiations with first nations, many of which engage in planning at the scale of the traditional territory and prefer this approach to piecemeal, project-by-project processes.

    Further to proposed section 16.2 wording, there has been controversy in British Columbia about the manner in which projects that were considered under the category of “will be carried out” were determined. The federal responsible authorities have, in practice, decided that cumulative effects do not have to be considered when there are no active proposals in a project area. We ask that members please read this section in our written submission, beginning on page 10, where we describe this problem at length.

    With respect to clause 13, the TWA agrees with numerous witnesses that the irrevocable, one-track, decision-final provision should be deleted. The minister's irrevocable decision at such an early stage in the assessment process is not logical. The TWA believes the RA project report requirements should also include socio-economic and cultural considerations in order to better reflect the wider consequences of a large project's environmental effects in relation to traditional local land use.

    I will now turn it back to Mr. Townsend.

¿  (0915)  

    Mr. Neil Townsend: For those following our written brief, I think the next section should actually read “Clause 10” rather than “Clause 18”.

    With respect to clause 10, the TWA supports any amendments to strengthen the important role of public participation in the Canadian environmental assessment process. The proposed language for proposed subsection 18(3), however, does not provide adequate guidance to the responsible authority in terms of when public participation is appropriate. Since we are hard-pressed to conceive of an example in which public participation in environmental assessments conducted by the federal government would not be appropriate, we are concerned about the discretion provided for the inclusion or exclusion of public participation. We would therefore ask that Bill C-19 be strengthened to safeguard the essential role of public participation, and for clarification of the discretionary purview of the federal RAs with regard to public participation.

    With respect to clause 19, the TWA welcomes the proposed change from discretionary to mandatory follow-up programs. These mandatory powers are necessary to ensure that mitigation targets are met and that public concerns are addressed across Canada.

    With respect to clause 20, in reference to the cooperative approach for joint review panels between various jurisdictions, we would like to reiterate our earlier comments that a clear reference to federal powers should be included in Bill C-19, and that standards and processes set out in the federal CEAA will prevail.

    With respect to clause 23, the TWA would like to bring the committee's attention to a deficiency in relation to the application of the CEAA toward international environmental effects. We have presented this concern in some considerable detail and length in our written submission.

    Clause 23 is the central reason for our appearance here today. The TWA believes an additional amendment to proposed subsection 47(1) is necessary to ensure that in future project assessments involving international environmental effects, Canada's international obligations under the Pacific Salmon Treaty and the International Boundary Waters Treaty are met, and that the concerns about adverse environmental effects that are likely to occur from a proposed project and that are raised by communities and governments on both sides of the border are addressed in a timely and efficient manner.

    Section 47 does not provide any trigger mechanism beyond ministerial discretion if a project is likely to cause significant adverse environmental effects outside of Canada, leading to the strained international relations evident today between B.C. and Alaska. This is also expected to be a direct source of exasperation to our American neighbours in the future, especially given the current aquaculture battles with Alaska and the potential lifting of the offshore development moratorium.

    The TWA would ask that the committee amend Bill C-19 to include a specific reference to proposed subsection 47(1), a trigger that would allow the Minister of the Environment and Minister of Foreign Affairs to act in a timely manner beyond the restrictive scope of the current section 47 provisions. Proposed wording for committee discussion can be found on page 18 of our written submission.

    With respect to clause 26, the TWA welcomes the establishment of a Canadian Environmental Assessment Registry. However, we share some other witnesses' concerns that the public registry provisions, as outlined in section 55 of the existing act, should remain unchanged and that the electronic registry be added to the current registry requirements.

    The TWA acknowledges the tremendous effort of the five-year review process and the excellent work undertaken by the Regulatory Advisory Committee toward Bill C-19. The TWA asks that the committee include another five-year review process in the amendment act.

    In conclusion, the TWA believes Bill C-19 could be further strengthened to ensure that the basic principles of assessment are enforced uniformly across Canada, and not in an irregular patchwork between provincial jurisdictions. The transboundary watershed shared by B.C. and Alaska will continue to face a myriad of development challenges of varying quality and viability. We believe these resource-rich, culturally important, and diverse regions deserve the best CEAA protection and environmental assessment process that Parliament has the power to provide. With such protections in place, we believe the region can become a model of sustainable development for Canada and for the world.

    The TWA thanks the House of Commons Standing Committee on Environment and Sustainable Development for this opportunity to provide our views and recommendations on Bill C-19.

¿  (0920)  

    The Vice-Chair (Mr. Bob Mills): Thank you very much.

    We will carry on with the World Wildlife Fund, please.

    Mr. Peter Ewins (Director, Arctic Conservation, World Wildlife Fund Canada): Thank you very much.

    My name is Peter Ewins, and my colleague is Josh Laughren. On behalf of WWF-Canada, we thank you very much for this opportunity to share our views and recommendations on amendments to CEAA under Bill C-19. Also here, but away from the table at the moment, is Sarah Dover, who is our policy adviser here in Ottawa.

    I will speak first, and Josh Laughren will speak second. I am the director of our Canadian Arctic conservation program, while Josh directs our marine conservation work. Between the two of us, we cover a lot of the areas and issues in Canada. My accent tells you I was obviously raised in the U.K. I did my doctorate in the marine realm in the North Sea in relation to the oil and gas industry. Josh will tell you about his credentials and who he is.

    I wanted to say that my little daughter, who is eight years old, asked me yesterday when I left, “Why are you going to Ottawa again, Daddy?” I had to say, “Well, good question, darling, but this is an important thing.” I had to frame it in terms of why I was spending this time with a standing committee that she wouldn't understand. I simply said, “Because I want to help other people make Canada a better place for you and your children to live in, including bears, caribou, and fish,” which she knows. I thought it was rather interesting that she asked me to explain in tangible terms what all this process is about, and I just wanted to share that with you.

    WWF is really here today to ask one specific thing of the committee. You have a seven-page written summary here, and we're very focused in our points. There are a series of clear-colour maps in there, and I would ask you to look at those as I go through this, but also afterwards. Our purpose is to ask you to amend Bill C-19 in order to help to implement existing federal commitments to protected areas, as a crucial step toward achieving truly sustainable development across Canada's lands and waters.

    For those of you who don't know WWF, very briefly, it is the world's largest independent conservation organization, operating in over a hundred countries and, for the past thirty-plus years, in Canada. Our mission is to help to build a future in which humans live in harmony with nature, in the right sustainable balance between development and protection. It is very important that we are about sustainability, with people in the equation, and not just about protecting things.

    Flowing from many international commitments to sustainable development, in 1992 the Canadian Council of Ministers of the Environment, the Canadian Parks’ Ministers Council, and the Wildlife Ministers' Council of Canada all signed a statement of commitment to complete Canada's network of protected areas, being representative of Canada's land-based natural regions, by the year 2000; and to accelerate such a network in Canada's marine natural regions. That one-page statement is in appendix 1 of your handout.

    Essentially, this commitment was to reserve and protect a sample of Canada's rich natural and national heritage on land and water. The job is only one-third complete on land, and it has not started yet in the water. Today, development decisions, with or without environmental assessment, continue to be made across our lands and waters, and these developments incrementally foreclose on the opportunity to complete such a network of representative protected areas. I liken the conceptual approach here to an insurance policy: you set aside for the future, in light of uncertainty, things that you treasure for subsequent generations. In this case, the intact ecosystems and the lands and waters of Canada are that insurance premium.

¿  (0925)  

    The rationale underpinning these commitments that the governments of Canada all agreed to ten years ago and beyond are simple and beyond dispute. They're founded in the widely recognized, two-pronged approach to sustainable development that most of you may be familiar with. The first prong is reserving a sample network of protected areas—areas that are free from industrial development because of their outstanding environmental, cultural, and other ecosystem values—and the other prong is to conduct sensitive industrial development in the rest of the landscape, using mitigation, restoration, and best available techniques.

