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House of Commons Emblem

Standing Committee on Environment and Sustainable Development


NUMBER 114 
l
1st SESSION 
l
42nd PARLIAMENT 

EVIDENCE

Tuesday, May 22, 2018

[Recorded by Electronic Apparatus]

  (1115)  

[English]

     Good morning, everyone. Welcome back.
    We are again doing clause-by-clause on Bill C-69, an act to enact the impact assessment act and the Canadian energy regulator act, to amend the Navigation Protection Act and to make consequential amendments to other acts.
    We have assisting us today, from the Department of Natural Resources, Jeff Labonté, Assistant Deputy Minister, Major Projects Management Office; and Terence Hubbard, Director General, Petroleum Resources Branch.
    From the Canadian Environmental Assessment Agency, we have Christine Loth-Bown, Vice-President, Policy Development Sector; and Brent Parker, Director, Legislative and Regulatory Affairs Division. Welcome.
    From the Department of Transport, we have Nancy Harris, Executive Director, Regulatory Stewardship and Aboriginal Affairs.
    Thank you very much for being with us today.
    Mr. Rochon, thank you very much for being with us from the Department of Justice.
    As I had mentioned to committee members, in my zeal on Thursday to assist with amendments and subamendments I had stepped out of bounds and had moved to clause 6. We moved a LIB-76 amendment. I would like to ask the committee's agreement to reverse that decision. I should not be moving on anything outside of the clause we're studying right now, which is clause 1. If we could reverse the decision on the LIB-76 subamendment and the LIB-76 amendment as amended, I would very much appreciate that.
    Some hon. members: Agreed.
    The Chair: Thank you very much.
    At the end of Thursday, the last one was amendment NDP-40.
     (On clause 1)
    The Chair: Ms. Duncan.
    I have an amendment that needs to come before the next one. I have prepared it in English and French. I gave one to the Liberals and one to the Conservatives.
    We're checking with the legislative clerk to see whether this is appropriate for this area. It doesn't have a number.
     I would call it NDP-41.1.
     Why doesn't the clerk let everyone know his thoughts on this?
    If you look at your bill, you see the amendment would go under “Decision-Making”. It wouldn't amend line 22, which is under “Rules in Case of Termination”.
    After line 22, it should say...and just before “Decision-Making”.
    If you look at LIB-39, you'll notice it's really specific to—
    It's LIB-43.
    We're at LIB-39 right now.
    Yes, I know, but LIB-39 comes after where I'm putting this. I would put this in right after the heading “Decision-Making”.

  (1120)  

     Exactly. And LIB-39 is relevant to the part of the bill that is above “Decision-Making”.
    It's above “Decision-Making”? Okay.
    LIB-39 adds new proposed subsection 60(3), right after proposed subsection 60(2).
    Oh, okay. That's fine. I'm happy to go second.
    All right.
    We'll go back to where we were. LIB-39 would add a new proposed subsection to proposed section 60, “Subject to section 119”.
     Shall the amendment carry?
    I would like a recorded vote.
    (Amendment agreed to: yeas 6; nays 2 [See Minutes of Proceedings])
    We have PV-54.1, and then we'll get to Linda's.
    Yes. Ms. May's is first.
    Ms. May.
    This amendment was proposed in the evidence of the Canadian Environmental Law Association.
    The existing proposed subsection 59(1) talks about the assessment by a review agency, and continues on with the effects in the report. The report sets out what are, in the agency's opinion, the effects of the designated project.
    This adds new proposed subsections 59.1(1), (2), and (3), which break out what the minister says must be done with the report. There's an independent review of their operation to be undertaken. Then the minister must cause a report to be laid before the House within two years after the day on which this section comes into force. As well, if an act of Parliament amends it based on a review, the next report is to be tabled within two years.
    The effect of all this, Madam Chair, is to enact the recommendation of the expert panel on environmental assessment and to establish the agency as the single quasi-judicial authority that conducts the assessments and makes decisions under the act on behalf of the federal government.
    I appreciate the creativity of the Canadian Environmental Law Association in coming up with this. It's an extremely elegant way of ensuring that Bill C-69 meets the aspirations of the thousands of people, as well as the expert panel, who worked so hard on preparing the expert panel on the impact assessment report to the federal government.
    This is an extremely important amendment.
    Shall the amendment carry?
    I would like a recorded vote.
    (Amendment negatived: nays 7; yeas 1 [See Minutes of Proceedings])
    Next we have Ms. Duncan's amendment.
    It is NDP-41.1.
    No, it would be NDP-40.1, because you need to do it before NDP-41, right?
    Do you want to give your explanation again, giving that you're walking it on the floor?
    No, this actually comes after....
    Okay: NDP-40.1; whatever you say.
    This proposes adding, right after the heading “Decision-Making”, a definition for “adaptive management”. This was pointed out, I think to everyone, by Professor Olszynski of the University of Calgary when he testified before us. He spoke to science and the importance of adaptive management.
    Presumably in response to that, Mr. Bossio actually amended LIB-43, adding in the term “adaptive management”. We haven't gotten to LIB-43 yet, but as has been pointed out, adaptive management isn't defined anywhere in the act. Now, I've noted that the minister, in drafting her bill, from time to time adds in definitions where they relate to just that part of the bill. This is the part of the bill that deals with adaptive management, so the suggestion is that the logical place to put it would be at the beginning of that whole part of the bill. That would be on page 38, between “Decision-Making” and “Minister's decision”.
    I provided the recommended definition to everyone. I don't think I need to read it out. The recommendation is that a uniform definition is required. There seem to be a lot of differences of opinion between proponents, consultants, and departments on understanding what that is. It's not a bad idea, in terms of providing greater certainty, for this to be what the government says “adaptive management” is for the purposes of this act.
    I'm supporting Mr. Bossio's later amendment.

  (1125)  

    Madam Chair, I would like to speak this, just quickly.
    I know that a number of us are supportive of this in principle. I have spoken with Professor Olszynski on the topic. In general, I think it would be a good thing for adaptive management to be incorporated as a concept. However, it should be coming in the definitions section, not at the particular point that's suggested through this amendment.
    I would also like to ensure that we have Justice's thoughts on the appropriateness of the location of the definition. If it's helpful, I would suggest maybe allowing Justice to give their early thoughts now, but I know that there are subject matter experts who will have specific expertise on the issue of adaptive management, so perhaps they could come back to us.
    It would require unanimous consent, I think, to get this into the definitions section, and I don't know if that would be forthcoming from the opposite members.
    Mr. Fast, do you want to speak first?
    There is a proposal now to add “adaptive management”, which is another process. The definition itself, if it's adopted, references a new structured and iterative process. Every time we add another process, we make it more and more and more difficult for Canadian resources to be developed in a sustainable way. It's just more and more red tape and delay. These kinds of steps are not helpful.
    Madam Chair, I think we should hear from our Justice officials on, first, where this definition should go, and second, whether the definition actually does justice to the term that Mr. Bossio has used. Then we can make an informed choice on whether we would support this.
    I think what Ms. Duncan is trying to do is put in a definition, since there would be an amendment that quotes it. I also understand about getting an opinion on where it should go. It probably should go in the definitions section. The problem is whether we'll get unanimous consent from the committee to put it in definitions. If we got that, then I think it probably should go in definitions, but we may not get that. I think this is to try to accommodate not being able to go back.
    Let's see what advice we have from our experts.
    Usually when a definition is inserted at a midway point in a statute, it relates specifically to one part. It tends to have a distinction from how the word might be interpreted elsewhere. Unless we mean for “adaptive management” to have a different definition for this section of the bill, or only for specific sections, it would be preferable to put it under proposed section 2, where the other definitions in the bill are found.
    I think Mr. Fast asked if there were any complications with the actual definition. I just don't know if there is any expertise here to explain that.
    Madam Chair, we don't have a copy of the amendment or the proposed definition.
    That's a problem.
    I'm wondering if I can have the unanimous consent of the committee to be able to come back and insert this in here once we get the information and the experts have a chance to have a look at it.
    Can I have the unanimous consent of committee? No.
    We'll have to get that right now.
    What about unanimous consent of the committee to put it properly in the process, in the definitions section? No.

  (1130)  

    We don't need unanimous consent for me to move my motion.
    No, I understand that.
    This is the only place in the bill the term is used. There is no conflict with the rest of the bill.
    I get that too.
    You need a copy, so let's quickly get you a copy.
    I'll suspend for five minutes.

    


    

  (1135)  

     We're going to resume.
     I understand I can get unanimous consent from the committee to come back to the definition after we move on. We're going to reserve an opportunity to come back and give the officials a chance to look at that definition and seeing if there are any issues with it. They'll let me know when we're ready to come back. I think we've got about 15 to 20 minutes.
    Thank you very much to the committee for that.
    The next one up will be NDP-41. The ruling if adopted is NDP-42 and LIB-40 cannot be moved because there will be a line conflict.
    Linda.
    I am going to suggest not moving NDP-41 and instead moving NDP-42.
    The essence of NDP-42 is that throughout the act, there's deep concern by the public that the factors, which is what got people convinced that the government was willing to consider the aspects of sustainable development.... By the time you move forward in the bill, most of those factors disappear. The essence of this is that the proposed section 22 factors must be taken into account in these decisions. It goes through every section and does the same thing and requires the minister and the cabinet to consider the same proposed section 22 factors in making any decision on public interests. Just have them all read together; that's the essence of this amendment.
    Thank you very much for that explanation and clarity. If adopted, PV-55 to PV-62, NDP-43, NDP-49, LIB-41, and CPC-6 cannot be moved because there will be a line conflict. And GPQ-1 and PV-63 will also be moot because they're in the same—
    Okay, I'm taking out NDP-43 anyway.
    Let's do this one first.
    I'd like a recorded vote.
    (Amendment negatived: nays 8; yeas 1 [See Minutes of Proceedings])
    Now we move to PV-55. Ms. May.
    This is one where the existing wording is odd. There may be a subsequent amendment where the government is attempting to clean this up. As it's currently drafted, the minister will, “determine if the adverse effects within federal jurisdiction—and the adverse direct or incidental effects—that are indicated in the report are, in light of the factors...in the public interest”. I don't think any government would decide that an adverse effect was in the public interest. I think what they meant to say is what my amendment says; that where there are adverse effects—this is on a recommendation of the Canadian Environmental Law Association— “whether these effects are justified, in light of the factors referred to in section 63, because the project is in the public interest”.
    I'd like to think that governments didn't decide that adverse effects were in the public interest. It's the project they're interested in, in whether the adverse effects are justified.

  (1140)  

    Mr. Amos.
    Madam Chair, the members on this side of the table appreciate the intent, but LIB-41 gets at the core of what we want to do to achieve amendments on this aspect, so we'll leave it at that.
    Okay, fair enough. Thank you for those comments.
     Let's have a recorded vote.
    (Amendment negatived: nays 8; yeas 1 [See Minutes of Proceedings])
    We're going to move to amendment LIB-40, please.
    It's making an amendment at line 38 on page 38. Rather than “referral is posted on the Internet site”, you have it say “referral and the reasons for it are posted on the Internet site.”
    Mr. Aldag.
    Simply, we feel that this will enhance transparency, and the reasons then will be communicated to Canadians. That's the essential reason for this amendment.
    There is a call for a recorded vote.
    (Amendment agreed to: yeas 9 ; nays 0 [See Minutes of Proceedings])
    Thank you very much.
    Kumbaya, we're doing very well.
    Next up is amendment PV-56. Ms. May.
    This is to the same effect as my previous amendment, Madam Chair, although it appears in a different place.
    Looking at page 39, in the referral to the Governor in Council there's that same anomaly of the government's deciding that adverse effects are in the public interest rather than deciding that the adverse effects are justified because of an affirmative finding by cabinet that a project is in the public interest.
    Cabinet should actually go through based on evidence, and it would be good if they were directed to do it.
    All right, thank you very much. That's clear.
    Shall the amendment carry?
    I'd like a recorded vote.
    (Amendment negatived: nays 8; yeas 1 [See Minutes of Proceedings])
    We move on to amendment NDP-43.
    I'm not moving that one.
    We're now on amendment PV-57.
    This is the same effort to ensure that the minister's determination in respect of a project and the Governor in Council's determination in respect to a designated project must include considerations, etc.
    I'm inserting at lines 17 to 18 that, found within the factors in proposed section 63, an affirmative finding that a project is in the public interest shall be related to whether the adverse effects are justified.

  (1145)  

    Shall the amendment carry?
    Let's have a recorded vote.
    (Amendment negatived: nays 8; yeas 1 [See Minutes of Proceedings])
     We're moving on to amendment PV-58.
     This recommendation came to committee through West Coast Environmental Law, among others. As the bill currently reads, both the minister's determination and the Governor in Council's subsequent determination that a project should proceed and that there are factors in the public interest.... The current language says that the determination of both the minister and the Governor in Council “must include a consideration of the following factors”.
    To clarify that the minister and cabinet are required to determine whether the project is in the public interest and what their consideration is of factors, it's not merely that they must include a consideration, but that the determination—and this is the effect of my amendment—“must be based on the following factors”, or not really based on, but must include a consideration.
     You're not saying “must” because that's my amendment. Yours says "are to be".
    Oh, that's yours, right. Mine says "are to be". Sorry about that, Linda. They “are to be based on” the following factors:
    I think that's the inference of consideration, but it doesn't say that the minister must conclude that the factors, once considered, provide a basis on which you can find that the project is in the public interest.
    Mr. Fast.
    This is actually a substantive change. It's moving from consideration to basing a decision on certain factors.
    Obviously, Ms. May does want to slow down and halt any development of resource projects in Canada. This would be the stake into the heart of our development industry when it comes to mining, when it comes to oil and gas development. I don't know how we, as members of Parliament, can support this kind of an amendment. This is just going too far.
    Ms. Duncan.
    I would just comment that if the wording as it is right now—“must include consideration of”—does not mean that they genuinely must take those into account.... It seems Mr. Fast is suggesting that it's completely discretionary. I would suggest that we vote on that basis. That is the way it is being interpreted by some parties.
    Yes, I heard that.
    If this is adopted, NDP-44, PV-59, PV-60, NDP-45, and LIB-41 cannot be moved because there will be a line conflict.
    (Amendment negatived: nays 8, yeas 1 [See Minutes of Proceedings])
    The Chair: We are now on NDP-44.
    I don't think there's any point in bringing that forward. It's essentially the same, just more demonstrative.
    Next is PV-59.
    I'm not going to move this one because I've moved PV-58. I know I'm not allowed to not move an amendment. They're all deemed to have been moved by me because of the status of the motion the committee passed, but it's up to you. I would be standing down on this one if I had such power.
    Our practice is to allow you to withdraw it if you want to withdraw it.
    If that's the practice then I will withdraw it.
     Technically—and I really do mind the technicalities of this—the motions passed by every committee in this Parliament mean that today I am in clause-by-clause on three bills at the same time, and I don't have the right to withdraw my own amendments, but I appreciate the practice, and I will withdraw my amendment.
    We try to accommodate in this committee.

  (1150)  

    You shouldn't have passed that motion if you wanted to accommodate, but never mind.
    Next up is PV-60.
    This is putting forward the point that you don't consider factors unless the consideration of those factors leads you to base your decision on those factors.
    If this is adopted, NDP-45 and LIB-41 cannot be moved because there will be a line conflict.
    I would like a recorded vote.
    (Amendment negatived: nays 8; yeas 1 [See Minutes of Proceedings])
     There's a new version of LIB-41 being distributed. I'll give you a few minutes to quickly look at it. LIB-43.1 will be affected by it. You're also getting a copy of that one.
    If it's adopted, then PV-65 cannot be moved, because there will be a line conflict.
    They will be taken together because we're going to do a vote, and it will apply to 43.1.
    Are you going to move it, or is it considered moved already? I have a question to ask about it.
    We can let Mr. Amos explain, please.
    We've heard from stakeholders on all points on the spectrum—industry, indigenous groups, environmental groups, academics—and they've sought a tightening of the method by which factors are going to be considered, both in terms of the impact assessment reporting and also in terms of how decisions will be made by the executive.
    This is language that we worked hard at ensuring was clear and provided that certainty to industry, but at the same time provided greater clarity as well that it wouldn't just be a consideration of specific factors and that it would actually be based on those very specific and identified factors in the legislation.
    If you look in the bill, you'll see that LIB-41 has the same kind of wording and the detailed reasons. That's why they apply to each other.
    Ms. Duncan.
    I think it's still limiting. I don't understand how this is an improvement. I think, in fact, you're limiting how they will base their decision on the report by considering far fewer factors than the 22 factors that were considered in doing the report. Is that still the message, that neither the cabinet nor the minister have to consider all 22 factors that the agency or panel had to consider?
    With respect, I would disagree. The language would clearly enable that the consideration would be based on the report, and that report contains all of the relevant factors to be considered.
    What it really ensures is that there is a focus of decision-making in this context in proposed section 63 around the ministerial determination; it ensures it would be focused on the factors considered in the report.

