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37th PARLIAMENT, 1st SESSION

Standing Committee on Environment and Sustainable Development

COMMITTEE EVIDENCE

CONTENTS

Tuesday, February 5, 2002

0940

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

Mr. Comartin

The Chair

Mr. Comartin

Mr. Tonks

The Chair

Mr. Tonks

The Chair

Mr. Tonks

Mrs. Redman

Mr. Tonks

Mr. Comartin

The Chair

Mr. Tonks

The Chair

Mr. Tonks

The Chair

Mr. Tonks

The Chair

Mr. Tonks

The Chair

Mr. Tonks

The Chair

Mr. Tonks

The Chair

Mr. Tonks

The Chair

Mr. Tonks

The Chair

Mrs. Redman

The Chair

Mrs. Redman

Mr. Comartin

The Chair

Mr. Tonks

The Chair

Mr. Tonks

Mrs. Redman

Mr. Tonks

The Chair

Ms. Scherrer

The Chair

Ms. Justyna Laurie-Lean (Non-Government Member, Regulatory Advisory Committee)

Ms. Arlene Kwasniak (Non-Governmental Member, Regulatory Advisory Committee)

The Chair

Ms. Arlene Kwasniak

Ms. Merrell-Ann Phare

0945

0950

0955

Ms. Justyna Laurie-Lean

1000

1005

The Chair

Mr. Bob Mills (Red Deer, Canadian Alliance)

1010

Ms. Arlene Kwasniak

Mr. Bob Mills

1015

Ms. Merrell-Ann Phare

Mr. Bob Mills

Ms. Merrell-Ann Phare

The Chair

Ms. Merrell-Ann Phare

The Chair

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

Ms. Justyna Laurie-Lean

1020

Mr. Bernard Bigras

The Chair

Ms. Justyna Laurie-Lean

The Chair

Ms. Merrell-Ann Phare

The Chair

Mr. Joe Comartin

The Chair

Ms. Merrell-Ann Phare

1025

Mr. Comartin

Ms. Justyna Laurie-Lean

Mr. Joe Comartin

Ms. Justyna Laurie-Lean

Mr. Joe Comartin

Ms. Justyna Laurie-Lean

The Chair

Mrs. Karen Kraft Sloan (York North, Lib.)

Ms. Merrell-Ann Phare

Mrs. Karen Kraft Sloan

Ms. Merrell-Ann Phare

Mrs. Karen Kraft Sloan

Ms. Merrell-Ann Phare

Mrs. Karen Kraft Sloan

Ms. Merrell-Ann Phare

1030

Mrs. Karen Kraft Sloan

Ms. Merrell-Ann Phare

Mrs. Karen Kraft Sloan

The Chair

Mr. Julian Reed (Halton, Lib.)

Ms. Arlene Kwasniak

Mr. Julian Reed

The Chair

Mrs. Karen Redman

Ms. Arlene Kwasniak

Ms. Justyna Laurie-Lean

Mrs. Karen Redman

1035

Ms. Arlene Kwasniak

Mrs. Karen Redman

Ms. Justyna Laurie-Lean

Mrs. Karen Redman

The Chair

Mr. Alan Tonks

Ms. Justyna Laurie-Lean

1040

Mr. Alan Tonks

Ms. Justyna Laurie-Lean

Mr. Alan Tonks

Ms. Merrell-Ann Phare

Mr. Alan Tonks

Ms. Merrell-Ann Phare

1045

Mr. Alan Tonks

Ms. Merrell-Ann Phare

Mr. Tonks

The Chair

Mr. Tonks

Ms. Merrell-Ann Phare

Mr. Tonks

Ms. Merrell-Ann Phare

Mr. Tonks

The Chair

Ms. Justyna Laurie-Lean

The Chair

Ms. Arlene Kwasniak

Ms. Justyna Laurie-Lean

The Chair

Ms. Arlene Kwasniak

Ms. Justyna Laurie-Lean

Ms. Arlene Kwasniak

The Chair

Ms. Arlene Kwasniak

The Chair

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

Ms. Justyna Laurie-Lean

Mr. Roy Bailey

Ms. Justyna Laurie-Lean

1050

Mr. Roy Bailey

Ms. Justyna Laurie-Lean

Mr. Roy Bailey

Ms. Justyna Laurie-Lean

The Chair

Mr. Bernard Bigras

The Chair

Ms. Arlene Kwasniak

The Chair

Mr. Joe Comartin

Ms. Arlene Kwasniak

1055

The Chair

Mrs. Karen Kraft Sloan

Ms. Justyna Laurie-Lean

The Chair

Mr. Julian Reed

Ms. Arlene Kwasniak

Ms. Justyna Laurie-Lean

1100

The Chair

Mrs. Karen Redman

Ms. Arlene Kwasniak

The Chair

Mr. Alan Tonks

The Chair

CANADA

Standing Committee on Environment and Sustainable Development

NUMBER 059

1st SESSION

37th PARLIAMENT

COMMITTEE EVIDENCE

Tuesday, February 5, 2002

[Recorded by Electronic Apparatus]

¿ (0940)

[English]

The Chair (Mr. Charles Caccia (Davenport, Lib.)): First, Happy New Year to all those who are in this room for the first time in the new year, and to the witnesses, a warm welcome. You will excuse us; we have a few items to clean up before we start.

I would like to thank the members of the committee who went to Washington last week for their input, for their dedication to the cause, and for their keen interest in making that event quite worthwhile. It was given some coverage by the media, as you know, and the whole issue of emissions and emissions trading is now gathering momentum and is going to be the object of frequent events--conferences, discussions, and the like--in the course of this winter and spring.

The position of the Americans is quite interesting for us, because they are proceeding, as usual, on a different tack. They are putting in one bundle a variety of pollutants and one greenhouse gas, and have made that package the subject of a bill under the auspices of Senator Jeffords. The bill covers SO₂, NO_x, and mercury, plus one greenhouse gas. The bill will be voted upon in two weeks or so and then, if approved, will go to the administration--to the President of the U.S.A.--for approval or rejection or modification. It will be quite interesting to see how it will be treated once it leaves the congressional grounds and enters the rarified atmosphere of the White House.

We spent one morning with the assistant deputy secretary of energy and natural resources, who wanted to know more about sustainable development, wanted to discuss Johannesburg and the agenda, and told us what is on and what is not on as far as his mandate is concerned. Unfortunately, there's no time to elaborate on that. I thought it was very educational to see the intellectual framework, or the way of thinking, that dominates the Washington political scene these days.

We experienced also, by way of visits to foundations, some excellent initiatives on climate change, particularly from the Pugh Foundation, which has prepared a kit in collaboration with 60 major corporations on how to proceed in the reduction of greenhouse gases. It's a remarkable feat. Companies like Shell and a number of other major companies are included in that particular initiative. If you are interested in that kit, we'll be glad to provide you with the e-mail address of Pugh, and they will send it. It's remarkable, I must say. It is something that made quite an impression on me because of its considerable corporate significance.

So I would really like to thank the members of the committee, because it was a very worthwhile effort. I hope it was for you as well.

This morning, we have a matter related to a colleague of ours who is not a member of the committee, but I understand Mr. Comartin would like to speak on his behalf about unfinished business.

