ENSU Committee Meeting

STANDING COMMITTEE ON ENVIRONMENT AND SUSTAINABLE DEVELOPMENT

COMITÉ PERMANENT DE L'ENVIRONNEMENT ET DU DÉVELOPPEMENT DURABLE

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, October 28, 1997

• 0910

[Translation]

The Chairman (the Hon. Charles Caccia (Davenport, Lib.)): Ladies and gentlemen, we are resuming our work pursuant to Standing Order 108(2). Our witness today is Mr. Dave Bennett, National Director, Health, Safety and Environment with the Canadian Labour Congress.

[English]

We welcome you to the committee, Mr. Bennett. We would like you to make a ten-minute presentation, please, followed by questions. We are very glad you were able to come.

Mr. Dave Bennett (National Director, Health, Safety and Environment, Canadian Labour Congress): Thank you, Mr. Chair. I too am very pleased the Canadian Labour Congress has been given the opportunity to talk with the committee on a matter of very central environmental concern, one which, so far as I'm aware, the committee has not directly addressed, if it has addressed it at all, over the past three to four years. The issue in front of us in fact is crucial to the environmental health of the whole country.

My name is Dave Bennett. I'm the national director of health, safety, and environment for the Canadian Labour Congress. I'm giving the presentation on behalf of Dick Martin, who is the secretary-treasurer of the CLC and who is the officer responsible for health and safety and environmental protection.

I'm sure the committee will appreciate we haven't had the time to prepare a proper submission, properly translated. I'm giving you a verbal presentation, but I'm also giving you a transcript of the verbal presentation for your record.

The process of environmental harmonization in Canada was legitimized by the agreement on internal trade, 1994, chapter 15. That chapter is concerned with environmental protection, and it contains provisions that are stronger than or diametrically opposed to the equivalent provisions in the North American Free Trade Agreement.

On harmonization, the parties to the agreement “shall not” through harmonization lower the levels of environmental protection. Under article 1509, while the Canadian Council of Ministers of the Environment is empowered to facilitate the harmonization process, it was not given any mandate to act as the executive body for the generation of national environmental standards. In both these respects the harmonization process and the resulting draft agreements violate the spirit and quite possibly the letter of the agreement on internal trade.

The federal government's interest in environmental harmonization is twofold. The first is fiscal. Government funding and provision for environmental protection would drop as a result of harmonization. This was made explicit recently with the announcement that a further 200 jobs would be lost from Environment Canada. The Deputy Minister of Environment stated that fewer resources would be needed as a result of harmonization.

The second factor is the government's policy of decentralization and the devolution of federal powers. Environmental protection was among several areas where the federal government would devolve as much power and authority as possible to the provinces and territories. This policy of devolution is perhaps less evident now than it was before the last election, but what impact this will have on the government's intentions with environmental harmonization is not clear.

We have to realize just how much the federal government is prepared to give away; and “give away” is the operative term, because no strings will be attached in terms of the proper administration and enforcement of federal law, nor any federal standards of compliance beyond those negotiated under the CCME Canada-wide environmental inspections subagreement.

Under the CCME environmental standards subagreement, section 57, the jurisdiction and the authority of the federal government are not recognized. Its role is confined to the implementation of environmental measures, and then only on federal lands or at international borders. The only area where the federal government will implement Canada-wide standards is over products and substances. For instance, the notification of new substances regulations under the Canadian Environmental Protection Act concerns the testing requirements for new chemical products. The national pollutant release inventory, the NPRI, is based on a list of substances. These two areas are virtually the only ones in which federal authority is not to be surrendered to CCME.

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This is confirmed when we look at the role of the provinces. The provinces are to implement measures requiring action from industrial sectors to attain an agreed-upon, Canada-wide standard. In other words, the CCME will generate the standards and the provinces will implement them.

In all this, the need for proper environmental protection measures across the country has never figured in the federal government's reasoning or motives.

The environmental harmonization project has two distinct themes—the devolution of federal powers and the harmonization or equivalency of federal, provincial and territorial environmental laws, regulations, standards and measures.

Under the first of these, devolution of federal powers, federal programs such as the toxic substances management plan will become interprovincial programs, at least in regard to their implementation and probably in their development as well. The key effluence control regulations under the Fisheries Act covering, for instance, mines, pulp mills, and refineries will also likely be handed over to the provinces under the terms of the standards and inspections subagreements.

From the draft environmental assessment accord, federal environmental assessments will be confined to those on federal lands. Assessments of projects crossing provincial borders, those of national or international concern, will no longer be conducted by the federal government. The surrogate for a national standard of environmental assessment will be those standards developed under the auspices of the Canadian Standards Association, the CSA.

I believe it is important that the committee understand the nature of CSA policy standards. These are formal and procedural only. They have no policy content. They do not set any tangible standard of environmental assessment that could, for instance, be compared with those of other countries. Once again, the formal and procedural rules developed by CSA will become a feeble substitute for environmental assessment policies with teeth. Environmental assessment will be reduced to a formality, where the only concern is whether the procedures constitute a barrier to trade.

The second theme is harmonization itself. With federal powers suitably devolved, it will become the responsibility of the provinces to adopt and implement environmental rules through CCME. Many of the provinces are cutting their environmental protection departments at least as deeply as Environment Canada, and they are busy eroding, destroying, or otherwise neutralizing their own environmental regulations. Manifestly, they are unwilling or unable to properly enforce their own rules, let alone the additional ones acquired from the federal government.

To put it bluntly, several provinces have no interest whatever in harmonization. They are interested only in the acquisition of federal powers, which they then have no intention of exercising.

With devolution and the bankruptcy of true harmonization, all pretence of national environmental standards will disappear, and the Canadian environment will suffer from both episodes of destruction and gradual decay due to the de facto disappearance of environmental standards.

The Canadian Environmental Protection Act, when it comes up for renewal, will be a dead letter, a formal device for handing over the rules and their implementation to the provinces. All the work that this committee has put into pollution prevention will become void, a shell game in every sense of the term.

Instead, Canadian environmental protection will be in the form of a series of CCME agreements, which this committee does not scrutinize. Of the dozen or so proposals and draft agreements that CCME has produced over the past three years, I doubt whether any one member of this committee has seen all of them, and as far as I am aware, they have never been the subject of this committee's deliberations.

I hope, therefore, this committee will recommend to the government that the harmonization accord and its subagreements will be scrapped and the whole process be started over again, according to the aspirations of the Agreement on Internal Trade.

Finally, I would like to suggest to the committee that there is indeed a way of securing effective environmental harmonization in ways that respect the rights of the provinces as well as the federal environmental authority. This concerns pollution prevention, a topic of immediate as well as historical concern to this committee.

Currently, federal policy over pollution prevention is substance-driven. The policy applies to a list of substances that are to be the subject of pollution prevention measures and planning in the workplace. Instead, the CLC proposes that pollution prevention be workplace- or jurisdiction-driven. By this I mean that the federal government would require pollution prevention planning for workplaces within its jurisdiction, roughly those federally regulated industries covered by the Canada Labour Code. Workers' health in the work environment would then be an explicit part of pollution prevention measures, except that in Bill C-74, the old bill to revise CEPA, pollution prevention measures are to apply to a very limited number of substances. The CLC proposal is compatible with proposed section 9 of Bill C-74.

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The provinces would each enact their own pollution prevention laws. A uniform national standard of pollution prevention is secured by a federal tax on toxic chemicals. An appropriate share of the revenue would be handed to those provinces and territories that had enacted a standard and produced a compliance plan at least as strong as the federal standard. This scheme cannot guarantee a standard like that of the federal notification of new substances regulations or the NPRI, but within the limits of the Canadian Constitution it does as much as possible to secure an effective national program of pollution prevention. The alternatives are not only inferior, but I hope the committee will agree they are likely to be disastrous for the Canadian environment.

The Chairman: Does that complete your presentation, Mr. Bennett? It was certainly thought-provoking, to put it mildly.

I wonder whether Mr. Casson is ready to start with questions.

Mr. Rick Casson (Lethbridge, Ref.): When you talk about the possibility of harmonization between the federal and provincial governments causing a problem in the workplace for workers, is what you were leading to here that the power to handle toxic substance and to take care of the process is going to be left to the industry or to the employer? Is that what you said?

Mr. Dave Bennett: First of all, I would like to say that workers have a twofold interest in environmental protection. One is the protection of the environment, which is our environment, which is the health of our communities. But the second is the work environment itself. The thrust of pollution prevention is to protect both the work environment and the external environment, and the health of communities outside the workplace.

Our concern with the harmonization project is a general lowering of environmental standards under the guise of harmonization. And what I've tried to do is to point out that the devolution part of the exercise and the harmonization part of the exercise are not likely to protect the Canadian environment. They are likely to result in a severe erosion of environmental standards.

The alternative we are proposing is a scheme that respects both federal and provincial authority over the environment, but it's conducted in such a way that pollution prevention planning protects both workers inside the workplace and the external environment and the health of communities.

Mr. Rick Casson: I'm having a little trouble with the devolution of powers myself. The idea of harmonization is to streamline to get rid of overlap and duplication. People have had trouble showing where overlap and duplication does occur. But when we're putting the powers out to the provinces instead of the federal government—and everybody has seen this as a problem—can you be more specific about why you think this would create a lowering of standards and less awareness of environment?

Mr. Dave Bennett: The first point to make is that under the draft agreement so far there is only a provision for devolution, there is only a statement of what the federal and provincial powers over the environment will be, and when we've seen proposals for devolution we have to see them in the context of the question of how will the Canadian Council of Ministers of the Environment treat the federal rules, programs and regulations that then become an interprovincial responsibility. And as far as we can see, there is no answer to that question, because there is no contract, as it were; there's no contractual guarantee that the provinces will enforce these federal regulations according to federal standards.

• 0925

There is also the suggestion—and it's only a suggestion or an implication—in the draft agreements that the provinces will then be responsible for the further development of these regulations.

When you see the way in which harmonization has been conducted, the way provinces conduct themselves over their own environmental rules, I think there is no reason whatever for believing that key provinces have any interest or any capability of enforcing the regulations that are devolved to them. They are busy deregulating themselves. They are busy eroding or destroying their own departments. They are manifestly unable to handle their own regulations, never mind the additional sets of regulations and measures and programs that will be handed over to them.

I'd like to suggest to the committee—and only suggest—that it look at the successive reports of the Auditor General on the mining effluent regulations under the Fisheries Act. The Auditor General reported on these regulations over a period in the late 1980s and the early 1990s and he pointed out that successively the degree of compliance for these key regulations was in an unsatisfactory state. Then very suddenly, in the early 1990s, the reports on the mining effluent regulations ceased. It's a matter of speculation that one reason for this was that in some jurisdictions the responsibility for these regulations had been handed over to the provinces and the Auditor General was then unable to determine what the degree of compliance was.

It seems, both from the wording of the harmonization draft agreements and from the announcement made by the deputy minister over the Environment Canada cuts only a few weeks ago, that these key regulations will be handed over or devolved to CCME. If the federal government's own compliance record for these was very questionable, how much worse will it be when the federal government loses all control over these regulations? As I say, there is no indication whatever that these will be handed over in the form of a contractual agreement whereby the provinces are required to enforce the regulations and to produce a compliance plan saying exactly what level of compliance they will go for in administering the regulations.

The Chairman: Thank you, Mr. Bennett. Mr. Jordan, followed by Mr. Stoffer.

Mr. Joe Jordan (Leeds—Grenville, Lib.): Thank you, Mr. Chair.

Mr. Bennett, I think it's quite appropriate that you're here, because I, in a former life, have done some health and safety stuff as well, and it seems to me that what's gone on in the area of health and safety in industry and in the workplace is a kind of microcosm of what we're talking about now in terms of environmental regulation for Canada and indeed the world. Is it your experience—because we're talking about different options and talking about co-operating and talking about voluntary enforcement measures and things like that—that there's a direct correlation between credible third-party inspection and enforcement and compliance? Is there a track record to show when the economic costs of regulation appear to be or are in direct conflict with the health and safety of the worker?