    I want to underscore that these protected areas are really the jewels in our natural heritage. They provide numerous benefits for biodiversity and society. When this network is complete, they will clearly be the absolutely fundamental benchmark reference sites against which we, as a society, will be able to assess and mitigate cumulative impacts of development. They are a fundamental component to environmental assessment.

    These areas form intact reservoirs of biodiversity and ecosystem processes. They also provide the network of places to help biodiversity and people adapt to the impacts of climate change. We don't know exactly what biodiversity is going to need. These areas afford the best opportunity to provide that opportunity. In many cases, particularly in the frontier areas of Canada, they are of great cultural and spiritual importance for first nations. Clearly, completing this network is one of the most fundamental of tasks if we are to honestly say in Canada that we practise sustainable development.

    This view was not being upheld by CEAA in decisions in the environmental assessment of Canada's first diamond mine in the Barren Lands—the BHP mine as proposed in 1996—and as a result, World Wildlife Fund initiated court action. In 1996, this action lead to a letter from CEAA, which recognized the importance of specifically referring to protected areas and potential protected areas in environmental assessment. This commitment, too, has not yet been fulfilled.

    So we fast forward to today, to some major, real-life, regional examples of what this means on the ground and what it can mean if CEAA embraces these principles and this approach in commitment. In my area of focus, the Mackenzie Valley natural gas pipeline, in addition to western Arctic natural gas developments, is a golden opportunity to showcase exactly what this means by way of Canada's commitment. After Canada's largest-ever royal commission 25 years ago, Mr. Justice Thomas Berger recommended not to proceed with a pipeline until aboriginal land claims were settled and adequate planning had been completed for all northern conservation areas—read, “protected areas”.

    The last map, which is appendix 5 in the handout, presents my last point, really. It's a very simple map of Alaska, the Yukon, and the Northwest Territories. It shows the distribution, as of a couple of months ago, of existing protected areas and the proposed Mackenzie Valley pipeline. You can see that, in Alaska, there's a reasonably good spread of green over the landscape. This is essentially a network of protected areas that provide all these functions that were envisaged in 1992 when the Canadian tri-council commitment was made to balance industrial development. In Alaska, it includes networks of protected areas adjacent to the existing Alaskan oil pipeline.

    In stark contrast is the situation in northwestern Canada. Essentially, the map is blank. There are no protected areas where there are guarantees of protection of cultural and natural values.

    I will leave it there. I would just thank you again. I believe that, through Bill C-19, the environmental assessment process can actually help to deliver on this federal commitment in a very significant way.

    Mr. Joshua Laughren (Director, Marine Conservation, World Wildlife Fund Canada): [Editor's Note: Technical difficulty] —is somewhat where we are, we have a federal commitment to protected areas, and we also have a commitment by the Canadian Environmental Assessment Agency to consider protected areas within environmental assessments, neither of which we've actually come to completion on.

    As Pete mentioned, we're about one-third of the way there on land, and we are basically just getting underway on marine. Appendix 2 presents a fairly complicated map, but the key to it is that the red areas, which take up a huge chunk of Canada, have little or no protected areas in place. I'm going to show that there is a cost to this inaction.

    The map in appendix 3 is a map of Nova Scotia. I think everyone is familiar with offshore developments in Nova Scotia. The map shows the amount of dispositions that have been given away, mostly within the last five years. Over 6 million hectares of area have been leased out to oil and gas development, while there are currently zero—not one—protected areas off the Scotian Shelf area. On the map, you can see a break in the big stream of leases. That break is a candidate protected area called the Gully.

    The point of this is that we are losing options for our network of protected areas. It's not just a matter of being late in fulfilling our commitments; we are losing our chance to fulfill those commitments. Since CEAA is about sustainable development, and therefore about protection and development, we feel CEAA has a role to play in making sure that we do meet our commitments.

    The fact is that we're overdue on completing a representative network, and this has lead WWF to come up with what we call the conservation first principle. Essentially, large-scale developments should only go ahead once a representative network of protected areas has been identified in the natural region in which those developments are being proposed. In the first recommendations that we've made for amendments, to sections 2 and 16, that’s why we recommend that you make sure the definition of “environmental effect” in section 2 be changed to include the potential to complete a representative network of protected areas. This simply embeds the commitment we already have from the Environmental Assessment Agency. It isn't anything new; it's simply embedding an existing commitment.

    The second point that I think we need to consider is the effect of new developments on existing protected areas. Again, appendix 3 shows this quite clearly. The Gully is sitting there offshore, lonely and completely surrounded by offshore oil and gas developments. Knowing something of the currents in the area, the water movements, and the water masses—juvenile fish and such—I know very well how easily those offshore developments can affect the Gully. To me, it only makes sense that when those projects go ahead, the environmental assessments should take into account that there's a world-class, internationally recognized biological treasure there called the Gully. And we've come across this before. It isn't anything new if we look at, for example, the Cheviot coal mine. But it's even more crucial in the marine environment because of the fluid nature of the water. We have therefore added a recommendation on section 48, so that environmental assessments specifically take into account existing protected areas and give some powers to the parks minister to make sure that's done.

    We're really coming in on two very specific points. One is embedding into legislation the commitments we already have in order to make sure they're actually acted upon, and to make sure new developments take into consideration not only existing protected areas, but also our ability to fulfill national and international commitments on a network of protected areas. We hope this will be seen as a friendly amendment, as it's only recognizing commitments that have already been made.

    I think I've gone on long enough. We're trying to keep it as focused as we can.

    Thank you for the chance to come forward today. We'd be happy to answer any of your questions.

¿  (0930)  

    The Vice-Chair (Mr. Bob Mills): Thank you very much. We will come to questions afterwards.

    Mr. William Borland will go next.

    Mr. William J. Borland (Director, Environmental Affairs, J.D. Irving Ltd., New Brunswick Environmental Industy Association): Good morning, Mr. Chairman and members of the Standing Committee on Environment and Sustainable Development. My name is Bill Borland. I'm the director of Environmental Affairs for J.D. Irving Ltd., in Saint John, New Brunswick. In speaking to you this morning, I'm doing so on behalf of the New Brunswick Environment Industry Association, a non-profit association dedicated to promoting the growth of environmental business in New Brunswick.

    Founded in 1994, the NBEIA represents members from all facets of the environmental sector, ranging from technology development and manufacturing to consulting, engineering, financial, and legal services. As such, many of its members, directly or indirectly, are practitioners in the environmental assessment process, and are therefore potentially affected by changes to the Canadian Environmental Assessment Act.

    The risk one faces in meeting with you at this point in your deliberations is that it's very difficult to say something original. However, we have followed what others have said, and we thought it was important to be here to at least show support for things you've already heard. In that regard, I will be very brief.

    We have followed with great interest the progress of the five-year review, from the discussion paper for public consultation to the report of the Minister of the Environment to the Parliament of Canada on the review of the Canadian Environmental Assessment Act. We fully support the three challenges presented in the discussion paper: making the process more predictable, consistent and timely; improving the quality of environmental assessments; and strengthening opportunities for public participation. These are certainly seen as the directions to be taken to produce a more useable piece of legislation in dealing with environmental assessment. We are very supportive of the recommendations that emerged from the report to the Minister of the Environment from the Regulatory Advisory Committee, and we're pleased to see that most were accepted by CEAA and incorporated into Bill C-19.

    When you're given an opportunity to comment on a piece of legislation such as Bill C-19, we feel it's very important that you don't just point out those areas in which there's disagreement, but that you also the time to acknowledge those areas in which positive action has been taken and progress has been made. What we find is that, quite often, you come in and complain about the first three things and don't mention the last seven, and when you see the final version, they've changed the three and taken out the seven you really liked. So I think it's important to say there are some good things there, and to ask you to please leave them there.

    In the minister's report to Parliament, Strengthening Environmental Assessment for Canadians, the minister has taken the three challenges initially raised in the discussion paper and turned them into goals for the new CEAA. If I may, I'll comment on these three goals, starting with the second and third goals and finishing my presentation with some discussion on the first goal.