  (1155)  

    In fact, it says the opposite. It says that it will be based on the report with respect...with a consideration to a much limited list of factors. It must be based on the report and consideration of far fewer factors.
    There's a difference of opinion, but it stands.
    Shall the amendment carry?
     I would like a recorded vote, please.
    (Amendment agreed to: yeas 5 ; nays 3 [See Minutes of Proceedings])
     That applied to 43.1 as well.
    Next up is CPC-6. If adopted, PV-62 cannot be moved because there will be a line conflict.
    Mr. Fast.
    The proposal is that Bill C-69, in clause 1, be amended:
(a) by deleting lines 25 and 26 on page 39.
(b) by deleting lines 39 to 42 on page 39.
    The justification for this is the government needs to clearly define each of these concepts and the criteria that must be met. Since they have not, we are suggesting to remove paragraphs (a) and (b) from proposed section 63.
    The sustainability and climate change tests in the assessment portion of the impact assessment process represent risk to proponents as they add uncertainty. The whole goal of this legislation was to improve certainty and this is going in the wrong direction. Policy issues like climate change and sustainability should be deliberated on during the early planning phase and measured against any relevant and available strategic and/or regional assessments to ensure the broad policy issues do not impact the scientific and fact-based review.
    Mr. Amos.
    Madam Chair, I simply wanted to say that I think it's a sad day when factors to be considered in an impact assessment related to sustainability and climate change are proposed for elimination in a bill. Canadians want to see projects move forward and want to be confident that the processes that allow such projects to move forward are going to be robust. By stripping the notion of sustainability and our climate change commitments out of that consideration, it would really eviscerate the bill.
    I just wanted to remark on that. I don't think Canadians would support this either.
    Mr. Fast.
    I wouldn't characterize this, in any way, as an evisceration of the bill. We believe the bill is quite problematic. Sustainability means different things to different people. It could be interpreted as not permitting any net contribution to GHG emissions, which is not a reasonable threshold to disallow a project from moving forward. The bottom line is, step by step, this legislation and the amendments coming forward from the government make it more and more difficult for proponents of projects to get their projects approved even if those projects are merited. That is a sad statement about the state of affairs in Canada right now, where capital and investment are fleeing this country in amounts that we have not seen, certainly in my lifetime.
    This is not about eliminating considerations; it's about making sure we don't put additional roadblocks in the way of proper development of our resources in a way that is environmentally defensible and sustainable.

  (1200)  

    Just to be clear for everybody, there is a definition of sustainability in the bill, which is helpful to make it clear to people what is meant. I understand your points, and there's definitely a difference of opinion around the table.
    Shall the amendment carry?
    I would like a recorded vote, please.
    (Amendment negatived: nays 6; yeas 3)
     We move on to PV-62.
     Again, we're still on page 39, going to lines 41 to 42 under factors in the public interest. We would insert:
Canada's ability to meet its national and international obligations and commitments in respect of the environment, climate change and biodiversity.
    I have a point of order.
    Has LIB-42 been removed?
    Sorry, yes, it was withdrawn. My apologies, it was my fault. I didn't call that out.
    Again, factors to be considered in weighing the public interest would include our ability to meet our national and international obligations and commitments in respect of environment, climate change, and biodiversity. Those are really significant factors that I'm sure the government would want to weigh, but we want to specify them under proposed section 63.
    Shall the amendment carry?
    I would like a recorded vote.
    (Amendment negatived: nays 7; yeas 1)
    I shouldn't allow votes from the back of the room. They have to be at the table, and she's still at the back.
    Sorry about that. If we need a pause, we'll take a pause, but we're not going to pause yet.
    Next up is Madame Pauzé.

[Translation]

    Thank you, Madam Chair.
    Our proposed amendment adds, after line 42 on page 39, some elements to consider when making decisions.
    If you agree, I will introduce amendments GPQ-2 and GPQ-1 at the same time. In fact, amendment GPQ-2 has to do with approving those elements, but, before being approved, they will have to be assessed.

[English]

    Sure.

[Translation]

    Okay. Thank you very much, Madam Chair.
    Let's refer back to April 14, when Jean-Marc Fournier, the Quebec minister responsible for Canadian relations, sent a letter with a very eloquent title: Le fédéral doit respecter les lois provinciales. I have copies of the letter here, if anyone is interested in reading it.
    On our end, we confirm that there is consensus on that. Quebec has the best assessment process in North America. We are of the opinion that it is important to listen to Quebec when it asks that the process be followed. My amendments are along those lines. They have been submitted by the Centre québécois du droit de l'environnement (CQDE), the only organization that was invited to give a presentation here.
    Our laws and regulations reflect the will of the people. At a previous meeting, Mr. Fast said that Canadians expected the legislation passed to be enforced. The same applies to provincial legislation, including that of Quebec. We feel that, instead of increasing Ottawa's powers, they should be brought closer to the people, since they are the ones who will deal with the environmental impacts or the impacts of the proposed bills.
    Environmentally speaking, that's an advantage. Because bills must comply with both federal and provincial legislation, protection is increased. This is the highest standard that would apply. In Quebec, we have the best laws. Setting them aside to enforce federal laws would reduce environmental protection.
    In conclusion, some members here are representing Quebec, and I would be very disappointed to see them vote against my amendments. That really would mean that they are acting against their own people.
    I therefore invite the members from Quebec and all voting members to vote in favour of my two amendments.

  (1205)  

[English]

    Mr. Amos.

[Translation]

    I would be pleased to speak to the two proposed amendments.
    Having worked for a decade with the Centre québécois du droit de l'environnement and as an accredited environmental lawyer in Quebec for many years, I am very familiar with the BAPE system in Quebec. This process is not perfect, and neither was the federal environmental assessment process in the past.
    What is important is that Quebec's jurisdiction be respected. This bill will respect the jurisdiction. It provides for everything required in terms of overlapping responsibilities. Environmental protection is an area where responsibilities overlap. It is imperative that the proposed legislation provide a mechanism for the different levels of government to work in partnership. I am fully convinced that the legislation will enable and encourage this collaboration. In my opinion, to suggest that Bill C-69 will not have that effect is tantamount to playing politics and trying to pit Quebeckers against the rest of Canada.

[English]

    Ms. Duncan.
    Remember, we're going to keep this debate really short, because—
    I have a right to speak to it.
    Well, you do. Not five minutes; we're way past the five minutes.
    Go ahead.
    I have concerns with the provision, but they're different. I think that it would be ultra vires in this bill to assign to the federal government the authority to decide if provincial laws are respected. I understand the intent, but I don't think the way it's worded would be allowed under federal law. I think that both of them would be deemed to be ultra vires, because the federal government should not be the authority that will decide that provincial laws are complied with.
    I think the best resolution to this is to always have joint reviews. That would be the preference.
    However, I understand where the member is going. It certainly would make sense if.... For example, a province can have a higher standard than the federal government, but not a lower standard for a toxin. That is a good message. If they're going to make a decision based on toxins, they should be based on the provincial law.
    I don't think it makes sense in the way that this is drafted, because I think you're saying that the federal government would decide whether or not the provincial law had been respected. I think that would be ultra vires of the federal government.
    Shall we ask the experts?
    Sure, we'll go to the Department of Justice on that.
    First off, I would have to say I'm here to explain the government's position as well as how the bill will operate in practice. The legal advice of the Department of Justice is given to the government as a whole.

[Translation]

    Upon careful reading of the amendment, I see that the measure in question would be only one of the elements considered by the minister or by the decision-making authority. It would just be something to consider, not an obligation. It would be a simple part of the assessment.
    The legislation very clearly applies to effects under federal jurisdiction. I will leave it at that.

[English]

    To add to that, the design of the legislation is to ensure co-operation with other jurisdictions. The goal would be to move towards one project and one assessment.

  (1210)  

    Okay, thank you very much for that.
    I think it's time to vote.
    I would like a recorded vote.
    (Amendment negatived: nays 9; yeas 0 [See Minutes of Proceedings])
    That did not carry, and that applied for both GPQ-1 and GPQ-2.
    We'll move on to PV-63. Ms. May.
     I think this is a really important amendment. All the amendments are important, but this one I think is an oversight.
    I'm adding a proposed paragraph (f) to the list of factors to be considered—and this was a recommendation that some committee members will remember was from the Wildlife Conservation Society Canada —that the minister's determination of factors should include, where it's actually occurred, any outcomes from relevant regional and strategic assessments.
    When you look at this, it's a bare-bones amendment. It refers you to proposed sections 92, 93, or 95. Those are the sections that deal with regional and strategic assessments.
    Obviously if there has been a determination and outcome from a regional strategic assessment that the cumulative effects of, say, project x will be to tip an ecosystem into cascading population collapses, the minister can't ignore that factor. We ought to list that as one of the factors to be considered.
    Ms. Duncan.
    Absolutely, it should be included. Otherwise, what's the point of doing the regional and strategic assessments?
    I would like a recorded vote.
    (Amendment negatived: nays 8; yeas 1 [See Minutes of Proceedings])
     We are now on PV-64. Ms. May.
    This is again to make sure that when cabinet and the minister make a decision, it's not the adverse effects that they find in the public interest, but that they find that the adverse effects are justified because a project is in the public interest.
    I would like a recorded vote.
    (Amendment negatived: nays 8; yeas 1 [See Minutes of Proceedings])
     We're on to LIB-43. Mr. Aldag.
    This one is under the “Mitigation measures and follow-up program”, taking the implementation of the follow-up program and, as noted, “if the Minister considers it appropriate, an adaptive management plan.”
    In this one, we heard from stakeholders that the follow-up for some projects should include an adaptive management plan. This can serve as a clear safeguard, so the amendment responds to stakeholder comments.
    On the question about definition—as we've had the discussion earlier—I would say that “adaptive management” could be defined in policy if we're unable to do it. Where we'll leave it for now is that's where it could be defined.
    Is the department ready to come back with anything on adaptive management for us?
    Yes, Madam Chair. Mr. Parker is prepared to speak to that.
     Thanks for giving us a few minutes to think it through and talk it over.
    I am going to start by kind of contextualizing it before speaking to the specific amendment. Adaptive management has been part of the environmental assessment for a very long time. In our experience, having a uniform definition as to how to manage that has been helpful. We do that currently through policy.
    Under the existing act, CEAA, 2012, adaptive management is a concept we use to ensure that mitigation measures that are proposed are achieving the objectives that have been set. It allows the department or the agency to engage with the proponent and identify what changes might happen to those mitigation measures over time when we see the results from those.
    That's something we're doing through policy. We have a policy definition for that, and it helps to reduce uncertainty. It's somewhat different from the definition proposed here. I'd say that, in concept, it is similar. In terms of the amendment as drafted, there are certainly some unknowns in it. “Adaptive management” in the motion notes that it's a structured, iterative process. I think there is some uncertainty around what that means.
    Looking at LIB-43, it uses the notion of “adaptive management plan” versus process, so there is a difference there.
    I think that Justice might be able to speak to the placement of a definition, but I would flag that the Liberal amendment notes “adaptive management” in one section, in proposed subsection 64(4), which is under our “follow-up program”. That is where we would be using that process and that tool. Our plan would be to use policy to support a definition around “adaptive management” so that we can achieve the objectives that I highlighted.

  (1215)  

    Mr. Fast.
    I have a question for our officials. You said that adaptive management plans are already being used under the current process. Is that correct?
    That's correct.
    The term adaptive management is not used in current legislation. Is that correct?
    That's correct.
    Why, then, is it necessary to include it in this legislation, if the impact assessment community understands what that means and has been functioning quite well without any fixed definition or including it in legislation?
    I'd say that our experience with adaptive management has been variable, in terms of success. There's not a legislative definition of that. Part of the benefit of having that referenced in the act would note that there is the possibility when we come out with a decision statement to specifically have “adaptive management measures” in there. Currently, we can do that, as a policy approach, but there's a backstop if it's noted as “adaptive management plan” within the legislation itself.
    Go ahead, Ms. Duncan.
    I will reiterate this. The call for using, adding in, and defining this term are one and the same. That's based on research that says that empirical work in Canada and the United States indicates that neither proponents, consultants, nor federal departments and agencies have a shared understanding of what the term means. Despite supposed policy considerations, it's not being done properly.
    By providing a definition, the suggestion is that you go beyond the ad hoc—in other words, making it up every time. When you require this, you actually have a clear definition, so that everybody is on the same base. There's no reason why the definition couldn't be added in, at the beginning of proposed section 64. It could say, “for the purpose of this section”, which has happened throughout the bill, where we have added in definitions.
    Are you suggesting that we move—?
    I'm suggesting that we put the definition in that I had recommended, where I thought it made more sense, but it could be added in, just before proposed section 64. It would say, “For the purposes of this section, this definition of adaptive management shall apply.” Without a definition, I don't think we're adding anything to the bill. Nobody knows what we're adding.
    Mr. Amos.
    We've been around this mulberry bush once. I think we need a little more time to get a substantive analysis of the definition, as proposed by MP Duncan. Presently, we have in front of us a motion, which doesn't require that definition, and we can move forward with this motion regardless. In order to get a definition, we're going to need to review it on the substance and get unanimous consent to incorporate it.

  (1220)  

    I did get consent to go back. We'll just leave that stand-down, then, in terms of the definition, and we'll come back to that, after there's been some more consideration. However, we can move on this particular amendment, which is LIB-43.
    Ms. Duncan.
    Will there be there no consideration of adaptive management during the impact assessment review? Is it only going to be considered later in decision-making?
    Maybe I can speak to that part.
    In order for us to get to the conditions in the decision statement, we're relying on the impact assessment to do that. Whether it's adaptive management plan or the other conditions, all of that information has to be assessed for us, in order to develop those. It certainly happens at the outset and then feeds all the way through until—
    Well, there is no discussion of adaptive management during the impact assessment. That's my concern.
    There are a lot of different measures within proposed section 22 that would need adaptive management and the requirements associated with those would be part of the policy approaches laid out.
    We're going to vote on LIB-43.
    Can we have a recorded vote?
    (Amendment agreed to: yeas 5; nays 4 [See Minutes of Proceedings])
     Now, we're on to NDP-45. Ms. Duncan.
     All of these are related.
     The basic intent is that the decision statement must include an evidence-based justification for any trade-offs that were made between or among the the public interest considerations in proposed section 63. It requires that there can't be transparency and accountability without expressly requiring a reasonably detailed explanation of how and why the trade-offs were made. Also, the reasons for the decision must provide a cogent, evidence-based account of why, for example, a project was approved despite the likelihood of adverse environmental effects or impacts on indigenous rights and interests. As well, it allows for amendments to the decision statement in response to unforeseen changes.
    One thing I would add is that is in proposed paragraph (a.1) it would say that “the Minister disagrees with” any of “the conclusions”, and the same under proposed paragraph 65(1)(e), which is after line 11 on page 41, “terms and conditions of” any “approval”.
    Those are two amendments to the amendment, adding the words “any of” after the (a.1) second line, “disagrees with any of the conclusions”, and then in paragraph (e) you have, in the fourth line down, “terms and conditions of any approval”.
    Correct?
    I will reiterate that paragraph (e) clearly delineates that responsibility will be assigned to any “appropriate federal authority”.
    That's not in the change, though. You're just identifying that.
    No, I'm just reiterating.
    Shall the amendment carry?
    I'd like a recorded vote.
    (Amendment negatived: nays 8; yeas 1 [See Minutes of Proceedings])
     Next, amendment PV-65 conflicts with LIB-41, so that one is out. We are now on NDP-46. Ms. Duncan.
    This one is very straightforward. It comes from a number of northern Alberta first nations. It essentially is saying that it requires that the consultations with affected indigenous peoples be completed before the decision statement is issued. It increases certainty by ensuring that Canada has fulfilled its obligations under both section 35 of the Constitution and the UNDRIP.
    Very clearly, it is simply adding in the condition that they won't actually make the final decision until they have completed the consultations with any indigenous peoples that may be impacted by that decision, consistent with what the government has committed to.

