ENSU Committee Meeting

STANDING COMMITTEE ON ENVIRONMENT AND SUSTAINABLE DEVELOPMENT

COMITÉ PERMANENT DE L'ENVIRONNEMENT ET DU DÉVELOPPEMENT DURABLE

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, May 27, 1999

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[English]

The Chairman (Mr. Charles Caccia (Davenport, Lib.)): We have a quorum, so we can start. Welcome to the committee. Everybody is welcome to this sitting, which takes place pursuant to Standing Order 81, which means votes 1, 5, 10 and 15 of the main estimates.

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Today, because the House is resuming debate on Bill C-32, we had to advance our sitting and will possibly have to conclude at 9.55 a.m.

On behalf of the committee, I would like to welcome Mr. Gershberg, Mr. Bernier, and Mr. Connelly and perhaps invite them to make a brief presentation. Then we'll have a good round of questions.

Welcome to the committee.

Mr. Sid Gershberg (President, Canadian Environmental Assessment Agency): Thank you very much, Mr. Chairman.

I'd like to start with quite a brief presentation. I think a deck has been circulated by the committee staff. I just want to talk briefly about the act, roles and responsibilities under the act, recent developments, and current priorities of the agency.

The act really has a number of key principles. The first thing to know is that CEAA is essentially a planning process. That means a process should occur as early as practical in the planning process of a project before decisions are taken, in order to influence those decisions and hopefully, at the end of the day, have better projects.

We need to carefully consider the environmental effects before decisions are taken, and a key fundamental principle is the principle of self-assessment. This means the federal departments and agencies responsible for taking the decisions with respect to projects are required to conduct the EAs for their projects.

This is not unique to Canada, but there are various models and more centralized models. This is a model where basically every department and agency in government is responsible for doing the environmental assessments before taking the decisions on those assessments.

Finally, the role of public participation is a key purpose of the act. Providing opportunities for the public to participate is a key ingredient of the environmental assessment process.

For the act to apply, there must be a project that is some sort of physical work not listed on the exclusion list, or a physical activity listed on the inclusion list. These lists are regulations. There has to be a federal authority—generally speaking, a federal department or an agency—but it excludes crown corporations. There also has to be trigger. A federal authority will become a responsible authority under the act for doing the EA if they're a proponent of the project—Public Works putting up a building, for example; if financial assistance is provided to that project; if there is disposal of an interest in land; or if there is a permit, licence or some sort of federal authority required, for example, under the Fisheries Act.

There are four types of assessments under the act. The most common—probably 99% of all assessments—is what we call a screening. That's the first level of assessment and is done by each of the departments and agencies. There's a comprehensive study, which is the next level. There is a list of projects that undergo comprehensive studies, and we have about 20 of those a year. There is mediation, and then a panel review, which is the highest level of assessment. There are very few of those—just a handful a year.

In total, about 6,000 assessments have been undertaken in the past year. The experience since 1995, when the act came into effect, is that there have been about 5,500 to 6,000 assessments per year under the federal act.

Responsible authorities, as I indicated, conduct the screenings and comprehensive studies under the act. They make those decisions based on the EA conducted. They have the authority to refer to our minister, the Minister of the Environment, projects they think should be bumped up to a full public panel review. They're responsible for undertaking follow-up programs to monitor the effects and follow up on the environmental assessment.

The Minister of the Environment establishes panels and fixes the terms of reference for those panels. She makes a determination on those comprehensive studies—those 20 or so fairly important EAs generally on very large projects—she issues regulations and guidelines under the act, enters into agreements or arrangements with other jurisdictions in terms of, say, joint processes with provinces, and has discretionary power for calling a panel.

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The Canadian Environmental Assessment Agency administers and provides leadership for the federal EA process. We provide the administrative support for panel reviews and mediations. We provide opportunities for public participation. Through the comprehensive study process, we normally make these comprehensive studies available to the public for public comment, before the minister takes a decision. We also provide participant funding in the case of panel reviews. We try to promote uniformity and harmonization with all levels of government in Canada, conduct research, and promote sound EA practices by providing information, training and guidance.

In terms of priorities and developments, the agency is continually trying to make improvements in the legal framework. We recently developed a regulation that has gone through the cabinet process for Canada port authorities under the new Canada Marine Act. The 18 port authorities across the country that were not previously covered under the act as crown corporations will now be covered. It has already gone through Canada Gazette part I, and we Canada Gazette part II in June. Amendments to the original four regulations were recently published in part I in April. We've introduced a compliance monitoring framework, and we continually issue operational policy statements to provide guidance to federal authorities in carrying out their responsibilities under the act.

The agency is also working with departments to try to improve the quality of environmental assessment. We think it's very important to continually improve how departments do those assessments. We've recently issued a guide on assessing cumulative effects, which has been a big issue under the act. It's a difficult concept to implement. Working through a multi-stakeholder process, we developed a guide and issued it in the last couple of months.

We're working with aboriginal groups and federal partners on integrating traditional ecological knowledge into doing the environmental assessments. We're developing guidance on follow-up, which has been a difficult area to implement. We have recently implemented class screenings. This is a provision under the act that allows the development of a model class screening to try to improve the efficiency where things are fairly routine. Where mitigation is known, one can use a class screening process to move that through the system.

I have been meeting with senior management in departments for the past year to try to educate, indicate where there may be weaknesses, and improve the commitment of all management committees and government to implement the act appropriately.