Would you like to summarize the problem for us?

Mr. Joe Comartin (Windsor--St. Clair, NDP): I would, Mr. Chairman, although I don't want to take up a lot of time, because Mr. Stoffer's going to pursue this issue in another forum, in fact in front of the House, now that he has received the response to his letter. That was received, I understand, on Friday afternoon, after the 45 days were up, according to the rules, and the matter had been referred to this committee.

At this time, Mr. Chairman, he does not want to pursue the matter in front of the committee; however, we want to leave open the option, depending what happens, so that the issue may still be raised. In effect, I'm just asking for it to be tabled at this point. We'll decide later and will give notice to the committee if we want it raised for their consideration.

The Chair: So would you like to move that it be tabled?

Mr. Joe Comartin: Yes.

Mr. Alan Tonks (York South--Weston, Lib.): A point of order, Mr. Chairman.

The Chair: Mr. Tonks.

Mr. Alan Tonks: Could we define “it”? What are we doing?

The Chair: This document here, has it been distributed?

Mr. Alan Tonks: No, I haven't seen it.

Mrs. Karen Redman (Kitchener Centre, Lib.): We have no context for this, Mr. Chair. Could you provide a context, or could Mr. Comartin?

Mr. Alan Tonks: Then I'd be pleased to move “it”. Just what is “it”?

Mr. Joe Comartin: Just a pile of stuff we got him.

The Chair: Question 97 is on the Order Paper. It is part of the House of Commons business, so the substance is circulated, but not this morning here in the full committee. If you'd like to have a look at it, by all means do so; this is the document. It's Question 97, which was raised in the House on Friday. Evidently it should have been circulated, but it's considered a sessional paper, I'm told.

Mr. Alan Tonks: It's always helpful just to know what the subject matter is when we're moving a motion.

The Chair: It's the substance of an inquiry made by Mr. Stoffer and is very detailed. It relates to a river in Nova Scotia. It has been given an answer late Friday.

Mr. Alan Tonks: Just as a matter of procedure, Mr. Chairman--and I think this might be helpful, because it came up at public accounts as well--when you're dealing with the issue of the “45-day” rule, as a matter of procedure do you deal with that first, or do you deal at committee with the substance, inasmuch as it has gone over the 45 days? I'd be interested in what the policy and the procedure is on that.

The Chair: Usually it is answered in the House by the office of the relevant minister, and the matter ends there. However, because of an administrative glitch, so to say, it was tabled not within 45 days but a few minutes or a few hours after the 45 days had expired. At the same time, I'm told these are matters that apparently, under new regulations, are being referred more and more to committee. So we may see the repetition of this instance, which is the first one I've ever come across.

Mr. Alan Tonks: I see.

Just in response to that, is tabling it before this committee in fact giving notice? It's highly unusual to give notice...“If something doesn't happen, I'm giving notice that I'm going to do something.”

The Chair: By tabling it before this committee, if the votes carries, it means the material--that substance-- is received. Period.

Mr. Alan Tonks: Right.

The Chair: And it stays there unless and until it is revived at a later date. Or it may just die there happily.

Mr. Alan Tonks: So as I understand it, giving notice at this point doesn't suggest the committee is automatically going to deal with it.

The Chair: No.

Mr. Alan Tonks: The committee would have to then vote to deal with the matter.

The Chair: Correct. That would be my interpretation as well, and I think Mr. Comartin`s too.

Mr. Alan Tonks: Thank you.

The Chair: There is a new standing order called by the clerk, who has been whispering desperately in my ear, that deals with this subject matter. I will ask the clerk to be so kind at the next meeting as to circulate the standing order so that we all have a better understanding of what this all entails.

Mr. Alan Tonks: Thank you.

The Chair: Thank you for raising the questions.

We have a motion by Mr. Comartin tabled. Any question or discussion?

Madam Redman.

Mrs. Karen Redman: Thank you. Just through you to Mr. Comartin, I'm wondering if this same procedure is being followed perhaps with the fisheries department and other jointly concerned parties.

The Chair: Fisheries committee, or department?

Mrs. Karen Redman: The committee. Sorry.

Mr. Joe Comartin: No, it's not, but that's not something we can do anything about. Once the letter goes to the department, they decide--if they don't answer the question--which committee it goes to. So it got referred to the environment committee only.

The Chair: Thank you.

Any further questions or comments?

(Motion agreed to [See Minutes of Proceedings])

The Chair: There is now an interesting memo from the clerk to me dealing with the visit of Hong Kong legislators. I will ask him to circulate the list of parliamentarians who intend to come and their background. I understand they will be in Ottawa on February 18 and 19, and it occurred to me it would be nice if we were to entertain them for lunch, or at least invite them. These are, I'm told, environmental committee members who have expressed an interest in meeting with this committee's members and other committees as well. Since these are colleagues of ours engaged in environmental matters coming from Hong Kong, is there a disposition of the committee to receive them, either by way of a reception or a lunch or a committee meeting? Could we have some views?

Mr. Tonks.

Mr. Alan Tonks: I think it's a wonderful opportunity. I would move, if it's required, that you take whatever the appropriate steps are to receive them and provide this committee an opportunity to engage them in some of the issues of mutual concern.

The Chair: Including caviar and champagne?

Mr. Alan Tonks: I don't think that's required, but whatever is appropriate. You can consult their culinary tastes.

An hon. member: Do they speak English?

A voice: Yes, they do.

The Chair: The clerk has informed me he's working with his colleagues on the industry committee to arrange for a joint lunch with them. Is that all right?

Ms. Hélène Scherrer (Louis-Hébert, Lib.): That would be great, because he's richer than us.

The Chair: Thank you. That takes care of that.

Well, now we can finally welcome you again and ask you to make your presentation, which will be followed by a round or two of questions. We may be interrupted by a vote, but let's hope it will not happen.

Would you like to introduce your group?

Ms. Justyna Laurie-Lean (Non-Government Member, Regulatory Advisory Committee): Thank you, Mr. Chairman.

My name is Justyna Laurie-Lean. My colleagues here are Arlene Kwasniak and Merrell-Ann Phare.

We have provided to the clerk a copy of our submission, which is available for circulation.

[Translation]

I apologize, but the brief is in English only. There wasn't enough time for our francophone colleague to translate it.

[English]

And by chance, those of us who are here presenting are not fluent in French, so I'm afraid we'll have to do our presentation in English.

We are here on behalf of the non-government members of the Regulatory Advisory Committee on CEAA, a broad group that includes various sectors of Canadian society. We're not speaking here, I want to make clear, on behalf of our own organizations. RAC itself is not an organization that has a position; however, we will be reflecting on the consensus that was achieved by RAC and the discussions that took place there.

I make that introduction because a number of us will be appearing or seeking to appear before this committee on our own behalf.

A number of issues of high interest and importance to different groups were not, for various reasons, discussed by RAC; they were possibly not of interest to everyone, and RAC could only deal with so many issues. So there are issues that RAC did not touch on. As well, the non-government members have different perspectives on Bill C-19. There is not a one-on-one correspondence between RAC recommendations and Bill C-19, so there is more that they will bring before this committee than we will be talking about here.

