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37th PARLIAMENT, 2nd SESSION

Standing Committee on Environment and Sustainable Development

EVIDENCE

CONTENTS

Monday, December 9, 2002

1540

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

Mrs. Karen Redman (Kitchener Centre, Lib.)

The Chair

Mr. Joe Comartin (Windsor—St. Clair, NDP)

The Chair

Mr. Joe Comartin

The Chair

1545

Mr. Joe Comartin

1550

The Chair

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

The Chair

Mrs. Karen Kraft Sloan

The Chair

Mrs. Karen Kraft Sloan

The Chair

Mrs. Karen Redman

1555

The Chair

Mr. Julian Reed (Halton, Lib.)

The Chair

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

The Chair

Mr. Robert Connelly (Vice-President, Policy Development, Canadian Environmental Assessment Agency)

The Chair

Mr. Joe Comartin

1600

The Chair

Mrs. Karen Kraft Sloan

The Chair

Mrs. Karen Redman

1605

The Chair

Mr. Joe Comartin

Mrs. Karen Kraft Sloan

Mrs. Karen Redman

The Chair

Mrs. Karen Kraft Sloan

The Chair

Mrs. Karen Redman

Mr. Robert Connelly

The Chair

Mr. Joe Comartin

1610

The Chair

Mr. Julian Reed

The Chair

Mrs. Karen Kraft Sloan

The Chair

Mrs. Karen Redman

Mrs. Karen Kraft Sloan

The Chair

Mr. Robert Connelly

The Chair

Mrs. Karen Kraft Sloan

1615

The Chair

Mrs. Karen Kraft Sloan

The Chair

Mr. Joe Comartin

The Chair

Mr. Gary Lunn (Saanich—Gulf Islands, Canadian Alliance)

The Chair

Mr. Bernard Bigras

The Chair

Mr. Gary Lunn

The Chair

1620

Mrs. Karen Redman

The Chair

Mr. Joe Comartin

The Chair

Mrs. Karen Kraft Sloan

The Chair

Mrs. Karen Redman

1625

The Chair

Mr. Robert Connelly

The Chair

Mr. Joe Comartin

The Chair

Mr. Bernard Bigras

The Chair

Mrs. Karen Redman

The Chair

Mr. Bernard Bigras

1630

The Chair

Mrs. Karen Redman

The Chair

Mrs. Karen Kraft Sloan

Mr. Bernard Bigras

The Chair

Mr. Robert Connelly

The Chair

Mr. Robert Connelly

The Chair

Mrs. Karen Kraft Sloan

1635

The Chair

Mrs. Karen Redman

The Chair

Mr. Joe Comartin

The Chair

Mrs. Karen Kraft Sloan

1640

The Chair

Mr. Robert Connelly

The Chair

Ms. Heather Smith (Senior Counsel, Legal Services, Canadian Environmental Assessment Agency)

1645

The Chair

Ms. Heather Smith

The Chair

Ms. Heather Smith

The Chair

Ms. Heather Smith

The Chair

Ms. Heather Smith

The Chair

Ms. Heather Smith

The Chair

Mr. Bernard Bigras

The Chair

Mrs. Karen Kraft Sloan

1650

Mr. Robert Connelly

Mrs. Karen Kraft Sloan

The Chair

Mr. Bernard Bigras

The Chair

Mrs. Karen Redman

The Chair

Mrs. Karen Redman

The Chair

1655

Mrs. Karen Redman

The Chair

1700

Mrs. Karen Redman

The Chair

Mr. Joe Comartin

The Chair

Mr. Joe Comartin

The Chair

1705

Mr. Joe Comartin

The Chair

Mrs. Karen Redman

1710

The Chair

Mr. Joe Comartin

The Chair

Mr. Joe Comartin

The Chair

Mr. Joe Comartin

1715

The Chair

Mr. Joe Comartin

The Chair

Mrs. Karen Redman

The Chair

Mr. Robert Connelly

The Chair

Mrs. Karen Redman

1720

The Chair

Mr. Gary Lunn

The Chair

Mrs. Karen Redman

Mr. Gary Lunn

The Chair

Mr. Gary Lunn

The Chair

Mrs. Karen Redman

The Chair

CANADA

Standing Committee on Environment and Sustainable Development

NUMBER 009

2nd SESSION

37th PARLIAMENT

EVIDENCE

Monday, December 9, 2002

[Recorded by Electronic Apparatus]

¹ (1540)

[Translation]

The Chair (Mr. Charles Caccia (Davenport, Lib.)): Order, please.

Welcome, Mr. Bigras.

Since we have a quorum, we can begin.

[English]

You may remember that this committee travelled to Washington in January of this year. We made our presentations to our counterpart in the U.S. Senate on Kyoto; I'm referring specifically to the committee chaired by Senator Jeffords. Senator Jeffords, out of the blue, has sent a letter to all of us, which will be circulated by the clerk. It's dated December 3. In essence, the Senator congratulates us on the development of the ratification of the Kyoto protocol, which is expected to be signed this week. This is followed by two paragraphs, which I will not read, because it will be distributed to you any moment. It's interesting that this letter is signed by not only Senator Jeffords, but nine more senators, listed on the back of the letter. I'm bringing it to your attention because it is good to know we have American colleagues who are thinking as we do. The last sentence reads:

Your work has been fruitful over the past year, and we are encouraged that you will likely be able to help bring this important international treaty into force.

So we have friends and allies in Congress. You may recognize some of the names from past visits and make the best possible use of it. I certainly intend to reply and thank Senator Jeffords for his letter and perhaps let him know in a day or two also how the vote of tomorrow will be covered, send him some clippings.

