[English]
EVIDENCE
[Recorded by Electronic Apparatus]
Tuesday, December 4, 2001
• 0909
[English]
The Chair (Mr. Charles Caccia (Davenport, Lib.)): Mesdames et messieurs, good morning.
First of all, welcome to our witnesses today, the officials in the room, and also a group of students from Carleton University led by their professor from the faculty of environmental studies. We are glad to have you here.
Second, I have a series of brief announcements. One has to do with Bill C-5, which was duly reported yesterday to the House with 121 amendments. Also, I offer a reminder to you that the good work being carried out by our colleague, Julian Reed, with his Wednesday noon seminars has now peaked in the form of a questionnaire, which he's asking us to reply to or give him some input for. I would urge you not to let that questionnaire disappear in the tons of papers piling up on your desk but to dutifully pull it out and give it the high precedence that fine initiative on the part of Mr. Reed deserves.
• 0910
Next, for those of you who could not attend
yesterday's meeting with Dr. McBean of the
Foundation for Climate and Atmospheric Sciences, it was
a very rewarding meeting—so much so that I would be
inclined to suggest, if there is support, holding a
seminar for one day in about three months with him to
allow him and the scientific community to bring us up
to speed on research on that subject. Perhaps we could
include in that one-day event also a round table
discussion so that we could have a good insight into
the complexity of that issue. I would therefore invite
those of you who have any suggestions for a draft
program to let me know in the week between now and
recess, so that during the recess I can prepare a draft
program for your examination and possible approval when
we come back.
The next announcement has to do with Washington. There, things are proceeding well. The Europeans are showing an interest in sending a delegation to meet with the U.S. senators on the environment committee to discuss climate change. If all proceeds as planned, please make sure that you keep free, if you are interested in going, the dates from January 27 onward for a three-day visit to Capitol Hill and our American colleagues.
There is a slight increase in the budget, which I will put to the committee for approval before we adjourn this meeting.
That, I think, completes the round of announcements.
On your behalf I would like to welcome Mr. Connelly, Mr. Clarke, and—already an old-timer at this committee—Ms. Smith. We invite you to proceed with your presentation and we thank you for coming.
Mr. Robert G. Connelly (Vice-President, Policy Development, Canadian Environmental Assessment Agency): Thank you, Mr. Chairman.
I am vice-president of policy development for the Canadian Environmental Assessment Agency. As the chair has indicated, I'd like to present Heather Smith,
[Translation]
our senior counsel at the Justice Department. Allow me also to introduce Mr. Jim Clarke, the Director of the Five Year Review team responsible for the drafting of Bill C-19.
[English]
We are very pleased to have the opportunity to provide you with a series of briefings as you begin your review of Bill C-19. Together we've had almost 50 years of experience in environmental assessment, in promoting it and seeing its use at the federal level here in Canada. I'm hopeful members of the committee will be able to make good use of the experience we have as you begin and continue your review of Bill C-19.
Mr. Chairman, committee members should have received a kit of information last week transmitted by the Minister of the Environment. It includes some background information, a consolidated version of the act, the minister's report to Parliament—and I might add, that report to Parliament, while it also describes Bill C-19, includes a number of commitments by the minister and the government to bring about policy changes and also regulatory changes; it provides a package of proposed changes in environmental assessment. The package also includes Bill C-19, of course, and there's also a booklet there on some examples of various projects that have been reviewed under the Canadian Environmental Assessment Act. There are extra copies available that have been given to the clerk, I believe, if you have not received them. Also, at our next meeting, which I understand is Thursday, we will provide you with the clause-by-clause book for the continuation of the review.
• 0915
Based on your suggestion, Mr. Chairman, we have broken
the briefings down into three presentations. Today's
presentation deals with the evolution of federal
environmental assessment, beginning in the early 1970s
and continuing to the coming into force of the Canadian
Environmental Assessment Act in 1995. It's not often
we get a chance to talk about the history of this
important area of work, and we're pleased to be able to
do that today.
At our next meeting, which is Thursday morning, I understand, we will have a presentation on the Canadian Environmental Assessment Act—how it works, how it functions today.
Then finally, next Tuesday we propose to outline the details of Bill C-19 for you.
[Translation]
Slide number 3 illustrates our vision of environmental assessment.
[English]
Quite simply, environmental assessment is a process that recognizes the most effective route to environmental protection—and ultimately sustainable development—is through prevention.
[Translation]
This process is launched at the outset to identify and assess the potential environmental effects of proposed projects. The information is then used to mitigate the effects through changes to project design. We view the environmental assessment process as a tool for integrating environmental concerns in government decision-making with a view to promoting sustainable development.
Public participation is critical to the success of environmental assessment, which reduces the proponent's risks and liability through early identification of potential problems.
[English]
Mr. Chairman, slide 4 is a reminder that just over a generation ago there was little interest or awareness about the environmental consequences of large development projects. The development of Canada's natural resources certainly expanded rapidly after World War II and saw many megaprojects occur involving projects like dams and diversions, mines and smelters, pipelines, papermills, and so on, often with little regard to the environment.
Actions that were taken tended to focus in those days largely on health impacts, such as negative effects on drinking water. The sanitation issues were generally those that were given priority. These were essentially end-of-the-pipe solutions directed at specific point sources of pollution.
Slide 5 describes the conditions that ultimately led to the establishment of environmental assessment and an environmental assessment process in Canada. I guess the general lack of interest by governments in environmental consequences of projects was no longer acceptable, given the increasing public concerns about pollution in the late sixties and early seventies.
The first country in the world to enact an environmental assessment law was the United States in 1969 with their National Environmental Policy Act. The United Nations Stockholm conference further raised the profile of environmental issues in 1972. Going into this landmark conference the position of the Canadian delegation specifically identified the study of environmental effects of projects as a high priority.
In 1974 the Government of Canada appointed Justice Thomas Berger to head an inquiry looking into the Mackenzie Valley pipeline. I mention that specifically because it really was a kind of landmark review in this country—and for that matter, for many countries in the world. That particular review served very much as a model for the kinds of panel review processes that were subsequently initiated at the federal level and also emulated in many ways at the provincial level of government.
• 0920
Mr. Chairman, slide 6 brings us to the first formal
statement of an environmental assessment process
federally, in 1974. At that time cabinet made a policy
commitment to review the environmental effects of
federal projects. The Minister of the Environment
announced in the House of Commons that projects would
be screened to ensure they do the least possible damage
to our natural environment.
The requirements of the policy at the time were quite brief, quite simple, and covered about two pages of text. The application of the process at that time was limited to projects on federal lands and areas of responsibility that were exclusively federal. These included things such as nuclear projects and projects in Canada's north. At that time there was considerable interest in hydrocarbon exploration and development in the far north and to some extent in the offshore in the east and west.
The policy set out several basic principles that are still with us today under the Canadian Environmental Assessment Act and indeed are also carried through in proposals identified in Bill C-19. For example, the policy recognized that to be effective, environmental assessment must be done early in the planning phase of the project before irrevocable decisions are taken. In this way, action can be taken during the design and construction of a project to avoid and reduce effects on the environment.
