My name is Jacob Irving, and I am the President of the Canadian Hydropower Association. Joining me is Ed Wojczynski of Manitoba Hydro, the chair of our association's board of directors.
The CHA is the national voice for hydro power in Canada. We represent generators, manufacturers, engineering firms, consultants, and construction companies.
Sixty per cent of our electricity is hydro power. Canada is the third largest producer in the world. This makes our electricity system one of the cleanest and most renewable anywhere. As big as we are, we could still more than double our current hydro power capacity, and that potential is spread across every region of the country. It is truly a national resource.
Through hydro power, Canadians have an outstanding opportunity to fight air pollution and climate change while securing our sustainable energy future. Today we'll focus on how Bill can contribute to that future.
Hydro power facilities can be small or large. Many can be very large indeed. For example, the January edition of ReNew magazine reported that four of the five largest infrastructure projects in Canada are hydro power projects.
According to a recent study we conducted with the University of Montreal, hydro power developers are contemplating investing more than $125 billion in Canada over the next 20 years. This new capacity would help satisfy domestic and export demand. The study estimates it would also create over a million new person-years of employment across the country.
To make these investments with confidence, the hydro power industry needs regulatory efficiency and predictability. Unfortunately, the current federal environmental assessment and authorization regime cannot adequately provide this. I believe you'll find that our message to you today is consistent with what we have been saying about regulatory reform for many years.
Our projects undergo federal EAs and must secure authorizations under other federal statutes, while at the same time dealing with provincial EAs. The result is duplication, delay, and uncertainty. This can discourage investors from supporting renewable electricity in Canada.
An important commercial advantage for hydro power is its very low operating cost. However, its upfront capital costs are relatively large. Hydro power investors are especially sensitive to delays and uncertainty because they must commit substantial capital well before revenues can be generated.
Please though, do not misread me or the CHA members. Environmental stewardship is a priority for our industry. We support a strong and robust EA process, and we support the protection of fish and the recovery of species at risk. We are not asking for a weakening of environmental protection. Hydro power has grown up alongside environmental regulation and environmental regulation has grown up alongside hydro power. Our extensive experience and long-term perspective make us want a healthy and effective regulatory process. This is good for the environment, our industry, and Canada.
We strongly believe that we must continuously work toward social acceptability in our activities. Our members strive to earn this acceptance through hard work with aboriginal and other communities. We also reach out to a wider range of stakeholders, including environmental groups. We start consulting long before any formal EA process begins.
We believe all stakeholders would benefit from an efficient, timely, predictable, and consistent federal EA and authorization regime that also works smoothly with provincial EA processes and environmental regulations.
Bill is helpful in addressing many of these issues.
At this point I would like to call on CHA chair Ed Wojczynski to continue our presentation.
The Canadian Hydropower Association welcomes the new Canadian Environmental Assessment Act. It will reduce federal-provincial overlap and duplication, which costs taxpayers, electricity ratepayers, and project proponents. Bill C-38 reforms will concentrate the federal process on areas of federal jurisdiction. They will put the emphasis on projects that are likely to have significant impacts. The process improvements should allow the system to comfortably accommodate the timelines proposed in CEAA 2012, and provide quality environmental assessments. Proponents will be able to dedicate resources to really solving priority environmental issues without being sidelined by process distractions that do not contribute to actual environmental outcomes.
I’d like to emphasize that predictability and timeliness in project review and authorization are critical to our industry. Currently, the approvals for major projects in Canada take about four years. Developers usually begin environmental studies many years before the official EA starts. This is too long for investments that are sensitive to market timing, especially in comparison to the shorter time to market for competing fossil fuel generation. Delays can have a significant impact on project economics. For example, even just a one-year delay in Manitoba Hydro’s proposed $8 billion Conawapa generating station would result in a half a billion dollars in lost revenue. This represents a loss to Manitobans and a loss of export revenue to Canadians.
But the impacts of a faulty regulatory system can be even broader. They can lead to suboptimal choices both for the environment and the economy. Let me give you an example, again from my own company. Manitoba Hydro recently signed power purchase agreements with Minnesota and Wisconsin for future electricity delivery, and we need to invest over $15 billion to expand hydro facilities to meet the contract requirements, while also meeting Manitoba’s growing domestic requirements.
We are a preferred supplier in the U.S. and elsewhere. Our electricity is clean, renewable, and reliable. We will act as a battery to support wind power in the mid-west of Canada and the U.S. Our hydro would displace thermal generation and reduce greenhouse gases and air pollution in North America. If the EA process runs more slowly than expected and we miss our contract deadlines, the contracts can be cancelled. Manitobans and Canadians would suffer significant economic losses.
Just as important, though, is that our customers would turn to U.S. coal or gas-fired generation to meet their needs. The advantages of reducing greenhouse gases and air pollution by using Canadian hydro power would be lost. The answer is not imposing new timelines on the old system. The current regime has problems of duplication, inefficiency, lack of focus, and lack of coordination. We believe that Bill C-38 addresses these fundamental challenges.
Bill C-38 also addresses other legislation important to us. The Canadian hydro power industry supports the protection of fish and fish habitat, but the Fisheries Act has been a source of frustration, especially regarding its undefined authorization processes and its tendency to overlap with provincial fish protection statutes and regulations.
DFO has imposed mitigation measures on hydro power developers that are sometimes disproportionate to the potential environmental improvements that are being sought. The proposed changes to the Fisheries Act offer better clarity and an ability to reduce duplication with provinces. The ultimate implications for hydro power will strongly depend, however, on regulations that are yet to be written. We believe that if sound regulations are adopted, both fish and the hydro power industry will benefit.
We are keen to be engaged in this important future work, in terms of the regulations. We are particularly encouraged that Bill C-38 addresses some major shortcomings in the third piece of legislation we're going to talk about, the Species at Risk Act. Currently, SARA has a five-year limit for an agreement, and a three-year limit for a permit concerning activities affecting listed species or their critical habitat. These limits are out of step with the needs of the hydro power industry, whose facilities operate for decades. In fact, behind this building, on the Ottawa River, lies the oldest hydro power facility in Canada, the Chaudière Falls generating facility, which is over 130 years old.
Clearly, three-year to five-year SARA authorizations are not workable for facilities that can take longer than five years to build and that can operate for more than a century. Any hydro power developer is going to be leery of proceeding with millions or billions of dollars in investments if the authorization expires before construction is even complete.
Bill C-38 allows for longer-term authorizations under SARA. This will be a big improvement, but more needs to be done to improve the act. For example, there is an opportunity for government to enable industry to focus its efforts on activities that more effectively conserve and enhance the population of species. The current act requires us to focus activities on a few individuals of that species instead. This improvement can be done by linking stewardship and conservation agreements with compliance in the act.
In summary, the Canadian Hydropower Association has pleaded for greater efficiency and predictability in the environmental regulatory process for years. Improvements to the regulatory system are clearly required. We see Bill positively addressing many of the regulatory problems. The proposed improvements will not adversely affect our industry's environmental performance; instead, they will encourage further investment in clean and renewable hydro power. This will help Canada reduce North American greenhouse gases and air pollution.
Thank you, Mr. Chair and committee members.
It is a great honour for me to appear before your committee this evening. I have studied Bill , and I have several comments to make.
I want to start by giving you a quick overview. As a young boy living a little south of you, along the Red Deer River, I was able to go, as my grandfather did, to fish in the Red Deer River around Drumheller. Anyone who knows that river nowadays knows that since the building of dams and with the rapid melt rate of the glaciers above Sundre, we are seeing the water quality severely altered, and fish have long since died in that part of the Red Deer River.
I always wondered why sewage plants were built downstream of communities, right up until the late seventies, without adequate sewage treatment. I worked in a chemical plant as a young engineering student and was urged to turn my back one night as the operating superintendent arranged to open some valves and dumped the heel of holding tanks into the North Saskatchewan River.
This is why I have a strong feeling and concern for what Bill proposes and purports to do to the federal Fisheries Act, which goes back to 1868. It's the oldest piece of federal legislation. It has 144 years of life behind it, and it does not need modernization after all those years. Perhaps its implementation and application could be modified and improved, but the problem is not with the act, as I will attempt to elaborate.
As an engineer, I'm in favour of mining. I was once the mines critic for the Progressive Conservative Party. I have often talked about the virtues of hydro power and pumped storage, which will come into its day in the future. But at the same time, we have lost more than 85% of the natural habitat to support our fish stocks across Canada, in inland waters and coastal waters. We've seen our stocks decline over the past century to historically low values. The reason for that is that we always did things the way we did them in order to get on with business and not worry too much about the downstream consequences. I think this bill, as I will elaborate in a few moments, has many dangerous elements to it from that perspective.