Finally, yesterday in the New York Times there was a lead editorial urging the Bush administration to ratify Kyoto, I'm told. You may get a copy of that editorial through the reading room.

We are now ready to tackle amendment G-23 on Bill C-9. There has been a change, there is a revised G-23. Yes?

Mrs. Karen Redman (Kitchener Centre, Lib.): Mr. Chair, we do have G-23 as it was drafted last time, and I believe there have been discussions between our colleague Ms. Kraft Sloan and the officials. I don't believe they've concluded, so we'd be pleased to start with Mr. Comartin's amendments, and then go back to clause 2, if the committee is so disposed, and start working our way through the amendments that have been stood down.

The Chair: So G-23 is still the object of negotiations or analysis. I would urge that this matter, however, be brought forward tomorrow, because I hear strange rumours about the possibility of an adjournment on Wednesday. So we may have only today and tomorrow to clean up Bill C-9.

So instead of starting with G-23, we will start with Mr. Comartin's amendment, because he cannot be here tomorrow. Mr. Comartin, do you want to make a statement and indicate to us if you are withdrawing any amendments and where you want to start with the balance?

Mr. Joe Comartin (Windsor—St. Clair, NDP): I do have a number I am withdrawing or won't proceed with, whichever is the case. I do intend to proceed with the first one, but I could walk us through the ones I intend to withdraw.

The Chair: Yes, please.

Mr. Joe Comartin: They are NDP-2, 3, 4, 7, 8, 9, 9a, 10, 19, 22, 23. NDP-26 is not really being withdrawn, but it was negatived, so I don't think it's showing up.

The Chair: It was defeated, yes.

¹ (1545)

Mr. Joe Comartin: To continue, NDP-36, 39, 43, 45, 49.

That's it, Mr. Chair, for the withdrawals. I'll just point out that there are probably four or five others that have similarities with those of other members, so they may be dealt with as we go through those.

¹ (1550)

The Chair: All right.

Thank you very much, that's very helpful.

We could then resume our effort on clause 2, which would mean turning to a motion by Madame Kraft Sloan, KS-3a.

Mrs. Karen Kraft Sloan (York North, Lib.): We've already had some limited discussion on this, and essentially what this clause does is provide points of clarification and reinforcement, given the government's goals of making the environmental assessment process more certain and improving the quality of environmental assessments. Also, the third goal of the government through this exercise is to make public participation more meaningful. I believe those particular goals will be supported with this amendment. Under proposed paragraph 4(1)(a) “projects” becomes “proposals”, and we are also adding considerations about caution, so that as we take a look at proposals, they are considered to be done “in a careful and precautionary manner”.

The other change here is that we are encouraging public participation opportunities to be available that are meaningful and early and often throughout the environmental assessment process. May I underline the need for this particular change, because it resonates so well with what the government is hoping to achieve with this particular review, and indeed this legislation.

Also, there are additions with regard to use of the precautionary principle within this section. Section 4 of the act is to be amended by adding after subsection (1) that in the administration of this act these powers are exercised “in a manner that protects the environment and human health, and applies the precautionary principle”, of which I know you have such great fondness, although only in certain kinds of definitions--but we won't go into that right now.

The Chair: It's nice to be remembered in your prayers, Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: I always pray for you, Mr. Chair.

The Chair: So you move the amendment, I presume.

Mrs. Karen Kraft Sloan: Yes, I would like to move this amendment. You're very clever about that, Mr. Chair.

The Chair: Thank you.

Madam Redman.

Mrs. Karen Redman: We do not support this amendment, as including policy plans and programs that really create obligations and duties for the assignment without any corresponding tools to do so in the body of the act. By referring to “adverse environmental effects” and not “significant adverse environmental effects”, it creates a conflict, again, between the purpose clauses, the operations section of the act. As to using the term “early and often” and “throughout” with public participation, while it certainly is the intent and spirit of this bill to increase opportunity for public participation, “early and often throughout” may create a dynamic that cannot be achieved. It's misleading, given that some decisions to provide opportunities for public participation during screenings are at the discretion of the responsible authority. There are many small projects where there is no public interest or a need for formal public participation beyond the paper-based and electronic registry requirements. So it's setting up a standard and expectation that may not be borne out by the fulfilment of the act.

¹ (1555)

The Chair: Thank you.

Mr. Reed.

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

I just have a fundamental concern about the application of what is called the precautionary principle in this situation. I'm not trying to denigrate the precautionary principle in every situation, but in one like this it seems to me to become very probable that the entrance of junk science into an approvals process will be rife. I would vote against it for that reason alone: some reason and valid science has to remain here. The “what if” of the precautionary principle here opens the door to stopping absolutely everything.

The Chair: Thank you.

Monsieur Bigras.

[Translation]

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

I'm in favour of this amendment. To my mind, it's important for Canada to meet its international commitments.

I recall very clearly that some of the Environment Commissioner's reports stipulated the importance of including the precautionary principle in Canadian legislation, whether in the pesticides or environmental legislation, to ensure that Canada upholds its international obligations.

I have a question for officials concerning (a) which notes “that proposals are considered in a careful and precautionary manner”. In their opinion, is this wording consistent with the application of the precautionary principle within the framework of the Canadian Environmental Assessment Act?

[English]

The Chair: Mr. Connelly.

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

The objective of the act, I believe, is to look carefully at environmental effects. By definition, that's the whole nature of environmental assessment legislation. The objective is to look at projects early in planning, before any decision is taken to proceed with them. I think that's already implicit in the act as it currently is worded.

