ENSU Committee Meeting

STANDING COMMITTEE ON ENVIRONMENT AND SUSTAINABLE DEVELOPMENT

COMITÉ PERMANENT DE L'ENVIRONNEMENT ET DU DÉVELOPPEMENT DURABLE

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, October 29, 1997

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[English]

The Chairman (Mr. Charles Caccia (Davenport, Lib.)): Order. Good afternoon, ladies and gentlemen.

[Translation]

Good afternoon. Before starting our discussion, I'd like to make a small suggestion.

[English]

As you know, the Auditor General has produced in the last 12 months a number of reports that touch on the environment and sustainable development. They range from the Atomic Energy Control Board to management of the fisheries to the control of transboundary movement of hazardous waste—you name it. These are quite interesting documents.

I would appreciate very much if there could be three volunteers, one on the government side and two on the opposition side, willing to form a kind of agile subcommittee to examine these reports and then to make a short, crisp report back to this committee to determine which, if any, of these reports ought to be examined, possibly in a progressive number of importance, or whatever.

If it is the conclusion that there are some reports we should be dealing with, this will of course be the subject matter for evening meetings for workaholic members of this committee who love to work into the small hours.

• 1535

I'm not saying we have to do it very soon, but I think there is something here that we ought to at least examine to determine whether it is material for a thorough and objective analysis.

Could I seek, therefore, three volunteers?

Mr. Knutson, you volunteer? Thank you.

Would there be two volunteers from the opposition side?

Mr. Casson, thank you. We need one more.

Mr. Laliberte, thank you.

That is then so ordered. Thank you very much.

We have now Environment Canada officials with us, ranging from the deputy minister to the president of the Canadian Environmental Assessment Agency.

We are glad you were able to come. Ever since last seeing you, we have had a number of consultations and submissions. A number of witnesses urged this committee to recommend that the accord not be signed. Therefore, we would like very much to know what would be your interpretation of the reasons.

Without engaging the chair in asking questions, we'll ask you whether you have a statement you'd like to make. After that, if one is made, I will open the floor to members of the committee.

Mr. Glen, welcome to the committee again.

Mr. Ian Glen (Deputy Minister, Department of the Environment): Thank you, Mr. Caccia.

I'd like to introduce a colleague, Glenn Allard, who's here from the environmental protection service part of Environment Canada. He isn't directly involved in the harmonization efforts in the same way Mr. Gershberg and I are, but he's here to assist if necessary in answering questions.

Additionally, there is material that I understand was delivered to the committee staff earlier today. This would represent undertakings we gave when we were here before.

The Chairman: It is coming, I'm told, and being distributed.

Mr. Ian Glen: The material to be distributed now is an effort on the part of officials working with me at Environment Canada to try to give the committee, for its assistance in doing the report you're wanting to do, some written response on some of the issues that were brought forward by the other witnesses you had: the concern around devolution; how in fact governments would take action; the more general question of why do harmonization, which I understand you're going to return to here; and why enforcement isn't part of the present harmonization initiative. So I have provided that information in writing to assist in the further considerations of this committee in preparing the report.

Additionally, Mr. Gershberg has written material he wished to provide to the committee as well.

Sid, perhaps you want to speak briefly to that.

Mr. Sid Gershberg (President, Canadian Environmental Assessment Agency): Mr. Chairman, I believe there was a note distributed to the committee this morning via Mr. Caccia on the questions raised by Mr. Lincoln last week.

The Chairman: Which note are you referring to?

Mr. Sid Gershberg: The note referred mainly to BHP. There were some questions Mr. Lincoln had raised. We sent a copy at about 10 a.m. today.

The Clerk of the Committee: Some of these have been circulated, Mr. Chairman, but we may not have copies here at this stage. I'll have to check.

The Chairman: Please proceed.

Mr. Sid Gershberg: As well, we're having distributed this afternoon some speaking notes, which I would like to highlight a little later when it comes back to me, and a copy of a bilateral agreement with the Government of British Columbia, which I'll refer to later as well.

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Perhaps I could note one other thing. I also have with me some senior officials from the agency, Mr. Bob Connelly and Mr. Paul Bernier, who will be available during the question period should there be issues that need clarification.

Mr. Ian Glen: Further, Mr. Caccia, for your and the committee's needs, you sent a letter to me, which I received by fax on the weekend, that addressed requests coming out of, I believe, Mr. Muldoon's appearance here. Our departmental people are finishing that response and you should have it within the day—not this day, but within the next 24 hours.

The Chairman: Yes, that is a letter from the clerk—

Mr. Ian Glen: I think it was from the chair. I think it was from you, sir.

The Chairman: —on my behalf, requesting an answer to the five points raised by Mr. Muldoon in his intervention a week ago. That's correct.

Mr. Ian Glen: People are finishing the work to respond to that now.

The Chairman: All right. So do we want to hear now from Mr. Gershberg first or from Mr. Glen?

Mr. Sid Gershberg: I'll start if that's all right.

The Chairman: Please go ahead.

Mr. Sid Gershberg: I'd like to thank you for the opportunity to come back and address some of the issues that have been raised by other witnesses over the past week.

As I indicated, I have tabled my more formal remarks, but I would like to take a few minutes, if I might, to highlight some of the points in those, particularly relating to the rationale for concluding a harmonization agreement. I'd also like to try to deal with the concern that the agreement moves to a lower standard of environmental protection, the concern about whether amendments to CEAA itself would be required, and the issue of consultations.

The committee heard some witnesses question the need for a harmonization agreement in the area of environmental assessment. Others cited examples where they thought an agreement would be helpful in perhaps reducing, if not eliminating, overlap and duplication. A number of witnesses related the fact that major environmental assessments right now are already effectively harmonized between the federal and provincial governments, so there may not be any need for a comprehensive agreement.

One raises the issue of what are the alternatives. One alternative obviously would be to not have a harmonized process and to conduct separate federal and provincial reviews of the same project. Alternatively, one government could effectively abandon its responsibility for environmental assessment altogether in favour of the other jurisdiction, leading to either centralization or devolution. A third option, which in some ways describes the status quo, is to continue to develop project-specific agreements on an ad hoc basis.

As is the practice today, where we're working with the provinces on joint reviews, they can use either a federal process, such as Voisey's Bay, or a provincial process, where the province is in the lead, such as the recently completed Cheviot Mine panel review, which I think was cited by a number of witnesses. The problem with this form of harmonization is it's largely ad hoc and often requires protracted negotiations that can lead to delays in the environmental review.

The outcome of the CCME process is essentially a framework that establishes a set of principles that will allow for greater consistency and predictability across the country. It builds on the current practices and permits governments to work co-operatively to meet their respective legal obligations. It is not intended to cause nor does it have the effect of causing the abandonment of obligations.

The Canadian Environmental Assessment Act itself addresses the issue of harmonization with other jurisdictions and provides statutory authority for working with other jurisdictions. For example, the act talks about establishing joint reviews. It allows us to enter into arrangements or agreements respecting the assessment of environmental effects and to enter into arrangements for co-ordination, consultation, exchange of information, and determination of factors to be considered in assessing the environmental effects of projects of common interest.

The objective of the agency itself, in section 62 of the act, includes, and I quote:

(b) to promote uniformity and harmonization in the assessment of environmental effects across Canada at all levels of government;

The issue of standards is an important one, and let me say a word or two about that.

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As I indicated last week, the practical effect of the subagreement will be to raise the level of environmental assessment conducted by provinces to that of CEAA or higher. The lead party must ensure that the environmental assessment is conducted to meet the legal requirements of the other party, and that's stated in section 5.7.0 of the agreement.

The end result is additive, not a drive to the lowest common denominator. It takes into account and incorporates the different requirements of each government, and hence ensures a higher quality of assessment than a single process by one jurisdiction alone.

For example, not all jurisdictions require consideration of cumulative effects. Any project subject to this agreement will now include an analysis of cumulative effects, since it is a CEAA requirement. Similarly, the CEAA requirement for participant funding for review panels will continue to apply to all joint panels formed under this subagreement, because it is a CEAA requirement. It may not be a requirement for some of the provinces.

With respect to the issue of the amendment of CEAA, I stated last week that no amendments to CEAA are required to implement the proposed subagreement on environmental assessment. The act itself makes provision, under section 58, for harmonization with other levels of government to occur. The accord and the subagreement are political agreements. They are not statutory nor are they constitutional in nature. Such agreements do not supersede legislation, so the fact remains that only the federal government, acting through Parliament, can amend CEAA.

I might add that when the subagreement was negotiated, it was made absolutely clear to provincial and territorial officials that the only arrangement the federal government would find acceptable would be one that could be implemented using the provisions contained in the act, and that it would not require amendments to the current act. It was on this basis that CCME federal and provincial deputies reached a consensus.

The subagreement itself can only be implemented through bilateral agreements with each province. For example, the federal government concluded a co-operative bilateral agreement with the province of British Columbia in April 1997, just a few months ago. That has been tabled, and that agreement really serves as a template for the arrangements the subagreement provides for. The administrative roles are clarified so the assessment can proceed efficiently. It creates an approach to co-operative assessment where the federal government is a full partner in the conduct of the environmental assessment, and each jurisdiction retains its absolute authority to approve or reject a project.