The scope of what we'll talk about includes the areas where Bill C-19, we feel, reflects the recommendations RAC made and those where it did not. As well, we will touch on some of the important areas where there was common ground or where there were important differences of opinion expressed that we feel would be helpful for your committee to know.

A number of amendments that Bill C-19 will make to CEAA are of an administrative nature, and we're not going to touch on those. You may ask questions, but basically, we felt in the time available there was no point going into those in detail.

I'll now turn it over to Arlene.

Ms. Arlene Kwasniak (Non-Governmental Member, Regulatory Advisory Committee): Thank you very much, Justyna, and thank you very much to the committee for inviting the Regulatory Advisory Committee to make this presentation.

Just for your information and not to confuse you, on the Regulatory Advisory Committee I'm one of the representatives of the Canadian Environmental Network and I will be here before you on Thursday representing the Environmental Law Centre. As Justyna has said, we're limited here today to what the Regulatory Advisory Committee discussed and decided. I'm sure you've seen the report of the Regulatory Advisory Committee. I believe it's been circulated to the members.

I'm going to be discussing with you the various consensus agreements by the Regulatory Advisory Committee that were not reflected in Bill C-19. We think these are very important, because the Regulatory Advisory Committee was made up of very good, aggressive representatives of the various sectors of Canadian society. If we could come to consensus on these issues, that really says something, and it speaks to their importance. That's why we want to bring these consensus items to your attention. If you get all these sectors of society agreeing something should be in legislation, we think it should be.

The first one I'm going to talk about is scoping. This is something that did not make it into the bill. One of the consensus items we had was that the bill should have a more formal process for determining the scope of a project and scope of assessment factors required under sections 15 and 16 of CEAA. Section 15 has to do with the scope of the project; that is, what's going to be included in the description of the project that's going to be assessed. Section 16 deals with the scope of the assessment, meaning what factors will be taken into consideration when assessing the project.

As I'm sure you know, a lot of the important litigation--in fact, I think, most of the key litigation dealing with CEAA--has to do with scoping issues. For instance, in Sunpine, the famous case from Alberta, the main issue was, when you scope the project or the assessment, do you include just the logging bridge, or do you also include the road attached to the bridge? That kind of argument has been repeated over and over.

Industry, environmental organizations, aboriginal organizations--everyone agreed you have to have some certainty on scoping in the act, not only to avoid litigation, but just for transparency and more rational environmental assessment. That's one thing we really needed to have, a more formal process.

We wanted more national consistency for scoping that should be developed through clear criteria in addressing scope determination. This could be done, I guess, through guidelines, but also it would be nice to have something in the legislation on it.

And this, I think, is a really important recommendation we had: that, at minimum, all assessments should be listed on the federal environment assessment index, which would now be the registry and would include a scope determination to help provide transparency.

The idea is, if you have that scope determination out there prior to the assessment, and if the public and everyone who has an interest has an opportunity to comment on it, it's going to be very difficult to go back later and engage the courts.

Another consensus was that we should recognize, either through legislation or through policy, the results of strategic environmental assessments and regional environmental assessment frameworks and should recognize that they should provide a helpful context for scoping determinations, including those relating to cumulative environmental effects assessment.

The idea here is that there has been a lot of work done throughout Canada setting out governmental policies on the kinds of developments that should occur in areas and what kind of developments are already there, and these could be very useful in scoping projects, especially with respect to cumulative effects, to know what's already out there.

This has been partially addressed in the bill to allow certain regional studies in, but it's really quite limited; for instance, the federal government had to have been involved in the study in order for that to get in.

Another thing we had a consensus recommendation on was--

The Chair: Ms. Kwasniak, it would be helpful, as you go through each recommendation that is not fully reflected, if you could also indicate why, in your opinion, it was not included.

Ms. Arlene Kwasniak: May I, with respect, address this in the following manner. I'm here representing RAC, so I can't really give RAC's view on that, obviously, because I don't know what RAC's view would be on it. I could give you my opinion, which might be RAC's, but not necessarily.

Honestly, Mr. Caccia, I have to say that I do not know why this wasn't in there. I think it should have been. It was a unanimous consensus recommendation. Everyone involved really wanted scoping clarified, and Justyna will be speaking to that even more.

With respect to the matter of strategic environmental assessments, I don't know why those were limited to the regional studies the federal government had a role in. I wish I knew; I don't have an opinion on it. Hopefully, as I move on, I will have opinions as to why some of these matters were not included in the legislation.

Moving to the next point, improving the quality of environmental assessments is a matter some of the members of RAC had a real interest in. The legislation now requires that there be an assessment if the government grants an interest in land in order for a project to proceed. However, it does not define the term “disposal of an interest”. Some members on the RAC noted that they found this to be a problem in carrying out their duties. Indeed, these were, I think, largely the government members. They convinced everybody else this should be defined in the legislation.

Another one was on improving the quality of environmental assessment--the operation of the transboundary provisions. Bill C-19 did amend the transboundary provisions partly--and it was an improvement--by taking out a provision that no other federal legislation has to apply in order to invoke these provisions. However, the RAC wanted a little more process in it to make the invoking of these provisions a little clearer.

One of the things they wanted was that the minister be able to choose the appropriate track. Right now, the way the provision reads is that the minister can send it to either mediation or panel review. RAC wanted a little more flexibility so that there could be a screening or a comprehensive study; and also to have something firm in the legislation that would allow the minister to designate a lead federal authority for the assessment of the project.

Again, I'm not sure why this isn't in there. Maybe it's considered to be implied that the minister can do this without specific words in the legislation.

Strengthening public participation is another area. There were a number of RAC consensus recommendations that were not adopted. One was that the notification should take place prior to, or upon commencement of, an environmental assessment. That was partly put into the legislation. We wanted the notification to be in electronic form but also in non-electronic form, and it's the latter that is not in there.

We wanted to make it mandatory that information that has to be put on the registry actually be submitted. This has been partially addressed in the legislation by making the agency ensure that it happens, but I don't see that the agency was really given the tools to ensure it will happen.

We also felt that departments should be required to post their screening decision reports on their websites, consistent with the recommendation of the Commissioner of the Environment and Sustainable Development. As to why this requirement wasn't put in the legislation, my opinion is perhaps it was felt that it would be too heavy-handed to make it a requirement of the various agencies that might be responsible authorities in the legislation. Instead, the obligation was put on the CEAA agency to see that it will be done--without, as far as I can see, giving the agency the proper tools to actually ensure that it be done.

On improved participation in screening, the RAC consensus recommendation not adopted in the bill was that responsible authorities should be responsible for ensuring that, where appropriate, opportunities are provided for public participation in screenings, but the conduct of the participation could be delegated to the proponent. We actually recommended wording for the recommendation, which would be:

With respect to public participation in screenings, the Responsible Authority shall document that the criteria for determining public participation were considered and if interactive public participation is deemed appropriate, indicate the extent and character of the public participation and how it met the guidelines for the determination of “meaningful”.

I should probably back up and give a little context for this recommendation. All the sectors in RAC felt that it was very important that there be public participation in screenings. Since there are so many screenings, it was also recognized you couldn't have full-blown public participation in every screening. So it was really left to the person conducting the environmental assessment as to what would be appropriate, knowing that something had to be done and that the public participation had to be meaningful--meaning that the public had more than just the opportunity to write a letter; it had to be that somehow the public participation would feed into the process.