The Chair: Mr. Comartin and Madam Kraft Sloan.

Mr. Joe Comartin: I'm generally supportive of the proposed amendment, but I would like to suggest to Ms. Kraft Sloan a couple of friendly amendments.

One would be in proposed paragraph 4(1)(a) to change “proposals” to “projects”. I think it is more consistent with the wording in the bill.

I have, quite frankly, problems with the “early and often”. I wanted to replace that with the word “timely” before “opportunities” in proposed paragraph 4(1)(d), so as to read “to ensure that there be timely opportunities...”.

º (1600)

The Chair: Thank you.

Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: I am willing to entertain these as friendly amendments. It is rather unfortunate that we are unable to do very much with regard to “strategic environmental assessment” or “proposals” because we do not have the ability to do so in the act. There are not corresponding tools in this particular act, and the reason is that we are so limited in the scope of the sections we are able to amend. Many witnesses have come before us and talked about this particular general problem. There are many problems in this act we can't deal with simply because we are restricted in the sections that are opened, in particular with regard to strategic environmental assessment. I would like to say that with the old process under EARPGO, it was interpreted to include policies, plans, and programs. Unfortunately, Mr. Chair, we've taken a grave step backward, if the only reason the government had was that there were no corresponding tools in the act, and it's really unfortunate that we were not able to deal with that.

But having said all of that, I am willing to undertake Mr. Comartin's suggestions as friendly amendments.

With regard to the issue of the precautionary principle, if this is a planning process and embedded in this planning process is the precautionary principle or precautionary measures, then I don't think there's any harm in being explicit about this. If we are to understand this as a planning process, until we get into it, we're not really sure what's going on. There's information that's required, and we can build on that information to make good public policy decisions. This is an important component in this particular amendment, Mr. Chair.

The Chair: Thank you.

Madam Redman and Mr. Comartin.

Mrs. Karen Redman: I thank Mr. Comartin for his amendments. I would draw his attention back to proposed paragraph 4(1)(a). There still is a concern about the fact that it says proposals would not cause adverse environmental affects. I wonder if my colleague would consider “significant adverse effects” as a friendly amendment, because we see “adverse effects” alone as perhaps too low a bar.

º (1605)

The Chair: Mr. Comartin, and then Madam Kraft Sloan.

Mr. Joe Comartin: It's actually Ms. Kraft Sloan's amendment.

Mrs. Karen Kraft Sloan: Mr. Chair, if what I'm hearing from the government is that it is willing to insert “significant adverse environmental effects” and thereby support the rest of the amendment, I would certainly be willing to entertain that idea. I would like to ask the parliamentary secretary, through you, Mr. Chair, if that is indeed the case.

Mrs. Karen Redman: Ms. Kraft Sloan can assume that we like that piece of the amendment, but I would still like to discuss further, and I'm happy to do so right now. We still have outstanding problems with proposed paragraphs 4(1)(e) and (f) and proposed subsection 4(2). I'll be happy to speak to what our concerns are with those whenever the committee is prepared to deal with them.

The Chair: The entire amendment is before us. If you have other suggestions, we'd like to hear them, Madam Redman.

Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: Generally, when a mover is willing to make a friendly amendment, that implies that the suggester is supportive of the rest of the amendment. Until we hear all the details, we are not going to subamend this motion in increments. I had absolutely no problem with what Mr. Comartin was going to suggest, because indeed, he supported the rest of the amendment. I want to hear what all the conditions are before we entertain any thought of accepting this as a friendly subamendment. I defer that until we've finished this discussion, Mr. Chairman.

The Chair: Are there any further friendly subamendments?

Mrs. Karen Redman: Mr. Chairman, I'd be happy to provide clarification, and that's why I offered. If the committee is ready, I would like to turn our attention to proposed paragraphs 4(1)(e) and (f) and proposed subsection 4(2).

It would seem the attempt here is to get at the scoping issue, so we may assess the bridge, as opposed to the bridge, the road, and the acreage that is looked at for forest harvesting. I would ask committee members to think for a moment of the scale of the projects and the fact that there are often jurisdictions that are overlapping. For instance, if the bridge is going to affect fish habitat, that is clearly a federal jurisdiction and we have the expertise. However, when it gets into things like acres of forest harvesting, that clearly is a provincial mandate, the jurisdiction lies with the province. Therefore, for federal-provincial relationships when dealing with scoping, it is best to work in harmony with the other authority, as opposed to assuming that federal jurisdiction should supersede it. This is a case where we do try to work with provinces--and I know Mr. Bigras is always interested in that.

Because of those issues, we feel that we cannot support these amendments and that it is stretching this amendment to include scope of projects in a way that is not consonant with the rest of the bill.

I would ask Mr. Connelly and Ms. Smith if they would like to add something on the concerns we have with this part of the amendment.

Mr. Robert Connelly: On proposed paragraph 4(1)(f), I would point out that we have similar wording in section 11 of the act at the present time, so I think this is perhaps a duplicate of section 11.

The Chair: Mr. Comartin.

Mr. Joe Comartin: I don't agree that it's a duplication. This is the purpose section of the bill, so if we have wording in here for that and similar wording in the practical application of the act, that would be quite consistent with drafting methods used in a number of pieces of legislation. I don't see any problem from that perspective.

I want to go back to a comment made by Mr. Reed earlier about junk science in conjunction with the precautionary principle. I felt I had to put on the record that I would reject that type of ideology and point out that the precautionary principle has happened internationally and, in fact, is mandated within the Environmental Protection Act in Canada. It's not at all inconsistent with what the government has already done in other pieces of legislation. To dismiss it out of hand because of junk science is erroneous, and moreover, it would not then be consistent with the Environmental Protection Act.