  (1225)  

    Fair enough. Thank you.
    Shall amendment NDP-46 carry?
    I'd like a recorded vote.
    (Amendment negatived: nays 8; yeas 1 [See Minutes of Proceedings])
    We are now on LIB-44. Mr. Aldag.
    In this case, this one is put forward as a safeguard. It's intended to balance the ministerial discretion that is contained in the bill. This is something that we heard about, and I believe this increases transparency. That's the spirit of this motion. It provides that counterbalance to ministerial discretion that's provided within this bill.
    Shall the amendment carry?
    I'd like a recorded vote.
    (Amendment agreed to [See Minutes of Proceedings])
     Moving on, we now have CPC-7. Mr. Fast.
    This is an amendment to effect change provisions dealing with projects regulated by the Canadian Nuclear Safety Commission, specifically to permit designated projects related to uranium mines and mills to access the agency assessment provisions of the act, including the suite of provisions related to co-operation with provinces and indigenous governing bodies.
    This amendment does this by adding an exception to the decision statement, considered to be part of licence under the Nuclear Safety and Control Act section of the decision statement portion of the act, for uranium mines and mills from the power of the minister to designate conditions in relation to a project that includes activities regulated under the Nuclear Safety and Control Act through a decision statement.
    As Bill C-69 is currently written, in the proposed “Limitation” subsection of the agreement to establish a review panel, the minister must not enter into an agreement with any jurisdiction that has powers and duties in relation to environmentally assessing a designated project if that designated project includes physical activities that are regulated under the Nuclear Safety and Control Act or the Canadian energy regulator act.
    This amendment makes a language change to clarify that in the proposed “Obligation to refer” section of the act, the minister must refer physical activities at a nuclear facility that are regulated under the act or the Canadian energy regulator act to a review panel. It also adds an exception to the proposed “Obligation to refer” section of the act, stating that physical activities at a uranium mine or mill are not included in the minister’s obligation to refer physical activities at a nuclear facility that are regulated under the Nuclear Safety and Control Act or the Canadian energy regulator act to a review panel.
    Finally, the rationale is that uranium mines and mills, like all mines and mills, are subject to provincial regulatory and permitting frameworks, but they’re also regulated by the Canadian Nuclear Safety Commission. Bill C-69 would preclude co-operation and preclude agency assessment for all designated projects that are regulated by the CNSC, treating all such projects as exclusively in federal jurisdiction. There is no justification for this differential treatment as the complexity and impacts of uranium mines and mills are not in any different category from those of other mines and mills, and co-operative approaches are just as valuable.

  (1230)  

     I think that’s clear.
    If we adopt this, then CPC-7.1 cannot be moved, because there will be a line conflict.
    Mr. Ed Fast: I would like a recorded vote, please.
    (Amendment negatived: nays 6; yeas 3 [See Minutes of Proceedings])
    The Chair: We move on to CPC-7.1, which is similar.
    For the same reason as we presented before, Madam Chair, there’s no reason uranium mines should be treated differently.
    It's “in relation”—it’s a very minor difference from the other.
    This was a request from the Mining Association of Canada, who, you may recall, appeared before us. They specifically asked for this amendment. Those details are in their brief. I have a copy of their brief if anyone wants to see it.
     Shall the amendment carry?
    Mr. Ed Fast: I would like a recorded vote, please.
    (Amendment negatived: nays 6; yeas 3 [See Minutes of Proceedings])
    The Chair: We move on to LIB-45. Mr. Fisher.
    This is a housekeeping amendment that will clarify that enforcement of certain project conditions and decision statements would be the responsibility of the relevant regulator. It sounds like it would be logical, but it’s not really clear in the designated conditions or decision statements incorporated into a CR that the permit must be enforced by those particular regulators.
    Ms. Duncan.
    I'm puzzled as to what matters an enforcement officer can actually enforce under this bill. Maybe the officials could tell us.
    The conditions of a decision statement that is issued by the Minister of Environment and Climate Change following a decision are enforceable conditions, and those can be enforced under the enforcement powers in this act by enforcement officers of the Canadian Environmental Assessment Agency, which would become the impact assessment agency of Canada.
     I believe this proposed amendment is trying to make it clear that conditions of a decision statement that are the responsibility of a regulator would be enforced by that regulator, and then any subsidiary conditions that don't fall directly to a life-cycle regulator or regulator would thereby be enforced by the impact assessment agency of Canada.
    I think that's clear.
    I'd like a recorded vote.
    (Amendment agreed to: yeas 9; nays 0 [See Minutes of Proceedings])
    We have distributed LIB-45.1. Mr. Rogers.
    Madam Chair, again this is in the spirit of the some of the other amendments I've introduced regarding timelines and trying to provide for more timely assessments.
    Shall the amendment carry?
    I'd like a recorded vote.
    (Amendment agreed to: yeas 9; nays 0 [See Minutes of Proceedings])

  (1235)  

    We'll move on to LIB-45.2.
    Sorry, it's a mistake. It's our fault.
    We're on NDP-47.
    This was called for by a good number of those who participated in the interviews for the expert panel, and also by those before us. It would simply add a statutory right to appeal of a ministerial or cabinet decision on designated projects. The appeal would be to the Federal Court and would be on questions of law and mixed questions of law and fact. It was specifically recommended by both the Canadian Environmental Law Association and by Professor Dr. Meinhard Doelle, who proposes that we have an additional tribunal, which we'll come to later.
    This is normal for any type of assessment process like this, and it's kind of surprising that it's missing. It is normal in any provincial environmental assessment process that you would be able to seek a determination on a question of law or mixed question of law and fact.
    I'd like a recorded vote.
    (Amendment negatived: nays 8; yeas 1 [See Minutes of Proceedings])
    We will pause for five minutes.

    


    

  (1245)  

    We will resume.
    I'll start off by saying that I have to give you a ruling on PV-66 before we go through it, Ms. May.
    The House of Commons Procedure and Practice, Third Edition, states on page 772.... I think you can read it there. It's my opinion that the amendment seeks to alter the terms and conditions of the royal recommendation by imposing a new charge on the public treasury, and therefore, I rule the amendment inadmissible.

  (1250)  

    Madam Chair, I'm not in a position to challenge your ruling as a non-member of the committee, but the participant funding program has been established. It's been stated elsewhere that it's the central purpose of the act. My amendment is a housekeeping detail to make sure it's substantive. It's not creating a new spending power, and it's not altering the purpose of the legislation, nor the government's intent to ensure that participant funding is available throughout the process.
    If my amendment is inappropriate, I hope that the government will look at this again and perhaps fix this at report stage.
    The situation here is that you're broadening the powers from what's already been decided. That's why it's not admissible.
    I understand that, but I'm only broadening it to the extent of the government's stated intention. The government's stated intention wasn't that only certain participants would qualify for participant funding. It was a broad statement that there would be rights for participant funding.
    I want to just grab this opportunity to say that, if my motion is out of order, I would hope that perhaps the other analysts working within the government staff, working within the Liberal research bureau, working for the different members here at the committee, might consider a report stage amendment to ensure that participant funding is available as the government intends.
    At this point, we can take that under advisement.
    We're now on to NDP-48.
    It may have the same issue. In this amendment, we delete lines 21 to 23 on page 45. That removes the exemption from a participant funding program for assessments conducted through a substitution by another jurisdiction. A substitution, supposedly, the government is saying, could include federal officials appearing and speaking to matters related to federal...and certainly could include members of the public indigenous testifying and bringing forward evidence related to federal responsibility, even though the federal government has said that it will let a province or territory run the review.
    There needs to be participant funding to cover anybody who is engaged in any hearing that is dealing with federal areas of responsibility. That should be taken out. Surely the government is going to provide participant funding for anybody who is speaking to matters related to federal jurisdiction in the review of a project.
    You're right. It is very similar to what went before, but because you're removing lines, it is admissible. We're going to move forward on it.
    We'll now vote on NDP-48.
    I'd like a recorded vote.
    (Amendment negatived: nays 7; yeas 1 [See Minutes of Proceedings])
    Now we're on NDP-49. Ms. Duncan.
    One of the greatest surprises and disappointments of this bill is that it's totally vacuous on participant funding or the right to participate.
    What this amendment does is clarify the process on how a participant funding process would work, and that would be determined by regulations to be issued and/or agency guidelines. The amendment proposes new subsections to proposed section 75 to clarify how a participant funding program is to be established: the procedures, the guidelines, the submission rules, who determines under proposed section 36 where there's a review panel, where there's a regional or strategic assessment, any right to request, and any rules and procedures for cost advances. These are all normal procedures that are usually in impact assessment procedure. They certainly exist in my province.

  (1255)  

     I'm a little confused. You're putting it in after (2), which is in the proposed “Exception” section, right?
    I'm just trying to understand. You're on line 23 on page 45, and that is in the exception after (2). You're adding (3) and (4), so it's not (d), then Exception; it's—
    This one is after proposed subsection 75(2). I'm adding whole proposed subsections (3), (4), (5), (6), (7), and (8).
    It's not under the heading “Exception”.
    You're speaking of NDP-48. This is NDP-49, and it would occur just before “Cost Recovery” and just after proposed subsection (2).
    Yes, I've got it now.
    (Amendment negatived: nays 8; yeas 1 [See Minutes of Proceedings])
    The Chair: We're going to move to CPC-8, but there is a distribution right now of CPC-8.01 to CPC-8.03. Copies are coming around, and they do matter because it's consequential to those.
    Go ahead, Mr. Fast.
    The amendment is that Bill C-69, in clause 1, be amended by replacing line 22 on page 46 with the following:
the costs and amounts referred to in
    The previous act only required the proponent of a project to pay the agency for any costs incurred for prescribed services provided by a third party in any prescribed amounts that are related to the exercise of the agency's responsibilities. Currently, this bill reads that the “Governor in Council may make regulations” and then sets out the two items: one has to do with providing for fees, charges, or levies, and the other provides for the manner of calculating those fees.
    The rationale is that, if this section were to be kept and the agency can charge the proponent for whatever it wants, then there is no incentive for the agency to be efficient and effective in its duties. Project proponents and investors need certainty if they're going to invest in the Canadian economy. We've seen that certainty dissipate in Canada. We've seen a flight of capital. The regulatory process needs concrete timelines if we're going to have certainty.
    I note that the government pledged that investors will get more certainty and shorter timelines with this legislation. In fact, the timelines here are longer, when you add the planning phase to the assessment phase and all of the discretionary powers the minister has in order to extend and suspend. Clearly this is not an expedited process.
    I'll leave it at that.
    Ms. Duncan.
    Surely what Mr. Fast is proposing here is exactly what should happen under proposed section 76. My understanding is that industry would have every right to be engaged in the process when promulgating the regulations to actually determine what fees may or may not be determined.
    So, are you agreeing?
    Yes, if they have faith in the regulatory process.
    (Amendment negatived: nays 6, yeas 3)
     That also voted against CPC-8.01, CPC-8.02, and CPC-8.03.
    We'll now move to NDP-50.

  (1300)  

    I'm also proposing a section 82.1.
    Do you want me to do them at the same time?
    No. We're at page 47 in the bill, and you have NDP-50.
    With regard to proposed section 81, I am adding to the definition of “project” because there is a third category. I'm finding, frankly, this whole section very convoluted, and I don't really understand why it's drafted the way it is. However, there is a third category: activities not on federal lands. A federal assessment can occur on projects on federal lands and also on projects on non-federal lands. Authorities have power on federal lands and also on non-federal lands. In other words, they could be aboriginal lands. They could be territorial lands. They could be provincial lands.
    I am also proposing a new paragraph under proposed section 81:
(c) a physical activity that is carried out on lands other than federal lands, but that is regulated by a federal authority or wholly or partially financed by a federal authority.
    Mr. Fast.
    Could I ask the officials to comment on whether this may be ultra vires the federal government's constitutional authority?
    If the physical activity is carried out on lands that may not be federal lands, but are otherwise regulated by federal authority, I think this would be within the realm of Parliament to regulate.
    It would be within Parliament's power to regulate, but if you'll allow me a few seconds, perhaps, I could firm up that position.
    In addition to that, adequate provisions for federal lands—as laid out in the legislation—are to fill a gap where there is no other jurisdictional legislation that exists.
    I'm not sure that I understood that.
    We want to make sure that activities on federal lands.... Other activities are regulated often by other jurisdictions. The attempt of these provisions is to ensure that all activities that occur on federal lands—because there is no other jurisdiction that is responsible for them.... We want to make sure that we are providing the necessary assurances in those areas.
    Okay, so it's quite specific.
    I'm not reassured by that because this part talks about projects carried out on federal lands, and it talks about projects outside Canada. It, therefore, should also deal with projects that are not on federal lands. Why are we excluding that huge category of lands where, frankly, most of the federal assessments occur, or used to occur before they were all exempted?
    The tool that's being used to determine what activities require a federal impact assessment is the project list, the designated project list. We currently have a discussion paper out on the criteria for determining what projects will be subject to this act.
    Then, in addition to those projects, there are also responsibilities for federal authorities for projects that take place on federal lands, or outside Canada, and that are run by federal authorities. An example would be development projects outside Canada.

  (1305)  

    I'm not convinced.
    Mr. Fast.
    Well, I'm not convinced that this amendment is the way to go. If you read it, this is not only about federally regulated activity on non-federal lands. It's also about the federal government financing a private project, say, within a municipality or within a province. Again to Mr. Rochon, is it within the power of the federal government to designate this as a project?
    What I'm saying is that there's a project that a municipality or a province undertakes. It just so happens that the federal government has agreed to finance part of it. Does that now allow it to fall within the ambit of the federal government's jurisdiction?
     If you allow it, Madam Chair, I will check my answer with some of my colleagues, but the federal government's power to spend money would be captured as part of the federal government's jurisdiction. It would be subject to any rules we want to make and impose on it in the legislation.
    If you give me a few seconds, I'll consult with my colleagues here.
    With the committee's agreement, we'll just stand this one down and move to the next one.
    I'm guessing your folks are going to vote against it. If they are, we might as well just vote on it.
    Let's get the answer. We put it to them. I'd like them to have the chance to answer the question properly.
    Simply to restate what I have just said, this would be part of the federal government's spending power. Like any other government decision that is within our federal jurisdiction, which includes federal spending power, that could be the subject of an environmental assessment if Parliament so chooses.
    This is the granting of money, whether it's to a municipal government, a foreign organization, or any other regulated federal entity. It could be the subject of federal impact assessment.
     I understand what the exceptions are. I'm just asking why you are not also applying those to non-federal lands.
    You're essentially saying that an authority can't carry out the project if they've given money or will partly authorize the project. Why do you not also have a provision related to a project on non-federal lands? It seems logical. You're completely missing that third category of where projects can occur: federal lands, non-federal lands, and foreign lands, but you don't have the non-federal lands.
    This will be the last clarification.
    I'll just make one comment on it.
    Like Christine noted earlier, the project list drives where impact assessment happens. On federal lands, there's no provincial oversight. Recognizing that, this act puts in place provisions for an assessment process. It selects federal lands as being the appropriate place to do that, because there is that gap. The quality assurance program that we have run on those particular types of projects—we've done that for a number of years—indicated that 94% of those types of projects have minor or insignificant impacts. Those that do have higher potential for impact are being considered for the project list. All those other ones would go through this alternate assessment process that focuses on environment in federal lands.
    So you're saying in some cases the authority can run the environmental impact assessment instead of the agency or a panel, but they are completely different factors.

