ENVI Committee Meeting

     I call the meeting to order.

    My apologies for starting a little late. We had a vote in the House. This seems to be a habit, so our apologies.

    The agency would like to share for a minute or two and then we will begin questioning. Who's going to be presenting, please?

    Mr. Chair, we provided earlier this week summaries of a number of assessments that had been completed dating back to the passage of the act in 1995, and attached to that was a summary table. We noticed that due to some discrepancies in the way in which we were reporting the information in our DPR, there are some inconsistencies in the table as it relates to comprehensive studies and review panels. We're working now to correct that information, and we'll provide it to the clerk and the committee as soon as possible.

    Thank you so much.

    We'll begin the first round of questioning. We only have approximately 16 to 17 minutes, so each opportunity will be for four minutes, not the typical seven, which will give everybody a chance to ask a question.

    We'll begin with Mr. Woodworth for four minutes.

    Just when I thought the questioning time couldn't get any shorter.

    Thank you very much, Mr. Chair.

    I appreciate your attendance again with us, gentlemen.

    I'm interested in a report that I've been made aware of from 2009 from the Canadian Council of Ministers of the Environment. One of the issues identified in that report in respect to the matter we're studying was the problem of multiple federal authorities, not just interjurisdictional, but multiple federal authorities being responsible sometimes for assessing the same project.

    First of all, are you gentlemen aware of the report to which I am referring?

    Yes. I was actually one of the co-chairs of the working group that led the development of this report.

    You'll be very aware of it then.

    Is it in fact the case that there are projects for which multiple federal authorities might be engaged in an assessment?

    That's correct. We need to keep in mind that this report was prepared in 2009, as you said, so the legislative changes that were made last year and that made the agency legally responsible for the conduct of the comprehensive studies for the larger projects were not in place at the time.

    What was behind these comments in the CCME report was a recognition that to improve federal-provincial coordination in environmental assessment, this is not only about having tools to harmonize the process, but it's also about having the federal family and the federal process itself getting in order first before talking about how to harmonize with the provincial jurisdictions.

    I understand that in a comprehensive report, at least that is done by the agency, that problem is resolved. But there are some comprehensive reports by other agencies too. Am I correct about that?

    Not any more, since last year, except for projects that are regulated by the National Energy Board and the Canadian Nuclear Safety Commission.

    This is what I was referring to. And there also may be other projects that are reasonably large, but not quite at the stage of requiring a comprehensive report where this problem of multiple federal authorities might remain. Is that correct?

    That's correct.

    You would have heard evidence or you would have received reports, I assume, about the frustration that this may cause to project proponents. Is that correct?

    That's correct. They are valid concerns that have been raised, and they continue to be raised.

    Do they continue to be raised to CEAA?

    We hear about them, but we don't hear many concerns any more with respect to those projects that are subject to the comprehensive study process. As we explained last week, for all those that were started since the amendments came into force, they're very well aligned with the provincial process.

    I'm really referring to projects other than those, that are still the subject of screenings by multiple federal authorities.

    So I assume that the system of putting comprehensive reports under CEAA has worked well to solve this problem, correct?

    You have to say yes or no for the transcript.

    Yes.

    Thank you.

    And perhaps we might consider extending that to other larger projects, even if they're not perhaps at the stage of requiring a comprehensive assessment. Would that be a fair...?

    It's certainly something the committee may want to consider. I think the related issue, which you heard of with the two witnesses two days ago, goes to the notion of whether there should be a single agency responsible for all the assessments or we should continue with this diffused accountability system we have currently.

    Unfortunately, the time has expired. Thank you, Mr. Woodworth.

    Next is Ms. Liu. Four minutes.

    Thank you, Mr. Chairman.

    I'd like to come back to the consultations with aboriginal people.

    Last week , when the representatives of the Canadian Environmental Assessment Agency appeared, you confirmed that if the budgets that are expiring are not renewed, the consultations with aboriginal people could be affected. Is that the case?

    Last week we heard that the government is at this time considering the matter of renewing that budget. A decision will be taken in the context of Budget 2012. If the funds are not renewed, this will obviously have repercussions on our activities regarding environmental evaluations, and our consultations with aboriginal people.

    Concretely, what were the budgets allocated to consulting aboriginal people used for over the past years? Were they used to fund the groups that took part in them? Can you tell us exactly how those amounts were used?

    They were used in the main for two purposes.

    Firstly, an envelope of money, a contribution, was given to the aboriginal communities that were consulted in the context of the environmental assessments. So funds were made available to them both for in-depth studies and for the projects evaluated by an assessment commission. That is the first part.

    Additional resources were also provided to our agency, such as employees assigned to the aboriginal consultations, and to cover the expenses related to those consultations. It was both an operational budget and a budget for contributions to the aboriginal groups.

    If the budget is not renewed, this could have an adverse effect on the participation of aboriginals in the consultation process.

    If the budgets are reduced, we will have to reassess the way in which we meet our obligations under the law.

    You also say that the Canadian Nuclear Safety Commission and the National Energy Board have a responsibility to consult aboriginal people. Those organizations are also facing important financial pressures. The Canadian Environmental Assessment Act clearly states that you are governmental leaders when it comes to the environment. How can you claim that you are discharging your responsibilities although you are receiving less money to consult the first nations?

    As to projects under the purview of the Canadian Nuclear Safety Commission or the National Energy Board, our role is similar to the role we play with regard to all of the responsible authorities that conduct preliminary studies.

    Point of order, Ms. Rempel.

    On a point of order, Mr. Chair, I believe that the member opposite is speaking about the NEB. We're reviewing the CEAA act today.

    Are there any other comments on the point of order?

    Ms. Liu, I will remind you to make sure your comments are germane to the discussion. Thank you.

    I think my comments are quite relevant to this discussion, as we are talking about the ability and the consultation process of environmental assessment. But I will make sure that my comments stay relevant, as well.

    In 2009, the environmental commissioner assessed the application of the Canadian Environmental Assessment Act by the government. The commissioner stated that when determining the scope of the project to be assessed, the other federal authorities did not agree amongst themselves. This often hinders the assessment process, causes delays and even sometimes causes multiple assessments to be conducted. What has been done since the commissioner's report to correct the problems related to federal coordination, particularly with regard to the scope of the projects?

