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37th PARLIAMENT, 2nd SESSION

Standing Committee on Environment and Sustainable Development

EVIDENCE

CONTENTS

Thursday, February 6, 2003

1110

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

1115

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

The Chair

Mr. Gary Lunn

The Chair

Mr. Gary Lunn

The Chair

The Clerk of the Committee

Mr. Gary Lunn

Mr. Bernard Bigras (Rosemont—Petite-Patrie, BQ)

The Chair

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

The Chair

Mr. Roy Bailey

The Chair

Mr. Roy Bailey

The Chair

1120

Mr. Clifford Lincoln (Lac-Saint-Louis, Lib.)

The Chair

Mr. Clifford Lincoln

The Chair

Mr. Clifford Lincoln

The Chair

Mr. Roy Bailey

Mr. Clifford Lincoln

Mr. Roy Bailey

Mr. Clifford Lincoln

Mr. Roy Bailey

The Chair

Mr. Alan Tonks (York South—Weston, Lib.)

1125

The Chair

Mr. Clifford Lincoln

The Chair

Mr. Roy Bailey

Mr. Clifford Lincoln

The Chair

Mr. Alan Tonks

1130

The Chair

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

Mr. Clifford Lincoln

Mr. Joe Comartin

The Chair

Ms. Kristen Douglas (Committee Researcher)

Mr. Joe Comartin

Mr. Clifford Lincoln

The Chair

1135

Mr. Clifford Lincoln

The Chair

Mr. Gary Lunn

Mr. Clifford Lincoln

The Chair

Mr. Bernard Bigras

The Chair

Mr. Bernard Bigras

Mr. Clifford Lincoln

Mr. Bernard Bigras

Mr. Clifford Lincoln

Mr. Gary Lunn

The Chair

Mr. Roy Bailey

1140

The Chair

Mr. Roy Bailey

The Chair

Mr. Bernard Bigras

Mr. Clifford Lincoln

Mr. Bernard Bigras

The Chair

Mr. Gary Lunn

The Chair

Mr. Gary Lunn

The Chair

Mr. Clifford Lincoln

1145

The Chair

Mr. Bernard Bigras

The Chair

Mr. Clifford Lincoln

Mr. Gary Lunn

The Chair

Mr. Gary Lunn

1150

The Chair

Mr. Gary Lunn

The Chair

Ms. Kristen Douglas

Mr. Gary Lunn

The Chair

Mr. Clifford Lincoln

The Chair

Ms. Kristen Douglas

The Chair

Mr. Alan Tonks

Mr. Clifford Lincoln

The Chair

1155

Mr. Clifford Lincoln

The Chair

Mr. Gary Lunn

The Chair

Mr. Gary Lunn

The Chair

Mr. Clifford Lincoln

The Chair

Mr. Roy Bailey

The Chair

Mr. Bernard Bigras

Mr. Clifford Lincoln

1200

The Chair

Mr. Bernard Bigras

The Chair

Mr. Bernard Bigras

The Chair

Mr. Gary Lunn

The Chair

Mr. Gary Lunn

The Chair

Mr. Roy Bailey

The Chair

Mr. Bernard Bigras

1205

The Chair

Mr. Bernard Bigras

The Chair

Mr. Clifford Lincoln

The Chair

Mr. Clifford Lincoln

The Chair

Mr. Clifford Lincoln

The Chair

1210

Mr. Clifford Lincoln

The Chair

Mr. Clifford Lincoln

The Chair

Mr. Clifford Lincoln

The Chair

Mr. Clifford Lincoln

The Chair

Mr. Bernard Bigras

The Chair

Mr. Roy Bailey

1215

The Chair

Ms. Kristen Douglas

The Chair

Mr. Clifford Lincoln

The Chair

Mr. Bernard Bigras

The Chair

1220

Mr. Gary Lunn

The Chair

1225

The Chair

1230

Ms. Kristen Douglas

Mr. Clifford Lincoln

Ms. Kristen Douglas

The Chair

Mr. Clifford Lincoln

1235

An hon. member

The Chair

Mr. Clifford Lincoln

The Chair

Mr. Bernard Bigras

The Chair

Mr. Roy Bailey

The Chair

Mr. Roy Bailey

The Chair

Mr. Roy Bailey

1240

The Chair

Mr. Clifford Lincoln

The Chair

Mr. Bernard Bigras

1245

The Chair

Mr. Clifford Lincoln

The Chair

Mr. Clifford Lincoln

The Chair

Mr. Clifford Lincoln

The Chair

Mr. Tim Williams (Committee Researcher)

The Chair

Mr. Tim Williams

The Chair

Mr. Roy Bailey

1250

The Chair

Mr. Alan Tonks

The Chair

Ms. Kristen Douglas

The Chair

Mr. Roy Bailey

The Chair

Mr. Bernard Bigras

The Chair

CANADA

Standing Committee on Environment and Sustainable Development

NUMBER 015

2nd SESSION

37th PARLIAMENT

EVIDENCE

Thursday, February 6, 2003

[Recorded by Electronic Apparatus]

Á (1110)

[English]

The Chair (Hon. Charles Caccia (Davenport, Lib.)): The eager beavers are here, and we shouldn't penalize them by waiting for more. We do have a quorum.

The researchers have very efficiently redone the text of chapter 4, the one we discussed on Tuesday, which we completed except for finalizing the discussion on recommendation 4.39. We said, let's put that on the back burner for a moment; we'll think it over for a day or two and bring it forward at the next meeting.

What I would invite you to do today is go over again the revised chapter 4 recommendations, for two reasons at least. First, it's good to make sure we understand and confirm what we agreed upon on Tuesday. Second, we are very honoured to have the presence of a colleague of ours who over the years has developed a tremendous knowledge on this subject. Clifford Lincoln has kindly agreed, on my insistence, to come today to give us his input where possible.