Mr. Dave Bennett: I think what the hon. member has raised is a difficult question, because the regimes established to administer health and safety are rather different, both in their origin and their content, from environmental protection. The key factor in the administration of health and safety is worker involvement, trade union involvement, committee involvement in the administration of health and safety in the workplace. It's not the only factor, but the trend we have noticed is that unless the jurisdiction of the government concerned has a proper inspection system and a proper policy over the enforcement of health and safety law, then the co-operative ventures, the joint ventures in the workplace between workers and managers, cannot succeed. It can only succeed in the context of an effective administration, inspection and enforcement regime.

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This doesn't mean that the main way you get health and safety is through proper enforcement. It means that the whole system has to work properly. Both workers and employers need to have an incentive to do their jobs properly within the context of the workplace, and that context is supplied by an effective enforcement system.

The Chairman: Mr. Stoffer.

Mr. Peter Stoffer (Sackville—Eastern Shore, NDP): Thank you. It's a real pleasure to be here this morning. I have a couple of questions.

In one sentence you said environmental assessment will be reduced to a formality where the only concern is whether the procedures constitute a barrier to trade. You used the word “will”. I think that's giving the government credit. I think it's already happening. There are many examples in Nova Scotia where trade and deals had to come up. I refer to the Point Aconi project in Cape Breton, where an environmental assessment took only four hours on a major impact to farms and the fishing communities and all that.

My fear is that as the federal government reduces itself in terms of fiscal responsibility, a lot of things will be overlooked. I look at the example of the Sydney tar ponds. If you devolve the responsibility from the federal government to the province, at this time there's just no way Nova Scotia would be able to afford to clean that up. There are assessments of clean-up ranging from $20 million to $250 million, depending on who you speak to. My fear is that the federal government would turn around and say sorry, Nova Scotia, that's your baby; you have to clean it up yourself. Right now it is Canada's worst environmental nightmare, there in Cape Breton. In implementing devolution of environmental concerns, for the federal government to transfer it over to Nova Scotia would leave it up to the people of Cape Breton to handle. I think that would be disastrous for all of Canada.

I look at the example—-

The Chairman: Excuse me. That's all right, but could you please deal within the concept of the CCME proposal and possibly come to a question, Mr. Stoffer?

Mr. Peter Stoffer: I'm sorry. I was just sort of going round about it and ending with a question.

My question, Dave, is do you believe that if the government did transfer all concerns of environmental regulation over to the provinces, subjects like the tar ponds would be left for the provinces themselves to handle and thus would be even more catastrophic in terms of financial agreements to the provinces in order to have to clean that up?

Mr. Dave Bennett: Yes. I quite simply believe that to be true in financial terms, constitutional terms, and policy terms. The implication of the environmental harmonization accord is that the federal government's responsibility is confined to federal lands and to the administration of programs at international borders. The tar ponds would be outside the interest and the jurisdiction of the federal government, yes.

Mr. Peter Stoffer: Thank you.

[Translation]

The Chairman: Mr. Charbonneau, please.

Mr. Yvon Charbonneau (Anjou—Rivière-des-Prairies, Lib.): I would like our witness to comment on the following question.

I understood that the Canadian Labour Congress was very much opposed to the results achieved through the harmonization initiative. Are you more opposed to the results than to the principle? In other words, is your position based on the budget policy of certain major provincial governments, or certain specific measures introduced by certain governments?

Is that the reason you are opposed to the results achieved within the context of the harmonization initiative, or are you rather opposed to the principle—do you not see the point of such an initiative? I ask the question bearing in mind that in matters of the environment, it is always advisable to think globally and act locally.

So we have to think of environmental standards and approaches for the country as a whole, but we also have to consider how to apply them locally. Can we leave everything in the federal government's hands? I would like to hear what you think particularly about this issue. Is your position based on the particular circumstances? Is it the results or the principle itself that you oppose?

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[English]

Mr. Dave Bennett: That's a very good question. From what we've said and what we've argued, you can see that in principle we're not opposed to harmonization. If this resulted in effective national standards and proper protection for the Canadian environment, then of course harmonization is a good thing. We want uniform high standards as appropriate and as far as possible. If we could find a way of doing it through harmonization, that would be perfectly acceptable.

What is wrong with harmonization is not the principle, it's the way it is carried out. There are two salient respects, two major factors in contending that harmonization will not work. One is the devolution policy of the federal government, in the way that the federal government has pursued it. It has pursued devolution without, as far as we can see, any contractual guarantees that federal law and federal responsibility will be effectively exercised by the provinces.

The second problem is the actual process of harmonization. Even if we leave out the devolution factor, what does harmonization actually look like? Well, you've seen at least two highly industrialized provinces, namely Ontario and Alberta, ferociously deregulating their own standards.

Now, the hon. member's question was do we have any objection to the provinces running their own environmental show. Again, in principle the answer is no, but if the process of harmonization is being conducted in and through at least two provinces that have no serious interest in environmental standards, and manifestly no interest in harmonizing their standards with those of other provinces, I think it's only reasonable to say that this recipe cannot be good for the Canadian environment and it cannot be good for the environment within those provinces that constitute the Canadian environment.

Finally, I think what we've tried to do is to show that when you're looking at environmental standards, it depends on the issue. We say that in the key area of pollution prevention there is a very strong role for the provinces, but we also have to find some way of ensuring that there is a national standard and, as far as possible, a uniform, high national standard of pollution prevention. And the way we propose you do that is to levy a tax on chemicals at the federal level and distribute the revenue, as appropriate, to those provinces that meet the federal standard.

So there isn't any one formula for harmonization. It depends on the issue.

[Translation]

Mr. Yvon Charbonneau: Would you have any suggestions about how to put the harmonization process on a better footing, given that you do not seem to have anything against the principle, but rather against the result? Do you have any comments about the circumstances in which the harmonization is occurring in certain provinces? Do you have any suggestions about restarting the process on a new basis, one you feel could produce better results?

[English]

Mr. Dave Bennett: I think the first thing is to say that the devolution and the decentralization of federal powers must be left out of the equation, that this part of the harmonization exercise is thoroughly unsatisfactory. The best guarantee we have of maintaining national standards is the effective enforcement of the federal environmental authority across the country. So that would be stage one.

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With respect to stage two, I would ask the committee to look very carefully at the 1994 agreement on internal trade. I think the fact that the agreement on internal trade dealt with the environment is very little known in this country. It's quite possibly very little known to parliamentarians.

It may seem strange to see parties that are hostile to free trade agreements actually looking at and quoting the text of the agreement on internal trade on environmental protection, because what is said in that agreement is in fact very progressive. It demands high standards of environmental protection from all jurisdictions. It says the provinces and the federal government must not lower their standards in the process of harmonization. It says that provinces must not lower their environmental standards in order to attract investment.

There are many progressive features of that chapter on the agreement on internal trade. I am suggesting that if the governments that signed the agreement are serious both about the agreement and about environmental protection, they would restart the whole harmonization exercise according to the letter of what that agreement actually says, because the agreement itself not only demands high national environmental standards, it also lays down a process whereby harmonization shall be achieved. And I'm suggesting that in neither of these respects have governments honoured the terms of the agreement on internal trade.

[Translation]

Mr. Yvon Charbonneau: Could committee members get copies of the Agreement on Internal Trade of 1994 that was mentioned, particularly the chapter on the environment, so that we could better understand the issue? Could you table this?

The Chairman: Of course, if this is an official document, we could get it.

Mr. Yvon Charbonneau: It is called the Agreement on Internal Trade, or something like that.

The Chairman: We will look into it.

Thank you, Mr. Charbonneau.

[English]

Thank you, Mr. Bennett.

We will hear from Mr. Bigras now, followed by the chair, unless there are other members who wish to intervene on the first round.

[Translation]

Mr. Bigras, please.

Mr. Bernard Bigras (Rosemont, BQ): I would like to come back to the question raised by Mr. Charbonneau about the principle and the results of the initiative. Do you not agree that the current situation has resulted in increased costs for taxpayers, given that the system funds both the federal government and the provincial governments on environmental issues? Do you not agree as well that this situation has resulted in higher costs for the private sector as well?

In order to solve the problem, should the provinces that are able to, assume this responsibility, which would include a transfer of resources as you have just described? Earlier, you said that it was illusory to have the harmonization agreement if the provinces didn't have the tools they needed. I would like to know whether you see a transfer of funds as one of these tools.

[English]

Mr. Dave Bennett: First of all, my response is not to talk about fiscal problems, not to talk about budgets and not to talk about economic reality. We first of all should be talking about the objects of environmental protection. What do we need, deserve and demand for environmental protection standards for Canada? Once we've done that, we then have to look at the financial reality, and then at the proper division of responsibilities of the federal government vis-à-vis the provinces and the territories.

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What has in fact happened is entirely the other way around. People have looked at fiscal targets—and there is no objection to people being concerned with fiscal responsibility, but they first looked at the fiscal targets and then looked around for which departments to cut and to what extent. And in the federal jurisdiction, Environment Canada has been particularly hard-hit.

I'm suggesting this is entirely the wrong approach to take. You first of all say what standards, measures, and programs we need for Canada, then you look at the administrative responsibilities, and then at the fiscal realities. The reason that we are now facing the gradual, in fact in some ways rapid, erosion of environmental standards across Canada is that governments have looked first of all at the fiscal realities. They've looked very skeptically at the role of government instead of asking what environmental protection measures we need. So they've looked at their own views of government, they've looked at fiscal reality, and then they've turned around and said well, what then can we afford, or what are we going to afford, in terms of environmental protection?

And even then, arguably, they're making the wrong decisions. If you look at the cuts recently announced by Environment Canada, they are cutting precisely in those areas that do the most to protect the Canadian environment. So I would say your sentiments are well founded, but the fault is with governments, abetted by business and industry, who have distorted their environmental priorities.

[Translation]

Mr. Bernard Bigras: I think we need a multisectoral approach, not a single approach to solving problems. That is my position.

Don't you think the current situation has resulted in two systems, both of which are full of holes. Would it not be preferable to have a single system, both in the interest of economies of scale and for financial reasons, a system that would help us get out of the current situation?

[English]

Mr. Dave Bennett: It seems what you're saying is that we have at least two systems of environmental protection in Canada, but there are holes in both of them, so the net result is a gap in environmental protection in the whole country.

As to the first of these, very often the contention that we have too much duplication in Canada reduces simply to the contention or the fact that both the federal government and provincial governments have environment departments. But that doesn't mean they're both in the business of doing the same thing. Quite clearly there are some federal programs that the provinces simply don't undertake. There are program areas that the provinces don't get into and vice versa.

As to the fact that there are holes in the system, yes, there are holes, basically because of deregulation, because of the unwillingness of governments to properly enforce environmental law. And there are gaps in the sense that we need programs such as pollution prevention to fill the gap in the system, whether it's a dual system or a unitary system.

I don't think the process of harmonization deals with either the issue of so-called duplication or the issue of gaps in the system.

The Chairman: Excuse me, Mr. Bigras. We have less than 10 minutes left to conclude, and there are a couple of questions from the chair, unless there is a member who wishes to intervene.

Mr. Bennett, you made quite a statement earlier in your presentation to the effect that CEPA would be dead, if I'm quoting you correctly, if the accord were to be implemented. Would you like to elaborate on that observation of yours?

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Mr. Dave Bennett: In the original bill to revise CEPA, Bill C-74, there was reference to the question of respecting harmonized agreements within Canada. On paper it was innocuous enough, because there was in fact no harmonization agreement through the CCME.

What I am suggesting is this. Let us say a revised Canadian Environmental Protection Act comes up for renewal. It contains a number of provisions, a number of sections, a number of parts dealing with different areas and topics in environmental protection. From the draft agreements, what have we reason to think the government would retain as part of its authority in the Canadian Environmental Protection Act?