    Two things were done, mainly. Both are related to amendments made to the law last year.

    Regarding the problems identified by the commissioner in connection with the multiple levels of authority involved in the assessments, it is precisely for that reason that the assessment of major projects that are subject to in-depth studies was entrusted to the Canadian Environmental Assessment Agency. It was to avoid having several levels of authority legally responsible for conducting assessments of the same projects.

    The problem has been ongoing for certain preliminary studies that could involve several responsible authorities at that stage of the proceedings, but as to the bigger projects that require in-depth studies, amendments were made that essentially settled those issues last year. The other change that took place since the report of the commissioner results from the Supreme Court decision handed down last year in the MiningWatch case, in connection with the scope of the project. The court clearly indicated that the scope of the project must be congruent with the scope that was originally proposed by the promoter.

     Thank you. Your time has expired, Ms. Liu.

    Mr. Toet, four minutes.

    Thank you, Chair.

    The amendments of July 2010 have been spoken about a couple of times. I'd like to focus on them a little bit during my questioning here.

    First off, I would ask if you could just give us, seeing as we have a short period of time, a brief outline of what the amendments were about.

    The amendments in July 2010 dealt with a number of aspects principally related to the comprehensive study process. The amendments removed the step in the process where the minister decided on the track, whether it would be a comprehensive study or a review panel. That step was eliminated. Analysis done through our quality assurance program had shown that this step had resulted in considerable delay in the conduct of the environmental assessment.

    Secondly, the amendments consolidated the authority for comprehensive studies to the agency. The agency is responsible for the conduct of the comprehensive study, whereas in the past it potentially had been among a number of responsible authorities.

    The third change was an amendment that allowed the Minister of the Environment to set or limit the scope of the project being assessed. Those amendments have not yet been used, and those amendments...that power needed to be used subject to conditions that the minister set and made public. And conditions have not been set or made public; as I said, the power hasn't been used.

    The last main one concerned the regulations that related to infrastructure projects, that excluded certain infrastructure projects, that related to municipal infrastructure funded through a number of different funds or as a schedule to the act and made a part of the legislation.

    How would you assess the implementation at this point in time?

    As we indicated last week, for all the comprehensive studies that have commenced since the amendments have come into force, we're working fully in sync with provincial jurisdictions.

    As we also mentioned last week, our main client in terms of resource sector at this point of time for these big projects is the mining sector. I'll leave it to the mining association, whom I assume you will invite to appear before this committee, to give you a sense from their perspective of whether the amendments have brought some improvements. But based on our discussions with them, they seem to agree with our assessment that they've brought key improvements, major improvements, in the system at this point in time.

    Your assessment is that it's going well at this point in time.

    Yes.

    I wanted to also talk about the act and the comparison with similar laws in other countries.

    What other countries, if any, use an environment assessment procedure similar to Canada's?

    There are maybe a couple we can speak to. Australia has a somewhat similar regime. Most countries have environmental assessment legislation.

    In Australia's case, they have the same kind of dynamics we have here in Canada. They have the federal level of government and, in their case, state, which would be equivalent to our provinces. The states in Australia have primary responsibility for resource development, and they have their own environmental assessment procedures.

    In Australia the federal government has legislation that's based on identifying where projects have impacts on matters of federal interest. They have eight areas of federal interest that they look at, from the Great Barrier Reef marine park to marine areas to world heritage sites to rare species in ecological communities to nuclear actions. These are things that tend to be in the federal jurisdiction.

    Mr. Toet, your time has expired. Thank you so much.

    Last is Ms. Murray, four minutes.

    Thank you. I appreciate the opportunity to ask questions.

    Could you tell me who in a joint review panel is responsible for the environmental effects evaluation and the possibility of impacts?

    When a project is referred to a review panel--that would include circumstances where the panel is established jointly with another jurisdiction--the panel is made responsible for assessing the environmental effects and reporting back to the Minister of the Environment with their conclusions and recommendations.

     And in the case of a joint review panel with the National Energy Board without provincial jurisdiction, who's responsible for collecting the science information?

    That would be the same. The responsibility is with the panel.

    So does CEAA fund the joint review panel? Where do the funds come from? What budget does the panel draw on?

    With respect to the panel costs themselves, these are shared between the NEB and the agency. We have a cost-recovery system in place that allows us to cost-recover our share of the costs from the proponent, and there are also resources made available to participants in the process. As I explained previously, both the public in general and aboriginal people participate in the review.

    So you have a budget for CEAA, and if you have, for example, a joint review panel with the National Energy Board, between the two agencies you have to come up with the funds that you can possibly recover from the proponent.

    That's correct. In our case, the direct costs incurred by the agency will be recovered from the proponent.

    What happens if there is an element to the project, and just for example, a pipeline project carrying bitumen rather than crude, and there's not as much history and evidence about the impact of a potential spill of bitumen into an estuary or a river? Who does the raw science to identify impacts and the time the material will endure and the kinds of effects it will have?

    At the start of the process--and most panels would work the same way--the panel or the minister, depending on which jurisdictions we work with, because there are some differences there, will issue environmental impact statement guidelines to the proponent. So the proponent is primarily responsible to provide information requested by the minister to the panel, and that forms the core of the information made available as part of the review. All participants in the review may provide their own analyses as well that will be taken into account, and panels typically have their own discretionary authority to request additional studies if they feel it's important to do so.

    So the constraint in some cases may be about time as much as budget. If you have a budget cut but you have some complex science in a new area, if your panel's timeframe is deemed by scientists to constrain or constrict the ability to collect the data, what happens then? Do you still try to adhere to the restricted time scope, or do you get an extension?

    The panels have the statutory obligation that was made clear by court cases to fulfill all the requirements of CEAA, and it's for them to be satisfied in each case that they have all the information they need to report back to the minister.

    Okay, so if--

    Time expired four minutes ago.

    Thank you again to the witnesses for coming here, and we apologize for the short amount of time we had.