As well, we had a long discussion on what would count as interactive public participation where, say, there's an obligation to respond on the part of government to a public comment.

We realize we can't have something in the act itself that would set out firm rules for everything, and I think everyone was agreed that we could have a public participation guideline or regulation that would do the job. However, we wanted something in the legislation that would at least require the responsible authority to follow the guideline. That's why we put the statement in that the responsible authority had to at least document that whatever criteria are out there were being complied with and that in his, her, or its opinion the participation was meaningful.

Why wasn't this put into the legislation? As a lawyer, and a public-interest lawyer, I can just say that I find it's very rare that these kinds of mandates are put into legislation, because they seem to interfere with discretion. When you have those kinds of mandates, sometimes the government ends up in court because it hasn't complied with them. But again, everyone on RAC thought you really need something in the legislation or else the call for public participation might not actually be complied with.

Justyna will be talking more about comprehensive studies later, but the consensus recommendation that wasn't in the legislation again had to do with public participation. It is that it has to be in all three stages of the comprehensive study provisions--that is, the pre-scoping stage, which is the notification that there is an environmental assessment out there that hasn't been scoped yet as to the project or the assessment; the scoping phase, to comment on the scoping; and then the comment on the comprehensive study report. It's after that report is out there that it will be determined which track the environmental assessment follows. The way Bill C-19 reads right now, it will go either to mediation, to regular study on the comprehensive study track, or to panel review.

We all felt you really have to have an opportunity to comment on it at that point, not just to avoid litigation--although I think that was a large part of it--but also to make sure the process is transparent and all relevant comments are considered.

Again, I was surprised it wasn't in the legislation. There are some things in the legislation that are open-ended as to the kind of public participation that can occur during the scoping process--I mean through the comprehensive study process--and there is a requirement that there be public participation after the report. But there is not something specific for each stage of the report.

We wanted participation in review of key regulations. Here it was in the act, or in the regulations. We wanted a provision that would state the public has a right to comment on any changes to the exclusion list, the inclusion list, or the law list. These, of course, are the three regulations under the statute that determine what projects are going to be assessed, or what kinds of things are going to be assessed under the legislation.

You can probably see that everyone on RAC really wanted the statute to involve Canadians a lot more than it does right now. Why it wasn't put in the act, I don't know. There is, of course, a process already out there for some public review with respect to regulations, but the RAC wanted it more proactive.

Public participation in follow-up was a recommendation partially met in Bill C-19 but not fully. Follow-up is something that happens after an assessment. It's for the government to see if, say, the mitigation provisions it placed on a project approval are actually working and to see if limitations and other restrictions, and anything else--conditions--that were in place were actually working. Right now there is almost a mandatory follow-up, because the responsible authority has to seriously think about whether it's required and then if it is, it may have a follow-up program.

We wanted not only a notification to the public that follow-up has commenced, but also to have access to the follow-up documentation. That is not clearly in the legislation. Why wasn't that put in? I assume, thinking about it, that perhaps justice lawyers thought it might just be impossible to get that documentation sometimes for various reasons, although I would suggest something could have been put in to at least make it available unless there's some good reason not to provide it.

The last consensus recommendation I'm going to talk about has to do with international matters. RAC had reached the consensus that the various international commitments of the government should be at least acknowledged in the CEAA. My recollection of our conversation about that is we couldn't decide which ones should be specifically mentioned. Just to give you some context, I believe industry wanted the trade ones down and environment wanted the environment ones down, so we couldn't come to a specific recommendation there, but we did think that at least there should be recognition that Canada is operating in an international context and that these agreements should be noted in the preamble.

Why weren't they in there? Again, I don't know. There are other things we wanted in the preamble that were not there, and Merrell-Ann will mention those. Indeed, there were some consensus recommendations having to do with aboriginal interests that Merrell-Ann will be addressing shortly.

So those are the consensus recommendations that did not make it in.

Thank you.

Ms. Merrell-Ann Phare (Non-Government Member, Regulatory Advisory Committee): Thank you.

I'm with the Centre for Indigenous Environmental Resources in Winnipeg, but I am here, as an RAC member, representing the Assembly of First Nations.

I would like to reiterate a comment made by Justyna earlier that here my comments do represent AFN's perspective on RAC, but that's only insofar as consensus was reached on RAC on a particular issue. The Assembly of First Nations will be presenting to you at a later time and will be representing their organizational political perspective.

I'd also like to point out that as an RAC member, I'm speaking about aboriginal issues generally here, but my role in the committee is dealing with first nation issues. So if the committee has further questions that deal specifically with Inuit or Métis, I would strongly urge you to deal with them, because my ability to speak on their behalf is extremely limited.

Further on that point I'd like to make two quick points, because there are two points relating to this.

One is that, in hindsight, a number of the RAC recommendations in the report to the Minister of the Environment could be seen as applying to Métis people, but there was no Métis representative on RAC during the time of the five-year review. There currently is now, but at the time when our report was generated, Métis issues were not fully considered.

I don't want to leave the impression that the agency hasn't necessarily looked at Métis issues. I believe they had a consultation process with the Métis National Council and some others. But our recommendations really didn't look at that in detail and I think in general there needs to be much more work put into the relationship between the act and Métis issues, Métis land rights, etc.

The other point I'd like to quickly make is that there was one recommendation that had particular significance to the Inuit and I'm sure you'll hear about this in much more detail when they do their presentation to you. It dealt with the fact that it was considered very important that the act recognize the rights and powers granted through land claims agreements and other enabling legislation, which do often set out an environmental assessment process.

We don't believe this recommendation has been implemented in the bill. I think the perspective presented by the Inuit representative on RAC was that there needs to be clarity on the relationship between the powers granted in a land claim agreement and the act, where one ends and where one begins and how various processes relate to one another. That was not dealt with.

RAC came up with essentially six consensus recommendations relating to aboriginal issues. On one recommendation we received consensus by everybody except for one person. I think it's very significant that we were able, given the multi-constituency nature of RAC, to actually be able to come to consensus on some of these issues.

The aboriginal section was the only one that actually had a preamble statement in our report. We thought there were some fundamental conditions that needed to be stated that explain or give context to our recommendations in the aboriginal sections. I will refer to two of those conditions as I go through my presentation, because they're actually quite critical to understanding the nature of our recommendations.

First, I want to say that RAC is very much in support of ensuring that assessments occur on reserve. This has previously been referred to as “filling the gap”. I guess there was a gap in the legislation regarding on-reserve assessments. An attempt was made to fill that gap through modification of proposed section 10 and proposed paragraph 59(l); we are strongly in support of that and we commend the agency for making a decisive move in this regard.

¿ (0945)

It appears that proposed section 10 has been amended in a really straightforward manner that makes it quite clear what the intentions are. That's a significant step forward.

As well, proposed paragraph 59(l) deals with the regulations that may be enacted to allow first nations to develop their own assessment regimes. Essentially, in the last number of months, they have undertaken a very significant process with the Mi'kmaq in Nova Scotia to actually scope out what this regulation may look like. That is, I think, a very excellent example of the level of cooperation that is both needed and achievable. It demonstrates that we can actually work through giving impact to some of these provisions.