The agreement, using the lead administrative approach, calls for the parties to use the results of a single co-operative assessment in making project decisions. The B.C. assessment process will generally be the one followed, with the full participation of federal authorities, to meet CEAA requirements.

Under the bilateral agreement, either government can hold a panel review, but if both governments identify the need, a joint panel review will be appointed. Following completion of either a regular assessment or a joint panel review, both governments will be free to make their respective project decisions based on the results of the co-operative joint review.

I have one quick word on consultations. The process adopted for the environmental assessment subagreement consisted of: the release last November of a discussion paper on environmental assessment and consultations on that paper; the establishment of a multi-stakeholder focus group on environmental assessment, with assessment experts; the release by CCME of three draft texts of the subagreement, which appeared on the CCME Internet site; and special stakeholder meetings by four or five provinces as well as the federal government.

To summarize, the proposed assessment subagreement is about co-operation, not about devolution. It builds on the objectives and requirements laid out in the Canadian Environmental Assessment Act and can be implemented without amending the act. When implemented through bilaterals with each of the provinces, it will provide a more predictable and clear process for proponents, governments, and the public.

The additive requirements of the agreement will result in a more comprehensive treatment of environmental effects of projects than a single assessment by one jurisdiction.

Thank you, Mr. Chairman.

The Chairman: Thank you, Mr. Gershberg.

Mr. Glen.

• 1550

Mr. Ian Glen: I'll be very brief.

As I said, I believe a document entitled “Clarifications On Key Concerns” has circulated around to people.

We tried to extrapolate certain concerns from the presentations of the other witnesses you had. A key one is the devolution of federal authorities. I would again indicate to the committee that it's our view, and certainly the view of the provinces, that devolution is not a part of the harmonization approach. All jurisdictions will continue to maintain their legislative authorities and use them as they feel it's necessary.

In terms of the approach to consensus-based decision-making under the accord, this is not an approach that will require unanimity. That's desired, but it'll be by consensus. If parties wish for certain elements not to play, then the authorities that are available to jurisdictions are fully applicable to them for the circumstances of the particular issue.

In terms of taking action where the government does not follow through on its obligations, as I said earlier in our appearance, there is a sensitivity to what is called “stepping in”. Say certain conduct has been agreed to for a particular jurisdiction, but they're not able to do it. There is an effort to ensure that parties then come together to determine whether a different approach may be the way to ensure that the results we're seeking are achieved. It also allows—with a rough timeframe of six months—the other jurisdiction to come in and address the issue, but this is not absolute.

The major exception to that of course is in the area of emergencies, in which parties would be expected to come in with their authorities and act in the proper fashion to address an environmental emergency.

Why do harmonization? I tried to indicate in writing the advantages again. I think the most practical way of answering is that we feel across jurisdictions that having a framework within which to work and develop the subagreements brings some greater public understanding of how the parties will work together.

It will encourage more directly what all jurisdictions are now trying to do, and that is a partnership in ensuring that we're addressing environmental concerns in this country. We feel that the framework and the development of subagreements can also assist in ensuring that we identify gaps in the overall environmental management for the country.

Why isn't enforcement part of harmonization? I believe I did speak to that when I was last here. The enforcement component of an environmental regime is identified in the work plan as an item to address.

Inspections quite naturally should lead in some cases to enforcement. It's expected that this will be addressed as part of the work plan.

I'm trying to be fairly brief so that we can permit questions, Mr. Caccia.

The Chairman: Yes, and that's very good of you. I'm sure there are many members who want to start asking questions.

I was just noticing the second bullet on item four concerning enforcement not being part of harmonization. When I asked the question, you told me it was a political decision. So we have to make a choice between your answer and what's printed here. There was a desire to start small. Which of the two will it be?

Mr. Ian Glen: You can take it the way it's written. I thought I was consistent with that in my remarks.

The Chairman: There's a difference between starting small and having a political decision, don't you think?

Mr. Ian Glen: The political direction—

The Chairman: Unless political decisions are small.

Mr. Ian Glen: No, no. I don't mean it that way. Good try.

In terms of what pieces would be done first, there was political direction such that the standards, inspection, and environmental assessment pieces would be done before the remaining items on the work plan, and enforcement was part of that. There clearly is an intention to address enforcement.

The Chairman: Thank you, Mr. Glen.

We start as usual with Mr. Casson, followed by Mr. Knutson.

Mr. Rick Casson (Lethbridge, Ref.): Thank you, Mr. Glen. The last time you were here, I don't know, I must have got off on the wrong track or misunderstood, because we went through the last week with overlap and duplication as being one of the issues that we're addressing here on harmonization. A number of the witnesses commented that they could find overlap and duplication, and now you've come back and said it's to minimize gaps. So I'm kind of at a loss here.

• 1555

But maybe getting to another point, as for the whole idea of the devolution of federal authority, a lot of the concern we've heard in the last week has to do with the fact that the federal government is not going to be in a position to override, I guess, other decisions and keep a national standard.

Do you have a comment on that? Is it still a possibility that the federal government is going to have national standards that all the provinces will at least have to meet?

Mr. Ian Glen: If I may, in answering, can I come back to the overlap and duplication?

Mr. Rick Casson: Sure, you bet.

Mr. Ian Glen: I'll start with this. The approach that's encouraged under the harmonization initiative is that all jurisdictions work together to set a national standard. There will be a consistency of expectation, if I can put it that way, against which the provinces or the federal government will use their authorities to achieve that result. So “national” should not be interpreted narrowly as “federal”. It's one in fact that all jurisdictions will try to work to. That's what a standard subagreement is trying to achieve.

In terms of the overlap and duplication, Mr. Caccia, a part of the material we sent you was the various studies, in one fashion or another, that identified some of those issues from the past.

I think the point we're trying to make in the document today, in discussion with one of my provincial colleagues who was here last time as well, is that clearly the emphasis in the earlier initiative—we called it EMFA, the Environmental Management Framework and Agreement, which this is not—had more to do with overlap and duplication. This initiative will certainly factor that in, but it's not driving it in the same way. It's trying to ensure a rationalization across systems and a common management approach for dealing with it. The driver isn't so fundamentally overlap and duplication.

There will be an expectation, particularly on the duplication of activity, whereby one level of government could address the issue on behalf of whatever jurisdictions would be there. That's desirable, but the single driver on this is not by itself.

I'm not certain whether you had a third element to that.

Mr. Rick Casson: That's all right now, Mr. Chairman.

The Chairman: Thank you, Mr. Casson.

Mr. Knutson, please.

Mr. Gar Knutson (Elgin—Middlesex—London, Lib.): Thanks very much, Mr. Chairman.

I just want to preface my comments by saying that I understand from an administrative level that we have a number of people working in the environment department for the Government of Canada, and that as your budgets are being cut, you want to maximize the value for the dollar. I understand how provincial administrators might feel the same way, such that they want to maximize the value for the dollar. As such, you might want to come together to sign an agreement that sorts out what everybody does.

In a general sense, certainly the testimony we got from the majority of witnesses was that this makes good sense in theory, but in practice it's not going to work that way. Historically, for the last 30 years, the federal government has often taken a very aggressive lead role, which has resulted in court conflicts and very public debates with the provinces, and it has dragged them forward.

Just this week we saw a minister from Alberta say that if the federal government is going to sign on to an international agreement with legally binding targets, he's not going to implement them. I don't think that's verbatim, but I think that catches the essence of what Minister Lund said. That doesn't seem to me to set up a very good background.

Mr. Glen, you said that all jurisdictions are trying for partnerships. I think I quoted you verbatim there. But he doesn't seem to be trying for a partnership. I didn't see that sense of co-operation.

I'm wondering if people feel that the provinces are going to use this to kick the federal government out of what they thought should be more of a provincial jurisdiction. That might be their agenda, more so than maximizing the value for dollar, co-operation, working together, because there's some evidence to suggest.... One witness from Alberta told us about an Alberta environmental official who said he wasn't going to give information to the feds until the day came when the province also had jurisdiction over penalties and all that sort of thing. We heard that in the province of Ontario when they build a road, even though they might be implementing on fish habitat, they don't alert the federal government. They figure building roads is their jurisdiction and they're not about to involve the federal government in that.

• 1600

I'm sure at an administrative level there are many people who want to work together, but in the big picture I'm not sure that exists. Consequently, at the end of the day, this agreement may be used for purposes other than enhancing value for dollar at an administrative level.

Mr. Ian Glen: Let's start at the administrative level. Certainly in our efforts to work with our provincial colleagues to think through and develop, under the guidance of ministers, this accord, the subagreements, and what we anticipate, everyone is acting very much in good faith. I don't question that. I see it; it's real.

In terms of the administrative advantages we have, a framework that allows us to come together and plan nationally, we believe it's very much in the interest of all jurisdictions—the federal government and the provinces—so we work accordingly.

In terms of value for money, you would expect that of us as well. We take that as a genuine expectation. I was reflecting on this last night, and if we had a lot more money I would still embrace this approach because it would allow us again to work quite appropriately with our colleagues to ensure we're addressing the environmental concerns that are clearly there to be addressed. In terms of the capacity of the process to be hijacked, I say that with care, and I don't think you expect me to speak necessarily to where I would position myself as opposed to Ty Lund.

The document does seek a common commitment. It does expect consensus decision-making, which is not unanimity.

Mr. Gar Knutson: It's defined as unanimity here.