    Mr. Hyer.

    Thanks, Mr. Chair.

    Given the interruption today and the short timeframe, could we keep open the option to recall these witnesses at a future date?

    It's up to the committee if they want to call them back again, and that could be handled by the steering committee.

    We hope we will be able to do that.

    Thank you for that.

    Again, we want to thank you for coming.

    We're going to suspend for five minutes so we can get the next group of witnesses ready, and then we will reconvene.

     We'll call the meeting back to order.

    We have Brenda Kenny, representing the Canadian Energy Pipeline Association, and Mr. Richard Lindgren for the Canadian Environmental Law Association.

    Ms. Kenny, we'll start with you, and you have up to ten minutes.

    Thank you for the opportunity to appear here today. I know that you've had a busy morning already, and we hope this will be an interesting session.

    I should preface this by letting you know that I have spent my entire career as a regulator, as an academic, and now as an industry representative, and all of that time has been focusing on Canada as a world leader in regulation and environmental assessment, with a robust outcomes-based regulatory framework. I very much appreciate the opportunity to present to the committee today and offer my perspective and views on the Canadian Environmental Assessment Act review.

    I have some brief context to frame my remarks, and that is that the group I represent currently, the Canadian Energy Pipeline Association, represents the companies that transport about 97% of all of the oil and natural gas produced and used in Canada. Our members operate about 100,000 kilometres of pipelines. We are by far the safest and really only feasible means to transport large volumes of energy over land. Our companies are major job creators, with significant investments on nationally significant projects. These energy highways are how we get around, how we heat our homes, manufacture goods, harvest crops, and get those products to market, so we take our role very seriously.

    Now turning to the issue at hand, the Canadian Environmental Assessment Act, if I leave you with just one thought today, let it be this: CEPA and its members are fully supportive of the federal government's need for full and comprehensive environmental assessment of large-scale projects. We believe these assessments should be conducted by and related decisions must be made by a best-placed regulator.

    For federally regulated pipelines, the best-placed regulator is the National Energy Board, in fulfilment with its mandate under the National Energy Board Act. For provincially regulated pipelines, the applicable provincial process for assessment should be accepted on the basis of equivalency with the federal process under CEAA, expressly limited to those aspects of the project requiring federal decision-making.

    We see precedents for this already in Canada north of 60. The federal government has already acknowledged that CEAA is not the only piece of federal legislation that's capable of delivering comprehensive and robust EA in Canada. In fact, in the Yukon we have legislation that has displaced CEAA for the most part, and that model has various legislative platforms that we believe could be applied south of 60.

    Why do I turn to the National Energy Board Act as the reasonable outcome for that proposal? It is that under its public interest mandate, the National Energy Board has the jurisdiction, and in fact has required an assessment that exceeds the scope of that required under the CEAA. Specifically, the NEB looks at a project through a wider public interest lens and incorporates environmental impacts, as well as social and environmental issues on a project. The NEB is fully staffed with technical staff who understand the role of pipelines, their impacts, and address on a full life-cycle basis what actually happens in the field, returning that into the project planning and future projects. It is overseen by a quasi-judicial board whose decisions are grounded on fact-based evidence, and it provides a fully public transparent process and provides funding for public participation where required.

    The mandate of the NEB is fully consistent with and can facilitate the achievement of the EA for projects consistent with the protection of the environment and capable of delivering important decisions. In other words, by looking at projects through a holistic and wide lens through its public interest test, the NEB is the federal authority best placed to deliver decisions that are consistent with Canada's commitment to sustainable development, and this is in keeping with longstanding global principles on sustainable development, including those created in Rio almost 20 years ago.

     I would like to say a word about self-assessment, because that is, at core, a fundamental premise of the Canadian Environmental Assessment Act as it sits today. Quite simply, self-assessment requires decisions about projects that impact each and every federal decision-maker. Typically, a federal pipeline will trigger the need for assessment decisions under CEAA but also in fisheries, transport, NEB, migratory birds, and SARA. There are various mechanisms at the policy and administrative level to try to avoid any avoidable duplication in the preparation of the assessment. Frankly, attempts to coordinate have been very ineffective. We still face a high level of redundancy, which dilutes the ability to focus on environmental outcomes that matter most and is certainly wasteful of precious government resources and those of companies.

    Why would the government continue to work within a system that was intentionally built around redundancies instead of simply finding more effective ways of delivering good outcomes on the environment and in the national interest? CEPA strongly advocates for one process and one decision-maker comprising regulators that have accountability for the full life cycle of a project. They would understand the impacts from the planning stage through construction, operation, and eventual retirement of that asset.

    As an industry association representing the companies that operate and build critical energy infrastructure in Canada, these are our recommendations to you: continue to advance regulatory reforms that will allow for timely decisions; enhance the investment climate and build the economy; but absolutely retain the appropriate federal capacity to implement permitting requirements to ensure that the environment is well protected. You can achieve all this by allowing the delivery of assessment by the best-placed regulator.

    I thank you for the opportunity to discuss this with you, and I look forward to your questions.

    Thank you, Ms. Kenny.

    For up to ten minutes, we'll have Mr. Lindgren.

    Thank you, Mr. Chair.

    Good afternoon, members of the committee.

    On behalf of the Canadian Environmental Law Association, or CELA, I would like to thank the committee for this opportunity to speak to the Canadian Environmental Assessment Act. We believe that the committee's review offers a very important opportunity to make sure that CEAA is strengthened and its implementation is improved across Canada.

    As you know, the Canadian Environmental Law Association is a public interest law group that was established in 1970. Our mandate is to use and improve environmental law to protect the environment and to protect human health and safety. We generally represent concerned citizens, low-income communities, and environmental groups in the courts and before tribunals on a wide variety of environmental matters.

    Since our inception, CELA has long advocated federal environmental assessment legislation that is effective, efficient, and equitable.

    I recall, about 20 years ago, I appeared before a parliamentary committee to speak to CEAA when it was first being introduced. I didn't wear glasses then and my hair was longer, but some things never change.