In the draft agreements so far, we see that the federal government maintains jurisdiction over programs that are focused on products and substances. The chemical testing regulations concern chemical products. The national pollutant release inventory deals with a list of substances. We have reason to believe, therefore, that if those programs were legitimized by the new Canadian Environmental Protection Act, they would in fact be retained by the federal government as national programs. But everything else, it seems to me, would be subject to a harmonization agreement. So the administration and the further development of those programs would then become an interprovincial responsibility, through CCME.

This is speculation, because we don't know exactly what harmonization accord would be signed and we don't know exactly what agreements would be signed under it. We've seen drafts of agreements on standards and agreements on inspections. But if you look at the original Bill C-74, the bill to revise CEPA, and if you look at the draft harmonization agreements, it seems to be almost inevitable that a future Canadian Environmental Protection Act within the context of harmonization would be a formal shell so that programs authorized under CEPA would then become interprovincial programs.

One such program that's already been envisaged is the toxic substances management plan. There are a large number of others, including the priority substances program, which you can only conclude would then become interprovincial programs.

The Chairman: By interprovincial, do you mean federal and provincial or just provincial? What do you mean when you use the term “interprovincial”?

Mr. Dave Bennett: Well, if you look at—

The Chairman: By definition, interprovincial becomes federal, you see.

Mr. Dave Bennett: I mean interprovincial in the sense of among the provinces. The programs administered through agreements developed by the Canadian Council of Ministers of the Environment, of which the federal government is only one player.... Actually, if you look at the draft terms of reference for the role the federal government has to play, it's a very minor player, having less responsibility for environmental protection than any one province.

The Chairman: I'm very conscious of the clock, so I would ask you please to give me a short reply, if you don't mind. You also said pollution prevention is substance-driven, but if the accord were to be signed, it would become jurisdiction-driven. Are you quite sure about that? Are you sure there is no provincial measure, program, or legislation that is also substance-driven?

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Mr. Dave Bennett: No, I didn't talk about provincial pollution prevention programs. The nearest I've seen to one was a draft environmental protection act from British Columbia, which, you are quite right, was also substance-driven in the sense that it said pollution prevention is to apply to a listed number of substances. It was not a holistic approach where a workplace has the responsibility for devising a pollution prevention program for any and every toxic chemical that happens to be used in the workplace.

So in a sense you're right about provincial programs in so far as there have been any to date. My point is that in the Canadian Environmental Protection Act, in Bill C-74, one of the biggest flaws was that pollution prevention was to apply to only a very small list of substances, so that a workplace that used, shall we say, 50 toxic substances would only have to do pollution prevention in respect to one or two of them.

I think you'll agree, Mr. Chairman, this is a very feeble concept of pollution prevention. Where pollution prevention has been successfully exercised as a proper program, the federal proposal came nowhere near to a full-blooded pollution prevention program for Canadian workplaces. But on the other hand, part IX of CEPA, which dealt with federally regulated industries, did at least have the potential for focusing on workplaces rather than the listed chemical approach.

So what I'm suggesting in terms of the approach is something radically different from what we've been used to in Canada. In terms of the distribution of jurisdiction, it in fact respects the rights and roles of the provinces, and it does this in order to produce a genuinely effective standard for pollution prevention.

The Chairman: Your elaboration is very helpful.

We now have to conclude this section. On behalf of the committee, I would like to thank you very much indeed for your presentation this morning and for your answers. We've certainly made good note of it and we hope to see you again when we go into another piece of legislation or agreement. We find the input from the Canadian Labour Congress is always very helpful.

Mr. Dave Bennett: I would like to thank the committee for listening to the proposals of the Canadian Labour Congress and for their very pertinent questions on our presentation. I would like to leave with the committee copies, in English and in French, of the CLC's pollution prevention proposal, which goes into more detail on the sorts of issues I've discussed in regard to federal and provincial jurisdiction.

The Chairman: It will be distributed. Thank you very much, Mr. Bennett.

Could we ask the next team to come forward, with Maxine Cole?

Is it the correct understanding of the chair that the four of you will sublimate into two speakers? For the sake of questions and so on, could we assume that the combined time would be roughly 10 minutes for the two of you, or is that asking too much? Is five minutes each too little? Then we'll go for 10 minutes each, if you're more comfortable with that. That will take us to 10.20, which gives us a good 40 minutes for questions.

Who would like to be first? Would you like first to introduce the team and then start, please? Welcome to the committee, of course. We're very glad you were able to come at such short notice.

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Ms. Maxine Cole (EAGLE Project Coordinator, Environment Unit, Assembly of First Nations): I'll go first, Mr. Chairman.

My name is Maxine Cole. At the Assembly of First Nations, I'm the EAGLE project coordinator—the Effects on Aboriginals for Great Lakes Environment project.

Thank you for inviting the Assembly of First Nations to address the committee on the pending Canada-wide accord on environmental harmonization. I have reviewed and present to you the concerns of the environment committee of the AFN regarding the accord.

As you know, the AFN is a national organization whose primary purpose is to lobby and advocate for the inherent treaty and constitutional rights of its aboriginal members. The AFN's environment committee was created from the passing of resolution 28 in 1988 by the Confederacy of Nations to establish an environmental conservation and sustainable development committee. The purpose of the environment committee is to persevere in forging a nation-to-nation relationship with government in order to influence public policy making decisions that impact on our environment and community health. On a parallel process, first nations must lay the foundations for aboriginal environmental policy. Members to the committee are delegates from the nations from the east, south, west and north, New Brunswick, Ontario First Nations Technical Committee, British Columbia and Yukon.

From the review of the accord, in particular it was interesting that the vision statement for the accord reads “Governments working in partnership to achieve the highest level of environmental quality for all Canadians.” First nations are a third level of government and should be parties to the accord if the vision statement is an accurate reflection of how this process will be undertaken to attain the highest level of environmental quality.

First nations have a unique relationship with the federal government, as entrenched in section 35 of the Canadian Constitution, and that relationship has been upheld in Supreme Court decisions. Furthermore, the federal government has a fiduciary obligation to first nations, and that obligation cannot be delegated or transferred to the provinces. The accord is viewed by the environment committee as a downloading of responsibilities of the federal to the provincial governments. This redistribution of responsibilities will have detrimental impacts to treaty and aboriginal rights. The relationship between federal and aboriginal peoples must be maintained to ensure these rights for these peoples.

Principles 6 and 11 relate specifically to aboriginal peoples, yet there is no substantive role in regard to these peoples mentioned in the accord. Structures of governance do exist currently within first nations, yet the federal and provincial governments have not acknowledged these structures. Throughout this process, this has been a major criticism of the accord—that consultation with aboriginal peoples has not happened due to a lack of non-recognition of the governing bodies within the first nations. First nations should be parties to the agreement. Their role has not been recognized in the agreement, but in northern Canada they have more power than the territorial governments with respect to the environment.

The Assembly of First Nations sits at the national advisory group table for information and monitoring purposes only. The AFN was asked to participate in the NAG midway through the process. The AFN has stated in the past that it would not be part of the NAG because the relationship is not clearly defined. If AFN were to become a member of the NAG, this action would undermine the nation-to-nation relationship that is only befitting for first nations. Recognition of a nation-to-nation relationship is therefore the only way to develop and sustain a working relationship with all first nations.

Aboriginal people are mentioned in section 2.2.0 of the subagreement on environmental assessment. It states that the subagreement does not apply in areas where a land claims environmental assessment process exists. The intent, as viewed by AFN, is that it narrowly limits this exclusion to land claim and self-government agreements.

The federal policy guide for aboriginal self-government states that in laws dealing with environmental protection, assessment and pollution, federal or provincial laws would prevail over aboriginal laws. This raises the question of how valid section 2.2.0 is. If the federal or provincial laws have primacy over aboriginal laws, then it will not matter when first nations land claims environmental processes exist. The federal and provincial governments will refuse to recognize first nations jurisdiction before their own.

What you have in front of you are just notes. I told the clerk that I would be adding amendments to those notes as I go along.

As for the significant transfer of responsibility for environmental protection from the federal government to the provinces, this action would beg that the question be asked: Is there a significant problem in Canadian environmental policy today in regard to duplication or overlap of services? Virtually no background research has been conducted to answer this question. If there is an overlap, there isn't a significant amount of money spent in that overlap. Perhaps the CCME is overlooking the fact that shared jurisdiction may lead to a more effective environmental protection regime.

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The relationship, as is, provides a system of checks and balances, which would be lost if the downloading from federal to provincial governments took place.

Again, what is CCME's definition of consultation, the definition of co-operation? Concerns were stated that the consultations were information sessions only. These concerns were aired by the aboriginal peoples. True consultation is an acknowledgement of the other partners at the onset of any work. This acknowledgement of the other parties demonstrates respect for the presence of existing infrastructures and the wealth of knowledge other than our own.

The consultation process employed throughout the design, plan and review of the accord may be viewed as an exercise in rubber-stamping a plan already in place. This plan again did not receive substantive input from aboriginal peoples.

As I review notes regarding the harmonization, I would like to ask if new moneys have been budgeted for aboriginal consultation. CCME and related working groups continually assume incorrectly that the AFN and other aboriginal organizations have the resources and communication infrastructure to address the CCME initiatives properly. Resources to communities and organizations are necessary to participate.

What accountability safeguards are in place for the agreement? Who will review the accord and the subagreements in five years?

If the public is considered in this review, then the depth of participation of the public needs to be determined, and the vehicle to be used for participation. Again, not only the public but also aboriginal people must be included in the review if this accord takes place.

It appears that the accord can be amended only by the unanimous consent of parties. Consequently, amendments will be virtually impossible.

In conclusion, harmonization seems to be driven by non-environmental considerations. The AFN objects to the direction that Environment Canada and the CCME continue to take in regard to the Canada-wide accord on harmonization of environmental management. Periodic updates on the progress related to implementation of the accord and its subagreements do not constitute an open, transparent or inclusive process for first nations.

Due to exclusion of first nations peoples in Canada, the accord and subagreements have no meaning to us. Due to this exclusion of aboriginal people in this Canada-wide accord, it is imperative that the accord not be signed. Further assessments of the potential implications of federal-provincial agreements must be undertaken, specifically in regard to aboriginal peoples. In the absence of that assessment, it would be a serious infringement of aboriginal rights for the ministers to sign such an agreement.

The AFN is open to the idea of working with the federal government on this issue. The partnership must include mutual respect, ensuring that all parties have the resources and capacity to come to the table as equals, a common agenda, and for both sides to benefit in having a mutually agreed upon goal.

Thank you for the opportunity to present these concerns.

The Chairman: Thank you, Ms. Cole. That's very helpful and quite comprehensive.

Mr. Awashish, proceed. You have ten minutes.

Mr. Philip Awashish (Director, Federal Relations, Grand Council of the Crees of Quebec (Eeyou Istchee)): I'd like to thank the chair and the members of the standing committee for the opportunity to appear before it and make known to you the position of the Cree Nation of Quebec.

My name is Philip Awashish. I am a Cree from Mistassini, which is located in the Cree territory in northern Quebec. I am a special adviser to the Grand Council of the Crees, which is a political body representing the Cree first nations, or Eeyou Istchee, as we are called. I am also an adviser to the Cree Regional Authority, which is the technical and administrative arm of the Cree nations of Quebec.

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With me today, also on behalf the Grand Council of the Crees and Cree Regional Authority, are Brian Craik, who is the director of federal relations; and Franklin Gertler, who is the legal counsel.

Due to the short notice in coming before you, our brief is in English only. We have filed it with the clerk of the committee for the record so that they may be consulted by you—three full copies of our submission, including the four appendices that are in English and French. We would especially ask that you carefully consider the revisions of our treaty, the James Bay and Northern Quebec Agreement, which are found in appendix 1

We congratulate the standing committee on its decision to hold hearings regarding the current environmental harmonization initiative of the Canadian Council of Ministers of the Environment. We welcome this opportunity to make our views known.

Of course our submission is under reserve and without prejudice to Cree positions, rights, interests and remedies, including in negotiations and litigation.

