ENVI Committee Meeting

MINUTES OF PROCEEDINGS

Meeting No. 8

Thursday, December 5, 2002

The Standing Committee on Environment and Sustainable Development met at 9:20 a.m. this day, in Room 362, East Block, the Chair, The Hon. Charles L. Caccia, presiding.

Members of the Committee present: Roy Bailey, Bernard Bigras, The Hon. Charles L. Caccia, Joe Comartin, John Herron, Karen Kraft Sloan, Rick Laliberte, Gary Lunn, Bob Mills, Karen Redman, Julian Reed, Andy Savoy, Hélène Scherrer, Alan Tonks.

Acting Members present: Hedy Fry for Nancy Karetak-Lindell, Diane St-Jacques for Julian Reed.

In attendance: From the Research Branch of the Library of Parliament: Kristen Douglas and Tim Williams, analysts.

Witnesses: From the Canadian Environmental Assessment Agency: Robert G. Connelly, Vice-President, Policy Development; Heather Smith, Senior Counsel, Legal Services.

Pursuant to its Order of Reference of Monday, October 7, 2002, the Committee resumed consideration of Bill C-9, An Act to amend the Canadian Environmental Assessment Act (See Minutes of Proceedings, Thursday, November 7, 2002, Meeting No. 2).

The Committee resumed Clause-by-Clause consideration of the Bill.

By unanimous consent, the Committee reverted to Clause 6.

The witnesses answered questions.

On Clause 6,

Karen Redman moved, -- That Bill C-9, in Clause 6, be amended by replacing line 24 on page 4 with the following:

"environmental assessment of a"

The question being put on the amendment, it was adopted.

Karen Redman moved, -- That Bill C-9, in Clause 6, be amended by replacing lines 30 and 31 on page 4 with the following:

"Projects

(2) The environmental assessment of a project under this section shall be"

The question being put on the amendment, it was adopted.

Karen Redman moved, -- That Bill C-9, in Clause 6, be amended by replacing lines 17 and 18 on page 5 with the following:

"shall ensure that an environmental assessment of a project under this section"

The question being put on the amendment, it was adopted.

Karen Redman moved, -- That Bill C-9, in Clause 6, be amended by replacing lines 23 and 24 on page 5 with the following:

"Projects

(2) The environmental assessment of a project under this section shall be"

The question being put on the amendment, it was adopted.

Karen Redman moved, -- That Bill C-9, in Clause 6, be amended by replacing lines 8 to 20 on page 6 with the following:

"Assessments by band councils under regulations

10. (1) If a project is to be carried out in whole or in part on a reserve that has been set apart for the use and benefit of a band and that is subject to the Indian Act, the council of the band for whose use and benefit the reserve has been set apart shall, if regulations that apply to the band have been made under paragraph 59(l) and have come into force, ensure that an environmental assessment of the project is conducted in accordance with those regulations before the band council exercises one of the following powers or performs one of the following duties or functions in respect of the project, namely, where the band council

(a) is the proponent of the project and does any act or thing that commits it to carrying out the project in whole or in part;

(b) makes or authorizes payments or provides a guarantee for a loan or any other form of financial assistance to the proponent of the project for the purpose of enabling the project to be carried out in whole or in part, including financial assistance in the form of any reduction, avoidance, deferral, removal, refund, remission or other form of relief from the payment of any tax; or

(c) takes any action under a provision prescribed under paragraph 59(l.001) for the purpose of enabling the project to be carried out in whole or in part.

Timing of assessment

(2) Where an environmental assessment of a project is required under subsection (1), the band council shall ensure that the assessment is conducted as early as is practicable in the planning stages of the project and before irrevocable decisions are made."

The question being put on the amendment, it was adopted.

Karen Redman moved, -- That Bill C-9, in Clause 6, be amended by replacing lines 24 and 25 on page 6 with the following:

"into force, ensure that an environmental assessment of a project is con-"

The question being put on the amendment, it was adopted.