    We also participated in the first parliamentary review of CEAA that occurred from 2000 to 2003, and last year we appeared before a couple of parliamentary committees to speak to the amendments to CEAA that were contained in Bill C-9.

    I should also mention that over the years CELA has been representing clients in various environmental assessment proceedings under CEAA. We've participated in screenings, we've participated in panel reviews, and we've participated in comprehensive studies. We've also intervened in the Supreme Court of Canada in matters that involve the federal environmental assessment program. For example, I was the lawyer who represented the environmental groups who intervened in the MiningWatch decision that was rendered by the Supreme Court of Canada last year. And we've also been engaged in other litigation in the Federal Court in cases involving the interpretation or application of CEAA.

    Mr. Chairman, members of the committee, based on our experience and our public interest perspective, we'd like to address two general topics before the committee today.

    The first topic is the scope of the review and the principles that should be driving the review. In our submission, the committee should carefully consider the findings and recommendations made in the committee’s 2003 report on CEAA, which, as you know, attempted to set the stage for this current review. This means, in our submission, that this review should be thorough and comprehensive in nature and it should include not only the act itself, but also the relevant regulations and other administrative matters such policies and guidelines. Furthermore, in our submission, the review should be guided by two fundamental principles: the first is that any proposed amendments to the act or to the regulations must be developed in an open and accessible manner that provides for meaningful opportunities for input by members of Parliament, public officials, interested stakeholders, and the public at large.

    In short, we don't want to see CEAA amendments buried in any more budget bills. That's not the right way to do business; secondly, any proposed amendments to the act or to the regulations must be clearly consistent with the purposes and duties set out in section 4 of CEAA, and those amendments must enhance, not erode or roll back, existing public participation rights under CEAA.

    The second general topic I'd like to address briefly today is the substantive content of the review. In our submission, while there may be various CEAA matters that warrant the committee’s consideration, it's our view that there are five high-profile, high-priority matters that deserve careful examination and reporting by this committee. In summary, these five issues are as follows: one, the need for environmental assessments under CEAA to evaluate whether or to what extent a project is making or will likely make a positive net contribution to ecological and socio-economic sustainability; two, the need to reconsider self assessment under CEAA and to ensure greater rigour in the identification and analysis of cumulative environmental effects at both the local and regional scale; three, the need to establish a robust legislative framework for a strategic level environmental assessment of governmental plans and policies and programs; four, the need to ensure meaningful public participation in all stages of project planning, particularly during the critical upfront determination of the purpose of the project and the consideration of alternatives to the project; and finally, five, the need to establish and enforce environmental assessment permits with binding terms and conditions under CEAA.

    Now, Mr. Chairman, members of the committee, in order to assist you in evaluating those issues and other related issues, it's our intention to provide the committee with a more detailed written brief in the coming weeks, where we can flesh out some of these issues and provide perhaps an approach or some suggested legislative wording that might assist in addressing these issues.

    In closing, Mr. Chair, I'd like to thank the committee for this important opportunity to provide our initial recommendations to the committee on CEAA reform and CEAA review, and we look forward to further participation in this process.

    I look forward to the committee's questions.

    Thank you, Mr. Lindgren.

    Before we begin our speaking order here in the first round, which will be seven minutes, beginning with Ms. Rempel, if somebody in the committee feels a point of order should be raised, you would speak out, “point of order”, as opposed to raising your hand. If we have somebody speaking, one of you is asking questions; if I see a hand raised, I will not recognize that hand, because that person has the floor and is asking questions. So if you want to raise a point of order, you'd have to verbally say that, and that will stop the proceedings and then you would present your point of order. Okay?

    A point of order should be used only rarely, if you think something is not happening properly based on our policy.

    With that, we'll begin our seven-minute round with Ms. Rempel.

    Thank you to both witnesses for your presentations today.

    My question is for Ms. Kenny. You spoke about the need to have appropriate environmental assessments and that your membership certainly feels strongly about that, as do we, but you also spoke a bit about the impacts that delays or inefficiencies in the process might have on business, etc. I was hoping that you could speak succinctly about perhaps some bullet-point sorts of items on how you—and perhaps some of the member companies that you represent—feel CEAA could be made more efficient and more predictable without sacrificing environmental protection.

    First of all, I would point to the fact that environmental assessment is really an important early planning tool, and it in no way can duplicate details to follow. So I think you've got to focus on a timely decision about whether or not a project should proceed, given strategic information and the possibility of significant effects and appropriate conditions that guide the later details. So that's one important point. It has to be timely, and you need to be able to get to those public interest determinations in a way that does not rush through significance but is effective.

    Secondly, in our view, that should be combined with other public interest considerations, not at all to usurp environment, but to be able to make sure that you're fully addressing environment within the context of how you would do your construction--the details of your plans. That is part of the early planning that we believe is already well within the mandate of the National Energy Board, and has been represented in their section 52 for years. In fact, they have a broader, deeper, and bigger scope for environmental work than the actual current CEAA does.

    Those are two key points. Move the CEAA accountability into the NEB, make sure that it's strategic, and make sure there's good follow-up after a public interest determination has been made.

    Would you say it's accurate to say that environmental considerations are worked into your planning process for your member companies at every stage of their planning processes?

    Absolutely. In fact, there's no proponent who would put a multi-billion project at risk by trying to cut corners on that. The engagement is key. In fact, we've done studies within our own association across real projects involving proponents, government agencies, and NGOs, and have discovered that the modern approach to a large project actually mimics very well the intention of EA, embeds it, and when done well can result in a public hearing that's actually quite brief because the major issues have been dealt with and people acknowledge that it's fine. So I think that's a critical component and something we take very seriously.

     Would you also say it would be accurate that the planning process, the environmental review process, we see in Canada is perhaps one of the world-leading standards with regard to this area?

    As far as project development, I would think, yes.

    These are very sophisticated; a lot of advanced science is applied, well-known procedures that are improved over time and have been demonstrated through follow-up to be quite effective.

    You also spoke about the impact your association has with regard to economic development. Again, in the context of understanding that environmental protection is foremost, but also recognizing that your association—through its member companies—does create a large amount of economic impact for this company, could you give specific examples where unpredictable or inefficient environmental assessments have harmed investment in projects?