Having sat on the Okanagan Basin Water Board and chaired the stewardship council for seven years, I have learned that for every watershed, there is one water. So when we hear farmers or cottagers or others talking about doing whatever they wish with their drainage ditches or on their beachfronts, I say no, that's not the case. The riparian shoreline belongs to every British Columbian and every Canadian and has to be protected and preserved.
In 1976, the habitat provisions were introduced in the Fisheries Act in what were called sections 31 and 33, but it wasn't until 1986 that we brought in a policy that led to the regulatory regime under which those habitat provisions were administered. I have here the policy, the document I took to the Parliament of Canada on October 7, 1986, after extensive consultation with all of the interest groups across Canada—in Ontario, in Ottawa, in British Columbia, and in Atlantic Canada—both the proponents of major projects and the conservationists, wildlife authorities, and others.
This policy embodies three major principles. If you think about the decline and demise of our fish stocks, the first principle should strike you as being important: to provide a net gain of Canada's habitat for fish.
The second is that there should be no net loss of habitat arising from specific fish-related projects, which might in fact have consequences otherwise of killing fish—which, by the way, these new provisions of Bill permit, in the case of certain species.
The third and most important principle was that people should get together in an integrated co-management fashion. That, I would remind you, in 1986—25 years ago—was most uncommon. Governments did what governments wanted to do, and of course, they were often subjected to the influence and the power of money and jobs.
In 1986 we adopted this policy, the first in the world, and it's still significant and it still stands today. But with the passage of this bill, its impact and its import will be significantly reduced and diminished.
Experience taught me some hard-won lessons as Minister of Fisheries for Canada between 1985 and 1990. I had to preside over the demise of the Atlantic groundfish fishery, because the Kirby royal commission recommended a corporate fishery, which had no provision to prevent the destruction of the fish-bearing seabed off the coast of Newfoundland, and the scientists were wrong in suggesting that there were more fish when in fact there were declining stocks. Small cod stocks were being thrown over the side and high-graded, without regard for the fact that they took seven years to come to maturity and to reproduce.
In Prince Edward Island, we had a serious issue with contaminated shellfish in which people died because we didn't administer the shellfish aquaculture industry effectively when it came to the brackish lagoons around the coastline of Prince Edward Island. We created something called dinoflagellate populations, which essentially killed people.
We had the pulp mills of Canada all across Canada pouring the products of the kraft bleaching process, dioxins and furans, into waters throughout our interior and around our coasts, with the result that carcinogenic levels of dioxins and furans were found in the bottom-feeding fish, which were part of the overall food chain. That wasn't found out until Greenpeace sent water samples to Sweden, because Canada didn't have the capacity to discover those realities.
I had to deal with the fact of the populations of beluga whales in the St. Lawrence, which were once 20,000 when they met at the mouth of the Saguenay downstream from the Alcan smelter, dwindled to a few hundred because the females, who needed to be about 14 years of age to reproduce, had their ovaries destroyed by chemicals in the St. Lawrence River.
The consequence of intense fish farming...? After 25 years, the jury is still out on that one.
And the decline of Pacific salmon and steelhead stocks is always at the forefront of the concerns of British Columbians. Mudslides caused by indiscriminate logging practices and sometimes mining operations have to be considered. In a moment I'll tell you why I think this bill is not going to provide adequate protection for that.
You can't always put fisheries science into a neat little box or a straitjacket of time limitation, as in part of this bill—proposed sections 52 to, I think, 131 or 129. With the new CEAA provision, you're going to fast-track everything, put it in a neat little time-limited box, but this has no regard for some of the complexities that as fisheries minister I had to deal with. I had to deal with hundreds of angry fishermen who had their fisheries closed. The Atlantic cod stock collapse led to an industry being virtually closed for now more than a quarter of a century, because we didn't have the foresight or the knowledge at that time to do it right.
When we were a Conservative government, we brought in the first and only green plan for Canada's environment. We brought in an environmental protection strategy—the Canadian Environmental Assessment Act, which is now being totally replaced; the Canadian Environmental Protection Act; and the Arctic environmental protection strategy.
Did you know that the breast milk of Inuit women in the Arctic is loaded with industrial chemicals from the south because we have not learned that it goes through the atmosphere into the Arctic food chain, into the fatty tissue of marine animals, and Inuit women drink it, and their health is impaired as a result of it?
This is why we have a Fisheries Act with teeth in it. I am very alarmed by the provisions of Bill , which will erode all of the provisions of 144 years of history.
In questioning, I will tell you specifically—clause by clause, if you ask me—what I feel is defective in this bill. But I'm here to express my concern that Bill makes a Swiss cheese out of the federal Fisheries Act.
My concerns are shared by numerous other former ministers of fisheries, including the three others who, with me, signed a letter to the two days ago. It's shared by hundreds of fisheries scientists and biologists and thousands of conservation-minded Canadians.
I think government members and this committee should give careful and thorough consideration to that, and I'll deal with specifics later if we have an opportunity, Mr. Chairman.
, Mr. Chairman, members of the public and committee members.
I'm here today to speak on behalf of the Saskatchewan Mining Association.
First, thank you very much for the opportunity to appear before the committee in consideration of part 3, “Responsible Resource Development”, in Bill .
I understand the focus tonight will be on reducing duplication of jurisdictions and timelines.
I'd like to start by emphasizing that our comments tonight are based on a preliminary analysis of the legislation. Further, from our experience we know that the effect of the proposed changes will depend not only on the details of the regulations and policies that we have not yet seen, but also on the implementation of those changes across Canada. We welcome the opportunity to fully participate in the development of these regulations and to have an ongoing open dialogue to ensure that the comprehensive reform required to achieve the government's goal of “one project, one review” in a clearly defined time period is realized in the implementation stages.
EAs are planning tools for projects that, if approved, will have other provincial and federal oversight as they go into operation, as has already been mentioned. With respect to the new Canadian Environmental Assessment Act, we were before the House of Commons committee late last year as part of the review of the current act, advocating for common-sense reform.
In particular, we advanced a number of different concepts embodied by this legislation. These include rationalizing project triggers so that administrative or routine decisions do not require an EA; respecting the principle of “one project, one process”, with a view to better use of equivalency between federal and provincial EA processes, thereby eliminating multiple EAs; and establishing timelines for EAs. In these three respects, we are of the view that the new CEAA holds a promise of additional improvements and clarity and predictability, as well as the promise of reducing duplication of process while not weakening the overall protection of the environment afforded by the current paradigm.
More specifically, we see the designated projects approach as a means to ensure that EAs are required where appropriate. The role of equivalency has been enhanced and provides the potential for provinces' EA processes to lead and reduce the duplication of federal and provincial reviews.
To facilitate the use of the equivalency provisions, it is critical that the mechanics of the process be certain and clear. Certainly, Saskatchewan's environmental regulatory regime is robust and mature, and on an outcome basis could be fully substituted for the federal EA process, particularly in sectors where the provincial government has recognized expertise.
Lastly—establish cycle times for EAs to improve the predictability and timeliness of the review—the SMA is optimistic that the proposed amendments could increase the efficiency and the effectiveness of Canada's regulatory system. We are very eager to work with the federal government to realize the potential benefits as they move forward in implementing the many amendments across all industries. Again, as already mentioned, the test will be in the details of the regulations that we haven't seen yet and how the legislation is interpreted and applied in practice.
For example, the development of a designated projects list is key to how efficient and predictable the new CEAA will be. We had previously submitted that only those activities or undertakings that would trigger a federal permit and that are not bounded by a current licence should be subject to an EA. We want to ensure that the scope of the new CEAA process does not expand so as to have unintended consequences, such that new projects or modifications to existing projects that previously would not have been subject to a federal EA end up being included in the designated project list.
I would like to speak to one comment we had provided that was included within our previous submission, but was not enacted upon within the positive reforms that we've seen to date—the extension of the positive reforms to projects primarily regulated by the CNSC.
For example, we were disappointed to learn that the federal-provincial equivalency and full substitution will not be made available to uranium mining projects under the new Canadian Environmental Assessment Act. Further, as currently drafted, the timelines specified in the act do not apply to the projects that have federal EAs led by the CNSC, although we were very pleased to read the comments provided by the CNSC yesterday to this committee about introducing new regulations with defined timelines for rendering a decision for a licence to prepare a site and construct a uranium mine.
Last year, the Australian government reviewed and approved the coordinated federal- and state-level EA for what will be the world's largest uranium-producing mine, the expanded Olympic Dam deposit, in less than one year.