For a considerable time the Crees have been expressing concerns with respect to both the process and substance of the current harmonization initiative. To date, we have not been appropriately included in the talks and our concerns have not been reflected in the changes to the proposed texts.

First, as a word of background regarding our process concerns, in order to appreciate our approach to the current harmonization initiative it is necessary to consider briefly our relationship to the land, resources, and environment of Eeyou Istchee and understand the central role of the 1975 James Bay and Northern Quebec Agreement and the rights protected thereunder in safeguarding the Cree way of life. Eeyou Istchee are the traditional ancestral and historic territories that have been used and occupied by the Cree or Eeyou since time immemorial in pursuit of their hunting, fishing, trapping and related activities. It is in essence our homeland.

For the Crees, a fundamental premise and condition of the James Bay and Northern Quebec Agreement was continuing federal responsibility for protection of our way of life and environment on which we depend. We have a right to a continued and effective federal role. Our rights are constitutionally recognized and affirmed under section 35 of the Constitution Act, 1982.

Section 22 of the James Bay and Northern Quebec Agreement, which deals with “Environment and Future Development,” provides us with constitutional rights to the establishment of an appropriate and comprehensive regime of environmental and social protection and a right to participate in the elaboration, administration, and application of that regime. The required regime goes well beyond the environmental and social impact assessment. Our rights in this regard are to be given effect notably through the James Bay advisory committee on the environment, which is contemplated by our treaty.

Unfortunately, the federal track record with respect to its obligations is very poor indeed. In addition to refusing broad application of the environmental assessment process under section 22, the Government of Canada has consistently failed to ensure the existence and implementation of appropriate environmental legislation in the James Bay and Northern Quebec Agreement territory and has failed to support and make proper use of the advisory committee.

It is shocking that the total annual federal jurisdiction to both the Cree and Inuit environment committee under sections 22 and 23 of the James Bay and Northern Quebec Agreement is $95,000 for a territory of approximately one million square kilometres.

The process by which the harmonization agreements have been negotiated ignores the special role for the Crees and the role of the advisory committee as the preferential and official forum for governments in the formulation of laws and regulations relating to the environmental and social protection and their administration. Any effective changes to the James Bay and Northern Quebec Agreement require Cree consent.

We now turn to the substance of the harmonization initiative and the impact it will have on the exercise of Cree rights.

The Canada-wide accord and all three subagreements are subject to principle 12, where it is asserted that the accord and subagreements “do not affect aboriginal treaty rights”. Nonetheless, the accord and the subagreements would shift more effective power to Quebec, which has proven itself incapable of protecting the environment in the Cree territory and which is slashing its own environmental budgets. Thus, the harmonization initiative will most certainly affect the exercise of Cree rights. It will have the effect of accelerating federal withdrawal from the environmental field in our territory and breach our rights under section 22.

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With reference to the Canada-wide accord, within the objectives of harmonization, it sets out to make it clear that positive environmental goals are seen as being best achieved when any issue is in the hands of, and I quote, “one order of government only”.

We do not agree with this approach. Under section 22, the Crees have a right to the active involvement of both Canada and Quebec. For us, harmonization does not mean withdrawal of one level of government, but rather the coordinated efforts of both levels, with the direct participation of Eeyou, or the Cree.

We now turn to the subagreements. The definition of “standards” as set out in paragraph of 2.1 of the subagreement on standards is cause for concern. The Crees do not believe that guidelines and objectives are a substitute for the rigorous and legally binding environmental standards required to protect the environment and human health.

This subagreement appears to completely ignore the rights of the Crees under section 22 to participate in the establishment and implementation of environmental standards. The subagreement does not acknowledge or refer to the advisory committee, even though paragraph 8.1 does include saving language for resource management institutions established under aboriginal claims agreements in the Yukon and the Northwest Territories. This difference in treatment is unexplained and unacceptable.

With respect to the initial candidate list for Canada-wide environmental standards, the Crees have a particular interest in the risks to human health and the environment posed by mercury. Our involvement in setting the relevant standards is essential, and efforts with regard to mercury must be tailored to take into account the mercury contamination associated with hydroelectric development.

As with the Canada-wide accord and the other subagreements, there is an implication throughout the subagreement on environmental inspections that there is a serious problem in Canada of duplication of inspection authority and effort. Our experience is rather of the almost total absence of both federal and provincial inspections. Regular reports by Cree trappers of serious environmental problems have been systematically neglected.

Paragraph 5.2, and similar provisions in the accord and the other subagreements, contemplates the dubious practice of blanket refusal of governments to exercise powers, in this case their discretion with respect to inspections. It is extremely doubtful that it is legal for a government to agree to entirely abdicate the responsibilities imposed upon it by legislation, and to simply hand those responsibilities off to another level of government.

Finally, with respect to the subagreement on environmental assessment, paragraph 2.2.0 makes it inapplicable in areas with aboriginal claims or self-government agreement assessment processes. This would be a good thing if the section 22 regime were being applied properly. Instead, the effect will be to continue and to legitimize the unacceptable refusal of the governments of Canada and Quebec to apply the section 22 federal regime of environmental assessment to development projects that involve matters of federal jurisdiction.

In conclusion, despite what may be positive aspects of harmonization in theory, we have great difficulty in supporting the current initiative. The definition of harmonization being applied and both the process and the outcome of the initiative are very seriously flawed, with grave implications for the rights of the Crees and the exercise of those rights.

Therefore, we recommend that the signing of the accord and the subagreements be postponed until our interests have been protected and our conceptual, process, and substantive concerns are resolved, and that the Department of the Environment, on behalf of the Government of Canada, immediately seize the James Bay advisory committee on the environment of the whole of the harmonization initiative.

We acknowledge that the harmonization initiative may provide opportunities with respect to the implementation of section 22 and its “modernization”. We will continue to seek such progress, notably through the negotiations with the federal government that are now getting under way.

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In this regard, and given the poor record of the Government of Canada, we ask that the standing committee call upon the Government of Canada to proceed immediately with the true implementation of section 22 of the James Bay and Northern Quebec Agreement.

Thank you for your time. Together we will be pleased to answer your questions in Cree, English, or French.

The Chairman: Thank you, Mr. Awashish. That's very helpful.

I have on the list, of course, Mr. Jordan, followed by Mr. Casson. Mr. Jordan.

Mr. Joe Jordan: I have a couple of points and then a little anecdote.

I'd first like to welcome you here today. I think you have touched on a theme that we are getting from other presenters. Rather than get bogged down in the legal context of the thing, it seems that the process is on its ear, and that we started out arguing about who does what, and if we ever had it in our sights, completely lost sight of what we were trying to accomplish.

In the conclusion to your document you summed that up quite nicely. I think we might better decide on what it is we are trying to do, what problem we're trying to solve, or what end we're trying to get to. The “who does what” really becomes less transparent and less of an issue.

I don't know how we are going to end up with anything good at the end of the process the way it's set up now, and I think you have certainly reinforced what we've heard from other groups.

My second point, and with all due respect to your solicitor, is that again I understand the need to argue the legal text and maybe the bureaucratic precedents for the inclusion of first nations people in the discussions, but I think the point can be better made. If I look at the traditional players—the companies, the provinces, the feds—the justification for the inclusion of first nations people is that you people know what you're doing, and the others don't. You have a track record of multi-generational success that cannot be stated by those other groups. I think the two-pronged approach would work, and the anecdote I'm going to tell you deals with that.

On Saturday I was in my riding announcing funding for a model forest project that involved companies, the feds, the province, and the Akwesasne First Nation. I had been given a speech, and I guess this fell in the category of federal relations, that was essentially the result of two ministries that were trying to balance the economic and environmental costs. When I talk about the companies, the feds and the province—they can't seem to get by the perceived short-term economic costs of this whole issue, and I think that's the problem. But this speech was supposedly a balance between jobs in the forestry industry and regulation and environmental stuff, and it made everybody in the bureaucratic circles quite happy.

I sat there—and it was a nice day Saturday outside—with this nine-page speech in front of me that I'd read a couple of times, and the gentleman from Akwesasne spoke before me. He spoke of very simple and profound concepts of interconnectedness, and as he spoke, I got more and more embarrassed.

I would suggest that you not lose sight of the power of that embarrassment, because you are absolutely correct in what you're saying. I think if you hold the line, I'd personally thank you for your patience, but I think you can go a long way using embarrassment to bring people around, because you are absolutely and fundamentally correct.

Thank you. That's my anecdote. I think there was a question there, wasn't there?

Mr. Philip Awashish: Thank you, Mr. Jordan, for your comment.

I just want to make one comment with respect to your first remark about the matter of parties deciding what it is we're trying to do, rather than talking about who does what.

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For the Cree party, the Eeyou Istchee of Quebec, it certainly touches upon the heart of the issue. The whole harmonization initiative in itself constitutes a shift of roles and responsibilities to the Province of Quebec, thereby diminishing if not eliminating the role and responsibilities of the federal government in environmental management.

They're more or less debating about who does what. For us the whole harmonization initiative is important. We do not disagree with the concept of harmonization initiatives. We disagree about what we mean by harmonization of environmental management. We see that the roles and responsibilities of both levels of government must be co-ordinated along with the participation of the first nation, the Cree Nation of Quebec, in environmental management. We're talking about the formulation of environmental law and policy and the environmental assessment and review of development projects within the Eeyou Istchee.

We envisage a continued role and presence of the federal government. This is the first nation of Quebec's position in talking about what we're trying to do, rather than deciding who does what.

We have always been concerned about environmental protection and environmental management. The Cree have traditionally practised environmental protection through their own system of proper management of wildlife resources within the respective traplines or hunting territories of Eeyou Istchee. Eeyou traditional laws and practices ensure the sustainability of the land and its wildlife resources so it will continue to provide for our physical and spiritual well-being.

So we have to be diligent in the whole area of environmental management and protection. We are concerned about more than simply talking about who does what in the environmental management or environmental assessment. We do not see any abdication of roles and responsibilities of any levels of government.

Three levels of government are involved in environmental protection and management—the federal government, the provincial government, and the Cree government of Eeyou Istchee.

The Chairman: Thank you.

We now have Mr. Laliberte, followed by Mr. Lincoln.

Mr. Rick Laliberte (Churchill River, NDP): [Member speaks in his native language].

In recognizing and acknowledging your presence here I am very honoured to say there is a call for the aboriginal knowledge and consciousness of this land, in the rivers and all the beings that bring us life.

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This is a crucial time in our global community, as we are all interconnected, as the hon. member mentioned. These words are very crucial to understand and to apply.

Just from a Canadian perspective, in the words you shared, is there a move or a desire for the aboriginal people of this country—the Inuit, the first nations, the Métis—to collectively create an environmental consciousness or vision for Canada and North America? Has anything been attempted or is there anything perceived in the future to attempt in any way to share with this country and the journey we're all collectively going on?

Mr. Philip Awashish: The first nation of the Cree or the Inuit...[Witness speaks in his native language].

Over the past 20 years or so we have been under constraints in protecting the traditional way of life, which is based primarily on hunting, fishing, trapping, and related activities within our homelands. We have been constrained by what we consider to be uncontrolled development, which tends to ignore our rights, concerns, and interests to the land, the environment, the protection of the environment and environmental management. We've had to resort to litigation from time to time to ensure that governments, whether of Quebec or Canada, exercise their roles and responsibilities.

On the Cree side, we have exercised and continue to exercise our own roles and responsibilities to environmental management. We make our expertise known to the various bodies that have been created through the James Bay and Northern Quebec Agreement. We make our views, knowledge, and wisdom known to the various other bodies that are created probably informally between the Cree parties and developers.

It is now 1997, and our expertise, knowledge, and wisdom have been systematically ignored by developers and by governments. There are initiatives I know of where the government has undertaken to acknowledge and use the so-called traditional expertise and knowledge in the areas of wildlife management and environmental management. But until the governments go beyond simply stating on paper that they will use, appreciate, and apply traditional knowledge, or first nation knowledge, and expertise and sincerely apply them in the area of environmental management, wildlife management, these statements won't mean anything beyond simply written statements.