    For one thing, any time there's a significant delay, you're adding economic risk, which will heighten the cost of capital, and that has an immediate impact, which can be fairly significant, to say the least. If you also have construction delays and you've got crews on standby because perhaps you're waiting for a late permit, even though it's been ruled to be in the public interest, that can clock into hundreds of thousands of dollars a day without having any impact whatsoever on the environmental effect.

    You also see at the largest scale projects such as the Mackenzie Valley project, for instance, for which Canada may have lost its economic window, and for a whole generation the folks in the north who wanted to see that project go ahead and gain that revenue from their own resources have been scuttled.

    We need to be very clear about how timeliness does matter, windows of opportunity for Canada matter, and the costs mount considerably when there are undue delays.

    That does not mean we should rush if there are things that need to be looked at, but it does mean we need to be focused on the results that matter and very strategic in how we manage the way in which we use cumbersome processes that don't improve environmental outcome.

    Amendments made in July under the Jobs and Economic Growth Act partially consolidated the authority for environmental assessment by making CEAA responsible for most comprehensive studies.

    Have you had any feedback whether it's made it easier for members of your association to navigate environmental assessments?

    Any consolidation is helpful because it focuses attention. As I mentioned in my opening remarks, most of our members would prefer to see consolidation, meaning that the National Energy Board is asked to take the lead. That is a routine approach, and the results have been very positive in terms of results in pipelines. We believe that's a great avenue to ensure that environmental protection is solidly a part of every project design.

    Further consolidation could occur by providing the agency with more authority to deal with what are now larger screenings, and providing the minister with more authority with respect to major projects. In effect, this would remove the two-step decision-making process after a comprehensive study where the minister takes an environmental assessment decision, followed by responsible authorities' environmental decisions.

    Would this further consolidation make environmental assessments more predictable and straightforward for your membership?

    Yes. Removing multiple steps is certainly helpful.

    Again, if the focus is on environmental protection, you have to ask, do these extra steps result in a better outcome? In our experience, generally the answer is, flatly, no.

    Time has expired. Thank you very much.

    Mr. Hyer is next, at seven minutes.

    Thank you, Mr. Chair.

    Hi, Mr. Lindgren. Welcome.

    Thank you.

    I have a lot of questions for you, so I'm going to try to be quick, so how about your trying to be time-effective and see if we can get them all in.

    First, you underscore that public participation is critical. You seem to imply it's inadequate, so who should we...? There's the question of CEAA, and then there's also our committee. Do you have any suggestions on who this committee should call as witnesses in addition to you?

    Is it worthwhile for this committee to travel, and if so, where and how? Should we take this on the road?

    Particularly, do you have any ideas for us or CEAA relating to first nations?

     In a concise statement, could you deal with all of that?

     Well, certainly I would recommend that this process be as open and as inclusive and as accessible as possible. If that means taking this committee out on the road to hear directly from affected first nations, environmental groups, and others who would like to see a rigorous environmental assessment process or who may have some interesting stories or recommendations to make, I think that would be beneficial, so as to hear directly from all the interested stakeholders and not just the few of us who can make it to Ottawa from time to time.

    One of your five points dealt with the self-assessment model in CEAA. The commissioner and you as well have repeatedly raised the issue of cumulative impacts and how we deal with them, and of the inability so far of the agency to deal with them effectively.

    How should the agency ensure that responsible authorities are conducting good-quality environmental assessments, including those with cumulative impacts, which seem so hard to deal with?

     I could think of a variety of means to beef up the cumulative environmental assessment analysis. First of all, there are some guidelines and policies to provide guidance to practitioners that could be reviewed and probably improved in terms of what we're really looking for.

    As well, a number of observers and EA practitioners have recommended that perhaps, at least with respect to smaller projects, the best way to look at cumulative environmental effects is to conduct regional-level assessments of various types of programs and try to get at the issue that way, rather than put the burden on proponents of individual projects or the responsible authorities to try to do it on a case-by-case basis.

    You've led right into my next question. You mention strategic-level environmental assessment for government plans, policies, and programs, whether regionally or nationally. Would you like to amplify that a bit?

    Well, I think the committee made a great start on this whole issue back in its 2003 report. It made a series of general recommendations on how that should be done and what the parameters should be and how we can build some accountability and predictability into a strategic-level environmental assessment. I think those are grand ideas, and I think they need to be implemented.

     I was thinking on the way here about what would be a good example of this. I'm involved in a screening of an ethanol facility that's being proposed for the Oshawa waterfront. It triggered the screening because it wants some federal money to go ahead. There is a federal program available to ethanol proponents to build and operate refineries. We're duking it out with the proponent and the consultants as to whether ethanol really is a good idea.

    But we're doing it on a site-specific or project-specific basis. I think it would have been really great, before the federal government instituted the program making funding available for such projects, to take a look, at a broader, more strategic, or national level, at whether or not ethanol is where we want to be. That, I think, would have made it easier for project proponents to get through the process, because some of the big-ticket questions about whether this a good idea or whether there are better ways to get at it would have been answered in another process.

    That's a good, concrete example of areas in which we could probably get at some of these bigger questions and fundamental issues through higher-level environmental assessment.

    And you've led again into my next question.

    The commissioner felt that screenings were not being done well. Would you agree? And is it a problem within the act? Do we need to change something in the act to make it more effective, or is it just poor coordination by the agency in terms of how they're administering the act now, or both?

    I think the act is fine in terms of the content requirements for screenings. But sometimes there's a disconnect between what the act requires and what responsible authorities are generating in the form of screening. There is an opportunity for perhaps better outreach and educational and professional development that could be delivered by the agency, so that responsible authorities and the proponents and others know exactly what's expected of them when they're trying to complete a screening.

    I would also say in fairness that the quality of screenings has been mixed. I agree with the commissioner that there have been screenings of questionable quality—let's put it that way. But I've seen some good screenings, too. This identifies a need for perhaps better outreach and better education for people who are doing the screenings, so that they fully understand their legal obligations in terms of environmental content.

