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37th PARLIAMENT, 1st SESSION

Standing Committee on Environment and Sustainable Development

EVIDENCE

CONTENTS

Thursday, June 6, 2002

0915

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

Mrs. Karen Redman (Kitchener Centre, Lib.)

The Chair

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

The Chair

Mrs. Kraft Sloan

The Chair

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

The Chair

Mrs. Kraft Sloan

0920

The Chair

Mrs. Karen Redman

The Chair

Mrs. Karen Redman

The Chair

Mrs. Kraft Sloan

The Chair

Mr. Gary Lunn

0925

The Chair

Mr. Stephen Hazell (Executive Director and General Counsel, Canadian Parks and Wilderness Society)

The Chair

Mr. Stephen Hazell

0930

0935

The Chair

Mr. Stephen Hazell

The Chair

Mr. Rodney Northey (Lawyer, Environmental Defence Canada)

0940

The Chair

Mr. Rodney Northey

The Chair

Mr. Rodney Northey

The Chair

Mr. Rodney Northey

0945

0950

0955

1000

Mr. Gary Lunn

The Chair

Mr. Rodney Northey

The Chair

Mr. Rodney Northey

The Chair

1005

Mr. Roy Bailey (Souris—Moose Mountain, Canadian Alliance)

Mr. Stephen Hazell

Mr. Roy Bailey

Mr. Stephen Hazell

Mr. Roy Bailey

Mr. Stephen Hazell

Mr. Roy Bailey

Mr. Stephen Hazell

Mr. Roy Bailey

Mr. Stephen Hazell

1010

Mr. Roy Bailey

Mr. Stephen Hazell

The Chair

Mr. Rodney Northey

The Chair

Mr. Joe Comartin

Mr. Rodney Northey

Mr. Joe Comartin

Mr. Rodney Northey

Mr. Joe Comartin

Mr. Rodney Northey

Mr. Joe Comartin

Mr. Rodney Northey

The Chair

Mr. Joe Comartin

Mr. Rodney Northey

1015

Mr. Joe Comartin

Mr. Rodney Northey

Mr. Joe Comartin

Mr. Rodney Northey

Mr. Joe Comartin

Mr. Rodney Northey

Mr. Joe Comartin

Mr. Rodney Northey

Mr. Joe Comartin

Mr. Rodney Northey

The Chair

Mr. Julian Reed (Halton, Lib.)

1020

Mr. Stephen Hazell

Mr. Julian Reed

1025

Mr. Roy Bailey

Mr. Julian Reed

Mr. Rodney Northey

The Chair

Mr. Rodney Northey

Mr. Julian Reed

Mr. Rodney Northey

The Chair

Mrs. Karen Redman

Mr. Rodney Northey

1030

Mrs. Karen Redman

Mr. Rodney Northey

Mr. Stephen Hazell

Mrs. Karen Redman

Mr. Stephen Hazell

Mrs. Karen Redman

Mr. Stephen Hazell

Mrs. Karen Redman

Mr. Rodney Northey

1035

Mrs. Karen Redman

Mr. Rodney Northey

Mrs. Karen Redman

Mr. Rodney Northey

The Chair

Mrs. Karen Kraft Sloan

Mr. Stephen Hazell

1040

Mrs. Kraft Sloan

Mr. Rodney Northey

Mrs. Kraft Sloan

Mr. Rodney Northey

The Chair

Mr. Gary Lunn

Mr. Rodney Northey

Mr. Gary Lunn

Mr. Rodney Northey

Mr. Gary Lunn

Mr. Rodney Northey

1045

Mr. Gary Lunn

The Chair

Ms. Nancy Karetak-Lindell (Nunavut, Lib.)

Mr. Stephen Hazell

Ms. Nancy Karetak-Lindell

Mr. Stephen Hazell

1050

Ms. Nancy Karetak-Lindell

Mr. Stephen Hazell

The Chair

Mr. Stephen Hazell

The Chair

Mr. Stephen Hazell

The Chair

Mr. Stephen Hazell

1055

The Chair

Mr. Rodney Northey

The Chair

Mr. Rodney Northey

The Chair

Mr. Rodney Northey

1100

The Chair

Mrs. Karen Redman

The Chair

Mrs. Karen Redman

Mr. Rodney Northey

The Chair

Mr. Joe Comartin

The Chair

Mr. Joe Comartin

The Chair

CANADA

Standing Committee on Environment and Sustainable Development

NUMBER 079

1st SESSION

37th PARLIAMENT

EVIDENCE

Thursday, June 6, 2002

[Recorded by Electronic Apparatus]

¿ (0915)

[English]

The Chair (Mr. Charles Caccia (Davenport, Lib.)): Good morning.

As our respective House leaders will have already mentioned to you, or to some of you, Bill C-5 is scheduled to be in the House tomorrow, Friday, and then Monday, Tuesday, Wednesday next week. I'm told that the amendments were tabled yesterday, so they are on the order paper today, which means that next Tuesday we would be better to employ our time by being in the House rather than by being in committee. But Thursday we certainly can resume our committee work. That would be my suggestion.

The amendments by the government have been presented, or produced, today--this morning. The clerk is to receive them, or they're being distributed, or something to that effect. The sooner they are made available to committee members the easier it will be.

Would you like to comment, Madam Redman?

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

I have a letter signed by David Anderson, also on disc, with all the government amendments in both official languages. Everyone will be receiving a paper copy subsequent to this. I am pleased to table them at this time.

The Chair: So that will be circulated.

Members have already produced amendments. Some are still to come.

Mr. Lunn.

Mr. Gary Lunn (Saanich—Gulf Islands, Canadian Alliance): I think that's a good idea. I think we should be in the House next Tuesday. If we can start the clause-by-clause next Thursday, that would be a good idea.

The Chair: Those of you who haven't yet done so, please produce your amendments as soon as you can, now that you have the benefit of the knowledge of the government amendments. This will avoid unnecessary duplications.

Madam Kraft Sloan.

Mrs. Karen Kraft Sloan (York North, Lib.): Mr. Chair, I don't know about other members, but after the very late vote tonight I'm going to be heading back to my constituency on Friday. We're in the House with Bill C-5 on Monday. How is it that we're expected to prepare amendments when we're just getting the government amendments now? I find we're being put in a rather difficult position.

The Chair: I'm sure that with a little bit of goodwill one can decide what is left, having seen the government amendments, and decide over the weekend and on Monday as to the balance that is needed.

Mr. Comartin.

Mr. Joe Comartin (Windsor—St. Clair, NDP): I tend to feel the same way. The indications that I'm getting are that Bill C-5 may drag right through until Thursday next week. In terms of the preparation we've going to have to be doing, I don't think we've finished group four yet--it has been so long since it has been there--then get through group five and on to the third reading, plus a whole pile of votes. I think it's unrealistic to expect that we're going to be able to prepare our amendments, once we finally see the government's, by Thursday.

I'm not sure what advantage it gives us particularly, Mr. Chair. This bill is not going to get into the House before we break. It's really as simple as that. Anybody who is thinking otherwise I think is deceiving themself. There's no particular rush to get it on, in order to do an adequate job--let's even suggest a good job--on it. We should move the next meetings to Tuesday of the following week.

The Chair: The schedule for next week, as I saw it last night, as produced by Mr. Herron's House leader, shows that Bill C-5 will not be in the House next Thursday or next Friday. The discussion of Bill C-5, whether completed or not, would be over by Wednesday afternoon.

As to amendments, I've been inviting members to produce amendments for the last three weeks. The clerk sent out a notice almost a month ago and then recently last week a second time. This is not the first time that an invitation to enter into the game has been made. It's not a surprise.

Today the government amendments are known. I presume that you will have a fairly good idea as to what still remains to be done once you've seen them. This is not an encyclopedic work. You know that the scope of the amendment is limited by the scope of the bill. Therefore, there is not much room to play with.

Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: Mr. Chair, while I appreciate the fact that there was an invitation to submit amendments for the past number of weeks, members' offices do not have the same level of resources the minister's office has to prepare amendments, so it made absolutely no sense for us to start to prepare amendments until we saw the government's amendments.

There was a tacit understanding that when the government submitted its amendments and we had opportunity to go through them.... And you can't go through these very quickly, you know; you have to give them a very careful reading to see what is missing and what implications there are for the particular wording of the government's amendments. That takes a little while, for research plus the drafting of your own amendments.

We are going to be in the House on Monday, Tuesday, and Wednesday. I don't see how I'm going to be in a position to draft amendments while I'm in the House on Monday, Tuesday, and Wednesday. Further, it is highly likely the House will not be sitting after the 14th. So we're going to have what, one sitting and then we're going to close clauses down?

And as you have mentioned, we are fairly limited in the scope of the legislation. So if we close one or two clauses down on Thursday, are we closing down 25% or 30% of the bill because we haven't had adequate time to prepare? Plus, Mr. Chair, it's highly likely that the make-up of the committee will be very different in the fall. Are we going to start with brand-new members on this committee after having had one session where we closed down 25% to 30% of the bill?