Despite this step forward, there remain a couple of problems with the way proposed section 10 is currently worded. It's not clear that, in fact...the section places the obligation on band councils to ensure that an assessment is done if there are regulations set out for that. I think there may be a problem with whether or not first nations actually have the power to enforce or ensure that an assessment is done. This is particularly the case regarding off-reserve proponents, because the powers that first nations have are generally seen as flying from the Indian Act.

Without getting into aboriginal title, aboriginal rights, the inherent right of self-government, and things like that, the powers given under the Indian Act do not currently allow a community to be able to generate bylaws that deal with environmental assessment. This is currently an issue that is being considered in Indian Affairs, and there's quite a huge initiative dealing with governance issues and this act. But the band could very well be in a position in which it is essentially required to ensure that an assessment occurs on reserve, but it doesn't have the power to enforce it and make sure it happens. This would most certainly be the case, because the Indian Act only applies on reserve. Regarding an off-reserve proponent, that might be impacting the community in some way.

I think this would obviously be an untenable situation for a first nation community. It could be remedied through either amending Bill C-19 or amending the Indian Act, I suppose, but I would hesitate to make any recommendations beyond that. It just seems this could very well be a problem.

The second issue regarding proposed section 10 is that aboriginal communities—this is not just directed at first nations, but in this case it is implying that under proposed section 10—are really sorely in need of financial assistance, the resources needed to be able to accomplish their responsibilities under proposed section 10. This is one of the preamble statements that I referred to earlier that RAC put in its report. Without the capacity to enact these obligations, communities are completely in a no-win situation. They need the resources to do this. It's fundamental. They need to be trained in how to enact, monitor, and do an environmental assessment. They will have both proponents and essentially the regulator on the reserve. It is something that has to be looked at in order for these provisions to be fully effective. I don't think what's there now is adequate.

There needs to be a clear distinction made between resources that are directed to the community level and resources that are directed to the Department of Indian Affairs. I don't necessarily have any problem, of course, with additional resources going to the department to fulfil its obligations, but that's a very different matter from what the communities actually receive in terms of money targeted to capacity building at their community level, at their institutional level, at their tribal council level. They're all different functions, and they all need to understand and work with this process.

¿ (0950)

One of the other preamble statements that we made in the report deals with subsection 35(1) of the Constitution, which, as you are no doubt familiar, recognizes and affirms the treaty and aboriginal rights of aboriginal peoples of Canada. We provided a statement that we recognize those rights and that there's a relationship between them and this act, and we think this principle hasn't received enough attention in the current bill. It's of critical importance, it's almost essentially the most important issue, that development not impact treaty and aboriginal rights, or do so in as minimal a fashion as possible.

We had one specific recommendation that gave a way, at least one way, to take that into account and it dealt with, for example, a definition. It happened to be, in this case, in the definition of “lands in which Indians have interests”. That's paragraph 48(1)(e) of the act. But there are numerous examples throughout the act where it could be changed to reflect the fact that what you're trying to do is actually take into account and protect treaty and aboriginal rights, which is the obligation under law that you have. For example, you could also look at the definition of “environmental effect” or you could look at triggers, but this was not done and we believe it needs to be looked at in greater detail.

Finally, and this is a significant point we could talk about at length, although I kept it very short in the presentation, I want to point out that there is great difficulty in the ideas around consultation with aboriginal people, in particular, with aboriginal people on treaty and aboriginal rights, and how that relates to public participation components in the Canadian Environmental Assessment Act.

They are not synonymous, not the same thing, and in some ways you could be implementing a public participation process and at some point realize that the aboriginal representatives in that process actually are talking about a treaty and aboriginal right impact. That would then kick you into likely having to deal with very legal requirements to meet obligations as set out under law--for example, in the Sparrow case or the Delgamuukw case--for a consultation. This issue is something that RAC has struggled with. I think everybody is trying to figure out how to actually deal with this, but it's an outstanding issue that is very significant.

Thank you.

¿ (0955)

Ms. Justyna Laurie-Lean: I'll now go through first those areas of Bill C-19 that make substantive changes to CEAA that reflect the RAC recommendations and that we support.

The first contains the various provisions creating the Canadian Environmental Assessment Registry. It flowed out of our opinion that the provisions currently under CEAA do not provide for consistent, timely access by the public to the information required for meaningful public participation and that the creation of a single, consistent, electronic registry would be very helpful in that direction.

Concerning provision for improved public participation in screening-level assessments, the amendment Bill C-19 makes first of all explicitly states that public participation can go beyond the minimum, as appropriate to a particular project and circumstances. That was needed because some officials were interpreting the minimum as the ceiling. Having this explicitly stated is important. It also includes a provision that criteria can be developed to guide the application of that discretion, to provide greater guidance to responsible authorities on how it may be exercised.

Also in the five-year review we identified a lot of gaps in the information available on how the act was being implemented across the government. We felt such a lack of information was an obstacle in the review, in ongoing implementation of the act, in monitoring that implementation, and in identifying which areas need improvement.

CEAA, as it currently stands, did not create either a requirement or powers to have consistent record-keeping. Bill C-19 proposes to correct this. It obliges responsible authorities to provide information, to gather that information and submit it to the agency. It specifically gives an obligation to the agency to take a leadership role and to develop a quality assurance program with the objective of continuous improvement in the process. That again is consistent with the improvements RAC recommended.

Finally, Bill C-19 in a very substantive change creates the concept of a federal environmental assessment coordinator and places certain obligations on that coordinator. That, we believe, is also very important, although the RAC consensus recommendation used slightly different language. The reason for it--and it isn't applicable to all projects--is there are larger projects that trigger and involve several responsible authorities, often the province as well as federal authorities. The assessment process itself becomes a large project that requires a lot of management, has many parties, and takes several years. Ensuring it is done effectively is a challenge. Creating this kind of leadership coordinating role generally reflects what RAC recommended.

I'll now go to the more controversial area. I will try to be very careful in my wording, because I will now talk about areas where RAC did not reach consensus or there were differences of views, particularly between the non-government and government members of RAC.

I'll very briefly talk about the Canadian International Development Agency, CIDA. RAC did explore the issue of projects outside Canada. In fact there was a subcommittee formed on CIDA. It explored at length whether there is a need for a separate process for the types of projects funded by CIDA, but that work did not come to a conclusion; therefore RAC did not make a decision on whether such a separate process was justified.

On the comprehensive study process, CEAA as it currently stands does not provide a lot of explicit direction for comprehensive studies. The mandatory public participation provisions are fairly limited and there is no participant funding provision.

À (1000)

As well, CEAA right now requires that in certain circumstances a project either during or after a comprehensive study can be referred to a panel review.

The result of this process is a lot of concern from both the public, about issues of inadequate public participation, and the proponent, in terms of unpredictability and the potential for two processes, one after another. Although this latter has never taken place, still the potential exists.

Bill C-19 proposes an alternative approach to what is currently in place. That basically would increase the extent of mandatory public participation in comprehensive studies to some extent and provide for participant funding. But it would also force the decision on whether the project is referred to a panel to an earlier stage in the project in the scope determination step, and under Bill C-19, once that decision is made, there could not be a subsequent referral to a panel review.