    Do I have time for one more question, Mr. Chair?

    Yes, you do.

    The commissioner also recommended that CEAA should deal better with coordination between various agencies concerning scoping and various things. You're not going to be able to do this in the next minute, but you have indicated in your brief that you're probably going to send us more material later. You may want to comment now, but I hope you'll give us some advice on just how we would go about improving ministerial discretion in scoping when there is more than one authority.

     How could better coordination occur? How can we best resolve these jurisdictional disputes in some cases, or just inadequacies in other areas?

     You have 20 seconds.

    I will certainly undertake to address those issues and others and write a report. I can't do it in 20 seconds.

    Thank you so much, Mr. Hyer.

    Next is Mr. Lunney.

    I thank both witnesses for being here today. It's an important discussion we're having. I note that Ms. Kenny started by commenting that she'd been around as a regulator on these issues for most of her career.

    Mr. Lindgren, I noted that you commented that you have been around the table on these particular discussions for some time. You mentioned that you had a little more hair when you started. I identify with that remark. I've been around the table a little while myself. I think you've done a better job of holding onto your hair.

    Having established that, my question is actually directed towards CEPA.

    CEPA was one of nine signatories to a letter on June 30, 2011, to the Minister of Natural Resources. That letter noted improvements to the coordination of federal environmental assessment as a result of the Jobs and Economic Growth Act passed by the government. CEAA is now responsible for most comprehensive study-level environmental assessments.

    Could you please elaborate on the position that CEPA took at that time in support of improvements coming out of the Jobs and Economic Growth Act?

    We found that it was important to achieve what clarity was possible in some of those kinds of fixes. The coordination was critical. We need to be able to simplify EA and focus efforts on things that matter most.

    Our central belief is that you have to be focused on outcomes rather than process. Process is important, but outcomes matter most. Consolidation allows you to exercise better focus and also allows you to learn from experience and exercise it. We just heard in the last comment that sometimes, for example, screening quality can be mixed. Consolidation can help with it.

    We remain of the view that best-placed regulators are the way to achieve this. There certainly are many important functions for the agency to pay attention to in cases in which there may not be a best-placed regulator, but where there are best-placed regulators, leverage them, because they will deeply know what's going on with those projects day in day out and will be able to deliver the best possible outcomes.

    Thank you for that.

    CEAA is triggered when there is a federal decision about a project.

    Yes.

    But there are projects that have environmental effects in areas of federal jurisdiction but that do not require an EA because there's no associated federal decision.

    Should there be authority to require an EA based on the potential for environmental effects upon matters within federal jurisdiction?

    For the most part, if there are interests of federal jurisdiction, there is currently an overlap through permitting. But central to a national-interest perspective and modernization in Canada, we need good EA across the board and attention to best-placed regulator and equivalency, so that we have appropriate outcomes across the nation.

    I point to a small anecdote. We now in the Major Projects Management Office have a queue of $120 billion worth of major resource projects. What I'm about to share with you is anecdotal, not a detailed survey, but I'm told by proponents that typically they'll spend anywhere from 3% to 5% of their capital on a project addressing EA. On $120 billion, that means we're about to spend $6 billion on process in Canada. When I ask friends of mine who are NGOs or bureaucrats or in companies how they would spend $6 billion if they were going to protect the environment, some of it has to be for good early planning processes and appropriate EA, but let's not think that this is actually going to deliver the best bang for the buck.

    Specifically on the issue of how to address federal interests when there's a provincial project, I think we're much further ahead to advance best practices, use the best-placed regulator, and deploy good science and monitoring so that we know where we are with the environment and are on a continual improvement track transparently.

    Thank you for that.

    CEAA relies on enforcement powers in other acts, so this question is related to that. Legal constraints and problems of accountability and expertise mean that mitigation measures in areas of federal jurisdiction are not necessarily applied to a project. Should the enforcement gap be closed by adding enforcement provisions to CEAA?

    I think again that we have to be clear. Environmental assessment has as its primary purpose early planning. There has to be a focus on whether there is something to be worried about and, if so, how we are going to address it. To me, that's the fundamental premise and the most important thing in EA. I don't think that elaborate enforcement mechanisms are going to get us over the goal line, necessarily. We definitely need conditions that are important information as to how to design and advance the project and we need follow-up, to know how it turned out.

     Okay. Here's a question then that relates back to one I didn't get to ask the last set of witnesses, and I'm curious about your take on this.

    Many of the projects that are captured by CEAA are ones that have been done repeatedly in other parts of the country--highway construction, for example, or bridges over a waterway, pipelines across waterways--and they've been doing these things for a long time. We've had long experience with these things. Should it be possible just to deal with these things through regulation, so that there is some observation and enforcement to make sure that what everybody expects to be done is done?

    Yes.

    Would it be helpful to come up with regulations on things like bridge crossings or other areas, instead of triggering CEAA every time we go to do a simple project?

    I think there's a lot of merit to consider that possibility, particularly where they are routine. If the purpose is early planning and you've essentially done the early planning by applying best practices, that's a good tool. We should be leveraging that much more directly.

    We can't rely on process to protect the environment. We need to rely on good engineering and leading practices and continual improvement. If this is what you're getting at, should there be regulation, let's focus on how to get to the best outcome and follow through. It's not just about EA, and that's why we really lean to best-placed regulators. Again, the example we use on a large federal project is the National Energy Board; they've overseen tens of thousands of river crossings over the last 40 years. They know what works, what doesn't. We know what works, what doesn't. We apply best available technology, monitor and continually improve.

    Thank you. Your time has expired.

    And our last speaker in this round is Ms. Murray, seven minutes.

    Thank you.

    Most of my questions will be to Ms. Kenny.

    You made an early comment that these processes need to be efficient and timely. I'm all in agreement with that. I know that most proponents would like a quick no rather than a long, dragged on process that might end up in a no. I know in the British Columbia EA process, one of the changes that was made in the previous decade was to put in an early off-ramp, because before if a proponent got in the process, they had to go through the whole process, even if it was clear early on. Is the off-ramp process adequate in CEAA'S structure, or is that a potential place to focus on getting an early no so that you're not tied up and the regulators aren't tied up unnecessarily?