I appreciate your concern to get this taken care of before summer recess, but we're not going to get it taken care of before summer recess, and I think we've heard some very disturbing testimony over the last little while that suggests there are some real problems with this legislation.

If we have any responsibility to our constituents who we represent, as well as to Canadians in the public interest, I think putting us into this ridiculous time constraint has to have a reconsideration. Having one day to do clause-by-clause is absolutely idiotic. We are not going to accomplish it. I think the time would be better served by giving us the opportunity to adequately prepare for amendments.

¿ (0920)

The Chair: Look, there is one week between today and next Thursday. Next Thursday we will start. The clauses will not be called; they will remain open for second elaboration, further reflections, further examination if necessary. We will have at least an overview of what is before us. It will certainly not be a conclusive, final, and only meeting; it will be the first.

We may be sitting until the 21st, so the following week we could proceed. But certainly next Thursday, when we start, when we discuss the clauses starting with clause 2, I will not call the clauses. They will remain open for further discussion.

Madam Redman.

Mrs. Karen Redman: Thank you, Mr. Chair. I was just going to support the view you're taking, that this bill has been before us, and notwithstanding the reality that we may be in the House with the Species at Risk Act, Mr. Comartin makes a good point that we're at group four. This has been around for a long time, so I guess I would question what kind of preparatory work is needed for Bill C-5 in light of how familiar we all are with that bill.

Indeed, the government amendments were in the main reflected in the minister's speech two weeks ago.

The Chair: Yes, but we want to talk about Bill C-19 this morning.

Mrs. Karen Redman: The amendments for Bill C-19 are the ones to which I refer, and I thank you for asking for that clarification. The minister outlined most of them in his speech, so I don't think the committee will find particular surprises in the amendments that have been tabled today. I support continuing with this.

The Chair: Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: Mr. Chair, I think all of us around the table are aware that while we can agree there are outstanding issues, it's as to how those issues are dealt with that some of the discrepancies may arise. Certainly the devil is always in the detail in understanding exactly the implications of certain words, how those words play out, and what they mean for environmental law.

The reality is that this legislation is very technical legislation. Members can certainly look at the government's amendments, which we received only today, at the end of this week, hardly giving us the opportunity for a thorough examination and understanding of the implications of the details of those things. So while we can agree on issues, it's how we address those problems that may be grossly different.

The Chair: Thank you.

I apologize to Mr. Lunn.

Mr. Gary Lunn: Not a problem. Mr. Chair, I think we've kicked this one around long enough. I'd like to hear from Mr. Northey, and if we can leave it that we're going to start next Thursday. If there's a change, the clerk can let us know sometime next week.

¿ (0925)

The Chair: Thank you, Mr. Lunn.

This is another important meeting in the evolution of Bill C-19, because we have before us two significant documents. The rules under Speaker Lamoureux's statement way back in the 1970s do permit reporting back to the House the bill, once completed, and also and separate from it, a report.

So you will recall way back a hundred years ago, when we saw Mr. Hazell the last time, it was deep winter and the snow was covering the hills. If I remember correctly, both he and Martha Kostuch, in what turned out to be a most stimulating meeting, kindly suggested and offered to have a report on the overall picture and the territory that this particular bill does not cover.

Mr. Hazell has kept his commitment, and that is why we have here today this document entitled Beyond Bill C-19. I don't know exactly the genesis of the document by Mr. Northey, but he has also kindly come forward with a massive document, the one in beige, entitled Environmental Defence Canada Response.

So we welcome you both, and we thank you for your commitment to the public interest. The floor is yours.

Mr. Stephen Hazell (Executive Director and General Counsel, Canadian Parks and Wilderness Society): Thank you, Mr. Chair and members of the committee. I appreciate this opportunity to appear before you again to discuss Bill C-19 and perhaps look a bit beyond it.

When I appeared the last time I made the argument that Bill C-19 is laudatory in many aspects, and I hope the committee of course will recommend amendments to improve the bill.

I more or less support the bill, and I think it's one that should ultimately be passed as amended, but it has a very limited ambit. My argument the last time, as laid out in an earlier brief, was that the bill really doesn't address many of the key challenges we face in federal environmental assessment. At that time I suggested that this committee might, at some point in the future, try to look at the big picture of environmental assessment to try to understand how environmental assessment can be used to achieve real gains on the ground in terms of the environment.

So that was the argument I made at the time. Since then, I've been approached to see if I would have some comments that would feed into a report by this committee that would accompany the marked-up bill when it is tabled back to the House of Commons.

The Chair: You mean, as of then. It is not “since then”; it was as of that encounter.

Mr. Stephen Hazell: Yes, that's quite so.

So that's what I've done. I've given some thought to that, and I have just a few ideas for what the committee might wish to include in a report. I could identify those few challenges.

The idea would be, I think, that in the report the committee would not be pronouncing one way or another on any of the challenges but merely pointing out that there are a number of very important concerns with how environmental assessment is working; it would also point out that they deserve study. The concerns include the nature of the five-year review, the fact that it was conducted by the Environmental Assessment Agency and not by an independent body such as this committee, and the fact that the minister gave instructions to the agency to bring forward amendments within a very tight timeframe.

There really has not been an opportunity to look at the big picture. That's really what I want to encourage the committee to do whenever you can, perhaps starting with your report and perhaps sometime in a new session.

I would just take two or three minutes and go through some of what I feel are the key challenges that remain to be addressed in environmental assessment. In doing this, I would point out that of these ideas, a few are my own and some are drawn from the testimony of other witnesses to this committee; I've tried to pull them together. This is not comprehensive, but I have tried to reflect what other folks have said before this committee.

What are these few challenges? The first one is that the Canadian Environmental Assessment Act is a process bill: it describes a process. The results of that process are nowhere articulated because we don't know.... We go through a process, we identify the environmental effects, we determine whether or not they're adverse and significant, and then recommendations are made as to whether or not projects will go forward. But we don't talk about what we want to achieve in terms of environmental quality. What do we want to achieve in terms of the sustainability of projects? Those results are nowhere specified.

One thing we have to get our heads around is how environmental assessment can achieve concrete results. Some of those results relate to existing government policies. We have a Canadian biodiversity strategy, and we have a Kyoto protocol, which hopefully will be ratified sometime in the future. There are any number of explicit government commitments on the environment. How does environmental assessment, a process for looking at projects, tie into those federal commitments, some of them legal? There is not much of a connection.

Let me just give you one example to make the idea a bit clearer. In Alberta right now there are I think six or eight proposals for new tar sands developments. Those will have huge implications for Canada's greenhouse gas emissions. Those projects will probably be subject to federal environmental assessment. As we go through that federal environmental assessment process for each of those projects, how are we going to tie in these Kyoto commitments? In addition, those tar sands facilities are going to have a huge impact on the Canadian boreal forest just by the fact that they destroy a lot of forests. How are we going to take into consideration the biodiversity losses resulting from those?

All I'm saying is that we have to think about that, and it would be an appropriate role for this committee to think about it.

¿ (0930)

Another problem--and this is an issue Rod touched on in his remarks, and other witnesses as well--is that the Canadian Environmental Assessment Act is widely given lip service as a tool for achieving sustainable development of projects, but the reality is that there is a very grudging commitment among federal departments and in industry. The challenge that I say this committee has to think about is how to make environmental assessment into a constructive tool that the project proponents will embrace as a way of improving their projects. How do we do that? I don't know, but I think it's an issue for you folks to think about. Given your experience, I'm sure you'll have some important things to say about it.

Another challenge is that the federal process assesses a lot of small projects. I think 30,000 projects have been assessed, and 99% of them were screenings. They tend to be mainly small projects, but there are quite a few large-scale projects of national significance that are not assessed, or if they are, they're assessed using a trigger that comes very late in the day. I'm thinking of the Fisheries Act authorizations, which typically are triggered very late in the project cycle. It drives proponents nuts that they go through a lot of planning, a lot of environmental work, and they're working with the province and they're chugging along and they think they're getting close to project approval, and up pops the Fisheries Act authorization. Sometimes they have to go back to square one and work it through again. That doesn't make any sense.

How do we ensure that we're assessing major projects appropriately, with an appropriate level of public participation? These aren't just provincial projects; these are projects that typically have impacts for any number of provinces. I suggest that's an issue this committee should think about.

There's the issue of cumulative environmental effects when you have a bunch of projects in one region and how in totality those projects are working to adversely affect the environment. An example is around Nahanni National Park. There are a number of mines being proposed, there's oil and gas development coming up the Liard Valley. The environmental assessment process is just picking off very small bits of each project as they proceed, but no one's looking at the big picture. How is this affecting the Nahanni River system over all? This is a priceless Canadian asset, it's an icon for Canada, it's emblematic of a former prime minister, and it's just being chipped away on us. So how are we going to look at cumulative environmental effects?