When you compare that to the more than seven years required in the latest EA to bring a new uranium mine into production in Saskatchewan, it's obvious that it is far more attractive for companies to invest in uranium projects outside of Canada that have similar environment and safety standards, but where there is a more timely return on investments. In the interest of fairness, we hope that our uranium mining members will see the same benefits that have been afforded to other mining sectors.
At this point, we are not advanced in our comments with changes to the Fisheries Act. The incorporation of means for better federal and provincial cooperation is valuable, as is the incorporation of a larger tool box for dealing with the act's absolute prohibitions, such as the possibility of regulations for proposed section 35. However, at this time, we are not clear how certain provisions of the act will work together in practice. In particular, we are concerned with the differences in wording between proposed sections 35 and 36, and the challenges this will present. We support the definition of fishery as applying to commercial, subsistence for aboriginals, and recreational fisheries. However, this is not carried through into proposed section 36. We hope to work with officials to develop greater clarity through regulations and guidance. We are hopeful that habitat banking can be part of the approach to conserve Canada's fisheries, while allowing sustainable development to continue.
With respect to SARA, the proposed changes are positive, but certainly more work needs to be done to have effective and realistic legislation. We commend the government for moving forward in recognizing that changes to SARA are required.
To summarize, I want to thank the federal government for recognizing that the existing federal environmental assessment system needed comprehensive reform, and for bringing forward legislation to implement system-wide improvements to achieve the goal of “one project, one review”, in a clearly defined time period, while upholding the pillar of environmental protection.
In closing, we are advocates for a regulatory system that reduces overlap and duplication, establishes clear timelines, and concentrates on areas where potential environmental impacts are the greatest, while ensuring that the environment is protected. My colleagues and I would welcome any questions that you have.
Mr. Chair, distinguished members of the subcommittee,
I would like to thank the committee for giving me this opportunity to provide you with opening remarks on aboriginal consultation and accommodation.
The Government of Canada consults Canadians on issues of interest and concern for them. Consultation is an important part of good governance, relevant policy development and informed decision-making.
In addition to those good governance objectives, the government also has an obligation to consult aboriginal groups when it comes to its common law obligations.
As stated by the Supreme Court of Canada in the Haida Taku River decisions in 2004, the Crown has a legal duty to consult, and if appropriate, accommodate, when contemplating conduct that might adversely impact potential or established section 35 or treaty rights. It's important also to take into account that this duty to consult applied to the Crown, which in this case means that it applies to the federal, provincial, and territorial governments.
In this context, individual government departments have to assess how their contemplated activities may adversely impact potential or established aboriginal or treaty rights, and who should be participating in the consultation. Government departments can, where appropriate, use and rely on existing mechanisms, such as environmental assessments or regulatory approval processes to gather relevant information and address aboriginal issues.
At Aboriginal Affairs and Northern Development Canada, our role is to provide support and tools to government departments and agencies to assist them in fulfilling their consultation obligation. For this purpose, the department established a consultation and accommodation unit and has undertaken the following activities.
We have engaged with aboriginal groups—more than 65 aboriginal groups in provinces, industries, and companies. We launched an aboriginal treaty rights information system for federal officials to better identify the location of aboriginal and treaty rights. We released guidelines, interim guidelines, in 2008, and new interim guidelines in 2011. We trained over and above around 2,000 federal officials. We took steps to better integrate consultation into government day-to-day activities.
Building on these achievements, the responsible resource development is further enhancing the consultation activities with aboriginal groups through different elements. First, we are integrating aboriginal consultation into the new environmental assessment and regulatory process. This will be supported for each major project review by designating a lead department or agency, and a single Crown consultation coordinator to facilitate the relationship with first nations.
Second, we are providing funding specifically to support consultations with aboriginal groups to ensure their rights and interests are respected, as indicated in budget 2012.
Third, we are negotiating consultation protocols and agreements with aboriginal groups to establish, more clearly, the expectations and level of consultation that should be established. This will help to address the concerns of aboriginal groups about duplication of processes resulting in consultation fatigue.
Fourth, we are negotiating a memorandum of understanding with the provinces and territories to align federal and provincial territorial processes to improve involvement of aboriginal people.
In closing, I believe that these measures will ensure that aboriginal groups participate—from beginning to end—in environmental assessment and regulatory licence issuance processes, and that their potential or established ancestral rights from treaties are taken into consideration more when decisions are being made.
On behalf of Nature Québec, I want to thank the members of the Subcommittee on Bill for having me this evening. I will make my presentation in French.
Nature Québec is a non-profit organization that brings together individuals and 120 conservation organizations from across Quebec. So we have several thousand members and supporters who work on protecting the environment and promoting sustainable development.
Nature Québec works on maintaining species and ecosystem diversity. Since 1981, our organization has been committed to the objectives of the World Conservation Strategy of the International Union for Conservation of Nature, or IUCN. Our objectives are to maintain essential ecological processes and life support systems, to preserve genetic diversity and to ensure the sustainable development and utilization of resources and ecosystems.
Nature Québec is an active member of several coalitions, including the St. Lawrence Coalition, an interprovincial coalition that was created to convince government institutions to urgently put a moratorium on gas and oil exploration and development in the Gulf of St. Lawrence, until such a time as a full environmental assessment is conducted on the impacts of that industry.
Like others before us, we want to reiterate that the use of a budget implementation bill that amends 69 pieces of legislation and transforms Canada's environmental protection economy—including 19 pieces of legislation or areas of activity that are affected at that level alone—is a perversion of democracy, and at the very least a lack of respect for parliamentary institutions.
It is totally unacceptable that the Standing Committee on Environment and Sustainable Development—on which I sat between 2004 and 2006 as a member for Beauport—Limoilou—was not asked to hold a thorough debate and broad consultations on the legislative provisions that are directly related to and will directly affect environmental protection in Canada. I must admit that we fully agreed with the recommendation made by Ecojustice, which appeared yesterday or the day before, asking that the bill be divided, so that at least part 3 would be subject to a specific piece of legislation that could be thoroughly debated. The bill was drafted quickly, with provisions that apply both retroactively and immediately, and some provisions we are not familiar with that will apply pending a cabinet decision later on. Part 3 of the bill is worthy of special treatment and should be debated thoroughly.
When I was an MP, I remember having agreements with the Conservative Party, more specifically regarding Bill . We obtained a fairly special amendment that helped protect migratory birds from oil spills. I would like to see that Conservative Party again. By passing that bill, they made some progress in terms of the environment in Canada.
Through various measures, Bill directly violates the principle of non-regression in environmental law, a principle that will be debated and perhaps adopted in Rio. That principle was adopted at the third international meeting of environmental law experts and associations in Limoges, in 2011. It says the following:
To prevent any regression in environmental protection, the states must, in the common interest of humanity, recognize and establish the non-regression principle. To do so, the states must take the necessary steps to guarantee that no measures shall reduce the level of environmental protection achieved thus far.
I will talk about hydrocarbon development and the concrete impact Bill will have in terms of that. Pursuant to provisions retroactive to July 1, 2010, Bill C-38 sows confusion in the ongoing assessment process in the Gulf of St. Lawrence and opens the door to oil development without proper environmental assessment. The Canada-Newfoundland and Labrador Offshore Petroleum Our understanding is that the board's role as the responsible authority for environmental assessment was taken away, retroactive to July 1, 2010.
What is happening with the ongoing screening process? Who will take over? Will it be the National Energy Board, which is one of the three recognized authorities, along with the Canadian Environmental Assessment Agency and the Canadian Nuclear Safety Commission? The board will have 45 days to determine whether a more in-depth environmental assessment is necessary.
I want to remind you that only three responsible authorities will now be recognized—the Canadian Environmental Assessment Agency, the National Energy Board and the Canadian Nuclear Safety Commission. However, two of the biggest recent environmental disasters—the Gulf of Mexico oil spill and the Fukushima nuclear disaster—tell us that there must be independent alternatives to such regulatory agencies as the NEB and the Canadian Nuclear Safety Commission, which are often too close to industry interests to do credible work in terms of environmental protection.
I want to remind you that the value of fish landings in the Gulf of St. Lawrence is $500 million a year, and the total value amounts to $1.5 billion if we take processing into account. That is a real treasure trove, which is already available, while the hope in hydrocarbons is still only potential.
Allowing oil exploration without a full environmental assessment guarantee would be totally irresponsible. You will recall that recent disasters in the Gulf of Mexico and the North Sea happened during the exploration stage.
How much time do I have left, Mr. Chair?
Under the new environmental assessment provisions, environmental impacts will be limited to the impacts on fish, aquatic species protected by the legislation, and migratory birds—with the exception of federal land. That scope is extremely limited and will allow for a laisser-faire approach and a lack of assessment, which may have a major impact on future projects and environmental protection.