Self-assessment, a second fundamental principle of the 1974 policy, is described on slide 7. Self-assessment means a department or agency responsible for a project is also responsible for the environmental assessment.
Mr. Chairman, in a very modest way by today's standards, the policy also recognized that public participation might be useful during an assessment. The policy also noted that cooperation with provinces and territories may be necessary to review projects of mutual interest and concern.
Projects that were screened at that time and found to pose significant environmental effects were submitted to the Department of the Environment for review by an environmental assessment panel. Slide 8 notes that these panels were made up of officials from the Department of the Environment and the department initiating or responsible for a specific project.
It was recognized that there was a certain lack of independence, potentially, with the makeup of those kinds of panels, so in 1977 cabinet expanded the potential membership of panels so that qualified individuals could be drawn from outside the bureaucracy.
Cabinet policy also noted that crown corporations and regulatory agencies, such as the National Energy Board, could be invited to participate but, as it turned out, were not required to take part in the environmental assessment of specific projects. Some did voluntarily, I might add, but they were not required to do so.
[Translation]
Slide number 9 provides some examples of early panels. In 1975, the publics hearings into the proposed Point Lepreau Nuclear Power Station lasted only half a day.
In 1978, the Eastern Arctic Offshore Drilling proposal in the southern portion of the Davis Strait demonstrated the importance of aboriginal traditional knowledge to the identification of potential adverse environmental effects of projects.
• 0925
[English]
I recall one of my colleagues telling me a story, when I joined the office in 1978, about the testimony of scientists who were appearing before a panel about some of the current studies they had done. Their conclusion was that if there were an oil spill or a blowout from the well, it would move away from shore and not soil the coast. I recall that, from their description, there was an Inuit elder listening to the testimony who asked a simple question. He said, “Well, why is it that driftwood appears on our shores?” In that single question he basically undermined the scientific testimony and showed the extreme value of traditional knowledge in the context of environmental assessment. So I think we recognized right from the start the value of public consultation and the value of traditional knowledge in many of these processes.
Slide 10 refers to the Environmental Assessment Review Process Guidelines Order, or EARPGO. The EARPGO, which you, Mr. Chairman, shepherded through cabinet during your term as environment minister, represented a major step forward in the evolution of environmental assessment in this country. It codified a big process, largely unwritten, that was simply outlined in a few cabinet policy documents. It upheld the fundamental principles of the 1974 cabinet policy such as the notion of self-assessment, but it outlined in more detail the nature of the process that should be followed. It added a degree of predictability and certainty that had been lacking in the process up to that time. It also provided the basis for the existence of an office called the Federal Environmental Assessment Review Office, or FEARO, as we were once called. It outlined our role in administering that process as well.
Since then, the act has transformed FEARO into the Canadian Environmental Assessment Agency, which is an independent body, separate from Environment Canada. The EARPGO placed more emphasis on the importance of public concerns about projects than did the previous cabinet policy.
Initially, the EARPGO was not interpreted as having the force of law. It was seen as non-binding guidelines that provided federal departments directions on when and how to conduct environmental assessments. In fact, when the decision was taken to move forward with a guideline order, there were two other options that were being considered by government at that time. One was a third cabinet directive to introduce some improvements, and the third option was the possibility of legislation. So the guideline order in effect was seen as a bit of a compromise between those two measures, but as an extremely important step forward nevertheless.
I would stress that it was seen as a guideline, because there were some important court cases that occurred later on that changed that, which I will refer to in a moment.
Slide 11 describes some of the pressures that started to build during the latter part of the 1980s for providing the environmental assessment process with a legislative base. Provinces were beginning to legislate their processes across the country, and today you will find that all provinces also have legislated environmental assessment processes in place.
The Royal Commission on the Economic Union and Development Prospects for Canada, or the Macdonald commission, as it was known, also recommended that EARPGO be provided with a statutory basis.
Mr. Chairman, as we remember, in 1987 the Brundtland commission brought prominence to the concept of sustainable development, and that same year the then Minister of the Environment released a discussion paper on reforming environmental assessment.
I might add that this was the third or fourth attempt to bring about reform, and it was the first time that the public was very much engaged in the whole prospect of developing changes to the act and changes to federal environmental assessment.
• 0930
That discussion paper included ideas that are now an
integral part of the process. For example, it put
forward the proposal to provide the Minister of the
Environment with authority to establish review panels
in certain circumstances, and it also introduced the
concept of participant funding as an idea to assist
people to appear before environmental assessment
panels. These important features, the minister's
powers and participant funding of the current act, are
further expanded in Bill C-19.
Slide 12 refers to some of the key court decisions I referred to earlier that provided an additional catalyst for a legislated process.
In 1989 the Canadian Wildlife Federation challenged the federal licence for the International River Improvements Act to allow the Rafferty-Alameda dam to proceed in Saskatchewan on the basis that an assessment under EARPGO had not been done. What came of that was that the ruling on the Rafferty-Alameda dam in Saskatchewan made EARPGO a law of general application, binding on the federal government. So the guideline order that we thought was a guideline had overnight become a law of general application.
The Chair: [Inaudible—Editor]...the decision?
Mr. Robert Connelly: I can't recall, Mr. Chairman, but I think you're correct on that.
Yes, we have confirmation. You're quite correct. Obviously there are a number of people in the room who also have some good memory of that particular case.
Three years later, in a case involving a proposed dam, another dam—in this instance, on the Oldman River in Alberta—the Supreme Court upheld the constitutional validity of EARPGO. In effect, I think this decision was quite important to the whole issue of environment and jurisdiction, and it stated very clearly that environment is a matter of shared responsibility between the federal government and the provinces.
The court also ruled that EARPGO applied where the federal government had an affirmative duty or responsibility to make a decision about a permit. So if it was issuing a permit, EARPGO would apply. In the past, up to that point, we thought it didn't.
Consequently, though, the Supreme Court decision did not require assessments in situations where the ministers or a minister had discretion to act, such as under subsection 35(2) of the Fisheries Act. The Fisheries Act, subsection 35(2), is a very important trigger for CEAA today, and with the Rafferty-Alameda case, suddenly that particular instrument triggered many assessments across the country. But following the Oldman River Dam Supreme Court decision, it was no longer a trigger. So again, things changed dramatically the other way with respect to that one particular piece of legislation.
A third case that I would mention involved Hydro-Québec and the National Energy Board. At that time, the Supreme Court took a broad view of the federal government's capacity to examine the environmental implications of the overall project in question. This was transmission lines, which required a federal permit, plus the source of electrical power, the generating stations, that were part of the project.
So the Supreme Court ruled that for a transmission line that was designed to export power, the project also appropriately would include looking at the production of the power, because additional dams would have to be constructed to supply that power.
[Translation]
Mr. Chairman, slide number 13 illustrates the major stages in the legislative history of the Canadian Environmental Assessment Act. After the legislation received Royal Assent in 1992, we turned our attention to drafting the regulations to give effect to the act.