We're supporting research on EA standards with the Canadian Standards Association and a multi-stakeholder technical committee to try to develop a national standard on how to do EA. Hopefully that will improve consistency and allow for the adoption of EA methodologies in industry on a voluntary basis.

We're also trying to improve coordination with key partners. We have introduced the federal coordination regulation to try to better coordinate the conduct of EAs, where multiple responsible authorities are involved in the conduct of an EA. It's very possible that in any given EA three, four or five departments can be involved.

About a year ago the minister issued guidelines for panel reviews. We've strengthened the agency's regional offices. We now have five regional offices across the country. We are in the process of negotiating harmonization agreements with the provinces.

Finally, we're preparing for the five-year review of the act. The formal review begins in January 2000. It will focus on both the operations and the provisions of the act. We'll try to do an evaluation of the first five years and look at deficiencies. We're currently preparing for the review by talking to key stakeholders, trying to develop a list of issues. We've initiated a number of studies to try to develop data. We expect that a discussion document would be released in January 2000, and there would be broad public consultations throughout the year 2000. Presumably, the minister would want to bring in recommendations for change about a year later, in January 2001. So we are committed to delivering results.

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We want EAs that are effective and efficient and that involve public participation and support the principles of sustainable development. We are trying to coordinate better across departments. We think it's important that there be a consistent and predictable application of environmental considerations to federal decision-making across regions and across departments. There are many people involved in the process, so that kind of coordination and consistency is often difficult. Of course, we want to move ahead on these things at the same time as discussion is going on in the five-year review and to try to balance those two efforts.

Thank you, Mr. Chairman.

The Chairman: Thank you, Mr. Gershberg. Is it correct on our part to assume that what you have on page 2 under the heading “Purpose” would be the equivalent of the mandate? Could it be the same title?

Mr. Sid Gershberg: The purpose of my presentation this morning was to cover these three areas.

The Chairman: We'll start, and we have a good hour at our disposal. So Mr. Gilmour is first, followed by Mr. Lincoln and Mr. Laliberte.

Mr. Bill Gilmour (Nanaimo—Alberni, Ref.): Thank you, Mr. Chairman.

I believe it was the Cheviot Mine in Alberta where there was the court challenge on the process. As we're going to be doing a review of the act in the future, do you foresee any changes so that the act would close those loopholes and cover the areas of contention so that we wouldn't see those court actions?

Mr. Sid Gershberg: I would like to answer in the affirmative. I'm not sure that you can ever totally avoid court action. It is a right of citizens under any legislation.

As I think I mentioned in my appearance here a couple of weeks ago, we've had a number of court challenges, a fairly small number in total. About 25,000 EAs have taken place in the last four and a half years, and we've had perhaps 15 or 20 court challenges in total. There have been some recent high profile ones, such as Cheviot, and they're difficult. In some cases the court challenges help to clarify things. There is a lot of discretion under the act, and there are a lot of ways of interpreting it, as there are in many areas.

Court challenges are not something we look forward to, and we obviously prefer not to have them. We try to deal with them. Obviously we will look at what comes out of the court for each of those challenges and see whether there is anything that can be done in the five-year review to try to rectify them.

Cheviot is perhaps an example of where the court really focused on the process carried out by the panel itself and the work it did, and based on the terms of reference and the act, it came to a judgment that they hadn't totally fulfilled their duty under the act. We're looking at whether that's a case of a flaw in the act or perhaps the need for, for example, better training for panels or the provision of other guidance material. I think we're going to have to perhaps make more effort to try to make sure that when a panel such as Cheviot is operating, they have the kind of material they need to ensure that they fulfil all the obligations under the act.

Mr. Bill Gilmour: Thank you, Mr. Chairman.

The Chairman: Thank you, Mr. Gilmour.

Mr. Lincoln, please.

Mr. Clifford Lincoln (Lac-Saint-Louis, Lib.): Mr. Gershberg, you mentioned 25,000 a year. Can you tell me how many were screenings and how many were panels?

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Mr. Sid Gershberg: We would have had in the last four or five years, let's say, perhaps seven or eight panels and about fifteen or twenty comprehensive studies. There is an increasing number of comprehensive studies, but in the early years there weren't as many.

Mr. Clifford Lincoln: You say we only had a few court cases compared to 25,000 EAs, but the fact is that of the 25,000 EAs, 24,080 were screenings, and although they could in principle be challenged in court, obviously it's the panels and the comprehensive studies that are challenged.

Mr. Sid Gershberg: One example I think people are aware of is the recent Sunpine case, which was a very important case. That was a screening under the act. I don't know the actual number, but I think a good number of them were in fact screenings. Anything can be challenged. But I think it really depends on the issue and the citizens who are bringing the cases to court, whether it's aboriginals, environmental groups, or whatever, and whatever they determine. As I say, in the Sunpine case, which was a scoping issue and a relatively small screening, actually, there was a view that it wasn't in accordance with the act, and the challenge was brought to bear.

Mr. Clifford Lincoln: Considering that the agency and especially the federal departments are involved, when you look at the total year process, it's just 90.99% screening. If you take a percentage, it's 99% screening. Can you tell me if the power granted to the minister under section 28 to invoke a comprehensive study or a panel has ever been used?

Mr. Sid Gershberg: No. Section 28 gives the minister the power to invoke a panel but not a comprehensive study. There is a regulation that lists those projects that automatically become a comprehensive study. So her only discretion under the act currently is to bump it up to a panel.