Clause 6, as amended, stood.

By unanimous consent, the Committee reverted to Clause 20.

Karen Redman moved, -- That Bill C-9, in Clause 20, be amended by

(a) replacing lines 23 and 24 on page 18 with the following:

"which the environmental assessment of the project is to be conducted by"

(b) replacing lines 32 and 33 on page 18 with the following:

"respecting the environmental assessment of the project."

The question being put on the amendment, it was adopted.

Clause 20, as amended, stood.

By unanimous consent, the Committee reverted to Clause 21.

Karen Redman moved, -- That Bill C-9, in Clause 21, be amended by replacing line 34 on page 18 with the following:

"1998, c. 25, s. 164

21. (1) The portion of section 41 of the Act before paragraph (a) is replaced by the following:

Conditions

41. An agreement or arrangement entered into pursuant to subsection 40(2) or (3), and any document establishing a review panel under subsection 40(2.1), shall provide that the environmental assessment of the project shall include a consideration of the factors required to be considered under subsections 16(1) and (2) and be conducted in accordance with any additional requirements and procedures set out in the agreement and shall provide that

(2) Paragraph 41(d) of the Act is replaced"

The question being put on the amendment, it was adopted.

Clause 21, as amended, carried.

By unanimous consent, the Committee reverted to Clause 30.

Karen Redman moved, -- That Bill C-9, in Clause 30, be amended

(a) by replacing lines 15 and 16 on page 26 with the following:

"federal lands and that are subject to an environmental assessment conducted in"

(b) by replacing lines 28 and 29 on page 26 with the following:

"to be satisfied by an environmental assessment of those projects"

The question being put on the amendment, it was adopted.

Gary Lunn moved, -- That Bill C-9, in Clause 30, be amended by replacing line 34 on page 26 with the following:

"prescribed under that subparagraph in the case of projects that are to be carried out outside Canada and outside any federal lands;"

After debate, the question being put on the amendment, it was adopted.

Joe Comartin moved, -- That Bill C-9, in Clause 30, be amended by replacing lines 29 and 30 on page 27 with the following:

"the manner of conducting environmental asssessments of, and follow-up"

The question being put on the amendment, it was adopted.

Karen Redman moved, -- That Bill C-9, in Clause 30, be amended by replacing, in the English version, line 39 on page 27 with the following:

"powers, duties or functions on a person or body"

The question being put on the amendment, it was adopted.

Karen Redman moved, -- That Bill C-9, in Clause 30, be amended by

(a) replacing lines 41 and 42 on page 27 with the following:

"or performance of which requires an environmental assessment under para-"

(b) replacing lines 45 and 46 on page 27 with the following:

"which an environmental assessment of a project to be carried out in whole"

(c) replacing lines 5 and 6 on page 28 with the following:

"shall conduct environmental assessments of, and follow-up programs"

(d) replacing lines 20 and 21 on page 28 with the following:

"which requires an environmental assessment under paragraph"

(e) replacing lines 25 and 26 on page 28 with the following:

"which an environmental assessment of a project to be carried out in whole"

The question being put on the amendment, it was adopted.

Gary Lunn moved, -- That Bill C-9, in Clause 30, be amended by deleting lines 32 to 45 on page 28.

After debate, the question being put on the amendment, it was negatived on division.

Karen Redman moved, -- That Bill C-9, in Clause 30, be amended

(a) by replacing lines 33 to 36 on page 28 with the following:

"ing bands individually or by category and respecting the manner of conducting environmental assessments of, and"

(b) by replacing, in the English version, line 44 on page 28 with the following:

"ners and actions may vary by band or category"

The question being put on the amendment, it was adopted.