I've already mentioned the issue of using environmental assessment to meet existing federal environmental commitments. Another issue that has come up with other witnesses before the committee is accountability for achieving results in Bill C-19. One important way of doing that is by having panel reviews, independent scrutiny by experts, rather than just letting the bureaucrats run the show all the time. I think that's an important issue, and I have a feeling Rod may want to speak to that as well.

Finally, there's the question of strategic environmental assessment and how we assess government policies, programs, and plans. There is a cabinet directive in place right now, but it's a policy directive issued by the privy council. It doesn't have the force of law. So a challenge for the committee is finding out if there is some legal framework we can put in place that would help to ensure that before new subsidies--for example, tar sands in Alberta--are approved by the government, there is some way in which we collectively think about that and we're forced to think about what it means for the environment, whether it's greenhouse gas emissions or biodiversity or national parks, you name it. How are we going to actually think about that in a disciplined way? That's another challenge that has not been addressed through Bill C-19 or the five-year review and that really needs consideration. I suggest the committee might be the right place to do that.

That's all I have to say. I think there's a tremendous opportunity and a need for a body like this committee to take a look at the big picture to try to bring environmental assessment into the 21st century and articulate a new vision for how things might be that will actually make a difference on the ground for the environment.

Thank you very much, Mr. Chairman.

¿ (0935)

The Chair: Thank you, Mr. Hazell.

Mr. Stephen Hazell: I have additional copies of my submission. I'm sorry it was not provided to the clerk in time to have it translated. I apologize for that.

The Chair: If you could let us have a couple of more copies, that would be very helpful.

I forgot that I should have mentioned, particularly for the new members of the committee, that Mr. Hazel is well known for the literature and books he has produced on the subject, which have absorbed his attention over the last 25 if not 30 years. We are very fortunate to have him, and now to have also Mr. Northey to make his presentation.

Please go ahead.

Mr. Rodney Northey (Lawyer, Environmental Defence Canada): Thank you, Mr. Chair and members.

Perhaps it shouldn't surprise you, but Mr. Hazel and I depart at least on one starting premise. Mr. Hazel has suggested to all of you that he could live with the bill as is. Largely, he thinks there are bigger issues outside it. I do agree there are bigger issues outside it, but in my view the bill is not acceptable as is. It's a step backwards. I will get to that at the back end of this.

Before I do that, some considerable effort was made by members of the public, as you all know, a couple of weeks ago to appear before this committee to provide some very detailed briefs, including detailed recommendations. In response to that, this committee did undertake to and did in fact bring forward people to respond.

The transcripts are not available from yesterday, as I understand it, but you do have the blues, so to speak, from the minister's appearance and the appearance of the Nuclear Regulatory Commission.

I want to say to the committee that I am, with your indulgence, going to talk a little about the Nuclear Regulatory Commission brief. I say, with all due respect, that there were some errors, and that is the most polite term, in the responses given.

I say, on the importance of this issue, that we have Mr. de la Chevrotiere here. He drove all the way back from Inverhuron to be here today.

What's going on in Inverhuron at Bruce Nuclear is a serious issue. I really trust this committee will take seriously what is going on.

I am now going to respond to some statements explicitly in the blues and provide some documents. What the committee has, in brief, are originals. I am not--

¿ (0940)

The Chair: The scope of this meeting is to hear your brief on what the overall picture is. If you wish to make some brief comments on the blues, fine, but please keep it to a bare minimum.

Mr. Rodney Northey: Sir, if I could have ten minutes in total to deal with this, I would be very grateful.

The committee has in front of it a book that you identified already, Mr. Chair, the Environmental Defence Canada response.... These are not translated, because what is here are original documents, produced by the government or Ontario Hydro or its consultants. There is not an Inverhuron document in here.

I'm going to start with a statement that was clearly made in response to this committee's concern about the issue of design change. Ms. Kate Maloney said in the transcript that there was not in fact a design change. There's a further suggestion that whatever occurred was detailed in an addendum.

Perhaps you can look at the very first letter in tab 2 of these documents. Mr. Chair, with your indulgence, I'm going to briefly refer to the documents in the record. There is an October 9, 1998 document from Ontario Hydro to a Mr. D. Howard at AECB. On the second page at the bottom, and we have underlined that, it says: “The new system design will be communicated to the public in BUFDSP Newsletter No. 6.” Ontario Hydro describes it as a new system design.

The Chair: Is the emphasis on the system or on the design? It could be on either.

Mr. Rodney Northey: Sir, I will get you to look at the next page. You can read that both ways, but the word is “design”, sir, and I will take you to the next page and document.

There is the December 18 document of the Atomic Energy Control Board, following the close of public comment on the comprehensive study. At the middle of the page it says, and I quote: “The proponent, Ontario Hydro, has concluded their design system study and has indicated three major design changes...”.

The Chair: There is a question of whether the changes make it new or not.

Mr. Rodney Northey: Sir, what you have in testimony is in fact there was not a design change. That is a statement straight in the records. I'm simply responding to that.

You have, sir, a few tabs down, something called “Technical Report GE Canada”. This is a report that GE Canada did for Ontario Hydro that was the basis for the system design changes.

In the tabs--and there are page numbers, and I will ask you to refer for the reference to page 1882 or page 7 of the report--they are describing something called “Third Bay”. I will say for the committee's benefit that is the new design, and you will see the consultants say “Major revision of the environmental assessment will be necessary as a result of...” And these, sir, are the design changes. And further underneath: “Minor revision of the environmental assessment will be required...”. And again, “further things specified...”.

The consultants also advised committee members that this wasn't the only issue of what needed to be revised. At page 1885, or page 10 of the report, we are talking about the safety analysis at the bottom of the page: “Major revision of the existing safety analysis will be required due to...” and again, a listing of the design changes.

Over the page: “Minor revision of the existing safety analysis will be required due to...”.

I simply close on that point, sir, to say these documents are here. They are now in the record to highlight this point about the issue of design change.

Now, I should say, for the benefit of the committee, that the GE report, which is the sole document of Ontario Hydro to support the design change, was never provided to the AECB, for the simple reason that the AECB never asked for it. And when you see, in the words of Mrs. Mahoney, that the alternative design was detailed in an addendum, the word “detailed” is a bit cryptic. I should say to you that a total of two pages to describe the alternative design was provided. That is it. If that means detailed--so be it.

And the final point, which this committee does not have, but to leave on this, is that in the environmental assessment itself--I'm at the end, Mr. Chair, on this point--bears noting. This reference design, which is the design dated in December 1997, is used as the basis for the main--most detailed and quantitative--component of the environmental effects assessment in this report. The potential implications of new design alternatives, which may come out of the current system design studies, are addressed in section 4.9 to 4.11.

Sir, the only implication identified from the designs was that more space might be required for the new design, because the containers were smaller. Hence they would need more of them. What they do not discuss, which is clear in the record, is that Bruce fuel bundles are more toxic than Pickering bundles; that the Pickering design referred to in this report was for a project of approximately 185 containers, not 1,900; and that the design of the Pickering containers, compared to the design of the Bruce containers, was such that--and I put this absolutely closely--more bundles of more toxic fuel in a Bruce container nevertheless emit less radiation than a Pickering container with fewer bundles of less toxic fuel.

All of that was in the records. None of it got assessed. That's the end of that point, Mr. Chairman.

What I think is relevant, however, directly to this committee is the process of comprehensive study, because this committee has heard that comprehensive study should be regarded as an adequate alternative to panel review.

¿ (0945)

Again, I would just like to take you briefly to some documents that are before you in this brief.

The first document, labelled page 2612 under tab 2, is a letter dated January 25, 1999, from Ontario Hydro and again to Mr. Howard of the AECB. In terms of the process, this letter has been written after the public has exercised its rights of comment in a comprehensive study. The comprehensive study process has closed, and if one reads the legislation, one anticipates that it is now the Minister of the Environment who is now trying to deal with what is before the minister. This letter comes from the proponent after the end of this public process and gives the minister the proponent's views on how everything fits together.

What you'll see, Mr. Chair, over the page and in the second-last paragraph, is that this isn't the only opportunity Ontario Hydro wished to take in the process. They wished to provide a more detailed document at the end of February, one including more detailed responses. Again, all this is in the post-comment period.

Two pages further on we see that a document on responses to public comments is to be completed on February 28, 1999.

I then take you to a letter dated February 25, 1999, again to Mr. Howard from Ontario Hydro. There is some underlining, and it is not a clear letter, but I will quote the relevant portion of it. This attaches the comments from Ontario Hydro:

“We proposed that this document be issued to public groups who commented, as well as the AECB, CEAA and other government departments involved in the review process. A copy of this document is enclosed for the AECB's information on the explicit understanding that Ontario Hydro will issue the document only after the CEAA process has been completed.”

On the very next page, “Ontario Power Generation Responses to Public Comments”, the notes are: “Issued to the AECB: February 25, 1999” and “Issued to the public: June 7, 1999”. June 7, for everyone's information, is after the minister's decision to approve this facility.