Mr. Ian Glen: I think you'll find the consensus still recognizes if a party doesn't want to play, authorities have the capacity to act by retaining all of the legal authorities we have. So if you had a situation in which a particular jurisdiction did not wish to be a part of whatever it is, then quite frankly from the federal government perspective we would use our authorities to do what we felt was necessary. This agreement supports that.

Mr. Gar Knutson: Let me pick up on that. You said the minister has told the environmental groups—I don't know whether she said it in the media, but I think she said it enough that it's public—it's not devolution and yet all of the environmental advocacies say it is devolution.

If we were to agree that inspection should be done by the provinces and the federal government took the money we now spend for inspection—we lay off inspectors, train them to do other things, or they take cash-outs or whatever—that to me seems to be one of the things we're anticipating might happen five years down the road. While legally or constitutionally we may be able to do an inspection as an extension of the criminal law power, if we don't have the expertise and the human resources to do it, we have devolved in a real sense, maybe not in a legal sense, our power to do inspection to the provinces.

I'm wondering whether that will make a difference if a PCB case comes up at Quebec Hydro or a provincial hydro and the provinces don't want us to put our federal noses into their jurisdiction. If five years down the road we don't have inspectors because we're relying on the provinces to do inspection, is that a devolution of power?

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Mr. Ian Glen: First of all, it is not a devolution. I know what you're worried about and I've heard environmental groups say you're going to abandon certain of your capacities for efficiency reasons—

Mr. Gar Knutson: Then they overlap and duplicate.

Mr. Ian Glen: —and then trust the provinces to do it for you.

From an Environment Canada point of view, there will be a management challenge to deal with the resource base we have, and that applies for my provincial colleagues as well. We're not denying, because it's public record, that environmental budgets have been reduced. I think only two jurisdictions can show their budgets have gone up in the last bit, and quite frankly that increase is minimal.

Mr. Gar Knutson: They've been slashed.

Mr. Ian Glen: That's your word; I would say they've been reduced.

In terms of our capacity to do our work, it's a challenge for our organization and it's a challenge for provinces as well, and we feel this will assist.

On the inspection area, I will have to ensure we have an inspection capacity, and we will. The degree to which we have to maintain it against trying to effectively engage partnerships will mean we'll involve ourselves with jurisdictions in common training and in a common understanding and appreciation of the standards we'll apply for our laws and how to inspect.

I don't rule out at all situations in which we will be the lead inspectors for provinces as well. In essence we will have a particular technical capacity that will make us the more appropriate level to do the inspections. So it's not a one-way street to the provinces; it could work either way.

We'll have to be smart about our resources, but at the same time we'll continue to ensure we have a capacity to act when necessary and we will not be devolving legal authorities because of that.

The Vice-Chairman (Mr. Gar Knutson): I have to take the chair as Mr. Caccia goes to the House.

Mr. Charbonneau is next.

[Translation]

Mr. Yvon Charbonneau (Anjou—Rivière-des-Prairies, Lib.): Mr. Chairman, I tried to read the clarifications and the other documents that were distributed today. May be the answers to my questions are in these documents. I didn't have enough time to read them through. I would therefore ask some clarification.

However, I'd like somebody to explain to me in a more convincing way why we find it appropriate not to have implementation provisions. How can we convince the public, the environmental groups and the companies that it is fitting that we should not have implementation provisions in the agreements?

My second question has to do with international aspects. Witnesses told us that Environment Canada would not be able to meet some international commitments anymore if the province were to take on those new responsibilities.

You certainly heard those arguments. I'm just mentioning them. Some people told us that this type of harmonization accord was too far apart from the principles in the Agreement on Internal Trade which was signed in 1994, I think. As yet, I do not have the documents at hand. We asked you to provide us with the sections of the agreement which concern environment, but according to our witness, who seems to know well the Agreement on Internal Trade, it contains apparently provisions that emphasize the need to put the environmental concern in the forefront. According to that witness, the kind of harmonization accord that was arrived at by the parties would be in contradiction with the principles of the Agreement on internal trade.

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Thirdly, groups representing the aboriginal people appeared before us. The Assembly of First Nations and the Crees of Quebec above all told us that they had been almost excluded or absent from the consultation process. They suggested that they do not feel any commitment towards agreements that will decide how to manage the environment on their territories, since they were not properly consulted, if at all, when those agreements were developed.

Now here is my last question. Some people who seemed to know fairly well the environmental issues maintained here that the harmonization process was in the end more driven by Canadian unity concerns, in order to make the federal process more flexible, than by environmental concerns. I would like to hear your comment on that statement which was made here.

[English]

Mr. Ian Glen: First of all, on enforcement, I again return that as part of the documentation we now use around the harmonization issue, the work plan does identify enforcement. It's bracketed at the moment only as a question of whether or not it should be one of the subagreements worked on within the next eighteen months or the next three years. That is clearly an indication that we are planning to deal with enforcement.

Going back to the point Mr. Caccia made earlier, the subagreements that were being developed were being developed under political direction. This is what ministers wanted us to first deal with. Enforcement will be factored in and will be part of the completed framework when we are finished.

So to those who are concerned about why enforcement is not there, yes, enforcement will be there as part of the development of the further subagreements.

In terms of international commitments on two levels, the work plan identifies that international agreement will be one of the aspects of the further work that will be done. It is a concern for the provinces as well. The provinces—and this perhaps goes to the comment Mr. Lund is connected to—have a concern concern that the federal government does make commitments internationally that we are left to deal with.

The truth of it is that we expect the provinces to be part of implementing international commitments. In many cases, they have aspects of their responsibilities or authorities that are needed on some of it. We try to engage the provinces in the consultation mechanisms as we lead to what Canada's positions will be internationally.

In terms of outcomes then, yes, we have international commitments now that require both responsibilities for the federal government and responsibilities for provinces. So they have an interest, and that will be recognized in the work plan here.

In terms of internal trade, I apologize. I don't understand the point well enough. I'm quite prepared to take the transcript from whichever witness it was and, perhaps under the circumstances, will try to provide an answer back to the clerk, and we will try to understand that issue.

In terms of the concerns for aboriginal people, in the principles section, the accord does recognize that jurisdictions will work co-operatively with aboriginal people and their structures of governance, and that it is necessary for an effective environmental management regime. The accord recognizes that aboriginal people and their management regimes must be factored into the future. It also recognizes that this accord will not affect aboriginal or treaty rights. Where those rights exist, the jurisdictions will respect them.

• 1615

This agreement is between the federal government and the provinces at this point in time, and we're factoring accordingly. There was clear acknowledgement that advances in aboriginal self-government initiatives in the future will be accommodated under the accord.

In terms of consultation, there was input from the aboriginal community. One can question whether it was adequate, and can do so quite legitimately from their perspective. I think the same criticism has come to this process from environmental groups. Both in forums that I chaired or ones collectively under the CCME rubric, aboriginal interests were sought out. In certain instances, they chose not to respond or wished not to be a part of the process. We're sensitive to them being a part of our future, and we'll continue to find ways of consulting with them as we develop the subagreements.

The process was led by Canadian unity. The initiative was given its greatest impetus from direction of first ministers' meetings. We had both the Prime Minister and the provincial premiers wanting work done in this area. Is it for Canadian unity? I would hope that much of what governments do these days is trying to address Canadian unity.

More critically, for our purposes and the work we're doing, however, I draw your attention again to the vision for this document: “Governments working in partnership to achieve the highest level of environmental quality for all Canadians.” The efforts of officials working on this material now are entirely focused on as good and positive environmental results as we can achieve.

The Vice-Chairman (Mr. Gar Knutson): You still have a couple of minutes.

[Translation]

Mr. Yvon Charbonneau: I'd like to come back to the issue of

[English]

higher standards,

[Translation]

or rather to the issue of achieving the highest standards.

I read your notes and find them quite convincing. In the document you gave us, there does not seem to be any rationale behind the concern relative to lower standards. It's only going to be the most demanding standards, whether at the federal level or elsewhere.

How is it that the texts are interpreted in drastically different ways by the witnesses we heard? I would not say they were unanimous, because this is not so, but 80% of the people who came here fear a lowering of the standards. The fear that we will lose a lot. For your part, would you maintain here that everything is cast in stone and that there are no problems in this regard?

Could you explain us why this is perceived differently? Would there be some discrepancies in some paragraphs? How is it that people really fear a lowering of the environmental standards whereas, according to you, this is absolutely not so? We cannot question those people again since you are the last ones to appear. That's why I dare ask you to clarify this a little.

[English]

Mr. Ian Glen: I'll try to provide a thoughtful answer, although I don't want it to sound provocative.

The answer is trust or the lack thereof. I listened quite intently, and I learned a lot from environmental interest groups worried about any arrangement whereby parties are trying to work together in the sense of bringing everyone down to the lowest common denominator. Across jurisdictions we've tried to craft a document and a commitment to that document that strives for the highest standards, because we feel it's a very appropriate vision that should be strived for.

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The trust is, in essence, the polarized interests, the parties that feel they must constantly advocate to governments that they have to do more and more. These interests are doing it with their entire focus on the highest results, and that is where we are trying to locate this as well.