    There is absolutely no question that after five years of working with CEAA, high-quality environmental assessments will contribute to better decision making in support of sustainable development. We agree with and wholly support the proposed initiatives of this goal. Improving compliance with the act through a quality assurance program will ensure high-quality environmental assessments. Strengthening the role of follow-up will lead to accountability and will ensure that environmental protection measures are in place throughout the entire project. Improving the consideration of cumulative effects, though a potentially difficult task to complete, is an issue that must be addressed.

    As for more meaningful public participation, it's clear that providing more timely access to information, strengthening the incorporation of aboriginal perspectives, and expanding the opportunities for public participation will have a great impact on completing this goal.

    In regard to a certain, predictable, and timely process, this has to be one of the toughest things we've had to deal with from the point of view of a practitioner and from the point of view of a project proponent. There's no question that a major problem in the past with EARP—the Environmental Assessment Review Process—and with the old CEAA was the uncertainty associated with the process. It was a process that was very unpredictable and unnecessarily time-consuming.

¿  (0935)  

    My own experience with the federal assessment process has seen development options overlooked to avoid federal land and avoid federal funding in order to avoid a federal assessment process. This has been done because the process was seen as open-ended, seen as a black hole. Once you got into it, you were never quite sure when or whether you'd ever get out. From the point of view of trying to budget a project, and from the point of view of looking at an economic window of opportunity, CEAA has the potential to be a disaster. In each case that I have dealt with, an environmentally acceptable alternative was chosen, but I might question whether the best environmental option was chosen. The proposed legislation will make some great improvements in this area, but we believe it stops short of making the process truly predictable and timely.

    Most of the recommendations of the Regulatory Advisory Committee were accepted by CEAA and were incorporated into Bill C-19. However, we believe one very important and effective recommendation has been overlooked. A scope determination step is necessary within the process in order to add certainty for both the project proponent and the public about what will ultimately be expected in a comprehensive study. Without this step, the process is still too open-ended and continues to resemble a black hole.

    The scope of a project and the scope of an assessment must be laid out so that all parties understand early in the process, after scoping, the time commitments that they have agreed to and what is to be assessed. When this has not been done in the past, dissatisfaction with the conclusions of environmental assessments has led to litigation and uncertainty in the process. This is negative for all parties and interests, as proponents are delayed, stakeholders are disappointed, and regulatory authorities are frustrated. Without this step, we continue in a “figure it out as we go along” process, which is a waste both of time and assessment dollars.

    Including the requirement for a scoped determination step will do much to improve the certainty of process and satisfaction of participants in environmental assessment. This will hopefully move interested parties away from litigation and toward participation in environmental assessment.

    I compliment the department and the Regulatory Advisory Committee on the extensive work done in completing the five-year review of a very complicated and very controversial piece of legislation. The recommendations will result in a more productive and more efficient environmental assessment process, which can only lead to a better environmental climate for all Canadians.

    I hope you will consider the suggestions that we have made, and I thank you very much for your time and consideration.

¿  (0940)  

    The Vice-Chair (Mr. Bob Mills): Thank you very much.

    We will now go on to our final group, please.

    Chief Gibby Jacob (Squamish Nation, First Nations Environmental Assessment Technical Working Group of British Columbia): Good morning. My name is Chief Gibby Jacob, and my ancestral name is KáKeltn siyám. I am one of the hereditary chiefs of the Squamish Nation, a former landlord of all of Vancouver, and glad to be here.

    With me is Michelle Ellison, who has been participating in the First Nations Environmental Assessment Technical Working Group, which will be called a working group from here on in. We are here to do a presentation today on behalf of the working group, and we'd like to thank you for the opportunity to be here to do so.

    I'm also a 21-year servant of my people and one of the elected leaders of my tribe, and I'm very proud of that record. It's not too often that you see somebody surviving for longer than two years in Indian country—continuously, I just have to add.

    I am here on behalf of the working group. The working group acts as a resource body of first nations environmental assessment practices for interested first nations, first nations organizations, the B.C. Environmental Assessment Office, and other concerned agencies and organizations. One of the objectives in our terms of references is to

develop and recommend on initiatives and strategies to assist First Nations, the Environmental Assessment Office of BC and government agencies in facilitating and supporting effective First Nations environmental assessment practices.

Although representatives of the B.C. Environmental Assessment Office, the Canadian Environmental Assessment Agency, and other government agencies are members of the working group, this presentation is made on behalf of the first nations representatives on the working group only.

    I will first address a particular concern that the working group has with the wording of a proposed clause in Bill C-19, and then address the larger concerns of the working group. The working group has a particular concern with one of the only sections in Bill C-19 that recognizes an aboriginal interest in the CEAA process. This is a provision in Bill C-19 that attempts to incorporate the aboriginal perspective into the CEAA process.

    Bill C-19 specifically states that, under proposed section 16.1,

Community knowledge and aboriginal traditional knowledge may be considered in conducting an environmental assessment.

The working group is of the opinion that this does not adequately address the significant concerns that first nations have with the proper use of indigenous peoples' knowledge.

    First, the phrase “aboriginal traditional knowledge” should be changed to “indigenous knowledge”. The phrase “aboriginal traditional knowledge” suggests that the only relevant knowledge that aboriginal people have regarding environmental assessments is traditional or from the past. This is clearly not the case. Indigenous knowledge holders do not limit their knowledge only to the past.

    Second, Bill C-19 does not address the prior informed consent of the holders or communities of indigenous knowledge. Incorporating this concept into Bill C-19 would bring CEAA into line with article 8(j) of the Convention on Biological Diversity, which has been ratified by Canada. The working group constantly sees first-hand traditional knowledge being used incorrectly or inadequately, exploited, or used without the permission of first nations. While the wording of proposed section 16.1 is discretionary, the working group believes this proposed section could be better drafted to reflect this important issue for first nations. For example, it could read

Community knowledge and indigenous knowledge may, with the prior, informed consent of the community or aboriginal group holding that knowledge, be considered in conducting an environmental assessment.

    As is the case with most first nations groups, the primary concern of the working group with Bill C-19 is a lack of recognition of aboriginal rights, title, and self-government, and of the Crown's fiduciary obligations to aboriginal peoples in Canada. Bill C-19 proposes to amend the purpose section of the act to include the promotion of communications and cooperation between responsible authorities and aboriginal peoples with respect to environmental assessment. However, this does not go nearly far enough toward recognizing the common-law duty to consult that has been recognized by the courts.

¿  (0945)  

    Although we made submissions on this issue in our letter to the standing committee on October 3, 2001, we are expanding on this concern because three recent decisions from western Canadian courts have further clarified that government decisions not made in accordance with the fiduciary obligations owed to aboriginal peoples may be set aside. Bill C-19 needs to reflect these recent changes in law.

    In Taku River Tlingit First Nation et al. v. Ringstad et al., the Court of Appeal for British Columbia set aside an environmental assessment certificate for a road through Tlingit First Nation territory issued by the Minister of Environment, Lands and Parks under the B.C. Environmental Assessment Act, because the Crown had not effectively addressed the substance of the Tlingit's concerns as the project committee tabled an environmental assessment.

    In Haida Nation v. British Columbia (Minister of Forests), the Court of Appeal for B.C. followed the decision in Taku and granted a declaration that the Crown and the forest company Weyerhaeuser had a duty to consult with the Haida Nation in good faith and to endeavour to seek workable accommodations between the aboriginal interests of the Haida people on the one hand, and the short- and long-term objectives of the Crown and Weyerhaeuser to manage tree farm licences within Haida territory in the public interest on the other. The court stated that the duty to consult extended to the cultural interests and economic interests of the Haida people.

    In Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), the Federal Court Trial Division in Alberta quashed a ministerial permit, granted after an environmental assessment under CEAA, for a road through Wood Buffalo National Park, because of a lack of inadequate consultation with the Mikisew people even though the Mikisew did participate in a regular public consultation process.