Much has been said about the Fisheries Act. Provisions on fish habitat will be amended so as to protect only fish that is important to trade, aboriginals or recreational fishing. The provisions of Bill radically reduce the notion of habitat protection.
Nature Québec fully agrees with the letter 650 Canadian scientists sent to Prime Minister Harper to complain about the amendments to the Fisheries Act. They define habitat as "the aquatic and/or terrestrial environment necessary to the survival of all species, including fish. All species, including humans, depend on healthy habitats".
Therefore, protection cannot be limited to certain habitats or certain types of fish. Doing that would distort everything we refer to as ecosystems and the protection of the environment. Wildlife habitats, already poorly protected, will lose virtually all protection. The focus will be placed on certain species that are dependent on a quality habitat.
I would like to conclude my remarks by saying that our ecological footprint on the planet is already very large. Development can no longer be done like it used to. We must absolutely ensure the durability of ecosystems and cannot pit economic development against environmental protection, as this bill seems to be doing. It provides for many systems that function by exception, geographic exceptions. Certain zones, certain activities, such as road and mine construction, could be removed from the Fisheries Act.
As you know, there is already an exception in the Metal Mining Liquid Effluent Regulations that makes it possible to not comply with the Fisheries Act. That led to the transformation of natural lakes into tailing ponds. That's one small exception whose meaning was corrupted in reality. With the way things stand, how many natural lakes or rivers will be used for roads, without assessment, without examination, without protection, to eventually be made into tailing ponds?
There are bogs in northern Quebec and Canada, and some wetlands are not necessarily suitable for fishing but are essential for ecosystems. So it is extremely important to not create this type of discretionary exception system. That is why Nature Québec is in favour of major change and the removal of those bill provisions on budget application.
Yes, but my point, Mr. Siddon, is that the strategic direction we're taking with the Fisheries Act changes in Bill is to provide greater focus on fisheries resources, not necessarily on fish. Now, I don't know if you agree with that, but let me carry on with the historical story.
That was in 1986. This was your policy, which reads very similarly to what we have in Bill . I don't see how we can conclude anything other than that. That was the interpretation of section 35, the HADD section, as it was known by your department at that time.
Now as the years went on—after your time, Mr. Siddon—they developed a decision-making framework to know how to provide authorizations and which projects needed it and would get it and so on. That document from 1998, which was called “A Decision Framework for the Determination and Authorization of Harmful Alteration, Disruption or Destruction of Fish Habitat”, has an important section, section 2, that says the first question the manager needs to ask himself is, if the project site is in an area potentially impacted by the project, is fish habitat present there?
It says this:
Section 35 is not about the protection of fish habitat for the benefit of fish, but of fisheries. Therefore, the decision required is a determination of whether or not the potentially affected fish habitat directly or indirectly supports—or has the potential to support—a commercial, recreational or subsistence fishery.
I put it to you, Mr. Siddon, that this is precisely the direction that we're taking, the direction that you contemplated in the habitat policy, which is still in effect to this day. We are enshrining in legislation what is in the habitat policy, so that we have the legislative clarity and the tools to be able to move forward with the policy you put in place.
The letter that you referred to, Mr. Member, is available. It's not in both official languages tonight, but if members wish to have it, I think they could approach the chair for a copy.
It does reflect our apprehension and concern that this broader group of interests is being totally pushed aside. I've even heard the term “environmental terrorists” used in the context of major projects like the proposed Enbridge pipeline—which I oppose, but for other reasons that we can get into another time. I'm all for economic development, but for the benefit of Canadians and jobs in Canada, not for getting it out quickly to China for 50¢ on the dollar to create employment over there so they can send us back products we can't afford.
That's a digression, but the fact of the matter is that there are numerous examples of where this role of public engagement, public involvement....
Getting back to your central question, as I've heard from members of caucus who I know, there are a couple of examples being used around the Conservative caucus of why these changes are so important. One is the case of the farmer who wanted to drain his field in Saskatchewan in order to allow people to park cars there for a rock concert. There were fish in that field, and the habitat people came along and said, “You can't do that”, and undertook prosecution under the Fisheries Act.
Now, I think that's a total distortion of the purposes of the habitat protection provisions. It's just an artifice used as an excuse to make these changes. In fact farmers and environmentalists and biologists should be working hand in hand under the policy that I have described, as we do in British Columbia, where even the provincial government is teaching farmers how to responsibly continue their agricultural productivity without pouring all kinds of chemicals into drainage ditches, without plowing to the water's edge and taking all the trees and riparian areas out. We have a program called “Salmon-Safe” in British Columbia, which the farmers participate in. But this kind of shallow, almost phoney excuse for change is, I think, improper, as is the suggestion that people can't even build a dock in front of their cottage.
I can tell you that on the lake on which I live, 80% of that lakeshore has been alienated from its natural form, largely because people do whatever they darn well please. They think if they own a piece of waterfront property, they're entitled to bring sand in, to build retaining walls, to plow and move the water's edge, and to build wharves. These are not just simple little wharves but great big things for super-yachts.
We have a bill here that says they should be free to do that without any proper examination by any wildlife biologists or the Department of Fisheries, and frankly I just think that's wrong.
This is important. I have heard a lot of nonsense about it. However, as a former sovereignist MP, I am very interested in the issue of overlap between provincial and federal authority.
As you know, there are already some agreements on environmental assessments between the federal government and the Government of Quebec, with a view to using the best procedure available. When a project comes mostly under Quebec's jurisdiction, Quebec's procedure applies, and when a project mainly comes under federal jurisdiction, federal procedure applies. There is an agreement about that.
Actually, this provision looks more like an abandonment of responsibility than delegation. There are various elements involved. For instance, earlier, it was said that habitat protection responsibility may be delegated to third parties. However, those third parties can be companies, which are not necessarily conservation agencies.
If we take a closer look at this, it is not a matter of halieutic strategy—in other words, a strategy for protecting fish and their habitat. It is more of an industrial strategy based on the philosophy whereby the environment is an impediment to resource development. According to that philosophy, if a lot of resources are developed and a lot of money is made, some of that money will go towards environment protection. That is a very outdated view of sustainable development, but it is nevertheless the underlying strategy.
When it comes to the Gulf of St. Lawrence, we could say that it is better for a single office—in this case the National Energy Board—to assess the gulf, instead of five provincial offices or partnerships between Canada and Quebec or Newfoundland and Labrador. In a way, that is somewhat logical. The issue stems from the fact that this task will be entrusted to the National Energy Board, which is primarily concerned with energy projects and for which environmental or habitat protection is an afterthought. The whole process is being corrupted.
In some cases, it may be said that this is a good thing. We may think that the Gulf of St. Lawrence comes under federal jurisdiction. Resources are a provincial responsibility, but habitat comes under interprovincial jurisdiction. Therefore, if the federal government does not conduct a full assessment, it is abandoning its responsibilities.
The reform is supposed to protect fish habitat, but in fact, it is unfortunately a tenacious attempt to create shortcuts and bypass assessments in order to move things forward as quickly as possible. For instance, Bill , which is before us today, allows the National Energy Board to decide within a 45-day period that a seismic exploration assessment is unnecessary. However, that may lead to serious problems for sea mammals. You know, exploration zones are created to check whether there is oil on site, and the board could simply decide, within 45 days, that it is unnecessary to conduct an assessment at the exploration stage. However, we know that the exploration projects in the Gulf of Mexico were a failure.
The government is playing the sorcerer's apprentice by proposing a very broad reform, included in a piece of legislation on budget application. This is a very broad reform that is riddled with shortcomings and possible loopholes to encourage—in the absence of scientific evidence and time for reflection—overly rapid development of natural resources that may cause massive pollution.
If I may, I will continue along the lines of Mr. Simard's comments regarding the Canada-Newfoundland and Labrador Offshore Petroleum Board.
In our region—that of the gulf—I agree that we are far from the exhaustion that follows consultation. The board created a review commission, the Richard commission, which was very confused because of the Swiss cheese—if I may go back to this idea of Swiss cheese—in terms of the regulations in the Gulf of St. Lawrence. In fact, it practically abandoned its consultations. There are currently no consultations on the hydrocarbon drilling development in the Gulf of St. Lawrence. The federal government's virtual abandonment in that area is clearly worrying coastal communities.