º (1610)

The Chair: Mr. Reed, you have the floor, but let's try to resist the temptation of turning this into a debate on the precautionary principle.

Mr. Julian Reed: The only comment I would make is that I've been there, done that, and bought the T-shirt.

The Chair: That was one of the most effective interventions in a long time.

Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: If what is identified in (f) is already in another section, what is the problem with having it in this section?

The Chair: Madam Redman.

Mrs. Karen Redman: We just wanted to point out that it is a duplication, Mr. Chair. However, I would ask that the committee look at proposed paragraph 4(1)(e), which is really pushing the envelope for scoping, and remind the committee again that we could well be forcing the government beyond what is federal jurisdiction with the wording here.

Mrs. Karen Kraft Sloan: Well, all right.

Mr. Chair, I have a question on the floor with regard to proposed paragraph 4(1)(f). I will then have a question with regard to (e), but I'm trying to find out why the officials are opposed to (f). Is it because it's duplicated? You see repetition throughout legislation in many cases. I'm just trying to understand why there is opposition on this.

The Chair: We received a very brief answer from Madam Redman, an indication that it was just drawing to your attention, Madam Kraft Sloan, the fact that there is a repetition. Is there a rationale that can be offered in reply to Madam Kraft Sloan's question?

Mr. Robert Connelly: I think, whenever there is duplication, it just adds a degree of complexity that could create some difficulties in future interpretation. That's the point.

The Chair: Let's go to the next question then.

Mrs. Karen Kraft Sloan: Mr. Chair, I propose that sometimes, when you're trying to reinforce a particular comment, it might be a good idea to do it early and often.

With regard to proposed paragraph 4(1)(e), I'm certainly willing to delete it if it is a problem. I'm also willing to delete (f). With what the government has already said with regard to their three goals, particularly focusing on public participation, we can have “timely opportunities for meaningful public participation”, as Mr. Comartin has suggested, and apply the precautionary principle. I am willing also to have “significant adverse environmental effects” in proposed paragraph 4(1)(a). I think, in many respects, Mr. Chair, I am trying to work with the process.

º (1615)

The Chair: This is very helpful. The motion before us consists of a text where in (a) “proposals” has been replaced by “projects” and“significant” has been inserted before “adverse”. Then in (d) “timely” has been inserted before “opportunities”, and on the second line “early and often” has been dropped. Finally, proposed paragraphs 4(1)(e) and (f) have been deleted. The rest remains as in print. Is that correct?

Mrs. Karen Kraft Sloan: That's correct, Mr. Chair.

The Chair: So are you ready for the question?

(Amendment agreed to [See Minutes of Proceedings])

Mr. Joe Comartin: Mr. Chair, in light of that vote, I won't be proceeding with NDP-4.

The Chair: All right, NDP-4 is withdrawn.

Now we have CA-2. Mr. Lunn.

Mr. Gary Lunn (Saanich—Gulf Islands, Canadian Alliance): Mr. Chair, I will not belabour this. Basically, I add municipal government authorities. The intent is to include local government representatives in negotiations that affect them in the same way first nations are currently included. All I've basically done is add “municipal authorities” after “Aboriginal peoples”.

The Chair: Mr. Lunn has moved his amendment.

Monsieur Bigras.

[Translation]

Mr. Bernard Bigras: Mr. Chairman, I thought you had already ruled out of order a motion respecting another amendment that called into question municipal governments, since municipal governments were creatures of the provinces.

[English]

The Chair: Mr. Bigras is perfectly correct, we did rule out another amendment that had the word municipal, and we should be consistent. I apologize for not having made this point earlier.

Mr. Gary Lunn: Mr. Chair, I did inquire into this earlier, so I apologize. I'll withdraw this one.

The Chair: It's withdrawn. Thank you.

Then we have G-3. Madam Redman.

º (1620)

Mrs. Karen Redman: I move this amendment to the French version of the bill, which will ensure English-French concordance.

The Chair: Thank you.

(Amendment agreed to [See Minutes of Proceedings])

The Chair: Thank you.

Now we come to NDP-5. Mr. Comartin.

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

Mr. Lincoln was here and we got into a fair amount of discussion about this, a month and a half ago I guess. He made what I found to be some fairly valid comments, but I haven't incorporated those. I understand that procedurally, if I can let my amendment stand as it is, Ms. Kraft Sloan is going to move a friendly amendment, so we can stay within the rules, and then we could perhaps debate the issue at that point.

As an overview for members of the committee who may not remember, rather than working our way to the lowest common denominator, where we had differences in standards between the provincial and federal legislation, I'm attempting to require that the process be conducted to the highest denominator.

The Chair: Thank you.

Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: I think Mr. Comartin's crystal ball is working exceptionally well. I'm going to make a friendly amendment to change the second “processes” to “standards”. So then it would read, “or exceed the environmental assessment standards for projects as set out in this Act.” I hope that meets what Mr. Comartin had in mind, because unfortunately, my crystal ball is not working.

The Chair: All right.

Madam Redman.

Mrs. Karen Redman: Perhaps Mr. Comartin and the officials can answer a question when I'm done with my explanation as to why we don't support this amendment. I'm not sure what those standards are and where one would find them.

Any project, once CEAA is triggered, must be assessed in accordance with the act and its regulations. It's not a matter of finding the lowest common denominator. Indeed, when we have assessment projects that are cooperative efforts with other jurisdictions, both the legal requirements and the legislative requirements of those processes need to be met. It's not a matter of picking which one is less onerous. It seems to us that this would not include assessments such as those in aboriginal jurisdictions or with foreign governments or international organizations. It's also not clear how the actions of a government can meet or exceed processes. I know you now talk about standards, but where would we find those standards, which ones would they be?