    These decisions clarify better than ever the content of the duty of the Crown to consult with first nations regarding their concerns with respect to government, land, and water use decisions. In particular, these cases say the duty to consult regarding potential infringements of section 35 aboriginal rights is a legally enforceable duty that arises before those rights have been proven in court or confirmed in a treaty—and that comes out of the Taku and Haida rulings. At the least, meaningful consultation requires that government decision-makers must accommodate aboriginal interests by consulting in good faith, with a genuine intention of incorporating the concerns of aboriginal peoples into the decision-making process—and that also comes out of the Haida and Taku decisions. Consulting aboriginal groups with the general public in a public consultation process is not sufficient. A separate section 35 consultation with aboriginal groups that is “a distinct process, if not a more extensive one” is required—and that comes from Mikisew. Consultation is required in order for the government to determine what a fair offer of compensation may be for a potential infringement of an aboriginal right—and that’s again from the Mikisew decision.

    Basically, aboriginal groups in Canada have a substantive say in whether or not a project goes ahead under the CEAA. Our say is greater than that of the general public because of the fiduciary relationship between the Crown and aboriginal people, and because our aboriginal rights are protected by section 35 of the Constitution. In order for the government to meet it fiduciary obligations when deciding if a project may proceed under CEAA, it needs to have satisfied itself that the concerns of aboriginal groups whose aboriginal rights may be impacted by a project have been met through a distinct process. This makes sense.

    Aboriginal peoples may have concerns that are outside of the definition of “environmental effect” under the CEAA, such as compensation for infringement of aboriginal rights. These and other concerns unique to aboriginal people must be addressed through a section 35 consultation.

¿  (0950)  

    I know what you are thinking. You are thinking that we cannot have such duplication. We recognize that no one wants inefficient systems. The working group recommends that the Canadian Environmental Assessment Agency consider implementing a policy similar to the harmonization agreements between the federal and provincial governments in order to avoid duplicating processes. This type of process would better recognize that consultations with first nations are government-to-government consultations.

    In conclusion, the above changes in the law since Bill C-19 was first tabled mean you have to go back to the drawing board. These decisions—Haida, Taku, and Mikisew—confirm that decisions made under CEAA, as amended by Bill C-19, would likely be challenged by first nations groups for unjustifiable infringement on aboriginal rights, or by aboriginal groups across the country because of a lack of consultation. If successful, these decisions would likely be void. The working group believes, and thinks you will agree, that such uncertainty in environmental processes is undesirable for all Canadians.

    Just prior to my final conclusion, I would just like to say I'm here on behalf of Lyle Leo, who had a untimely death in his family. Unfortunately, his nephew was taken very early in his life, so I am here in Mr. Leo’s stead and will respond as best I can. But since Michelle is here and has been consistently working with the technical working group, we will both attempt to respond to any questions sent our way.

    I thank you for this opportunity.

    The Vice-Chair (Mr. Bob Mills): Thank you very much, witnesses. We'll now go through a process of questions. I'd ask you to keep your answers as brief as possible, so that we can get the maximum number of questions in.

    We'll start with Mr. Bailey.

    Mr. Roy Bailey (Souris—Moose Mountain, Canadian Alliance): Thank you, Mr. Chair.

    I'd like to thank all of you for coming. You've brought us up to date, or you've at least brought me up to date.

    This is not easy. The term “environment” has taken on a brand new meaning today, even compared to what it meant ten years ago. I think all of you people would agree with that.

    I happen to live in an area where they put in two small dams. I got tired of listening to the environment process being conducted five, six, seven, or eight times. The dams are there now. All of the opposition, which was very high on the scale, is all gone, and everybody thinks the dams are great.

    Mr. Townsend, in your report, did I draw that you were making inferences that you were having considerable problems with the position now taken by the B.C. government?

¿  (0955)  

    Mr. Neil Townsend: Are you referring to the— [Editor's Note: Technical difficulty]

    Mr. Roy Bailey: Yes.

    Mr. Neil Townsend: Yes, there were indeed a fair number of issues in terms of the process that went along between the B.C. environmental assessment process and the federal process in regard to the Taku River. We actually avoided making too many direct comments on that particular case during our submission because it has been appealed to the federal Supreme Court, and we wanted to point that out this time.

    Mr. Roy Bailey: This drives me to a question on which anyone might want to make a comment. We have the federal government and the provincial governments all having an investment code, you might say, along with what Chief Jacob has spoken about just recently in reference to first nations or aboriginals. Is it possible that all three of these groups could ever sing from the same song sheet and be in tune? I'm wondering if that indeed is possible without months and months of confrontation over what would constitute a safe environmental project. I'd like anyone to answer that.

    Mr. Neil Townsend: Maybe I'll just say something briefly, because I'm sure Chief Jacob, who referred to that in his presentation, has something to add.

    We believe it is indeed necessary to have this federal net as a fallback in order to ensure that a baseline standard is implemented. So, indeed, harmonization of the process is beneficial to all participants for a quick and speedy process that does cover all of the necessary aspects of environmental assessment. But at the end of the day, be they in the province of B.C. or elsewhere, where the standards are not meeting or beating the federal requirements, we believe it is important that there is this fallback net to ensure that a certain quality of environmental assessment takes place. Of course, we would advocate for a harmonized and smooth process wherever possible.

    Chief Gibby Jacob: From my perspective, anything's possible. Whether it’s likely is another question. When we start looking at all of the different interests, I can only speak for my traditional territory. We have roughly 2 million people within our traditional territory, and with all of the special interests that were being proposed—and I think you mentioned a couple of them yourself—probably everybody who had anything to say came out of the woodwork and made their statements.

    Looking at what we were talking about, a government-to-government relationship in this process is probably what we should be looking at. With the environmental groups, we have had some common issues that we've worked on together over the last several years, but it has been on a case-by-case basis and we certainly—

    Mr. Roy Bailey: Thank you.

    In conjunction with that, the two big things that are in the news today in regard to the environment deal with the potential of the pipelines coming from the north to the south. How long would you…if these maps show proposed routes and so on, would it not take years before one of these pipelines becomes a reality if you go through the process of all the various group studies? Maybe Mr. Ewins can answer this.

    Mr. Peter Ewins: For any megaproject to be done properly, it takes a substantial amount of time. I think the estimate is about four years for the total assessment regulation period under the Mackenzie coordinated review panel as it stands. We certainly support that, and we think a thorough job can be done by integrating the work of the eleven to seventeen different organizations and agencies, including CEAA.

    There’s a key point that I'd like to make in relation to that development or any other. The majority of these time-consuming, expensive, costly, ridiculous, political, avoidable problems that we get case by case, can be circumvented by having a systems planning approach in place, with all stakeholders at the table before you get to these problems. There is no shortage of examples, even in Canada, of where this has been done effectively. Ontario's Lands for Life process is one, the Manitoba mining accord is another, and the Muskwa-Kechika partnership in northeastern B.C. is a third. All of those things are customized to regional situations.

    In the Mackenzie situation, the creation of a roundtable vision for sustainable development is possible so that first nations and other interests, including government, economic, cultural, and environmental values, can be accommodated. It's not rocket science. It just needs people to commit to a broad regional vision and to assign the certainty to tenure and access. In a spatial sense, where is the pipeline going be? Where are the protected areas going to be? Where are the spiritual and cultural areas, and how are they going to be protected? Answer those before you get into the reactive approach of dealing with another road development, another airstrip, and another mine that flows from all that.

    So we know how to do it, but we need commitment, leadership, and a round table in the true sense, with all levels of government at the table, along with industry, the general public, and interest groups, to achieve that.

À  (1000)  

    The Vice-Chair (Mr. Bob Mills): We'll come back to you in the second round, Roy.

    Mr. Bigras.

[Translation]

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

    I have several questions, and the first is addressed to Mr. Borland.

    I want to congratulate you for your brief, that clearly points out the blatant absence in this bill of any definition of a framework for assessment. Basically, we do not know what the scope or the timeline of the assessment are. I think that it is an obvious error in the bill inasmuch as we want to apply the notion of sustainable development. The notion of sustainable development comprises a mix of economic development and environmental protection.