I am wondering how it can even be suggested that hydrocarbons be developed in the gulf when half of the provinces share one gulf. Those provinces are currently unable to create the administrative or legislative consistency needed for oil companies to be able to even suggest developing the gulf. The step backwards proposed by the bill currently before us will create a situation where governance in the region will be almost impossible. It will even slow down our region's economic development. That is one of the negative effects of that bill. It is not a matter of protecting habitat or regressing in terms of environmental law. The bill is also impedes economic development, and that is unacceptable.
So I would like to address Mr. Siddon.
If I could continue, when it comes to the peculiar consequences of the changes in front of us, again, it's not just the protection of fish habitat, which is in and of itself an environmental and fisheries issue, but other issues are going to come up. One is if we don't protect the fish habitat properly we're going to be putting in peril other aspects of environmental protection. I'm thinking, for instance, waterways will become much more contaminated if we don't properly protect the filtering capacity of fish habitat.
Fish habitat has more of a role than just protecting fish. It has a role of protecting the entire environment and our drinking water. I might add that the Alberta Fish & Game Association has actually come out and said this as well, that in the heartland of the government's own fortress—Alberta—even there people are thinking that this particular bill in front of us might very well have a very deleterious effect on our environment and on our drinking water.
What do you think is the proper approach right now? Is it to redefine “serious harm”? Is serious harm, the way that the new bill has proposed it, going to be sufficient to protect our environment? Where should we be going from here? What kind of modifications to the bill should we be proposing at this point?
I'm glad the member has raised this question of the habitat having broader importance and significance. If you consider the canary in the coal mine example, if the fish aren't happy—I have always liked this picture on the front of our habitat policy, because the fish has a happy face—and healthy in their habitat, you can be assured we humans are not going to be happy or healthy.
There are increasing levels of contaminants, right to the level of endocrine disruptors, pharmaceuticals, and birth control pills, that our sewage treatment plants can't deal with. Our water filtration and sewage treatment systems are costing us hundreds of millions of dollars. In many parts of Canada we'd like to just get back to natural filtration—to wetlands, for example—and not put effluent into some pit up in some hills, or back in the river, but put it into an area where its remaining nutrient value can be put to good use. We have to protect the habitat.
If I could quickly bootleg something, Mr. Anderson suggested that I'm not in favour of consolidating and unifying our ability, working with the provinces. He asked the other two witnesses, but not me. I am in favour of consolidation and restoring efficiency to the administration. If the Minister of Fisheries is not tough enough to bring common sense to the actions of his officials, then somebody else should be doing the job.
The Minister of Fisheries has to be front and centre in this whole environmental review process. If values like the habitat—and it's important to the water we drink—are at all going to be protected, then the federal Minister of Fisheries has to be there. In my time, when the provinces had their own jurisdiction over forestry, mining, and hydroelectric, we were told we should cop out. We were sued many times for the abdication of my fiduciary duty to protect the fishery.
Thank you, Mr. Chisholm.
I have a number of recommendations and comments on several clauses that we haven't gotten to.
I'd refer to clause 147, the “let them off lightly” clause, because I was the minister who brought in fines of up to $1 million to the Fisheries Act in 1989. We brought in jail sentences for corporate offenders. We treated everyone equally.
But this legislation indicates that if you are a non-profit or a private individual or a corporation with under $5 million of annual income, the minimum fine is going to be $5,000 on summary conviction or $15,000 on indictment.
What do you think a judge in court is going to do with that? This is uncanny, this inclusion of minimum fine thresholds, because that's where the first offence is going to be leaning to—the lowest end.
We brought in these large fines as a deterrent, and for the most part they worked. They are probably the reason that many industry representatives protest. But if we want to save our habitat and save our fish-bearing waters, we have to have some teeth in this legislation.
That's certainly one of the provisions I would comment on.
Another is what I call “the minister cops out” clause, clause 150. I think this is probably one of the most important defects in this legislation—the minister's being able to download not only to provincial governments, under a previous clause, but even to private sector interests, even to delegating enforcement. This is happening in British Columbia with these so-called qualified environmental professionals. The whole thing can be privatized, if we're not careful. So who is going to mind the store?
So the business of the minister not recognizing his overriding responsibility, his constitutional duty, causes me great concern.
I was very interested, Ms. Schwann, listening to your remark about the story you were telling about the mining company that had been approved by the provincial government, because of the tailings pond issue.
You referred to that as an economic example. I remember this case very well, because I was one of the first MPs to deal with it. It was actually an environmental problem, wherein the provincial environment department wanted the mining company to go in there and work on the tailings pond, but DFO didn't want them to go in, because it was fish habitat. So DFO's declaring of an old tailings pond as fish habitat was allowing leaking of contaminants into the environment, and DFO was in fact holding back environmental progress.
I listened to Mr. Siddon's remarks that a minister should really be on top of his file. I know that the minister at that time was on top of his file, and he was handicapped in that situation by the legislation. He agreed that it would be better to go in and clean it up environmentally. The irony is that DFO was holding back environmental protection in this area and the minister understood that, and yet the provincial environmental body wanted to clean this up.
Is my recollection correct on that? Effectively, the provincial environmental body was pushing for a cleanup, which would have resulted, had this mining company been allowed to proceed with its project.
On behalf of the five municipalities from the Upper Fraser Valley of British Columbia—the City of Chilliwack, the District of Hope, the District of Kent, the Fraser Valley Regional District, and the Village of Harrison Hot Springs—I wish to extend our appreciation to the committee for this invitation to participate in the discussions of the changes to the Canadian Environmental Assessment Act, the Fisheries Act, and the Species at Risk Act, as proposed in Bill .
We commend the federal government for taking these initiations to simplify and expedite the approval process for major projects that have environmental implications. As communities that facilitate the corridor for major transmission lines, pipelines, both major railway lines, and the Trans-Canada Highway, we are well aware of the public hearings, etc., that major corporations—such as BC Hydro, Fortis, etc.—have to satisfy in order to expand their services to our communities and to the province of B.C. as a whole.
This is a stringent approval process; however, the efficiency of the present system could be improved. It is hoped that the changes proposed in Bill will achieve that objective. Time is money, and lengthy delays in the approval process for major projects can result in lost opportunities and can be harmful to the overall economy of our country.
However, of immediate concern to our communities in the Fraser Valley are the proposed changes to the Fisheries Act and the Species at Risk Act. The Fraser Valley is a flood plain known for the very high productivity of its soils for forage production—five or six harvests per season—and its specialty crops of fruits and vegetables.
Because of relatively high seasonal rainfalls and high water tables associated with the annual freshet from the Fraser River, it is essential for the productivity of these soils that they be drained effectively. This requires the annual maintenance of a network of engineered ditches that have been constructed to maintain the quality of these soils. The farmland and the surrounding forest and mountains are also drained by natural streams and sloughs that are legitimate fish habitat, and by the Fraser River itself, which of course is habitat for salmon and other species of fish such as the sturgeon.
The conflict between the farmers and the municipalities on the one hand, and the Fisheries Act and the Department of Fisheries and Oceans personnel on the other, is DFO's insistence that agricultural drainage ditches are fish habitat and therefore subject to the DFO directives based on the Fisheries Act. Therefore, obtaining approvals for annual drainage maintenance and routine culvert and bridge repair has become a major expense for the municipalities and a source of frustration for the farmers.
For the District of Kent, whose major industry is agriculture, 80% of the drainage costs are due to direct and indirect costs of getting approvals and permits from DFO. The proposed changes in the definition of fish habitat, as stated in Bill , would limit fish habitat to streams, sloughs, and rivers, which are the habitat of the commercial fishery, and hopefully they will exclude agriculture drainage systems from being designated as fish habitat.
Similarly, if routine ditch maintenance is considered to result in the destruction of fish habitat, the municipalities whose ditches were involved must have provided compensation in the past, in the form of establishing new riparian areas that must be maintained in perpetuity. This requirement may be justified if natural streams are involved; however, it should not be required for ditches that are dry for a significant portion of the year. It is our interpretation that the proposed changes in Bill would eliminate the requirement of this form of compensation when drainage ditches are cleaned.
The Fraser Valley has a moderate climate, which has resulted in the identification of some waterways as home to species that are rare in Canada, such as the Salish sucker, Nooksack dace, and the Oregon spotted frog—which obviously belongs in Oregon.
That was not a problem for the municipalities until the Salish sucker and the Nooksack dace were declared endangered species by the federal Species at Risk Act, and the Oregon spotted frog was designated endangered by the British Columbia Ministry of Forests, Lands and Natural Resource Operations. These two species, the Oregon spotted frog and the Salish sucker, share the same habitat, except the Salish sucker prefers deep, shady, cool waterways, and the Oregon spotted frog prefers sunny, grassy ponds.