This is allegedly the process that competes with panel review for integrity, openness, and access to the public. This is the alternative you have been advised is exactly what should occur in most cases instead of a panel review.

I am not aware, members and Mr. Chair, of any example of a panel review where a proponent can fire in a document at the end of a panel process, after public hearings, and tell the panel they're not to give it to anybody else until after they've released their panel report.

I thank you for your indulgence, Mr. Chair. I hope that addresses a specific issue involving the committee.

Mr. Chair, I will spend only a minute on this point. It's a serious point, one my first submissions to this committee were about, namely the issue of science. One of the points that was made in that submission was that this act needs to take science seriously and that the only place in the history of environmental assessment where science is taken seriously is panels. One cannot expect that government, even independent regulatory authorities like the AECB, will take science seriously.

¿ (0950)

My next example comes again directly from the transcripts, where you were advised that the commission did not need to worry about increased childhood leukemia, a 40% increase, because it was “not statistically significant”.

Simply to provide you with some information about the context, this is coming from the commission that, I remind you, reviewed the comprehensive study. So this again is evidence of how an internal or a comprehensive study process works, by comparison to panel.

What we have provided you at the end of this document, in the last tab, tab 4, are two things: one is called “Affidavit of Dr. David Hoel”, and the second one is his curriculum vitae.

I simply provide his c.v. because Dr. Hoel is from the United States, has sat on some of the most distinguished world panels dealing with radiation, and has over 150 publications to his name.

What does he say about “significance”? I take you to two excerpts from this point. If you look at paragraph 27 of his affidavit of December 9, and then, over the page, paragraph 29, the effect of Dr. Hoel's testimony is that the AECB studies they quoted to you as not proving a significant relationship had two parts. They are summarized in paragraph 27, but in less formal terms, the implication of that is that the AECB changed the parameters of the test for significance between the phase one part of the study and the phase two part of the study.

The effect of the change was to make the threshold for a significant finding more difficult. And as Dr. Hoel says in paragraph 29:

“In sum, if the AECB study had used the internationally accepted method for studying radiation induced cancers, of a single-tailed test and a 90% confidence interval, the present excess rates of childhood leukemia deaths near the Bruce and Pickering nuclear power plants would be considered statistically significant.”

That affidavit was filed with the commission or the AECB before they made a final decision on Bruce. It has had no effect whatsoever on their determinations or decision-making. That affidavit was attempted to be filed in court, and there were some issues procedurally, but one of the court's convincing points on this was “we do not look at science in judicial review”. Panel review is the only alternative.

Moving on to the DFO of yesterday, again I have five very brief points--much briefer than before, because I don't have documents.

In this committee, the question was asked of DFO, how do they apply the present coordination regulation? The coordination regulation is a significant regulation, as it was an attempt to herd the cats, otherwise described as federal authorities, by requiring that they do one assessment for one project and coordinate their efforts. The regulation has two parts to it: a part that says when you're supposed to trigger environmental assessment, and a second part that says what you're supposed to do after triggering assessment.

The question was asked of DFO in relation to Caledon, what about the coordination regulation? The answer to this committee was “We only use the coordination regulation after we've decided that assessment is triggered”.

The problem is, that is not what the coordination regulation deals with exclusively. It deals with how to trigger environmental assessment, not simply what occurs after triggering it.

This committee needs to be aware of that regulation, because it is the only instrument that sits out there today that prescribes a method for triggering the assessment act early. The act requires it, but there was considerable ambiguity about what to do with it. The coordination regulation was an attempt to answer it. The DFO answer is nothing but an evasion of what the law is saying.

¿ (0955)

Concerning the second part, again directly relevant to this committee's deliberations and proposed amendments on the discussion of access to information, this committee was told that, yes, the process of getting Mr. Lavoie information was slow; it could be improved. I have two responses. Slow does not effectively describe this process, because slow in this case meant that Mr. Lavoie did not get access to the records until after DFO approved the project, after construction started on the project, notwithstanding his request five months before such approval.

Point two, Mr. Chair, is that Mr. Lavoie was seeking technical documents on the assessment. There was, notwithstanding Mr. DeBruyn, no provincial environmental assessment done before. These were technical documents sought by Mr. Lavoie. The new amendments would eliminate the requirement to provide technical documents.

Mr. Chair, everything is beeping. I will close.

À (1000)

Mr. Gary Lunn: That beeping is not for us; don't worry about that.

The Chair: You asked for ten minutes and you have had twenty.

Mr. Rodney Northey: I agree. I'm sorry, Mr. Chair.

The Chair: Would you like to make a concluding statement?

Mr. Rodney Northey: Yes. I have three points and comments on the minister's testimony, sir, very briefly again.

The minister told the committee that the act really is a balance, a mixture, of duty and discretion. That is a nice statement, but one question that was asked--what are examples of the duties?--the minister referred to Mr. Connelly. As I read the transcripts, only two examples were provided: follow up, and coordinators. Those are pretty minor examples of duties in an act that is supposed to apply to 30,000 projects a year.

As a second point, the minister was asked by the committee to provide an example of a significant effect. Mr. Connelly's answer provides no such example--not one.

Thirdly, the minister responded to the question about the low number of panel reviews--and I regard this as remarkably significant--with an analogy in answer to it, that it was a bit like inquiring of criminal law and who is going to jail. I say to this committee that coming from a minister of the crown who was formerly the Minister of Fisheries, that is a solid indication of what panel review means to the government. It's like going to jail. You don't do panel review to get information. To improve public policy is a punishment and a penalty. Only in the “beyond reasonable doubt” case where we must do it will they then do it. The act says where there's uncertainty, where you should exercise precaution, you order a panel review. I do not believe jail is an appropriate analogy to improving public policy.

In conclusion, I am very depressed by the appearance of the officials who came to this committee. I don't see any examples in the testimony where they are contrite and admit any mistakes were made in respect of Mr. Lavoie, Mr. Sullivan, Mr. Chevrotiere, Mr. Dumyn, or Ms. Richardson.

They say to you as well, there is nothing they would do differently. A future review by this committee could have another Mr. Chevrotiere, Mr. Lavoie, Mr. Sullivan. What I think that means, reading between the lines, is there is nothing in this five-year review that is intended to address any of the problems they have raised. If they don't see a problem and require a change, then you haven't been told there's a problem that deserves a change.

That goes to saying that this committee must look with some inquisition at what's going on here, because these are examples that must get scrutiny. There are specific amendments proposed. Those amendments deserve your highest scrutiny.

Thank you again for your time.

The Chair: Thank you, Mr. Northey. Thank you also for your urging. This committee is well known for being supine, obedient, and not inquisitive. We will probably not live up to that reputation on this particular bill.

What you said in relation to Inverhuron and the citizens coalition and Mr. Lavoie will be in the blues. I would ask the clerk on behalf of the committee to forward your comments to the respective officials and to give this committee a reply in writing to each of the comments or observations or critique you have outlined for us. When we receive that, then we will determine whether their reply warrants calling them before this committee.

I certainly appreciate your interventions and the commitment you have indicated to us for better performance and the reasons behind it.

Now we will start a good round. I have Mr. Bailey first .

À (1005)

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

I want to go back to Mr. Hazell. What I seem to hear you saying is that in order to do an assessment or an evaluation properly, you can't go here, there, and all over the place; you must bring the groups together.

You're dealing with different federal departments. In some cases you're dealing with different provincial departments. And of course there are the local people involved at the same time. And if they're all working in different places at different times, as I believe they are now....

Maybe what we should be looking at, taking suggestions from outside and even from within this committee, is a protocol or a sequence that can be followed, something of that nature. Because every project appears to be commencing or starting off with a different pattern, a different format, and a different agenda. Is it possible to get a particular agenda and make it a national one for Canada?

Mr. Stephen Hazell: I guess the first thing I would say is that there have been substantial efforts by the Environmental Assessment Agency over the years to harmonize the work done at the provincial and the federal levels. There are other environmental assessment folks out there as well, people who work for first nations authorities, for example.

So there is a lot of harmonization work going on, but we do have some particular problems. The Fisheries Act is the classic example. Given the nature of that trigger, it comes so late in the day that it's very difficult to do an appropriate harmonization job. I want to acknowledge that there's a lot of harmonization work going on.

But the point is that the federal government really isn't being very serious, especially about these bigger projects that really need some public scrutiny, which they haven't been receiving--and Rod has addressed some of those. The real issue is how do you bring together all of these different interests--the provincial agencies to the extent that they're involved, the federal authorities responsible, local people. And a really good way to do that is through a panel review process. Then you really know, as Rod suggested, you have some independent folks looking at this seriously.

I'm not sure I'm answering your question, Mr. Bailey.

Mr. Roy Bailey: Why would you proceed on a project the ultimate end of which would create, say, fish habitat, and not involve the DFO on the panel in the first place?

Mr. Stephen Hazell: Well, I certainly wouldn't want to speak for a provincial government.

Mr. Roy Bailey: No, but that's my example because I know it's happened.