Then there is a third reason. We were somehow discussing the definition of the word significant on Tuesday, and we left it undefined, which then we thought that was the best we could do. I took the liberty of calling up Stephen Hazell, the expert this committee hired, 100 years ago almost, to provide us with the basics. He kindly agreed within a matter of half an hour to produce his criteria for “significance”. They are outlined in this little piece of paper you have in front of you, which, although lengthy, puts forward the three criteria he has come up with, which, at least at first glance, seemed to me to be rather good.

So for those three reasons, let us start to re-examine the changes that were agreed upon on Tuesday, then improve on the quality of the recommendations, and see whether we can complete our work, although I will be recommending to you that we do not adopt today the report in full and report it back, but that we wait for a few days, until we know what the government does with Bill C-9 at the report stage. Maybe no changes are needed, but once we know that, some changes may be needed. So to keep our options open, it would be wiser to keep this on a back burner for a few days, until we have a clear understanding what is cooking in the bowels of the system.

Mr. Lunn.

Á (1115)

Mr. Gary Lunn (Saanich—Gulf Islands, Canadian Alliance): If we want the opportunity to put in a dissenting report, what's the timeframe?

The Chair: Mr. Bigras has already indicated, and of course, there's a procedure, and the clerk can give you all the details.

Mr. Gary Lunn: So when the final text is finished, we'll have maybe 24 or 48 hours to do that dissenting report?

The Chair: Whatever the provisions are, but you can assume that except for some refinements, this is more or less 85% of the substance.

Mr. Gary Lunn: Yes, that's great.

The Chair: The clerk has something to say.

The Clerk of the Committee: Sometimes a committee likes to look at dissenting opinions before. Some committees don't care. It's up to you. Of course, the committee has to agree to append them to the report after the chairman's signature.

Mr. Gary Lunn: I have no problem with that.

[Translation]

Mr. Bernard Bigras (Rosemont—Petite-Patrie, BQ): I have no problem with that.

[English]

The Chair: It's a political decision by each political group.

I invite you, then, to start looking at draft 8, version 2, dated February 3, 2003, that we are provided with. The first recommendation is on page 25, but it is preceded by a text. If you have any comments on the text preceding the recommendation, that is fine, but I would also urge you to look at the text of the recommendation per se, namely, 4.11, page 25, where we did insert “effective” before “approach”; we have simplified the language by dropping the five words preceding “would achieve”, and then we did some editing. Also we improved the strength of the second sentence, so that it reads “measures be developed in order to achieve results”. So the text is self-explanatory, and I invite comments on the part of members.

Mr. Bailey.

Mr. Roy Bailey (Souris—Moose Mountain, Canadian Alliance): Mr. Chair, I'm glad we have received this definition. It's clearly defined, and the reason I wanted to draw that to the attention of the committee is that last night, sitting in my office, I was going through a number of resolutions that are being presented to local government bodies. If you look at “significant”, it must also include “transboundary adverse environmental effects”. As I understand that, in light of what I read in the resolutions coming forth in Saskatchewan, it would include native reserves as transboundary. Is that the understanding of “transboundary”? There are two separate entities, and they may live in close proximity, but if the project were to cover both, that would be transboundary within the same province.

The Chair: Are you talking about the definition of “significant”?

Mr. Roy Bailey: Yes.

The Chair: We'll come to it in a moment, at number 4.

Mr. Roy Bailey: All right, but I wanted to get that one away while it was fresh in my mind.

The Chair: I'm pleased that you raised the point.

Now we are on the recommendation on page 25, paragraph 4.11. It seems to me pretty straightforward, and we have put all our intellectual capital into it so that we can move on.

Mr. Lincoln.

Á (1120)

Mr. Clifford Lincoln (Lac-Saint-Louis, Lib.): I was just wondering why Mr. Duck is referred to there.

The Chair: Mr. Duck?

Mr. Clifford Lincoln He's the guy who leads this discussion. He's referred to in the text at 4.7. Can you tell me why we substituted “measurable environmental standards and targets”, rather than having “process standards”, which, in his view, is stronger and more meaningful, and why we put “specific targets and performance measures”, rather than “process standards”, which he asked for? Why don't we add “process standards”? Process is really one of the big problems with EA. Looking at what Mr. Duck said that led to this recommendation, I think it's the process, the system that is failing every time. Can't we have “specific targets, performance measures, and process standards”?

The Chair: We could. So that will be added to the final line at the top of page 26?

Mr. Clifford Lincoln: And on page 25 as well.

The Chair: Is there any objection to this insertion?

Mr. Bailey.

Mr. Roy Bailey: “Process standards” I hope would mean the standards are not stationary, they could be changing.

Mr. Clifford Lincoln: Well, yes, the standards can be changed.

Mr. Roy Bailey: But using standards here does not mean that's the completion, they can no longer go up or down. If the meaning is that standards can be improved through the process of the years, then I think that's great.

Mr. Clifford Lincoln: That would be the intent, surely, to strengthen rather than lessen.

Mr. Roy Bailey: Okay.

The Chair: So are we in agreement with inserting “process standards” before “be developed”?

Mr. Tonks.

Mr. Alan Tonks (York South—Weston, Lib.): I'm certainly not predisposed against that suggestion, but maybe the reason we didn't go into Mr. Duck's concept of process standards is that the process in the environmental amendments we've put forward is that we have a registry, we have a certain notice period, we have certain provisions with respect to going from screenings to comprehensive studies to full-hearing panels. We have spent a great deal of time on that process, and it will be entrenched in the bill. They can be evaluated as a matter of the dynamics of citizen engagement, interest group engagement, and so on. But performance objectives were something we really didn't discuss. So those were what the committee, in this amendment, were engaging. My reading of “targets and performance measures” relates directly back to the clause that there should be tangible results in environmental assessments. It's those results that are going to be quantified and evaluated, and that's why we concentrated on linking with that, not with the process. Because the process is part of the bill, and we will all be judges with respect to whether that is achieved or not. We were saying, you must have performance objectives, you must be able to evaluate them for cumulative effect, and so on.