The frustration for municipal staff is that they may get a permit for drainage maintenance from the federal DFO, only to have it forestalled by the staff of the provincial ministry. This type of conflict does not appear to have been recognized in the proposed changes to the Species at Risk Act. For the species that occur in only a very limited area of one province, it is suggested that their designation as a species at risk should be left up to the province that they call home rather than up to the federal act.
In the past year, DFO staff have been very diligent at holding public hearings to discuss with farmers, industry, and municipal staff the implications of establishing a critical habitat for the Salish sucker in the Fraser Valley. The maps of these designated areas of critical habitat were provided in the draft of the proposed recovery strategy for the Salish sucker. The suggested restrictions on the use of agricultural land and the management and development of streamside urban properties, as occurs in the village of Harrison Hot Springs, are major restrictions on the value and the use of land.
Of greater concern, in spite of many requests from the public, DFO could not or would not provide a cost-benefit analysis for the establishment of this critical habitat nor would it commit to a population for the species deemed as suitable. In fact, the strategy states that it is likely that the species will remain at risk for the foreseeable future. There are changes to the Species at Risk Act, which are proposed in Bill , that should eliminate some of this degree of uncertainty.
A number of issues have been identified in these very short introductory remarks. We look forward to further discussions related to the suggested changes in the legislation concerning both the Fisheries Act and the Species at Risk Act. Thank you.
Thank you, Mr. Chair. I appreciate the opportunity to appear before the committee this evening on a very important matter for Canada's environment and for sustainable development.
My message to the committee is this: less haste, more speed. The Canadian Environmental Assessment Act, by virtue of Bill , will be repealed in total. It's not a tweak. It's not just about streamlining and timeframes, as was suggested in the budget documents. You are repealing an entire federal statute, and you are replacing it with another that includes a number of new concepts that have not been tested.
Many of the recent comments by several ministers have focused on the perceived need to streamline environmental assessments, such as by authorizing the substitution of federal reviews by provincial reviews, and to ensure that panel reviews are completed within reasonable timeframes. While Bill proposes many important and mainly unwise amendments to achieve streamlining and certainty in panel review timeframes, these are far from the most important changes to environmental assessment proposed in Bill C-38.
In the time I have available I want to touch on three main areas of concern that I have with respect to the bill.
The first thing is that the bill would essentially eliminate the legal requirement to carry out project environmental assessments. This will mean far fewer assessments and much narrower assessments of those project assessments that do occur. How does this work? Right now under the Canadian Environmental Assessment Act all triggered federal projects require assessment unless they've been excluded by regulation or by operation of the statute. Now, only projects that have been designated pursuant to a regulation would be subject to the act.
Let me pause here to say that we have not yet seen a draft of this regulation, although we do know that the Canadian Environmental Assessment Agency has been working on it. It is absolutely imperative for this committee to see that regulation before signing off on anything.
We don't know how long or how short this list of designated projects will be. We understand that the government is making use of the comprehensive study list regulations, the current regulations, as a template for that. At the moment, the Canadian Environmental Assessment Act registry lists 39 comprehensive studies being undertaken and 11 panel reviews. So a fairly small number of comprehensive studies and panel reviews are being undertaken. Under the new law, roughly 4,000 environmental-screening assessments being undertaken annually under CEAA would be eliminated.
There will be a fairly small number of so-called designated projects that will be subject to the act. But that doesn't mean they will actually be assessed for their environmental effects. Proposed paragraph 10(b) of CEAA 2012 gives the Environmental Assessment Agency the authority to make the determination that these designated projects not be subject to environmental assessment. In effect, there could be very few environmental assessments of projects undertaken pursuant to the new law.
Scott Vaughan, the parliamentary commissioner, was here yesterday. He estimates that 20 to 30 environmental assessments will be undertaken under the new law. I would suggest that this amounts to an abandonment by the federal government of environmental assessment. Thus the new bill could well be an empty vessel, with very few environmental assessments actually being carried out.
If this is the case, and if the new bill is applied to a mere handful of projects annually, it really doesn't matter what the rest of the legislation says with respect to timelines, substitution, equivalency, and public participation. The fact is that there's going to be very little environmental assessment activity happening at all.
My second point relates to the abundance of discretion in the bill.
I would say that CEAA 2012 is not so much a law imposing requirements for the conduct of environmental assessments as it is a statute enabling the exercise of discretion by ministers and responsible authorities. The new bill provides broad discretion to the agency and the environment minister to determine that the environmental assessment of a project is not required, to scope the factors to reconsider the environmental assessment, and to determine whether a provincial project is “an appropriate substitute” for the federal process.
This will inevitably result in the politicization of environmental assessment and consequent delays. Right now we have clear rules. We're substituting those clear rules with discretion in the hands of the agency's responsible authorities and the minister.
For example, assume that aggregate quarries on the scale of the proposed Melancthon quarry in southern Ontario are listed as a designated project by regulation. The first step of the proponent of such a quarry could well be, through obtaining an Ottawa lobbyist, to pressure the agency and the minister to exercise the proposed paragraph 10(b) discretion to ensure that no environmental assessment is required, or failing that, to exercise proposed subsection 19(2) discretion to scope the environmental assessment of the quarry down to a stream crossing.
This sort of thing does go on, I'm afraid.
My third point relates to increased litigation risks.
There will be increased litigation risks because we have a brand new piece of legislation with many new concepts that are being incorporated using terms such as designated project, environmental effects, interested party, appropriate substitute. This legislation has been developed in secret—I would suggest in haste—without the benefit of other experts, whether from industry or from civil society, and that means there are likely going to be many mistakes.
I note that the cone of silence approach that has been taken with respect to this bill is strikingly different from that undertaken with respect to previous environmental assessment laws. The original Canadian Environmental Assessment Act in 1992 was preceded by several years of public discussion and three different bills tabled in Parliament.
The major amendments to CEAA in 2003 were also preceded by a public consultation led by the agency, as well as the House of Commons environment committee hearings.
In addition, there was a multi-stakeholder process called the regulatory advisory committee, which had industry, environmental groups, first nations, provinces, and federal departments that worked over draft regulations to ensure they were right, before they came into force.
Unfortunately, we have none of that now. I do suggest that the use of a multi-stakeholder body would be an important way to get this legislation right. The government does have some record in this. I've been a part of a multi-stakeholder group that has been working on the air quality management strategy, which has had industry representatives and environmental groups, as well as provincial governments led by the Government of Alberta, and we're very close to a national deal that will reduce smog emissions in this country as part of a multi-stakeholder process, not a unilateral process.
I've only touched on a few of the many grave concerns that I have with this legislation, and certainly this subcommittee faces a significant challenge in trying to understand the bill, first of all, understand the comments of witnesses, and propose amendments that could mitigate the, frankly, devastating impacts that this legislation will have on Canada's natural environment.
Less haste will yield more speed and a better law.
My recommendation is that this subcommittee remove the proposed CEAA 2012 from Bill , and propose to the overall finance committee that it be referred to the House of Commons environment and sustainable development committee for its review. I would further suggest that this review be done in collaboration with some multi-stakeholder group.
I would have suggested the National Round Table on the Environment and the Economy, but obviously that's not possible.
My final comment is that I want to repeat something I said before.
I think it's really important that this committee have that draft designated projects regulation in front of it before you wind up your hearings. I believe that the committee should ask the Minister of the Environment for that regulation before you wind up your process here.
Thank you very much, Mr. Chair.
Thank you, Mr. Chair, and thank you for the invitation.
I am here today as a representative of MiningWatch Canada, a national non-governmental organization—not a charity—and as co-chair of the environmental planning and assessment caucus of the Canadian Environmental Network, which brings together some 60 groups and environmental assessment experts from across the country.
I'm here to urge you to ensure that the environmental provisions of Bill are given proper consultation and debate.
Part 3 of C-38, with which we are concerned today, is seriously flawed, and in our view, to allow it to proceed without very major amendment would be irresponsible. With all due respect to the experience and knowledge of this committee, there is simply no way of adequately addressing part 3 as part of C-38. These provisions must be separated and debated on their own, and if need be, removed and resubmitted to a new legislative process.
The government is arguing that the new Canadian Environmental Assessment Act, CEAA 2012, and related measures must be passed as part of the budget process, because they are urgently required to protect and promote investment and development.
The urgency is clearly manufactured. The existing Canadian Environmental Assessment Act was referred for review by Parliament two years ago. The government did nothing for 16 months, and it had actually dropped efforts by the minister's own regulatory advisory committee, as well as the caucus, to prepare for the review going back several years before that.
Just as importantly, these measures are more likely to exacerbate uncertainty and delay, which will ultimately put development projects at risk and drive away investment.