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The first nations have to be involved in more than simply environmental management. Strategies of development of natural resources also have to be integrated within environmental management and protection. They can't be separated. After all, the earth is one, and we all inhabit this earth.

The Chairman: Thank you.

Ms. Maxine Cole: I would just like to add that as Philip was saying, it's probably one of the first meetings I've been to at this level where there has been an acknowledgement of practices that have been in existence since before my time, and before my grandparents' time. At this point it's a bit encouraging that people are finally listening to us say that these sustainable development concepts exist and they have existed within aboriginal communities, within indigenous peoples, since before the time of all of you here.

I agree with Philip it's time—and the accord is a perfect example of it, in those principles—to say we'll work in cooperation with aboriginal people. Where else is there mention of aboriginal people throughout the accord, throughout the subagreements? Anything that gives substance to that statement about working in cooperation with aboriginal people, first nations people, we need to see.

That's why I agree with Philip it's only a statement. It has to be more than that. Perhaps it's encouraging in that if there are statements, then I hope, on a positive note, there is an awareness that aboriginal people's concepts do exist regarding sustainable development. Anything you want to know, we have it going for us.

The next step is that behaviour has to change. That's where the action on your part comes in. What are you willing to do to go beyond that statement? That's the next step we're looking for.

The Chairman: Mr. Lincoln.

Mr. Clifford Lincoln (Lac-Saint-Louis, Lib.): Mr. Awashish, Ms. Cole, every time I hear you I can't help but feel that if we would just listen to you more, if we had listened to you in the past, how much further ahead we would be. Indeed, when you say the earth is one, it seems self-evident, but sadly, it's not the way we govern ourselves.

I must take this opportunity to thank you very much and congratulate you for the long battle you led and which averted James Bay II. Even the government of which I was once a part was telling us for so many years it was essential we have this mammoth project. Yet today, thanks to you, it has been averted and everybody seems to live without it. In fact it has introduced, maybe thanks to you, a new culture with Hydro-Québec, one that is now gradually looking into soft energy paths, renewable energies, wind energy, and smaller projects around the landscape. Thanks to your leading a long battle, we have now learned lessons we should have learned long before.

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I was listening to your presentation and a few things struck me. First of all, as you say, not only are there no inspections by the federal and provincial inspectors but there is also a complete absence of inspections altogether. Section 22 is not being respected. You're getting only $95,000 from the federal government for implementation of section 22.

Your recommendation is that we stall the agreement until your interests and concerns have been heard. You mention in one of the last paragraphs in your brief that negotiations with the federal government are now getting under way.

Can you explain to us whether you're talking about general negotiations around section 22 and whether, in addition to those, you seek to be part of the negotiation committees of the provinces and the federal government, which are looking into harmonization, as a full partner, either the Crees themselves or the first nations as such?

Mr. Philip Awashish: Brian Craik can respond to that question on the negotiations.

Mr. Brian Craik (Special Adviser, Grand Council of the Crees of Quebec): Mr. Lincoln, the Cree negotiation process with the federal government is just starting to be set up. It's being led by Mr. Michel Vennat and Mr. Ted Moses for the Crees. They have scoped the extent of these negotiations and they will include the obligations of government under the James Bay and Northern Quebec Agreement. On a subject-by-subject basis we're hoping to involve the Government of Quebec in the discussions.

The negotiations will also go beyond the James Bay and Northern Quebec Agreement to consider the Cree rights under the Canadian Constitution. The initiative is called “Developing a New Relationship with the Federal Government”.

Our comment in terms of the participation of the Crees with the provinces is that we're hoping to get the process started to involve Canada and Quebec in the environment. We would like to have full participation. We view the Cree participation, however, as one that has a special nature to it, because it falls under a treaty that's signed by Canada and Quebec.

So I would say that the Cree participation should not be watered down by the fact that there are other provinces at the table.

Mr. Clifford Lincoln: With regard to the harmonization negotiations as such, do you see a negotiating role, if I understand it correctly from your brief, for first nations, or the Crees on behalf of first nations, as negotiating partners? Is that what you're suggesting, that it should be stalled until this has happened?

Mr. Brian Craik: We've suggested that it be stalled until the Cree rights are fully respected under the James Bay and Northern Quebec Agreement. However this happens, we want to see that end.

We haven't been given any opening to be involved as full partners in the harmonization process. I don't think the Crees would refuse that, but they basically haven't decided that question yet. My view of that is that all the parties would benefit from the involvement of first nations in this process.

Mr. Franklin Gertler (Legal Counsel, Grand Council of the Crees of Quebec): Mr. Chairman, perhaps I can add a word, very briefly.

I think the question would have to be, Mr. Lincoln, which process with the federal government and the provinces? I don't think you could expect the first nations, certainly not the Crees, to simply be grafted onto the framework of the CCME and its principles and its approach as it now exists, because there are some fundamentals there....

With all due respect to Mr. Jordan, “Who does what?” does matter. The idea that it's just what you do and not who's doing it that's important is not correct in the real world. In the real world, different levels of government have interests that make them more or less capable of taking a dispassionate view of issues and their capacities in terms of science, enforcement, and so forth, which are disparate.

• 1045

Some of the principles that underline the CCME process and the general direction it's going in would have to be subject to some questions. The CCME is kind of a funny animal anyway. It's an extra-legal and extra-constitutional body made up of sort of.... It's a Meech Lake kind of process whereby a few people get together to try to decide things outside of the public eye in a non-legal context. It's set up like a corporation. That's all. It doesn't respect things like the constitutional rights of aboriginal people under section 35 of the Constitution Act.

The Chairman: Thank you, Mr. Gertler.

Mr. Jordan, very briefly.

Mr. Joe Jordan: I didn't want to imply that who does what wasn't important. I was just saying that if that's not the place to start.... I think you have to start with what you want to accomplish, and then clearly who's going to carry it out is very critical. But if you start with who does what I think you lose sight very quickly of what you're trying to accomplish. There are too many factors.

The Chairman: Mr. Casson, followed by Monsieur Bigras.

Mr. Rick Casson: Thank you, Mr. Chairman.

Mr. Awashish, in your brief you mentioned some specific things I'd like to ask you about, but I too would like to recognize the fact that your knowledge and expertise in environment and sustainability is unprecedented and is something we could all learn from. We appreciate the fact that you're here and that you responded quickly to our request.

In your report you mention one specific that maybe doesn't have a whole lot to do with harmonization, but I'd sure like to know more about it. It is the fact of the mercury contamination as a result of hydroelectric projects, along with your wish to have that view brought forward and included. Are there studies now or is there documentation on the effect and what's happening? Can you comment on that, please?

Mr. Philip Awashish: There has been collaboration between the Cree and Hydro-Québec on the mercury contamination, which may be caused by hydroelectrical development within Eeyou Istchee. Certain measures have been undertaken to alleviate any possible negative implications caused by such mercury contamination and some studies have been done.

I'll call upon my colleague, Brian Craik, to describe some of these measures or studies.

Mr. Brian Craik: We've had a mercury committee with Hydro-Québec to look into the question of mercury contamination. We haven't been able to get to the bottom of the issue. We haven't found a way of avoiding that problem that occurs when you flood an area in northern Quebec. The mercury comes out of the vegetation, basically, and gets into the food chain and eventually into the fish, the mammals and the birds and so on that depend on those fish.

The only thing we've been able to do is warn people off from eating the fish from the reservoirs and find alternative places where people could go and harvest fish, places other than the ones they were traditionally using before the project was built.

There's a question now about the continuation of these measures and the continuation of the mercury committee. It's coming to the end of its term and we're going to have some discussions with Hydro-Québec to see what can be done. But certainly hydroelectric projects in northern Canada cause mercury contamination. The level pretty much depends on the place. In the La Grande system the most contaminated fish are so contaminated that disposal of them is a problem because they're basically toxic waste.

The Chairman: Your question is very timely, and you may want to ask the Library of Parliament, Mr. Casson, to provide you with a reading list on this subject. There is a considerable body of literature that has been produced over time, and it is an issue that is consistently with us and which we do not seem to be able to get resolved.

[Translation]

Mr. Bigras, please.

• 1050

Mr. Bernard Bigras: I would like to start by thanking you for appearing before us today. I would like you to know that we consider your expertise and experience very important.

I am pleased to hear today that the Cree are opened to Quebec's participation in the negotiations that seek to achieve greater harmonization.

However, the situation is somewhat less clear with respect to the Assembly of First Nations. Ms. Cole spoke earlier about her concern that the First Nations had been excluded from the negotiating process on harmonization.

You also spoke about your willingness to work with the federal government on this to try to find a solution. Am I to understand that you do not see the provinces as valid players in the negotiations to achieve a harmonization agreement?

[English]

Ms. Maxine Cole: If I understand your question correctly—correct me if I am wrong—it is whether I consider provinces to be legitimate partners in the harmonization accord. From my knowledge, which is limited—I would have to ask legal counsel at the Assembly of First Nations—the treaties and aboriginal rights we're concerned would be infringed on are at the federal level. Therefore at that point and on that concern the provinces would not be legitimate partners.

Mr. Philip Awashish: I want to clarify certain matters and also to respond to the question.

On the matter of the Cree participating in the negotiations on the harmonization process, we have stated that we would be willing to participate in such negotiations. However, we simply would not accept participating under the present terms of reference. As an example, we do not have the same meaning or definition of harmonization as what is discussed here. With reservations about such concerns, we would be willing to participate in such negotiations.

So far as the question of the provinces is concerned, the Cree have to acknowledge the realities of Eeyou Istchee, or northern Quebec. The reality is that first of all there is a treaty, the James Bay and Northern Quebec Agreement. In that treaty there are roles and responsibilities for both the federal government and the provincial government in the area of environmental management and protection. The Cree also have roles and responsibilities in the area of environmental management and protection. These three parties coordinate their efforts to ensure the proper administration of the environmental protection regime. That is specifically what is contemplated in the James Bay and Northern Quebec Agreement.

Whether that has been a success over the past 20 years is another question. That's something which has been dealt with in our past and to some extent present reviews of the James Bay and Northern Quebec Agreement with the two levels of government.

The Chairman: Are there any further questions before the chair asks a question?

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Let me ask you this question. Do we understand correctly, then, that over the life of the negotiations, which started as early as 1993, in connection with this CCME proposal and accord, as far as the Council of the Cree is concerned you have never been consulted?

Mr. Philip Awashish: As far as the Cree are concerned with respect to the Governments of Canada and Quebec, the two levels of government have not formally consulted—if I may use the word loosely—the Cree Nation through the mechanisms that were set up in the James Bay and Northern Quebec Agreement.

We've talked about it in our brief to the James Bay advisory committee on the environment, for example, as one consultative mechanism that was set up by our treaty.

To my knowledge, even though the federal government and the provincial government of Quebec, in addition with the Cree government, are represented on that advisory committee, this harmonization initiative has not been formally brought up for the three parties to discuss and come to some consensus and hopefully an agreement on what the position should be concerning the advisory committee on the harmonization initiative.

Outside of the mechanisms that have been set up by the James Bay and Northern Quebec Agreement, I think Brian Craik, who has been involved with the various discussions, or even negotiations, with Canada, can answer the question.

Mr. Brian Craik: Maybe I could ask Mr. Gertler to comment for one second on it.

Mr. Franklin Gertler: Very briefly, beyond the obligation of sections 22 through 24 of the James Bay and Northern Quebec Agreement, which Mr. Awashish has referred to, which makes that advisory committee the official and preferential forum for such consultations, I believe there was a little over a year ago a briefing by Mr. Avrim Lazar to an AFN meeting in Toronto on environment issues in general. He went and made a speech there. I'm not sure that qualifies as real consultation. I think that was in September 1996.

Mr. Craik has reminded me that there was an effort by the Grand Council to be invited to consultations that Quebec was holding on harmonization for environmental groups, but the Crees did not manage to secure an invitation to that event.