I'd just offer that as an explanation, having been in the discussions, for my learned colleague. That was my take on our discussion.

Á (1125)

The Chair: Thank you.

With that improvement, can we move to the next recommendation, which is on page 30 and comes under 4.20? Here we made no changes on Tuesday, but Mr. Lunn wasn't here, nor Mr. Grose, nor Mr. Lincoln. Would you rapidly read it, so as to give us, hopefully, your nod. Is “criteria”, for example, stronger or better than “guidelines”?

Mr. Clifford Lincoln: “Guidelines” is the weakest there can be.

The Chair: Yes, that's true. We could replace “guidelines” with “criteria” or “rules”, whatever is the stronger term. Should it be “criteria”, in your opinion?

Mr. Bailey.

Mr. Roy Bailey: I'll agree, “guidelines” is a weak term, but on the other hand, if you want to go to the exact opposite, I think “rules” is too harsh. So I would prefer the second term.

Mr. Clifford Lincoln: We always look for ways to give the agency a chance to have the lowest common denominator. Why can't we say “rules and criteria”? When you look at the whole picture, where we have 99% of screening floating from one department to another, it's pretty loose stuff.

The Chair: All right, let's adopt “criteria and rules”. Is that all right? Do you find it too strong? I think “criteria and rules” would give the agency an option.

Mr. Tonks.

Mr. Alan Tonks: I'd go back to an earlier point about process. Process is a dynamic issue of give and take. The process here is establishing a system for the issuance of environmental assessment permits. That issuance should be within the parameters of “guidelines and criteria”, I have no problems with that, but “rules”, I think, takes away from the flexibility we wanted with respect to achieving the objective, which is to get the department to set terms and conditions on mitigation. I think we should keep our eye on the objective, and we'll see from experience whether we do, in fact, get more panel hearings and a higher level of involvement. At this point I think the wording is in keeping with the process here, “guidelines and criteria”, establishing those so that everybody understands what they are. Rules tend to be, from my perspective, a little arbitrary, as opposed to the experience we're going to have with respect to crown corporations, proponents, responsible authorities putting forward applications for environmental assessments within these guidelines and criteria. I think that's probably the philosophy here. So I certainly would support putting in “guidelines and criteria”.

Á (1130)

The Chair: All right, then, the chair will try to rule on this, so that we can move on. I would propose that we replace “guidelines” with the word “criteria”, so that it will read, “in accordance with criteria”.

Is that all right? Thank you.

Mr. Comartin.

Mr. Joe Comartin (Windsor—St. Clair, NDP): I'm not sure if the second paragraph has been amended with what I proposed using the term “penalties”.

Mr. Clifford Lincoln: Can Mr. Comartin tell us what his suggestion is?

Mr. Joe Comartin: It's at the end of the second line, where it says “be amended to prohibit”. The added words would be “through the use of penalties”. Then the paragraph would continue as is.

The Chair: Then your addition is “through the use of penalties”.

Madam Douglas.

Ms. Kristen Douglas (Committee Researcher): I'm sorry if I missed that one, but my recollection of the discussion around the committee was that there was some sense that the concept of penalties is implicit in the word prohibit. I thought it had been left that the wording didn't need to be changed. If members want to change the wording, we'll do that. I just didn't remember that as the conclusion of the discussion.

Mr. Joe Comartin: Mr. Chair, my position on Tuesday was that the legislation needed to be strengthened, there had to be some enforcement mechanism inserted. Unless it can be pointed out to me otherwise, there is no reference to enforcement mechanisms anywhere else in this report, specifically in the recommendations.

Mr. Clifford Lincoln: I would agree with Mr. Comartin, because what happens if the person that is prohibited carries on doing it? What is the measure you take to stop it? I think, if we can mention penalties, that's a deterrent. I don't see any harm in doing it. On the contrary, this act needs to be strengthened every way we can

The Chair: I wouldn't see any difficulty.

Are there other comments? If not, we'll insert, after “prohibit”, “through the use of penalties”. Thank you.

Now we can examine 4. 29 on page 35. This is, I think, in line with what Mr. Comartin proposed the last time. It reflects, word by word, the intervention by Mr. Comartin. He wanted to insert “and” and delete “reduces costs”.

Any comments?

Á (1135)

Mr. Clifford Lincoln: It would be nice if we could change “promote” and substitute “entrench”. Promote is a very loose word--you promote or you don't promote.

The Chair: Wow, this is putting the cat among the pigeons, as they say. This will generate a three-hour debate. Let's see if we can contain it. Is the committee willing to go that way?

Mr. Gary Lunn: I think “promote” is an appropriate balance--“entrench” is pretty strong language.

Mr. Clifford Lincoln: Environmental assessment is the key to sustainable development. There is nothing more important.

The Chair: If we're serious about this business, “entrench” certainly would serve the purpose better than just “promote”.

Monsieur Bigras.

[Translation]

Mr. Bernard Bigras: I do not plan to resume the debate on the substance...

The Chair: This is a new political culture, Mr. Bigras.

Mr. Bernard Bigras: Yes, but politics go hand in hand with efficiency. It seems to me we had some very interesting discussions the other day. With regard to the French text, when Mr. Lincoln suggested replacing the word "promote" with the term "entrench", he obviously wanted to give a clearer and more constitutional power to the environmental assessment.

I think we should encourage cooperation. The chances of success are greater if you encourage it rather than force it, as would be the case with using the word "entrench". Entrenching means entering. You can look it up in the dictionary, but that word has a stricter connotation, whereas the verb "promote" implies cooperation. As for the rest, we had a full debate on it a few days ago.