Mr. Clifford Lincoln: That is a powerful discretion. Has that ever been used?

Mr. Sid Gershberg: No, it hasn't.

Mr. Clifford Lincoln: We've been over this subsection 18(3) several times, where if there were a regulation, that would give us the opportunity to examine a screening and challenge it. It has been five years in the act. When are we going to have a regulation under subsection 18(3)? Now that the act is going to be supplanted by another act, do we have to start all over again? Is that regulation ready or not ready?

Mr. Sid Gershberg: No, it's not ready. I think I indicated before that this is something that will be looked at. The whole issue of public participation will be looked at extensively in the five-year review.

We have commissioned a couple of studies. As I mentioned, we are trying to gather data on the performance of the act during the past five years. We have two studies on public participation. One has actually been contracted to the environmental assessment caucus of the Canadian Environmental Network.

As you say, there have been 25,000 screenings, and we're trying to assess the data on that. I'm assuming that there will be a widespread public debate on the way public participation is conducted under the act and that recommendations will come out of that review.

There are a great variety of screenings. There are some very small projects where there is, frankly, very little public concern and interest, and there are others that are very large, such as large mines, which don't quite make it up to the threshold of a comprehensive study or a panel. In some of those, there's a lot of public consultation and a lot of public involvement.

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So there's really a variety of experiences under the act. But that's all anecdotal, if I can put it that way, and what we're trying to do is collect some real data that we can use during the five-year review before making recommendations.

Mr. Clifford Lincoln: The whole process is so subjective right now. I think we discussed previously the Diavik Mines. I was saying that Ms. Debra Myles of DIAND, Department of Indian and Northern Affairs, looked at Diavik, and with just the stroke of a pen, wrote:

At this time, the proposed project will not be referred to the Minister of the Environment for mediation or panel review. We do not presently have clear indications that the environmental effects of the proposed project will be uncertain or significantly adverse or that there is significant public concern.

Yet CARC, the Arctic environmental group, reports that the proponent's document included more than 130 pages of issues and public concerns, including the construction of substantial dikes as well as draining of part of Lac de Gras. So what happens is that with the stroke of a pen, an official from one ministry writes something.

It's sort of the same thing with the dredging of the St. Lawrence, where they said there was widespread public participation and everybody was happy. I had a letter in my file that WWF, which had been consulted, said that they were totally against the project. WWF was mentioned as one of the institutions that seemingly had been consulted, but they didn't say that WWF was against it; they just kind of left it open so that the impression was that they were for it.

So an official from a ministry makes a reference, as in this case, which I quoted, and then that's enough. The Minister of the Environment doesn't move under section 28 because it has never happened before, section 18(3) has not been promulgated, so we can't ask for a screening review, and so the whole project just goes on. Don't you think there's a real gap in there, something that needs to be addressed very substantially in the review?

Mr. Sid Gershberg: Mr. Lincoln, on that specific project, the Diavik Mine is a comprehensive study under the act and it has been going on for well over a year. There have been extensive consultations on that project, many meetings, technical committees, and so on. So there has been widespread public consultation.

Having said that, at the end of the day, the Department of Indian and Northern Affairs, who are the responsible authority under the act, will submit their report and recommendations to the Minister of the Environment. Under the comprehensive study process for large projects, the Minister of the Environment and the agency will be making that document available for public comment, and there will be a period of 30 days or more where the public can comment on that report directly to the Minister of the Environment.

The minister will then look at the report and the public comments and make her decision as to whether to agree that the project will not impact adversely on the environment and therefore can go ahead. Or she can then, using not section 28 but another section under the act, bump that up to a public review, depending on the circumstances. So notwithstanding the comments of the official from DIAND, we'll have another kick at the can, if you wish.

Mr. Clifford Lincoln: Except that it doesn't seem to happen.

In the case of Diavik, I think Mr. Connelly and Mr. Bernier and I had many discussions about it at the time of BHP, at the other mine in the Northwest Territories, about projects and policies and programs and ecosystems and about the cumulative effects. In your review, are you going to recommend as an agency that we look beyond specific projects? There are two huge mining developments there. There are others taking place, and it's obvious that the cumulative effects are immense for the territory. Yet we look at it project by project. We go to BHP and we give the okay. Then we go to Diavik completely separately, as if there's no connection between the two. Eventually there will be scores of these projects there littering the landscape, and we never look at the ecosystemic approach.

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As I discussed with Mr. Bernier and Mr. Connelly, we were trying to find out on BHP how we could get the cumulative effects over a certain number of years discussed, and there was nothing in the law that enabled us to do that. Are you going to be recommending that we enlarge the definition to touch on the cumulative effects?

Mr. Sid Gershberg: Of course cumulative effects is a factor now under the act, and it's a difficult one. As I say, we have just recently, in the last two or three months, released a new practitioner's guide, which had been under development for a couple of years, so that we can better look at cumulative effects.

As you know, there's very little guidance in the act. It just says to look at cumulative effects. How that's done is still sort of a new science and it's still under development.

As I say, we have issued a guide that I hope will improve considerably the ability of proponents to look at cumulative effects. It is a very serious issue and a difficult issue. I like to think we are making progress, but there isn't anything under the act that perhaps can address the broader issue.

There are some areas where working cooperatively with industry and working with provinces, we can look at sort of regional... The tar sands, for example, is one area where we're trying to look at the regional cumulative impacts of tar sands development, and I think that's what you're sort of leading to.