    I think what's important is to get to early decisions about whether or not a particular project is in the public interest, and that means keeping a focus and a rigour and a discipline in that early planning stage on strategic issues that are of high importance. And if you get to a no, you get to a no. If you get to a yes, you proceed on the basis that this project is in the public interest and all matter of further detail is oriented toward getting the best possible outcome rather than prohibiting action.

    Okay, so it would be helpful to have a clearer off-ramp, it sounds like.

    A strategic early review to get to an early public interest decision.

    Now I have a question in regard to your comments about how comprehensive assessments have been consolidated under CEAA but you're proposing that they should be deconsolidated, I guess, and put into the hands of regulators that are entrusted in a specific industry, so that would mean we would have not consolidated. There would be potentially fisheries, mining, oil and gas, wind, hydro, thermal. So wouldn't that be the opposite of consolidation, to have environmental assessment be in the National Energy Board's hands for your pipeline industry?

    With respect, the CEAA legislation itself contemplated from its origins that there are reasonable alternatives. That's why they have a clause about substitution, which has been used very sparingly and came into force with the change to the National Energy Board Act enabling participant funding, which our sector completely supported. We believe public participation is an important element to that. So consolidation doesn't have to just be within CEAA. So no, we're not arguing for deconsolidation at all. Keep in mind as well just one important feature: for the self-assessment within the current legislation, about three-quarters of that is about federal government projects, not private industry projects. So there is a big difference in how you want to structure your approaches on those two things. And for private industry, where there is a major regulator they are the best-placed regulator, in our view.

     I was quickly looking up....The term “best-placed” I find an interesting one when the idea of the regulator that describes itself on its website.... And you'll forgive me if I take a moment for this--

    That's fine, certainly.

    It says on their website:

    It never mentions environment anywhere in there. So this is an organization that has not seen that a key purpose includes protecting the environment--

     I think you'd have to look at section 52 of the National Energy Board Act and recognize that the origins of their mandate are very much a fully embracing public interest--

    I hadn't finished, sorry, when you interrupted there.

    Ms. Brenda Kenny: Pardon me.

    Ms. Joyce Murray: So when the core of an environmental assessment process is to ensure that is given weight, having an organization that has another core mandate I think would be a very dramatic solution.

    I want to comment that I was just at a day-long event with the major construction companies and proponents. British Columbia has a lot of development going on, good stuff, and not once did the EA process even come up as a barrier. The biggest barrier that was heard there is the lack of skilled tradespeople and apprenticeships and that there was going to be a huge gap in being able to get enough skilled people to do this work.

    I would like to understand how in reviewing CEAA such a dramatic change would address the real problem with these major development projects.

    First, no doubt you would have heard from those suppliers that labour is of high concern, and certainly it is. So I'm not sure what the specific topics of that conference were, but I've been to many myself that are focused on that aspect.

    However, getting to decision-making in a way that's strategic and timely does not at all meaning rushing, but not languishing either--so we can know, as you said, if it's in the public interest or not, and if it's not, then we will invest elsewhere.

    The central point here is that for a group like the National Energy Board, this is not at all a departure from common practice that has been in play for decades. CEAA screenings are routinely done by the NEB currently, and many of those screenings can be very large, leading to full public hearings. A good example was 147 kilometres of looping through Jasper National Park. It rated as a screening under the definition of CEAA, but by any measure was clearly a critically important project.

    Okay, thank you.

    If I have any remaining time, I'd like to hear a comment from Mr. Lindgren.

    Would you imagine there would be different outcomes and differences to the mitigation that would be proposed if an industry-entrusted regulator were the sole point of regulation?

    Unfortunately, time has expired. If you would like, I can give you 15 seconds.

     I'm a little nervous about the proposal to simply hand off EA responsibilities to regulatory agencies. That's not what CEAA is all about. I can't speak to the National Energy Board situation. I don't practise before that tribunal. But I do get involved in matters before the Canadian Nuclear Safety Commission, and let me just say that that commission's legislation pales in comparison to the requirements set out in CEAA. So I'd be very nervous about any proposal that would send EA obligations solely to that commission.

    Okay, thank you.

Mr. Blanchette, you have five minutes.

    Thank you, Mr. Chairman.

    Mr. Lindgren, in your presentation you spoke about significant public participation in principles and priority issues. That seems to be an important point, in your opinion.

    Whenever consultations and assessments are being done, of course public participation is important to the extent that it contributes to increasing public approval of the project as such. What link do you see between public approval and significant public participation?

    In that context, can you tell me where the best practices are used in this regard? What should the committee study to improve those practices?

     Thank you for your question. I'm sorry, I can't respond en français. I only speak two languages, which are English and legalese.

    I would look to what happened here in Ontario in the late 1980s and also in 1996. We had something called the Intervenor Funding Project Act, which was a mandatory requirement upon proponents to provide adequate levels of participant funding to interested parties. That was a highly effective, well-regarded program that was terminated, I would suggest to you, for larger political reasons in Ontario. There are some good lessons to be learned from that process, because it enabled people to retain the technical and scientific expertise that is necessary to fully participate in these sometimes complex environmental assessment processes.

    I know some will suggest that while we have participant funding for comprehensive studies and joint review panels, etc., under the CEAA.... We do. I question, first of all, the quantum, the amount of the money that's provided to public interest groups and others under the CEAA process.

    I'll give you a good case study. My colleagues and I are currently involved in the joint review panel that's going to start next year on the proposed deep geologic repository for low-level and intermediate-level radioactive waste on the Bruce Peninsula. CELA, my group, has been awarded a grand total of $37,000 to assess what is probably a multi-billion-dollar project, which has been in the planning process for literally years. The proponent, Ontario Power Generation, probably spent millions of dollars in assembling the technical and scientific material needed to prepare the 10,000-page environmental impact statement that's been filed.

    Yes, we have participant funding at the federal level, but it's a mere drop in the bucket compared to what proponents are spending. If we're really going to be serious about increasing public participation, we need to look more seriously at increasing the participant funding program.