    I know that there are other projects, such as the ones at Toulnustouc, in Quebec, that were interesting, but they had no set timelines. There were long delays and the promoter was clearly frustrated. Citizens could have benefited from this economic project with a clean mode of development, but it was held up. So I thank you for that.

    You said that your members were involved in developing and producing technological tools for consultation services. You said little about the public registry. You know that there is a debate currently going on about this. We hear that the documents of this public registry should be entirely electronic and that the paper version should be abandoned. Given that your members are working in this sector of the environment industry, do you think that paper documents should be kept so that your members can do the work they need to do to meet the needs of your clientele?

À  (1005)  

[English]

    Mr. William J. Borland: The question is about electronic and paper copies. I think you have to have whatever mechanism you need to get as much information to the public as possible. Not everybody has access to electronic copy, and you can't assume everybody has access to electronic copy. Inevitably, you take your electronic version and turn it into a hard, paper copy anyway.

    As proponents, as regulators, and as administrators of the CEAA process, I think we have to bend over backward to ensure that people who need the information get it through a very timely process. It's frustrating for a proponent when you make information available to what I'll call an assessment administrator, with the intent being that the information can be reviewed by the public, only to find out a month later that the public still hasn't gotten that information. In many cases, we've taken the initiative of circumventing the process and doing our own public work to ensure that things go on in a timely fashion.

[Translation]

    Mr. Bernard Bigras: Now I would like to put a question to Mr. Ewins. A new assessment of the federal legislation on the environment should help us look into the future to try to get a glimpse of environmental assessment. This is what I believe. I would like to know what you think of the concept of strategic environmental assessment that consists in assessing projects according to traditional parameters, while also trying to understand how the project could contribute to improving the environment. I am thinking of certain hydroelectrical projects that might not be eligible according to some parameters, but that will help reduce greenhouse gases and improve biodiversity. Do you think that this bill should have given more weight to what we call strategic environmental evaluation?

[English]

    Mr. Peter Ewins: Merci beaucoup. That’s a good question.

    I am fully supportive of any attempt, including embracing the specifics of strategic environmental assessment within any federal approach, be it regulation, policy, or whatever. I'm aware of the very good 1992 cabinet directive—or maybe it was 1991—on strategic environmental assessment. That's precisely the kind of approach and rationale needed to better put in place these proactive, preventative visions, across diverging values in society. This is one of the mechanisms used elsewhere in the world.

    Just two months ago, I was in the North Sea. There, compared to Canada, the Norwegian and British governments are quite well advanced in their use of and investment in strategic environmental assessments as a major tool to avoid these kinds of conflicts in the offshore.

    So in simple answer to your question, I believe it would be extremely helpful for Bill C-19 to reflect, in very solid terms, this commitment to complete strategic environmental assessments for policies, programs, and plans originating from the federal government.

[Translation]

    Mr. Bernard Bigras: Do you feel that this concept has been included in this bill? As you read the bill, do you feel that it favours this notion?

[English]

    Mr. Peter Ewins: I think so, but I'm not familiar with all the detailed sections of that at this stage.

À  (1010)  

[Translation]

    Mr. Bernard Bigras: Mr. Jacob, I must say that I agree with your vision of a government-to-government relation between the First Nations and the federal government. This is what my question is about.

    Section 16.1, as proposed, reads as follows:

16.1 Community knowledge and Aboriginal traditional knowledge may be considered in conducting an environmental assessment.

    Do you think that this clause is consistent with what was negotiated in past treaties and conventions between aboriginal nations and the federal government?

[English]

    Chief Gibby Jacob: I can answer part of the question.

    As you most likely are aware, in B.C., we're in a new process to get involved in treaties. We're not there yet, but hopefully we'll be there one day.

    I'm just trying to collect my thoughts. Maybe you can jump in here, Michelle.

    Ms. Michelle Ellison (Member, First Nations Environmental Assessment Technical Working Group of British Columbia): Sure.

    Can I just clarify something? Is the question whether or not proposed section 16.1 is consistent with the provisions in treaties and other agreements?

[Translation]

    Mr. Bernard Bigras: Yes.

[English]

    Ms. Michelle Ellison: Based on my experience and on discussions in the working group, I think it doesn't go nearly as far as, say, a confidentiality agreement with a first nation would, either under treaty or in an environmental assessment process. A first nation would generally require a confidentiality agreement of some sort with respect to some aspects of any traditional knowledge that they provide, especially if that traditional knowledge relates to spiritual or sacred sites and issues. So it's a start.

    As Chief Jacob stated, the idea of prior informed consent definitely needs to be in the act. That is something that would be in any sort of agreement on the use of traditional knowledge, but it wouldn't be nearly as extensive as an agreement on the issue.

    The Vice-Chair (Mr. Bob Mills): Thank you.

    Mr. Reed.

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

    Mr. Borland, you used the phrase “scope determination” in terms of trying to get us away from the black hole that these assessments so often get into. Do you feel a determination process or the parameters of a scope determination process could be laid out in general terms so that all future assessments could subscribe to the basic parameters?

    Mr. William J. Borland: I think you could establish a process for doing a scope determination that would fit almost any project that came your way. Obviously, every scope determination will be different for a specific project.

    I do recognize that, just because you hand out a scope on a certain day and say that those are the issues that need to be dealt with and that they can be dealt with over a certain timeline, it doesn't leave out the possibility that a new issue can come up halfway through the process. Again, as a proponent, I'm quite willing to accept the fact that new information will come to light. We will deal with that. But there's nothing—or at least very little—in the way of scoping.

    There's nothing wrong with a federal agency looking at it and saying what the main issues are as they relate to the project you're doing, that this is the scope of the work that needs to be done, and to go ahead and do it. If they then come back and say they've found a new one, that’s fine. But when they're coming back every day saying they've found five more new ones, that shows some work needs done at the beginning just to let things flow and to add some certainty.

    And it's not just a problem with the proponents. I think environmental groups have expectations of what an EIA is going to produce, and there have also been some disappointments in that regard that have led to litigation.

    So in answer to your question, yes, I think it's easy enough to set up a process for putting in a scope determination at the beginning of any study.

    Mr. Julian Reed: I've always had a concern here. In listening to and sitting through many of these sessions, I also know a concern has been expressed about changes in the regulatory process that take place in midstream. Sometimes those changes have caused a proponent, for instance, to have to go back to the drawing board and start from the beginning again. Do you have some thoughts on that? You've obviously given a lot of thought to it.

À  (1015)  

    Mr. William J. Borland: There are two issues there. First, if the process weren't so long, we wouldn't have time to change the rules halfway through the stream. And second, new rules don't come in overnight. If you're in the middle of a two-year environmental process, it’s understood that new regulations are coming into play somewhere along the line. A new regulation might come into force before the end of the EIA process. There is nothing wrong with that being put on the table or with being told you're not going to have to meet the limits that were in force when you started the process it, you're going to have to meet those at the end.

    In many cases, you're not looking at what the regulatory limits are going to be while saying that's what you're going at. I can't speak for most proponents, but speaking for ourselves, where do we want to be five to ten years from now? It's foolish to spend capital dollars on a program that's only going to meet today's limitations and not further ones.

    So I think that can be worked into the process. Somebody sitting at the table should know there's a pending piece of legislation with a pending change of a regulatory limit. Put it on the table and allow proponents to prepare for that.

    Mr. Julian Reed: I'm thinking of something I have some personal knowledge of. A proponent began a project and went through the approvals process. Some of the regulations were then changed eighteen months later, negating approvals that had already been granted. The proponent then had to go back and begin the process all over again.

    I've always had this little fetish about the idea that, when a project proposal is started, the regulatory process up to that point should be in place. A proponent then understands the rules, if you like, when they go in. If the rules are changed or if the regulations are changed once you get into them, it seems to me that they should apply to the next guy.