Mr. Clifford Lincoln: I do not think that using the term "entrench" in the context of an environmental assessment, as a system, means that we are dismissing cooperation with the provinces. In fact, it would be totally impossible. The provinces control all the natural resources; so there has to be continuous cooperation.

When it comes to federal projects, we want the federal government to be able to use the environmental assessment as a cornerstone of its environmental policy.

Mr. Bernard Bigras: In that case, I might be open to a less severe amendment. We could replace the word "entrench" by another word which, while still being as strict, would not have the same connotation for Quebec, among others. You know what I mean, Mr. Lincoln.

Mr. Clifford Lincoln: Yes.

[English]

Mr. Gary Lunn: “To require” is sort of in the middle.

The Chair: All right. Do we have an agreement on “require?”

Mr. Roy Bailey: I think we have some regional differences in language. If somebody comes to me where I live and says, you really dug in on this issue, it simply means I'm not going to bend in any direction. That's why I'm a bit worried about “entrench”.

Á (1140)

The Chair: How about “require?”

Mr. Roy Bailey: I would do that.

The Chair: Monsieur Bigras.

[Translation]

Mr. Bernard Bigras: But there is a fundamental difference between "promote" and "require", because that term implies that an environmental assessment is essential for environmental protection. One must not forget about sustainable development either, which has both social and economic facets.

Mr. Clifford Lincoln: May I suggest "establish"?

Mr. Bernard Bigras: Yes, that might work.

[English]

The Chair: All right, we have “establish”.

Mr. Gary Lunn: “Establish” is even better.

The Chair: We have “establish”. Agreed? Thank you, Mr. Lincoln.

Mr. Gary Lunn: You'd better be careful, Clifford, you might get a permanent job here.

The Chair: I would now invite you to turn to item 4.39, pages 39 and 40. Here the chair has a suggestion to make, because we left it on a back burner after a lengthy discussion. The suggestion I would like to put forward for your consideration is to read in the following manner: “The committee recommends that the Canadian Environmental Assessment Act be amended to include a list of significant projects that would automatically trigger a panel review or joint panel review...”. So it's the insertion of “significant” instead of “Canada-wide importance” that we were wrestling with the last time. We then remove the words “a list of”. The reason for doing away with “list” is the question of who will compose the list, when, and so on and so forth, and before you know it, you are in a mess. So for the purpose of simplification and directness, what I would propose to you is: “The committee recommends that the act include projects of significance that would automatically trigger...”.

Mr. Clifford Lincoln: Can we also delete “as necessary?” If we are telling the agency to develop regulations for these projects, then let them develop them. If we put “as necessary”, it'll never happen.

Á (1145)

The Chair: So we have two changes, to insert “of signifigance” after “projects” and to delete “as necessary” after “developed”.

Monsieur Bigras.

[Translation]

Mr. Bernard Bigras: As you know, I do not want to improve the recommendation. However, I would prefer an approach whereby any citizen or group of citizens wanting to have a public hearing on a project can do so. As Mr. Lincoln said, under Quebec law, after an information session on a project, a citizen, a municipality or a group can submit a request for a public hearing within 45 days of the information session. In the latest BAPE report, it said that as long as the request is not ridiculous, the minister will allow a public hearing. Mr. Chairman, that is why there were 19 public hearings last year under the Quebec process, but there has only been 1 since 1990 under the federal process.

Witnesses have told us they had made requests in their area to hold public hearings and they did not get them.

My concern is that we create a closed system that would perpetuate the situation where citizens feel there should be public hearings on a project in their area, but they cannot get them. I think that is the gist of the message citizens were sending us. Requests were made for public hearings and they were denied.

So I do not want to improve the recommendation. I prefer this approach over a regulatory one that would call for lists of various types of projects, because each project is different and has a different impact on the environment. This is a different approach.

The Chair: Thank you, Mr. Bigras.

Mr. Clifford Lincoln: I will broach the topic the same way Mr. Bigras did, but perhaps we could do so another way. In subsection 28(1) of the bill, it says "...when public concerns warrant....".

[English]

When public concerns warrant a reference to a mediator or a review panel, the minister can propose a review panel. Unfortunately, section 28 of the act, which gives the minister the power to do that at any time, has never been used. Mr. Bigras is right, it was used only once, in the case of, I think, the St Lawrence River, when Mr. Charest was in place. The power is there to use, and the committee could put in a very strong reference that public concerns are part of the reason a review panel should be exercised. I know there's a reference somewhere in the report, but it doesn't address public concerns.

[Translation]

I fully agree with Mr. Bigras that this might be the key to it all.

[English]

Mr. Gary Lunn: Mr. Chair?

The Chair: Yes, we should make a reference and find some language for all this.

Mr. Lunn.

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

I have a question for the clerk, or maybe one of the other officials could help me. On triggering an automatic panel review, did we not deal with it in our clause-by-clause? Was there not an amendment that was somewhat similar to this that we actually voted down?

Á (1150)

The Chair: Whether there was or not, we are outside the scope of the bill now. We are discussing what is desirable in the long term, and our actions with the bill were limited.

Mr. Gary Lunn: I don't believe triggering an automatic panel review is actually outside the scope. That was actually an amendment we voted down. So here is a committee, we vote down an amendment that would trigger automatic panel reviews, and two weeks later, ostensibly, the same committee writes in that we should now trigger panel reviews, we should bring that back into legislation. I have a problem with that.

The Chair: Madam Douglas.

Ms. Kristen Douglas: I don't remember exactly which recommendation you are referring to, but the issue may have come up in the clause-by-clause and been discussed. The fact is that a lot of things that came up in clause-by-clause didn't proceed because they were outside the scope of the bill.