    When you talked about priority issues, you mentioned ecological and socio-economic viability. When a project is presented, clearly it is important that it be profitable, but it must also be in the public interest and contribute to society.

    I would like you to expand further on the links between economic and ecological viability.

    One of the main purposes of the Canadian Environmental Assessment Act is to make sure that ecological, social, and economic considerations are fully integrated and duly considered at the same time. That's a stated objective of the CEAA. You see it in the purposes of the CEAA. You see it in the preamble. I am not entirely sure the EA track record over the past decade or two really matches that rhetoric.

    Unfortunately, these EA processes tend to be fixated on impact mitigation. What are the environmental impacts? Are they likely to occur? Are they significant? Can they be mitigated? That really amounts to an exercise that is asking the question of how we can make a potentially harmful project less impactful or dangerous. Those are important considerations, but it's missing some of the important questions, like how does this project actually contribute to the overall ecological integrity of our natural resource base, the thing we depend on to get by?

    I see Mr. Chairman giving me the wave, so I'll end with that. We need to get serious about ecological sustainability. We haven't to this point under the CEAA

    Thank you, Mr. Blanchette.

    Next we will hear from Mr. Sopuck. You have five minutes.

    Since time is tight, I hope we can all be brief.

    Mr. Lindgren, over time has the federal environmental assessment process in your view gotten better, worse, or stayed the same?

    There's no right answer to that.

    I see some successes. I heard the president of the agency here last week indicating that one of the most successful aspects of the CEAA is the registry. I agree with that. That has been a success. Then I look at screenings that don't do a very good job at identifying mitigating environmental impacts. I see joint review panels that may or may not have missed some of the big-ticket questions. I would say the track record has been mixed.

    It has basically stayed the same if you net everything out, in your view.

    On the theme of environmental outcomes, as opposed to environmental process, I will note that in your presentation it was entirely about process. I'm kind of an outcomes person myself. In your view, Mr. Lindgren, is Canada's overall environmental quality getting better, worse, or has it stayed the same?

     Again, it depends on which parameters you're measuring. It also depends if you're looking at it at a national, regional, or local level. Air quality has gotten better in some areas, in some areas it's gotten worse. Water quality, better in some areas, in some areas worse. It's hard to generalize. I'd like to think that the environmental assessment process under other regulatory regimes has incrementally improved the situation over the early 1990s, but it would be hard to find evidence of that in all aspects.

    The WHO just recently put out a report that said that Canada, along with Australia, has the highest urban air quality of any industrialized country—the highest urban air quality in the world. I assume they surveyed cities right across Canada. I think the argument can be made, and I happen to be a biologist by training, that in many, many, many cases, Canada's environmental indicators have improved.

    Ms. Kenny, there's a number of pieces of legislation that are out there. Of course, we've got SARA, we've got the Fisheries Act, we've got CEPA, the Migratory Birds Convention Act, the National Navigable Waters Protection Act, and existing provincial environmental statutes. Proponents have to take into account all of these acts and regulations at the federal and provincial levels in the planning of their projects, and they have done everything they can to ensure they comply with these statutes. Is that true?

    Yes, definitely.

    I asked the question in the spirit of being concerned about the environment itself, as opposed to process. What is the actual environmental value added from the CEAA process, in your view?

    We're supporters in our sector of good-quality, early planning around environmental protection, which gets embedded into how you propose to do a project, and you're open to challenge that in an open and transparent process. So the central point of good EA is to make sure that's embedded in how you're thinking about the project, and all of those factors--whether it's species at risk, migratory birds, fisheries habitat, and the like--are components of what you turn your mind to early, and also engage with many stakeholders well in advance of filing any applications.

    Right. So these statutes are taken into account in the process of planning a project?

    They're fully taken into account both for the substance and also the investment risk. Frankly, you don't want to be sitting on a $10-billion project having missed a component that could slow you down. But the first driver is have you covered the bases? Do you know what the risks are? Are your stakeholders giving you the information that's going to help you do that?

    Are you confident, Ms. Kenny, that in the case of large projects the bases are being covered by proponents?

    I'm confident that between the track record, particularly in pipeline.... I mean, these are not rocket science. These projects are relatively routine. We know what we confront on those. We engage people around them and apply the best available science, and we are tested publicly, particularly where it's in a regulator such as the National Energy Board. We're subjected to the equivalent of a joint panel review for even the smallest projects.

    I really appreciated you comments, Ms. Kenny, on the Mackenzie Valley pipeline, because having worked on the Mackenzie Valley pipeline as a biologist back in the early seventies, I was astonished at the recent process for the Mackenzie Valley pipeline. I think you were bang on when you talked about roughly a 34-year process, with zero outcome, and what we're left with is impoverished communities in the north, all the while knowing that we can build pipelines in an environmentally sound way.

     Is that a fair characterization of what happened?

    I would say it has put us as a nation at a disadvantage, indeed, yes.

    What is your view, then, Ms. Kenny, in terms of legislated timelines for CEAA and other environmental assessment processes?

    I think legislative timelines can be helpful. I think you need to be careful. You need the appropriate length of time for a review. Legislative timelines on permitting after a public determination, absolutely--you know it's in the public interest, let's get on with it. That would be where I'd put the focus.

    Thank you so much.

    Again, we want to thank both witnesses for being with us today and for your testimony.

    We have witnesses lined up, colleagues, for Tuesday already, and we do ask for materials to be distributed to you so you have time to read them ahead of time. As soon as we get them, the clerk will forward them on to you.

    Ms. Rempel.

    Perhaps one additional comment, Mr. Chair.

    I know that Mr. Lindgren had said that he would be submitting an additional proposal. That's wonderful.

    Ms. Kenny, if you're interested, we'd also like to extend the same invitation to you as well.

    Thank you. I certainly intend to do that for the committee.

    Thank you.

    Thank you.

    Yes, submit them to the clerk, and they'll be distributed to the members.

    With that, the clock is at one. I would entertain a motion to adjourn.

    An hon. member: So moved.

    The Chair: Thank you.

     The meeting is adjourned.