    Mr. William J. Borland: I know grandfathering is a difficult process to put in, but that's one option. I would say the other option would be a little more open communication during that eighteen-month period. If a new law came in during that time period, it didn't come in overnight. Somebody knew about it. But I suppose a good proponent—I'll put the onus back on the proponent—would also ask the question about what new legislation is pending and could impact on what they're doing. So I think it's a two-way street, and I'm not opposed to grandfathering.

    Mr. Julian Reed: Thank you.

    Thank you, Mr. Chair.

    The Vice-Chair (Mr. Bob Mills): Madam Scherrer.

[Translation]

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

    My questions are in the same vein as those that were put about the framework and timeline of the assessment. You did answer the questions well, but I would like to have a few more details. You explained that assessment needs very precise criteria and if promoters and the public at large were aware of these criteria, the Environmental Assessment Act would be easier to apply and there would no longer be any black hole to speak of.

    Now, there are criteria for assessment. In your opinion, should these criteria be the same for all projects? We have heard about certain projects. I think that Mr. Mills mentioned a project for a bridge that might have cast a shadow on some part of a river, and disturbed the fish. We see that for some projects, the framework is bypassed, whereas for other projects the framework is very strictly observed. It seems that this is sometimes left up to the promoter's discretion, depending on how much influence he has in the region.

    By a framework for assessment, do you mean a rigid framework? Should all the relevant items be listed and should there be a timeline, or a deadline? Or would you rather see a framework with criteria that could be modified to adapt to different projects? Should the criteria change according to the scope of the project and according to whether or not it is located on Aboriginal land, or should this bill provide for 20 relevant criteria within a very rigid framework?

À  (1020)  

[English]

    Mr. William J. Borland: You're right. When you start looking at the scope of a project, it can grow. If you don't stop that growth, it'll just keep growing until we're looking at British Columbia projects while looking at the impacts in Prince Edward Island—although that example is perhaps a little extreme.

    I think you can put criteria down, and I think they come into the cumulative effects issues. How far do they go? I guess the classic example is somebody wanting to build a bridge across a stream and needing a permit to do it. The bridge is going in, so you have an access road now, and the road becomes part of it. The road was built in order to get access to the forest. The forest therefore comes into it, and now the assessment includes a review and assessment of forest management practices in order to build a bridge across a stream.

    At this point I'm not even going to say whether that was right or whether it was wrong, but there has to be a line drawn. And that can be general for any type of project, whether it's a stream crossing, a building, a coastal development, or whatever. There has to be some scoping, and someone has to determine how far that scoping will go.

    Do I have a good answer for that? No, because I think you really have to look at it on a project-by-project basis. Some projects need more scoping. But I think you're looking at what I'll call ecologically sensitive areas that are being impacted, and that are being directly impacted. If you start getting into indirect impacts or implied impacts, etc., it will go on forever. The timeline will go on forever and the process will go on forever, and I don't think either the proponent or the public will get the answers they're looking for.

[Translation]

    Ms. Hélène Scherrer: Everyone agrees that the absence of criteria is a problem. However, with a very rigid framework, the problem is much worse because sooner or later, neither the territory, the timeline nor the criteria will be suitable. Sometimes you have to have some leeway. Would flexible criteria suit everyone, or would some still say that there is too much leeway? If the criteria are too rigid, people will not be able to figure them out.

    I am trying to find a way to strike a happy medium. Are you intending to make a list of criteria?

[English]

    Mr. William J. Borland: Yes, it can be done. It cannot be so strict, though. There has to be some flexibility, because every project is different. There has to be some latitude to say that this goes beyond the line established when the criteria were set.

    I believe the general criteria can be set, and that they can be set in black and white. But there also has to be a clause in there that allows for some flexibility and provides for some latitude for the people who are doing the scope determination to say it is reasonable to go a little further. It takes time when you do that, because there will be conflict at the table and it will take time to get a consensus at the table. But you can set off with a set of scope-determining criteria. They're in most EIA legislation packages now, so the quick answer is, yes, it can be done.

[Translation]

    Ms. Hélène Scherrer: You say that the terms “aboriginal traditional knowledge” should be replaced by “indigenous traditional knowledge”. Could you explain to me the subtle difference that exists between “aboriginal” and “indigenous”?

[English]

    Chief Gibby Jacob: From my perspective, the word “indigenous” is used throughout the world. It's just a matter of keeping constant the positions that have been put forward in what Canada has agreed to. That’s the main the function of that.

À  (1025)  

    Ms. Michelle Ellison: I can add that “indigenous” is the word used in international agreements, covenants, and things like that. In Canada, “aboriginal” is used mainly because it's the word used in the Constitution. In a lot of common-law countries like Australia and Malaysia, though, they do refer to “aboriginals”.

    The Vice-Chair (Mr. Bob Mills): Thank you.

    Ms. Redman.

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

    I'd like to congratulate the WWF for dealing a body blow to others who would have used “WWF”. You've championed in your cause.

    Voices: Oh, oh!

    Mrs. Karen Redman: During your presentation, you mentioned commitment a few times. I understand that the agency's commitment with respect to protected areas has been to revise the guidance material, and not to revise the legislation. I believe Robert Connelly wrote to your president, Monte Hummel, on November 26, reiterating that commitment.

    By adding the reference to protected areas to the definition of “environmental effect”, does this not create a risk of inadvertently excluding consideration of other important factors?

    Mr. Peter Ewins: I don't think so. I think the reference we're proposing is very focused on protected and potentially protected areas in relation to that tri-council commitment ultimately, and not to the exclusion of many other aspects of a significant environmental effect. It’s to try to make this one, single point very clearly: that there is a gap between where Canada needs to be and where we are right now, founded in the commitments that have already been made and agreed to. I don't think there are any doubters or people who have changed their minds about the rationale behind this approach.

    In the wording here, I don't think we intend or suggest that there should be any omission. This is just one fundamental part that is missing. Building on the commitment that Bob Connelly at CEAA has made, and on subsequent discussions with him, we think this intent will be well served by two things. The first is production of a revised edition of The Responsible Authority’s Guide that includes a reference to completing the protected and potentially protected area system, and particularly to the impact of a development on the options to do that. The second is by enshrining some reference point—not some sort of obligatory requirement, but just a hook for this issue to be addressed in Bill C-19, in these two particular sections.

    Mr. Joshua Laughren: If I may, I'd point to Mr. Borland's good comments. It's not clear how adding one criterion to an already existing list of criteria will exclude anything else from being considered, but it addresses Mr. Borland's point. Even if we do set up criteria like protected areas, that doesn't preclude us—or it certainly shouldn't preclude us—from being able to look, case by case, at other issues that may come up. That flexibility has been and should continue to be there.

    Mrs. Karen Redman: Chief Jacob, it's impressive that the working group was able to bring a variety of views together at one round table in British Columbia. We see first nation and federal and provincial government views coming together on the environmental assessment issues.

    The minister has committed that the agency will establish an aboriginal advisory committee in the act. This is based on the experience and input during the five-year review. What's your view or Ms. Ellison's view on this aspect of the proposed recommendations?

    Ms. Michelle Ellison: We did address the aboriginal advisory committee in our letter to the standing committee on October 3, if you want to refer to that further. Our views were, of course, that involving first nations in the process would be important, vital, and necessary, in order to incorporate the aboriginal perspective into the CEAA process.

    I think the one thing we put in our letter was that we wouldn't mind seeing right in the legislation that provision about an aboriginal advisory committee being formed. We felt that hardly any of the concerns of first nations were addressed directly in the legislation, but rather in the minister's report. It was suggested that the aboriginal issues would be addressed by this committee, and given that this is the only means by which the act or the bill was planning to incorporate a lot of the aboriginal issues, we thought that should be incorporated right into the legislation.

    Perhaps a provision could also be added to section 58, the power of the minister to enact guidelines. We thought that perhaps a subsection or subparagraph there could state that guidelines for incorporating meaningful consultation into the process would be appropriate, with the aboriginal advisory committee advising on that.