Amendments were passed in 1994, including one providing for the need to establish a financial aid program for participants. The Canadian Environmental Assessment Act and its regulations came into force in 1995. At our next meeting, I will describe for you how the legislation has been applied over the past seven years or so.
• 0935
[English]
The next slide, slide 14, refers to the regulatory advisory committee, which I wanted to mention because of its very important role in the development of regulations under the act and also its role in the review of the Canadian Environmental Assessment Act.
The regulatory advisory committee is often referred to as the RAC. It was created, I understand, through a suggestion emanating from an earlier incarnation of this parliamentary committee, a recommendation to form a committee to assist government in developing regulations. It's a multi-stakeholder committee, as the slide indicates. It bring together diverse interests, and I think it's been quite effective.
I also understand that members of the RAC my be approaching the clerk about the possibility of appearing before you as witnesses to outline their role in the process and also to outline the nature of the consensus recommendations they did reach.
In conclusion, Mr. Chairman, slide 15 highlights how the process has truly evolved over 25 years, leading up to the implementation of the current act. The scope of application has expanded. For example, decisions by regulators now trigger the requirement for an assessment.
The importance of public participation, which was only hinted at early on in the process in the mid-1970s, has now been recognized. It is clearly included in the purposes of the act and is mentioned in various places in the act itself.
Over time, also, we recognize that because the process is based on the principle of self-assessment, certain checks and balances are necessary to promote quality assessments and informed decision making. For example, the Canadian Environmental Assessment Agency has a role in various aspects within the process that it didn't have earlier on. It provides a lot more training and guidance, interpretation, and so on than was the case earlier.
Also, as the process has improved over time—and I've talked largely about process and legislative requirements and how this has evolved—I'd like to point out that the science has also improved quite significantly over those 25 years. Our ability to predict effects through modelling and other techniques has expanded considerably, and of course, this is in part due to our improved capability in information technology.
Similarly, mitigation measures that were once thought, perhaps, to be revolutionary are now common practice. If you drive down a road and see some highway construction, for example, you'll see that there are hay bales and plastic dikes set up to intercept runoff from the deposition of new granular material on the highway. This is an example of a standard practice that has evolved, one that is based largely on common sense. In the early years we just didn't think of those things. We see lots of other examples like that, ones that show how we've all improved in figuring out how better to mitigate the effects of some of these projects.
Mr. Chairman, that concludes my presentation. I'd like to thank you and the committee very much for listening to it. I and my colleagues will be very pleased to respond to any questions you might have as a follow-up. Thank you.
The Chair: Thank you, Mr. Connelly. It's always very helpful to have a chronology and an historical overview.
Mr. Bailey.
Mr. Roy Bailey (Souris—Moose Mountain, Canadian Alliance): Thank you very much, Mr. Chairman.
I will have a question, but I'm sure that with our smaller numbers we'll each get more than one turn. I have two things, more or less as an observation.
I want to go back to your slide 4. Somehow, younger people—people younger than I am—get the idea that before 1960 there just weren't any of these things, this pollution and so on. Let me tell you that we need to revisit that so we don't get the idea that this is something that just spontaneously started.
• 0940
I'd like to refer to a situation in which I was
involved. We used to have about five or six times as
many farmers on the land, five or six times as many
tractors, and five or six times as much pollution going
in the air, and nobody thought anything about it.
What was worse than that, sir, was that the fuel that fired practically all the furnaces prior to the natural gas era was a high-sulphur coal out of southern Saskatchewan. I can well remember pollution in Regina, an air inversion with a really brownish cloud hanging over the entire city, yet nobody really thought anything about that in the 1940s and 1950s. This has been with us a long time, and I really appreciate your presentation, because it gives it chronologically.
The second point I want to mention—and I mentioned this with the biotech people—is that we're moving into an age with GMOs, as you know, where you have the biotech people and a lot of scientific data, but there's an emotional thing built up as well. I suggest to you that to some degree it is true with this agency, where people get very emotional about health concerns, the breathing and so on. A lot of fingers are being pointed at assessment and assessment agencies, accusations that are not necessarily based on scientific facts but rather on emotion, and this compromises to some extent the credibility of organizations such as yours.
Those are my two comments, Mr. Chairman.
The Chair: They were pretty short, I must say.
Mr. Connelly.
Mr. Robert Connelly: Thank you, Mr. Bailey.
Yes, I think you're quite right about how things have evolved over the years in terms of pollution controls and other measures, and as you correctly point out, environmental assessment has moved in that same direction.
With respect to your comment regarding emotional issues, certainly in our business we see people who have very strong convictions about a project. Sometimes that project may be in their backyard and may affect them very directly, and we understand the importance of incorporating that into whatever decision is taken about a project.
Also, another value of environmental assessment besides just the hearing some of those concerns is also the improving of awareness about the issues. I refer to the dialogue, the discussion that will occur through an environmental assessment that involves the public. In my view, this also assists in improving overall awareness about the actual effects, and it's potentially a win-win situation for all involved. Nevertheless, I know that at the end of the day decisions have to be taken, and not everybody will be happy with the ultimate decision that comes out.
The Chair: Thank you.
Monsieur Bigras.
[Translation]
Mr. Bernard Bigras (Rosemont—Petite-Patrie, BQ): Thank you, Mr. Chairman.
First of all, thank you for giving us this overview of the history of environmental assessment in Canada. I may have other questions for you about the act itself, but I will reserve them for other meetings. For the moment, I will focus on the history of the legislation.
I have two comments which flow from your concluding remarks. You pointed out how the scope of environmental assessment has expanded between 1970 and 1995 and you talked about public participation.
My first question is as follows. You stated that the 1974 Cabinet Policy applied to federal lands and to other areas of federal jurisdiction. You also stated that certain Supreme Court rulings - I'm thinking here about a 1992 ruling on the Oldman dam - assigned certain powers and recognized the sharing of jurisdictions.
What transpired between 1970 and 1994, particularly with regard to the Canadian Environmental Assessment Act, which resulted in the federal government having more power to intervene in areas that often come under provincial jurisdiction?
• 0945
Over the years, there have been changes. Can these be
attributed to Supreme Court rulings or primarily to decisions of a
more political nature?
[English]
The Chair: Mr. Connelly, are you sure you want to answer the first part of the question, or the second?
Mr. Robert Connelly: Thank you, Mr. Chair, and particularly for that cautionary note.
[Translation]
In answer to your question, Mr. Bigras, the Supreme Court ruling with respect to the Oldman dam determined that the environment was a shared area of jurisdiction. This ruling was crucial to the development of the environmental assessment process.
I'll be in a better position tomorrow to explain the process to you as well as the circumstances under which the act's provisions were implemented. One important factor was the decision to issue a license. Often in the case of projects of this nature, the provincial process applies as well. We often enter into agreements to ensure that only one assessment is done for each project.
Mr. Bernard Bigras: I haven't read the ruling. Was the federal government bound by the ruling to adopt such stringent federal legislation allowing for involvement in certain areas of provincial jurisdiction? Was there a legal obligation of some kind to adopt this legislation?