In the environmental area that I have seen in the last year, we have tended to create villains. This is an effort to have all parties that can actually address issues to come together under some framework. Environmental groups will have a capacity to be brought in through the consultative approaches, through the mechanisms, to ensure that their interests are understood as we develop the subagreements—not necessarily accepted entirely, but understood. We have learned a lot from them as we have worked on the agreements.

In the same vein, across jurisdiction under the CCME, we seek out industry, we draw it in. Industry has concerns about this document as well, but the trust factor lies in the fact that if you set in place a framework that we all believe can work well across jurisdictions while driven to the vision that we feel is appropriate, and put in public accountability measures and the capacity to review the whole process after five years, we will be judged across jurisdictions by our commitment to actually making this work, and making it work in a way that generates trust. Trust leads to the best environmental results, but the area is fraught with mistrust: of governments, of industries, of environmental groups. It's there.

The Vice-Chairman (Mr. Gar Knutson): That's because some villains are there. We don't have to create them.

Mr. Bigras.

[Translation]

Mr. Bernard Bigras (Rosemont, BQ): Several groups indicated, as Mr. Charbonneau said, that they were concerned by this agreement because it represents a transfer of responsibilities or a devolution of authorities to the provinces. I must say that your document could most certainly convince them of that.

My question will be brief. I'd like to know if your department has assessed the impact of the recent decision by the Supreme Court on Hydro-Québec. Is this decision a new argument, for the federal government, to convince those groups who are concerned by this harmonization accord?

[English]

Mr. Ian Glen: I think the most comforting aspect of the decision for environmental groups is an affirmation of the federal capacity, in proper constitutional capacity, to be engaged on the management of toxics. We are now looking more to a piece of legislation than to this document, but there is a legitimate, constitutionally supported role for the federal government in the environmental protection area, and that should bring comfort. We took that to be given and argued in that fashion in the Supreme Court, and the criminal law authority does support certain areas of our activity that were, in certain circles, questioned.

So to parties who would look to that decision and ask what it gives them, it certainly gives a stronger confidence to the federal voice. We have a reason to be involved in those areas, and we will be involved in those areas.

In terms of the anxieties that people have around devolution, it goes back to Mr. Knutson's question as well. This document does not generate the devolution of authorities. It clearly anticipates a partnership and a capacity for one level to act on behalf of the other to address the issue, but it is not devolution in the narrow sense of giving up legal authorities. The public administration concern—in essence, can you get there the other way?—is one that we have to be accountable for. We have to be vigilant that we have the capacity to act when necessary.

The Vice-Chairman (Mr. Gar Knutson): Mr. Laliberte, I'm sorry, but Mr. Lincoln is actually next on the list.

Mr. Clifford Lincoln (Lac-Saint-Louis, Lib.): That's fine. He can go ahead.

The Vice-Chairman (Mr. Gar Knutson): Okay, and then we'll go to Mr. Lincoln.

Mr. Rick Laliberte (Churchill River, NDP): I respect Mr. Lincoln so much that I hate take his lead on this, but I'll try.

• 1625

In the four points that were stated in the accord, of course, there are overlaps, gaps, interrelated responsibilities amongst governments and regimes, as you call it, and then all our witnesses to their best ability sharing their experiences of your department, and the provincial departments sharing honestly and sincerely their views.

We haven't embraced, as you have, this accord, as you state. For you to use words like distrust, anxieties, fear, and villains...I would respond by saying we're trying to do this with an open mind and not label people. I think I would take exception and say try not to do that. These are Canadian people who do care about the consciousness of the future of the land, the water, the future of their children, and it mends no bridges if there are ill feelings between relationships that have been created.

Mr. Ian Glen: Can I interject just now? If you heard me in any way denigrating those people or any person coming before you stating with passion the worries they had on it, I apologize. That is not what I meant at all. We respect the points of view they bring forward and we don't question the sincerity from any perspective, whether it be an industry perspective, an environmental group, aboriginal people, or other levels of government.

What I was trying to do in a thoughtful way is to say that the trust or lack of trust is very much a dynamic we have to deal with, and we're hoping this approach will go a long way to dissipating that. I'm entirely respectful of individuals and the points of view they're trying to bring forward, and we're trying to accommodate that.

Part of the dynamic here is having one level of government own the worry that you shouldn't trust another level of government. We're saying we don't agree with that. We have to work on the basis of trust to help address the environmental issues.

I am entirely concerned that the interests of aboriginal Canadians are addressed on environmental issues, and we know on many of the issues we work on that the consequences in regions of the country where they are more prominent than not are great. We're dealing with that.

So I need to clarify, Mr. Knutson. I'm sorry, I did not want to be heard to say in any way I basically reject out of hand that I will not accept the perspectives you're bring to it. They're quite genuine, quite sincere, in what they're putting forward. I don't agree with the conclusions of much of what they're saying. I think we have to trust and we have to try to build the relationships that this document helps to do.

I apologize to you. I didn't mean it to be a speech.

Mr. Rick Laliberte: In my perspective a lot of the presentations of the witnesses who were here really spoke strongly of the need for a federal jurisdiction, and a strong federal jurisdiction, on environment.

Everyone came back to that point. Even the industry, while they didn't specifically select which level of government would be the lead party, wanted single-window approaches, which you're trying to approach. But in trust and in quality and in overall experience over the years, people are much more comfortable with the federal environmental responsibilities. The uncertainty is between the provinces. In light of harmonization with the cutbacks that have been realized, they don't go hand in hand.

• 1630

Harmonization in time without cutbacks could have been more favourable. We've heard that over and over. Harmonization as an intent is acceptable, but as the process that's going on simultaneously with cutbacks, it is impossible. It just doesn't make sense. The lack of a gap analysis to prove what are the major points in your rationalization did not occur. The analyses are weak in the sense that there's nothing given to us as examples. With enforcements such as the Environmental Protection Branch receiving major cutbacks, how is it going to function in the future?

In terms of aboriginal people, I think there was a statement yesterday.... The representatives were asked if the national government has in any way looked at unifying an aboriginal voice on environment. If you include them in this circle as willing partners, the language barriers will not be as open.

[Editor's Note: Witness speaks in his native language] I can't say in my own language what I intend to say because this is not the realm. I can't use my language here. But if you used an aboriginal circle for environmental purposes, where...a lot of wisdom and knowledge are meant to be kept as well. You can't publicly and openly share everything.

Intellectual property rights are in the spotlight right now. Some of it is not meant to be disclosed. If you allowed them to share and give you a vision of what's meant, it might be for the betterment of this country. But that effort doesn't seem to have occurred yet.

In terms of the highest standards, which were alluded to here, what is the level? The European standards? The American standards? Are we going to create our own? There are a lot of questions in my mind.

I'll leave it at that.

Mr. Ian Glen: In terms of the desire to have a strong federal jurisdiction, I would add to that. One, I would say we agree. We want to ensure that we have as strong a capability as we can with what we have.

I would add to this that in terms of addressing the environmental concerns, we also want strong provincial regimes. We're not remaking the Constitution here, but recognizing that both the federal and provincial authorities apply. I'm advocating—and I know through working with our provincial colleagues we're advocating—strong provincial regimes as well, if we're committed to solving environmental problems.

In terms of working together, cuts or no cuts, this approach provides a confident framework within which we can plan to ensure that. I think, quite frankly, the best Canadian solution is not who's stronger than whom, but collectively what are we doing. We should ensure that under an agreement like this the public accountability expected of governments has to be responded to.

In terms of aboriginal people, although I indicated this document and the arrangement we're presently working with are to deal with the federal and provincial responsibilities, we recognize the need in this document to reflect certain aboriginal interests.

In the area of environmental planning, I agree entirely with you. Certainly, whether it be in Mr. Gershberg's area of environmental assessments or some of the environmental planning we do, the traditional knowledge of aboriginal people is entirely appropriate and it's a welcome voice in helping solve and address a number of the problems. In the discussions in the future around various components of the subagreements, or planning beyond that, I encourage and welcome the aboriginal community to be a part of it as much as we can. I can't say more on that. Let's leave it at that.

In terms of the highest standards, we are talking about standards we'll be setting across jurisdictions for Canada and it will be reflecting what we see to be the Canadian situation. I would think that in a number of areas the standards we might set in the early going through advances of either common planning, technology awareness, and knowledge of the issues...we might find in the years ahead we're shooting for even higher standards. That vision is what drives the agenda.

• 1635

Mr. Rick Laliberte: In terms of the examples we were given of assessment, you have Voisey's Bay as a federal model and then you look at Cheviot as a provincial lead. Is this accord in any way protecting a lot of this federalism? It looks as though section 5.2 on inspections, for example...once a lead government takes that role, once the ball gets rolling, you can't reverse it.

What would be the mechanism to reverse this process if, let's say, Cheviot, as opposed to a favourable recommendation, came to a negative recommendation and there was pressure for federal intervention? What are the mechanisms?

Mr. Sid Gershberg: If we take a case like Cheviot, that's really true for any environmental assessment, where, for example, there's a public panel review. This is a very important point in terms of agreement, that each jurisdiction, the federal government and the provincial government, maintains its authority to take a decision. What comes out of the Cheviot panel is a recommendation to two governments. It's using one assessment process, but it's a recommendation to two governments that says, in this case, go ahead.

Each government quite independently assesses that recommendation, and in the case of the federal government, the responsible authorities or those involved in the assessment process will bring a response to the report and a recommendation to the federal cabinet for a decision to be taken.