À  (1030)  

    Chief Gibby Jacob: If I might just add something, this technical working group was really put together to try to accomplish a specific task. First nations in the very remote areas of the province of British Columbia don't have the capacity to deal with the kinds of issues raised in the environmental assessment process. Therefore, this group was mainly put together to assemble a tool kit to provide the first nations with the ability to go from A to Z in the process, and to have tools laid out so that they would be available along the way to guide them through that process.

    It comes down to capacity and funding. When we're looking at the availability of funding for first nations, it's very minimal at best. A lot of first nations are dependent almost entirely upon federal government grants to run their programs.

    I've been around for 21 years. I've never seen the government provide any funding for first nations to really participate in a process as comprehensive as the CEAA process or the British Columbia version of the process. When you're looking at discretionary dollars, those are all spoken for. When you're looking at non-discretionary things such as social development, you can't touch those things anyway.

    So this is what this group was mainly put together to accomplish: to try to mitigate the complexity and provide the wherewithal for first nations to move forward in these processes.

    The Vice-Chair (Mr. Bob Mills): Thank you.

    Mr. Tonks.

    Mr. Alan Tonks (York South--Weston, Lib.): Thank you, Mr. Chairman. I'd like to thank our witnesses for their deputations.

    I wish to pursue this whole notion of scoping a little further. You can see that it has obviously touched a couple of sensitive points. I think everyone who has gone through long and arduous EIAs would agree that if you could scope, if you could be more tactical, if you will—or maybe it's strategic—you might avoid a long hearing that gets into all kinds of costs and so on. However, is it reasonable?

    I'd like to hear from you, Joshua, because I think you mentioned the implications with respect to the Gully, and the requirement to do regional studies in order to protect for the implications of a deep fishing project or whatever.

    David, at the beginning of your presentation, I think you also related some of the issues with respect to cumulative effects. Are these two issues compatible with a scoping process? Would it be fruitful to try to concentrate on a scoping process that would satisfy the kinds of concerns you have put forward? Or are we just whistling in the wind? Would we have to find other ways—possibly during the comprehensive portion of a glass screen or whatever—to make more intervener funds available and to focus on the issues more? From your perspective, are we just whistling in the wind if we try to look at that scoping issue?

    Mr. Joshua Laughren: I'll take a first look at that.

    I don't think it's whistling in the wind or not worth the while. We should recognize that this is about land use planning and enabling good decisions. A whole number of pieces have to come together for that, both in terms of the offshore—the Oceans Act—in integrated management—the Fisheries Act—and strategic environmental assessments. That then goes from land-use planning at a government level, to project-specific environmental assessments, to working relationships on the project-by-project level with the proponents and with local stakeholders. Each of those has to come together for good decisions to be made upon the ground. I think CEAA and Bill C-19 can help to enable those decisions. On their own, they clearly don't answer the problem, though. They're some of the specific tools in a whole series of tools that have to come into play for good land-use decisions to happen.

    Does that get to your point?

À  (1035)  

    Mr. Alan Tonks: Yes.

    Mr. Joshua Laughren: I do think it is worthwhile, but it should be seen as part of it.

    Mr. David MacKinnon: I would agree with what Josh said. Addressing specifically the region that we represent, we're dealing with a series of essentially pristine watersheds. Almost any project involves a sort of corridor going in, so it is going to inevitably result in a number of other impacts down the road.

    To specifically address the question, I don't think we're whistling in the wind by trying to deal with this in terms of scoping. With reference to our submission, I think it's very important to incorporate into the study any documents that have been developed that look at a regional level or at a territorial level, and that they be an active part of any assessment.

    Inevitably, a more comprehensive study would do the best service to the land area that we're dealing with, and to that type of region. But a number of existing processes can also feed a scoping document. For example, in the case of the Taku River drainage, the Taku River Tlingit have their own land-use planning process that has been going on for years. That sort of information can be brought into this process. The treaty process in British Columbia also looks at things on more of a regional level, and that information can be brought in too. I think there is a basis for incorporating that information into a scoping assessment.

    Mr. Alan Tonks: Do I have time for one more? Yes?

    Chief Jacob, with respect to CEAA and your experience thus far, you've made quite a case for the federal government meeting its fiduciary responsibilities under section 35 of the Constitution, and you've cited court cases. It’s possible that you've answered this before, but what has been your experience in terms of the continuation of environmental assessments, in terms of your funding capability, and in terms of your knowledge capability? And I'm not referring to traditional knowledge, just to the tools that you're given by the federal government to meet that fiduciary responsibility.

    When you talk about fiduciary responsibility, are you talking about the fiduciary responsibility of the federal government, or are you talking about you having the right and the fiduciary responsibility? There's a bit of a difference there. I think it's a shared relationship, but it's a matter of delegated authorities. I know this gets into treaty issues a little bit, but I guess the main thrust of my question is whether or not you have the financial tools and the capacity to participate fully in these environmental assessments.

    Chief Gibby Jacob: For anybody who knows anything about our nation, we're classified as one of the rich tribes. We generate significant income from our land dealings. But even with the kinds of resources we have, we probably wouldn't be able to sustain a continuous expenditure in regard to this kind of process.

    We've been involved in the B.C. environmental assessment process, but we've utilized provincial funding to participate in it. That’s mainly because every dollar we bring in is put back out to our members for services. As probably all of you are aware, there's just not enough money to go around for everybody, and we're certainly still in the same boat as everybody else.

    I'm proud to say we employ 350 employees within our nation, and probably 99% are our own people, so everything goes back into our membership. To withdraw services in order to participate in those kinds of processes would be a difficult task when we have over 900 on the waiting list for houses. That would take a huge effort on our part to try to accommodate a basic need for our people.

    So to answer that one, certainly a fiduciary duty…that’s a tough question, and it's something I'm sure all first nations are struggling with. As developers of our own lands, and even as proponents in our own developments, we have to ensure that we meet the test of a fiduciary responsibility to our membership. We go to great lengths to participate at that level. We like to consider everything we do as being transparent. We have a communications process that's probably second to none, especially in our province, for our membership. At one time they said we didn't give them enough information, and now they're saying to please stop and not to give them any more. We like to believe we are as transparent and as open as possible with our people. If they feel we're going wrong, then we like to respond to that.

    We've been more involved in the provincial process for some rather large projects, and we've not used our own funds. We've had to bring in environmental companies to do the work for us, because we don't have the in-house capabilities yet. And I'm saying “yet” because we have a huge population of young people who are looking for things to do. They're asking what we're going to need from them once our nation sets a direction, so someday we'll have all of those people.

À  (1040)  

    The Vice-Chair (Mr. Bob Mills): I'd like to welcome Mr. Caccia, our normal chair. I think he's here just to see if the vice-chair can do the job, but he’s next on our list.

    Mr. Charles Caccia (Davenport, Lib.): Thank you very much. I'll be brief.

    At the bottom of page 4 of their brief, Mr. Chairman, WWF makes a reference to a December 1996 letter from CEAA. They say the agency agreed to include a section to specifically reference protected areas and potentially protected areas, in a revised version of The Responsible Authority’s Guide, but that this commitment has not yet been fulfilled. Could they indicate to us why?

    Mr. Peter Ewins: Before you came in, we tackled this point through Karen Redman's question, but my understanding is that it's just a question of priorities at the agency and that the intent is there. The last time I asked, about six months ago, they were promising that they would start this process soon. Like all good things, I assume it will take considerable time to complete the process, but I made it clear that we're not satisfied with the answer that there have been other priorities. That’s because we actually believe the proponents are the ones who need top-quality, up-to-date information to guide them in terms of scope and guidance material in order for them to file these applications and complete the exercise.

    Mr. Charles Caccia: Was a timeframe given to you?

    Mr. Peter Ewins: Not at the time, no. According to our president, who was involved in these direct phone discussions, apparently the sense was that this was a priority. With court action being discussed at the time, this clearly was a major issue for the agency. But it died in its vitality in 1997, clearly. Since then, none of our pressure has been successful in bumping this up the priority scale.