The federal Department of the Environment—to their credit, I guess, even though it's too little and too late—made some effort to consult, but that certainly was not a CCME effort, and that's where the process issue comes up.

So was a kind of a contact group, if you like, with environmental groups and a contact group with aboriginal groups. I'm not talking about the NAG, the national advisory group, but this was after the NAG was falling apart.

The group for contact with environmental groups had a couple of meetings and perhaps was of some use, but it was with no preparation, no follow-through. It was very much just a matter of showing up, giving your comments and going away.

As far as I know, the Crees were not involved with any consultation that Environment Canada had with aboriginal groups, because they chose simply to address the peak organizations—the Inuit Tapirisat, the Assembly of First Nations and so forth. This is a problem, because, as Mr. Awashish has been at pains to point out, the Crees have a treaty right to be involved and it's not to be mediated through any other relationship, but that has not been respected.

The Chairman: All right.

Are there any final questions before we move on? There are no further questions.

• 1100

Then we thank you very much indeed. This was a very informative session as well. We want to thank you in particular, Mr. Awashish, Ms. Cole, Mr. Gertler, and Mr. Craik.

We will now hear from Rodney Northey, after a five-minute break.

The meeting is suspended for five minutes.

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• 1108

The Chairman: We now have Mr. Rodney Northey from a place called Toronto.

Mr. Northey, you have ten minutes and then probably quite a round of questions. Mr. Northey, welcome to the committee and please go ahead.

Mr. Rodney Northey (Individual Presentation): Thank you very much, Mr. Chair. I'm honoured to be here in front of all of you today.

I'd first like to congratulate this committee on holding these public hearings. After a few years of ad hoc, informal, off-the-record discussions on the topic of harmonization, I'm very pleased that Parliament is now turning its mind to this topic.

In terms of my personal involvement, I have been involved in the earliest part of the negotiation on the issue of environmental assessment and I am here to address you today exclusively on the issue of environmental assessment as it affects harmonization. So I've reviewed three drafts of a proposed accord. And I should say to this committee that my personal involvement in coming to the issue of harmonization on environmental assessment is that I have been involved in provincial environmental assessment processes for several years, the federal environmental assessment process for several years, and more recently in an international environmental assessment. Additionally on the perspective I bring to harmonization, I am not only a lawyer who acts for proponents on this topic but a lawyer who acts for public interest groups and citizens around the country.

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Today, though, I am speaking in my individual capacity. I'm speaking as an author of a book that deals with the Canadian environmental assessment act, an annotation of the act, which I will return to briefly, and also as a present doctoral candidate in a doctorate of laws program, looking at international environmental assessment standards.

I believe the committee should have in front of it a brief presentation from me. It has four points. The first three points are introductory to a conclusion about what this all means for harmonization. I will just read those straight as they are and then I will come back to them. Those will be the substance of my presentation.

The first point is that environmental assessment is not simply a domestic topic. It is acknowledged by the international community as an essential tool for sustainable development.

The second point is that what environmental assessment means is not uniform internationally. Today the world has major disparities in what receives environmental assessment, what environmental assessment means when it is used, and how its standards are enforced.

The third point is that as the world copes with the need to pick the best models of environmental assessment from among the many alternatives, it is going to be looking at leading models with proven success.

Measured against these observations, what is going on in Canada seems to me to be wrong-headed. It's wrong-headed because it's not paying attention to international standards or practices of environmental assessment. It wrongly presumes what goes on in Canada under the name of “environmental assessment” is the same thing. It puts Canada in the position of having no consistent model or expertise to advance to the rest of the world on the topic of environmental assessment.

Since I am here personally, I am asking you as committee members to think of this personally also. As a matter of national pride, if you look back to our record, we were leaders in the world in the area of environmental assessment in the 1970s. We should be leaders today, and we should be leaders in the future. My basic point to you is that the present approach we are taking to harmonization of environmental assessment is nothing for this country to be proud of.

Now I am on page 1 of my presentation, on how environmental assessment is not a domestic topic. This committee should be aware that environmental assessment is a world-wide response. This is not simply a Canadian idiosyncrasy we are talking about. It is a world-wide response which is now reflected in international conventions we and many other countries have signed, including conventions on biodiversity and trans-boundry impacts. It is also a practice used by international organizations such as the World Bank, which we hear about increasingly. That puts us at the stage of dealing with something that is an international topic.

The second point about this, though, is that what the world means by “environmental assessment” is not the same thing. In the space and time I have allocated here it is very difficult to give you any hint of what I mean by that, but very briefly, you should know there are books written about environmental assessment regimes in each part of the world by the various institutions doing them, and what they are saying amounts to very different things.

In my paper I cite the examples of the United States and the European Community. The United States has a national model: one overarching federal environmental assessment model with very broad application. It has a two-stage process. It leaves to the states the option to improve on federal standards, but it does set a bottom line, and it has set that bottom line since the early 1970s.

The European Community has a different model. It has come to this topic late; it started and got very excited about it in the early 1980s. In 1985 the European Community passed a directive that told all of the sovereign nations making up the European Community, here are some bottom lines you must all adhere to legally by way of environmental assessment. What it focused on was making sure that major projects got the same degree of environmental assessment across the community. That, again, was dealing with sovereign communities.

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So when we come to this we see that what is going on in the communities is a focus towards centralized models in the European example with some recognition of different approaches. We see the U.S. has had that approach for a number of years. The World Bank has taken a slightly different approach. I will not go into that again out of restrictions for time, but it's outlined briefly in the paper.

What we end up with in looking at the models—and what I try to say very briefly in the paper at page three—is that it is simply naive or wilful blindness to think you can do environmental assessment to meet all of the objectives that people set out for it: objectives of comprehensiveness, objectivity, expertise, efficiency and timeliness. Those objectives go on cross-purposes. I put in the paper—it's an obvious point—that all things being equal, the more time a study receives the more confidence we should have in its effectiveness, but equally greater the cost. The reverse is also true.

That means when you're looking at a process and you keep emphasizing values of efficiency, you may be decreasing effectiveness. It's not possible to do one thing that suits everything at all times, and this creates the challenge. This is why there are different regimes, because different regimes make different choices about what is going to be emphasized. Again, on page three of my submission I give you some of the trade-offs that are associated with environmental assessment.

Where does all that go, the different models of what's going on in the world? It leads me to say to you that in terms of the world picture what we are proposing in environmental assessment harmonization is a step backwards. We were among the world leaders in this area, and what we're doing today is nothing world leading. In fact it seems to be doing things in ignorance of what the world is doing, and I say that on three points.

First, if you look at the harmonization process in environmental assessment we are paying no attention to international conventions or standards in environmental assessment.

Second, if you look at what we have today in our country with ten different regimes and a federal regime, it is wrong to presume they're all doing the same thing.

Third, because we have these ten regimes and in fact the regimes are multiplying, as outlined in the paper, we have a process in Canada where we're leading to greater and greater numbers of options for doing environmental assessment when the world community is looking for greater and greater coherence and harmonization of the approaches it's dealing with. So we're going in one direction and the world community is going in another direction.

What I say to you then is that if we really are talking about harmonization instead of what this proposes, which is what I call devolution, not harmonization, there are two ways to do that. One is to have one common environmental assessment regime with basic standards applying Canada-wide. That is one model, and we have not used that model to date. The second model is the model we used in the past under the former regime in environmental assessment federally called the Environmental Assessment and Review Process Guidelines Order. That was a model where the provinces could take the lead, but there was provision for the federal government to come in where the provinces were not covering the same procedural substantive terrain with the same procedural rigour.

So there are two ways of doing this, and both lead to an assertion of national standards. But what we're doing with this present harmonization process is leading to a regime where provinces take the lead and we do not have guarantees of national standards; we don't have any guarantees.

I think that concludes my presentation, Mr. Chair. Thank you.

The Chairman: Thank you.

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We have the following: Mr. Casson, Mr. Lincoln, and Mr. Knutson so far.

Mr. Rick Casson: Are you suggesting then that we have as our national standard some kind of international standard, that we bring it into Canada? Could I have a comment on that?

Also, is there any advantage or relevance to having joint environmental assessments, the province and the feds sitting down at one time to deal with the project, instead of having the harmonization or the streamlining that we're talking about? Do you see advantage to that and is that a feasible thing?

Mr. Rodney Northey: Let me deal with the second question, the joint environmental assessments.

Absolutely, I completely agree with that approach. I think that approach is feasible without any of these harmonization processes we're presently under. There have been joint assessments in place in environmental assessment since the mid-1980s, and as far as I'm concerned that is a preferred route in Canada, recognizing that we have a constitution that divides responsibilities between levels of government. So I think that is an efficient process.

What I'm concerned about with the present approach is that it's not really ensuring that all of the federal interests are going to be respected. In my view it's giving too much to the provinces at the outset.

Dealing with the first question you posed, about international standards, what I'm saying is that we are signatories to conventions and the world community is setting standards. It is perfectly possible within the federal process we have now to incorporate international standards, to bring them into environmental assessment. It would be also possible for provincial processes to try to do the same. The problem is that we're not seeing any emphasis given to the international standards; we're not saying that you must, when you're doing this environmental assessment, pay full regard to biodiversity issues, for example.

That lead means that what we're doing tends to be going on in a local vacuum, if I could put it in this way, while the world community is setting tougher standards as a result of all these international conventions that are going on.

I hope that responds to your questions.

Mr. Rick Casson: Do you feel that the United States model is working, that it is addressing the concerns of all parties? Or is it a mess?

Mr. Rodney Northey: It would be hard to say it's a mess. It has been in place largely unchanged since 1969 and it tends to be the model.... As I said earlier, the states have the flexibility to try to improve on the federal model where they desire. The states tend, individually, when they're doing something, to take the U.S. model and then to try to put improvements on it.

Even the climate of the 1980s, when we can all imagine there was a slightly less positive interest in protecting the environment federally, did not lead to changes to the national legislation in environmental assessment. So it has been around the longest of any process in the world without significant changes over that time. I think you'd have to say that must be regarded as a success.

The fact that all the groups are still going on, that there is litigation, is simply because in environmental issues it is difficult to come up with uniform, universally recognized solutions. But the process seems to be acknowledged as the one they should keep.

Mr. Clifford Lincoln: Out of three questions for you, the first one is that you make the point of devolution to the provinces. We would have ten provincial models with different standards. You also refer to now the privatization or spinning off of the crown institutions. I would like to hear your comments about how you see, as we spin off a lot of these institutions....

We'll take the example of ports and harbours. There's a bill now going before the House. If I understand it rightly, it will exclude federal application of environmental assessment and environmental follow-up and CEPA and so forth. Could you comment on this?

Are we both spinning off to the provinces and also devolving through the system of spinning off crown institutions?

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Mr. Rodney Northey: Yes, I think that is the correct characterization on both fronts. We are devolving to provincial governments and equally within federal institutions. One could include crown corporations, but equally the forms of native government that we're dealing with.

We are multiplying the number of regimes that are out there, or standards that apply to environmental assessment across the country, with the result that no one knows, if one is to speak generally, what the Canadian standard is anywhere. One needs to go look at the province one appears in, and who the players are. There is not a national standard that everyone knows, as there would be in, for example, the United States.

So, yes, I think that's exactly what we're headed to—a multiplicity of regimes where no one, including Canadians, knows exactly what environmental assessment means anywhere in the country. It means something different in different places in the country.

Mr. Clifford Lincoln: Perhaps I can ask you about two specific examples before I conclude with a final question.

First, what is your comment with regard to the Cheviot Mine case? Is it a typical case of what you see as a problem with assessment today—the falling between two schools and between the ministries taking different positions?

Second, can you comment on the BHP process, where we examine one particular project because our environmental assessment act is geared to individual projects, where we have no provision for looking at the holistic impact of several similar projects going on in the same territory on a massive scale?

Mr. Rodney Northey: Let me start with BHP, because I think that illustrates very well what I have been saying.