It's quite independent from the decision that the Alberta government had to take in this case. That will continue. Those independent decisions will continue to be taken through the agreement and through the subagreement, as well as any bilateral agreements that we undertake with the province.

The Vice-Chairman (Mr. Gar Knutson): Mr. Lincoln.

Mr. Clifford Lincoln: Mr. Glen, I would hope that you see us here in the committee as your best allies, because sometimes we criticize, and I know it must be rough to be a deputy minister of the environment, whether it's in the federal arena or Ontario or Alberta or anywhere. I don't envy your job.

At the same time, I think when we bring all these things forward, we are hoping it gives leverage to you and to all of us to put pressure to restore what has been lost in the federal government structure in the environment, which is considerable.

Can you give me an idea of how many inspectors and investigators there were in Environment Canada prior to the big cutbacks and how many there are today—in rough terms?

Mr. Ian Glen: In response to your introductory remarks, we do look to you people to be voices of assistance, collectively. So I appreciate the comment. We share your advocacy with our provincial colleagues as well. We're all committed to trying to get on with good environmental work.

Presently—and Mr. Allard indicated that it really isn't much different from before—in terms of full-time inspectors available within Environment Canada, we have 54 full time and 109 part time.

• 1640

Is that how I would read that, Glen?

Mr. Glenn Allard (Director General, Special Projects, Environmental Protection Service, Department of the Environment): Yes.

Mr. Ian Glen: Full-time investigators, instead of inspectors, 14. I'm not sure how to read my form; I might have to check the numbers for you. In terms of full-time capacity, we have 68 either inspectors or investigators. I think, quite frankly, some of them might wear two hats when they do that.

Mr. Clifford Lincoln: Wasn't there some rationalization, or a significant amount? I know, for instance, in Quebec, and also Ontario, when we spoke to them, there had been significant changes. I don't know at what point that arrived, but are you saying there are 68 all the way through and there have never been fewer than 68?

Mr. Ian Glen: I can't say that. I'd actually have to get those figures for you. I think that would be fairer.

Mr. Clifford Lincoln: I brought this up because I was looking at figures from Quebec, where in my time we had none, we had to fight. It was due, sadly, to the PCB fire in Saint-Basile that we managed to get what we call a green police and investigators, and there were 47 of them. Between 1994-95 and 1997-98 the 47 have now become 11.

I think if we look at the federal level, too, we're going to see some significant reductions, not only in inspectors and investigators but also in scientists and different people who carry out the environmental tasks.

My point is this: admittedly, it's not a legal devolution. I don't think we would say it's a legal devolution. I think everybody appreciates here that there's no legal devolution. But I think what people are worried about, as far as I understand the people that have appeared before us and the people that speak to me and so forth, is the de facto devolution caused by the fact that as we spin off or we harmonize within another province they also are doing the same.

Right now, for example, at the federal level we are spinning off airports, we're spinning off ports, and we're spinning off railways. Take the ports and harbours situation. I'll bet you that if you look at the comparable environmental standards that applied when the ports were truly federal—or are truly federal, as they still are now, before the legislation—then in what will happen afterwards you will see that there is a lowering of the standards and that these community organizations are able to subtract themselves from some requirements that were previously in place.

When we say lack of trust, I agree with you that there's lack of trust, but it is caused because people now don't feel that the federal institution, as such, having been weakened—and it has been, the budget has been shrunk by 40%.... As my colleague Mr. Laliberte said, this happens at the same time as the comparable structure at the provincial level has been shrunk drastically. I gave you the figures in Quebec, and they are dramatic.

Some people tell me—and these are very informed people—that, under the NAFTA agreement, if any material change happens to our capacity to deliver environmental protection, then Canada, as the signing party, as the responsible party, has to advise the two other council members, Mexico and the United States, that this change has happened.

I'm asking, has this been done, and if it's not done could this also impact on this agreement? In other words, has there not been, through the material changes that are happening, by the shrinking and getting together because we have to for collective protection...?

• 1645

I understand that under article 20(2) of NAFTA there's a material obligation for the government to advise the parties. Do you agree with that?

Mr. Ian Glen: I would have to check that. You said you got it on good authority. I'll respect that. We'll address what might be required under NAFTA and our commitments there. I'd have to take that under advisement.

In terms of having to work with the provinces, we want to work with them. Having been at the provincial level yourself as minister of the environment, I think you know it's a good overture if we're trying to come together to work on environmental issues.

Budget cuts are not what drove this, in terms of this agreement, but this approach can work in good times and bad. We're trying to maximize the capacities of governments to address the problems. There's no doubt that the reductions across all jurisdictions have lessened the capacity. It has to come when you have about $500 million less than was the case a few years ago. We don't deny that, but we do say it gives you even more resolve to try to work across, in the public administration terms you referred to earlier, to maximize benefits.

Mr. Clifford Lincoln: Mr. Glen, if I may say so, when I was minister of the environment in Quebec, the federal ministry, under Mr. MacMillan then, had a budget that was considerably bigger. Of course, it had the parks and so forth, which it doesn't now, but regardless of that it was considerably bigger. Quebec, I see, has cut back its combined budget by 40% in the last two years, from $357 million odd down to $275 million or something like that. So before, when Bradley was minister in Ontario and they had a big budget, when Quebec was trying to do all kinds of things, when the environment was a fashionable item, when the federal ministry was big and powerful and had a lot of employees, we couldn't even suffice the collective demand.

What I'm trying to put to you is now that everybody has shrunk by 40% here, Ontario has shrunk drastically and we have shrunk, and at the same time we devolve, how can we claim to have sufficient resources to do the protection we are required to do? Obviously, we can't.

I think this is when the people who appear before us say that this is the time when the federal government has to be even more vigilant to be the standard agency, to be the watchdog over all the others. Then we say that because we've all shrunk, let's get together, since we now have a little pie to look after a bigger problem, because the problems don't get smaller, they get bigger—toxic waste, the Great Lakes, and so forth. Therefore, isn't it a total collective devolution of a total responsibility to protect the environment?

Mr. Ian Glen: I speak as a public servant. I'm not wanting to challenge a commitment of a government to deal with its deficit problem. I'm responsible for a department, along with colleagues across the federal government who've also had to deal with this problem and how to adjust and live within budgets. I do feel that in today's circumstances, advancing an agreement like this, working constructively with jurisdictions to solve the problems, makes sense. It makes sense on many counts.

In addition to that, I think in the last number of years we should acknowledge, not deny at all, the significant contributions and advances by industry to assist in solving the environmental problems. The financial contribution they're making to address a number of the issues is quite important and it does enhance the budget capacities that would otherwise have been with governments to regulate, to enforce, to inspect. So progress is being made. I don't want this to sound a desperate scenario. Are the challenges there? Most definitely. You know they're there. You feel them, passionately. The chair of this committee is well known as a strong advocate of addressing environmental problems. As a representative of a federal department, we welcome that advocacy.

• 1650

Mr. Clifford Lincoln: Could I ask one last, brief question?

The Vice-Chairman (Mr. Gar Knutson): Yes, if the answer is brief.

Mr. Clifford Lincoln: Mr. Glen, we're trying to help you. We realize you don't make the budgets and you don't cut the budgets, but maybe collectively we can get some idea of what you would need today, instead of the $500 million that you're given, to have an effective, functional ministry with enforcement at its proper level, with inspections at the proper level, with scientific backing at the proper level. Perhaps then we can pass on to our friend, the Minister of Finance, that you need x billion more.

Mr. Ian Glen: The answer will be short. In fairness, I'd wish first to have that good discussion with my minister. I don't think it's quite fair to say, “Here's my pitch”. I quite frankly feel I have to be responsible within the government I work in and consider that.

Do we have enough? I think in honesty—and it would apply to many departments—not as much as you would like to have to address the problems. Our task—and we take it on appropriately—is to make the best of what we've got and make it work, and that's what we're trying to do.

The Vice-Chairman (Mr. Gar Knutson): Mrs. Kraft Sloan.

Mr. Ian Glen: I apologize. I just want to do a time check. I indicated to Mr. Caccia before that I have to go shortly to replace the minister at an event she cannot make. I just need to do a time check, if I could. I'd like to be here to assist the committee, but....

The Vice-Chairman (Mr. Gar Knutson): The clerk advises me it's now 4.53 p.m.

Mr. Ian Glen: No, I know the time. How much more time might be needed? I'm quite prepared to have colleagues stay.

The Vice-Chairman (Mr. Gar Knutson): What time do you have to go?

Mr. Ian Glen: Quite honestly, five minutes ago. But I could hold until 5 p.m. and then I really have to run. I apologize to the committee.

The Vice-Chairman (Mr. Gar Knutson): Karen.

Mrs. Karen Kraft Sloan (York North, Lib.): I guess I have to reiterate what Mr. Lincoln said, that the budgetary decisions are generally out of your realm and there is a lot of sympathy on this committee for those kinds of constraints you have to work under.

Kathryn Harrison gave testimony to the committee. She has written a book on federal-provincial relationships. She stated that in the mid-1970s the federal government had signed bilateral harmonization agreements with seven provinces. She felt it was fairly similar to the new Canada-wide accord in that it was seeking to clarify the federal role and the provincial role in order to reduce overlap and duplication. However, in her assessment she felt these agreements had failed.