  (1310)  

    That's correct.
    Unbelievable.
    Clarity has been had.
    I would like a recorded vote.
    (Amendment negatived: nays 8; yeas 1 [See Minutes of Proceedings])
     We are now on PV-67. Ms. May.
    PV-67 is in the same vein as Madam Duncan's earlier effort. I know that some of the questions put to government witnesses a moment ago would suggest that it might be unusual or overreaching. I want to stress that between 1975 and 2012, a period of over 40 years, any time federal government money was spent on a project, it was screened at least at a minimum. There was a federal environmental assessment review of every project on federal land, every project in which federal money was used, and every project in which an authority was a proponent, as well as those that were triggered by a law list.
    We now have a project list. Of course we all know there's a public consultation about what the project list will be. We have an impact assessment bill in front of us, and the guts of it remain a big question mark. When will there be an impact assessment? What projects will come out under review? Everything we've seen in documents from the minister's office and statements from the Minister before this committee is that the intention of the current government is not to repair the process but to keep it only for major projects. That's a fundamental question. What is impact assessment for?
    From 1975, through Progressive Conservative governments, Liberal governments, it was always about the federal government having an obligation to assess all the projects in its jurisdiction. Again, we're seeing a substantial shrinking of that in this bill.
    That's why I'm putting extra effort into pleading for this one amendment, that if you can accept Green Party amendment 67, we will be saying in the definition of the act, which will inform the project list, that a project is always one that takes place on federal lands or where the authority is a proponent or where the federal government is providing funding. This will go a very long way to meeting the mandate letter that re-establishes trust in the IA process.
    Thank you very much for that clarity and for that detail.
    We have had a bit of debate on this already, so we're going to go straight to vote.
    I'd like a recorded vote.
    (Amendment negatived: nays 8; yeas 1 [See Minutes of Proceedings])
    Madam Chair, before we move forward, I have an amendment to proposed section 82 on the floor.
    Yes, your NDP-50.1. It's “Project carried out on non federal lands”.
    It's very simple. I would be removing proposed paragraph (a) of proposed section 82.
    We're adding a new proposed subsection 82.1 on page 47.
    You're adding something. You're not removing. You're replacing proposed section 82 with proposed subsection 82.1. Is that what you're trying to do?
    There are two parts to it, so can I do them in two separate...?

  (1315)  

    I'm all yours, but let's do it quickly.
    The first one was for proposed section 82, as I said. I would remove proposed paragraph (a).
    I believe that the assessment should be done by the agency or panel, not by the authority.
    Does everybody understand that amendment that's come in from the floor? It's going to be NDP-50.01, and that is the removal of proposed paragraph 82(a).
     I would like a recorded vote.
    (Amendment negatived: nays 8; yeas 1 [See Minutes of Proceedings])
     Now we're on to your NDP-50.1.
    On page 48, after line 3, I would add the new proposed section 82.1, along the lines of what we've been discussing, “An authority must not carry out a project on non-federal lands, exercise any power or perform any duty or function...or provide financial assistance unless the authority determines that the carrying out of the project is not....”
     It's the same as proposed section 82, but it applies to non-federal lands.
    Okay. It's putting in a new proposed section, so you're leaving “Project to be carried out on federal lands”, and then you're adding a new proposed section 82.1 right after page 48, line 3.
    That's correct.
    It is word for word the same as proposed section 82, but instead of saying “federal lands”, it would say “on non-federal lands”.
     Shall the amendment carry?
    I would like a recorded vote.
    (Amendment negatived: nays 8; yeas 1 [See Minutes of Proceedings])
    Now we're going to PV-68, which is identical to LIB-45.2
    Madam Chair, there's a minor grammatical or spelling error here. We're supportive of this initiative. We just wanted to make sure the change was made.
    It's identical.
    It's not. There's “based on a consideration” versus “based on consideration”.
    There's an “a”. Because Ms. May can't move her own amendments....
    Unless I'm having a problem here, hers is identical to yours.
    We seem to maybe have a version problem with yours. Can you just please read what you are replacing in PV-68? You said, “replacing line 18 on page 48 with the following”. Please tell me what it reads in yours.
    It reads, “adverse environmental effects must be based on a consideration”.
    Okay. It's the same.
    I can understand. What's happening is that what Mr. Amos is moving, if I have it correctly here in front of me, “must be based on the report with respect to the impact assessment and a consideration”. That one's not the same.
    It would appear they are identical. An earlier version we saw was not, and so we—

  (1320)  

    Okay. So if vote on PV-68, then LIB-45.2 is moot, because we will have voted on the same thing with Ms. May's.
    We'll vote on Ms. May's, and we'll withdraw mine.
    If there's a problem supporting my amendment in favour of yours.... But if we can vote on mine and pass it—
    No, yours came first.
    In that case, I would ask for support for this amendment.
    Shall the amendment carry?
     I would like a recorded vote, please.
    (Amendment agreed to: yeas 6 ; nays 3 [See Minutes of Proceedings])
    Ms. May, your PV-69 was already dealt with under PV-1, so that one is off.
    Now we're at LIB-46, which was already voted on.
    My amendment is before PV-69. I have the copies here in both languages.
    I'm sorry.
    I am on page 48, at line 19.
    It's quite straightforward. This is what I have been calling for consistently and what the witnesses have been calling for. It would be for the factors in proposed section 84. It would replace lines 19 to 31 with the factors listed in proposed section 22. It simply means that if an authority is going to do the assessment, they should do the assessment in the same way the agency would do the assessment, based on the same factors.
    We're calling this NDP-50.2.
    I am replacing all of those factors in lines 19 to 31. It's actually to line 33, rather than line 31.
    Then it would say, “must include consideration of the factors listed in section 22”.
    Does everybody understand what's happening here? She's just amending proposed section 84, taking out all the (a), (b), (c), (d), and (e), and just changing that last line of 84 to “must include consideration of the factors listed in section 22”.
    Shall the amendment carry?
    I request a recorded vote.
    (Amendment negatived: nays 8; yeas 1 [See Minutes of Proceedings])
     We're now moving on to LIB-46.
    I'll speak to that one.
    This is an amendment from my colleague, Mr. Bossio, to advance the spirit of reconciliation through this legislation. It's simply taking what we heard from indigenous organizations and expanding the definition from traditional knowledge to indigenous knowledge.

  (1325)  

    We actually carried.... I think we did. It was the one that I actually did before we stopped doing it. We passed LIB-1, LIB-4, LIB-5, LIB-16, LIB-46, LIB-57, LIB-60, and LIB-62, and it was all about that indigenous knowledge.
    Do you want to just check?
    It's the only one I thought we did do, but I'm being told “maybe not”. You know what? Let's just do it again.
    If you did it, you can't do it again.
     There was one that we did do. Which one was that?
     It was PV-1.
    All right, it's my fault. I thought we did it, but we didn't.
     I always have to defer to the legislative clerks. They know what I'm doing.
    [Inaudible--Editor] we're not adding LIB-57 and 62?
    No, we're just going to do—
    Just LIB-46.
    We're going to do them as they come. We're going to leave it at that.
     It's my fault. Sorry, I got ahead of myself again. I made notes and didn't correct them when we stopped doing it.
    Shall the amendment carry?
    I would like a recorded vote.
    (Amendment agreed to: yeas 9; nays 0 [See Minutes of Proceedings])
    Now we're going to do LIB-47. Mr. Fisher.
    Thank you, Madam Chair. It's another housekeeping amendment.
    This amendment would ensure that only applicable factors must be considered when determining whether a project outside Canada is likely to cause significant adverse effects. The factors under the proposed IAA, paragraphs 84(a) and (b), do not apply outside Canada, yet they are required to be considered for these projects.
    If you want, Madam Chair, I can read you the proposed subsection 84(2), or we can understand that it's housekeeping.
    It sounds like everybody should have read this. It's been on the books for a little bit.
    I'd like an explanation as to why the federal government would not have to consider that.
    He didn't say why. He just said what he was doing.
    Mr. Fisher, do you want to give an explanation?
    Perhaps the department—
    It's because paragraphs 84(a) and (b) are directed to indigenous peoples of Canada and constitutional obligations under section 35. We're talking about projects that are outside Canada, which thereby would not affect inherent rights under section 35 of the Constitution.
    Are you sure about that?
    What if it's Coast Salish people, and it's something that's affecting the Coast Salish? What if it's a project outside Canada, but it's still within the boundaries of traditional hunting and fishing of indigenous peoples in Canada? What if it's the Gwich'in people, and it has something to do with Alaska?
    If they're not there, they're not there, but hypothetically, they could well be there, and because it's a project outside Canada, we wouldn't be—
    The examples you've provided are transboundary examples, which then may be subject to the act at large. We're talking about projects here that are non-designated projects, or projects on federal land and outside Canada.
    Ms. Duncan.
    It's completely puzzling to me. The authority would consider impacts on non-indigenous communities in Canada and would consider comments from the public, but it would not consider any concerns identified by indigenous peoples.
    Are you seriously going to put this forward?
    Yes.
    Shall the amendment carry?
    I would like a recorded vote.
    (Amendment agreed to: yeas 8; nays 1 [See Minutes of Proceedings])
    We're now on LIB-48. If adopted, PV-70 cannot be moved because there will be a line conflict.
    Mr. Aldag.

  (1330)  

    This one removes a qualifying statement here. It removes, “if the authority is of the opinion that it is appropriate in the circumstances”, to simply say, “such a determination and that invites the public to provide comments respecting that determination.” The intent here is to increase consistency in the bill as well as transparency.
    The second part of it is changing “15 days” to “30 days”.
    Those are the two elements of this amendment.
    Ms. Duncan.
    Am I reading this to say that the authority can decide that the public doesn't have to be invited to provide comments?
     Maybe the officials want to make a comment.
    If I understand your question, it's whether there is discretion for the federal authority to decide.
    If the public can comment.
    The amendment would actually change that. Currently, there is discretion, but the amendment would obligate them to invite public comment, and there would be a new time period associated with that.
    You're saying that the notice is inviting.
    Yes. They must post that notice, and that invites the public to provide comments.
     All those in favour of the amendment?
    Mr. Ed Fast: I would like a recorded vote, please.
    (Amendment agreed to: yeas 9 ; nays 0 [See Minutes of Proceedings])
    The Chair: That means that PV-70 is not possible because of a line conflict. We move on to amendment LIB-49.
    This is the second motion that looks at dealing with federal lands and increasing the consistency in the wording through the bills. The intent of this one is to provide certainty through a shared process across government for assessing projects or types of projects on federal land and outside Canada.
    Shall the amendment carry?
    Mr. Ed Fast: I would like a recorded vote, please.
    (Amendment agreed to: yeas 6 ; nays 3 [See Minutes of Proceedings])
    The Chair: We are on amendment NDP-51.
    This is a very important one brought forward by a number of the lawyers who testified, including Professor Meinhard Doelle from Halifax.
    After line 27 on page 50 we would add 91.1 just before the heading “Regional Assessments and Strategic Assessments”. That would impose a clear responsibility on federal authorities to carry out the regulatory duties, powers, or functions with respect to the approved projects to ensure effective implementation of the follow-up programs. It would ensure transparency of the results provided through a central federal registry.
    It would require the federal authorities to actually perform their duties and functions. We dealt with this before on enforcement. That was why I raised the question about what exactly the impact assessment agency would do. You do an environmental impact assessment and then you need to go back to the regulatory authorities who are charged in their mandate legislation to actually give licences or give approvals and so forth. This would require that they take into consideration the recommendations and the directions under the impact assessment and actually deliver the responsibilities and then make it known on the central registry that they have taken those actions.
    Shall the amendment carry?
    Mr. Ed Fast: I would like a recorded vote, please.
    (Amendment negatived: nays 8; yeas 1 [See Minutes of Proceedings])
    The Chair: On amendment PV-71, Ms. May.
    By the way, this vote will apply to PV-72.1 and PV-76, which is a substantial one.

  (1335)  

    It amends to ensure that under this proposed section, decisions that are made reflect back on “conditions and circumstances” established “by regulations made under section 112.1”, which currently doesn't exist in the bill. The conditions and regulations in proposed new section 112.1 are in my amendment PV-76.
    I don't know whether you want me to describe PV-76 at this point or not, but it is to backfill for important rules of procedural fairness; to ensure that the minister makes regulations for the rules of practice and procedure for review panel hearings and that those be based on rules of procedural fairness and natural justice and emphasize flexibility and informality.
    We've heard that some people want to make sure that this is not too court-like, but we've also heard from many witnesses that the great black hole as to what the content of public participation will be is a significant problem with this act.
    I take the point and I'm grateful for the earlier Liberal amendment that modifies public participation rights earlier in the act and says that they must be meaningful, but this is basically a definition of meaningful. This is what any administrative lawyer would say is the bare minimum of meaningful engagement of public participation rights.
    As well, it is setting out in regulation the detailed criteria and process to be followed to determine which designated project contributes to sustainability, and the conditions and circumstances in which regional assessments or strategic assessments must be conducted. It refers to the classes of projects on federal lands or outside of Canada in respect of which the agency would conduct a streamlined assessment based on the purposes of the act.
    PV-76 imports to the act a substantive, meaningful improvement by injecting a new section 112.1 on page 59, as you can see if you're going back and forth in the act to see where it would come. It would come as the minister is making regulations. Right now, there are powers that the minister can exercise later for making regulations. That's very typical in an act, and it touches on issues of public participation, particularly in terms of participant funding programs, but it doesn't set out that the minister will by regulation set out the rules of practice and procedure for the impact assessment process.
    I think this is an extremely valuable amendment and one I hope will carry. Again, however, if you carry PV-71 without amendment PV-76, you have a bill that doesn't make sense, because there is no proposed section 112.1.
    They are all pulled together, so the vote will apply to all of them, because you're right: if you have one without the other, it doesn't make sense. Amendment PV-76 is a substantial amendment. The consequential ones are PV-71 and PV-72.1.

  (1340)  

    Thank you, Madam Chair. That's the best way to explain it. Amendment PV-76 is the substantial one, and the earlier ones that fall in order are those that are consequential. As it happens, however, they fall earlier in the act, although later in any common-sense analysis.
    Amendment PV-76 I think comes after my amendment NDP-56.
    It does.
    It's okay. Yours are different ones. We're fine.
    (Amendment negatived: nays 8; yeas 1 [See Minutes of Proceedings])
    That applied to PV-71, PV-72.1, and PV-76.
    Now we're moving on to PV-72.
    I'm so sad from that last vote because, honest to goodness, I can't understand why anyone would call public participation meaningful and be unwilling to define what it means.
    But I'll move to PV-72. This amendment is changing text on page 51 at line 26 to insert a new proposed section 93.1 so that when we refer to “regional assessments”—and this is from West Coast Environmental Law's brief—it adds a definition of “regional assessment” to specify the assessments have the effect of including historical, existing, and future activities as well as looking at alternative development and different scenarios for any region. When looking at a regional assessment, requirements for regional assessments identify ecological limits and include cumulative effects.
    My amendment, which would insert itself at line 26 on page 51 is, in fact, a new proposed section, which would be 93.1, so that, when we refer to “regional assessments” in section 92, we have some guidance for a comprehensive understanding of what “regional assessments” mean.
    I see where it fits.
    I would like a recorded vote.
    (Amendment negatived: nays 8; yeas 1 [See Minutes of Proceedings])
    Before we continue, can I ask what time we're going to adjourn or recess?
    Yes, we will suspend. I thought we would do 10 minutes before QP, if that's okay, and then we'll get back at it right after QP and the votes.
    We are now at PV-73.
    This, again, you'll find on page 51, and it replaces lines 35 to 37. This was based on the witness on this amendment, and the advice came from the Assembly of First Nations that the phrase that is relevant to conducting impact assessments be removed in relation to strategic assessments in order to ensure that the process of any existing Canada plan program is consistent with the indigenous rights recognition framework.

  (1345)  

    You've just taken off the relevancy.
    Yes.
    I would like a recorded vote.
    (Amendment negatived: nays 9; yeas 0 [See Minutes of Proceedings])
    On NDP-52, Ms. Duncan.
    Again, this is giving some kind of specifics to regional and strategic assessments. It's recommended strongly by the expert panel report. They said that a discretionary approach to carrying out regional studies under the current act has not been used. Regional and impact assessments are too important to long-term federal interest to be triggered on an ad hoc basis. A schedule should be created to prioritize which region should require regional assessment, and it's sometimes impossible to deal with broad objectives in a project impact assessment without strategic impact assessment providing direction. This was strongly supported by Canadian Environmental Law Association, Professor Doelle, and the Canadian Environmental Network.
    The amendment would require that:
95.1 (1) The Minister must establish and maintain a list of priority regional and strategic assessments, and updates it at least annually.
The Minister must, in each calendar year, conduct at least one regional assessment and one strategic assessment included in the list established under subsection (1).
    I would like a recorded vote.
    (Amendment negatived: nays 8; yeas 1)
     We have PV-74.
    Ms. May.
    As it currently is drafted, proposed section 95 is odd in that it's entitled “Strategic Assessments” but gives no guidance whatsoever as to what a strategic assessment is to look at. This was noted by some witnesses.
    My amendment to proposed subsection 95(2) is to say that:
(2) The assessment referred to in subsection (1) must include an assessment of the environmental, economic and social effects, and of alternative means of carrying. out the physical activities.
    In other words, it puts some guidance as to what a strategic assessment is to look at. Otherwise it's without any guidance at all.
    Mr. Fast.
    Can I just get some clarification?
    I'm looking at page 52, line 3, just before “General Rules”. Is that correct?
    Yes.
    The proposal is for there to be a proposed subsection 95(2).
    I know; it doesn't really fit.
    I'm going to the previous page, there's no proposed subsection 95(1).
    Yes, there's no proposed subsection 95(1).
    There's something wrong here.
    To be clear, if this is adopted they will add a proposed subsection 95(1), which isn't there now; and and then proposed subsection 95(2) will be added.
    Okay. It's assumed that will happen.
    Yes. That's how the drafters know.
    So there's a renumbering that takes place.
    Shall the amendment carry?
    I would like a recorded vote.
    (Amendment negatived: nays 8; yeas 1)
     We'll move on. Amendment LIB-50 was withdrawn, and we are now on PV-75.
    Ms. May.