Karen Redman moved, -- That Bill C-9, in Clause 30, be amended by adding after line 45 on page 28 the following:

"(1.001) prescribing, for the purposes of paragraph 10(1)(c), provisions of any Act of Parliament or any instrument made under an Act of Parliament that confer powers, duties or functions on a band council;"

The question being put on the amendment, it was adopted on division.

Joe Comartin moved, -- That Bill C-9, in Clause 30, be amended by replacing line 2 on page 29 with the following:

"environmental assessments"

The question being put on the amendment, it was adopted.

Joe Comartin moved, -- That Bill C-9, in Clause 30, be amended by replacing lines 15 and 16 on page 29 with the following:

"applies, no environmental assessment need be carried out by that agency,"

The question being put on the amendment, it was adopted.

Karen Redman moved, -- That Bill C-9, in Clause 30, be amended by adding after line 28 on page 29 the following:

"(1.03) prescribing, for the purposes of subsection 18(3), circumstances in which a responsible authority shall give the public an opportunity to participate in the screening;"

The question being put on the amendment, it was adopted.

After debate, Clause 30, as amended, stood.

Clause 31 stood.

On Clause 32,

John Herron moved, -- That Bill C-9, in Clause 32, be amended by adding after line 44 on page 29 the following:

"(e) ensure that proponents and federal authorities, including responsible authorities, comply with the provisions of this Act and its regulations."

After debate, the question being put on the amendment, it was adopted by a show of hands.

At 10:20 a.m., the Vice-Chair, John Herron took the Chair.

Charles L. Caccia moved, -- That Bill C-9 be amended by adding after line 10 on page 30 the following new clause:

"REVIEW AND REPORT

32.1 (1) Within five years after this Act receives royal assent, a comprehensive review of the provisions and operation of the Canadian Environmental Assessment Act shall be undertaken by such committee of the Senate, of the House of Commons or of both Houses of Parliament as may be designated or established by the Senate or the House of Commons, or by both Houses of Parliament, as the case may be, for that purpose.

(2) The committee referred to in subsection (1) shall, within a year after a review is undertaken pursuant to that subsection or within such further time as may be authorized by the Senate, the House of Commons or both Houses of Parliament, as the case may be, submit a report on the review to Parliament, including a statement of any changes that the committee recommends."

After debate, Julian Reed moved, -- That the amendment be amended by replacing the word "five" with the word "seven".

After debate, the sub-amendment was adopted by a show of hands.

After debate, the question being put on the amendment, as amended, it was adopted on division.

At 10:35 a.m., the Chair, Charles Caccia, took the Chair.

Clause 32, as amended, stood.

By unanimous consent, the Committee reverted to Clause 31.

Joe Comartin moved, -- That Bill C-9, in Clause 31, be amended

(a) by replacing, in the English version, line 35 on page 29 with the following:

"conducted under this Act;"

(b) by adding after line 35 on page 29 the following:

"(2) Paragraph 62(e) of the Act is replaced by the following:

(e) to ensure an opportunity for timely public participation in the environmental assessment process; and

(f) to engage in consultation with aboriginal peoples on policy issues related to this Act."

After debate, the question being put on the amendment, it was adopted.

After debate, Clause 31, as amended, carried.

By unanimous consent, the Committee reverted to Clause 26.

Karen Redman moved, -- That Bill C-9, in Clause 26, be amended by replacing lines 14 to 42 on page 21, lines 1 to 44 on page 22, lines 1 to 40 on page 23 and lines 1 to 26 on page 24 with the following:

"Establishment of Registry

Canadian Environmental Assessment Registry

55. (1) For the purposes of facilitating public access to records relating to environmental assessments and providing notice in a timely manner of the assessments, there shall be a registry called the Canadian Environmental Assessment Registry, consisting of an Internet site and project files.

Right of access

(2) The Registry shall be operated in a manner to ensure convenient public access to it. This right of access to the Registry is in addition to any right of access provided under any other Act of Parliament.