I'm wondering if you have any comments about bilateral agreements in the 1970s, why they failed, and a comparison to what you're looking at right now.

Mr. Ian Glen: The only comment I have is no, not from the 1970s to now. It is our intention to do our utmost to ensure this approach does not fail.

The Vice-Chairman (Mr. Gar Knutson): It wasn't that the agreements failed. It's the people charged with implementing them, the politicians, who failed.

Mr. Ian Glen: The approach we have now is bringing more factors of accountability, declaring end-result reporting. Put differently, there's probably more meat to the bone in this one than there would have been in the 1970s. I confess I was still in law school then, so perhaps I should read her book.

Mrs. Karen Kraft Sloan: Are you familiar with her work?

Mr. Ian Glen: I'm familiar only with the fact that she appeared here.

Mrs. Karen Kraft Sloan: I was wondering if there was any historical memory within the department that you might want to comment on. I understand that you were—

Mr. Ian Glen: It's a question of who has greyer hair.

• 1655

Mrs. Karen Kraft Sloan: I'd like to enter my head of hair into that debate as well.

But I appreciate the fact that you weren't in your current position in the 1970s.

Mr. Ian Glen: Nor you.

Mrs. Karen Kraft Sloan: Nor was I. I was still in university.

I wonder if there was any departmental memory of this time period, what lessons you learned from this, and what you're trying to avoid. As Mr. Knutson said, the agreements were fine, it's just that the people didn't implement them very well.

Mr. Ian Glen: I'll turn to my younger colleague.

Mr. Glenn Allard: I'm certainly being aged in this discussion.

Yes, I was in Environment Canada throughout the 1970s. I would characterize the agreements that were in place at that time more as statements of inter-jurisdictional co-operation, and they really did not get into specifics of, yes, we will negotiate specific standards and we will build into them an accountability regime; we will build into them timeframes under which things should be implemented, public reporting and things of that nature.

So I think there is much more of an accountability regime built into the current set of agreements than there was in the 1970s.

Mrs. Karen Kraft Sloan: Thank you.

The Vice-Chairman (Mr. Gar Knutson): I have more questions, but I'll ask them of your officials or colleagues, if there's anyone who—

Mr. Ian Glen: I apologize to the committee. There's a cabinet committee the minister has to go to, and a speaking event I've stepped in to cover for her came up today. But I would ask Christine Gay in our federal-provincial group in Environment Canada to assist Mr. Allard to the extent that they can help the committee.

If there are undertakings that we should be giving in order to assist in providing more information, I'm more than willing to have those undertakings made. I know you're on a time line. As I understand it, you're trying to write a report now, and we will assist you as best as possible within those time constraints.

The Vice-Chairman (Mr. Gar Knutson): Thanks again for coming, and we look forward to seeing you many times in the future.

Mr. Caccia, would you like to ask a question in this round? Everyone else has gone on the first round.

Mr. Charles Caccia (Davenport, Lib.): Thank you. Let me first ask a question of Mr. Gershberg, based on his statement on page 4 of his paper today, under the heading “Whether harmonization will require amendments to CEAA”.

In the fourth paragraph, reference is made to the fact that the federal position is that no amendments to CEAA are required. That is a position. What does position mean? Policy?

Mr. Sid Gershberg: As I stated earlier on or somewhere in my remarks, the agreement was negotiated from day one on the basis that it would be done within the existing framework of the act. It was done with that in mind. The provinces know that. I was under direction from my minister to do that, and in doing it, working with lawyers and so on, we're convinced that there's absolutely no requirement and no intention.... I know a number of witnesses—

Mr. Charles Caccia: Let me stop you right there. So today you feel there is no need for amendments.

Mr. Sid Gershberg: Absolutely not.

Mr. Charles Caccia: This is the position of the federal government.

Mr. Sid Gershberg: Yes.

Mr. Charles Caccia: Suppose a few years from now, however, it will become evident that an amendment is necessary. That position, therefore, could change. Isn't that so?

Mr. Sid Gershberg: I would argue that one could also have the option of changing the agreement, but I think that really is a hypothetical question.

Mr. Charles Caccia: What would be the easier of the two, changing the agreement or changing the act?

Mr. Sid Gershberg: I suspect changing the act would be difficult.

Mr. Charles Caccia: You think so. But the act is coming up for mandatory review in a few years. Is that the case?

Mr. Sid Gershberg: That's the case.

• 1700

Mr. Charles Caccia: Between now and the review of the act, should you conclude that there are such deficiencies elsewhere, at other levels, that the CEAA ought to be strengthened, would you not proceed?

Mr. Sid Gershberg: That's a different issue.

Mr. Charles Caccia: No, it is this issue. I'm addressing whether or not amendments will be required.

Mr. Sid Gershberg: What I am stating quite categorically is that there are no amendments required because of this subagreement.

Mr. Charles Caccia: Today.

Mr. Sid Gershberg: Well, today or—

Mr. Charles Caccia: No, today. You don't know what the future implies.

Mr. Sid Gershberg: But the five-year—

Mr. Charles Caccia: Excuse me, but you're mortgaging the future.

Mr. Sid Gershberg: No, I'm not mortgaging the future. What I'm saying, sir, is that—

Mr. Charles Caccia: So you're definitely firm on the fact that there will not be any changes on CEAA in future—

Mr. Sid Gershberg: No, I'm not saying that.

Mr. Charles Caccia: —that could flow from the accord.

Mr. Sid Gershberg: From the accord. What I'm saying is that, yes, there is going to be a five-year—

Mr. Charles Caccia: You're definitely on record on that.

Mr. Sid Gershberg: Yes, I think I'm quite—

Mr. Charles Caccia: You're taking a very dangerous route here, Mr. Gershberg, I'm alerting you. Because there may be a situation in which you may want it.

Mr. Sid Gershberg: I agree.

The Vice-Chairman (Mr. Gar Knutson): If I could make a suggestion—

Mr. Sid Gershberg: What I'm saying, sir, is that you're absolutely right, there is a five-year review coming up. That five-year review will be a broad review and will obviously deal with a whole host of matters raised by, I'm sure, environmental groups, industry, yourselves, and others on either deficiencies or gaps or other issues quite unrelated to the subagreement. Government, at some point in the future, two or three years from now, may decide that they want changes to the act for whatever reason.

What I'm saying here today, and I've said it, I think, quite categorically, is that we do not believe there are any requirements to change CEAA as a result of this subagreement.

The Vice-Chairman (Mr. Gar Knutson): Would it be the same to say that any interpretation of this agreement that would infer a requirement for a change in CEAA is wrong?

Mr. Sid Gershberg: That's right.

The Vice-Chairman (Mr. Gar Knutson): So anyone who says that these words imply or show a need to change CEAA, then, would be wrong.

Mr. Sid Gershberg: I think I'm correct in saying that what people have said is, there's a line in there that says there could be changes as necessary. We have stated quite categorically that we do not believe it's necessary. No one, I think, has come up with specific areas where we would have to change it.

I mean, this is understood by the provinces. This is not new. We've been saying this quite clearly for many months.

Mr. Charles Caccia: Oh, yes, there's no doubt about that. The fact is, witnesses, and well-informed witnesses, have told us the contrary.

Mr. Sid Gershberg: I understand that.

Mr. Charles Caccia: We therefore want to make sure that your statement here is one that takes into account the possibility of future changes, as some other sources have indicated to this committee.

To me, it seems reasonable to assume that there might be need for amendments in future.

Mr. Sid Gershberg: For other reasons. As we stated, in terms of the five-year review and a general review of the act—

Mr. Charles Caccia: But you may also discover that certain provincial assessment acts are inadequate under the subagreement, and something needs to be done in order to bring them to an acceptable standard.

Mr. Sid Gershberg: But that might require changes to provincial acts.

Mr. Charles Caccia: If you decide the responsibility is provincial, yes. If the province will not do it, will you wait for one year?

Mr. Sid Gershberg: I guess what we're saying here is that in order to meet our commitments for this subagreement, there is no necessity to amend CEAA.

I don't know how else I can state it.

Mr. Charles Caccia: Oh, it is very clear, but there may be situations in which this amendment may be necessary, at least in view of the fact that we are entering a totally new territory and you may not be satisfied by the quality of the provincial legislation. If the provincial level will not agree to strengthen its legislation to the level CEAA envisages, or wishes to have in order to be a mirror legislation to the CEAA legislation, then what will you do?

• 1705

Mr. Sid Gershberg: We might not have a bilateral agreement. Remember, this has to be implemented through bilaterals. If we cannot come to a suitable arrangement with a particular province—and we think we can, but if there should be a situation where we cannot—then we will not sign a bilateral agreement. We will not implement the subagreement in that particular case.

Mr. Charles Caccia: So you are certain that you will examine the provincial legislation, should that be the one to be applied, and assure yourselves that it will be adequate before you sign? Is that what you are saying?

Mr. Sid Gershberg: Yes. The two governments will have to be able to accommodate the subagreement, and we are confident that we can do that. I think I pointed out a number of areas within our own legislation now that encourage that.

Remember, even if the provincial legislation is at a lower standard—and I think this is really important in terms of the subagreement—we are using this additive approach. So if the provincial standard is lower than ours—for example, if they do not do cumulative effects or do not have participant funding—it will become part of that joint agreement, because the CEAA standards will apply.