  (1350)  

    We're still in the rubric of “Strategic Assessments”. What I am proposing is based on the testimony of the Assembly of First Nations, that we amend this proposed section to ensure consideration of indigenous knowledge in any strategic or regional assessment.
    It's very clear. My amendment speaks for itself. It must include terms respecting the consideration of the traditional knowledge of the indigenous peoples of Canada.
    That's adding a third proposed subsection under proposed section 96.
    Madam Chair, because this issue really is of great importance—the incorporation and respect of indigenous knowledge—we've brought forward our own amendments, in particular LIB-51. It would require the taking into account of scientific information as well as indigenous knowledge.
    I don't want there to be any sense that we're not focused on achieving similar ends. I think there's a difference in the method of getting there.
    We are taking the vote.
    I would like a recorded vote.
    (Amendment negatived: nays 8; yeas 1 [See Minutes of Proceedings])
     We're going to stop here. I'm looking at my watch and we're at 10 minutes to. I'm going to suspend, and we're going to come back right after votes.

  (1350)  


  (1530)  

     We will resume. Welcome back, everyone.
    We're going to start at LIB-51.

  (1535)  

    Madam Chair, if I may, I wanted to make a brief intervention. You all know that the motion that requires me to be in committees is difficult for me. Bill C-74 is going through clause-by-clause consideration right now. I have amendments there too. It's simultaneous. I'm going to be in and out. I hope I won't miss one of my amendments. In case, I'm out of the room, I would want you all to know that it's because the motion you passed is identical to the motion passed in the finance committee. I'm fortunate they're not in different buildings today; that has happened to me in the past. I'll do my best not to miss anything.
    Thank you.
    That's fair enough.
    Mr. Amos, do you wish to speak to LIB-51?
    Thank you, Madam Chair.
    We heard loud and clear from indigenous organizations and leaders that the incorporation of indigenous knowledge into strategic and regional assessments was important. We wanted to deliver on that. That is what LIB-51 is all about.
    Will you explain how it's different?
    I'd have to review both side by side. I suggest that by dint of the fact that we consulted with government lawyers and the government itself, it's probably a bit better.
    I think I can probably add that simply deciding to add “scientific information” makes it different.
    Okay, we're not going to debate. We're going to vote.
    I'd like a recorded vote.
    (Amendment agreed to: yeas 8; nays 0 [See Minutes of Proceedings])
    That's excellent. We're off to a good start.
    Now on LIB-52, we have Mr. Amos.
    I understand from Mr. Bossio that the purpose of this amendment was to protect indigenous knowledge in the context of assessments, so this should clarify that indigenous knowledge that's used in a strategic or regional impact assessment will be protected. The connection points are with the upcoming Liberal amendments 63 and125, which will require that before indigenous knowledge is disclosed that the minister consult the person or entity who provided it, as well as the person or entity to whom it be disclosed.
    Also, Liberal amendments 89 and 126 will specify conditions on a disclosure of indigenous knowledge in light of consultations. There's a package. When it comes around to Liberal amendments 63, 125, 89, and 126, I won't go into the same detail. The intent and the function are the same.
    Okay. That's clear.
    I'd like a recorded vote.
    (Amendment agreed to: yeas 6; nays 2 [See Minutes of Proceedings])
    Thank you.
    On LIB-53, we have Mr. Aldag.
     I believe my colleague Mr. Bossio has spoken to this one previously.
    The essence is looking at adding “meaningfully” within the context of public participation.
    We've had some discussion about that today as well.
    I'd like a recorded vote.
    (Amendment agreed to: yeas 8; nays 0 [See Minutes of Proceedings])
    It's unanimous. That's wonderful.
    On LIB-54, we have Mr. Aldag.
     Madam Chair, this isn't mine, so I just need to have a quick look.

  (1540)  

    This is the one replacing line 4 on page 53, which reads, “On completion of the assessment”. It's under “Report to Minister”, proposed section 102.
    Yes, everybody has seen it.
    I think it's in the spirit of reconciliation, looking at how indigenous knowledge is considered in decision-making. This is one that was important to Mr. Bossio, and you have it before you.
    It's adding a proposed subsection and just changing the numbering so that there is a subsection 102(1) and 102(2).
    Ms. Duncan.
    I have a question.
    Proposed subsection 102(1) in the amendment, as far as I can read, is identical to what it reads right now. I don't understand what's being done there.
    The only difference is the numbering. They have put in a “(1)”.
    That's what I was just saying. They've added a subsection, so they need a number there.
    Oh, sorry.
     It's funny. Sometimes the drafters do that and sometimes they don't.
    I know.
    Different drafters....
    Okay. Thanks.
    I would like a recorded vote.
    (Amendment agreed to: yeas 8; nays 0 [See Minutes of Proceedings])
    Thank you very much.
    I'm in a bit of a pickle here. For LIB-55, I don't have a copy.
    Does anybody have a copy?
    Yes.
    An hon. member: Is LIB-55 being withdrawn?
    No, it's not being withdrawn. Mr. Bossio wanted to put this one forward.
    This is to establish the Canadian assessment appeal tribunal. I think there was a ruling on it.
    I'll do the ruling.
    Okay. I just didn't have it, and I wanted to make sure I had it in front of me.
    This particular one seeks to alter the terms and conditions of the royal recommendation—it's similar to the other one—by imposing a new charge on the public treasury, so it's inadmissible. That's how that one is going to go. LIB-55 is inadmissible.
    Are you saying that because members of this committee are doing it, not the government?
    This is the way it was written: “an amendment may not infringe upon the financial initiative of the Crown”.
    The government can make this change when they retable the bill.
    We can't do it.
     It's a reminder that none of us are here representing the government.
    Thanks for the reminder.
    Next up, we have PV-75.1.
    You're back. Well done. That was awfully fast. Where is the other meeting?
    Finance is just across the hall. Thank goodness it's not in a different building. I have had that happen.
    Okay, it's all yours.
    I think that my attempt, like Mike Bossio's attempt, to create an environmental assessment appeal tribunal is going to meet the same fate.
    I'm attempting to set up, in amendment 75.1 for the Green Party, a way of meeting the intent, if not the letter, of the expert panel on environmental assessment that recommended this government establish impact assessment as a stand-alone quasi-judicial tribunal. The bill fails to do that.
    This is an attempt to go to a sort of halfway measure, but I'm certain your ruling, as it applied to Mr. Bossio's amendment, will apply to mine as well.
    This one doesn't give any remuneration, so it is admissible.
    Proposed section 103.4 says that you can't receive remuneration, so you should be okay.
    In that case, I could be okay.
    It says, “No member of the Tribunal is to receive remuneration”.
    It passes. It can go through.

  (1545)  

    That's wonderful. It's a shame that Mike is not able to be here, for good and strong family reasons. I certainly do think that if he were here, he would be very pleased that my amendment can stand where his was set aside, because it achieves largely the same thing: to try to establish a tribunal that will create.... I think it will reduce the amount of time in court. I'm sure that friends may be about to say that it will create additional impediments, but working through the conduct of the entire case—and we certainly heard this from numerous witnesses before us, including Meinhard Doelle from Dalhousie law school and Rick Lindgren from CELA—this will be expeditious to handling impact assessment by ensuring that there is a regular access to a quasi-judicial assessment appeal tribunal.
    I believe it is out of order. The whole purpose of protecting the crown against any actions here at committee or in private member's bills is imposing a burden on the public purse.
    In this case, no remuneration to the members of the tribunal is provided for. However, out-of-pocket expenses would be recoverable by those serving in this capacity. That is a burden on the public purse.
    Going beyond that, when establishing a tribunal, you have to set up the structures and the administrative support to conduct the appeals under this tribunal. This has an impact on the public purse. I don't know how you can rule one way in the previous amendment, and then say, no, this doesn't. It's not the issue of remuneration to members. It is, “Does this create an additional charge on the government's spending?” Of course it does. There's going to be an administrative system set up to conduct these appeals under the tribunal. There's going to be out-of-pocket expenses as tribunal members come to participate in the tribunals.
    Madam Chair, I would ask you to reconsider.
    I hear your points. They're well made.
    We're going to suspend for just two minutes to have a discussion. I hear your points, but there's a bit of grey here, so let me just have a discussion.

  (1545)  


  (1550)  

    We're going to come back.
    You've made a very good argument, but as we've gone through the bill we've looked at other ways that this royal recommendation is applied.
    In part 2, you have a tribunal. There is the ability to appoint a tribunal, so I'm ruling it's not out of scope of the bill. That's not to say that there may be more costs if you do this, but it's within the overall scope of the bill. I'm going to allow this one, and we'll proceed to vote on it. I fully understand your point.
    Ms. Duncan.
    I can't conceive of any credible tribunal that has no remuneration. I would like to propose a subamendment to this to strike proposed section 103.4, and then I would feel I could vote on it.
    Then I can't rule on it. It's will be ruled inadmissible then.
     I thought you decided your ruling already?
    No. I already struck the other one out, and she tried to bring in..so if I change that, then it's out.
    I know it's going to get voted down by the non-government government members, but I'm just stating where my position is.
    I think that's fair.
    It is incredible to consider there would be an appeal tribunal that receives no remuneration.
    Let's have that on the record with the vote.
    Linda, are you withdrawing that? If you do that, I'm going to have to rule it inadmissible.
     I'd like to move that subamendment. I'd like to take proposed section 103.4 out.
    I would like a recorded vote.
    (Subamendment negatived: nays 7; yeas 1)
     Now we're going to PV-75.1
    (Amendment negatived: nays 8; yeas 0 [See Minutes of Proceedings])
    The Chair: We're moving to LIB-55.1.
    Mr. Amos.
    We had discussed with Mr. Bossio his desire to see that meaningful public participation would be enabled at all stages of the process. This particular amendment goes to ensuring that public comments that are received are made available online, also that the records and information are easily accessible to indigenous people, to stakeholders—
    Hold on.
     What's happened?
     I'm missing this one.
    Are you the only one without it?
    I guess so.

  (1555)  

    I'll send mine down to you and get another one later.
    Okay. Mr. Amos was in the middle of explaining his amendment, LIB-55.1.
    As I was mentioning, Mr. Bossio's LIB-55.1 really tries to do two things: ensuring the public comments that are received will be made available online, entrenching that aspect in law; and also ensuring the records and information will be easily accessible and remain available over time. The idea is to create some degree of permanence to the records that are submitted so that the public can fully engage and public participation is better enabled.
    Are there any questions?
    I'd like a recorded vote.
    (Amendment agreed to: yeas 6; nays 2 [See Minutes of Proceedings])
     Now we have NDP-53.
    Running along the same theme, this amendment modifies proposed subsection 106(1) to create a permanent record that can be used as a reference and lessons for future cases. At line 29 to 31 on page 55, we are adding “and maintained permanently”.
    The second part ensures that the data, and not just subjective reports and other records, be made public, so it's all data collected. There has been a propensity for agencies to just give a summary of data where analysis is done for sometimes “political” reasons. The first part is that they be maintained permanently for reference, for other reviews as well, and the second is that all data collected be posted, not just a summary of the data.
    (Amendment negatived: nays 7; yeas 1 [See Minutes of Proceedings])
    LIB-56 was dealt with under LIB-9. CPC-8.1 was dealt with under CPC-1.1. Those are out. Now we have—
    LIB-56 was passed.
    Yes.
    But CPC-8.1 was not...?
    CPC-8.1 was defeated and LIB-56 was passed.
    We're now at LIB-57.
    Mr. Aldag.
    I think we spoke about this one.
    We did, yes.
    It was about the terminology.
    It was one of those ones that we were....
    Yes. Exactly.
    I'd like a recorded vote.
    (Amendment agreed to: yeas 8; nays 0 [See Minutes of Proceedings])
     We're now on NDP-54.
    Ms. Duncan.
    The amendment would add the following to line 3 on page 58:
(b.1) prescribing the process for applications for costs and the awarding of costs for public participation in the participant funding program established under section 75, and the issuance of guidelines for funding following consultation with the public;
    This requires the cabinet to make regulations for how the participant funding process will be conducted rather than leaving it on an ad hoc basis. It's necessary to provide direction and cost awards through regulations made under proposed section 109 rather than at the mere discretion of the agency. This is providing some level of certainty and clarity and fairness across the board for all reviews so that communities, indigenous people, and anyone coming forward will know what the rules are for costs.
     This is normally what all assessment tribunals do. They make known what the rules are for applying for costs. There's usually a kind of chart that shows how much an engineering witness is paid, how much a lawyer is paid, and how much people will be paid to travel to the location, organize the community, or coordinate with other intervenors and so forth.
    That's what this does. It provides that there will actually be clear regulations on how those costs are assessed.

  (1600)  

    Okay.
    Shall the amendment carry?
    I'd like a recorded vote.
    (Amendment negatived: nays 5; yeas 3)
     We're now on NDP-55.
    Ms. Duncan.
    This amendment, at line 23 on page 58, would allow the Governor in Council to make regulations restricting the minister's actions when entering into agreements with other jurisdictions. Proposed paragraphs 114(1)(c) and (f) deal with the minister entering into agreements or arrangements with other jurisdictions. This limits the discretion and would require that the Governor in Council make regulations.
    People are very, very concerned about what kinds of agreements might be entered into, including substitutions and so forth, or arrangements with other jurisdictions on cross-border assessments. They highly recommend that there be some kind of clear guidance provided by the Governor in Council any time the minister considers entering into those agreements.
    All right. I think that's clear.
    I'd like a recorded vote.
    (Amendment negatived: nays 7; yeas 1 [See Minutes of Proceedings])
    We now go to NDP-56.
     On the theme of legal certainty, this revision at line 4 on page 59 changes “The Minister may make regulations” to the “Minister must make regulations”. The reason for this is that this entire bill is rife with discretion, and there's great concern about that. If I heard anything from the majority of witnesses, it was the concern about the level of discretion.
     What this would do is actually require the minister—not give her the option—to issue regulations in those areas: procedures; prescribing the information required; respecting participant funding; designating physical activities; and respecting what's in the registry. It would ensure a full suite of regulations to provide a greater level of legal certainty to everybody who is participating in the review process.
    Okay. Shall the amendment carry?
    I'd like a recorded vote, please.
    (Amendment negatived: nays 5; yeas 3)
    Now we're on LIB-57.1. It's new. It's being distributed, so take a quick look.

  (1605)  

    Do we deal with NDP-57 or LIB-57.1?
    No, this one comes ahead.
    It does?
    This is about adding something after line 8 on page 59, and the other one is about line 24, so we're going to do this one first.
    Go ahead, Mr. Aldag.
    This amendment is a new one. It clarifies the minister's regulation-making powers in the two areas that are specified.
    The first is that it allows the agency to prescribe the form and format of the information submitted to the agency. This is a very key part of the theme of openness and transparency that we're trying to bring through this bill. The second part of it clarifies that the agency may prescribe the circumstances under which timelines will be suspended.
    Do you have a question?
    What's the difference in proposed paragraph (c) from what it is now?
    Just give me a second to look at it.
    This replaces lines 12 to 14 on page 59.
    Is it the last part of the paragraph? What does that mean: “respecting circumstances”?
    You're adding:
and respecting circumstances, in relation to an activity, in which a time limit may be suspended;
    What the heck does that mean?
    One says, “activities in respect of which time limits may be suspended”, and the other one says, “any activity in respect of which a time limit may be suspended and respecting circumstances, in relation to an activity, in which a time limit maybe suspended”. It's a bit of a clarification on proposed paragraph (c).
    I think they need to explain it because they're tabling it.
    I agree, but I'm just telling you what's said.
     I can read what it says. I'm asking them why it is necessary to add it.
    Mr. Fast, you're first.
    I have some more questions. Maybe we could have the officials tell us what the consequences of this would be.
    First of all, let's understand that this is discretionary. It is not compulsory that the minister make these kinds of regulations. We just tried to bring some certainty there, and I was voted down. Now that we're dealing with the proposed regulation where there's a change from the word “activities” to “activity” and second “respecting circumstances, in relation to an activity, in which a time limit may be suspended”, I'm not sure that's a bad thing, except it's not compulsory. If the minister decides not to pass any regulations, she can.
    What kind of a system is that?
    Let's see what the experts tell us.
    The original language that referred just to “activity” enables us, from a regulatory drafting perspective, to be able to identify certain types of activities for which the minister could suspend the timeline. Then this additional language, “respecting circumstances”, was a regulatory drafting issue to allow the minister to identify the nature of those activities.
     To give you a concrete example, in the consultation paper that's currently out on the regulations, there are four different circumstances. To deliver on those as potential items for which the clock could be stopped, this language is needed. Those particular examples are at the request of the proponent, so that's a circumstance under which this could be used. Another is outstanding fees that still need to be recovered by the agency for the process to go forward. Another is critical information that's missing. For those issues, or potentially other ones that could be identified through the public consultation period, this language would enable us to be able to draft the regulations.