Internet Site

Establishment and maintenance

55.1 (1) The Agency shall, in accordance with this Act and the regulations, establish and maintain an Internet site to be generally accessible through what is commonly referred to as the Internet.

Contents

(2) Subject to subsection 55.5(1), the Internet site shall include

(a) within 14 days after the commencement of an environmental assessment, notice of its commencement, except where a class screening report is used under subsection 19(5) or (6);

(b) an agreement contemplated by subsection 12.4(3);

(b.1) a description of the scope of the project in relation to which an environmental assessment is to be conducted, as determined under section 15;

(c) a statement of the projects in respect of which a class screening report is used under subsection 19(5) or (6);

(d) any declaration referred to in subsection 19(4) and the report to which it relates or a description of how a copy of the report may be obtained, and any declaration referred to in subsection 19(9);

(e) notice of termination of an environmental assessment by a responsible authority under section 26;

(f) notice of termination of an environmental assessment by the Minister under section 27;

(g) any public notices that are issued by responsible authorities or the Agency to request public input into an environmental assessment;

(h) notice of a decision of the Minister to refer a project under paragraph 21.1(1)(a);

(i) where the responsible authority, in accordance with subsection 18(3), gives the public an opportunity to participate in the screening of a project or where the Minister, under paragraph 21.1(1)(a), refers a project to the responsible authority to continue a comprehensive study, a description of the factors to be taken into consideration in the environmental assessment and of the scope of those factors or an indication of how such a description may be obtained;

(j) the screening or comprehensive study report taken into consideration by a responsible authority for the purpose of a decision under section 20 or 37 or a description of how a copy of the report may be obtained, except where a class screening report is used under subsection 19(5) or (6);

(k) an environmental assessment decision statement under subsection 23(1) and any request made under subsection 23(2);

(l) notice of the referral of a project to a mediator or review panel;

(m) the terms of reference of a mediation or a review panel;

(n) if the Minister has ordered the conclusion of a mediation under subsection 29(4), notice of the order;

(o) a report of a mediator or review panel or a summary of the report;

(p) a response under paragraph 37(1.1)(a) to the report of a mediator or review panel;

(q) except where a class screening report is used under subsection 19(5) or (6), the decision of a responsible authority, made under section 20 or 37 concerning the environmental effects of the project, and a statement of any mitigation measures the implementation of which the responsible authority took into account in making its decision;

(q.1) a notice stating whether or not, pursuant to subsection 38(1), a follow-up program for the project is considered appropriate;

(r) a description summarizing any follow-up program and its results or an indication of how a full description of the program and its results may be obtained;

(s) any other information that the responsible authority or the Agency, as the case may be, considers appropriate, including information in the form of a list of relevant documents in which case a description of how they may be obtained shall be provided; and

(t) any other record or information prescribed under paragraph 59(h.1).

Form and manner of Internet site

(3) The Agency may determine

(a) what the form of the Internet site is to be and how it is to be kept;

(b) how records and information are to be included in it;

(c) what information must be contained in any record referred to in subsection (2);

(d) when information must be included in the Internet site and when it may be removed from it; and

(e) how access to the Internet site is to be provided.

Printed copy

(4) For the purpose of further facilitating public access to records included in the Internet site, the Agency shall provide a printed copy of any such record on request.

Duty to contribute records - Agency

55.2 (1) The Agency shall ensure that the records referred to in paragraphs 55.1(2)(b), (d), (h) and (k) are included in the Internet site.

In the case of mediation or review panel

(2) The Agency shall, in the case of a mediation or an assessment by a review panel, ensure that the records referred to in paragraphs 55.1(2)(b.1), (f), (g), (l), (m), (n), (o), (p) and (s) and any record or information referred to in paragraph 55.1(2)(t) are included in the Internet site.