Mr. Robert Connelly: I'll ask my colleague Heather Smith to answer your question.
Ms. Heather Smith (Senior Counsel, Legal Services, Canadian Environmental Assessment Agency): The ruling concerned government guidelines. In essence, the court instructed the government on how to do its own work.
There was a major difference between Cabinet policies instructing the government and the 1984 guidelines. There was a few differences between the guidelines and the act, but the biggest change was really the guidelines.
The Supreme Court read the document drafted by the government. It found that these were imperative instructions and that under the Constitution, such instructions could in fact be issued to governments.
The Supreme Court did not say that the government was obligated to issue instructions, merely that it had the right to do so.
The Chair: Thank you, Mr. Bigras.
[English]
Mr. Comartin, please.
Mr. Joe Comartin (Windsor—St. Clair, NDP): Mr. Connelly, does your agency monitor what is happening with environmental assessment over this period of time in the U.S. and in other industrialized nations as well?
Mr. Robert Connelly: Thank you, Mr. Comartin.
We have kept abreast of developments in other countries. I think that was the point behind your question. I mentioned that the very first legislative process was in the United States and that we followed suit in Canada shortly after, not with legislation but with cabinet directives. We were one of the very first countries to initiate an environmental assessment process for ourselves. A lot of other countries around the world took considerable interest in what we were doing, in part because it offered a bit of a different model from the model that existed in the United States.
• 0950
Over that period of time, we now find there are
over a hundred countries in the world that have environmental
assessment processes. Many international
organizations, such as the Royal Bank, for example, also
have introduced the same concept in their funding decisions.
There's been quite a growth in environmental
assessment over the years in all of these countries,
frankly, many of them building on some of the
experiences we've had here in this country.
Mr. Joe Comartin: Are any other jurisdictions placing greater emphasis on issues like cumulative effects or public participations than Canada has, taking a different route on some issues like that?
Mr. Robert Connelly: You'll see quite a variety of approaches. With respect to public participation, obviously countries that do not have the kinds of democratic traditions that we have in Canada would have less, or would in some instances not make provision for public participation as we see it today in Canada and as we have become accustomed to seeing.
With respect to an issue like cumulative effects, we have incorporated that requirement in the Canadian Environmental Assessment Act. You will find that same requirement in the United States under their legislation. You will see a number of other countries that have introduced it, but some have not gone that far. Again, there's a fair bit of variety in approach.
Mr. Joe Comartin: What about at the provincial level in Canada? Have any of the provinces moved off in—Mr. Bigras wanted me to ask this question—any different directions, or have they followed the federal example?
Mr. Robert Connelly: The processes at the provincial level are essentially based on many of the same principles, but each of them is unique in a number of ways. They have different features. For example, some will traditionally hold more public hearings than others. In some provinces you don't see the public hearing process as prominent. To give you an example, some of the factors that are included or required to be included in an environmental assessment will be different from in the federal system. So you see variations there as well.
When we enter into cooperative agreements with provinces, though, as we often do to have joint assessments, what we look at is ensuring that the requirements of our act are met as well as those of the provincial governments. In effect, we are hoping to see a kind of additive effect, a raising of the bar to some extent, because the assessment must meet the requirements of both levels of government in that instance.
Mr. Joe Comartin: I have one question to follow up on that point, Mr. Connelly. Where we have done the joint assessments, we use the standards that are established at both the provincial and federal levels, is that right?
Mr. Robert Connelly: Yes. If, for example, there were another factor that a province might require that may not exist in the Canadian Environmental Assessment Act, the assessment would include that automatically, because the legal requirements of both processes must be met.
The Chair: Thank you, Mr. Comartin.
Before calling on other members on the list, we have the required quorum for a motion to deal with expenditures. Tonight the committee of infernal economy—I should say internal economy—is meeting and the clerk requires an increase, having calculated more carefully, to the amount already approved by this committee, which was $45,000, for the visit to Washington and for the meetings there with American parliamentarians. The amount that is now before us and is requested for the meeting tonight is $52,955. Could I inquire whether someone would entertain a motion to this effect so that we can pass it?
Mr. Rick Laliberte (Churchill River, Lib.): I so move.
The Chair: Thank you.
Are there any questions or comments? Mr. Comartin.
• 0955
Mr. Joe Comartin: I don't believe we've seen those increased numbers. Could we get a quick indication of where in the line items they went up?
The Chair: Yes. They were circulated by our clerk, but he can answer the question.
The Clerk of the Committee: Technically, we added another day. I misfired on the days.
The Chair: Monsieur Bigras.
[Translation]
Mr. Bernard Bigras: Therefore, we've added one day, namely Sunday.
The Clerk: Yes, for travel purposes.
Mr. Bernard Bigras: I see. I thought we'd be away from Monday to Wednesday.
The Clerk: That's correct.
Mr. Bernard Bigras: I know I have a caucus meeting on Sunday. I don't know about my colleague Mr. Herron, but I'm telling you as a point of information. Perhaps it might reduce expenses.
The Chair: We could leave Sunday evening. Most caucus meetings are held on Fridays and Saturdays, as a rule.
Mr. Bernard Bigras: That's not the case with the Bloc. I don't know about Mr. Herron, but it's possible other parties schedule their caucus meetings for Sundays.
The Chair: We'll bear in mind that some may have to leave later.
[English]
I have a motion by Mr. Laliberte. Are there any further questions or comments?
(Motion agreed to)
The Chair: Madam Redman.
Mrs. Karen Redman (Kitchener Centre, Lib.): Thank you, Mr. Chairman.
Your last slide, 15, would suggest that the science has improved behind environmental assessment. I was wondering if you could comment on whether this is true, and how this process has affected the environment generally.
Mr. Robert Connelly: Yes, thank you, Mrs. Redman.
The science has indeed improved. I think where we have seen some benefits to the environment in the link between the science and environmental assessment has been largely in the improved predictive capability, to use different modelling techniques to better predict the impacts in the environment and hence introduce improved mitigation measures. Mitigation measures themselves have improved a lot over the years. The example Mr. Bailey used of the coal-fired.... The atmospheric pollution that existed in Regina is not something we see visibly today because of improved technology and improved mitigation measures.
I think what has happened over the years, too, is that the public has had a much more profound role in environmental assessment than used to be the case, and is also a very knowledgeable public that is able to identify ways in which mitigation measures can be improved. That has helped the science as well.
Mrs. Karen Redman: Mr. Comartin already broached what was sort of happening internationally between 1970 and 1994. Have we monitored that, been able to learn lessons from things that may have worked or worked differently internationally? Has there been an eye on looking at that?
Mr. Robert Connelly: To some extent, but I have to admit that has been limited also, simply because of time and resources to do that, I guess.
One of the features of Bill C-19 that we think will assist in the future is an added requirement to conduct follow-up on major projects. The larger projects will, with Bill C-19, require a mandatory follow-up. The idea behind that is to try to learn by experience and to document that, then be able to share those experiences with other similar projects that will come about in future years.