Mr. Clifford Lincoln: It's the policies, plans, legislation, ecosysteming.

Mr. Sid Gershberg: Yes.

You make an excellent point and it's something that we're looking at. I'm not prejudging the five-year review. Perhaps the concept of better regional planning is something that can be looked at in the context of the five-year review.

The Chair: Thank you, Mr. Lincoln.

Mr. Laliberte, please, followed by Madame Kraft Sloan and Mr. Charbonneau.

Mr. Rick Laliberte (Churchill River, NDP): I have a number of points I want to raise. But expounding on your term, regional impacts on the tar sands, we have a number of tar sands projects neighbouring my constituency and a lot of the atmospheric movement comes from the west. So we don't necessarily have the industrial development, but we sure have the impacts. Is that being affected?

In terms of jurisdictions, you mentioned legal frameworks, but is there a constitutional jurisdiction here that nobody has put their finger on in terms of assessment, a federal jurisdiction? Is it just assumed that because of the resource transfer agreement these lands were transferred in the early 1900s here, and then you assume that the environment is attached to that transfer? Or is the environment a whole different realm that should be legally defined and federally statuted, that whole issue? There's an issue here, an attachment where an assessment was done on the construction of the bridge but not the impacts of a road or the reason that road is being built in that region. That's my whole question.

We have the issue of nuclear industry. We have mines in northern Saskatchewan. Is that hands off for you because of AECB's jurisdiction? Are you involved in those reviews, the cumulative effects of building roads and the type of industry it builds over there, with tailings ponds that are being designed? It's going to impact our environment, but is it hands off for you for these ones? What's the whole vision of this?

Mr. Sid Gershberg: On the environment, as you know, there really is dual jurisdiction there. The provinces clearly have jurisdiction, and we think we have jurisdiction as well. There are overlaps. Where I think we can be most effective is in trying to work cooperatively with the provinces in cases where there are dual jurisdictions.

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In the case of the tar sands, for example, we are working with both the industry and the province and other stakeholders—all stakeholders, aboriginal and others—to try to look at the cumulative effects through a regional sustainable development strategy for the tar sands. There is good cooperation, there's a lot of work being done to try to really get at the issue Mr. Lincoln had talked about, which is the cumulative impacts of, say, a multiple tar sand project.

In the case of uranium mining, we have had, through the 1990s, a number of joint panels with the Province of Saskatchewan looking at the five or six projects that took place in northern Saskatchewan on uranium mining. Those were panel reviews under the act jointly with the Province of Saskatchewan. So it wasn't a question of whose jurisdiction; it's really trying to work jointly and cooperatively, because there is joint jurisdiction. Where there is joint jurisdiction we try to do this together with the provinces. There are provisions under the act to do that.

Mr. Rick Laliberte: When talking to the province, a lot of the terminology seems to indicate the waters are federal, the land is provincial. Is that your view as well?

Mr. Sid Gershberg: Not all waters are; it depends on the waters, I guess. Some of them would be provincial.

Mr. Rick Laliberte: Depending on whether it's clean or dirty?

Mr. Sid Gershberg: You know, inland waters, for example. I'm not a constitutional expert, but...where we would trigger the act is we would look at the nature of the federal involvement. So as I said earlier, if there is, for example, a project where the federal government gives money, then we would trigger our act. If there's a fisheries permit required—say, destruction of fish habitat or a Navigable Waters Protection Act permit, then the federal act would be triggered.

So it really depends on the nature of the decision that is taken by the federal government. It's not related to a specific activity. We wouldn't do an environmental assessment unless, as I say, there's a federal decision attached to that activity, or to the project.

Mr. Rick Laliberte: Going back to the tar sands review, you mentioned aboriginal groups, but is that only in Alberta? Our communities haven't heard of any review on the Saskatchewan side and we're just a few kilometres away from that. As I said, if it's airborne, some of these particles may not drop immediately. They carry for a few more miles and then drop, and they're falling in our lakes, rivers, and our backyards, and if we're not part of that view I think it's a major oversight.

Mr. Sid Gershberg: Yes. I can't give you the details on that, but I do know there has been discussion and correspondence between the Government of Saskatchewan and the Government of Alberta on that very issue. I think the government has asked to participate and may be involved in some way.

Mr. Rick Laliberte: In part of your January 2000 review, is there a budget allocation of this? Is it an act, a clause that triggers a review of this? Is there a role for this committee to play, or is it up to the minister's discretion to trigger a role for this committee?

Mr. Sid Gershberg: Under the act, the minister is to undertake a review of the act within five years after the act comes into effect. I think the minister indicated a couple of weeks ago when she was here that she is looking at all the options for the review, including for the role of this committee. I don't think she's come to any conclusions yet on exactly the nature of the process that's going to be followed in the year 2000.

Mr. Rick Laliberte: So you don't have a budget figure?

Mr. Sid Gershberg: We don't have an exact budget figure. We have a number of studies we've contracted out for. We have a small team of four or five people who are dedicated to trying to look at the issues and work with the contractors and so on, and do a number of studies. It's part of our budget; probably this year it would be somewhere in the $600,000 or $700,000 range.

Mr. Rick Laliberte: So you weren't part of the program review of cutbacks and fiscal restraints for your agency?