º (1625)

The Chair: Mr. Connelly.

Mr. Robert Connelly: When we enter into a cooperative arrangement with a province through a harmonization agreement, we each have to meet legislative requirements. We have to meet the legislative requirements under CEAA in that process, and the province must meet the legislative requirements under its process. There is no lowering of requirements through any cooperative agreement. The second point I would make is that if this were to stand, we might, in each case where we enter into an agreement, have to determine whether the provincial process meets or exceeds the requirements under the Canadian Environmental Assessment Act. I'm not sure how we would measure that easily.

The Chair: Thank you.

Mr. Comartin.

Mr. Joe Comartin: To throw back at Ms. Redman the same concept, if the provincial government has legislation that requires these standards to be met, and only those, and those standards are lower than federal standards, they would be bound by their legislation. If we're doing a joint assessment, we don't want that to happen. We want the federal legislation, assuming it's a higher standard, to be applicable. This is the only place I could find in the legislation where you would put that type of requirement on the agency conducting the assessment.

The Chair: Are there any further comments? If not, are you ready for the question?

(Amendment negatived [See Minutes of Proceedings])

(Clause 2 as amended agreed to)

The Chair: We move to clause 3.

Monsieur Bigras.

[Translation]

Mr. Bernard Bigras: I withdraw my amendment, Mr. Chairman.

[English]

The Chair: Merci.

Monsieur Bigras has withdrawn. Mr. Herron's amendment, which follows the same line, would be withdrawn as well. NDP-7, in the name of Mr. Comartin is withdrawn.

We thus have G-4. Madam Redman.

Mrs. Karen Redman: This proposed amendment is consequential to G-5. It adds a reference to the regulations that would apply to band councils. This will provide the same limited exclusion that covers federal authorities and regulatory bodies for block funding decisions before essential details of the project are known. I would underscore for the committee that this does not mean they sidestep any kind of scrutiny. It's just that the money can flow for block funding before specific projects are named.

The Chair: Thank you.

Are there any comments or questions?

(Amendment agreed to [See Minutes of Proceedings])

The Chair: We come then to amendment BQ-4.

[Translation]

Go ahead, Mr. Bigras.

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

I move that clause 3 be amended by adding after line 7 on page 3 the following...Basically, the aim of section 7 is to ensure -- and officials will confirm this --that in an emergency, an environmental assessment will not be required in the case of certain projects. However, we believe this could lead to adverse environmental effects and give rise to situations where no provision has been made for alleviating measures. Accordingly, we feel an environmental assessment should be conducted when the emergency has passed. The corresponding amendment would read as follows:

...responsible authority shall ensure that the assessment is conducted when the emergency has ceased to exist.

In short, we feel that in an emergency, it should be possible to dispense with the assessment, but that one should be conducted once the emergency is over.

º (1630)

[English]

The Chair: Merci, Monsieur Bigras.

Madam Redman

Mrs. Karen Redman: We don't support this amendment because CEAA is a planning tool, and this would require assessment after the fact, which would not be particularly practical or necessary or useful. It would require many assessments of projects in the aftermath of emergencies such as the Saguenay flood, the Red River flood, or the ice storm. The concern is that this requirement would place an unnecessary burden on the government agencies that are charged with preparing for and responding to these emergencies.

The Chair: Thank you.

Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: Mr. Chair, that's not my understanding of this. Perhaps we could have two minutes. I want to re-examine this.

[Translation]

Mr. Bernard Bigras: In the meantime, could we ask officials for their comments?

[English]

The Chair: Mr. Connelly.

Mr. Robert Connelly: The only other point I'd make is that it does raise a question in our minds as to what you would actually assess after the fact. I'm not certain what it would be you would conduct an environmental assessment on. So that is a further concern.

The Chair: You feel that there is an undefined area, because the assessment referred to on the first line is not the same as the one on the fourth line?

Mr. Robert Connelly: Where you have an emergency, obviously, you can't do an environment assessment before you take action to respond to that emergency. I think Mr. Bigras's motion says, once that emergency is over, then you do an environmental assessment. I'm just raising the question, what would you do an environmental assessment on at that point? Perhaps what is behind Mr. Bigras' point is that there may be some value in lessons learned, but I'm not sure that a planning tool such as environmental assessment is the proper instrument to achieve that.

The Chair: Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: I would ask a question of the officials. If , for example, there were a flood, there were use of sandbags for flood control, after the emergency was over, the flood subsided, would it be necessary for people in the community to understand what to do with those sandbags, what the effect was of those sandbags, how to mitigate any problems that might have been created? I understand what Mr. Bigras was trying to do in this particular case--at least I think I do--but I'm wondering if there is a way to phrase this. If you're going to stop flood waters from absolutely destroying your home, you can have second order environmental effects after the emergency has stopped.

º (1635)

The Chair: Madam Redman, please.

Mrs. Karen Redman: I think Mr. Bigras has sincere intent in looking at how you can learn from something, but it would seem to me that because CEAA is a planning tool, the useful part of Ms. Kraft Sloan's example of the sandbags might be if a breakwater or a dam or a spillage way was going to then be proposed. That's the kind of project that may emanate out of an emergency and then be looked at, and that would be looked at if it triggered CEAA now. To go back and assess whether sandbags were the right instrument at the time seems to me not what the Environmental Assessment Act is meant for. So I guess I'm looking for further clarification from Mr. Bigras.

The Chair: Thank you.