  (1610)  

    You would agree there is nothing compelling the minister right now to come forward with regulations addressing any of those issues. Is that correct?
    For the minister to have an ability to pause the clock, regulations would have to be put in place.
    Nothing is compelling her to pass or introduce those regulations, based on the wording right now that we just discussed. Is that correct?
    There's no obligation for those regulations to come forward. There are provisions in the bill for the clock to be paused based on the regulations.
    Okay.
    Shall the amendment carry?
    I'd like a recorded vote.
    (Amendment agreed to: yeas 6; nays 2 [See Minutes of Proceedings])
     NDP-57 was dealt with under NDP-3, so we're now on NDP-58.
    You are saying that NDP-57 was dealt with?
    Yes, it was under NDP-3.
    If you say so....
    “The vote will apply consequentially to NDP-57 and, if adopted, NDP-4 cannot be moved”, that's what we did when we did NDP-3, and it did not pass.
    We are now on NDP-58, which is an amendment to page 59 of the bill, at line 24.
    Yes. I'm proposing a new section 112.1, which, given the fact that they're not mandatory, would give the minister one year to make regulations concerning those specified categories. They include the power to designate a physical activity, the posting of a notice on commencement of an impact assessment, the scope of factors, public participation, the effects set out in the report, delegation to another jurisdiction, approval of conditions for substitution, determinations as to the public interest, conditions in relation to adverse effects, and the minister's obligations regarding a request for assessment. That is, she would have to establish principles and criteria and provide guidance respecting all of those matters.
    The second part adds additional areas where the minister must make regulations, and provides the minister with a broad suite of regulation-making powers, ensuring that regulations under these areas are made in a timely manner. It includes public participation procedures, panel procedures, criteria under proposed section 9 if you're designating, direction on how to carry out effective cumulative impact assessments, and so forth.
    Again, these recommendations were made by a number of witnesses and briefs, calling for greater certainty in how the process is going to be applied.

  (1615)  

    Shall the amendment carry?
    I'd like a recorded vote.
    (Amendment negatived: nays 7; yeas 1 [See Minutes of Proceedings])
    PV-76 was dealt with under PV-71, so now we move on to NDP-59 and NDP-60, which are tied together.
    NDP-59 removes the minister's discretionary power to issue guidelines or codes of practice, or to establish criteria for the appointment of members on review panels or committees in proposed sections 92 and 93. Proposed section 92 deals with regional assessments where the region is entirely on federal lands, and proposed section 93 deals with regional assessments where the region is only partially within or is entirely outside federal lands.
    Essentially, it's the same thing again. This isn't about the minister making regulations. It's about her issuing guidelines and codes of practice, and criteria for the appointment of members on the review panels. It all seems to be very sensible, fair, open, and transparent, providing legal certainty.
    I will speak to NDP-60 as well, since we're doing them together. Again, it adds a new section 114.1 and makes it mandatory, as follows:
For the purposes of this Act, the Minister must
(a) issue guidelines and codes of practice respecting the application of this Act;
(b) establish criteria for the appointment of members of review panels; and
    Actually, we only need to do one or the other. Obviously, this is something a lot of people called for.
     Fair enough. I think that's clear.
    Mr. Fast has asked for a recorded vote.
    (Amendment negatived: nays 7; yeas 1 [See Minutes of Proceedings])
    The Chair: That did not pass, so neither did amendment NDP-60.
    Amendment NDP-61 says, “Members of the advisory council are entitled to be paid reasonable travel and other expenses while performing their duties” so it it going to infringe—
    That's for disbursements; that's not any fee. That's for travel and other expenses, disbursements. It's my understanding that it is perfectly appropriate. That's under Treasury Board guidelines.

  (1620)  

    Part of the act involves those people who are going to be involved...but you're basically adding a new statement.
    I'm going suspend for two minutes. I have to think about this.

  (1620)  


  (1620)  

    Thank you very much.
    Here's the explanation. Even though it's normal practice to pay reasonable expenses, for travel and other expenses, in practice, it's never written down. Because it's now being written down, it's an obligation. Whereas in practice it's an obligation, it's not in statute. That's why there's a subtle difference if it is written down, and therefore, it's inadmissible. Otherwise, it is a little bit in that grey area. It's not admissible because you are now writing it into the statute to pay them.
    Are you saying there's not a single advisory council...? Did we not make this same recommendation for CEPA?
    For what?
    We did for CEPA. Do you remember?
    We did. It was for the Sustainable Development Act. That's what it was.
    Yes.
    It's a recommendation.
    We just did it.
    Maybe we didn't understand the subtleties of what goes on here in legislation and statute.
    Anyway, we're going to move on. I've made the ruling. It's not allowed because it is writing it into the statute, and that's not the way it is. It's practice.
    If it has been that way in practice, that doesn't mean the government can't finally be more up front.
    I hear you, but it's not going to happen this time. It has to come another way.

  (1625)  

    Are we given assurance here that members of advisory councils are going to have their costs paid?
    No.
    We're not...?
    There's no assurance.
    So will only those people who can afford to come on their own be on the advisory council? All right.
    There we go. Amendment NDP-61 is inadmissible.
    We're now moving on to amendment PV-77, and we're missing Elizabeth.
    Vote on it.
    I think we will. She can't explain it, but we will vote on it.
    Mr. Fast requests a recorded vote.
    (Amendment negatived: nays 7; yeas 1 [See Minutes of Proceedings])
    The Chair: Let's move onto the next one which is LIB-58.
    Mr. Aldag, go ahead.
    For this one, the committee should be familiar with this kind of terminology, which we looked at with my private member's bill. It has the goal of meaningfully engaging indigenous peoples, which we feel is really foundational to this bill. It takes the wording and puts it in acceptable terms for the legislation. It does ensure that we'll have a person recommended by an indigenous governing body or other entity that represents interests of first nations, of the Inuit, and of the Métis.
    Shall the amendment carry?
    First of all, I'd like a recorded vote, but I'd also like to make one comment.
    Do you want to make your comment first?
    Yes, I do.
    There's nothing here that establishes how many members will be on that council, so effectively, it's the minister's discretion to appoint the members of the advisory council. It's possible, then, that you would have three Inuit who would be the council, right? I don't think that would be the intention. Correct...?
    The intent is to have at least one from each of the three indigenous groups.
    I totally understand that, but there's no fixed number of members on the advisory council, so we have no assurance that it will be balanced between indigenous and non-indigenous. There's no guarantee here.
    Correct.
    I think that's a problem. Before we move ahead with fixing indigenous representation on the advisory council, we should probably make sure there's going to be an appropriate balance and that we know what the numbers might be, whether it's nine or six, but at least we have to know. Based on this we know that there's an entitlement that our indigenous communities will have three members on there. We have no other idea as to how large this advisory council will be or who else will populate that council.
    For that reason, I can't support this at this time, although I want to strongly speak in favour of having members of the indigenous community on this council. The proposal as it sits is fine, except it's being done in a vacuum of information, and it's strictly up to the minister to decide whether there's going to be a balance on that council or not. For that reason, I'm going to have to vote against it.
    If I could just comment on the initial bill, it didn't specify that either, so this recommendation says that there will at least be three indigenous, so there's still that same level of discretion, but noting that three have to be indigenous.
    We're removing some of that discretion here.
    Right, and with that, I will be voting yes.
    (Amendment agreed to: yeas 6 ; nays 2 [See Minutes of Proceedings])
     We're now moving to LIB-59. Note that the original 59 is being replaced by a new 59.
    Go ahead, Mr. Amos.

  (1630)  

    I just want to confirm that everyone has LIB-59 in front of them. This goes specifically to the improvement of the regional and strategic assessments as tools for taking into account cumulative impacts, those impacts that go beyond any one specific project. We heard a great deal from stakeholders about how to ensure that rigorous assessments are achieved and that their findings are used not just in the context of that project but in subsequent projects. I think that's one of the key aspects of these regional and strategic impact assessments. This amendment is intended to build on existing provisions related to RIAs and SIAs by requiring the minister's advisory council to make recommendations on priorities for these assessments and by requiring the minister to respond to those priorities.
    Shall the amendment carry?
    I'd like a recorded vote.
    (Amendment agreed to: yeas 6; nays 2 [See Minutes of Proceedings])
     Now we move on to LIB-60, and if we vote for this, it will apply to LIB-62, as LIB-62 is consequential.
    We've discussed this one before. It's the expansion of traditional knowledge to specify indigenous knowledge.
    LIB-62 is the same thing.
    I have a question on this, and we were going to run into this because of the decision by the Liberal members to do this. It's my understanding that the claim of confidentiality rises because it is traditional knowledge. It's about the ceremonies. It's about where the traplines may be, where the burial sites are, and so forth. It's not just any indigenous knowledge, so I think it has been extremely widened now.
    Does that mean then that the panel is going to have to do a ruling on every single bit of information, testimony, and evidence that any indigenous person provides to this review?
     Go ahead.
    There are other amendments being put forward that deal with confidentiality, and I believe you'll see that this is addressed in subsequent amendments.
    How are they going to do this?
    I don't want to start jumping all over the bill, so—
    That means that for any testimony, any information, any evidence by an indigenous government, community, or individual, we're going to make a decision in advance on whether every aspect of their intervention is going to be given in confidence.
    That's not what it says.
    That's what it says, because it's no longer just traditional knowledge, it's all indigenous knowledge.
    Can we ask the experts?
    Mr. Parker, did you want to speak?
    I'm not necessarily saying I'm against it, but I don't know how they're going to do that.
    Let's see what the experts have to tell us.
    Proposed subsection 119(1) is the confidentiality provision. On line 18 it says “under this Act in confidence is confidential and must not knowingly be, or be permitted to be, disclosed”, and then there are a number of different exceptions there, but the knowledge is confidential when provided. The exception is there.
    How do you put together proposed subsection 119(1), which requires written consent, and then proposed subsection 119(2)? I'm not sure which one supersedes the other. Let's consider public. It says you have to have written consent on everything that represents indigenous knowledge that is provided to both parties.
    That's not the way I read that. I'll go back to the expert, because I'm not the expert and just get clarification there, because that's not what she just said.

  (1635)  

    The information that's provided is considered confidential if identified as such by the individual, and there are a few reasons there that allow for exceptions, which are as follows: if the information is to be knowingly publicly available, if it's required for procedural fairness, or if the disclosure is authorized in those prescribed circumstances.
    Is that clear?
    Okay, Linda, let's hear from Mr. Fast and then we can—
    I think it was easier to deal with when it was just traditional knowledge, but it's going to be a huge task for indigenous intervenors now to to scrutinize the entirety of their intervention and clarify what is in confidence and what isn't.
    Fair enough.
    Is that fair? I don't know.
    Mr. Fast.
    I have similar concerns, and I'm really on the same page as Ms. Duncan here, surprisingly.
    Proposed paragraph 119(2)(b) is the saving clause for procedural fairness and natural justice, so any applicant is entitled to know information that is relevant to his or her project in order to provide them with an opportunity to respond. But if in fact this information is actually kept secret, how would the applicant even know that information is being considered that may be prejudicial to their interests?
    I've raised this before as a serious concern. I fully understand that there may be circumstances in which an indigenous group will want to protect information to ensure that, for example, there isn't a disturbance of heritage sites or religious sites of significance. But it is absolutely critical that applicants have information available to them that would allow them to meet any challenge that the tribunal faces. It would be interesting to hear from our officials on how that procedural fairness will be guaranteed.
    Would you like to help us?
     Sure. As a matter of practice, under the current system there are cases in which there are concerns about the release of particular knowledge. Examples of this, which were brought up by another member earlier, would be cases involving a traditional hunting and fishing area, and not wanting to disclose that type of information. The agency will enter into discussions with both the proponent and the keeper of that knowledge, allowing the proponent to understand the nature of the information but not the specifics of it. We actually enter into discussions to see if there's a way to broker the information sharing without divulging the information in a way that could then make it unprotected in terms of its traditional or indigenous use.
     How would the proponent of your project even know there is some information that the decision-maker has upon which they will make their decision without some base level of disclosure?
    The basic parameters of the information are made available. When it's an agency-led assessment, a proponent will know the inputs. It's the specific details or the site location or the sacredness of the information that's thereby protected. In panel situations, information comes before the panel and then we have those closed-door discussions.
    Theoretically, if a project were rejected substantively because of traditional or indigenous knowledge, information that first nations have come forward with and want to protect, how would the proponent know that was the basis?
    I'm going to butt in because I think she's answered that question.
    No, she hasn't answered that question.
    She did.
    No.
    I thought—
    How would the proponent in those circumstances know that the decision has been based on traditional knowledge? Is there anything compelling the decision-maker to disclose it?

  (1640)  

    Decisions are based on reports. A full report goes forward that's made publicly available, and all the information that was taken into the decision-making is disclosed in that public report.
    Just not the details.
    You understand that this is extraordinary, even though it may be justified, provided the right safeguards are in place. I'm not sure those safeguards are in place.
    In proposed paragraph 119(2)(b), “for use in legal proceedings”, that's by whom? Does that mean the Government of Canada can violate the confidentiality because a first nation has taken them to court? I don't understand what proposed paragraph 119(2)(c) means. What are the “prescribed circumstances”? That's like a cannon hole through the whole thing.
    In proposed paragraph (a), obviously, it's that the information is publicly available. Proposed paragraph (b) is there because panel-type functions are allowed to call forward witnesses, just as courts are allowed to, so we need to make sure that, for procedural fairness, there is the ability to disclose the information so there are exceptions there. Finally, proposed paragraph (c) is if it's “authorized” in that particular “circumstance”, so...may enter into a discussion with the individual having the knowledge in order to be able to disclose it and authorize the disclosure of it.
    I understand the concerns people have. I think we've had some reasonable answers to the questions. Now we need to call the vote.
    We'll have a recorded vote.
    (Amendment agreed to [See Minutes of Proceedings])
    I've already indicated the rationale underpinning the series of changes that have been proposed to achieve protection of indigenous knowledge in the context of assessments. LIB-63 seeks to build on just that. For efficiency's sake, I wonder if it makes sense to consider LIB-61, LIB-63, LIB-64, and LIB-65 together.
    There's also a new motion. We could go one by one, but because there are four, this would save us a lot of time.
    I'm sorry, Madam Chair. I'm new here and I would be completely lost if we try to do this. I would like to handle them one at a time.
    Right. Let's just do them one at a time.
    I would move to vote on LIB-61.
    Just so that you know, LIB-61 will apply to LIB-64 because that's a consequential amendment. Just look at LIB-64 when you're voting on LIB-61 because they tie together.
    We're on LIB-61. We're going to do that other one in a minute.
    Shall the amendment carry?
    I'd like a recorded vote, please.
    Okay. I'm going to want you to say that a little faster. I'm giving you the chance to get in your seat and get sorted.
    We have a request for a recorded vote.
    Amendment LIB-64 is written totally differently from LIB-61. LIB-61 says “a committee”, which is probably correct. LIB-64 says “the committee”. What's “the committee”?