I believe that not only here but also internationally we'll find that follow-up is an area that has been lacking in environmental assessment in the broader community worldwide, so we are proposing to take some positive steps in that direction in the future.
The Chair: Thank you.
Mr. Tonks, please.
• 1000
Mr. Alan Tonks (York South—Weston, Lib.): Thank you, Mr. Chairman.
Mr. Connelly, thank you for your presentation. I was amused by the illustration you used with respect to the first peoples elder. I guess that had quite an impact on improving also the best available science. I hope we still go back to our elders and try to tap into them—I understand we do—in terms of participation.
I also understand there was an evolution through the interpretation of court and Supreme Court cases as they applied to substance and process. That ultimately led to a codification, if you will, which was the Environmental Assessment Act.
My question—and it's along the lines my colleagues have already questioned you—is with respect to provincial and federal jurisdictions. The assessment process started as it pertained to federal lands and then spilled over into broader areas. Have any residual rights emerged, where a conflict might occur between provinces and the federal government, with respect to environmental assessment and the operation of the act? Have any unsolvable or irresolvable disputes come up where we had to go back to the courts to get an indication of who has ultimate authority?
Mr. Robert Connelly: Thank you, Mr. Tonks. You raise a number of interesting points.
I think in the early days, as was indicated, the assessment process federally tended to be limited to projects on federal lands, as you suggest—the north, airports, ports and harbours, those kinds of things. With the court cases, it was recognized that the authority under the guidelines order—and it was replicated in the Canadian Environmental Assessment Act—extended beyond that to allow permitting to trigger environmental assessment federally. So that occurred. That is where, perhaps more frequently, we have found ourselves in situations where a provincial environmental assessment process would also be triggered for the same project. What happens in practice is that generally, especially if we have a cooperative review with both governments working together, we have been able to solve some of the areas of disagreement.
In this whole area of environmental assessment, I think it is important to realize that considerable judgment has to be applied to the final conclusions. Understandably there will be differences of view as to what is appropriate. I can't think of any cases where we've not been able to sort out those conflicts. I don't think there have been many cases where there's been any question of our authority in a legal sense—in terms of a right to do an environmental assessment for the project. There have been some issues associated with whether the scope is appropriate or not for that particular review, but in terms of authority, I think the Supreme Court has really established that this is an area of shared responsibility.
Mr. Alan Tonks: I understand we're going to be receiving a presentation on the Environmental Assessment Act. I'm just trying to get a feel, Mr. Chairman, for the general trends leading up to this act. Would it be fair to characterize, where there were joint jurisdictions, that a sort of inherent, or “in-house”, if you will, third-party process of arbitrating and coming to a decision—as opposed to going to the court—has occurred, at the staff and official level if not the political level?
Mr. Robert Connelly: In terms of federal or provincial jusridictions, the first point of your question, we've not really had to resort to a third-party involvement in that type of thing. In the act itself, however, there is provision for mediation. There have been some problems associated with it in the act that have prevented its use as widely as we would have hoped.
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However, we are introducing some changes in Bill C-19
that we hope will make it a tool that can be used more
readily. In addition, we are introducing mechanisms
for alternative dispute resolution. If you had a
promoter, a developer, and perhaps some concerned
public on the other hand who have a real dispute, are
there ways of putting them together and trying to
resolve it involving a third party?
We've done some pilot projects in that area and found that there are some real opportunities for success there. It is our objective to promote the use of alternative dispute resolution more readily, in the hope we can find projects that can be designed to the satisfaction of all the parties and nobody then will resort to using the courts as a means of trying to solve the particular problem of concern.
Mr. Alan Tonks: It's a great challenge to do that but at the same time not violate the principles of natural justice that have permeated your process to this point, in terms of consultation and the right to have a say in the process.
Good, I'll look forward to seeing that as we go through the bill.
Mr. Robert Connelly: Thank you.
The Chair: Thank you, Mr. Tonks.
Mr. Reed.
Mr. Julian Reed (Halton, Lib.): Thank you, Mr. Chairman.
I'm always concerned about the cost of applying the act, inasmuch as the onus is always on the proponent. There are projects that are not necessarily large but do fall under the act, and when I hear of things like dispute resolution and so on I don't see lawyers lowering their hourly billing.
I wonder if you have had a look at cost studies showing the cost of applying the act as a percentage of the cost of the whole project, so that a proponent perhaps could either know this in advance and be able to budget for it; or whether, in some cases, there should simply be a class environmental assessment that would help to reduce the cost onus.
Mr. Robert Connelly: Thank you, Mr. Reed.
We've done some very rough investigation of cost. It seems to suggest—and I will put a lot of caveats on it to explain it—that the average might be a cost of about one percent of the capital cost of the project for environmental assessment. That's a very rough number. The reason why it's very rough is environmental assessment may apply to both small projects and very large projects in terms of capital cost. For a small project the percentage cost of the environmental assessment might actually be quite a bit higher than that, but for the larger ones it can be less, simply because of the large capital cost of the project.
Another factor that we find has made it difficult to break out the cost for environmental assessment is that often a developer will have to do certain engineering studies—soils testing and that kind of thing—and the question always arises, is this an environmental assessment cost, or is it a cost you'd have to incur anyway simply because you want to do the proper engineering design for your project? A lot of the costs get integrated into the actual cost of the design of the project and sometimes are hard to break out exclusively for environmental assessment.
Mr. Julian Reed: Would you support the concept of class environmental assessment for some projects that have similarities?
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Mr. Robert Connelly: Yes. I'm sorry I didn't pick that second point up. Yes, we have provision in the Canadian Environmental Assessment Act at the present time to develop what is called class assessments, class screenings, and we've introduced another change to promote that further. We think this is a good approach, whereby if you have developed a class, you would lay out for that type of project a kind of standard for mitigation measures you would want to follow. Then you could proceed very quickly, so the cost should be quite a bit less for the developer, and for the government too, for the review of it.
The Chair: Thank you, Mr. Reed.
I have two questions, Mr. Connelly. Would you comment please on the absence of crown corporations, on their being exempted from the application of the legislation that exists now, particularly those that act internationally?
Also, could you elaborate on the second and third bullets on page 15 of your presentation by providing us, if possible, some examples of the act including decisions by regulators? Who are they, and what are the examples? Would you do the same for the bullet that reads “From discretionary public participation to mandatory opportunities”, please?
Mr. Robert Connelly: Okay, there are a number of questions there. Thank you, Mr. Chairman.
First, with respect to crown corporations, the act at the present time provides for the development of regulations to bring crown corporations under the act. There are some improvements in Bill C-19 in terms of the regulation-making authority, but the concept of using regulations to bring crown corporations under the act is not changed in the proposed bill. To date, I might add, we have one regulation in place for Canada port authorities, who are crown-like in their administration. They are now under the Canada Marine Act, but we have a regulation for them. That is the present day status with respect to crowns.
The Chair: And on the Export Development Corporation?