We did not reach consensus on the approach proposed by Bill C-19 and there are strong differences of views on several aspects.

With respect to public participation,some groups see it as potentially inadequate in the proposed new process. Others see it as potentially excessive for some projects.

There's also a difference of views on the desirability of mandatory participant funding and the option of whether or not there could be bump up to a panel review after a comprehensive study. Bump up is seen by some proponents as being an increase in uncertainty and potential delays; on the other hand, by removing that provision you remove a safety net where you have an inadequate study or the original decision not go to panel was faulty.

However, what the non-government members did agree on is that there is one big flaw in this proposed process in general, and it is the lack of transparency that it would create for the scope determination staff.

To reiterate what Arlene explained earlier, the scope determination is the two aspects--one, the decision on what is the project that will be assessed, and two, the scope of the factors that will be considered in the assessment.

Most of us felt that it was essential for the proponent and the public to know what the question is that will be answered in the assessment.

The way Bill C-19 is currently written it does not provide for publication of that scope determination. In fact, it may even prohibit the publication, because it is included in the section where the scope determination is part of a recommendation to the minister. This could make it covered by cabinet confidentiality, and you would have a situation of a process assessing something with all the outside government participants in the dark as to what is actually being assessed.

Consistent with the RAC consensus recommendations on scoping, we recommend, as a minimum, in light of those--and we do recognize there's a whole bunch of non-consensus areas, but for the consensus part we makes these recommendations--that Bill C-19 be amended to make it mandatory that the scope determination step be documented and published, and, if the comprehensive study process being proposed by Bill C-19 is retained, that it should be amended to ensure that the scope determination for comprehensive studies is published and subject to public review and comment before the minister makes a decision on whether the project will follow the comprehensive study route or the panel review route.

Finally, to go into an even more uncertain area, there is the issue of enabling assessments of policies, programs, and regions. This is sometimes referred to as strategic environmental assessment.

À (1005)

As you know, CEAA allows only for assessments of physical works and physical activities right now, with the exclusions and inclusions modifying that allowance. In other words, the only things that can be assessed are physical works and physical activities. Bill C-19, in proposed section 8, would provide for the results of regional studies to be considered in an assessment, but it does not provide for such assessments to be done under the auspices of the act.

We did not reach consensus, as the RAC, on the desirability of including assessments themselves of policies, programs, and regions under the act. However, there was considerable common ground among the non-government members of the RAC, and the area of disagreement was more on whether it should be a mandatory or a discretionary enabling provision within the act.

Just to share with you some of the issues we considered on the potential benefits of including some kind of enabling or mandatory provision in the act, it would provide a transparent framework that policies or cabinet directives cannot provide in regard to how you do the assessment, what information you have to make public, which factors you have to consider, or how the public would participate.

It could also provide a mechanism to streamline assessments of groups of disparate small projects. The example that comes to mind is a management plan for a park. Right now, each physical activity and physical work is assessed as a tiny project on its own, without consideration of how it relates to the others. The class screening provisions are designed to address some of the issues of small projects; however, they can only address approaches that are similar. They can do all park benches, but they cannot do a program that includes a park bench, a public facility in a picnic ground, a trail, and maintenance of a road. They're just not designed for that kind of grouping.

As well, there is the challenge of the cumulative effects assessment. Class screening cannot address that, but a program level or a policy level assessment could.

Finally, it would provide a forum for discussing policy. Right now, in the absence of such a forum, that takes place in the assessment of specific physical works, when it isn't always appropriate.

On the other side, there is a concern about the practical challenge of how you define what constitutes a policy or a program for the purposes of assessment, and when the decision is being made and when the assessment should therefore commence. There's the challenge of ensuring consistency of application, and the question of whether or not you are adding to the complexity of an already complex act. I hope that's helpful to you. I'm sure that question has arisen in your deliberations.

That ends our formal presentation.

Thank you.

The Chair: Thank you. You've certainly taken us through quite a theological labyrinth on what the assessment philosophy is all about.

We have Mr. Mills, Mr. Bigras, Monsieur Comartin, Madame Kraft Sloan, Mr. Reed, Madame Redman, Mr. Tonks, and Mr. Bailey.

Please go ahead.

Mr. Bob Mills (Red Deer, Canadian Alliance): Thank you very much for going through, as the chairman says, that complex statement.

First of all, I just have a question about public participation. Most of us would agree that it's extremely important, and the broader we can make it, the better. There is a concern, however, about the special interest group capturing the agenda on issues like that.

Ms. Kwasniak mentioned the Sunpine issue, which of course is in my constituency. I went out and travelled the road and crossed the bridge and was told by the people looking at this that it was because the shade on the river was maybe going to affect the fish. I looked at that, and of course the bridge wasn't anywhere near the river. It was way up on the sides, and the rocks weren't changed. Yes, there was a bit of shade at some times of the day, but you know, trees as well provide shade that fish have to swim past. This was an example of where none of the socio-economic factors were looked at. Certainly, the company made every attempt to minimize the environmental problems, yet of course the project was stopped.

Now, I wonder how Bill C-19 is going to change that potential, and again, going along with.... I believe in public participation and it being maximized, but that to me is a poor example of how it may be minimized and how it turns off a huge sector of the population toward environmental issues. You mentioned that, so I maybe if I can, I'll start there.

À (1010)

Ms. Arlene Kwasniak: Thank you. That's a very good question.

I think Bill C-19 as it reads right now won't go very far towards addressing that situation, but I think it would if the RAC recommendations were adopted, because there were two issues in that.

One was the scope of the project. Should the project be defined only to include the bridge, or should it be defined to include something else? When it got to the Court of Appeal, the Court of Appeal said, that part is discretionary, that's scope determination. But determining cumulative effects is mandatory and has to include things that are effects of the project, which would include the road.

Now, I think that would have never gone to court had there been public participation by, for example, the Friends of the West Country, the applicant in that case--that is, had they had the opportunity in the first place to go and participate in the determination of both the scope of the project and the scope of the assessments. If it had been a meaningful participation, I think the courts would have later said, no, you had your opportunity, and you didn't participate, or, you participated, your comments were taken into account in the determination of the scope, and you don't have any reason to go to court now.

If you have that meaningful participation in the scoping at the two levels of the project and in the assessment, I think it just has to cut down on the projects being shut down, and hopefully in the end you'll have better projects that take into account the environmental effects they should have in the first place.

Mr. Bob Mills: My other question relates to environmental assessment on reserves, on first nations land. I'll use another example because it's easier to get your mind around--toxic waste being brought from the U.S. into B.C. There were two commercial sites that had undergone environmental assessments and approvals to accept toxic wastes at a level quite below what the Americans.... That's why the Americans were bringing it to us. It ended up...let's say it was $1,000 per unit, just for round figures, yet this toxic waste was actually taken to first nations land and dumped for $200.

Now, the chief and council did not want an environmental assessment done, as I understand it. How would Bill C-19 help, and what was said here? How could we get around that? Obviously, the people around that toxic waste may well have not had any input in the accepting of that product.

À (1015)

Ms. Merrell-Ann Phare: On Bill C-19, that situation arose because of what was a pre-existing gap in the legislation that made it uncertain at which times or when an assessment would actually occur on the reserve. The closing of section 10 would actually make it clear that the act applies in all circumstances now and that there isn't necessarily the option any longer for a community to say they don't want to do it on a reserve.