  (1645)  

    That's a fair question.
    Let's have the specialists, the experts, comment.
    Go ahead.
    Thank you.
    The proposed amendment says “the committee”.
    The other one says “a”, so one is “a” and one is “the”.
    Is it possible that what's happened is that the first reference is to “a committee” but after that, you're referring to the same committee, thus “the committee”?
    That's what I think is happening, and we're going to get the explanation.
     That second reference to “the committee” is referring back to the earlier one identified under “Regional Assessments and Strategic Assessments” in proposed sections 92 and 95.
    We have clarification.
    Well done, Scott.
    We were in the middle of a vote and it's going to be a recorded vote.
    (Amendment agreed to: yeas 6; nays 3 [See Minutes of Proceedings])
    The Chair: We have LIB-61 and LIB-64 passed.
    LIB-62 was dealt with under LIB-60. That one's done.
    Now we're moving on to LIB-63. If this one is voted on, it will apply to LIB-65 and LIB 65.1, which is just going around. Please make sure you have LIB-65.1 in front of you.
    Madam Chair, is the one that's just been handed out, LIB-65.1, intended as a replacement for LIB-65? Is that what's going on?
    No. There's LIB-63, and then you'll have LIB-65 and then LIB-65.1. They're all interdependent.
    They're all changing proposed section 119. It would have been easier if they had just given us a new proposed section 119. We're just going line by line by....
    Fair enough, but over time it evolved. So here we go.
    On LIB-63, we're looking at line 29, proposed subsection 119(2.1).
    We haven't voted on LIB-62 yet, have we?
    Yes. LIB-62 was dealt with under LIB-60. That was the consequential change that went with LIB-60. LIB-64 was the consequential change that went with LIB-61. Now we're doing LIB-65.1, which is a consequential change to LIB-65, and then LIB-63. It would be nice if it was all written out, but we have to make it work.
    We have the three amendments. Does everybody have them in front of them?

[Translation]

    The wording is not even in both official languages. It's only in English.
    The change is only in English in this case. The heading of the amendment in French clearly indicates that it is about the English version.
    Okay.

[English]

    Was what happened there that the two didn't line up? Were the French and English versions saying different things?

[Translation]

    That's what I don't understand. If a word is changed in English, it must also be changed in French, otherwise the meaning is altered.
    In French, “destinataire” corresponds to “person or entity”. That is why we are making the change. I don't think there is a need to make any changes in French.
    I sit on the official languages committee and I know that when a word is changed in English, it usually has to be changed in French as well. Otherwise, the two versions are not the same.

  (1650)  

[English]

    Let's have the experts.
    Go ahead.

[Translation]

    A change to subsection 4 would not be necessary. When reference is made to the “destinataire”, it is to the “destinataire” referred to in subsection 3. However, subsection 3 clarifies that the “destinataire” refers to “personne ou entité”.
    Okay, you're talking about the French version.
    The French version uses the word “destinataire”.
    My understanding is that the term had to be changed in English so that the wording or the idea is the same.

[English]

    It has a different—

[Translation]

    Is that correct?

[English]

    Yes, they're saying that they didn't need to change it in French. It covers both.
    Thank you.
    I have a question. I see new proposed subsection 119(2.1) basically nullifying proposed subsection 119(1), because proposed section 119(1) is clear. It cannot be disclosed without written consent. Under the new proposed subsection 119(2.1), we're going to bring everybody together. In other words, as long as we consult you, we're going to nullify your consent.
    If this relates to proposed paragraph 119(2)(b), which is for legal proceedings, why would the minister, the agency, the committee, or the review panel have any say whatsoever?
     Once you're into litigation, you're before the courts. Surely you don't go back to the agency or the panel and deal with whether or not this information can be disclosed. It doesn't make any sense to me.
    Let's have the experts.
    It's further to what I explained earlier. Proposed paragraph 119(2)(b) exists because panels are considered to have the functions of courts as they can call witnesses together, in particular when they're working jointly with the life-cycle regulator to be able to meet the conditions of permits and things.
    That's not my issue. Legal proceedings are outside of the review process. That's what a legal proceeding is.
    In this context, it's not a court proceeding as you're interpreting it. It's that the panels are able to call witnesses forward.
     As I articulated earlier, if they are calling forward that information, first and foremost, in proposed subsection 119(1), the information is treated as confidential. Then in proposed paragraphs 119(2)(a), (b), and (c), it is noted where there is an exception to proposed subsection 119(1) and lays out the parameters for those exceptions.
     As I explained earlier, what's being proposed here in LIB-63, new proposed subsection 119(2.1), is to ensure in the example—as I said—that, if there is going to be information disclosed, the parties are brought together to have a discussion with respect to that.
    That's fine, but legal proceedings are legal proceedings, so it's way too broad a provision.
    Legal proceedings, I think anybody would say they're in court. If you just said “in the proceedings of the assessment”, that's different, but I interpret “legal proceedings” as including those in court.
     I'll turn to the Department of Justice to explain the drafting of this.
    Thank you.
    Further to the explanation provided by Madam Loth-Bown, with new proposed subsection 119(2.1), the consultation that would take place would be that, whenever the information or indigenous knowledge is received in confidence, it needs to be provided for the purposes of “procedural fairness”. That's not the other half of proposed paragraph 119(2)(b) but the first half, which deals with “procedural fairness” in the context of the impact assessment. The other half, civil proceedings, is not being consulted on because that would be directed by the rules of court that are applicable in whatever legal proceedings this information may become relevant subsequently.
    Therefore, new proposed subsection 119(2.1) is applicable only to “procedural fairness” in that moment related to the impact assessment.
     It doesn't say that.
    Linda, you might not agree but the experts have given us their opinion and I'll take that.
    It doesn't say that. Legal proceedings are legal proceedings.
    I understand what you're saying, but we've heard the advice of the experts. On this one, I'm going to move on.
    We're going to take a vote. To be clear, we're doing LIB-63, LIB-65, and LIB-65.1.
    Can we have a recorded vote, please?
    (Amendment agreed to: yeas 5; nays 4 [See Minutes of Proceedings])

  (1655)  

     That passed. We're going to move on.
    Mr. Fisher, LIB-66 is yours.
    Madam Chair, this is another housekeeping amendment to ensure that a notice of non-compliance under the IAA can reflect any amendments that may have been made to a decision statement.
    If you look at line 23 on page 67, you'll see that this would replace “condition established under section 64” with:
condition established under section 64, amended under subsection 68(1) or added to a decision statement under that subsection,
    It doesn't include conditions that may have been amended as a part of the minister's power under section 68 to amend a decision statement.
    Thank you, Darren.
    Shall the amendment carry?
    I'd like a recorded vote, please.
    (Amendment agreed to: yeas 6; nays 3 [See Minutes of Proceedings])
     We're moving on to NDP-62 and page 71.
    At the provincial level, because the courts are clogged, because many of the parties to these reviews would prefer to just sit down and work it out, the tribunals have incorporated alternative dispute resolution—or ADR—in their processes, and that is exactly what is being proposed here, “with the consent of the parties”. It requires the consent of the parties who want to do the ADR to refer part of the review to ADR.
     Rather than going to the courts and arguing about some provision of what is proceeding, it would be possible for the parties to enter into an agreement to go into ADR. It's not binding, but a review panel could take into account the results of the ADR and include that in recommendations or in their decision. The review panel must make the results of the ADR public subject to the consent of the parties, if it's going to be included in their ruling.
    This was recommended as the bill should recognize and strongly encourage informal opportunities for participation that involve two-way dialogue and discussion, including the undertaking of mediation and other forms of alternative dispute resolution. Quite often what can happen is that if there's something highly contentious.... Well, you have a tribunal, but in this case, you might have a panel or even the agency doing the review, and they may say that if the parties think they can go off and resolve it and then come back with a resolution, they potentially will incorporate that. I think it's a sensible way to go. It seems to be the way most jurisdictions are going.
    Okay. That sounds reasonable. Shall the amendment carry?
    They're not calling a recorded vote, so all those in favour...?
    No, we are going to actually ask.... I was taking a moment to find out from the higher-ups whether we wanted to be recorded as being in favour or against.
    You want a recorded vote on all of them.
    We do.
    Okay. Let's go.
    (Amendment negatived [See Minutes of Proceedings])

  (1700)  

    We're on to PV-78.
    Ms. May.
    Thank you very much, Madam Chair.
    I'm sorry that I missed some of my amendments due to clause-by-clause on Bill C-74.
    This amendment is very straightforward. It's moving in....
    I know there have been sympathetic amendments that are similar from Liberal members, but in order to incorporate UNDRIP properly, the agency's object “to engage in consultation with the Indigenous peoples”, this is added on page 77 between lines 35 and 36. It's to consult with the Indigenous peoples, not just with the reference to section 35 of the Constitution Act but specifically with a direct reference to the United Nations Declaration on the Rights of Indigenous Peoples.
    We've had this a few times and we've discussed it.
    Can I ask a question, though?
    The Chair: Yes, go ahead.
    Mr. Scott Reid: It's making a reference to section 35. Surely that means it's already covered, in the sense that anything that is procured by section 35 is automatically entrenched de facto in the Constitution. Hence, there's no possibility that you could legally do this if it's in violation of section 35.
    Is that not correct?
    That's correct.
    That's why my amendment expands it to what the government says it will want to do, which is to also respect the United Nations Declaration on the Rights of Indigenous Peoples.
    I see. Got it.
    It's awfully nice to see you at committee, Mr. Reid.
    It's always nice to see you.
    Thank God there's someone here for a Harry Potter reference if one is appropriate.
    Mr. Scott Reid: I'm always available.
    Let's get back to work.
    PV-78 was an error. We had actually voted against it before.
    I thought so, but I didn't—
    It did not pass, and we are now moving along.
    We're now on NDP-63.
    This adds two new paragraphs, on page 78 after line 9.
    Here we're dealing with the agency's duties. It would add in the duty to “track compliance with monitoring and reporting obligations with respect to the follow-up programs”—the Liberals like that term—“and report annually on the matter, including on aspects of follow-up programs that are under the control of other jurisdictions”.
    Secondly, it would add:
ensure that lessons learned about the accuracy of the predictions made during past impact assessments are shared with the public and brought to the attention of those involved in relevant future impact assessments under this Act.
    Clearly the agency should be responsible for tracking compliance. We've added this whole part about enforcement and compliance, so it seems logical that it would be the agency that would track and report on that.
    There have been ongoing concerns by the public that when conditions are attached, there is no follow-up and no reporting on whether those are being delivered on. It would require reporting annually on what's happening with compliance with the conditions, and to report about resulting actions in terms of adaptive management of the approved project.
    There you go.
    Shall the amendment carry?
    I am opposed.
    Wait a minute. If you want to record it, you have to call for a recorded vote.
    Please, I would like a recorded vote.
    We'll have a recorded vote, and I'm not reminding anybody again. I think I've done it enough times. Between the three of you, figure it out.
    (Amendment negatived: nays 8; yeas 1 [See Minutes of Proceedings])
    The Chair: All right, that did not pass.
    We're going to take a five-minute break. We'll suspend for five minutes to take a nutrition break.

  (1705)  


  (1720)  

     We'll resume.
    We were at NDP-64.
    Ms. Duncan.
    This one, at line 12 on page 78, gives clear legislative direction to the agency to consult indigenous people who are affected by the project. It prevents an ad hoc approach to consultation.
    This was raised by a number of first nations. They thought it was important enough to make the point that it is not sufficient simply to say consult with indigenous peoples. It must specify “that may be affected by the carrying out of the designated project”.
    It's adding an extra bit on to proposed paragraph 156(1)(a).
    A perfect example is Site C.
    Fair enough.
    (Amendment negatived: nays 8; yeas 1 [See Minutes of Proceedings])
    I guess first nations in Alberta and Métis will continue not to be consulted.
    We're on LIB-67.
    The essence of this amendment is that it would allow the impact assessment agency of Canada to establish monitoring committees in addition to other types of bodies. It's something we've heard from stakeholders in terms of the importance of effective follow-up and adaptive management for projects.
    (Amendment agreed to: yeas 6; nays 3 [See Minutes of Proceedings])
     We're on LIB-69.
    Mr. Amos.
    In the context of further amendments to improve the regional assessment system, in LIB-69 we're suggesting in response to stakeholder concerns that we ensure rigorous assessments are done and their findings are used.
    We had stakeholder comments around this issue of allowing assessments to benefit from expert advice. This is going to enable expert advice in the context of regional and strategic assessments.

  (1725)  

    Okay, so it's setting a context.
    (Amendment agreed to: yeas 6; nays 3 [See Minutes of Proceedings])
    The Chair: We're on to Ms. May's PV-79.
    Madam Chair, this amendment occurs on page 78, at line 31. Again, this is based on evidence that came to us through the Assembly of First Nations. In reference to the appointment of people with relevant knowledge or experience on an expert committee, proposed subsection 157(2) says:
The membership of the committee must include at least one Indigenous person.
    My amendment would ensure that it include “one indigenous person who is a member of a First Nation, one Métis person and one Inuit person”. In other words, these are not in the alternative. This is an amendment to ensure that there is an indigenous person representing southern first nations, the southern part of Canada; one Métis person; and one Inuit representative or Inuk member on the panel.
    Go ahead, John.
     We've heard from indigenous peoples and organizations that have given us a range of comments on the ways that this bill can support reconciliation. It's important to note that we're looking at how we can address calls for a distinctions-based approach. The intent would be to ensure key committees, including the impact assessment agency's advisory committee on the interests and concerns of indigenous peoples, include members who can represent the interests of first nations, Inuit, and Métis peoples.
    We have other motions that speak to that, but I just want to get that on the record.
    Mr. Reid has asked for a recorded vote.
    (Amendment negatived: nays 8; yeas 1 [See Minutes of Proceedings])
    The Chair: We're now on amendment LIB-70.
    This amendment does what I was just speaking to in that this is one of those amendments that bring forward the distinctions-based approach by ensuring that the impact assessment agency's advisory committee will address calls regarding the interests and concerns of indigenous peoples including first nations, Inuit, and Métis members.
    Mr. Reid has asked for a recorded vote.
    (Amendment agreed to: yeas 6; nays 3 [See Minutes of Proceedings] )
    The Chair: We now move to amendment CPC-9. If it is adopted, amendments CPC-9.1 and LIB-71 cannot be moved as there will be a line conflict.
    Madam Chair, might I address this?
    Absolutely.
     This is my moment in the sun. I'm very excited.
    As you can see, this is a bit more of a technical amendment that goes on for several paragraphs and would add several paragraphs into the bill. We're trying to provide additional clarity to the transition provisions, which are going to allow for greater predictability so that those who are advocating a new activity can adequately prepare for the environmental assessment knowing what the process is and not having to worry about a new process being switched out at some point in the future.
    I do note the minister has indicated that he's looking for timelines that are predictable and reasonable for Canadian energy projects, so I would make the modest suggestion to my Liberal colleagues that this actually should fit in very well with their stated objectives. I think we all understand that investors do need to have shorter timelines and greater certainty to act. That's just how investors work. They go where they can get a predictable return. I think these are solid reasons for supporting this particular amendment.

  (1730)  

    Madam Chair, I think our amendments LIB-71, LIB-72, and LIB-73 will also address the objectives that Mr. Reid put forward, so we will be addressing those in our upcoming amendments.
     Fair enough.
    Mr. Reid would like a recorded vote on CPC-9.
    (Amendment negatived: nays 5; yeas 4 [See Minutes of Proceedings])
    We move to amendment CPC-9.1.
    It's back to you, Mr. Reid.
     This one was proposed by our colleague from Dauphin—Swan River. What can I say? I think this one just speaks for itself.
    That made that very easy.
    Of course, we want a recorded vote.
    (Amendment negatived: nays 6; yeas 3 [See Minutes of Proceedings])
     We're now on to LIB-71, which is a new version, so the old one comes out and the new version goes in.
    Maybe we can have Mr. Rogers, while that's being handed out, point out what's different.
    Madam Chair, LIB-71, LIB-72, and LIB-73 address transition provisions. They provide for consistent transition measures across the three acts. Clearly there is a need for certainty around which environmental assessments currently under way would continue under the current legislation and which would follow the new process and requirements. We've heard from a number of the stakeholders that the subject of the bill could be improved and I am proposing these three amendments.
    This one in particular, LIB-71, would increase certainty by establishing an objective criterion: the notice of commencement for determining which projects will continue under CEAA 2012. LIB-71, with its long detailed information, is pretty self-explanatory in terms of achieving these objectives.