Mr. Stephen Hazell: Partly it relates to the technical matter of how the Fisheries Act is written. It's not illegal to go ahead with a project without authorization under the Fisheries Act.

Mr. Roy Bailey: That's not sensible.

Mr. Stephen Hazell: But it happens all the time. It's only if DFO gets on to you, which sometimes it does and sometimes it doesn't, that it may demand an authorization from you with the threat of prosecution.

Mr. Roy Bailey: What I'm suggesting to you.... I think somehow we have to come together. Do you think it's this committee's responsibility to sit down and draft the guidelines whereby you pull these people together into a panel? Whose responsibility is that?

Mr. Stephen Hazell: What I'm suggesting this committee do is look at the big picture, the policy picture. I'm not suggesting that you get involved in a particular project or that you harmonize the different interests in a particular project. I don't think that's your role.

À (1010)

Mr. Roy Bailey: We don't have--

Mr. Stephen Hazell: And the bill does provide for that. There's the establishment of the federal EA coordinator, for example. There are a number of other tools in the Canadian Environmental Assessment Act right now that allow harmonization to occur. My problem is that it's not directed towards achieving any particular results. So we're doing all this assessment work and we really don't know why we're doing it.

Rod talks about significance and these floating definitions. Nobody really knows what “significance” means. It really depends on a lot of things, of which political pressures are not the least.

We need to understand why we're doing this stuff. We're not doing this for the good of our health. We're doing this so that projects are sustainable and the ecosystems out there, upon which we all depend, remain whole.

The Chair: Thank you, Mr. Bailey.

Mr. Rodney Northey: Mr. Chair, is it possible to respond?

The Chair: Yes, briefly.

Mr. Rodney Northey: I think there are two points.

I think this committee could do something to address your question specifically in this way. The Environmental Defence Canada brief talked about two different visions of environmental assessment. I think it would be a very important exercise in Canada for this committee to explain and understand how those two visions work. One is a vision that pursues the issue of alternatives as the priority, and the other is the CEAA vision of avoiding significant effects. Those visions are opposed, sometimes diametrically, because one could end up with different alternatives resulting from each process. But I think fundamentally, there are really only two visions, not multiple examples beyond, and this committee could examine that and try to determine what an appropriate model is.

In response to your question on DFO and proponents, I believe the smart proponents do exactly what you say. The role of the coordination regulation, believe it or not, was intended to actually do what you say, which is to bring everyone into the room at the beginning of a project, talk about what could occur, and figure out how to talk about this.

What is not occurring when one has DFO not following the coordination regulation.... They sit outside the table and they say they're not involved in the process. So it's not simply that people don't try; it's that DFO is not compelled by anything in law to come to the table. You've heard they don't regard the coordination regulation as bringing them to the table. If they were brought to the table from the outset.... There is a proposal in the amendments to do that, which is to say it's a reverse onus. DFO, if this project is going to affect fish habitat, you're at the table until somebody shows you're not going to have an effect on fish habitat. I think that would help address the problem.

The Chair: Thank you, Mr. Bailey.

Mr. Comartin.

Mr. Joe Comartin: I want to go back to that 60-day period of time. This is the Inverhuron and Bruce Power issue. Given what you've said and I guess what we've had in the sequence now, first from the Inverhuron ratepayers, then from the ministry officials--or, I guess, the agency officials--and now from you, I'm not clear on what the ratepayer group knew, in that 60-day period, about what the design was. Could you also indicate when they knew that?

Mr. Rodney Northey: Yes. In December 1997, Ontario Hydro filed a document they called their environmental assessment. In that document, they called the project the Reference Design. That is the only document that provides a detailed, quantitative analysis of a design--namely, that Reference Design.

The components were a specific container, a Bruce container--

Mr. Joe Comartin: That was the Bruce design.

Mr. Rodney Northey: Right. There are some other parts to this because there's stuff called dry loading versus wet loading. The Bruce design was dry loading; the Pickering design was wet loading.

Mr. Joe Comartin: When did the Pickering design come forward?

Mr. Rodney Northey: In the EA document, all of the assessment of December 1997, all of the detailed analysis was of the Bruce design wet transfer, etc.

Mr. Joe Comartin: I understand that.

When did the--

Mr. Rodney Northey: Okay, December 1997.

The addendum came out in July 1998. The addendum says they've concluded the system design studies. Then, if you read through it, if you read every page of the addendum, you'll catch the drift in one line where they say they think they have a preference now for the Pickering design.

But going through it, I have to say to this committee that the public had an expectation of a different means of communication. I put it this way: All the work for the previous three years had been newsletters setting out in big, bold terms what was going on, and all those newsletters were Bruce design, Bruce containers, everything. The design change never got a single newsletter, not a single public meeting. In fact, at different points even Hydro had sent personal letters to everybody on their mailing list to highlight key points of their process.

No such letter was ever sent. So what one has in this is if one read every part of the July addendum, one would have caught that sentence that says they now have a preference--one sentence. What it says in that sentence is they haven't even made a decision; they're not going to make a final decision on that design until September.

I just want to state, because this is relevant, that the public--

The Chair: I don't know whether we want to drift so far away from Bill C-19, if at all possible.

Mr. Joe Comartin: I don't think we are, Mr. Chair. I guess the problem I'm having at maybe even a personal level is that I'm not sure if we were...I don't want to use the term “misled”, but if there was a misunderstanding--let me put it at that level--between myself and the agency officials when they were here, but I'm coming to the conclusion from what I've heard that this may have occurred. So I do want to pursue it. It's more the process of the committee and what we have a right to expect from officials.

Mr. Northey, let me--

Mr. Rodney Northey: I'm almost at the end.

À (1015)

Mr. Joe Comartin: No, let me do it.

We heard from Mr. Chamney that the ratepayers were given a 60-day window of time in which to respond, and--I don't believe it was just an impression--I believe I was told they understood that they had refocused on the Pickering design.

Mr. Rodney Northey: No. You see, that's the problem. Inverhuron, the group--

Mr. Joe Comartin: What I want to know is what details did the Inverhuron Ratepayers Association have of Pickering during that 60-day window of time to respond?

Mr. Rodney Northey: They had no idea that the Pickering design was the preferred design.

Mr. Joe Comartin: Did they have any details of it?

Mr. Rodney Northey: They had what I described to you as the one sentence in the July addendum that said they have a preference but have not made a final decision.

Mr. Joe Comartin: So on this issue that the spent rods at Bruce were of greater concern if you used the Pickering container, did they have that type of information?

Mr. Rodney Northey: No. In fact, they had the contrary. They were told that there was nothing significantly different between the designs. It was only when we got the GE report, which occurred in litigation, that we realized--

Mr. Joe Comartin: That was after the agency had made their recommendation.

Mr. Rodney Northey: Absolutely. It was only when we got that report that we realized Hydro had information about a problem with the EA, and the AECB never even had the GE report. The GE report was never put on the registry because they never requested it, so that information wasn't on. But the Hydro letter that confirmed the final design, so the July addendum tables, the notion they had a preference, that letter you have, of October 9, filed during....

This is very significant: That letter was written during the period of public comment. It was not put on the public registry until after--because we have an index of the public comment records. We had no way of getting that document until after. Again, we never saw that document until litigation started.

The Chair: Thank you, Mr. Comartin.

Mr. Reed.

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

Welcome.

First of all, Mr. Hazell, you have alluded to the big picture. I think there's some sympathy for the need to look at a larger picture when doing an assessment. This is the question I'm wrestling with. How do we build the parameters to say how big the picture should be? For instance, if an assessment's done for a bridge going across a waterway to access an area to do cutting, should the assessment then take in the approach roads? Should it also take in the impact of the cut and maybe the lumber mill that goes in there, as well? Where does it stop? If you can ever provide us with some sense of where those parameters should be, I can say for myself I would like to take a serious look at them.

This is a problem that was brought to our attention by Canadian Hydropower Association--when an assessment is done on a hydro site, but nothing is done in a benefit analysis to say how many tonnes of greenhouse gases are offset by the creation of that power site. I would be pleased to hear anything, either now or in the future, about your ideas of those parameters.

À (1020)

Mr. Stephen Hazell: There are a couple of issues here. One, when you're looking at a specific project, what is the scope of that project and what is the scope of the environmental assessment? In the case of a large forest-cutting project, with a number of bridges and proposed forest-cutting plans, what is the scope of the project? What then flows from that is what the scope of the assessment is. There are a number of provisions in the act right now that speak to that. I know a number of witnesses have spoken to that issue before this committee. And there are big, big issues there.

We need clear rules about that, because lots of games are being played by responsible authorities on that--trying to keep the scope of the project as small as possible, so that they don't get at the big issues. What I'm talking about, what most concerns me, is that somebody take a look at this scoping issue, because I'm not sure that in the context of Bill C-19 you're really going to be able to get a handle on it, because you're pretty tightly constrained on what you can talk about.