Duty to contribute records - responsible authorities

55.3 (1) A responsible authority shall ensure that the records referred to in paragraphs 55.1(2)(a), (e), (i), (j), (q), (q.1) and (r) and, in the case of a screening or a comprehensive study, the records referred to in paragraphs 55.1(2)(b.1), (g) and (s) and any record or information referred to in paragraph 55.1(2)(t), are included in the Internet site.

Statement - paragraph 55.1(2)(c)

(2) A responsible authority shall ensure that the statement referred to in paragraph 55.1(2)(c) is included in the Internet site every three months or with any other greater frequency to which it agrees with the Agency.

Project Files

Establishment and maintenance

55.4 (1) In respect of every project for which an environmental assessment is conducted, a project file shall be established and maintained, in accordance with this Act and the regulations,

(a) by the responsible authority from the commencement of the environmental assessment until any follow-up program in respect of the project is completed; and

(b) where the project is referred to a mediator or a review panel, by the Agency from the appointment of the mediator or the members of the review panel until the report of the mediator or review panel is submitted to the Minister.

Contents of project file

(2) Subject to subsection 55.5(1), a project file shall contain all records produced, collected or submitted with respect to the environmental assessment of the project, including

(a) all records included in the Internet site;

(b) any report relating to the assessment;

(c) any comments filed by the public in relation to the assessment;

(d) any records relating to the need for, design of or implementation of any follow-up program; and

(e) any documents requiring mitigation measures to be implemented.

General

Categories of information that may be made publicly available

55.5 (1) The Registry shall contain a record, part of a record or information only if

(a) it has otherwise been made publicly available; or

(b) the responsible authority, in the case of a record under its control, or the Minister, in the case of a record under the Agency's control,

(i) determines that it would have been disclosed to the public in accordance with the Access to Information Act if a request had been made in respect of that record under that Act at the time the record came under the control of the responsible authority or the Agency, including any record that would be disclosed in the public interest pursuant to subsection 20(6) of that Act, or

(ii) believes on reasonable grounds that it would be in the public interest to disclose it because it is required for the public to participate effectively in the environmental assessment - other than any record the disclosure of which would be prohibited under section 20 of the Access to Information Act.

Applicability of sections 27, 28 and 44 of Access to Information Act to third party information

(2) Sections 27, 28 and 44 of the Access to Information Act apply to any information described in subsection 27(1) of that Act that the Agency or a responsible authority intends be included in the Registry with any modifications that the circumstances require, including the following:

(a) the information is deemed to be a record that the head of a government institution intends to disclose; and

(b) any reference to the person who requested access shall be disregarded.

Protection from civil proceeding or prosecution

55.6 Notwithstanding any other Act of Parliament, no civil or criminal proceedings lie against a responsible authority, the Agency or the Minister, or against any person acting on behalf of them or under their direction, and no proceedings lie against the Crown, the Agency or any responsible authority, for the disclosure in good faith of any record or any part of a record pursuant to this Act or for any consequences that flow from that disclosure or for the failure to give any notice required under section 27 or 28 of the Access to Information Act if reasonable care is taken to give the required notice."

After debate, the question being put on the amendment, it was stood.

Gary Lunn moved, -- That Bill C-9, in Clause 26, be amended by adding after line 6 on page 22 the following:

"(h.2) a record of every determination of the scope of the factors to be taken into consideration under subsection 16(3), including the reasons for the determination;"

After debate, the question being put on the amendment, it was negatived by a show of hands.

After debate, Clause 26 stood.

By unanimous consent, the Committee reverted to Clause 32, as amended.

Karen Redman moved, -- That Bill C-9, in Clause 32, be amended by adding the following after line 44 on page 29:

"(1.1) Subsection 63(2) of the Act is amended by adding the following after paragraph (b):

(b.1) coordinate the development of a response to a report required under paragraph 37(1.1)(a);"

The question being put on the amendment, it was adopted.

After debate, Clause 32, as amended, carried.

At 11:40 a.m., the Committee adjourned to the call of the Chair.

Eugene Morawski
Clerk of the Committee