We have Mr. Comartin, Madam Kraft Sloan, and then perhaps Mr. Bigras.

Mr. Comartin.

Mr. Joe Comartin: I support this section, but maybe there's better wording. My conception was, using the flood, that there would be some significant damage done to a sewage treatment plant, or let's say we have a large number of weeping beds, where there are consequences in regard to rebuilding houses or other construction. It seems to me that in those circumstances you'd want an environmental assessment. The emergency is over, the flood waters are down, but you may have a major problem with sewage and need a determination on whether you're going to allow for reconstruction of housing damaged by the floods. But with the way the act is worded, because you've already dealt with it on an emergency basis, I'm not sure the act would kick in. By putting this wording in, you're ensuring that the act would in fact kick in, requiring an assessment.

The Chair: Thank you.

Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: Perhaps my use of sandbags was not the best, but I wasn't talking about whether that was the method that should have been used to deal with that particular emergency. I understand that if there is an emergency, you will do whatever you can to deal with the situation. You're going to look into whether that was the best thing to do at the particular time, from an environmental assessment point of view. I was referring to the fact that the sandbags are still there, so what do you do with them after the fact?

The other question that I would have for the parliamentary secretary or Mr. Bigras or the officials or whoever cares to answer is this. If we actually take a look at section 7 in CEAA, “Excluded Projects”, there is reference to “projects carried out in response to a national emergency for which special temporary measures are being taken under the Emergencies Act: or the project is carried out in response to an emergency and carrying it out is in the interest of preventing damage to property or the environment or the interests of public health and safety”. I think Mr. Comartin has pointed out a very interesting case, where you might have a sewage treatment plant or something like this, or you might have a bridge or dam or something, so you're going to end up with a permanent structure. As I understand what Madam Redman has said, there would be an assessment undertaken, because it's a project. I am not so sure about this, because if you take a look at the items under “Excluded Projects”, these things would have an exclusion. If you're dealing with something that is permanent and of a large project nature, being funded by the federal government, there are quite clearly many triggers under CEAA for some of these things, but given what has been written under section 7, it could be argued that because the project is in response to an emergency and it's in the interest of preventing damage to property or the environment in the long run, it may not be eligible for an environmental assessment. If I understand Mr. Bigras' motion correctly, I think this is what he is trying to deal with in part.

º (1640)

The Chair: Thank you.

In order to understand Mr. Bigras' amendment, one would be wise to read, at the bottom of page 2, the proposed exclusions subsection, because there is a reference to an assessment. When Mr. Connelly was asking earlier which assessment is being referred to in Mr. Bigras' amendment, we were a bit at a loss, because there was a vacuum. However, in reading the section that precedes the proposed amendment by Mr. Bigras, namely section 2 at the bottom of page 2, there is definitely a reference to an assessment: it reads, “For greater certainty, an assessment is not required...”. So Mr. Bigras picks up from that clause and makes an amendment that would refer to an assessment mentioned in the previous clause.

I'm making this intervention to ask Mr. Connelly whether he is still of the opinion that there is no reference to an assessment.

Mr. Robert Connelly: Mr. Chairman, perhaps I could give a couple of examples I am familiar with where we have had emergency situations and there are subsequent environmental assessments occurring or to occur in the future.

The first one concerns the Red River flood a number of years ago. There is a plan to look at how to design or build further flood avoidance structures in the Winnipeg area. There are different alternatives being looked at. That I believe is, or will be, subject to the Canadian Environmental Assessment Act in respect of future prevention.

Another project that is currently under review is in the area of the Saguenay. I believe there is a proposed flood control dam that is being examined on Lac Kenogami upstream. Again, that is subject to the Canadian Environmental Assessment Act.

In response to Mr. Comartin's point, sometimes after something like a flood there will be some immediate clean-up activities, such as restoring a sewage treatment plant and getting it functioning again. These initiatives may often be very urgent as well and need to occur very quickly, or you have further endangerment of health and safety. Again, we would be concerned about perhaps requiring those to stop while environmental assessment is undertaken.

The Chair: These examples are very helpful, but the question still remains whether or not the environmental assessment referred to in Mr. Bigras' amendment is in suspended animation in a vacuum or not. It seems to me that it is not in a vacuum, because of the wording of section 2 at the bottom of page 2.

Ms. Smith.

Ms. Heather Smith (Senior Counsel, Legal Services, Canadian Environmental Assessment Agency): On the reference that you made to proposed subsection 7(2) of the act, that particular exclusion is in the context of block funding, so it doesn't have anything to do with exclusions for emergencies. It has to do with situations where the federal government provides money in a block for a particular purpose, say for an infrastructure program, where money is put aside, but the particular projects for which the money will be spent haven't been determined at the time the money has been identified and perhaps transferred. This particular provision works in conjunction with provisions that are set out in section 54 of the act. They say that when those block funding arrangements take place, either internationally or through a federal-provincial agreement, an assessment doesn't have to be done at the time the money is transferred, if you don't know what particular projects are, but provision has to be made in the planning process to ensure that an assessment is conducted once you do know what the essential details are.

º (1645)

The Chair: Are you suggesting that Mr. Bigras' amendment is in the wrong place?

Ms. Heather Smith: No, I don't think there's a problem with where it's placed.

The Chair: Then why the emphasis on block funding?