Part of what I'm saying is all right, we've identified as a policy issue that we have to look at it. As a matter of policy, what does this committee think about the Tolko situation, where you have a gigantic area in northern Manitoba being turned over to a forest company for logging and the only federal EA is two bridges and abutments? Does that make any sense to anybody?

What I'm encouraging the committee to do is not to muck in on a given project on what the scope should be, but to think about and propose some clear rules about those sorts of things. That's what I'm trying to get at.

Mr. Julian Reed: Thank you very much.

Now, Mr. Chairman, we've been dealing with some of these other subject areas, such as the Bruce issue and so on. What I am having trouble with is how in the dickens did the dumbest idea in a decade get to litigation in the first place? Why wasn't it solved politically through a provincial committee and so on? How would something as bizarre as storing high-level nuclear waste on top ever see the light of day in litigation?

I'm more than surprised. I sat on the hydro select committee in Queen's Park for four years. I went to Whiteshell. I saw the technology that was intended to be used for the long-term storage of high-level waste. It was all there in place twenty years ago. So I'm concerned.

I also have done a little digging with Mr. Levoie because of my interest in hydro power and so on, and I'm concerned that this went to litigation. I believe that one boiled down to the fact that God never made an ugly waterfall.

À (1025)

Mr. Roy Bailey: There are some ugly fish in waterfalls.

Mr. Julian Reed: I've done some investigating about what was considered fish habitat that was actually cascade. I'm really having trouble with how a concept like storing high-level nuclear waste on top could get carried so far, to the point where it would have to go to litigation and not be solved politically.

Mr. Rodney Northey: All right, great.

The Chair: Mr. Northey, will you lead off, because Mr. Reed's time is up and we are drifting away from the bill.

Mr. Rodney Northey: All right.

I think the answer, and Mr. Hazell has said it very well in his previous remark, is the mix between duty and discretion. What you have right now is a view that there is no duty even to pick the best alternative for Ontario Hydro if you read the court transcripts of the Federal Court of Appeal on this. They said they have no duty to identify what the best alternative is, nor does Hydro; all they had a duty to do under the EA process, as presently constructed, is to identify alternatives and then they could have full discretion to pick whichever one they wanted.

I say, in response, if you look at tab 3 of that same brief, at paragraph 12.(2)(c) you'll see that one of the long-term options, which is exactly the option you've tabled, and this is going to be studied by the government in future, is, and I quote, “centralized storage, either above or below ground”. So it has not disappeared; it is right in federal legislation now.

Mr. Julian Reed: The result...it was an issue twenty years ago.

I'm really having trouble with this.

Mr. Rodney Northey: It seems to be recurring. And Mr. Lavoie's answer is the same. If it is entirely discretionary, what is fish habitat, and I say this with respect, it is somewhat ironic when you hear the other day that the falls is not a fish habitat. There is a Department of Natural Resources fish sanctuary, which is a regulatory thing, that starts in the same place, where the fish habitat is.

The Chair: Thank you, Mr. Reed.

Madam Redman, please.

Mrs. Karen Redman: Thank you, Mr. Chairman.

I have questions for both witnesses, but I'll start out with Mr. Northey.

You have significant experience in representing clients who have sought judicial review to decisions under the act. And the witnesses who appeared with you on May 23 did a very good job of highlighting some terrible personal as well as significant financial costs of litigation. I'm interested in your views on what effect the changes in the proposed Bill C-19 might have.

When I asked Mr. de la Chevrotiere about Bill C-19 and the extension of participant funding to comprehensive review studies, he replied that intervening funding would be absolutely wonderful. So clearly it was something that in his opinion would be helpful.

As well, in proposed subsection 32.(2) it proposes to provide the agency with a new role to, and I quote, “assist parties in building consensus and resolving disputes”.

Last week the minister appeared before this committee and pointed out that part of the $51.2 million in new funding will be used by the agency to run a dispute resolution program. The minister said: “We want to stress dispute resolution and avoid litigation as a government.”

So I'm wondering whether this type of program would have helped your clients in the past, and will it be useful in avoiding future litigation, in your opinion?

Mr. Rodney Northey: It's a very good point you make, Mrs. Redman.

Mediation has been an option under this act for the last five years and it has never been used. Panel review has been an option for twenty years, and it was used in ten instances. Those both would have been measures available through this entire piece, and neither was used.

On the view that comprehensive study might get funding, I think we went through in your initial...and certainly that's an improvement, but that's at the cost of ever getting a panel review. I have serious and great difficulties with the notion that comprehensive study is a substitute for panel review for the reasons that we've gone through in some detail.

It comes down to the fact that it's all discretionary, Mrs. Redman. Where is the duty to do anything you're describing as options? Is there a duty to have mediation in certain circumstances when there's public concern? Right now it's entirely discretionary. So the difficulty in saying whether or not those are solutions is this. Unless there is some structure provided by this committee, which I have yet to see, that requires people to use an alternative dispute resolution, which would include mediation or panel review, it will not be used.

The very minister that you've quoted has said that panel review is analogous, it's just like criminal law. That's a view, I think, around this. It's a punishment to have panel review. If that's the view, I don't see how we think mediation is going to be used. I would like to think it would.

À (1030)

Mrs. Karen Redman: I would have to point out that even in the judicial system there are alternate dispute resolution means, mediation, and community justice initiatives at the community level that deal very well with exactly the kinds of issues that otherwise would be settled in courts, so we have examples where it is very--

Mr. Rodney Northey: But it's not used in this setting, Mrs. Redman.

Mr. Stephen Hazell: That's not totally true, Rod. There hasn't been a mediation pursuant to the provisions of the act, but there have been several off-the-books mediations the agency has sponsored, one of which, actually, I suggested the agency take on. This related to some proposed cutting of some forests within the study area of Bruce Peninsula National Park. While this has not been publicly announced yet, there is--

Mrs. Karen Redman: Is it going to be our secret, then?

Mr. Stephen Hazell: Well, I'm not going to give you the details, but it looks as if there will be successful mediation that will protect this particular area from forest cutting.

The problem with the mediation provisions, why they haven't been used, is that there are a couple of very important technical problems with how the law reads right now. CPAWS and some other groups have proposed some amendments to help redress those. I strongly support ADR as an approach generally, but we have to get it right. There has to be some incentive for the proponent to come to the table to participate in the mediation. If there isn't, then obviously they're not going to.

Mrs. Karen Redman: Isn't saving money by not going through litigation a great enough incentive?

Mr. Stephen Hazell: That may be one of their incentives. It's perhaps a necessary condition but not a sufficient one.

Mrs. Karen Redman: I really don't want Mr. Comartin or Mr. Northey to think that I'm here picking on lawyers specifically.

Mr. Rodney Northey: Go right ahead.

Ms. Redman, I just want to make one point clear. I would prefer that this be dealt with outside the courts. I don't believe CEAA is bettered by litigation. If I have not made that point clear throughout, I'll make it right now. It has not been bettered, it has been weakened by litigation. The problem is that there is no alternative right now that is getting the public any serious listening in Ottawa or across the country.

À (1035)

Mrs. Karen Redman: You speak of panel reviews, Mr. Northey, and you mentioned contracting or compacting that to about three months in duration and how you felt that it might be a way to facilitate more panel reviews. It's something that's held out as a world-class process in Canada. We think that everybody involved would think that anything that took less than a year would not be a comprehensive panel review and in essence wouldn't do what a panel review does. I'm trying to square the fact that you could take a one- or two-year process, compress it into three months, and possibly have the kind of result...which is exactly the reason things are referred to panel reviews.

Mr. Rodney Northey: This is a huge point, Ms. Redman. Let me try to clarify what I meant.

It is not that a panel review that is comprehensive in scope could be done in three months. It's that a panel review could be used to address specific issues, not a comprehensive project, and that the process could be done in months. Most provinces I'm familiar with have some administrative board proceeding that involves hearings of days or lengthy ones of weeks. All I'm suggesting is that there should not be an all-or-nothing approach to panel reviews, which is what we have now. “All” is all we have: two years and nothing less.

My suggestion is that various issues could be amenable to a panel review, that independent look. I see no reason why we shouldn't start at one day and work upwards rather than at two years and work backwards. I don't see it compromising standards.

Mrs. Karen Redman: Do you think three months is long enough for full public participation in a meaningful way?

Mr. Rodney Northey: Well, Ms. Redman, the alternative right now is one day in court--one day.

The Chair: Thank you, Madam Redman.

Madam Kraft Sloan, please.

Mrs. Karen Kraft Sloan: Thank you very much, Mr. Chair.

I hate to limit it to three points, but I'm hearing three rather important points. This is certainly not an exhaustive list.

First, we need to understand what results are to be achieved. Certainly, Mr. Hazell, you put forward this idea of the engaging EA to meet environmental and conservation concerns.

The second point is process, such as public engagement, full disclosure of information, and that sort of thing. With that I would add the question of what kind of role do we really have for science.

Third is this idea of a grossly discretionary act. Mr. Northey, when you last visited us you suggested that if we have a grossly discretionary act, why bother having legislation at all.