    Mr. Charles Caccia: So is it fair to conclude, as you seem to, that this is still a priority after six years, but that one has to have patience, as we do with the movement of glaciers?

À  (1045)  

    Mr. Peter Ewins: I would agree, yes.

    Mr. Charles Caccia: When do you expect this matter to be concluded?

    Mr. Peter Ewins: I'll just get my crystal ball out.

    Voices: Oh, oh!

    Mr. Peter Ewins:I expect it to be concluded tomorrow, but whether that's a realistic expectation—

    Mr. Charles Caccia: On page 4 of your brief as well, you urge a fundamental principle, the one of sustainable development, and you outline it in bold print. Where do you think this amendment could be made in Bill C-19?

    Mr. Peter Ewins: We're not proposing that this bold print form part of an amendment to Bill C-19. Our understanding is that this isn't an appropriate forum for embedding a core principle like this. This would be a guiding principle. It could be in preambular sections or other material like guidance materials. But we've decided that perhaps the friendliest amendments that would precipitate the discussion about this issue are those proposed for sections 2 and 16 of CEAA.

    Mr. Charles Caccia: Moving on quickly to the consultation process, is it your conclusion that the key items raised in the consultation process have been incorporated in Bill C-19?

    Mr. Peter Ewins: I'm afraid I can't answer that one specifically, but I think so.

    Josh, do you have a better sense?

    Mr. Joshua Laughren: No.

    Mr. Charles Caccia: Would anyone else wish to comment on that question?

    Mr. William J. Borland: I'll comment on that.

    One of the points that we made was that much of the work in the consultations, specifically with RAC, were included, with the exception of the scope determination. It just seems funny that so many of the recommendations were included and that one was left out. We feel it's absolutely vital that this type of a process be included in an efficient meeting process.

    Mr. Charles Caccia: Can you offer an explanation as to why?

    Mr. William J. Borland: Why it wasn't? No, I don't have an explanation.

    Mr. Charles Caccia: Finally, very briefly to the alliance, you make a reference on page 5 to the Tulsequah Chief mine and road project in B.C., and you indicate that the federal government has clearly deferred to the provincial review process. Could you tell us how and why?

    Mr. David MacKinnon: Essentially, our experience of the review on the Tulsequah Chief was that the province took a lead in the process and was working very diligently to indicate that any adverse effects from the project would be mitigated. We found that the federal participants, the federally responsible authorities, were not advocating as much as they should have been for the areas of federal responsibility. I think that has come to light recently, in that there was an initial position from the federal representatives that they did not foresee any particular adverse effects from the project. That was written in a letter fairly early on. It wasn't a final decision, but it was a kind of position statement as the province was developing its own position. Now we've had a federal position put forward very recently. It came from the representative authorities in the Department of Fisheries and Oceans, and said that there are substantial concerns in a number of areas, including fish and wildlife. I think that reversal in position is indicative of how the federal government was present at the table early in the process—before it went through a number of iterations and was taken to the Supreme Court of British Columbia, and then to the Appeal Court—but not necessarily living up to its duties under a number of federal acts.

À  (1050)  

    Mr. Charles Caccia: Can you offer an explanation?

    Mr. David MacKinnon: I'd prefer to have the Department of Fisheries and Oceans and the federal representatives offer their explanation. That's something we've been pursuing fairly actively. We're trying to ascertain what happened there.

    Mr. Charles Caccia: Do I have time for one more question?

    The Vice-Chair (Mr. Bob Mills): Briefly, yes.

    Mr. Charles Caccia: Mr. Chairman, I would like to ask Mr. MacKinnon whether he participated in the consultation process. If he did, does he have any comments to offer as to whether the two items raised during the consultation process have been included in Bill C-19?

    Mr. David MacKinnon: Are you asking whether I participated in the consultation process regarding Bill C-19?

    Mr. Charles Caccia: No, the preceding one. Did you participate in the process that was launched by the agency?

    Mr. David MacKinnon: No, I did not.

    Mr. Charles Caccia: Did you, Mr. Townsend?

    Mr. Neil Townsend: We didn't participate in the process.

    Mr. Charles Caccia: Thank you, Mr. Chair.

    The Vice-Chair (Mr. Bob Mills): Just so committee members know, the health committee is coming in at eleven o'clock, so we will have to vacate the room.

    Also, for the motion that was put forward—actually, Karen Kraft Sloan asked me to put this forward on her behalf—there is no quorum today, so we won't be able to vote on it. We'll have to put it off until the next meeting. Hopefully she'll be here then, and she can then give us some more explanation on it.

    I just have a very brief question, if I might. Mr. Borland, I think you mentioned that you sometimes have to take it into your own hands to get the information out to people. I know my personal experience is that this is quite often the case, and that the public is brought in way too late in the process. If they're brought in late, you can't expect them to not come in opposing something. I think you'd probably agree with me on that, and I appreciate it that you made the point that sometimes you have to do it. You may want to comment on that.

    The other thing I want to ask is for our transboundary folks. As many of the members here know, I was involved in a project that was being proposed in the state of Washington. The Sumas River starts in Washington and runs into B.C. I don't believe you were there to deal with that issue, and I just wonder why.

    Mr. Neil Townsend: At this point in time, we specifically focus on the watersheds of northwestern British Columbia and southeastern Alaska, so we're dealing with a very limited geographical scope.

    The Vice-Chair (Mr. Bob Mills): How do you feel the International Boundary Waters Treaty... Suppose citizens in Abbotsford, for instance, wanted to proceed with that? How effective would that be? This project may well be scrapped, but just suppose it hadn't been scrapped. How successful would they be at challenging that under the transboundary treaty?

    Mr. Neil Townsend: Are you referring to the International Boundary Waters Treaty?

    The Vice-Chair (Mr. Bob Mills): Yes.

    Mr. Neil Townsend: Again, I'm not a legal expert here, but in our experience, it hasn't been particularly easy to utilize the International Boundary Waters Treaty for our concerns. In the area that we're talking about, there is no presence of the International Joint Commission, the body formed by the International Boundary Waters Treaty, to oversee these particular issues. We have been requesting or advocating—as have a number of others, including the State of Alaska—that the International Joint Commission do indeed take some sort of role in fulfilling its mandate of overseeing the International Boundary Waters Treaty in this particular area. That body does not exist, and to date we haven't seen any involvement or acknowledgement of the International Joint Commission. Therefore, on the role of that treaty in particular, we haven't seen a great ability to use it, especially for the citizens of the state of Alaska—given that this project is in B.C.—to really get involved in the process.

    The Vice-Chair (Mr. Bob Mills): When we were in Washington, some senators and congressmen implied that this was a very useful tool. Were they just saying that without it actually being fact?

    Mr. Neil Townsend: I believe it could be a useful tool. Some of the concepts are very important, indeed. And like I said, we have been advocating for the International Joint Commission to take a role here. We believe it could be a very useful tool, but it's just simply not in effect. Were it to be in effect, it could be very useful.

À  (1055)  

    The Vice-Chair (Mr. Bob Mills): Mr. Borland, I believe you were going to make a comment.

    Mr. William J. Borland: If I could make a comment to prove that EIA processes can work, I'm in the middle of a project now. It’s a redevelopment of a small hydro project. When I submitted the registration for the EIA to the provincial government, I included with the registration document the minutes of three scoping sessions and two public meetings, a draft fisheries management plan, and a draft environmental protection plan. This was the first experience that the government people had in seeing this project. We had done our homework. The project was screened out in two and a half months, and that happened over the Christmas holidays. So it works. It works when you do it yourself.

    We basically have not only the support…the public is not only supporting it, they're promoting it in many cases. We have a few dissenters, but it wouldn't be any fun if we didn't have a few arguments going. But I think this is a good example of how the project works when you bring in the public before there's a project.

    The Vice-Chair (Mr. Bob Mills): Great. Thank you.

    I apologize to those members who didn't get a second round.

    I'd like to thank all of you for your presentations. We certainly will consider them as we proceed with Bill C-19.

    Thank you very much, colleagues. We're adjourned.