Mr. Gary Lunn: I appreciate that, I had a few of those myself, but I specifically remember panel reviews, and my recollection is that they were not outside the scope and we voted them down. So that's my difficulty. As a committee, we vote them down, but then two weeks later we say we recommend that we amend the act to include them. I have a huge problem with that.

The Chair: We may have to conduct some research to establish that, because none of us at the table at least remembers that aspect.

Mr. Lincoln.

Mr. Clifford Lincoln: I know we're anticipating it, but if you look at recommendation 4.62 at page 51, I think it addresses the question Mr. Bigras is trying to deal with. It talks about public participation there: the committee recommends that the level of public participation be increased and that the minister adopt panel reviews as a key to increase participation. So maybe that does it.

The Chair: That is there, and it is also preceded by some background paragraphs.

Madam Douglas.

Ms. Kristen Douglas: We were thinking of drawing that section to members' attention as well. There are two ideas in those two sections we're talking about. The one at paragraph 4.39 is looking at a way of identifying projects that are so significant that they should automatically be treated in a more in-depth way than the comprehensive study list. That's what that panel is talking about, and obviously, panel review is the way we treat things more seriously than in the comprehensive study list. The idea of having more public participation and more access for the public to get the process going in the panel review direction is reflected in the recommendation Mr. Lincoln just brought to our attention at 4.62.

The Chair: Mr. Tonks.

Mr. Alan Tonks: Mr. Chair, my recollection is, for a different reason, similar to Mr. Lund's. My recollection is that we got into the authorities of special circumstances whereby the minister could refer a project that otherwise didn't trigger a hearing; where it was cross-boundary or of impact with respect to responsible authorities or crown corporations and those situations, the minister could exercise his authority to bump it up to a full panel hearing. I remember that we were talking about a broader authority; we talked about Canada-wide implications and those kinds of things. My recollection is that we did vote down a broader authority. I'm not sure that helps you with respect to how you rule on the relevance of this report to the bill.

Mr. Clifford Lincoln: CEAA already includes a provision for public participation anyway, and it just hasn't been applied.

The Chair: That's right, but that was in a later portion of the report, so we'll come to it again.

What is before us is the following text of the recommendation, and I will read it again:

The committee recommends that the act be amended to include projects of significance that would automatically trigger a panel review or joint panel review. Regulation-making authority under CEAA should be amended and regulations developed to ensure that such projects are assessed by panel reviews.

Is that acceptable? On division. Thank you.

The next recommendation we wrestled with is on page 43, item 4.45. It's a fairly long one, and you can see that there was a change in text on the fourth line.

Are there any comments or questions?

Á (1155)

Mr. Clifford Lincoln: Why don't we just say, “assessment requirements under CEAA are priorities” or “should be priorities”? That's really what they should be. If you consider, then you consider yea or nay, and you usually consider nay, that's been the history.

The Chair: Any objection? “Should be priorities”.

Mr. Gary Lunn: Just say “are priorities”.

The Chair: All we need to do is to drop “considered”.

Mr. Gary Lunn: Just take it out.

The Chair: Is that all right? That is a fair statement.

And for the balance of the recommendation, are there any comments?

Mr. Clifford Lincoln: Can we be more specific with regard to regional environmental assessments? What would they be? I think you've given examples. Can't we make a cross-reference to what you are trying to do?

The Chair: Mr. Bailey.

Mr. Roy Bailey: This is a federal act. We have provincial and, in some cases, municipal assessments. The federal act would not say, get out of the way, here we come, they would take a look at both as you go down to the project. That language, in itself, does not designate it that way, but that's my understanding.

The Chair: Monsieur Bigras.

[Translation]

Mr. Bernard Bigras: Well, I do to, because if I am not mistaken, in the original text—in fact I am the one who had raised the matter— it said that the federal government could carry out or order regional environmental assessments. We then decided that regional environmental assessments could be done by the provinces. That could mean an assessment carried out by the BAPE or another organization. We had initially proposed that the federal government carry out regional assessments, and the committee had objected to that.

Mr. Clifford Lincoln: Mr. Chairman, I think that on page 42, we replaced the word "conduct" with the words "participate in".

[English]

When you talk about regional environmental assessment in that same paragraph 4.44, with participation instead of conducting, it takes care of what Mr. Bailey and Mr. Bigras said, talking about “EAs in areas experiencing multiple projects where some national interest is at stake (e.g., oil sands...or diamond mining and road construction...)”. I think it might be a nice way to talk about regional environmental assessment to put a star there and make a cross-reference to the oil sands and diamond mining, for instance; otherwise, it can mean almost anything to anybody.

Â (1200)

The Chair: The suggestion is being made to make a cross-reference next to “regional”. It could be in the form of a footnote, I suppose, referring to diamonds, oil sands, etc. Fine.

[Translation]

Mr. Bernard Bigras: Excuse me, but what would the footnote say?

The Chair: It would be a reference to oil, tar sands, diamond mines, etc.

Mr. Bernard Bigras: Fine.

[English]

The Chair: We now move to the recommendation on page 48, paragraph 4.54.

Are there any comments?

Mr. Gary Lunn: On the second paragraph, right at the very end, it has “make recommendations to the Government of Canada for incorporating the 'conservation first' principle into CEAA and other federal laws.” Are we getting outside our scope? Is this not really on CEAA? Should we be commenting on other federal laws?

The Chair: We have legislation, for instance, on water in which “conservation first” would be a very desirable concept.

Mr. Gary Lunn: I don't disagree, I'm just wondering if that's what we should be doing.

The Chair: Well, it's reaching out in a very harmless manner. This is mostly wishful thinking, a hint, a suggestion, like a green light.

Mr. Bailey.

Mr. Roy Bailey: “Conservation first” could include farming practices, it could include shipping routes, it could include any number of things. Citing that I think is a good move. It's the principle. When other people are making acts, in regard to even transportation, this is here, and they will have it checked. I think it's a good point

The Chair: Thank you.