In the way you have put your arguments forward in a discussion paper, Mr. Hazell, and in the way you have used very clear arguments, Mr. Northey, I think you have both told us that there is no role for science. Or there is only a very limited role for science, particularly when the courts have made it very clear that they're not going to study the science.

Looking at the situation around the Bruce plant, we are told that storage is limited to Bruce only. Perhaps you can tell us a little bit about the history of storage at Bruce. As I understand it, storage starts out being limited to Bruce waste only, but we then start shipping waste all over the place. Is this under an environmental assessment?

Also, when did the public know that the Pickering alternative emitted more radiation? Was it in June, or later? Did they have the proper opportunity to comment? Quite clearly, because of the design information issues, they didn't have a chance to comment on it.

When we had the witness from the Canadian Nuclear Safety Commission, what I found most apalling was that the whole issue of the 40% increase in the cancer rate was statistically insignificant. So here you have a situation where science does not have an opportunity to be fully heard by independent witnesses, and where members of the public do not have the opportunity to examine and cross-examine these witnesses. So in many cases both of you have made very strong arguments that panel reviews are necessary.

I know that I've given you a bit of a hodgepodge, so you can certainly respond as you see fit.

Mr. Stephen Hazell: I'll just speak quickly on the subject of science.

A lot of scientific work is done in conjunction with environmental assessment, short of panel reviews. I believe this to be the case. But the point is that it's not directed enough toward achieving the objectives the Government of Canada has decided are important. The only test we have is whether these adverse environmental effects are significant or not, or whether these effects are uncertain or not. This is just too wishy-washy a test. We need to be more directed.

There are some examples of clearer requirements. For example, there's an obligation on the part of the Minister of Canadian Heritage to give first priority to ecological integrity in national parks, as the number one park management priority. So everything she does.... The decisions she takes are supposed to have ecological integrity as their first priority. We can talk about what that means, but I put it to you that this has a lot more meaning, or is a much more meaningful term than “significance”, which just seems to be endlessly malleable.

Similarly, if DFO took seriously its commitment to ensuring no net loss of fish habitat, that would be a clear policy directive. If we really engaged the environmental assessment system toward ensuring that we have no net loss, I think we'd be ahead.

We need to orient our science toward what we mean by ecological integrity, exactly. There's lots of science developing on that. I'm sure there's tons of science on the no-net-loss principle. We really need to make sure that environmental assessment fits within that, from a scientific perspective. I think this is where we should be heading.

À (1040)

Mrs. Karen Kraft Sloan: But all these elements have to be engaged in a meaningful way, otherwise they fall apart. What you've said is that science exists, but maybe the process falls apart, maybe the public isn't as engaged as it should be. And because we have a grossly discretionary act, how do you make certain kinds of things happen?

Mr. Rodney Northey: I think there are alternatives, and it's useful for Stephen to advise the committee of the alternatives where mediation has been used. It is absolutely an option, and Ms. Redman's point is well taken.

What does happen in mediation that I think is different from the present situation is that mediation is an exercise in building trust. One of the problematic things about what is occurring here where parties are on different sides of the fence is that no trust is being built. In fact, to put it bluntly, comprehensive study is really “Trust us”.

So I would strongly encourage any option that goes toward building trust among the members of the public affected, proponents who want projects to go forward, and governments who have responsibilities. But trust is a huge element of going forward.

Mrs. Karen Kraft Sloan: We can build trust by amending this legislation.

Mr. Rodney Northey: Absolutely.

The Chair: Thank you.

We have Mr. Lunn, Madame Nancy Karetak-Lindell, and the chair.

Mr. Gary Lunn: Thank you, Chair. In the interest of time I will try to be very brief, because I know Mr. Comartin wanted to try to squeeze in a brief statement at the end. I'll get it down to one really brief question for Mr. Northey; I had a few others.

As I see it, this basically all comes down to--and you've correctly outlined a number of discrepancies from the testimony of the Nuclear Safety Commission.... I sense the frustration for your client, Mr. Chevrotiere, throughout this whole process was that there was never a panel review. Is this a fair statement?

Mr. Rodney Northey: Yes.

Mr. Gary Lunn: They weren't actually opposed to the project; they wanted a panel review to ensure the best technology and processes were to be used and that it was to be done in the very safest way for the protection not only of the environment, but also of the residents of that area.

Mr. Rodney Northey: I think that's a very apt description. The way I would put it is the scale of the facility is world-class, and it deserves a world-class scrutiny.

Mr. Gary Lunn: I put this question to the Nuclear Safety Commission. Are there some parameters, some means by which certain projects trigger an automatic panel review? Not just nuclear...I mean, is there a way to set the parameters so that this would automatically trigger a panel review?

On the proponent side, I also sense there are some people who will fight them tooth and nail every single step of the way, whose only goal is to shut it down, not to try to ensure things can be done safely. So on the proponent side as well, if we had an automatic panel review as part of the process...it's going to take this much time, and let's see what we can do to ensure that we're using the best technologies and the safest ways available to protect both the environment and the people.

What do you think of this idea of an automatic panel review, and what parameters would you set for it? When would it automatically kick in? Then I'll defer to somebody else.

Thank you, Mr. Chair.

Mr. Rodney Northey: There's a lengthy history of exactly that provision. Under EARPGO, the predecessor to CEAA, there was provision for automatic lists and automatic referrals. Ms. Kostuch in her testimony to this committee earlier had a very simple proposal: to eliminate comprehensive study and put it all back to panel. The comprehensive study list is the panel review list.

Frankly, some modification to deal with the time limits, so the panel itself makes the judgment as to what scale of review is required, would do a great deal. Because then it's not “Trust us”; it's “Let an independent party try to develop what it thinks is appropriate”. I think that's what's missing right now.

À (1045)

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

The Chair: Thank you, Mr. Lunn.

Madam Karetak-Lindell, it's your turn, please.

Ms. Nancy Karetak-Lindell (Nunavut, Lib.): I have a very short question to Mr. Hazell on his presentation. It relates to page 3, the second-last paragraph, where he said that CEAA does not even apply to projects undertaken in the Mackenzie Valley and the Yukon.

I'm wondering if the land claims agreements, which have these bodies created to do similar jobs.... We talk about duplication of processes. Could you clarify what the relationship is there? The impression I get from this is that there are no assessments at all done, and I'm wondering if there might be a little bit of information missing here.

Mr. Stephen Hazell: I think you're definitely on the right track in that question, in that there is the Mackenzie Valley Resource Management Act, I believe it's called, which does set up an environmental assessment process for the Mackenzie Valley. And there is similar legislation...I'm not actually sure if it's passed the House yet; no, it's not through yet. Anyway, there will be a similar law in the Yukon.

So the environmental assessment processes established under those two laws basically exclude the application of CEAA, and those are the only two places in the country where that happens. So if you're in Alberta, it's the federal act as well as any provincial laws. In the Mackenzie Valley, it's really only the Mackenzie Valley act that applies, with one exception, and that is in the case where there is a joint panel review such as would likely be the case for say the Mackenzie Valley pipeline.

I didn't mean to suggest that there was no environmental assessment that occurs there, but for me, the passage of those two laws represents the fragmentation of the application of CEAA and the reluctance in various quarters, whether it's crown corporations or provincial or territorial governments, to try to ensure that CEAA does not apply to them. That's the problem I'm concerned about. As a Canadian, if there's a federal law, I want to see it applied evenly and fairly across the country and not have it broken up in ways that I'm sure the public ultimately finds totally incomprehensible.

If there's a nuclear reactor being built somewhere, there should be a federal assessment and there should be a panel review, and there shouldn't be any question about that. I think Canadians scratch their heads when they can't possibly understand all of this law and....

Ms. Nancy Karetak-Lindell: The point I was trying to make is in the sense that it seems to imply that we don't do any environmental assessments.

Just to rebut a bit of what you're saying, I think part of the land claims agreement has been to try to make it relevant to the people who live there, that it's controlled and the process is involving the people there, and it's not done by people who have never been to that area. To make sure regional and individual concerns are taken into the process, it would involve the people who live there.

Mr. Stephen Hazell: If I could make just a quick final comment, I totally support that. I think it's absolutely crucial that local people are involved in environmental assessments of projects that occur around them. Really, some of the very best stuff that's going on in environmental assessment is pursuant to land claims agreements, because it does engage local communities.

So I'm totally supportive of that, but excluding CEAA is another thing altogether. While I am tremendously supportive, and I think what's going on in the north has been just excellent in terms of environmental assessment and some of the best work is being done up there, what concerns me is that there are national interests as well that have to be taken into consideration. When you're talking about major pipelines up the Mackenzie Valley, or perhaps projects even in the context of the Nahanni Valley, where we have a series of mining developments happening, and oil and gas development in the Liard Valley, I think there is a role for a national government to say we have a priceless international jewel, a world heritage site; we're not going to leave it to the local Mackenzie Valley EA board to make all the decisions on a piecemeal basis, that they're going to build a road here or issue a licence for a mine there. There should be a more comprehensive look at it, because we're dealing with a priceless asset.