Mr. Robert Connelly: The Export Development Corporation is proceeding with its own legislation. I believe that legislation is now at the Senate. That legislation would allow the Export Development Corporation to set up their own environmental review or environmental assessment process, and at the same time would exclude the application of the Canadian Environmental Assessment Act to those activities.
The Chair: So would it be fair to conclude that its own legislation does not meet the standards of the Canadian Environmental Assessment Act?
Mr. Robert Connelly: I don't think I could comment on that, because the legislation itself makes provision for the development of a framework, and I believe that framework is not completely developed at this point.
Your second question was with respect to the scope of application to regulators. Some examples of that would be regulators like the Canadian Nuclear Safety Commission and the National Energy Board. For example, at the moment we have a joint panel review with the National Energy Board of the proposed Strait of Georgia pipeline crossing from the mainland of B.C. to Vancouver Island. Regulatory bodies like the Canadian Transportation Agency would be another example. I think those are probably the main ones that come to mind, Mr. Chair.
• 1015
Your third question related to the third bullet,
“From discretionary public participation to mandatory
opportunities”.
I guess the most substantive change in that respect
was the introduction of what is called the
comprehensive study phase under the Canadian
Environmental Assessment Act. Prior to the
proclamation of the Canadian Environmental Assessment
Act in 1995, there were, essentially, two stages in the
process—screening, and review by an environmental
assessment panel. At the screening stage, public
involvement was discretionary; at the panel stage,
it was mandatory.
What has happened with the Canadian Environmental Assessment Act is that for these new projects that require comprehensive study, there's also mandatory public involvement in that stage of the process, so there's a mandatory requirement for a greater number of projects under the Canadian Environmental Assessment Act than was the case before. For screenings, that still remains discretionary.
The Chair: Thank you.
On the second round, Mr. Bailey, please.
Mr. Roy Bailey: Thank you, Mr. Chairman.
I'd like to get into the area of disputes within the provinces as they relate to environment, because I'm sure they're numerous across Canada.
On page 12 you mention the Rafferty-Alameda dam. This dam, at the present time, would get a five-star rating, which is very positive. What a difference 12 years makes, since this ruling came down.
I want to give you an illustration, but before I do, I want to go to what Mr. Reed had to say. Across western Canada we have a large number of hog barns and cattle operations being set up, and I have one of each very close by. The ability of the soil to hold water and the depth of the aquifer, etc., must, in the two provinces I've looked at, meet provincial environmental assessment. The federal government does not get involved with that. And I can assure you the cost goes not to the assessors, but rather to those in the construction.
I want to give you a current example, because I'm very concerned about this. I wouldn't ever want to see a provincial government, through a crown corporation like Saskatchewan Power Corporation, not paying attention to their own environmental act. I'm not saying that's the case, but I can see conflict within a province.
For instance, say it's necessary to run a large hydro line north, and to do that, of course, you go back to the old age when power first came into the rural areas—everybody wanted the power, but they wanted the power lines on the other guy's land. Now, they have designed one route, and it's the most feasible, the most economical, but those opposing the route are using the provincial environment act because of species, lumber, and so on.
Is there any time in a dispute like this where you have the citizens trying to use the provincial environment act against a provincial crown corporation? Does it ever go back to your assessment group to intervene, or would you be reluctant to do so?
Mr. Robert Connelly: Thank you, Mr. Bailey.
The example you used, I think, based on the way you described it, probably would not have a federal decision associated with the project; hence, it is unlikely the Canadian Environmental Assessment Act would apply to that particular project. I'll explain on Thursday in a little bit more detail what triggers the Canadian Environmental Assessment Act.
Very briefly, it would be a federal department that is a proponent, a contributor of money—in other words, federal funding will trigger the act—federal permits, and a situation where there is a transfer of federal land to enable a project to proceed. If none of those applied, it would be unlikely the Canadian Environmental Assessment Act would apply to the project and hence unlikely that we would intervene. The public concern alone in that kind of a situation would not be sufficient to involve the federal government.
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Mr. Roy Bailey: I have one last comment. It might interest you to know that in the opposition they make reference to the Rafferty-Alameda dam. The difference, of course, is that those are international bodies of water and therefore it is mandatory under that particular federal act.
I've tried to say that the federal government did not get involved in the environmental portion of those dams. I don't want to tell you what they said to me on the phone. I was wrong, but I knew very well in my heart that I was correct in that.
I can see the difficulty and I appreciate your answer, and I look forward to that coming up too.
The Chair: Thank you, Mr. Bailey.
Mr. Bigras.
[Translation]
Mr. Bernard Bigras: Thank you, Mr. Chairman.
Still on the subject of the environmental assessment process, you stated that the provinces are now subject to certain federal requirements. I'd like to talk about that and about the situation in various provinces, specifically in Quebec. It should be remembered that Alberta, along with Quebec, were leaders in the field of environmental assessment prior to the passage of the Canadian Environmental Assessment Act.
Let's focus for a moment on requirements and criteria. In your closing remarks, you referred to public participation. In your opinion, is the consultation process engaged in by the Bureau d'audiences publiques sur l'environnement, or BAPE, a process that meets federal requirements, more inclusive in terms of public participation than the federal process?
I'd also like to talk about transparency and independence. Quebec's environmental assessment process, which is based on public participation, does not rely on self-assessment, whereas the Canadian Environmental Assessment Act, as I understand it, makes provision for departments to assess their own performance in this area. In terms of transparency and independence, would you not agree that the provincial process is considerably stronger than the federal process?
In my opinion, Quebec's process is to some extent far less exclusive than its federal counterpart. In essence, how many projects are subject to an assessment? Different types of assessments can be ordered, ranging from a preliminary assessment to more in-depth studies. What percentage of all projects are the focus of an in-depth environmental assessment? One per cent? Two per cent?
Mr. Robert Connelly: You've asked several questions, Mr. Bigras. The last one concerned the number of projects. Some 5,000 or 6,000 projects are subject to the federal assessment process. Likely less than one per cent are the subject of an in-depth study or a study by an environmental commission.
I can tell you that as a general rule, each province has its own environmental assessment system with similar principles. I can't say if one system is better than another, or even begin to compare the provincial processes with the federal one. They are often different.
If there is a decision to be made at the federal level, a prior assessment must be done. We have every means available to us to cooperate with the provinces on an assessment, if in fact they are interested in cooperating.
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Mr. Bernard Bigras: When we examined the Endangered Species Act, we were told that this act would not apply if provincial legislation or a provincial process was in place that complies with the federal guidelines. In your opinion, does the process followed in Quebec comply with the federal environmental assessment requirements or do you feel the public isn't consulted enough or that the approach isn't sufficiently independent or transparent?
You say that there are federal environmental assessment principles. Does the Quebec process comply with these federal principles?
Mr. Robert Connelly: I can't answer because it depends on the project. Obviously, the federal process will assign considerable importance to areas under federal jurisdiction, such as the fishery, shipping and aboriginal peoples. I don't know if the Quebec process has the same requirements.