Ms. Heather Smith: You were making a link between Mr. Bigras' amendment and proposed subsection 7(2). I don't think there is a link between those two. I think the link with Mr. Bigras' amendment is back at subsection 7(1), which is found in the act and is not in the bill. Subsection 7(1) sets out situations where an environmental assessment is not required, and there are three situations that are dealt with. The first is where a project is described on an exclusion list. The second is where a project is carried out in response to a national emergency--so that is something that is declared by Parliament under the Emergencies Act. The third is where a project is to be carried out in response to an emergency and acting forthwith is in the interest of preventing damage to property or the environment. These are emergencies of a lesser order than a national emergency, for example. There are powers in a number of pieces of legislation for the government to take swift action to try to prevent damage to the environment or in the interests of public health and safety. An example can be found in the Environmental Protection Act.

The Chair: Where is the reference to block funding in section 7? There's none.

Ms. Heather Smith: The way I read it is that he wants to put something in section 7 of the act and his reference to paragraph 1(b) or (c)--

The Chair: You made the point that section 7 of the act deals with block funding. I cannot find any reference to block funding in section 7 of the act, the parent act. So what are you talking about?

Ms. Heather Smith: It doesn't use the words “block funding”--

The Chair: It doesn't, that's the whole point.

Ms. Heather Smith: No, but that's basically what subsection 7(2) is getting at. It's getting at block funding arrangements.

The Chair: Those are interpretations.

Monsieur Bigras.

[Translation]

Mr. Bernard Bigras: Mr. Chairman, the aim of my amendment is not to do away completely with environmental assessments when conducted in response to an emergency. I don't think we should be creating any loopholes in the case of certain projects.

What I would like is for assessments to be conducted when a serious state of emergency exists. That's critical. Otherwise, we run the risk of creating a loophole and that would be unacceptable, particularly since the projects involved are large-scale ones.

That's my proposed amendment and I move that we proceed to vote.

[English]

The Chair: Yes.

Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: I think the point that there is an environmental assessment identified in section 7(1) of the act is well taken. But I wanted to ask the officials about the issue of mitigation and what happens if a structure is constructed. I raised this earlier in my intervention. If a structure has been put up in response to an emergency, once the emergency has passed, what do we do with regard to mitigation issues, how do we determine those things?

º (1650)

Mr. Robert Connelly: If something has been built as part of the emergency itself, it would be excluded from the act. In that situation I'm presuming other environmental protection acts, either federally or provincially, might be employed to deal with any mitigation issues, but not environmental assessment under that circumstance, if it's already built as part of the emergency.

Mrs. Karen Kraft Sloan: But as has been identified, we have these loopholes in other acts of Parliament, and this is a huge problem.

The Chair: Thank you.

Are we ready for the question?

(Amendment negatived [See Minutes of Proceedings])

The Chair: Now we come to amendment L-1. Is anyone here willing to move the amendment on behalf of Mr. St-Julien? If not, we'll inquire of Mr. St-Julien overnight to see whether it is his wish to come tomorrow morning.

(Clause 3 as amended agreed to)

The Chair: Monsieur Bigras.

[Translation]

Mr. Bernard Bigras: Therefore, if clause 3 is adopted, that means we have dispensed with the motion of the honourable member...

The Chair: I've been given assurances that if Mr. St-Julien's motion is adopted, we would be dealing with a new clause.

[English]

We have to call clause 4, which is a heading within the act.

Madam Redman, can you tell us something about clause 4 and how you want to dispose of it?

Mrs. Karen Redman: My understanding, Mr. Chair, was that we would not put clause 4.

The Chair: But it is there, and I'm told that in order to remove it, the committee will have to vote against it. This is just a reference to the heading that reads, “Assessments of Environmental Effects”, which I'm told is just an editorial change.

Mrs. Karen Redman: So you're suggesting that you would put it to committee and we would defeat it.

The Chair: From a procedural point of view, the committee, in order to remove it, would simply have to vote against it, but someone has to move it. I will call clause 4, and I imagine no one will vote for it. In that manner, the line would be removed.

Madam Redman.

º (1655)

Mrs. Karen Redman: Mr. Chair, if it's appropriate, I would move it, and then we will have something to vote against.

The Chair: So clause 4 is moved.

(Clause 4 negatived)

The Chair: On clause 5, we will hold for Mr. Herron tomorrow morning PC-3. Others are withdrawn.

We have now an amendment by Mr. Herron, PC-4, on clause 6. He has pulled out the offensive word that made it inadmissible, so it is now admissible, and we'll put it tomorrow. We cannot call clause 6, because there is one amendment by Mr. Herron. Can someone make sure Mr. Herron will be here tomorrow?

» (1700)

Mrs. Karen Redman: I'd like a clarification. It's proper to deal with amendments when people are here, but is PC-5 inadmissible or admissible?

The Chair: It's inadmissible, because it touches on the parent act. I will repeat that tomorrow morning.

On clause 7, we have PC-6, which was not moved.

Then we have NDP-13. Mr. Comartin.

Mr. Joe Comartin: What happened to NDP-11?

The Chair: That was carried.

Mr. Joe Comartin: Yes, I see that now.

I have NDP-12, but it's subsequent to Monsieur Bigras'.

The Chair: NDP-12 was a duplicate to BQ-6, which was defeated, and it preceded yours, so yours is automatically defeated.

So we're now on NDP-13.

» (1705)

Mr. Joe Comartin: It's relatively straightforward. The existing amendment from the government requires that the order ceases to have effect 14 days after it's passed unless it's approved, and I'm reversing the onus, so that the Governor in Council would, in effect, have to make a formal decision to disapprove it, rather than just letting it lapse, which is the effect of the existing proposal.