We will move on briskly to the next recommendation, which is on page 53, 4.62. This brings us to the discussion earlier raised by Monsieur Bigras and Clifford Lincoln. As you can see, we have strengthened it a bit. If one were to interpret Monsieur Bigras' intervention earlier, the perfect words should be “make mandatory the level of public participation within 45 days”. Is that what you were actually saying, Monsieur Bigras?

[Translation]

Mr. Bernard Bigras: I mentioned the approach. I would like to see greater public participation, of course, but not in the context of a federal environmental process. That is the difference. I was telling you what I wanted in terms of general environmental assessment. I do indeed hope there is greater public participation, but not necessarily in a federal context. That is why I said from the outset that I did not necessarily want to improve the recommendation. I was speaking in good faith when I expressed my desire to see more citizens and groups getting involved and getting environmental assessments when they wanted them.

Â (1205)

The Chair: And you also mentioned 45 days, did you not?

Mr. Bernard Bigras: I gave the example of Quebec.

[English]

The Chair: Are the members satisfied that this recommendation is strong enough?

Mr. Clifford Lincoln: It says he should adopt panel reviews. How can he adopt something he's already got? He's already got it in subsection 28(1) of the law. So I think it should be “the minister use his existing powers under subsection 28(1) to make panel reviews a key tool to involve such participation”. There's no participation right now, there's been one case. So what do we increase? Do we increase from 1 to 1.1? I think we should have much stronger language, to make sure public participation takes place.

The Chair: “And that the minister use his existing powers under the act to make panel reviews a key tool of such participation.”

Mr. Clifford Lincoln: Yes.

The Chair: Fine. Thank you.

Then we have, on page 58, recommendation 4.70. That would seem fairly straightforward, unless Mr. Lincoln has any suggestions.

We have a recommendation on page 63, 4.78, with the insertion recommended by Mr. Reed last time.

Mr. Clifford Lincoln: Couldn't we say “as soon as possible before the seven-year review”? Seven years is a long time.

The Chair: It was at least to set an upper limit--

Â (1210)

Mr. Clifford Lincoln: I know.

The Chair: --and not to go beyond that.

Mr. Clifford Lincoln: I agree, but why don't we put in another limit that pushes the envelope, so that they don't wait for the sixth year to start it?

The Chair: All right. What language would you recommend?

Mr. Clifford Lincoln: “As soon as possible before the seven-year review”.

The Chair: All right.

Mr. Clifford Lincoln: Instead of “strategic environmental assessment”, could we say “mandatory strategic environmental assessment”.

The Chair: All right.

Monsieur Bigras.

[Translation]

Mr. Bernard Bigras: As for the seven-year time limit, I have not found the passage in the text that refers to the long term for carrying out a strategic environmental assessment. I cannot find it in the text, but it seems to me there is reference to the long term at some point. I would like the text to be consistent with the recommendation. I have no problem with the timeframe, but I would like it to be consistent with what is said. I have not found it in the text.

[English]

The Chair: All right, we will look for that paragraph. If we can find it, we will make the necessary adjustments, so that there is continuity.

If there are no other comments, “mandatory” precedes “strategic” and “as soon as possible” precedes “before”.

Now we have a very interesting task before us, to deal with the definition of “significant”, so that we provide those who will use these documents with better, more thorough guidance than we have so far. I'm referring to recommendation 4.11, where we recommend that the term significant be defined. I would invite you to read the paragraph provided by Stephen Hazell, which is intended to incorporate in the report a recommendation that will offer a definition of “significant”. Stephen Hazell uses three criteria for defining it. The text is there. I wonder whether you would see merit in some skilful editing that would modify the last four lines, bottom of page 25 and top of page 26, so as to incorporate the substance of Stephen Hazell's recommendation, provided that you agree with his attempt to define a very intriguing word.

Mr. Bailey.

Mr. Roy Bailey: I have no objection to the definition, but I have some fear that it may lead to some confusion and problems down the road. He is saying, “A significant environmental effect must also include any transboundary adverse environmental effect”. With transboundary to this point, we are talking about province to province or province to another state. But it clearly points out in the act that native lands are different lands from the province in which they are located. I can see, Mr. Chairman, in the future where some project is going to traverse native lands and private lands, and as a result, we could run into a problem. If we consider native lands as separate entities, we could run into a smart lawyer saying it's a transboundary thing now. It may not be significant to the project, but somebody, from one side or the other, may claim that it is significant.

Do we have a definition spelled out of “transboundary” in itself? I don't think we do. That's just something to think about, Mr. Chairman. I don't think we should get involved with that now, but I have lots of problems going on, almost every month now, over this, the new treaties and the expansion and so on, and projects that currently exist or are planned. I see that this act in itself would not truly spell this out. There would be a lot of litigation. So maybe it is incumbent upon us to have some definition, not today, but we can look at it later, if that would be all right, Mr. Chair?

Â (1215)

The Chair: Let's hear from Kristen Douglas on what you said, and then Mr. Lincoln.

Ms. Kristen Douglas: The word transboundary is not a legal drafting term. You don't find that word in the provisions of the act. You have categories of governments, and the provisions that deal with transboundary effects talk about effects that go from one national government to another, one provincial government to another, one other kind of government to another, international boundaries and boundaries within Canada. In writing a parliamentary report recommendation, we would mean by “transboundary” any effect that extends into an area that's the jurisdiction of another government, and we'd mean that broadly.

The Chair: Mr. Lincoln.

Mr. Clifford Lincoln: This is a key issue. Stephen Hazell's suggestion is complicated, and as you are not going to adopt this report today, can you perhaps allow a few days for people to digest it and maybe come up with suggestions? It would be good to work on it, get some opinion as to whether Stephen's approach is the best one or there are better ones.

The Chair: It is a suggestion of immense generosity and magnanimity. I might do exactly that. Who knows?