The member is absolutely correct. The BHP process following the new federal standard is focused on projects only and is not focused on regional assessments. One should contrast that with the former environmental assessment process we had, called EARPGO, Environmental Assessment and Review Process Guidelines Order, where the operative term was “proposal”.

Under that process over the 20 years it was in operation there were regional-level assessments conducted by the federal government. The largest one was the whole Beaufort Sea hydrocarbon exploration that occurred in the late 1970s, early 1980s. So there is a very clear example of how we've gone backwards since the 1970s.

Dealing with the Cheviot Mine case, yes, that was very controversial. I have reviewed the decision, although not in the detail I would like. My comment is that it is typical. I would have to say, to me, Cheviot would be an example of one of the better joint processes in the sense that there was some rigour exerted by the provincial level. The fact that there is a conflict between different federal departments and what people are doing is I think a reflection more on the lack of resources that governments are putting into environmental assessment and the lack of seriousness to which they're treating major projects and the difficult issues they raise.

Purely on a level of harmonization, if I can put it that way, I think Cheviot is one of the better examples, not one of the worst.

Mr. Clifford Lincoln: To follow up on these two questions, what would you do to the Canadian Environmental Assessment Act today? In light of harmonization, would you start afresh? How would you look at the whole idea of project versus proposal and everything? Do you think there's an urgent need to look at it again?

Mr. Rodney Northey: Yes, the way the world is going. Just to give some examples, the World Bank is not restricted to project assessments. The United States is not restricted to project assessments. The European Community is not restricted to project assessments. The Canadian Environmental Assessment Act is restricted to project assessments. Ontario is not restricted to project assessments, but what Ontario does has some other flaws in it. It is very difficult to give you a summary of how to pull this together.

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I would say if one is looking at the Canadian act and what needs to be done, because I believe a five-year review of that will be pending in the term of this government, one of the critical shortcomings is the narrow definition of “project” in that act, and that is not consistent with where the world is going.

I think other aspects of the act on harmonization are a little more difficult to get into in the scope of this committee. But I would certainly agree that if we're going to meet world standards the act does need some amendments to toughen its rigour and broaden its scope.

Instead, what the present harmonization process is suggesting is that the federal process is something that should be weakened and we should let the provinces triumph. I don't think there is any concrete evidence in 20 years that the provinces have a better grasp of what's going on, and I certainly think, in terms of where the world community is going, the provinces are not our best representatives.

The Chairman: Thank you.

Next will be Mr. Knutson, followed by the chair, unless there are members who wish to ask a question.

Mr. Gar Knutson (Elgin—Middlesex—London, Lib.): On your last comment, I think recent comments on climate change might support that.

The minister has said—though I don't know that she has said this publicly, but apparently she said it to environmental groups—that this isn't devolution. The officials from the department say this agreement isn't devolution. Everyone else seems to say it is. I want to ask two questions. If you had five minutes to convince the minister that it was in fact devolution, what language would you refer to specifically within the agreement? Or is that the wrong way to ask the question?

Mr. Rodney Northey: No, it's not the wrong way to ask the question. It's just a little more detailed than I was expecting to get into right here.

Mr. Gar Knutson: Unfortunately, as I said, we have one group saying because we're not signing a constitutional change, we're not changing the BNA Act or the Canada Act, or whatever it's called now, it's just an administrative agreement; we may not even change any laws. The officials have said we're not going to have to amend any laws. They have all these nice words, that we're going to sit down and work out our priorities by consensus, and whoever is best able to act is going to act. The language seems to be all in their favour. I wonder what jumps out at this and says this really is devolution.

Mr. Rodney Northey: Very specifically, you need to look at section 5, dealing with implementation.

Mr. Gar Knutson: Of the subagreement?

Mr. Rodney Northey: Yes, the subagreement on environmental assessment. I'm looking at draft three, dated March 21, 1997, which is the most recent version I have.

The concept, for those committee members who don't have it in front of them, that is critical to the whole issue of environmental assessment and why we call it devolution is the notion of a lead party, and there are two ways you could deal with the lead party. One is to say that the provinces are the lead to the extent they are capable of dealing with all the substantive issues and procedural rigours that any process could provide. In other words, if the province does a comprehensive assessment with full provision for public participation, then that is the kind of model where the province as lead is going to work very nicely federally.

The problem is that all too often in the past where the province has been the lead, it has not provided comprehensive assessment and it has not provided procedural protections to the public. It doesn't provide for public hearings. It doesn't provide for the kind of funding and full participation.

Mr. Gar Knutson: What couple of examples come to mind?

Mr. Rodney Northey: Are you asking for examples of where the provinces have not done this?

Mr. Gar Knutson: Yes.

Mr. Rodney Northey: In Ontario, for example, when the Ontario government is doing something in class environmental assessments for roads, everything gets done at the administrative level with the Ministry of Natural Resources. DFO does not tend to get contacted at all on fisheries issues that are affected by projects in Ontario, to my understanding. That would be one example.

Mr. Gar Knutson: Up until recently the province managed them...? No?

Mr. Rodney Northey: They only manage things where there is not going to be a loss of habitat. Where there's to be a loss of habitat, the federal involvement is required and an authorization is required.

The problem is that the provinces sit in judgment and decide when they're going to decide when a loss of habitat is involved. So what happens is very late in the process DFO may get contacted when something blows up, but there's not this early question of whether there is going to be a loss of habitat and the immediate need for a federal environmental assessment. That is not going on in Ontario. There is one example.

Mr. Gar Knutson: Are there any others? We seem to be making the case by understanding the history.

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Mr. Rodney Northey: The other clear example where this comes up very frequently is the issue of provincial crown lands, where provinces are of the view that where activities are occurring on their lands, such as forestry, there really is no federal role going on. Hearings are going on in Manitoba, to my understanding, involving enormous areas for paperboard plants and operations under forest management where the federal government is not playing a role, even though we're talking of tens of thousands of hectares of land. Bridges are involved. Roads are involved. Fish habitat is involved. Navigable waterways are involved. Where is the federal government? It's not involved, because the province is not giving it the information. It's a kind of game of ducking. Things are not getting picked up at the earliest stages.

Those would be two examples. Forest management is a clear area where we're just not seeing the province recognizing the full extent of federal authority and covering things off properly.

Mr. Gar Knutson: Okay. To go back to the language of article 5....

Mr. Rodney Northey: Where I'm having very great difficulty is in paragraph 5.6.2, which says the provincial government will be the lead party for proposed projects on lands within its provincial boundary where provincial approvals apply to the project. That is suggesting a view of federalism such that if it's provincial land there's no essential federal role. That's contrary to the whole issue of fisheries.

One should also say, looking at other examples—migratory birds are an international issue, again a convention issue. There is the federal role. What are we doing to protect bird habitat in this country? The provinces certainly aren't worrying about it. It's a federal role. Is that being caught even when we're talking about provincial lands? My suggestion to you is it is not.

It's this notion of lead authority and running through the process with that lead. How do we ensure all the proper federal interests are going to get picked up in that process? It's possible they will get picked up. What I'm saying is I'm concerned about the way this is set out, with the notion of how much is lead to the province.

Mr. Gar Knutson: Excuse me. I'm a little slow on this. You're saying paragraph 5.6.2 more or less describes the situation as it is now. The federal government is not playing a role on provincial land.

Mr. Rodney Northey: Where it should be.

Mr. Gar Knutson: You're saying we're taking a system that exists now and we're agreeing in writing to make it legal, or to make it whatever, even though it doesn't work very well.

Mr. Rodney Northey: I guess what I'm not conveying is that the system I just described is not a legally sanctioned system. It's a system of administrative malfeasance and bad or poor management. That system is what we're trying now to put in place and legalize through this approach. I'm suggesting the system we have now is not living up to international commitments. It's a backward step. So the idea of entrenching that in this kind of agreement is to confirm a backward movement, not to move somewhere forward for Canada.

Mr. Gar Knutson: And we're calling that “harmony”.

Mr. Rodney Northey: “Harmony” is a very peculiar term when we don't know what the standard is. The idea that ten different standards are better harmonization than one uniform national standard is a very peculiar use of words.

Mr. Gar Knutson: Is the underlying observation historically that the provinces don't do the job, in a general sense, and the federal government makes them do the job, or is that an oversimplification?

Mr. Rodney Northey: It's an oversimplification, because until the late 1980s, when the federal government was told its process was legally binding, it wasn't doing the job either. The problem is it's a complicated problem. It needs to have the public involved, with some tools for the public to force governments to do things.

The problem has been that provincially there have been far fewer tools, far fewer standards, than there have been federally. As a result, the public takes the government to court under the federal process because their standards are at least there for the courts to do something with. But in my view it is not a record where either government should be particularly proud to spout forth in the international community. I'm saying we need a combination of both, because neither are really living up to their full commitments.

Mr. Gar Knutson: The officials suggested, somewhat briefly, that the provinces are better suited because they have a lot more people on staff. They talk specifically about inspectors, 2,000 of them instead of only 200 federally. But you're saying we have stronger laws, stronger standards.

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Mr. Rodney Northey: Certainly in environmental assessment you can pick out particular examples. Some provinces do good environmental assessments on occasion.

As a general matter, the federal standard on a national level is tougher than the average provincial standard. There are idiosyncrasies all across the board. For example, Ontario has a very tough law, but the law only applies to the public sector, by and large. So the private sector in Ontario does not go through environmental assessments except in the most extreme examples. That's a tough thing to summarize. What do you say? Which standard is better, the provincial where it applies or the federal for the universal application? These are difficult issues.

Mr. Gar Knutson: Am I out of time?

The Chairman: Yes.

Mr. Gar Knutson: On the second round I'll come back to 5.6.2 as an example of devolution. Maybe we'll follow up on that line.

Mr. Rodney Northey: We can go then to 5.6.4 and the question about “best situated ” and criteria. There are going to be examples. I started with the point that the old regime, the environmental assessment review program regime, presumed that the provinces could take the lead on things. But what it had, which the present act doesn't have, is this ultimate kicker that the federal process was capable of applying unless it duplicated. The courts then said substantive and procedural duplications were required before you knocked out the federal role.

We're in danger here of giving to the provinces without having that residual federal role or clear standard saying what the federal role is on these projects. My fear is that administratively you will get a long way down certain environmental assessment processes with the provinces in the lead, and by the time things happen there will be political consequences to the federal role coming in. This just does not make sure that at the front end the best and highest standards are being asserted. That's my concern.

Mr. Gar Knutson: It's based on our understanding of history.

Mr. Rodney Northey: Yes, and it's based on financial resources being applied by different governments. As you alluded, that's also a fair issue.

Mr. Gar Knutson: That seems to be a bit of a moving target these days.

The Chairman: Mr. Laliberte.

Mr. Rick Laliberte: I just want to raise a side note.

There's a bill being introduced very shortly here, Bill C-7. It's Saguenay and St. Lawrence Marine Park. I'm cautious about finding the word “harmonization” in different areas in legislation, and I just want to ask you what experience you've had with this word or the origin of it.

In this context it doesn't seem to be a devolution of responsibility in any way, but it has been replaced. Originally it was intended to read “management committee”, and now it's going to be called “harmonization committee” in relevance to Canadian government and Quebec government responsibilities pertaining to this marine park.

Where did the word “harmonization” originate? Has it popped up consistently in policy and procedure, in legislation provincially, federally, and internationally? What's the origin of this?

Mr. Rodney Northey: I couldn't give the committee any indication of what the origin is, but it does pop up. It is not simply a Canadian term. The world is looking at harmonizing various aspects of its environmental assessment practices. The World Bank is trying to work through with other development assistance banks on bringing some harmony to their processes.

I don't want to leave the committee with the impression that the bad word here is “harmonization”. It's not the word, it's the approach. The word has some powerful connotations that suggest we're bringing things together to uniformity. The problem is that the approach we're taking seems to be to split things into greater and greater parts and not bring things forward.