I would like to focus on three key problems in the new act: the abdication of federal responsibility over the environment; the abandonment of the principles of sustainable development and the integration of those principles into decision-making; and the serious diminution of public participation and the opportunity to fulfill government's obligations towards aboriginal peoples. I am not here to speak for aboriginal peoples, and I will not focus extensively on those issues, but both MiningWatch and the caucus have serious concerns in this area.
In place of a positive assertion of a federal role in EA, the act explicitly limits federal authority to specific regulatory jurisdiction, as in proposed paragraph 5(1)(a). This flies in the face of the Supreme Court's rulings in Oldman and MiningWatch, and ensures that federal environmental assessment will have no meaningful relation to ecological or social reality. This will make it all but impossible to establish any kind of consistent national practice.
The substitution and equivalency provisions do precisely what the caucus and others have studied and warned against. It will create a patchwork of inconsistent EA application, both within the federal government and between federal and provincial processes. Rather than seeking to use the federal regime as a backstop for coordinated and harmonized processes, it is to be broken up among agencies with different mandates, structures, and capacities—the Canadian Environmental Assessment Agency, the NEB, and the Canadian Nuclear Safety Commission—and will be further devolved to provincial and land claims mandated processes that have little in common with each other. The contrast between the federal and the B.C. assessments of the Prosperity mine project, which should have undergone a joint review, provides an excellent case study.
By weakening the federal role and splitting up federal assessments among several federal agencies and provincial and territorial EA processes, CEAA 2012 actually balkanizes EA across about 19 very different processes. It's certainly no longer a one-window approach. And given the weakness of its transboundary and regional assessment provisions, it's also doubtful that it will result in having “one project, one assessment”.
In terms of integrated decision-making, while the designated project list approach to triggering an environmental assessment is not necessarily a bad thing, the way it is used in this act is problematic. It's one thing to focus assessment efforts on larger projects with potentially more significant impacts, but in our view, it is a mistake to do so without making any effort to ensure that there are mechanisms to ensure that smaller projects are tracked, monitored, and, as necessary, assessed. At the same time, rather than integrating sustainable development, the screening process and the layers of discretion on whether an assessment will actually be undertaken and what its scope will be will tend to relegate environmental assessment to the margins of decision-making, both for projects and for regulators.
In addition, any mention of strategic environmental assessment—the assessment of policies, plans, and programs—has disappeared completely.
With regard to public participation, that is a key element in environmental assessment. Here, it is curtailed by the restricted number of projects being assessed, diminished opportunities for public participation, and artificially imposed timelines. If you recall, the Supreme Court did back MiningWatch in its decision on the Red Chris mine review, which was based on the guarantee of public participation in comprehensive studies under the 2003 CEAA amendments.
The new act promises public participation, but it provides no criteria and no guarantee that this promise will be carried into substitute processes. It contemplates participant funding only for panel reviews. Regardless, the arbitrarily compressed timeframes imposed under the new act will make meaningful public participation almost impossible. It's important to note that while the act imposes strict limits on the time available for public involvement and specifies only limited options for federal agencies to extend their time, it places no restriction whatsoever on the time a proponent may take in responding to information requests, or to change and resubmit project plans, which they do quite regularly.
In addition, and in combination with the inconsistency created by substitution and equivalency provisions, artificial timelines will make it very difficult for aboriginal communities to fully participate in environmental assessments, in recognition of their constitutionally protected rights. In short, even giving the most generous benefit of the doubt to both the formulation of the act's absent schedules and regulations, and the application of ministerial and bureaucratic discretion—in the general absence of useful criteria, I might add—the key features of this act cannot produce robust, effective, and efficient environmental assessment.
In its key aspects, it makes the process significantly less predictable and consistent. It limits its utility as a forum for establishing a social licence to operate and for fulfilling the Crown's obligation to obtain the free, prior-informed consent of aboriginal peoples for development projects affecting their lands and livelihoods.
The public has an expectation of fair treatment before the law. I would not be the first to note that in the absence of a public process that is perceived to be fair and that allows for the fulfilment of aboriginal peoples' rights, people will tend to take matters into their own hands. Lawsuits and direct action will also create greater uncertainty and unpredictability, and can reasonably be expected to more than counter any anticipated efficiency gains.
It's hard to avoid the conclusion that faced with complex legal and jurisdictional questions, and under pressure from the provinces and some industry sectors, the government has chosen to basically throw up its hands and walk away from all but its essential legal obligations. That is simply not acceptable.
Thank you, Mr. Chairman.
My name is Gregory Thomas. I'm the federal director of the Canadian Taxpayers Federation. We are Canada's oldest and largest taxpayer advocacy group, founded in 1990, with 72,000 supporters across the country.
We appreciate the invitation to participate in these hearings and will welcome your questions.
I think it's no secret that the process of environmental assessment is not a popular one in Canada on any side. Mr. Kneen has a copy of the comparison of the British Columbia and the federal assessments of the Prosperity mine, which is a $1 billion project that would have generated tens of thousands of jobs in British Columbia. The federal government blocked that project, yet everyone who participated in the whole process was unhappy with it, regardless of the outcome. It was long, time-consuming, and costly for the people who were trying to build the mine; and costly for the people who were trying to oppose it.
The universal belief at the end was that the key issues hadn't been addressed, and that as a civil society we hadn't come together to figure out how to build that mine in a way that would not affect the environment for all generations. So it was a long, costly, and frustrating process. What we recognize as taxpayers increasingly is that environmental assessment processes attract the involvement of people who bring nothing new to the table. They bring nothing new in the way of facts, new information, research, or constructive proposals on how we can move forward and protect the environment, create jobs, and work together.
So the process is broken and I believe the amendments to the legislation contained here represent, at the very least, an attempt by a government in Canada to address the fact that the process is broken and serves people very poorly.
I will speak to what I believe is an overlooked element of environmental assessment that the government needs to incorporate into its future process, and that is the whole issue of quantifying damage and of quantifying the costs, both of legislation, regulation, and new development. We know that in the case of the Prosperity mine in British Columbia there were costs imposed on the environment, on the traditional hunting and fishing, on the aboriginal peoples' traditional territories, and on the environment itself.
We also know there are massive financial benefits that could be extracted to offset those costs. But what we found was that in a sea of inflammatory rhetoric, there was insufficient will on the part of all the players to create a situation that would lead to increased prosperity for everyone and protection of the environment. There was a win there, and collectively, we weren't able to work to that win. Collectively, at the end of the road a tremendous amount of public money had been spent, and there had been no constructive outcome.
A similar example is the Mackenzie Valley pipeline.
I think it's fair to say there's quite a bit of public support for the Mackenzie Valley pipeline in 2012, and yet processes have ground on so long that the natural gas price will no longer support the construction of the pipeline. So you have a situation where communities in the Northwest Territories are converting from natural gas back to diesel fuel, because they no longer have access to supply.
We've seen historically where a failure to quantify the economic value of the way we manage natural resources has had catastrophic outcomes, if you look at the Newfoundland cod fishery, or as was discussed the night before last in this committee, the Great Lakes fishery. Decisions were taken piecemeal to destroy fisheries habitat and no one quantified the value of what was being destroyed.
I'm happy that Mr. Fisher is here from the Upper Fraser Valley, because we have a large number of supporters who live in the municipalities he discussed. I think possibly there was something in it when they sent someone named Fisher to represent the farmers.
In that situation, there's been no effort to quantify the costs and benefits of the species at risk protection initiatives that are being undertaken in the Upper Fraser Valley. Canada has one of the most poorly developed systems of recognizing the damage that's done to individuals by government regulation. Whereas in Europe, both at the state level and the European Union level, the regulations that are being unleashed on the farmers in the Fraser Valley would automatically trigger massive financial compensation, in Canada we can basically neutralize farmers' land, flood it, leave it under water. These people are subjected to hundreds of thousands of dollars of costs and there's no compensation.
Mr. Fisher referred to the Nooksack dace and the Salish sucker, which are identified as species at risk. In the case of these species, activist groups actually went to court to force DFO to develop plans to protect these species. So it wasn't even an initiative originally of the Government of Canada; they were forced into it by their own legislation. Because there is no way to quantify the massive costs of the protection plans that are being proposed, and the costs to individuals aren't even considered in our legal system, you get environmental initiatives with massive, outrageous, exponential costs on individuals.