À (1050)

Ms. Nancy Karetak-Lindell: Just as a comment, you're saying everybody else should be able to be part of the process. Why can't they make presentations to the board that is handling the assessment?

To turn it the other way around, if it was a federal assessment, as with the Baker Lake group that had to make presentations in Ottawa when the project was up in Baker Lake, the access was very limited to people who were here. They said they could not go up there. So we do have problems, in that when it's a national scope, they usually hold it in areas where people who are affected do not have access to it.

So I'd just comment that it goes both ways when it's one assessment or the other.

Mr. Stephen Hazell: I'll make a very quick final comment.

For environmental assessment under the northern claims agreements, panel reviews are typically done jointly. There are always local people or people nominated by the local claim authority who are appointed to the environment assessment body. There's always very strong involvement of people from the claim settlement region on whatever the panel is. Typically, they're done jointly, with some federal appointees and some appointees from the claim settlement organization.

The Chair: Thank you.

I have a couple of questions for Mr. Hazell and one for Mr. Northey.

You make a very interesting statement on page 7 of your brief, Mr. Hazell, the one dated June 4. I find it very intriguing that the essential structure and features of CEAA “differ very little from the 1984 EARP Guidelines Order in Council”. You conclude that “in 18 years the core structures and features of the federal approach...have not changed substantially”. Are you in a position to put on paper what desirable changes should be in the core structures and features? Perhaps not today, but....

Mr. Stephen Hazell: I would be reluctant to do that right now, because there should be a broader conversation about that. I'd be delighted to provide my input, and I'm sure Rod and others would as well. I'll only say yes, it's a five-year review of CEAA, but a lot of this stuff has been around for a long, long time: the panel structure; the idea of having an agency, whether it's CEAA or FEARO, its predecessor, in an administrative role; and the triggering approach to federal environmental assessment.

Of course there have been changes through the years, but as I tried to be point out, the core structures and features really haven't changed substantially. We should put that on the table, and we haven't put that on the table so far.

The Chair: But you are in a position to....

Mr. Stephen Hazell: I'd be delighted to help. If the committee sought my advice on it, I'd be delighted to help, and I'm sure Rod would too.

The Chair: The other question has to do with a definition that is bedevilling some of us in all these hearings, and that is the definition of “significant”. Perhaps you've been asked this question before, and if so, can you enlighten us as to how that word should be defined?

Mr. Stephen Hazell: The agency spent a lot of time in the early to mid-1990s trying to figure out what the term “significance” meant. I believe there are guidelines on that to assist proponents and responsible authorities in making that determination. It is a very elusive term.

Maybe we should be drawing back from having the focus on environmental assessment become a determination of the significance of adverse environmental effects. We should be pulling back and trying to do other things, not really restricting ourselves to that term but thinking more broadly in terms of taking a given project and asking how to make it more environmentally sound rather than just saying okay, what are the environmental effects, are they adverse, and are they significant based on some very marshmallowy criteria? I wouldn't want to propose a definition.

À (1055)

The Chair: Thank you.

Mr. Northey, you made a very interesting comment on page 5 of your submission of April 10, where you told us that “the principal failure of CEAA is that virtually every aspect of the assessment process has been read to provide discretion, not duty.” Do you mean the mechanical difference between “shall” and “may”, or do you mean something else? What led you to this observation?

Mr. Rodney Northey: That is right; “shall” and “may” is the source of the problem, but it's deeper than that. In section 55 on the access of the public, convenient public access, there is no “may” anywhere in subsection 55(1) and the courts have still found discretion. In subsection 15(3) there is no “may” and the courts have still found discretion. So it's a deeper problem than “shall” versus “may”.

My own sense is that when you read the act, it reads like a very political document, not a methodologically driven document. I say that because every “shall” is met by a “may”, and so everyone's juggling at all times, as opposed to what I had said to you, the committee, earlier of the NEPA, where it's two pages. That's the framework.

The Chair: But bills are written by lawyers in the Department of Justice, not by politicians.

Mr. Rodney Northey: Sir, if we had access to what the justice department's initial opinions were on that.... What I'm trying to say is that in sections 15 and 16, one has a subsection 15(1) that says, as interpreted, that it's discretion, which is met by a subsection 15(3) that puts a duty. What is one to do?

Subsection 16(1) says you shall assess cumulative effects; subsection 16(3) says it's discretionary. What is troubling is that it's not simply that there are “shalls” and “mays” in places; it's that the message is also conflicted.

The Chair: All right. Continuing with your brief, how would you achieve the establishment of minimum standards, then? How would you go about it? Obviously you are advocating minimum standards. Is that correct?

Mr. Rodney Northey: That is correct.

The Chair: In order to define them, how should the law be drafted?

Mr. Rodney Northey: Again, it's a bit like Mr. Hazell's answer, which is that I would be pleased to give you an example. I believe one would start with NEPA, which is two pages long, and I could give you an example of what I think CEAA looks like that's ten pages long, or in that neighbourhood, and not what we have presently. I think it's an entirely different vision of what legislation looks like. It is not designed to be something that is unworkable for proponents; it's designed to be something that sets out what in fact EA is.

I agree with Stephen. This notion that significance is the driving concept is very treacherous. The alternative is that one has a concept, and we're going to pick the best alternative. That's a test. It's a different test from avoiding significance. NEPA has the test of picking the best alternative. Ontario had that test and people have not wanted to do that.

Again, even on the issue of significance, I think it can be done better. The Canadian Standards Association's effort did try to do that. There was a significant pull-back by members of that committee. I do not want to mislead anybody here that there was consensus. Some people think it's impossible to do. I don't think it's impossible to do. It's a minimum standard. Somebody just has to say it. What's an example of a significant effect? Breaking the law.

Á (1100)

The Chair: Thank you.

Mrs. Karen Redman: Mr. Chairman, can I just do a point of information?

The Chair: Yes, quickly, because Mr. Comartin also wants to speak.

Mrs. Karen Redman: One of the questions I didn't get to ask was actually very much about this topic of NEPA. If you look at the National Environmental Policy Act--and it's a study of the effectiveness of NEPA after 25 years--it highlights many of the concerns that Bill C-19 is trying to address in CEAA. As much as Mr. Northey is holding that out as something that may be a viable alternative in his opinion, it talks about the frustration and the lack of participation and the fact that citizens feel thwarted under that process. If we were ever to look at that, I would hope we would also look at the study, which highlights many of the things we're trying to address with our amendments.

Mr. Rodney Northey: My comment is that I think I've been trying to say, Ms. Redman, that panels are really the method forward. I said very clearly to the group the first time that NEPA does not have that panel process. I think I said that was why it was world leading. I don't want to misinform anyone that two pages is it. Panels are a vital component of EA, in my vision of it, and I think this federal government was endorsing the vision. My vision is look what you did in the seventies.

The Chair: We have to conclude, but Mr. Comartin already has a place on the floor.

Mr. Joe Comartin: We're right into it, Mr. Speaker, in terms of some of the exchanges we've had in the last few minutes. Let me just make a statement, rather than ask a question, which I was going to do.

It seems to me where we're at at this point as we conclude the evidence, the testimony we've heard, is that the system as it is now invites only more litigation. We're going to continue to see that. That's true about Bill C-19 as well.

Mr. Speaker, the point I want to make is that it seems to me the committee has to begin to think--and maybe this is picking up on a point Mr. Hazell made--that the five-year review has really not been effective enough. There is some obligation on the part of this committee, because of what we've been through over the last couple of months, to perhaps take that responsibility on and begin to think that not only should we be doing clause by clause on Bill C-19, but before we complete this review, a report should be issued by this committee taking the broader view that Mr. Hazell has suggested--report back to the House in a full-blown report.

Maybe this is something we could be working on over the summer. I will be pressing for this as we go through clause by clause.

Thank you.

The Chair: As I said at the beginning of the meeting, we will proceed according to Speaker Lamoureux's decision, and proceed on two tracks. One will be the bill and the amendments, and reporting it back to the House. The other track will be the preparation of a report that will deal with the more comprehensive approach that ought to be submitted to the government.

Mr. Joe Comartin: I think in that regard, Mr. Speaker, I just want to make this final point. It's quite clear that if we don't get more panel reviews, if we don't go to that process, ten is just not enough.

We can't develop a body of law.... I guess I'm speaking as a lawyer, but I'm also speaking from the perception of...if you're going to do mediation in a meaningful way, you have to have a structure within which you work, and you have to have reasonable equality between the parties. Quite frankly, up to this point, for both mediation and that body of law, we don't have it. We don't have it under the statutes. We don't have it under the regulations. We are clearly seeing it's not being performed by the officials who are responsible.

The Chair: Thank you, Mr. Comartin.

We now have to leave the room. Our colleagues are waiting outside.

Mr. Northey, Mr. Hazell, we thank you very much indeed.

This meeting is adjourned.