Mr. Sid Gershberg: There were, I think, some small changes back four or five years ago, but certainly if you look at the estimates we've actually got some increased funding this year from our A base, so actually I think we've improved. Some of that money would be going to the five-year review process.

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Mr. Rick Laliberte: But not at the cost of the assessment process. Your staff will not be transferred within to affect that; that'll be an addition?

Mr. Sid Gershberg: That's right.

The Chairman: Thank you, Mr. Laliberte.

Madame Kraft Sloan.

Mrs. Karen Kraft Sloan (York North, Lib.): Thank you very much.

Parts of the Fisheries Act had been devolved to the Province of Ontario to administer, and then Ontario refused to do this because there wasn't any funding or there wasn't enough funding attached to that, so they sent it back to the federal government.

I understand now that there has been agreement established with the conservation authorities in Ontario to do different kinds of administration regarding the Fisheries Act. Unfortunately, over the last few years, particularly under the current Tory government in Ontario, the conservation authorities have been cut back quite substantially in their funding. I know the conservation authority in my riding has suffered a great deal with the cutbacks and trying to do a good job with limited resources.

So we've already had one issue with lack of capacity and lack of funding for Ontario to continue doing the job. I'm wondering if you have done a capacity assessment with the conservation authorities in Ontario before you signed the deal with them.

Mr. Sid Gershberg: This is really a matter that's between the Department of Fisheries and Oceans and the Province of Ontario. We haven't signed any agreement with Ontario. We're aware that the department has been working with the conservation authorities.

I was under the understanding, but I don't have any hard facts on this, that there were some moneys being transferred from the department to the conservation authorities to carry out that function. I can't really give you much more detail than that. It's something you'd have to take up with the department.

Mrs. Karen Kraft Sloan: But doesn't this affect your ability to do environmental assessment under your agency, because the Fisheries Act is a trigger?

Mr. Sid Gershberg: Yes, the Fisheries Act is a trigger, and it would trigger an environmental assessment that, except in the case of a panel review, would be undertaken by the department itself. They have, of course, a separate... The conservation authorities, in doing their work, would identify for the department that, for example, a 35(2) permit authorization for the destruction of habitat is required. That would then transfer, in a sense, back to the department for actually doing the work, working with the proponent if there is a proponent.

I'm not sure the conservation authority issue...I mean, it would impact in terms of their ability to identify the issues, but once it's triggered, in a sense, it's the EA group within Fisheries and Oceans that would be involved.

Mrs. Karen Kraft Sloan: The problem is that I have a group in my riding that are very concerned about some dumping activities that are occurring right on the banks of an important river that flows into Lake Simcoe. They cannot get anybody to go to the site to examine anything. So they came in to talk to me to see what could be triggered under the Fisheries Act.

Then we explained they would have to go to the conservation authority. Well, they can't get anyone from the Ministry of the Environment in Ontario to come and take a look at the site to test anything, and they can't get anyone from the conservation authority to come and take a look. So they were hoping that perhaps the federal government, because of issues around fisheries and preservation of fish habitat, might be a trigger for at least someone making a visit. They're caught in a limbo situation.

I realize that DFO is responsible for signing agreements with conservation authorities for these sorts of arrangements. On the other hand, your agency is responsible for environmental assessment. So it would seem that if there are some problems within the system—you know, that these things are falling down—and the Fisheries Act is a very, very important trigger for an environmental assessment, you cannot deny that regardless of whether it triggers an action that is undertaken by your agency or by the department itself, you are still responsible. It's a very important trigger.

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So it seems to me the system is really breaking down. I was wondering if your agency, if you're supposed to provide support and guidance on some of these issues, has been doing anything on this or is aware. It would seem that if capacity has been eroded to the extent that the conservation authority can't send people out to examine a site that people feel is a contaminated site and contaminating water quality and fish habitat, then what are they supposed to do?

Mr. Sid Gershberg: The only thing I can suggest, on this particular case...I'm obviously not familiar with the circumstances, and as I say, it's Fisheries and Oceans that are the responsible authority. However, I would be quite prepared, if you could supply me with some of the specific details, to take this up with Fisheries and Oceans and try to find out more about what's happening and get back to you.

Mrs. Karen Kraft Sloan: That would be very useful.

I also wanted to ask a question in regards to the trigger that may or may not be available for an environmental assessment in the area around the Bruce nuclear plant. It's my understanding that they want to undertake an expansion of storage of radioactive waste, and I don't have the details of the file in front of me so I'm not sure if it's a low, medium, or high level of radioactive waste. We had been told that if you're going to expand the storage capacity, this would not trigger an environmental assessment. I was just wondering if I could get some clarification on that.

Mr. Sid Gershberg: Yes. This is the Bruce dry storage facility. It did undergo an extensive comprehensive study under the act in the past year or year and a half. The minister has taken a decision on that process and, on looking at the evidence, has decided there were not significant adverse environmental effects and that the project could proceed. I believe the AECB is now going through its regulatory process for moving ahead on the dry fuel storage facility.

Mrs. Karen Kraft Sloan: Thank you.

[Translation]

The Chairman: Mr. Charbonneau, followed by Ms. Girard-Bujold and Mr. Casson.

Mr. Yvon Charbonneau (Anjou—Rivière-des-Prairies, Lib.): Thank you, Mr. Chairman. I would like to ask the President of the Agency to explain to us why the revenue credited to the vote, which was $850,000 in 1998-99 will rise to $3.6 million this year and during the next two years. Could you tell us what this item entails?