Indian Affairs would in certain circumstances be required to implement the assessment, and if there are regulations that are set up for a first nations community to do them, they would be required to do them. But now, somebody is required to do the assessment in all circumstances.

Mr. Bob Mills: So while Indian Affairs said they didn't really have jurisdiction here, this would now say directly that they would have jurisdiction? That's what you said?

Ms. Merrell-Ann Phare: Yes. The gap related to--

The Chair: It just closes the gap. It does not reach--

Ms. Merrell-Ann Phare: It doesn't specify that situation. What it does is, the gap that was in existence prior is no longer in existence now. At least, the gap dealt mostly with a funding issue, the transfer of federal money, just transferring money to do a project on reserve that was exempt from application of the act. That gap has been closed. You would still have to make the determination as to whether or not a transfer from the United States to federal land would require an assessment. That's a separate issue, but--

The Chair: Thank you, Mr. Mills.

Monsieur Bigras, la parole est à vous.

[Translation]

Mr. Bernard Bigras (Rosemont--Petite-Patrie, BQ): Thank you, Mr. Chairman. I'd like to thank the witnesses for their presentation this morning, even though their brief was not available in both official languages.

I'm familiar with the report tabled to the minister on May 8, 2000. It was fairly comprehensive and rather interesting. As I recall, the RAC failed to reach a consensus on two issues and no mention was made of this fact in this morning's presentation. I'm thinking, among other things, about issue 37, Aboriginal Issues.

On page 20, the RAC recommends that “a new section of the Act should be developed to provide a mechanism to recognize where aboriginal groups have developed their own individualized processes that could be used to meet some or all of the requirements of the Act.”

You noted that there was no consensus on this issue because one member wished to link the recommendation directly to the need for an equivalency regime that could be utilized by provincial governments. Firstly, I'd like to know the name of the member who called for provincial equivalency.

Secondly, why did the RAC reject the idea of an equivalency regime for provincial governments?

Thirdly, in your opinion, does Bill C-19 integrate the concept of provincial equivalency?

[English]

Ms. Justyna Laurie-Lean: I'll take it on.

I'm not sure that I want to name members and say who said what. The minutes may specify it, but that's not something I would like to do.

The RAC felt that the issue...and the issue of provincial equivalency had been discussed at length over the years, particularly before the CEAA was proclaimed initially and the regulations were formed. It has always been a big issue, particularly for industry.

Basically, jurisdictionally there was no way found, and we just felt that this was not an area that RAC could fruitfully pursue towards consensus. It got us into all kinds of discussions about federal and provincial jurisdiction, and we just did not think that we were a forum to discuss jurisdictional issues.

In the case of the aboriginal provisions, they are a special case with certain existing legislation, existing obligations, and rights specified by the federal government, and therefore we felt more comfortable. The act itself had special provisions, so that's why most of us felt comfortable talking about it. But on the provincial side it is a difficult issue, one that was beyond the capacity of members around that table to come to a decision on.

À (1020)

[Translation]

Mr. Bernard Bigras: Mr. Chairman, am I to understand from this recommendation that there was some willingness to acknowledge that while aboriginal groups may develop processes that meet some of the act's requirements, these processes may be different from the ones developed by a province? Is that in fact the case, Mr. Chairman?

Am I to understand that there are two groups, namely one group that applies processes that meet the same requirements, without any kind of equivalency regime, whereas the other group may have such a regime. If that's the case, Mr. Chairman, I demand right now to know the name of the RAC member who opposed the recommendation, thereby breaking the consensus on the issue. I'd also ask that you take note of the matter. Under the rules, parliamentarians are entitled to make such requests.

I have no objections to recognizing individual processes for aboriginal groups. Like many others, I too believe that aboriginal peoples need separate processes. I see nothing wrong with that. However, I do have a problem when a province has adequate, proven processes in place and when an equivalency regime should be recognized. Therefore, I'd like to know which RAC member rejected this recommendation.

[English]

The Chair: Give a brief answer, please.

Ms. Justyna Laurie-Lean: In terms of who is the member, it [Inaudible—Editor] the opposite. The committee as a whole group wished to put forward the recommendation on recognizing equivalency of aboriginal processes done under other legislation. One member blocked that consensus unless provincial equivalency was recognized. The rest of the members felt they just couldn't reach that kind of position around that table, nor did they wish to comment on federal-provincial jurisdiction around that table.

So that was the....

The Chair: We`ll hear Madame Phare--briefly, please.

Ms. Merrell-Ann Phare: Thank you.

I just want to distinguish between equivalency and the implementation of an assessment on federal land already acknowledged under the act. The act previously had section 10 and paragraph 59(1), which would create regulations for federal assessment responsibilities to be enacted by a first nation on federal land. That's different. It's not a jurisdictional issue when you're dealing with this component.

It became confusing when it started to be called an equivalency. It's not actually that one process is equivalent to another and one would be substituted for the other; it's that a process that was jointly developed between a first nation and the assessment under the act takes the responsibility for that federal process.

The Chair: Merci, monsieur Bigras.

Mr. Comartin, Madame Kraft Sloan, Mr. Reed, Madam Redman, and Mr. Tonks.

Mr. Joe Comartin: Thank you, Mr. Chair.

I just have some quick procedural questions.

Ms. Phare, if I understood, the Métis now have representation on RAC. When did they get that? As well, I wasn't clear from your comments as to whether the Inuit were involved in the whole five-year review or came in at some point as well.

And then, I'm not sure; is the work that was done, I guess, by a subcommittee on CIDA going on; that is, is it continuing? I'm sorry, I may have been out of the room when you addressed this, but I note from your presentation that there simply wasn't a consensus reached. So I'd like a little more information. Is it still going on? Are there any plans to continue it? What's the situation with that?

Thank you, Mr. Chair.

The Chair: A brief answer, please.

Ms. Merrell-Ann Phare: The Métis began to sit on RAC, I believe, about April of last year. They were not a formal member prior to that, but as I understand it, the agency did consult on these issues with the Métis National Council.

The Inuit have been involved in RAC from the beginning, I believe, and were participating, both through RAC and through separate consultations, on this.

À (1025)

Mr. Joe Comartin: Thank you.

Ms. Justyna Laurie-Lean: The CIDA subcommittee technically is still in existence; however, it has not been called. I understand there were responses or material to be provided by CIDA, but the discussion has not gone on. So it could continue, but it has not at this time, and it probably would await the decision on Bill C-19.

Mr. Joe Comartin: Sorry, did you say they were waiting for material from CIDA and didn't get it?

Ms. Justyna Laurie-Lean: Yes. There were certain discussions.... The impression, at least, of some members was that the initiative rested with CIDA to come forward with further arguments. But I'm not sure if that will take place until after the act is decided on.

Mr. Joe Comartin: When did that subcommittee last meet?

Ms. Justyna Laurie-Lean: During the five-year review, so that would have been the beginning of 2000.

The Chair: Thank you, Mr. Comartin.

Madame Kraft Sloan.

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

I apologize for being late. I had a previous meeting that ran overtime.