Mr. Charles Caccia: Then why not apply CEAA in the first place, rather than applying the provincial legislation? Why go through this long and difficult route and say, “In this particular agreement, CEAA legislation, by comparison, is better than the provincial one, and it shall apply”? Why defer to the provincial legislation? That is exactly where I wanted you to be.

Mr. Sid Gershberg: But we are not deferring. We both have legislative requirements. This agreement will apply in cases where both the federal government and the provincial government have legislative requirements, and we are not changing those legislative requirements or authorities. That is very important to understand.

So we come to this agreement together with two sets of requirements, and a proponent, Voisey's Bay or Cheviot, is faced with potentially two environmental assessments. Presumably, nobody wants that. We do not want it. The provinces do not want it. The proponents do not want it. So we are saying we both have legislative requirements. This is not a constitutional agreement; we are not changing those. We are going to come to the table together and develop, in effect, a joint process that meets their legislative requirements and meets our legislative requirements and have one assessment that will meet the requirements of both acts, the particular provincial act and CEAA.

Mr. Charles Caccia: At the present time how many provincial legislations meet your requirements? Can you name the provinces that meet CEAA requirements?

Mr. Sid Gershberg: They are all a little bit different.

Mr. Charles Caccia: Thank you. We know that.

Can you tell us which ones meet federal requirements?

Mr. Sid Gershberg: They do not have to meet federal requirements. We are going to meet our own—

Mr. Charles Caccia: But you just said that you will want to satisfy that they meet federal requirements.

Mr. Sid Gershberg: What I am saying is that if we cannot come to a bilateral agreement on the process that we are going to use.... Basically, these are administrative process agreements.

We are applying the CEAA standards in every single assessment that will be done under this accord. That has to be understood. We are not stepping out. This will be a joint process where the terms of reference, the requirements for analysis, the participant funding—

Mr. Charles Caccia: Great. What you are saying is beautiful. It sounds like music. So which legislation will have primacy when it comes to assessment?

Mr. Sid Gershberg: Neither will have primacy. They will both apply. There will be a lead—

Mr. Charles Caccia: It doesn't make sense.

Mr. Sid Gershberg: If you have an opportunity to look through the B.C. bilateral, the province takes the lead in administrative terms. There is a project committee where the federal government sits on it, the provincial government sits on it, and others.

Mr. Charles Caccia: But surely you will want to use one piece of legislation in order to operate in a clear and orderly fashion, not two at the same time.

Mr. Sid Gershberg: The accord and the subagreement do not alter legislative authorities. It is very clear on that, so the two legislations will apply.

Mr. Charles Caccia: All right. So two legislations will apply at the same time—the stronger one and the weaker one, because in each case there will be one that will be stronger than the other. Very rarely do they mirror each other. Is that correct?

Mr. Sid Gershberg: That's right. There will be some cases when the provincial legislation will be broader than our own.

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Mr. Charles Caccia: So in doing so, we actually want to simplify the system and make it faster. Now explain the logic of it to me. Instead of one legislation, we apply two, in the name of efficacy.

Mr. Sid Gershberg: The alternative to not applying the two to a joint process...I'll come back to Cheviot or Voisey's Bay. Both legislations apply in both those cases, but we're trying to avoid two separate environmental assessments. We're asking if we can come together and work together as partners, using the requirements of both of our legislations to go through the process of environmental assessment and then advise governments.

Mr. Charles Caccia: Thank you, Mr. Chairman. I will have another question on the second round for Mr. Allard.

The Vice-Chairman (Mr. Gar Knutson): Does anyone want to get in on the first round?

I'm not sure if I've used my 10 minutes, but I'd like to follow up on the whole assessment issue. I don't know if you have the agreement in front of you.

Mr. Sid Gershberg: I do.

The Vice-Chairman (Mr. Gar Knutson): Paragraph 5.6.2 of the assessment subagreement says:

The provincial government will be the lead Party for proposed projects on lands within its provincial boundary not covered under 5.6.1,

which is federal lands, and “subject to the limitation in 2.2.0.” I'll save people the time of looking it up: 2.2.0. refers to land claims.

I just want to make sure I understand this. I remember from the time I spent looking at endangered species that once you get south of 60° there's not a whole lot of federal land in the country. The vast number of...in the majority of times, other than north of 60°, Indian reserves and/or national parks, the province is going to take the lead. That's what it says, and I don't want to discuss whether it's a good thing or a bad thing or the implications. I just want to know if that's what it says.

Mr. Sid Gershberg: Yes, but you have to read that in combination with 5.6.4, which has another clause that allows for a best situation, for example, a Voisey's Bay, where the federal government is the lead because it probably has the capacity. It might be a project involving pipelines, for example, or a nuclear project or major transportation corridors across provinces. There will be other situations where the federal government could take the lead.

The Vice-Chairman (Mr. Gar Knutson): We could debate what 5.6.4 means, but it seems to me that if you had a really big project on Prince Edward Island, where they have a small environment department, if they have one at all, the feds are going to step in, but in places like Ontario, Quebec, Alberta, British Columbia—and I don't want to denigrate any province—by and large if it's occurring on provincial land, the province is going to take the lead.

Mr. Sid Gershberg: The administrative lead.

The Vice-Chairman (Mr. Gar Knutson): Right.

This is a multipartite question. Are you familiar with Rodney Northey, who wrote a textbook on environmental assessment?

Mr. Sid Gershberg: I am familiar with Mr. Northey. I haven't read the textbook.

The Vice-Chairman (Mr. Gar Knutson): Would you consider him an expert?

Mr. Sid Gershberg: I guess so.

The Vice-Chairman (Mr. Gar Knutson): He teaches at the University of Toronto law school.

Mr. Sid Gershberg: Yes.

The Vice-Chairman (Mr. Gar Knutson): I didn't go there, but it's pretty reputable.

Mr. Sid Gershberg: I'll accept that.

The Vice-Chairman (Mr. Gar Knutson): I'm not qualified to know whether he's an expert, but certainly on the surface he.... This is what he said yesterday, I think. He says:

Nor can anyone say that Canada has pursued a coherent model of assessment. Since the 1970s, Canadian governments have passed legislation, but without any consistent vision of assessment. To compare the two longest standing models—the federal model and the Ontario model, there are enormous disparities, despite recent legislative reforms:

He says this on application:

Federal EA [environmental assessment] applies to projects having a federal component, federal funding, federal land or designated federal approval

Ontario EA [environmental assessment] applies to enterprises or activities or proposals, programs or plans in respect of enterprises or activities where there is a public sector proponent or public land, but does not apply to provincial funding or approval. It also applies to the private sector only where there is a specific designation made.

• 1715

Then he talks about process:

Federal EA - two-stage process, with a first self-assessment stage, focusing on the environmental significance of projects, with limited consideration of socio-economic effects and broad consideration of cumulative effects.

You've made reference to that.

Ontario EA - multi-stage process, with no self-assessment, focusing on identifying the preferred alternatives from all reasonable alternatives, with broad consideration of socio-economic effects and narrow consideration of cumulative effects.

How can one suggest these two regimes may be harmonized without radically changing the laws governing these two regimes? Their principles of application differ significantly and their processes have different objectives and coverage.

I guess we could throw in a third question: how can we expect provincial administrators—no disrespect to their intelligence or their ability, but generally you're good at what you work with day to day—to apply what is, in a sense, a foreign process? I use that word lightly. Maybe it's the wrong word, but certainly it's a process that's not their own, and Mr. Northey, anyway, says they're quite different.

So the province is going to take the lead; they're going to apply our laws. He suggesting that's a major problem. He goes on to say that's the present harmonization initiative. It's harmonization in name only. He says:

its real effect will be devolution. Instead of one national model, with national standards, we are dealing with an initiative to give priority to ten provincial models....

Mr. Sid Gershberg: I'll try to respond as best I can. The issue of Ontario's EA applying, for example, only to public sector projects and not private sector projects is an important point. This subagreement applies only when projects are to be assessed by both orders of government.

So in the case of a private sector project that is not subject to the Ontario environmental assessment regime but is subject to CEA, that would be a federal-only assessment. Many assessments, the large majority of assessments, will still continue to be federal-only assessments.

The Vice-Chairman (Mr. Gar Knutson): In the province of Ontario.

Mr. Sid Gershberg: Everywhere. There are many triggers where the government itself is a proponent, and there are other cases where the provincial laws do not apply. We tend to focus on a much broader range of projects for assessment than do most provinces, which tend to focus mostly on very large projects.

It's not to say that—

The Vice-Chairman (Mr. Gar Knutson): I just want to make sure I understand this. You're saying there will be lots and lots of assessments that are federal only; consequently, the feds are going to take the lead, and consequently, even though it's within provincial lands, in the provinces of Ontario or Quebec or wherever, 5.6.2 isn't going to apply. Do I understand you correctly?

Mr. Sid Gershberg: Let me refer you to section 2.1.0, which says:

This Sub-Agreement applies when more than one Party must make a decision or issue an approval which must by law be preceded by an environmental assessment.

So in the case of Ontario, where there would not be an environmental assessment for private sector projects, this subagreement would not apply, and, yes, the federal government will be the sole jurisdiction applying in that particular case.

The Vice-Chairman (Mr. Gar Knutson): Okay.