Mr. Bernard Bigras: One good example is Leamy Lake. It is located on Crown land owned by the National Capital Commission. One of the species inhabiting this environment is on the Quebec list of endangered species. A federal environmental assessment was conducted and, to all intents and purposes, the project was given the green light.
I have some concerns about the application of the federal act on federal lands and, to some extent, about whether the federal legislation is respectful of Quebec's endangered species legislation.
How do you account for the fact that the federal government takes the liberty of interfering in an area of provincial jurisdiction when it can't even comply with the provisions of its own statute in the case of federal lands? Do you not find this situation somewhat paradoxical?
Mr. Robert Connelly: All I can say about the Leamy Lake project is that it is still in the environmental assessment stage. To date, no final decisions have been made. It's always important to examine every single aspect of a project and to take into account provincial legislation, even in the case of endangered species.
Mr. Bernard Bigras: I have one final question, Mr. Chairman. In the case of Leamy Lake, to your mind, is the public consultation process comparable to what is being undertaken in Quebec for similar projects? Was the process followed comparable, in your opinion, to what the BAPE would have done had this project been planned for land not owned by the federal government? Wouldn't you say the consultation process was far less extensive than what the BAPE does in the case of projects that are far less environmentally sensitive?
Mr. Robert Connelly: To answer your questions, let me use a public commission as an example. When such a commission holds public hearings, the process is similar to that engaged in by the BAPE. The two bodies are really very similar. Several years, we organized several public hearings jointly with the BAPE and found that our procedures were very similar.
The Chair: Thank you, Mr. Bigras.
[English]
We'll have Mr. Comartin, followed by Madam Redman.
Mr. Joe Comartin: Mr. Connelly, this may be more to do with what we're going to do on Thursday.
Were you aware of any critical assessments of the process up to this point? This would include existing legislation based on actual case studies of some expert or some author who had taken a number of the cases we've been through up until 2000 and assessed them and pointed out where there may be trends and where those trends should be reversed by the amendments. Do you have any idea of any study like that?
• 1030
Mr. Robert Connelly: Perhaps I can ask a question for clarification, Mr. Chairman.
Are you referring to internal studies that have been done, Mr. Comartin?
Mr. Joe Comartin: No. I'm looking for an academic or perhaps somebody in an environment group who's done these kinds of studies.
Mr. Robert Connelly: There are actually quite a few that have been done over the years. What we find is that a very large project often will be the subject of academic interest, and you will see research papers prepared on those kinds of things.
There is a fairly recent book that has been published by an author by the name of Stephen Hazell. As I think about it, it is one of the most recent and comprehensive books that looks, again, at the evolution of the environmental assessment process. Stephen Hazell was very much involved in the Rafferty-Alameda project, for example, and he has looked at the changes over the years and has commented on certain projects as well.
Also, Mr. Comartin, we did have a review that was begun in 1998 by the Commissioner of the Environment and Sustainable Development—it was Brian Emmett at the time—who issued a review of the application of the act in the report in 1998, if I recall. And then there was a follow-up in the year 2000 to come back to see if we collectively had implemented the recommendations the commissioner had made in the first studies. I think that document makes reference to other evaluations and studies as well.
Those would be a couple of sources that I could think of to respond to your question.
Mr. Joe Comartin: That's all, Mr. Chair.
The Chair: Madam Redman, please.
Mrs. Karen Redman: Cognizant of the fact that we're dealing right now with the period of time between 1970 and 1995, can you speak a little about the changing expectation of Canadians to know the kind of information we deal with in the Environmental Assessment Act? I'm not thinking specifically of the participation, whether it's a panel review or what type of review it actually entails, but I'm thinking of the general population wanting to know the kind of information Mr. Bailey was referencing earlier.
Mr. Robert Connelly: My view, Mrs. Redman, is that there are increasing demands on the part of the public to want to understand what the proposed project is all about and how it might affect not only them directly, but also how it might affect a broader environment they may be interested in.
I think over the years I've seen very much an increased demand for that kind of information, an increased interest in getting involved in looking at projects. Environmental assessment is indeed the process that is used to allow for the public to become engaged in some of those initiatives.
I've also found that the public is much more informed and much more aware of potential impacts than used to be the case when I first became involved in this kind of business. That's very positive as well, because an informed public that participates in a review process I believe will assist government in making better decisions. I think that's been a very significant evolution over the years.
Mrs. Karen Redman: It would be interesting to track the frequency of articles, whether it's Newsweek or Maclean's, that deal with these kinds of assessment issues and impacts of the environment. My guess would be that they have greatly increased and they are much more in the broader general public knowledge base than they used to be.
Mr. Robert Connelly: I would think so. I don't think we've ever done that, but I would guess that would probably be the case, all right.
The Chair: Mr. Tonks, please.
Mr. Alan Tonks: No, I'm fine. Thank you, Mr. Chairman.
The Chair: Mr. Reed.
• 1035
Mr. Julian Reed: In the natural progression of things, obviously this is a work in progress. We've brought it up to this point and we're moving on.
You talked about the increased need of the public to understand what's happening. In light of Mr. Bailey's comments about the use of public participation for frivolous or unjustified means, would it make sense to invest in the public some area of responsibility, in terms of what they might bring to the table? In other words, if they bring a series of frivolous charges in order to simply delay or hopefully throw out something, for motives that don't relate to a project directly, should there not be some semblance of responsibility in the public?
In the Ontario structure, there's a line in there that any person can stop a project, and they carry with them no personal responsibility. It could cost the proponent another half a million dollars to shut a project down while the thing is being resolved, but if it turns out that the charge is frivolous, that person would bear no financial onus.
Mr. Robert Connelly: I'll respond, Mr. Reed, with a couple of comments.
Historically, the public has often had a challenge, in terms of trying to get involved often enough in environmental assessment. Over the years governments have made it easier for the public to participate. However, I'm not aware of any consideration that has been given to trying to prevent the public from having that role, if their reasons for becoming involved are frivolous. We try to examine the nature of the comments and the input the public makes and factor them into the decision-making process. To date, we have not really looked at those possibilities.
Mr. Julian Reed: I don't want to belabour this with a long, drawn-out anecdote, but I had an experience with a proponent who got all his approvals, did everything properly, and began the construction process, only to have it shut down for six months. It practically bankrupted him. The two people who were able to persuade the Minister of Natural Resources, in this case, to shut the thing down while they got it sorted out walked away scot-free.
I agree with public participation and public awareness, but it seems to me there should be some public responsibility too.
Mr. Robert Connelly: I understand where you're coming from with the question. But I don't believe we have really looked at that issue of potential abuse and what, if anything, one could do to prevent it.
Mr. Julian Reed: Thank you.
The Chair: Thank you, Mr. Reed.
Mr. Connelly, let's go back to crown corporations and expand the topic to include commissions. Does the National Capital Commission have a set of regulations on environmental impact assessment? If so, are you satisfied they are up to standards?