Monsieur Bigras, and then Mr. Lunn.

[Translation]

Mr. Bernard Bigras: I just want to reinforce what Mr. Lincoln said. There are concepts. We are trying to define the term "important", and within that definition, there are concepts that we ourselves must define. So given the fact that we have just heard the proposal, I would suggest we assess it, especially since it is only in English, by the way. It might be a good idea to have the weekend to review it. I know I am going to request an assessment. We are in no hurry. We can discuss it at our next meeting. I think the committee has done a good job. We made quick progress. We just have this outstanding issue. I think we can be patient.

[English]

The Chair: These are all very valid and very powerful considerations.

Mr. Lunn.

Â (1220)

Mr. Gary Lunn: I'm just going to concur and add one further comment. This last paragraph deals with “significant”. Maybe, while we look at it, the clerks could try to incorporate what Stephen had to say and come back with a suggested text for us as to the definition. Then we can also have a look at it ourselves for the next meeting.

The Chair: At the next meeting we will have the changes that have been agreed upon today before us, and then, if the researchers are sufficiently inspired, they could prepare for us a text for discussion. This is probably the most difficult part of the whole report. On the other hand, we shouldn't leave it to PCO and give them an opportunity to say, they didn't take the trouble to define it, why should we? I must say, in all fairness, I was very impressed by Stephen Hazell's capacity to produce these strict criteria. Maybe there are more or maybe these criteria could be clarified. We can definitely devote Tuesday's meeting to that.

Let's have a five-minute break, and then look at the conclusion.

Â (1225)

The Chair: At 5.1 we have the idea of inserting the quote from Johannesburg. It is not intended to be political, only to make a historical quotation that was expression of Canada, in a way--there's a reference to Canadians--and it keeps the flame of Our Common Future, the famous report of 1987, alive, and the concept of sustainable development as well.

I would invite committee members to move into 5.2, in the hope that there is no objection to 5.1. This is a good, balanced paragraph, because it puts Bill C-9 into its context. We all know it is a modest bill, and this sets out also the motivations of this committee.

With 5.3, I don't know whether we can be so assertive. I would change it to “The committee hopes”, rather than “recognizes”, but I will seek the advice of the committee members as to how 5.3 should be finalized. Perhaps, as Kristen Douglas is murmuring, we could have “The committee recognizes that our recommendations, if implemented, will mean...”.

Â (1230)

Ms. Kristen Douglas: If you say “recognizes that implementation would mean”, that means, if they're implemented, the committee is recognizing that it would be a big thing.

Mr. Clifford Lincoln: You should say “our recommendations, when implemented”, to just tell them they'd better implement them.

Ms. Kristen Douglas: Then I think you go back and forth.

The Chair: You are the eternal optimist. We will take the advice of Kristen Douglas and modify it along those lines.

I would delete the reference to “more than superficial”, because it implies that Bill C-9 is superficial, and there is no need for us to cast a shadow on what Parliament is approving. It must be significant, must be of substance--significant is a word that is popping up everywhere. There are some good things that have happened and some not so good. So let's see whether we can make it more positive.

Are there any comments or suggestions?

Mr. Clifford Lincoln: I think it should be “much more than piecemeal” or something like that. It's been a very piecemeal report. It must be comprehensive.

Â (1235)

An hon. member: Where are we now?

The Chair: We are actually all over the conclusion. At this stage you may wish to comment on any paragraph.

Mr. Clifford Lincoln: In 5.4 you have “results must include commitments set out in the September 30, 2002 Speech from the Throne”, but that's a very small number of things. It seems to really point out that this is a really big issue--what about water, what about air pollution? There are so many other things beyond that. If you make that reference, I think, and we put another federal commitment in, they are minor in comparison with the throne speech. I think it should be reversed and say “must include issues of critical environmental importance”.

The Chair: We've made a note of it.

Monsieur Bigras.

[Translation]

Mr. Bernard Bigras: I also have a problem with 5.4, specifically line 6 of the French document. That sentence bothers me, but I know I probably will not succeed in having it changed. I thought we had agreed to remove the notion of "nationally important projects". I do not like the entire sentence, but I want to at least be assured that in the conclusion, we do not repeat the words "nationally important" and that we at least refer to projects.

The Chair: Ms. Douglas will make sure it is consistent.

Mr. Bailey.

[English]

Mr. Roy Bailey: Mr. Chairman, something I'd been really concerned about was in 4.1, at the bullet “Promoting meaningful public participation”. I know it's not within the scope of the act how you make participation meaningful, but from past experience and having to deal with public, I would say that in order to have meaningful participation, they have to be informed first. That's one of the problems you run into, and I ran into it for 25 years. I learned a lesson, that if you're going to have meaningful public participation, the people you want to participate must be informed. That is a key part of the success of this act, information. That one just hit me right in the face. I tried it without doing the groundwork, and it doesn't work. That's just something to think about. I like the word meaningful, but if you want meaningful participation, you must have a very--

The Chair: Well-informed public.

Mr. Roy Bailey: That's right. A lot of times, when you should have participation, you don't, because the people are going to come and ask questions that could have been asked a month prior to the meeting.

The Chair: Yes.

Maybe there is an opportunity in 5.5 to do that; on page 65 on the fifth line perhaps you can massage it in.

Mr. Roy Bailey: I think that's where it belongs.

Â (1240)

The Chair: Are there further comments?

Mr. Clifford Lincoln: Mr. Chairman, in 5.5 it says “The goal of EA should be to benefit the environment, not merely to avoid significant adverse environmental effects.” I'd like to suggest that we say “should be to benefit the environment, protect the integrity of ecosystems and promote sustainable development ”.

I think the next line, which says “Panel reviews need to be encouraged” should say “Panel reviews are essential as a way to engage the public”.