[English]

Mr. Sid Gershberg: Certainly. What this refers to is a change in the way we receive moneys under the act in terms of cost recovery, which has been implemented as of August 1998. This is really an estimate of the amount of moneys that could be credited to the vote depending on the number of panels. So we have an authorization up to about $3.5 million that's based on an estimate of three or four panels a year. Depending on the number of cost-recovering panels we have, that's the amount of money that could be credited. If we don't have panels, that money would not come into the agency and wouldn't be credited to the vote.

In the past, we had some cost recovery related to training and other things, but in terms of panels, which are paid out of voted appropriations, as I say, this is a new element in the agency and is a cost-recovering panel. So this is strictly a theoretical number unless cost-recovering panels happen. We haven't had any to date, by the way, since August 1998.

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[Translation]

Mr. Yvon Charbonneau: Mr. Chairman, you have just told us that the cost recovery program had been implemented in August, 1998. I thought that this policy was to be implemented starting in the fall of 1997, but perhaps I am wrong. What are your first findings following the implementation of this policy? Can the fact that costs are being recovered from the developers influence the quality or scope of the environmental assessments? Will this cost recovery policy be reviewed as part of the five-year review of the Act?

[English]

Mr. Sid Gershberg: The policy, as I say, was recently agreed to by ministers in August 1998, and we haven't yet actually implemented it. However, the policy was developed, the actual implementation procedures for the policy, in close consultation with industry in terms of making sure these were true incremental costs and not part of the general agency appropriation. So this is really directly related to the incremental cost of a panel procedure.

There should be absolutely no impact in terms of the way the panel is carried out. This is articulated in the act. The minister tabled guidelines on panel procedures in the House about a year and a half ago. Those are clear, and in our view, there should be no impact in relation to the neutrality of the process carried out on panel procedures.

Now we have committed to evaluating the policy, I believe, after three years once it's being implemented. As I say, really to date we have no experience, and depending on whether there are private sector proponents in terms of a panel, we'll have to see how that develops. But we are committed to doing an evaluation of the policy.

[Translation]

Mr. Yvon Charbonneau: Are you saying that to this date, there have been no circumstances in which you have recovered the costs?

[English]

Mr. Sid Gershberg: In the case of this new cost recovery policy for panels, that is correct. It has been in effect for about eight or nine months, but we have not had a new panel for which this policy would apply.

The minister recently called a panel on Red Hill Creek in Hamilton, for example, but that's a regional government and the policy does not apply to governments.

[Translation]

The Chairman: Thank you. Madam Girard-Bujold, go ahead please.

Ms. Jocelyne Girard-Bujold (Jonquière, BQ): Mr. Gershberg, in Priority 7 on page 17 of your Report on Plans and Priorities it says that there are numerous gaps because many federal organizations, particularly Crown corporations, are not obliged to conduct EAs. In what cases are they not required to perform such assessments?

Is the National Capital Commission obliged to comply with the provisions of the Canadian Environmental Assessment Act?

The Quebec Casinos Corporation is proposing to develop a golf course in Lake Leamy Park, which belongs to the NCC. Will this corporation have to comply with the provisions of the Act regarding EAs?

[English]

Mr. Sid Gershberg: Under the act, the crown corporations are handled differently, and the act only applies to crown corporations in the cases where there are regulations that bring them under the act. This has not happened to date, except I should note that there has been a lot of work done through our multi-stakeholder regulatory advisory committee, which had a subcommittee looking at the whole crown corporation issue. After some period of time, and with the development of the Canada Marine Act, the decision was taken to focus the attention on trying to bring the Canada port authorities under the act.

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I think there is a view that crown corporations—and I assume this is the reason it was identified this way in 1995—are somewhat unique in structure. They're all quite different, and one would have to look at the unique regimes for each of them.

In the case of the port authorities, as I say, we worked closely with multi-stakeholder groups and the port authorities and developed a regulation that will apply to them hopefully starting in a few weeks.

Also, for example, we've identified a gap in the case of national airports. There are now local airport authorities in Montreal, Toronto, Winnipeg, etc., and because of the shift from Transport Canada to local airport authorities, they're no longer covered under the Canadian Environmental Assessment Act. We've initiated work with the Department of Transport and the airport authorities to look at that issue and to try to see if we can bring them under the act.

In the case of the other crowns, they are not yet under the act. The National Capital Commission is a crown corporation and is not covered by the Canadian Environmental Assessment Act. That is something we will want to look at and that I certainly will want to review in the context of the five-year review of the act.

I think this is an issue. It has been certainly raised by you and by others as an issue, and I think it's something that deserves a hard look.

We will continue to work away at trying to develop appropriate regimes for each of the crowns, but they are quite different. Some of them are competitive and some of them are not, and some of them really have very little activity. For example, if we took the CBC, I suspect they would have very few, if any, projects under the act. But there are a few, such as the National Capital Commission, that I think are important.

I should say that from what I understand, even though they are not covered under the act, the National Capital Commission has largely adopted many of the procedures that the act uses and has tried, in a voluntary way, to comply with many of the provisions of the act.

[Translation]

Ms. Jocelyne Girard-Bujold: I will reword my question. What are the responsibilities of these organizations with respect to environment and environmental assessment? Do they act on their own, without being obliged to do so? This is the distinction that I fail to understand. Although these agencies are not subject to the provisions of the law or to review by the Canadian Environmental Assessment Agency, do they have certain responsibilities with respect to the environment?