  (1735)  

    The difference between the old one and the new version is a slight difference in proposed subsection 181(4), right?
    Yes.
    It's a little bit of a longer version than the short one, which is “Despite subsection (1), at the request of the proponent”. We now have “Despite subsection (1), at the request of the proponent of a designated project referred to in that subsection that is made within the 60 days after the day.”
    Can we put the three together if they're close enough?
    I think we'll do them one at a time.
    I have a question about this. I know that industry is concerned about the transition period, but presumably the former agency isn't going to exist anymore. There's going to be this whole new entity, so how do they deliver an assessment under the previous legislation when supposedly we have a whole new process? Does that mean the public will have less rights to participate? There are a lot of changes that the Liberals claimed are coming forward. I'd like to have an idea of how many projects we think this may apply to, and how we're going to make sense of the fact that they're revamping the system completely and creating a whole new agency. What happens to the old agency?
    Let's hear from the experts.
    Just to talk about the agency currently, the agency is currently operating assessments under the 1992 legislation, which is still carried forward, as well as the 2012 legislation. Therefore, the agency is quite familiar with operating under different pieces of legislation as we transition through. With the proposed transition amendments we are trying to ensure that any projects that still exist under 1992 that have been stale for more than three years would be limited. That would get us into a world of delivering under CEAA 2012 and the new proposed act should it be passed. That's first and foremost, that the agency has a lot of experience in operating under different legislative parameters based on projects.
    Second to your point with respect to new features of this particular piece of legislation and how that relates to others, I just want to note that the interim principles that were put in place in January 2016 apply along with CEAA 2012 and that has added additional factors with respect to participation in indigenous consultation.
    With respect to participation and other things, we are already undergoing practices to have open public participation under CEAA 2012 and there would be nothing precluding us from having those same types of things for others.
    What about the provisions to do with the NEB and the CER?
    The transition provisions for the NEB and the CER are dealt with in another piece of legislation, but there's also a piece that says those projects that are currently being undertaken by the NEB and the CER under CEAA 2012 would remain under CEAA 2012 and would be completed under the existing legislation.
    Except there won't be an NEB anymore.
    There are provisions within the proposed CER to transition the NEB and carry forward things. My colleagues can speak to that in more detail.
    It's clear as mud. I didn't get an answer, though, on how many projects we think are going to—
    We've gone and looked at how many projects are currently in the system and we estimated where they may be. We're probably looking at approximately 30 projects.
    Thirty projects.
    Mr. Reid.
    No, I think I've figured it out.
    It was described as a slight addition. It's actually pretty substantial—
    Yes, it's pretty substantial.
    —but I don't have any comments on it.
    Okay, that's great.
    Shall the amendment carry?
    I would like a recorded vote, please.
    (Amendment agreed to: yeas 6; nays 3 [See Minutes of Proceedings])
     On LIB-72, we have Mr. Rogers.
    You were trying to lump them all, so I think you've already explained generally what you were trying to do.

  (1740)  

    Yes. The only comment I want to make was this one pertains particularly to the establishment of a review panel. Other than that, it's just the transition process again.
    Shall the amendment carry?
    I would like a recorded vote, please.
    (Amendment agreed to: yeas 6; nays 3 [See Minutes of Proceedings])
    We're on LIB-73, which is the other one you were doing, Mr. Rogers.
    This one in particular supports the commitment that no project would be sent back to the beginning of the process. Again, it's in line with the other amendments in terms of the transition process.
    Shall the amendment carry?
    Would you like a recorded vote?
    Yes, please.
    (Amendment agreed to: yeas 5; nays 3 [See Minutes of Proceedings])
    We're on LIB-74, which is Mr. Fisher.
    Wait a minute, we're into clause 3. We had one pending thing we were going to go back to, which was a definition. It was NDP-40.1, and it was to add the definition potentially into the beginning of that section.
    Linda.
    I have to find it again in all this.
    We'll figure it out.
    If you have it there that would be helpful because I have so much paper here.
    I'm just looking. We're going to find it.
    Was it “adaptive management”?
    Yes.
    Is that NDP-40.1?
    It was your definition of “adaptive management”, and you were going to stick it in at the beginning of that section. Do we have the page number?
    Page 38, line 22.
    Thank you.
    Yes, “adaptive management”, because we added a change.
    There was a request to basically go away and understand whether that definition was acceptable. I believe I had unanimous consent if it passes to insert it into this section of the bill.
    There was unanimous consent to reserve the chance to do that, and now we have to decide. It's not to do it. It's to vote on whether we're going to do it. It was to give us that opportunity to go back. We reserved the right to go back, which we're doing now, to add the definition. The definition is as brought forward in amendment NDP-40.1.
    Is that right, Linda?
    That's correct.
    My understanding, and the opinion I'm given, is that the way the rules were changed for committees, and then going back to the House, if you had an opportunity to bring forward the amendment at committee and chose not to, you could not bring it at report stage.
    We're doing it now.
    That's what I'm saying.
    This looks like the only chance.
    We're all good. We're on the page. Everybody has the definition in front of them.
    Amendment NDP-40.1 would add that definition on page 38, line 22.
    Shall the amendment carry?
    Mr. Scott Reid: I would like a recorded vote.
    (Amendment negatived: nays 7; yeas 1 [See Minutes of Proceedings])
    The Chair: We are now at the end of clause 1.
    Shall clause 1 as amended carry?
    Mr. Scott Reid: I would like a recorded vote.
    Ms. Linda Duncan: On division.
    The Chair: If it's a recorded vote, Linda, it supersedes on division. Once they call a recorded vote, on division doesn't work.
    (Clause 1 as amended agreed to: yeas 5; nays 4)
    The Chair: There are no amendments to clause 2.
    Mr. Scott Reid: I would like a recorded vote.
    (Clause 2 agreed to: yeas 5; nays 4)
    (On clause 3)
    The Chair: The first one up is amendment LIB-74.

  (1745)  

    Madam Chair, I think everyone has the amendment in front of them, so I don't think I have to read it.
    The amendment would directly address the stakeholder concerns by enabling joint assessments with provinces, territories, and indigenous jurisdictions. At the same time, it would ensure that joint panels are not established with federal life-cycle regulars. It provides that legal clarity that the minister cannot enter into an agreement with another federal authority for review panels.
     Shall we have a recorded vote?
    Yes, please.
    (Amendment agreed to: yeas 5; nays 4 [See Minutes of Proceedings])
    (Clause 3 as amended agreed to: yeas 5; nays 4 [See Minutes of Proceedings])

  (1750)  

    Next is clause 4, and we'll have a recorded vote.
    (Clause 4 agreed to: yeas 6; nays 3 [See Minutes of Proceedings)
    The Chair: Next is clause 5.
    We'll have a recorded vote, please.
    (Clause 5 agreed to: yeas 6; nays 3 [See Minutes of Proceedings)
    (On clause 6)
    Clause 6 is still on page 88. It's at line 21.
    We are on LIB-75. Mr. Rogers, you're up.
    Madam Chair, again, this has to do with timelines and trying to provide more timely assessments. This particular amendment would support timely assessments by setting a clearer timeline for establishing review panels. Everything else, I think, is pretty much self-explanatory.
    We'll have a recorded vote.
    (Amendment agreed to: yeas 5; nays 4 [See Minutes of Proceedings])
    We are now on PV-80. Ms. May.
    Madam Chair, I want to briefly review the concerns that have been expressed by many. We also had the expert panel on environmental assessment, which recommended that energy regulators did not have a role. They were not referenced as having any future role or expertise that's useful to environmental assessment in the very substantial and thorough report prepared by the expert panel on EA that the federal minister commissioned.
    My own personal concern, I have to say, just based on years of work in the Maritimes, is that it really matters that the Canada-Nova Scotia Offshore Petroleum Board and the Canada-Newfoundland and Labrador Offshore Petroleum Board have a legislated mandate. In fact, they have an affirmative duty to expand offshore oil and gas. That's their mandate. It comes out of the accords that were negotiated between the federal government and those provinces.
    In this case, I'm deleting the sections that say the roster for an environmental assessment should include people appointed from the membership of the Canada-Nova Scotia Offshore Petroleum Board. I don't know how those people could do the job they are supposed to do on impact assessment without prejudging the outcome when they have a legislated mandate in the body they serve to expand offshore oil and gas.
     I think it's not personal to those individuals. It's not about the agency's record. It's just a legal fact that these entities have a statutory conflict of interest, which has not yet been removed. They could have removed it in the context of this legislation, but it was not removed. Of course, the reason it could not be removed easily is you would have to go back and revisit the accords between the federal government and the provinces.
    I'm explaining this more for my friends at the end of the table who I know are new to this discussion. It is mind-boggling that this would be proposed, that members of a board that has a mandate to expand offshore oil and gas would be required to serve on panels to decide if it should go ahead or not.

  (1755)  

    Okay. We certainly heard a lot about that.
    Go ahead, Mr. Aldag.
    I would note that we've already touched on this in two of our Liberal amendments, LIB-30 and LIB-33, and we have upcoming Liberal amendments LIB-76 and LIB-78 that we feel address the issues Ms. May has raised.
    I'm going to ask if the amendment shall carry.
    Garnett, you may not know the rules, but we've really run out of discussion time on—oh, on this clause we haven't.
    Go ahead. You have a short period of time.
    Can you clarify, then, for those who are new, what the rules are? My understanding is that people have unlimited time to speak to things, but you may have passed a programming motion.
    You have five minutes for each clause, which means anything you use on this one you take away from the rest of the discussion on the clause.
    Per party.
    Not per amendment, but per party.
    Per clause, per party.
    Just be mindful of how much time you're using, because you will be taking it away from everyone else on the rest of the clause discussion. Okay?
    Okay. If there is another amendment that relates to the same clause, then any time we've used is not—
    Correct. You have a total of five minutes.
    Okay. That seems like a strange approach, but I guess I'm new to this.
    Actually, it was a lot of work.
    I understand, but the bottom line is that, when you have such an extensive and omnibus bill, you would think a committee would be the one place where you actually have the time to have that discussion. That seems like the point of a committee, in a way, that you can dig into it.
    Garnett, I have been very generous. You haven't been here, so you wouldn't know that. We are way past those rules, but I am going to be strict if we are just repeating ourselves.
    What do you have to say on this particular one?
    I will go ahead and say my piece and won't go longer than I need to, but I think the issue here is that it's important that on any of these boards you have some kind of structure that ensures a balance of perspectives. The existing provision, when it talks about having people who have some connection, some affiliation, in terms of supporting the development of those resources, says at least two of the persons.... I think it establishes a certain proportion within that, but that still creates an opportunity for balance to be achieved in other ways.
    On that basis, I don't see the need for what's been proposed. I think it makes sense as it is.
    Okay. That's great.
    Shall the amendment carry?
     You want a recorded vote.
    (Amendment negatived: nays 8; yeas 1 [See Minutes of Proceedings])
    The Chair: We're going to LIB-76.
    We had a subamendment to the amendment. What are we going to do?
    The subamendment was withdrawn.
    We're on LIB-76, okay.
    The essence of this one is simply that the amendment addresses the concerns the different stakeholders raised by retaining a role for life-cycle regulators while also ensuring that panel membership is balanced.

  (1800)  

    We've had a discussion on this before.
    We'll have a recorded vote.
    (Amendment agreed to: yeas 6; nays 3 [See Minutes of Proceedings])
    The Chair: We are now at the end of this clause.
    We'd like to have a recorded vote on that, if we could.
    (Clause 6 as amended agreed to: yeas 6; nays 3 [ See Minutes of Proceedings])
    (On clause7)
     If I have it right, clause 7 is on page 89, at line 9.
    We're at LIB-77.
    Mr. Rogers.
    Again, Madam Chair, this simply has to do with timelines and would support timely assessments by setting a clear timeline for establishing review panels.
     Haven't we gone past LIB-77?
    No, we did LIB-76, unless I'm....
    We voted twice on LIB-76, I think.
    No, we did clause 6. We did LIB-76, and then we did clause 6, and now we're on clause 7.
    You voted for clause 6.
    We're on LIB-77. It's okay. There's a lot going on.
    We had an explanation for LIB-77.
    We'll have a recorded vote.
    (Amendment agreed to: yeas 6; nays 3 [See Minutes of Proceedings])
    The Chair: We're now moving to PV-81.
    Ms. May.
     Madam Chair, this one has an identical rationale to the one I put forward earlier in that this now applies to saying that we will delete the sections that say you must appoint from the roster on review of offshore drilling in an area that's otherwise regulated by the Canada-Newfoundland and Labrador Offshore Petroleum Board.
    The same rationale applies, so I'll just use the quick opportunity to respond, and I appreciate what Mr. Aldag's comments were, that Liberal amendments are in the same ballpark. They don't eliminate my concerns. They moderate them. They make a really horrific thing less horrific, but I will go to my grave never understanding why the Liberals ignored the advice of the expert panel and told us they were going to do one agency and then injected the very same regulators from Bill C-38, who have been so offensive until today, to have any role at all.
    I don't know when my grave will greet me, but as this goes on, it seems to me it should be soon.
    In any case, I've said my piece. This is to remove members of the Canada-Newfoundland and Labrador Offshore Petroleum Board and their embedded conflict of interest from the roster of participants in impact assessment—
     I'm hopeful that we'll have many decades before your grave sees you.
    Madam Chair, I totally disagree with my colleague across the way. The industry in the province, and the people involved in running the industry in the province, and the work that they've done, they have a lot of experience, both federal and provincial. I understand some of the concerns that Ms. May may have, but I totally disagree with some of her comments.
    Okay, that's fair enough.
    Mr. Reid.
    I have a question. I assume the point is to put people who have a certain kind of expertise in there. If the concern is that the two individuals are being appointed from this roster, couldn't you achieve the same goal by having them serve in an ex officio capacity, where they're present but aren't necessarily actually voting? Wouldn't that resolve both the government's concerns and Ms. May's concerns?
     The answer's yes? Okay.

  (1805)  

    There's a way to do it. There's the potential to bring an amendment from the floor if you wish to do so.
    I guess we'd have to deal with this first because she's eliminating. Maybe I'll try doing that immediately afterwards.
    Sure, there's also a Liberal one that you can look at, too, which is coming up.
    I want to reiterate the comments by Ms. May. I'm repeatedly stunned that we spent a lot of money on two expert panels travelling the country hearing from everyone, and then, at clause-by-clause, we are completely refusing to take the advice from the expert panels.
    This is another one. The same issue that we had with the NEB, we have with this panel. They promised they would have independent review bodies. Why on earth are we appointing more advisory bodies in here? Are we going to ignore their advice, too? I find it very disappointing. It was a very impressive expert panel, and they recommended against this. I agree with Ms. May.
    We're going to deal with amendment PV-81.
    Can we do a recorded vote?
    (Amendment negatived: nays 8; yeas 1 [See Minutes of Proceedings])
    Madam Chair, I'd like to propose an amendment.
    Hold on. I have to make sure.... What line are you amending?
    I'd be amending line 26 on page 89.
    Okay. Hold on a minute. Line 26 is under “Appointment from roster”.
    Yes. The amendment would read, “must be appointed, in a non-voting capacity, from a roster”, and everything else would remain the same.
    Is there any interest from the experts to chime in on what the implications of that may be or on how that works?
    Go ahead, Mr. Labonté.
    If we understand the amendment right, it's suggesting that they would be non-voting, but the panels do not vote in any way, shape, or form. The panels provide recommendations to the minister or to the government. In this instance, they would be made to the government, to make a decision as to whether a project would proceed under the impact assessment act, and in this instance, the Canada-Newfoundland and Labrador Offshore Petroleum Board act. So there is no voting, if you will.
    That's why we ask experts. Thank you.
    Madam Chair, I'd like to respond to that.
    Mr. Reid, yes, go ahead.
    If it's more than one person, you have to come to some kind of consensus or have a vote. You have to have some kind of internal process to decide how to deal with disagreements, unless the panel is making a series of seriatim recommendations. Let's say you have five people and each one submits their own view, and you get this list of potentially disagreeing opinions. I don't see how one overcomes having an internal decision-making process, which is either consensus—we all have to agree—or it's a majority, or it's something else like two-thirds. Ultimately, there's some kind of ability to say yea or nay that gets counted. I don't see how you avoid that. Am I missing something?
     Mr. Labonté.
    The composition of the panel is determined by the Minister of Environment and Climate Change, from the roster, of which two would come from the petroleum board members who are on the roster. The balance would be chosen from the minister's roster, and that would be composed of the five people who are on the panel.
    The inner workings as to how the panel develops its report and how it comes to its conclusions is the panel's responsibility, and it's not statutorily defined anywhere in the act.
    Okay.