• 1040
Mr. Robert Connelly: The National Capital Commission is a crown corporation. It has its own internal review process. At the moment it is not subject to the Canadian Environmental Assessment Act. There is a commitment by the minister, in the report to Parliament, to advance the development of regulations for crown corporations. I think the National Capital Commission would be looked at very carefully, for the possibility of a regulation in the Canadian Environmental Assessment Act.
The Chair: Does the current set of regulations of the National Capital Commission compare favourably with the existing federal act?
Mr. Robert Connelly: I believe it's a guidance or policy type of document. I don't think it is set up under a set of regulations, from my recollection. I don't believe we have done an evaluation to reach a conclusion on the comparability of the two, so I really couldn't comment on that.
The Chair: Touching upon the issue of Leamy Lake, which apparently the National Capital Commission wants to sell or make available to a group of philanthropists interested in the promotion of lotteries, has the NCC done anything publicly to involve the population?
Mr. Robert Connelly: I'm not aware of details of their public involvement program, other than through occasional articles I've read in the newspapers. But the Canadian Environmental Assessment Act is triggered for that project because an authorization is required under the Fisheries Act. So the responsible authority, in other words, the federal decision-maker for that particular project, is the Minister and the Department of Fisheries and Oceans. That's why the act is applied there.
The Department of Fisheries and Oceans have just recently, I believe, released their screening document for public review. There has been no decision taken, at this point, as to whether this is the type of project that should be subject to an environmental assessment panel hearing process.
The Chair: How would you go about invoking the Environmental Assessment Act in this particular case? Would you invoke it, first of all, and if so, how?
Mr. Robert Connelly: The act would be invoked because if the project proceeds as planned it would lead to the destruction of fish habitat. I also understand there are some endangered or threatened species there. I think the western chorus frog and some plants would be threatened. But the assessment conducted by Fisheries and Oceans would be triggered because of the potential for this project to enter into the waterway and affect fish habitat.
In the conduct of the assessment, Fisheries and Oceans would look at all the potential impacts associated with the project before reaching a decision on whether or not to allow for the authorization of habitat destruction. It's possible—and no decision's been taken—this is the kind of project that could require a review by an environmental assessment panel. That decision could be taken either by the Minister of Fisheries and Oceans or the Ministry of the Environment.
The Chair: Under which section?
Mr. Robert Connelly: There are a few sections under the act where this could be triggered. There's section 20, I guess, because it's at a screening right now. It's also possible that it could be triggered by the minister under section 28.
• 1045
The Chair: Mr. Connelly, in a perfect world, which, as we all know, hardly exists, would you see merit in bringing crown corporations and commissions under the assessment act?
Mr. Robert Connelly: I think I will refrain from commenting on the perfect world, but I would point out that some crown corporations, or at least their projects, are subject to the act, often through other triggers. The example I gave you of the National Capital Commission and Lac Leamy is one of those. It's the Department of Fisheries and Oceans that triggers the process.
You will find also that most projects that are initiated by the crown corporation Atomic Energy of Canada Ltd., for example, are also subject to the act, simply because they must get a permit from the Canadian Nuclear Safety Commission before proceeding. So the Canadian Nuclear Safety Commission will trigger the act to require an assessment before the granting of their licence or permit to AECL. We find that some, but admittedly not all, projects of crown corporations are subject to the act at the present time, the intent being to move forward in the future to bring more under the act through regulations.
The Chair: Finally, Mr. Connelly, since the inception or proclamation of the act, what is the record in terms of decisions coming down on the side of the applicant who proposes a development versus decisions coming down on the side of the public opposing a development? Roughly what would be the breakdown?
Mr. Robert Connelly: I guess I'd have to respond by saying that most of the projects that go through the environmental assessment process tend to get modified as they go through. It's often a very iterative process that way. I'm now talking about the larger projects, because those are the ones that the agency would see more frequently.
A lot of the very smaller screenings are entirely managed by the responsible authority, and we often do not become aware of those until a decision might be made.
On the large ones, what happens customarily is that the proponent will come forward with their environmental assessment documentation, and through the environmental assessment process, often enough the project will change, it will adjust, the mitigation measures will adjust, so at the end of the day the project that is approved to proceed is one that very frequently is a better project as a result of having gone through the process. That's the kind of thing we see occur on a regular basis.
As to whether it more in favour of the public or the developer at the end of the day, I don't think I could really answer that, but it inevitably results in changes, some of them sometimes pretty significant.
The Chair: Could you supply the members of this committee with a breakdown on the decision record since the inception of the bill, indicating what ultimately was the nature of the decisions, so that we have an understanding as to the operative impact of the legislation itself?
Mr. Robert Connelly: Let me say, first of all, that there are about 5,000 to 6,000 projects per year that go through the environmental assessment process, so that would be difficult to do because of the number. We could provide you with information on the larger projects, those that have gone to the panel stage and those that are subject to comprehensive studies, but perhaps I could ask you again if that would be helpful.
• 1050
The Chair: The legislators or the parliamentarians who are going to investigate and study Bill C-19 clause by clause would like to know the operative impact of the legislation and the trend in the final results emanating or flowing from the application of the legislation. No one would expect, of course, to examine 6,000 applications a year, but definitely there must be trends that you are able to identify, and these are the ones that we would find extremely helpful, if you could put those trends on paper for us so that we understand in which way the main thrust of the legislation is operating and moving.
Mr. Robert Connelly: We could look at some of the larger projects, Mr. Caccia, and illustrate the trend. I think it will show a trend, such as I have indicated, of improved mitigation and changes through the process of environmental assessment.
The Chair: Yes, that's fine, and that's fair enough, but we would like to know at the end of the day in which direction the law is ultimately working. Could you do that?
Mr. Robert Connelly: Yes, we will get some information on the larger projects for you.
The Chair: That would be very helpful, Mr. Connelly.
We'll have a third round, if there are any more questions. Are there any more?
Mr. Comartin.
Mr. Joe Comartin: Just to follow up on that last question, one of the difficulties I've had with the legislation, Mr. Connelly, is trying to figure out how you screen off the smaller projects, which are the vast majority. We're dealing with 25,000 to 30,000 applications since the inception of the act. If there's some way in this assessment, when you bring it back to us, you can explain what happened to those, how they were screened off, some overview of them....
I'm not looking for a lot of detail. Just give us some explanation on Thursday as to how you screen those off from going on to a panel.
Mr. Robert Connelly: Would you like me to wait until Thursday?
Mr. Joe Comartin: Yes, because that's really part of what that briefing is about—
Mr. Robert Connelly: Okay, I will.
Mr. Joe Comartin: —but a sense of what those numbers are as well, how many, to follow up what the chair was asking.
Mr. Robert Connelly: Yes, I will incorporate specific numbers of projects. We have those statistics in the presentation.
Mr. Joe Comartin: Thank you.
The Chair: Thank you, Mr. Comartin.
Then we would like to conclude. Thank you very much, Mr. Connelly, Madame Smith, and Mr. Clarke, for your appearance today and for the very fine presentation. We look forward with great eagerness to our next meeting on Thursday.
This meeting is adjourned. Thank you.