To go back to his main point, that you have two very different processes, you're asking us to be confident that the provincial people can apply a federal process.

Mr. Sid Gershberg: I think it's important to understand that in the case of EA, it's not a case where we're walking out of the territory and leaving the lead party to do everything. We'll be at the table. We will be working with the province.

The important part is that in terms of the one window, if you wish, the administrative lead, the proponent will walk through the door and have, say, a single provincial lead, but they will also know that all the provisions of CEAA as well as the provincial legislation will be applied in the particular assessment that might have to be done.

• 1720

The federal departments, the federal responsible authorities, will be at the table. The terms of reference, the analysis and so on that are done on that project have to meet the CEAA standards. The federal departments who have decisions to take have to be confident that CEAA is being applied, and they will be at the table. They are often DOE, Fisheries, DIAND and other departments, and are usually at the table making representations, talking about what has to be done, helping in the analysis. This is not a case where the federal government is leaving the domain to provincial governments. This is a case of working in partnership, except through the administrative lead situation.

The Vice-Chairman (Mr. Gar Knutson): The other thing Mr. Northey said, on this issue of leaving the domain, is that we're not even in it to begin with. When the provinces build roads they don't advise Fisheries. They just build the road. I just raise that; I didn't want to ask a question.

I'll go to another point. In your opening comments you mentioned that currently negotiations are often protracted. Under this agreement do you expect that to be different, and why?

Mr. Sid Gershberg: I think previous witnesses have indicated that we're already doing some harmonized things, and asked why we need to go beyond that. I guess the issue for us—and you know, we could continue along the road, as I say. The act is quite clear. We have tried very, very hard over the last number of years, before my time and since then, to try to harmonize as best we can on a sort of project-by-project basis with provinces so that there isn't duplication and proponents do not have to go through more than one assessment. The difficulty, I guess, is that each time we do it it's a new situation, a new project and another province. There's no sort of set of principles that we at least can start with.

The idea of a subagreement is really to try to set down, especially through the bilaterals, the sort of framework, the rules, so that the proponents and ourselves and the provinces know what the system is that we're going to use. It's not to say there are still not negotiations on the terms of reference and appointment of panel members, etc., but at least the steps are laid out in advance, and at least we sort of know what we have to do.

In the current situation we really are in a situation where it works most of the time. It may take longer than we like, but the end result is that I think both governments—and this is true with every province—are quite committed to not having duplicate processes and not putting anybody through two environmental assessments. We have been able to achieve, I think, success in that regard. But there is a level of uncertainty attached to that, and that's the price we've been paying and the gap we are trying to close.

The Vice-Chairman (Mr. Gar Knutson): Thanks very much. Aileen, did you want to ask something?

Ms. Aileen Carroll (Barrie—Simcoe—Bradford, Lib.): No, it's okay. Thanks, Mr. Chair.

The Vice-Chairman (Mr. Gar Knutson): Mr. Pratt.

Mr. David Pratt (Nepean—Carleton, Lib.): I'd like to throw a hypothetical situation at you, which may in fact come to pass, based on what's happening in Ontario right now. I'm thinking specifically of where we may be going in Ontario in the future in terms of the deregulation of the electricity industry that we have through Ontario Hydro. It's quite conceivable that as a result of that we may be faced with many mini or micro private sector generating projects.

Given the way the Ontario act is worded right now, would the federal government be placed in a position where we would be responsible, because of the void that exists in the Ontario legislation? Would we be responsible for all of these projects across the province in terms of ensuring that the public interest was upheld as far as environmental standards are concerned?

Mr. Sid Gershberg: The Canadian Environmental Assessment Act is triggered in a very specific way. There are really three triggers. One is related to land, the transfer of land; the second dealing with money—if there's federal money going into any project it would trigger an environmental assessment; and the third is what we call our law list, which is really a series of permits or authorizations that would be required to be issued be a federal department for any number of reasons.

• 1725

Depending on the nature of these projects, for example, if it were a nuclear project, which would require an AECB or Atomic Energy Control Board permit, it would require a federal process, a federal assessment. My guess on those kinds of things is that the Government of Ontario probably wouldn't be involved.

It really depends on the nature of the project, sometimes how large it is. But fundamentally, one of those three triggers has to be activated before a federal assessment can be undertaken. So I can't answer precisely.

Mr. David Pratt: It seems to me what you're saying is these projects would fall between the cracks completely.

Mr. Sid Gershberg: Not necessarily. If the project would require, for example, the disruption of fish habitat—

Mr. David Pratt: Frankly, I'm thinking more along the lines of, let's say, a private sector operator deciding he's going to burn garbage as a source of fuel. Perhaps it's his own private landfill site, or perhaps he wants to use landfill gas to generate electricity, or perhaps burn natural gas with turbines or bunker seed crude oil, or coal or wood chips or whatever. It seems to me, based on what you're saying, these projects—perhaps not touching fish habitat at all but being small, private sector—would fall between the cracks.

Mr. Sid Gershberg: They may. Our act is very project-based in the sense that you have to look, and very often this is an issue with particular projects where proponents might come and ask whether the act is going to be triggered. Sometimes we honestly have to say we're not sure yet, that we need more detail on the project.

Cheviot, for example, was triggered. The reason the federal government is involved is because of the destruction of fish habitat. There was a fisheries trigger.

That's similar to Voisey's Bay, and unless we know the details of the project and what might happen, I can't say in advance.

Mr. David Pratt: What I'm getting at here, really, is that I'm not so much concerned about the megaprojects; one way or another, some process will obtain. But I think the cumulative effect of a lot of small projects, without any floor being there in terms of environmental assessment, is something that should be causing everybody a fair amount of concern.

Mr. Sid Gershberg: I don't disagree. All I can say to that is I couldn't guarantee you—and I certainly wouldn't want to say today—that the CEAA would cover those projects, because unless we knew exactly what those projects were.... As you say, it could well fall between the cracks. It's not impossible.

Mr. David Pratt: That's it for now.

The Vice-Chairman (Mr. Gar Knutson): Mr. Lincoln.

Mr. Clifford Lincoln: This is a brief question to follow up on what Mr. Caccia was asking you before in regard to the possible changes to the agreement, and corresponding to the change in the law. I see the agreement on item 4 of the subagreement is all related to projects. I imagine the reason why the project reference was included is that CEAA today is based on a project element, and I guess that is so for most of the provincial acts as well.

Many people feel that having gone from a proposal basis in EARP to a project basis was a restriction of the possibility of assessing regionally or assessing a series of impacts, rather than just one project impact. If, as I hope during the review, we were to go back to a proposal basis rather than a project basis, wouldn't you then have to change the agreement? Wouldn't that be the kind of example Mr. Caccia was driving at?

• 1730

Mr. Sid Gershberg: The agreement is a political agreement, and the agreement can always be changed. I certainly have never said we wouldn't change the agreement. What I said is we would not have to change CEAA on the basis of the agreement. The agreement in fact has built into it a review process and it talks about continuing improvements.

Mr. Clifford Lincoln: But aren't the two intertwined? How can you deal with one, having an agreement now that involves the federal government and all the provinces, which will be eventually the guideline, the binding instrument, to direct the way assessments are carried out in the various areas of Canada? Aren't the two so intertwined that eventually...?

I'll give you the practical example of proposal. It would mean that both the agreement and the legislation would have to be changed correspondingly. If you went further, if we agreed at the federal level to change it to a proposal basis and change the agreement to proposal, wouldn't that force the change in provincial statutes as well, which might be based on projects?

The Vice-Chairman (Mr. Gar Knutson): I'll need you to be brief. That's the 15-minute bell on vote C-6.

Mr. Sid Gershberg: If I could put it this way, the document of record is.... CEAA is the basis. CEAA is legislation and in that sense it's paramount over this political agreement.

You're looking ahead three or four years to the five-year review and what might come out of the five-year review. I can't even pretend to anticipate what might come out of the five-year review. Will the government at that time want to substantially change it? Will this committee recommend substantial changes?

Mr. Clifford Lincoln: I'm giving a hypothetical example of change—

Mr. Sid Gershberg: What I'm saying is if there were significant changes to CEAA, that might require in the future—might; I don't know—changes to the agreement, perhaps. All I'm arguing is I don't see the government—and we haven't even signed this current agreement—changing the agreement in advance of changing CEAA.

The primary target, if you wish, in the five-year review would be the act itself. That might have some consequences for other things, such as the agreement, but I don't really think the agreement has consequences for the act or any changes we might make in the act. This is not going to drive the act.

The Vice-Chairman (Mr. Gar Knutson): I want to thank the members from the department for coming. This is our last meeting where we hear witnesses, and we wanted to have you back to give a counterview on the testimony we've been hearing in the last couple of weeks. Thank you very much for doing that.

Our next meeting is tomorrow at 9.30 a.m. in room 536 of the Wellington Building.

The draft recommendations are being handed out now as well, and these are all to be considered confidential.

I think you had another comment.

Mr. Sid Gershberg: I know the committee will be deliberating on the recommendations, and time hit us, so if you require any further clarifications, either through the clerk or however, we'd be happy to supply them.

The Vice-Chairman (Mr. Gar Knutson): My big question is should we trust the provincial governments? Mr. Glen seemed to leave on that point.

Anyway, we could talk longer, I'm sure, but I think we've covered things well.

The meeting is adjourned.