One of the most hilarious things about this particular plan that Mr. Fisher is here to talk about is that one of the original and largest habitats for the Salish sucker is on the Little Campbell River, where the species was extirpated approximately 30 years ago. Little Campbell River is in the middle of the largest regional park in greater Vancouver, Campbell River Park. Given the choice of setting up a program in a regional park that would actually have an on-budget impact—the Government of Canada would have to go to taxpayers and say, “We're taxing you and spending hundreds of thousands of dollars to restore this obscure fish to a thriving status”—instead it's costing hundreds and hundreds of thousands, possibly even millions of dollars in damage to individuals to reclaim farmers' ditches for the same purpose. This is a perverse thing that we hope this committee and this government will put to a finish.
Thank you for the question.
The first thing I would say is that environmental assessments cost money, but a lot of times the amount of money they save is tremendous. My colleague made reference to the Mackenzie gas project. He says there's lots of support for it. It's unfortunate that it's not actually supported by the proponents.
Imperial Oil and Shell have saved billions of dollars in lost profits by not proceeding with that project. If they had proceeded with that project—and everyone understands that this process took too long—they would be trying to sell natural gas at $6 into a market where they could only get it for $2. They'd be losing money hand over fist. What the environmental assessment process gave them, gave us all, was a better understanding of the costs of building the project. Part of the pipeline link was through country with no roads, with permafrost, with difficult building conditions. I don't expect Exxon Mobil to thank me for saving $1 billion, but I live in hope.
My colleague talked about the need to cost out the regulatory expenses. That's fine. I think by and large we do that. There are two things to consider, though. The first thing is that we have to look at the economic benefits of the ecological services provided by the boreal forest, in the case of the Mackenzie Valley. Having that boreal forest there and those boreal wetlands provides enormous benefits to Canada—absorption of carbon from the air, fresh water, etc. Those sorts of metrics need to be incorporated as well.
All of that's a good idea, but the effect of this bill is exactly what Mr. Thomas is saying shouldn't happen. We won't be able to do any of that work, because the effect of this bill is to more or less shut down the federal environmental assessment effort. It's not about streamlining or timelines. It's about a massive reduction in the capacity of the federal government to understand what development projects do to the environment and the communities.
Mr. Fisher, Mr. Thomas, and Mr. Anderson, for the sake of clarity, I'd like to clarify something. With all due respect, I studied sustainable landscape management at UBC. I made many visits to the valley and to Chilliwack and other valley towns. I studied in that environment, and I want to clarify the basic science of surface hydrology and the role of riparian corridors, because I've heard a lot about farmers' ditches for the past couple of months.
Ditches act as first-order streams, whether they're man-made or natural. First-order streams flow into second order and they flow into third order, and eventually they reach deltas at the ocean. If you look at a satellite picture of the Fraser delta, you'll see massive siltation at the outlet of the delta.
Now, people will ask, “So what?” Well, any runoff that goes into those ditches increases siltation in a river, and the silts reduce the oxygen in that river. The reduction of oxygen reduces the capacity of a river to carry aquatic life—plain and simple. That's the plain science of surface hydrology.
The Fisheries Act leads to the protection of those riparian corridors because it recognizes that surface runoff reduces a river's capacity to carry life and fish. Mitigation such as hedgerows—or gravels, as you mentioned—helps the process, but if you remove these acts and the incentive to protect fish, some farmers will cut costs, and they will not take on the extra costs to do the mitigation measures. So this act is actually protecting the whole system.
A farmer knows their land well. I wouldn't want to say they don't. But it's a system. They're part of a system. A lot of farmers want to use all of their cultivable land. It makes economic sense. You want to increase the productivity of your land, but by doing hedgerows and by taking mitigation measures, you're protecting fish, which protects that industry.
Now, that's science. It's not manipulation, such as the government is doing in using language and perceptions to turn people against science. So I'd just like that clarified.
My question is actually for Mr. Hazell. Changes in Bill mean that cabinet now can overrule the National Energy Board's decision. Do you think the decision-making should be based on science, or is allowing big resource developments to be decided on a political whim a good idea?
In a way, you've summarized why our finance minister talks about the importance of one project, one review. Even though environmental assessment is not at the top of his to-do list, he understands, like you, that it's all about jobs and it's all about economic growth. The bottom line is that duplications, delays, and all these types of impediments in the current process are affecting taxpayers and jobs in our country.
As a more general question, I want to address something one of the witnesses yesterday talked about, the BNA Act and the environment. I want to point out that the word “environment” doesn't appear in the BNA Act, but the courts have found subsequently that responsibility for the environment should be shared between federal and provincial governments.
Do you agree that federal, provincial, and territorial governments should share, not duplicate, responsibility for environmental assessments? Would you agree that Bill , part 3, emphasizes sharing, and not the duplication of responsibility?
I want to be really clear in my remarks. We've been given 16 hours to review this, a section of the bill, and in Minister Siddon's words, we can't erode 144 years of history.
Environmental assessment is about getting data, analyzing data, and making evidence-based decisions. Surely this has to be an evidence-based process or it will be seen as a failure, and this process is being very carefully watched. The report should include testimony or evidence, and real recommendations should be drawn from that testimony. If this process is not followed, we will no doubt have a report that's based on ideology or mere talking points. The reality is that this has to be given the time it needs. People will be able to read the testimony. They can compare the testimony to what could look like talking points.
If time is of an issue.... I know there is a deadline, but this committee does control its destiny. We need to take the time. We need to get it right. I don't want to just submit my ideas, and I would hope that all sides would not want to just submit their ideas, but that we would have a real report, we would draw recommendations from the testimony, and we'd take the time to do it right.
The way this is going, my guess is we will probably need a dissenting report, so I want to ask for that up front.
We are obligated to have a report. My understanding is that we have to have that report back to the finance committee in both official languages, so there is some complication on that.
If we start with that mandate and work our way back, I think it would be.... If we're not going to meet Friday, and I don't think we are, I think we should have an expectation, as a committee, to come out of our final four hours tomorrow with as much progress as we can agree on.
From my perspective, and I mentioned this briefly yesterday, too—I mentioned it to Ms. Leslie, who from my understanding is the lead from your particular party, and I spoke with Ms. Duncan and Mr. Anderson—given the testimony we've already heard to date, I think each party has their position clearly defined on what they would like to see in the report.
I would suggest that we get that to the analysts as early as possible, even tomorrow, even though we're going to hear a couple of more hours of testimony tomorrow. If we have enough information that we can get to the analysts first thing tomorrow morning—and I suggest that information go directly to the analysts—they could have some semblance of a draft that we could at least have a look at. We could add whatever things we think are salient from tomorrow's two hours of testimony and have at least a modicum of a starting point so we could discuss either key recommendations or salient issues we would like to see in the report.
It would be my hope, as chair, that we could find as much common ground as possible. I'm also a realist. I don't think there's going to be common ground on all fronts, and I would expect then that we would have discussions about whether or not we would have a dissenting report.
Does that answer your question, Mr. Chisholm?
Well, it does in part. I appreciate very much what you said, Mr. Chairman, about the logistics and the time pressures and so on, but we also have time pressures.
The Chair: I understand that.
Mr. Robert Chisholm: There are time pressures with respect to Canadians who are concerned about what this bill might do to the environment and to the fisheries.
One of the things that came up tonight was the whole question of the designated projects list, the fact that it's not available and how significant that is. It was recommended to us that we not sign off on this until we get some clarity on the designated projects list.
Mr. Chairman, I'd like to ask that we invite the ministers back before the committee—they appeared here Friday morning, I believe, and unfortunately I missed them—to entertain our questions and perhaps respond on at least the whole question of the designated projects list.
There are many other things that we need to talk with the ministers about, as we heard, but I think we should take seriously the recommendation that we were given tonight: it would be reckless, beyond reckless, if we were to proceed and pass this through without getting some idea of what's on that designated list.
So I'd like to ask that we call the ministers. I don't know when that would happen, whether that would be Friday or Monday. We can do a good bit of the report. This has happened before. We can do a good chunk of the report.
We need to hear from the ministers on at least that whole question of the designated project list.
Thank you, Mr. Chairman.
I will make a motion. I'll preface it by saying this. I appreciate the fact that we have a tight timeline here, but I don't think I need to remind anybody here about the gravity of the situation.
The ministers have offered publicly, if invited, to come and visit the committee. If we have votes tomorrow night, which we may well have, the ministers will be in their seats. The question of availability should not be a problem.
Given that, and given the fact that we heard tonight the recommendation that, at the very least, we consider the designated project list before we move forward with this bill, I would move that we invite the ministers to come before this committee in the second section of our time slot set aside tomorrow night for deliberation of the bill. The analysts have been given some direction already. If they require additional information, then we agree that either early Friday morning, or Thursday night, if they need it, before we leave, we can provide it to them then. They can start tomorrow, frankly. I don't mean to suggest that it's as easy as that.
Anyway, in essence that's my motion, Mr. Chairman.