And on the first line of 5.6, “The assessment of cumulative effects also needs greater emphasis” should be “The assessment of cumulative effects is another crucial issue that must be addressed”.

The Chair: Perhaps it would be fair to say to the researchers that in the light of the changes made on Tuesday and today, the conclusion could be strengthened to reflect the recommendations. Maybe some of the language is already in the recommendations, and all they need to do is insert some starch in the various paragraphs, as Mr. Lincoln is doing now.

Monsieur Bigras.

[Translation]

Mr. Bernard Bigras: At 5.6, in the English version, it says “The relationship between federal authorities and Aboriginal and comprehensive claims institutions”. And further on, it says “federal roles under CIAA may need to be reconsidered or harmonized”. There is always reference to aboriginal institutions. Since this clause affects not only aboriginal institutions, it seems to me we should say: “Should systematically review relations between federal authorities, provinces and Aboriginal institutions”.

As you know, we discussed harmonization with the provinces and you said, Mr. Chairman, that we should not talk about harmonization here. You just allowed me to include one aspect of it in the introduction to the document, whereas here, in the conclusion, in the text as it is currently drafted, it says it is important to harmonize with the aboriginal institutions. Why would it be important to harmonize with the aboriginal institutions, while it would not be important to harmonize with the provinces? I find the text unclear. We should simply remove harmonization with aboriginal institutions or, if you leave that in, we should also talk about harmonizing with the provinces. We cannot have one system for one group and a different one for the provinces. That makes no sense at all.

So, I would like the text to say that federal relations are not limited to aboriginal institutions, but also include the provinces. If we decided to accept harmonization, I would like harmonization to be mentioned not only with reference to aboriginal institutions, but also with the provinces. That is essentially what I wanted to say.

Â (1245)

[English]

The Chair: Monsieur Bigras makes an important point. He has frequently reminded us in all these meetings and discussions of the importance of harmonizing with provincial efforts and responsibility and constitutional jurisdiction. He may be right that a reference to aboriginal institutions without any reference to the provincial role is a bit peculiar in respect of harmonization.

For instance, in the English text, page 65, there is a reference at the top to “substantial participation by the public and in consultation with Aboriginal people and provincial and territorial governments.” There we have have a reference to the provinces. However, in 5.6 the provincial and territorial elements are missing: “The relationships between federal authorities and Aboriginal...institutions”. If it is done in 5.5, we should maintain the theme in 5.6.

Madam Douglas, could you tell us what guided you in constructing this paragraph?

Mr. Clifford Lincoln: I find a lack of connection with paragraph 6, which starts with cumulative effects, which I understand. Then it goes on to relationships between federal government and aboriginals, I suppose because of the constitutional requirements of the federal government and the aboriginal people. This could be better explained: one relates to the whole spectrum, including provinces, and this one is about reserves, basically, and aboriginal territories, claims.

The Chair: So there should be a paragraph 5.7 beginning with “The relationships between federal authorities and aboriginal”.

Mr. Clifford Lincoln: I think so. If it got separated, it would make more sense.

The Chair: So 5.6 begins “The assessment of cumulative effects is a critical issue which must be addressed with more resources”, along the lines suggested earlier by Mr. Lincoln. Then you start a new paragraph with a new number.

Mr. Clifford Lincoln: On the aboriginal issue.

The Chair: Tim.

Mr. Tim Williams (Committee Researcher): I think Mr. Hazell originally wrote this paragraph as just a list of three different subjects, one being cumulative effects, the second aboriginal issues, the third SEA.

The Chair: That's fine, but from a political point of view, there should be three separate numbers.

Mr. Tim Williams: That's what I mean, they should be three separate paragraphs.

The Chair: Yes, with different numbers, 5.6, 5.7, and 5.8, so they have their own identity.

Mr. Bailey.

Mr. Roy Bailey: I'm sorry I didn't earlier, but I was looking at that other stuff we got. Are we being consistent through this bill with the use of the term government? The first nations people tell me every day when I'm dealing with them that they are a government. We might want to consider that, if not now, so as not to raise the unnecessary ire of any political group five or ten years down the road. I know it could be a debatable thing. Traditionally in Canada, we talk about three levels of government, federal, provincial, and local. I think we should change “native institution” and all these other terms to “native government”.

Â (1250)

The Chair: If that clarifies the position, we'd be glad to do that.

Mr. Tonks.

Mr. Alan Tonks: Mr. Chairman, I may be wrong, but while the municipalities have endeavoured to be considered a level of government, I don't think, constitutionally and technically, they are. We have them referred to as orders of government. I'm just not sure Mr. Bailey is correct in that. Second, while I may have great sympathy with this point, I thought there were ongoing governance issues dealing with treaty rights and so on. The first nations community has taken the position that they are an order or level of government and they should be treated as equals. I don't necessarily take exception to that, but I think we're a little bit further ahead in the resolution of that issue. So I don't think we can refer to first nations and aboriginal peoples as a level of government.

The Chair: Thank you, that's very helpful.

We've been given language in 5.6 referring to “aboriginal institutions”, and that is probably the term we should continue to adopt, rather than “governments”.

Ms. Kristen Douglas: “Institutions” is, in a sense, broader than “governments”. It might include governments, but it also might include specific bodies that have environmental assessment responsibilities under land claims agreements.

The Chair: So that's how we're going to resolve it. We'll take the other point into account.

Mr. Roy Bailey: I appreciate that. It's more than government, it's their culture and institutions.

The Chair: This Chair has an appointment at 1 o'clock, and so I'm in a bit of a bind. Can we compress the next comments into three minutes?

Monsieur Bigras.

[Translation]

Mr. Bernard Bigras: Fine.

[English]

The Chair: Are there any further comments?

Then we will look at this conclusion again in the revised form on Tuesday, and we will meditate profoundly over the weekend on “significant”.

Thank you very much for your help. Meeting adjourned.