[English]

Mr. Sid Gershberg: I'd hate to speak on behalf of all the crown corporations, but I think a number of them do have some environmental management systems, and that would depend on each of their boards. I can give you one example where recently, within the last couple of months, the Export Development Corporation, for example, has developed an environmental analysis framework, essentially an environmental assessment framework, which it has developed with stakeholders, and it's available on their Internet site. It is an attempt to, in a voluntary way, provide an environmental assessment regime for their export financing. It's not the act and it is voluntary, but I think it is a step forward. But certainly it's not a legal framework.

The Chairman: Merci, Madame Girard-Bujold.

Mr. Casson, please.

Mr. Rick Casson (Lethbridge, Ref.): Thank you, Mr. Chairman.

I'd like to get back to the cost recovery aspect of the estimates here. You indicated that the $3.6 million you have in here as revenue would come from how many panels?

Mr. Sid Gershberg: It would come from, depending on the size of the panel, I suppose anywhere from three to six panels, depending on the size.

Mr. Rick Casson: Help me through this. If somebody is proposing a major development and they have to go through the process of an assessment, then they would have to pick up about $1 million in costs.

Mr. Sid Gershberg: In a large assessment, a large project, probably.

Mr. Rick Casson: I think Mr. Charbonneau's question might not have been answered. Do you think that $1 million charge, or fee, will in any way cause firms to act in a different way from the way they do now? If you're adding $1 million to the process—and I support the fact that people that are proposing these issues should be the ones that pay—can you see any way that a company could get around doing the proper thing just to save the $1 million?

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Mr. Sid Gershberg: I don't think so, because actually the $1 million is a fairly small amount of the total project. If you take Voisey's Bay, for example, in Labrador, which is a multibillion-dollar project, the company has spent somewhere in the order of $15 million at least in environmental studies. So the incremental cost—and we're talking about a multibillion-dollar project—of $1 million to have a good process... I'm not saying it's an insignificant amount of money; it's not. But relatively speaking, I think it's fairly small.

Mr. Rick Casson: Now, you estimate that you've increased the number of full-time equivalent staff from 85 to 95. If this cost recovery money isn't forthcoming, are there ways you can reduce your expenses to compensate for the fact that the revenues have not developed?

Mr. Sid Gershberg: That's an interesting question.

I should note, by the way, that if one looks at the estimates over the last four or five years, our authorized number has always been 95. In actual terms, we were understaffed last year, so we're going back to our norm.

In the area of panels, this is a dilemma for the agency in the sense that we always have to keep a certain number of professional staff in place, whether or not we have any panels going on at any given moment. Now, having said that, these people are gainfully employed in working on procedures, guidelines, and a number of other activities, so it's not that they're sitting around waiting.

We also try to balance the number of professional staff we have with supplementing that on an as-needed basis with term or contract employees for a particular panel. So we would have a core professional staff that is permanent to the agency, perhaps supplemented by a couple of people who are not. So we try to manage that as best we can, but there's no question that this is a fluctuating process and we can't always...panels hit us. You can anticipate some, but most of the time you can't. They just spring up and you have to be ready to deal with them.

Mr. Rick Casson: This is a similar process we went through with the Oldman River regional planning commission in Alberta when the boards weren't funded any further by the province. They tried to estimate how many subdivisions would be coming through the door, and it's a tough thing. So you have to stay flexible, I guess, as you indicated.

In regard to the harmonization accord that was brought forward last year, signed by all the provinces except Quebec, do you feel that this accord will affect... Will the act have to be amended as we review it to take into account the agreement that's there?

Mr. Sid Gershberg: I've stated a number of times, I think, publicly that the act will not be amended as a result of the accords. We are currently negotiating bilateral agreements with four provinces under the accord. Those bilateral agreements are described as cooperative agreements. They're very much a joint venture. The federal government is not—and I underline that—delegating any powers it has under the act. These assessments will be done jointly with the provinces.

As I described to Mr. Laliberte, in terms of trying to work together cooperatively, we will be involved in scoping decisions, in looking at environmental effects, panel reports, and all decisions subsequent to that. We are trying to provide a joint committee under the agreement so that when an assessment is triggered, there will be a joint federal-provincial committee established that will basically conduct the assessment.

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So we feel that the federal government's discretion and decision-making is thoroughly protected under these agreements. We haven't signed any of them yet. All of them will be subject to public consultation. We have had one set of consultations in Alberta, where we're in the process of hopefully finalizing an agreement. There have been public meetings and the comments are being assessed. The agreement will be modified as required to deal with that. We feel quite confident that the agreements are fully in conformity with the act and preserve totally the federal government's discretion under the act.

The Chairman: Thank you, Mr. Casson.

We'll have one brief question from the chair, because we have at least two members who want to ask a second round, and time is running out.

The question, Mr. Gershberg, is very simply, what funding do you make available to participants? It's hard to identify the amount from the estimates. Could you comment on whether that amount is adequate, and if not, what amount should be allocated?

Mr. Sid Gershberg: The agency runs a participants' funding program that makes funding available for panels—not for other levels of assessment, but for panels. That is done on a panel-by-panel basis. And frankly, if we have no panels, we spend no money. We have money, and basically we've been using our A-base funding.