So it's not the word I am taking issue with, it's the fact that we are not using the word to really create harmonization; we're using it to do something else. I think it's more correctly characterized in the example of environmental assessment as devolution.

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That's not to say I'm not familiar with the bill you're referring to. “Harmonization committee” may be the most appropriate term when there are joint responsibilities and things are being harmonized that were previously separate, but all I'm talking about is what this harmonization accord is talking about.

Then again, maybe I should add that joint federal-provincial environmental assessment agreements that result in panel reviews like the Cheviot Mine review are legitimate harmonizations. Those are a good idea. What I am concerned about is harmonization in this instance of ten provincial regimes versus one federal regime. It's that context I'm specifically addressing.

Mr. Rick Laliberte: Yes, I understand that perspective. The harmonization of the federal government with a province and a relationship with that provincial jurisdiction and federal jurisdiction.... It's an appropriate term, as in this case with the marine park, which is a harmonization committee specifically on that shared jurisdiction. But wholesale to bring 10 or 12 jurisdictions into one federal entity, it's watering us down extremely; it's putting us into a small corner.

Mr. Rodney Northey: Agreed.

[Translation]

The Chairman: Mr. Bigras.

Mr. Bernard Bigras: Our witness expressed concern that the federal government might intervene at some point if the provinces were not doing their job. I am surprised that the witness did not refer to the Supreme Court judgment regarding Hydro-Québec. In his view, does this judgment enable the federal government to intervene?

[English]

Mr. Rodney Northey: That's a timely question. I have in front of me the Supreme Court decision, and I'd like to read one excerpt from that, which deals with the issue of international obligations. This is following review by the court, and I quote:

What the foregoing underlines is what I referred to at the outset, that the protection of the environment is a major challenge of our time. It is an international problem, one that requires actions by governments at all levels. And, as is stated in the preamble to the Act under review, “Canada must be able to fulfil its international obligations in respect of the environment”.

That is from the Supreme Court of Canada judgment and talks about the importance of fulfilling international obligations. As I understand the Hydro-Québec decision, it does not limit the federal role in environmental protection. In fact, many of us who were reviewing the scene before that decision regard the decision as in fact handing a greater mandate to the federal government.

I say that because prior to that decision it was not at all clear that there was a crime against the environment per se. There was certainly very clearly a crime against human health. What that decision underlines.... And if you read the minority or dissenting judgment and the majority, the one point they agree on, nine to zero in favour, is that the federal government has the power to make harm to the environment a criminal offence. That is part of the federal criminal law power.

I regard the federal role coming from that judgment as the government getting an expansive role to say, for example, with respect to biodiversity, are there crimes against the biodiversity convention or things coming out of that convention that could constitute a crime? The decision seems to me to give the federal government an opportunity that many of us didn't think it had.

[Translation]

Mr. Bernard Bigras: Our witness has just spoken about the judgment, but I would like him to relate it to the harmonization agreement. What is his concern regarding the harmonization agreement in light of some of the guarantees recently provided by the Supreme Court?

[English]

Mr. Rodney Northey: It's a lengthy process to go to the Supreme Court every time one wants to get things done. The fear is that in this accord we're not seeing a true commitment by the provinces and the federal government to live up to full international standards. This went all the way up to get this kind of answer. Perhaps it will change things. It would be wonderful if it did change things on all levels. But right now the problem is the lack of commitment by both levels and, particularly in the province I'm from, a lack of commitment by the province to live up to the highest standards to which the international community is now moving.

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[Translation]

The Chairman: Thank you, Mr. Bigras.

[English]

I have a brief question, Mr. Northey. In aiding the record of the hearings of this committee, when officials appeared on Monday, October 20, among them was the head of the Canadian Environmental Assessment Agency, Mr. Gershberg. I'd like your comment on something he said at a certain point:

The bilateral agreements will clarify respective requirements and procedures to be followed when both jurisdictions require an environmental assessment, but will not reduce any of the Canadian environmental assessment requirements. There is nothing...

—and this is the key sentence on which I would seek your comment—

...in this subagreement that requires an amendment to the Canadian Environmental Assessment Act for its implementation. The Canadian Environmental Assessment Act, which came into force in 1995, already contains appropriate provisions to allow for harmonization with the provinces, as envisaged in this subagreement.

Mr. Rodney Northey: Let me start with some of the easier parts of those statements.

It is true that the Canadian Environmental Assessment Act does make provision for harmonization with the provinces. In particular, sections 40 to 42 or 43 deal with federal-provincial environmental joint review panels, and that's a mechanism that existed under the previous legislation. So I fully agree that the act does make provision for some kind of harmonization. But what the accord is dealing with seems to be quite a different matter from what is set out in the act. It is dealing with the front-end part of environmental assessment, and all of the things to be done under screening and comprehensive study.

What the act does make provision for is a project-specific basis for governments, responsible authorities, to get together and coordinate things. But in my reading of it, the act does not envisage a holus-bolus manoeuvre whereby the province, on any type of project within its borders, is delegated all the federal responsibilities at the outset, as well as the coordination of environmental assessment. I don't see the act making that kind of larger-term approach to environmental assessment. I see it simply recognizing that for the largest projects, there should be some coordination and harmonization through joint panels, and on all projects, some general, project-specific type of coordination. But as I say, I don't see a generalized statement saying the province shall be the lead for every project without any specific negotiation.

In terms of the question about what it is that.... Well, maybe that answers the question.

The Chairman: Does the subagreement require an amendment to CEAA or not?

Mr. Rodney Northey: You can read the agreement, and the agreement itself says there is no amendment required. The difficulty—and this is coming from somebody who has tried to follow this process—is that the agreement does say that, but it is not clear on how things are going to happen if this is true. I can only say that if you look at my paper and at what I said to you about the differences between the Ontario process and the federal process, it is very difficult to see how one is going to simply say there is harmonization that's going to happen, and that both are met.

Let me give the examples of what I talk about in the paper. What are the differences? In Ontario's example, Ontario forces every environmental assessment to look at alternatives, resulting in a process of picking a preferred alternative. It's a process of narrowing down from all possibilities to a preferred possibility. That's where Ontario starts. The federal process only requires you to look at alternatives, generally speaking, where it's proven you've got some issue of environmental significance. So the starting point federally is a finding of significance. That then initiates a requirement to look at alternatives.

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How is one going to reconcile those two processes? The federal person needs to have a finding of significance; the Ontario act makes no mention of the term “environmental significance”. The federal guys need that finding in order to come to their conclusions. The Ontario act has no recognition of that finding in its process and does not need that finding to come to its conclusion about a preferred alternative. Well, in that kind of scenario how does one talk about harmonization between the two governments?

Yes, you can co-ordinate timeframes. But the idea that one process substitutes for the other, to me, just doesn't seem to work, legally speaking.

The Chairman: So do you see the necessity for amendments or not?

Mr. Rodney Northey: The problem is that one side's going to have to amend to make it work in the Ontario-Canada context. The problem one's got is that Ontario just amended its legislation. Canada says its legislation is new. So what is going to happen?

One side is going to have to give way, because the two do not easily work. If the federal government is saying—and it's now stating this on the record very clearly—that it is not amending, I guess we should now look to Ontario to explain what its position will be. But the problem is that when both sides keep saying that they don't need amendments on either side, that this is all administrative, that they're all working together, that makes people like me incredulous, because I don't see how the things can work that simply. They don't in the case of Canada and Ontario.

Mr. Clifford Lincoln: Could you tell me in your judgment if you see, from the perspective of court challenges and tests—you're looking at what happened with the Oldman dam—whether the EARPGO guidelines were in your way superior to the present CEA and whether the CEA has weakened our position in the face of potential court challenges for the future?

Mr. Rodney Northey: Thank you for that wonderful question that is again complicated.

What I would say is that the relationship between the present act and EARPGO is not very easy to determine. I mean this in the sense that there are aspects in which the new act is superior to EARPGO. The one clear example to me where it is superior is by providing for a requirement to assess cumulative effects. That would be one example that EARPGO is silent on. Now, you could assess cumulative effects under EARPGO, the old regime, but you didn't have to.

But in the largest variety of respects I have to say that I believe that the old law, EARPGO, was superior, on the following points.

One, it was shorter and simpler. People could read that in a sitting. The new act is very difficult; you need four regulations to understand whether it even applies to something, and then you go through a whole pile of clauses in order to understand what environmental assessment means. For a process that is so important to the public, this act is almost incomprehensible for the public to deal with.

The other aspect in which I think EARPGO was clearly superior is in the breadth of what it applied to. It applied to proposals. Unfortunately, the Supreme Court of Canada had a narrowing impact on what kinds of proposals the government must have meant, but in terms of the language of EARPGO and the language of the act EARPGO was much broader and more consistent with where the world community is on applying environmental assessment to broader regional types of issues, sectoral issues, not simply project-specific issues.

Mr. Gar Knutson: I'd like to go back to Mr. Bigras's question about CEPA and Hydro-Québec. The issue is that assuming the government signs this as written and another fact situation similar to the Hydro-Québec one were to arise, would this agreement prevent us from acting?

Would we still be able to send in the inspectors, realize the—

Mr. Rodney Northey: Well, “inspection ”is not the right term for environmental assessment. It's a matter of, can the federal expertise be properly applied, can they ensure that the right decision is made?

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I think that the subagreement would not prevent the federal government from acting, but with all the signals surrounding it and the implications, I think the agreement makes it more difficult for the federal government to act.

Mr. Gar Knutson: Did the cause of action in the Hydro-Québec case come out of an inspection process or an environmental assessment process?

Mr. Rodney Northey: It did not come out of an environmental assessment; I believe it was an inspection.

Mr. Gar Knutson: So it came out of the inspection process.

Say we rely on the provinces to do the inspection. Apparently there's language in here that says if we agree to let provinces do the inspection, then we have to give them time. Say at some point in the future we want to inspect—let's not pick on Hydro-Québec—Ontario Hydro. We would have to give them notice. We would have to wait six months to see whether they did what we wanted to do. If they didn't do it, then we would have to tell them we were going to abrogate the agreement.

Mr. Rodney Northey: Yes. Let me be absolutely clear. I think an ambiguity has been created here. The agreement you've been referring to is the broader harmonization agreement; I have been referring in all my comments today simply to the subagreement on environmental assessment.

Now as for the broader agreement, I don't know what the commitments are, how that mechanism works, or what that does for the federal side. I apologize. I was speaking specifically to this agreement. This environmental assessment subagreement, in my view, does not stop the federal government from exerting its legal responsibilities; it just creates a mechanism and climate that discourages the best assessments, the highest standards, from being applied.

Mr. Gar Knutson: I'll just sum up. Correct me again if I'm oversimplifying, but you're suggesting that historically, on balance, the federal government operated at a higher standard, a better standard of environmental assessment. So if we harmonize with the provinces, that can only mean lowering our standard.

Mr. Rodney Northey: Yes. I would just add that the world is not standing still while we're engaged in this exercise; the world is moving to more rigorous standards. So it's not just an exercise such that, historically, the provinces have been doing one thing and we've been doing another, so that this is just a battle, domestic brawl, or squabble. The problem is that the world is moving ahead to tougher standards on all aspects related to environmental assessment. What we're doing is fighting over something that is dated.

So how are we going to move to catch up to where the world leaders are? We were once the world leader in this area. This is not moving us there at all. That's my difficulty.

Mr. Gar Knutson: We risk embarrassing ourselves on the international stage.

Mr. Rodney Northey: I think we're embarrassing ourselves already on the international stage in environmental assessment on several fronts, yes.

Mr. Gar Knutson: Okay. That's all.

The Chairman: Any further questions?

Thank you very much for your presentation and commitment to the cause of environmental assessment.

I urge the members of the committee, those who are present in this room at least, to prepare themselves for tomorrow's session. We'll have the officials back. On the basis of their presentations a week ago Monday and what we heard in between, there are certainly a number of areas that need to be covered. So I would urge you to go over the blues, your notes, or whatever, to possibly prepare some questions.

The meeting is adjourned.