The Chair: Madam Redman

Mrs. Karen Redman: We don't support this amendment. The wording in the bill actually is the same wording as in CEPA, and this obviously pertains to interim orders. The Minister of the Environment proposes the order, and as Mr. Comartin points out, he's changing it to reverse onus. We believe it's better for the minister to make a positive case as to why a prohibition order is necessary, rather than giving the Governor in Council authority to overrule the minister. We would point out that it's any three ministers of cabinet who could then rescind or reverse an order. What's in the bill is consistent with CEPA, and we feel it's a more proactive way to go.

» (1710)

The Chair: Are there any further interventions?

(Amendment negatived)

(Clause 7 as amended agreed to)

The Chair: I'm told G-8 is contingent on G-23, so we cannot call clause 8. We have to deal with G-23 first.

All the amendments to clause 9 that were in Mr. Comartin's name have been withdrawn, so we can call clause 9.

(Clause 9 agreed to)

The Chair: The next motion is in Mr. Comartin's name, NDP-27, on clause 12.

Mr. Joe Comartin: Mr. Chair, I've got a note that this may be similar to my NDP-25 on clause 10, which passed.

The Chair: It passed on November 21, which seems like a long time ago, but it's still valid as such. Do you see any similarity in the two?

Mr. Joe Comartin: No, I don't.

The Chair: Okay.

Mr. Joe Comartin: Item (a) in the amendment is deleting the third last line midway through it, “on which the federal authority and the responsible authority have agreed”, wanting to limit it so they simply ensure the implementation of all mitigation measures, not just that on which they agreed, because of the difficulty if they don't agree on what happens. There doesn't seem to be any provision in here for that circumstance. You'd want them to be required to proceed with the implementation of all mitigation measures.

On item (b), I'm hesitating because I'm not sure if this is dealt with in G-23 in respect of the notice in the registry. I hadn't considered that. In fact, I'm asking for the publishing of the notice. That's an addition to what's in the third line in proposed subsection 20(3) in the government's existing amendment. I'd have to ask the officials here, or perhaps Ms. Redman, if G-23 deals with that part.

» (1715)

The Chair: The answer is yes.

Mr. Joe Comartin: If I'm assured that the second part deals with it, I would withdraw that. Perhaps we should just deal with (a).

The Chair: Madam Redman.

Mrs. Karen Redman: That sort of makes toast of our half a loaf, Mr. Comartin. You're quite right, but on proposed subsection 20(2.2) we have a fairly major concern. It's a fact that our department, or any department, could off-load their responsibility onto another department rather than dealing with it. For instance, we have great expertise in migratory birds, the Department of Fisheries would have a much greater expertise in mitigation for fish species. The way your amendment reads, any department could off-load mitigation measures, and this could be used by responsible authorities to require other departments to provide resources and assist in the implementation of mitigation measures that are really beyond the interest or expertise of that department. Because of that, we feel it's providing perhaps an off-ramp and we wouldn't support it.

The Chair: Mr. Connelly, do you have any comment?

Mr. Robert Connelly: No, Mr. Chairman. I think Madam Redman has explained the issue here.

The Chair: Thank you.

(Amendment negatived [See Minutes of Proceedings])

(Clause 12 as amended agreed to)

The Chair: Then we'll move to clause 13 and G-12. Madam Redman.

Mrs. Karen Redman: Mr. Chair, I would move G-12. This amendment follows through on a commitment made by the minister to provide an explicit opportunity for public consultation on scoping decisions during the comprehensive study process. It responds to the concerns raised by the Canadian Environmental Law Association, as well as other witnesses we had before us. The consultation will occur prior to the Minister of Environment's making the decision on whether to continue the assessment as a comprehensive study or to review the project through a mediator review panel.

» (1720)

The Chair: Thank you.

(Amendment agreed to [See Minutes of Proceedings])

The Chair: As a result, NDP-28 and CA-8 cannot be put, so we come to CA-9. Mr. Lunn.

Mr. Gary Lunn: Thank you very much, Mr. Chair.

I will happily move this motion. I understand CA-8 was similar to G-12. And you'll see the wording in CA-8 and CA-9 is almost identical. They're both dealing with the same matter. Basically, this is designed to resolve the difficulty currently in the act whereby proponents and the public are required to submit information without first knowing the scope of the environmental review. This makes it difficult for the proponent to answer questions the responsible agency is posing. It also creates an atmosphere of distrust among environmental agencies, which are unable to determine the level of review that is going to occur. Again, I think it's similar to G-12, although I'd be interested to listen to Madam Redman's comments. I would encourage her to support my wonderful amendment.

The Chair: How can one resist that kind of intervention?

Madam Redman.

Mrs. Karen Redman: Mr. Chair, my only observation was going to be that the intent of this motion is covered by G-12. The government amendment explicitly requires public consultation on the scope of a project and factors to be considered in the assessment, as well as the scope of those factors.

Mr. Gary Lunn: I'll have to take your word for it. I will withdraw that motion.

The Chair: We would then move to the amendment in the name of Madam Kraft Sloan, KS-10a, but we don't have a quorum, so we had better stop here.

Mr. Gary Lunn: I think we only need the quorum when we call the meeting, not to continue. This is a great time to get through G-23--we could do it at lightning speed. But in fairness to my colleagues from the other opposition parties, I suppose we should give them an opportunity to speak on G-23.

The Chair: I don't see any point in proceeding when the mover of the motion is not here. We'd better resume tomorrow morning in the hope that Mr. Herron will be here. Also, Mr. St-Julien has said he will be here with his motion, and hopefully, G-23 will be in the final form. I imagine that negotiations are still taking place.

Mrs. Karen Redman: I believe consultations are still occurring, Mr. Chair.

The Chair: Consultations, okay.

This meeting is adjourned.