We just, for example, announced last week that we will be providing $100,000 for the Red Hill Creek panel, and we do that on a case-by-case basis. There is a set of procedures. We are just, in fact, developing a new set. We had a committee of our regulatory advisory committee develop a new set of procedures and guidelines that will be published shortly, which lays out the criteria, how it's done, and so on. That's really case by case. It's a bit like trying to provide for the panels. We never know whether we're going to have a panel or not. We're committed to the program. The funding will be available for the program.

The Chairman: So there is enough money—

Mr. Sid Gershberg: Yes.

The Chairman: —panel by panel, as required.

Thank you.

Mr. Lincoln, you have a second round, then Madame Kraft Sloan. Then we'll adjourn.

Mr. Clifford Lincoln: Would you tell me, Mr. Gershberg, in 1995 when the BHP diamond mine panel was struck, there was a question of including guidelines regarding traditional aboriginal knowledge. I think the cabinet instructed your agency to prepare guidelines. Can you tell me where you are with those, whether they're ready, whether they're there?

Mr. Sid Gershberg: No, they're not ready. We have contracted with an aboriginal firm, in fact, to help us. This is a very complicated subject, as you're aware. We've had a number of attempts. We feel that it's absolutely critical that the aboriginals be involved directly in the development of those guidelines, and we're now working with them and with the aboriginal communities to try to develop those guidelines. But they're not ready yet.

Perhaps Mr. Connelly can help you.

Mr. Clifford Lincoln: Yes, maybe Mr. Connelly can tell me when they will be ready, because we've had at least three major projects affecting aboriginal people. There's been BHP and Diavik. Voisey's Bay is coming up, and there'll be others. Can you tell me when you expect to have those ready?

The Chairman: Mr. Connelly, can you give us a brief answer, because we have to accommodate one more question and then we'll adjourn.

Mr. Robert G. Connelly (Vice-President, Policy Development, Canadian Environmental Assessment Agency): Yes, it will be very brief. The first draft should be ready later this year. In the meantime, the reviews that have been underway have indeed been looking at traditional ecological knowledge factors. That is ongoing in the absence of the guidelines.

Mr. Clifford Lincoln: I have just one last question, Mr. Gershberg.

The whole issue of directed self-assessment as a basis of... So any responsible authority, a federal government department, conducts its own assessment, decides what the scope of the assessment is going to be, and decides, in the final analysis, whether or not it has negative impacts, instead of the other way around and instead of a far more objective... Do you agree that this whole issue should be reviewed very, very strictly and very seriously in the review?

• 0950

Mr. Sid Gershberg: Yes, I think it certainly will be. It's one of the principles, and I think it's something that people will want to raise and talk about.

It's a very interesting issue, because there really are two views in terms of trying to inculcate sustainable development principles in the government. One view is that we should have a sort of central body, such as the agency or whoever, who would be responsible for all matters related to environmental assessment, and there are models like that around. The other notion is that if you really want to inculcate sustainable development in the government, then you have to get everybody involved. You have to have all departments involved. You have to build up a cadre of experts right across the government and have every department's decision-making informed by environmental assessment principles. So that's the sort of debate, I think.

Mr. Clifford Lincoln: Under section 20 a department can ask for a panel. Do you know of any cases where a department has voluntarily said, I want a panel, I want a review?

Mr. Sid Gershberg: We just had one. Red Hill Creek is an example, which was a screening under the act. The Minister of Fisheries requested a panel from our minister several weeks ago, and a panel was set up.

Mr. Clifford Lincoln: Do you know of any others out of the 24,000-odd?

Mr. Sid Gershberg: Not recently, that I can recall.

The Chairman: Thank you.

Madame Kraft Sloan, you have two minutes.

Mrs. Karen Kraft Sloan: I have two quick questions.

You had already mentioned that you were negotiating bilateral agreements on the harmonization accord regarding environmental assessment, the subagreements. I'm wondering when we can have some documentation for the committee on those and when we can have a briefing for the committee on that process.

Also, prior to undertaking the CEPA review back in 1994, a number of papers were prepared by people internally and externally to government, and I would suspect that there are similar sorts of documents being prepared now. I would like to know when the committee can have access to those documents.

Mr. Sid Gershberg: In the case of harmonization, we can certainly make available to you the Alberta agreement, and as we develop them, we'd be happy to make them available. We'd be happy to provide you with a briefing any time you'd like one.

In the case of the background documents on the five-year review, yes, there are a number of papers we've contracted for, and there are a number of things we're doing internally. All that will be made public and will be made available to the committee. We expect those to start to come in around early to mid-summer, so over the next two months or so a number of those should be available. We would be happy to send them to the committee.

Mrs. Karen Kraft Sloan: Thank you.

The Chairman: Thank you. Thank you, Mr. Gershberg.

I have a brief announcement so that members of the committee can make plans for next week. If third reading on Bill C-32 takes place next week, we will meet on Tuesday from 8 a.m. to 10 a.m. so as to then be in the House at 10 a.m. Instead of sitting on Thursday next week, we will sit on Wednesday afternoon. So the only two time slots you need to enter in your busy schedule are Tuesday morning at 8 o'clock if we have third reading on Bill C-32 that day and Wednesday afternoon at the usual time. Thursday will be free.

Mr. Gershberg, on behalf of my colleagues, I thank you very much. I also thank your colleagues and those in the room who are from your department for their attendance and their help.

Mr. Sid Gershberg: Thank you.

The Chairman: This meeting is adjourned.