Madam Phare, I was interested in what you had put forward in your submission with regard to environmental assessment and aboriginal peoples. I do apologize; I've just been briefly told about a court decision last week that affects the constitutional rights of aboriginal people and particularly environmental assessments.

I'm just wondering, with regard to that court decision--in my understanding of it, and I don't have a full understanding of it--if it reinforces what you had said in your second-last bullet on page 7. I'm wondering if you could tell the committee, in light of this recent decision, what amendments you would recommend regarding Bill C-19.

Ms. Merrell-Ann Phare: Well, RAC had specifically made a recommendation dealing with recognizing in a definition section that the interests Indians have on lands includes lands on which they exercise aboriginal and treaty rights. That is one example. There are a number throughout the act that could be done. In the definition of “environmental effect”, it could be defined that an environmental effect is an effect that has a potential to impact aboriginal or treaty rights. That's another one.

There could be something as revolutionary as a trigger, something that could trigger the act if there's a potential affect of a project on treaty and aboriginal rights. I am aware that the AFN submission to the agency on this issue goes into much greater detail on that point, on how to recognize aboriginal rights.

Mrs. Karen Kraft Sloan: So the AFN submission would then have detailed recommendations as to where those amendments might fit in Bill C-19.

Ms. Merrell-Ann Phare: There are very many of them in there, yes.

Mrs. Karen Kraft Sloan: We can certainly follow up with you if we have other questions around that.

The other question I had...and certainly resources are extremely important in being able to carry out the responsibilities and obligations you have. As well, the issue between what first nations are required to do and whether they're going to be able to do so under the act as it will be amended is certainly a very important point.

I'm wondering, because you emphasize the need for capacity-building resources, if there is a current framework or institutional mechanism that could filter the resources to the community, or is there a need for the establishment of an institutionalized mechanism for this? Is there an organization that can help with training and that sort of thing if they have the resources or if they distribute the resources?

Ms. Merrell-Ann Phare: This is going to sound like a very self-serving answer.

Mrs. Karen Kraft Sloan: That's why we're all here.

Ms. Merrell-Ann Phare: There are few first nations educational institutions that deal with this specifically. I happen to work for one that has a national environmental assessment training program. But depending on the level, if you're talking about educating regarding governance issues, some resources might be appropriately flowed through governance institutions--the Assembly of First Nations or what have you. If you are talking about actual on-the-ground skills of assessment and monitoring, going to a technical institution like ours or any other that exists would be appropriate. It's more that it's training at various levels.

There are some in existence, and some wouldn't need to be looked at.

À (1030)

Mrs. Karen Kraft Sloan: So you wouldn't see one overarching institutional framework, mechanism, or organization that would encompass all the issues with regard to implementation of CCEA and the different kinds of training you're talking about. Is there something like a coordinating agency, or would you see it as going in different ways?

Ms. Merrell-Ann Phare: I think centralizing it like that would probably be the wisest use of resources, but there is an issue regarding the local needs and the way needs are expressed across the country, and so I could see that at some level it would have to become regionalized.

Mrs. Karen Kraft Sloan: Yes. Thank you very much.

The Chair: Thank you.

Mr. Reed, please.

Mr. Julian Reed (Halton, Lib.): Thank you, Mr. Chairman.

I have a brief statement and a question. I'm very glad RAC is conscious of the wisdom of avoiding litigation as much as possible. My late granddaddy used to tell me never go to court, because if you win, you lose, and if you lose, you lose bad.

I have a question regarding public participation. In the debates or in the discussion that led up to the recommendations for improving public participation, was there any discussion of also increasing the level of public responsibility?

Ms. Arlene Kwasniak: Yes, there was lots of discussion on that. Indeed, there was an RAC subcommittee struck to deal with the whole issue of public participation in screenings. I understand that this report will be available soon. I know from reading earlier drafts of it that the idea of public responsibility has been discussed and was discussed at RAC a lot. There was a concern about frivolous-type interventions and that was certainly aired.

Mr. Julian Reed: Thank you.

Thank you, Mr. Chairman.

The Chair: Madame Redman, please.

Mrs. Karen Redman: Thank you, Mr. Chairman.

Thank you very much for coming today and giving us your presentation.

Under Bill C-19, proposed section 55, the agency determines the form of registry. The agency is responsible for putting certain records on that registry, but departments are responsible for other records. What specific tool should the agency be given to ensure that departments fulfil their registry obligations?

Ms. Arlene Kwasniak: Again, it's hard to speak for RAC on this one. I would like to see some enforcement mechanisms to require compliance and also some kind of consequence if there's non-compliance on the part of government. I don't really think I can speak for RAC on this one, but I know the environmental community has been very concerned that there be compliance on two levels, and that's amongst the government people to whom RAC applies, and also to the regulated people to whom RAC applies.

Ms. Justyna Laurie-Lean: There was a bit of discussion and a lot of paper produced on what specific elements should be included, how to ensure that it's simple and easy for departments to submit it electronically and so on. The agency has done quite a lot of work on that and is working with departments. RAC advised more on the issues of what are the essential elements that would be helpful for everyone to know, and timing is always an issue as to when you receive the information and how you can search it most easily, because it's no good the information being there if it's difficult to find out that it is there.

Mrs. Karen Redman: You've recommended that provisions of enforcement be added to Bill C-19. Given that the environmental assessment is intended to be a planning process, what kind of enforcement system would you suggest?

À (1035)

Ms. Arlene Kwasniak: Again, I'm here on Thursday representing the Environmental Law Centre, and it will be a lot easier to answer you from that perspective.

Make it an offence to carry out a project that requires an environmental assessment without undergoing one, as is the case with a lot of provincial legislation. Again, this is not RAC speaking, but it would be a way to have it apply to proponents. Under the Environmental Protection and Enhancement Act you can't even apply for your permit until you have your environmental assessment.

Mrs. Karen Redman: You're active participants in the five-year review and members of the Regulatory Advisory Committee. Have you been satisfied with the opportunity to give advice to the minister in the context of this five-year review?

Ms. Justyna Laurie-Lean: Yes. I and our association have been involved in a number of other processes on other legislation, and I think the five-year review of CEAA was outstanding compared to those others. Not to say that there can't always be improvement, but if we compare it to, say, SARA or CEPA, both the opportunity for all stakeholders to participate in the review and the degree to which the government took into consideration what the stakeholders and the groups around the country said have been exemplary in the case of CEAA, and this was not the case in some of the other legislation.

Mrs. Karen Redman: Yes, and I agree with that completely. I think this is one process that is really effective.

The Chair: Thank you.

Mr. Tonks.

Mr. Alan Tonks: Thank you, Mr. Chairman, and thank you to the witnesses for the deputations.

I'm just trying to go through the process with respect to...it's almost where I used to refer to class environmental assessments and then screening-level assessments, and I'm trying to understand the sequence of events. If staff could make that clear for me, a sort of “environmental assessment for dummies” procedure, I'd appreciate that.

Your deputation has focused in on this whole issue of scoping, and scoping to me by definition suggests a certain degree of discretion. It then follows that we would like to simplify or clarify very soon in the process what the actual implications are, what the comparative nature of the EA is going to be, and so on. We'd get that all up front so it would make the rest of the process clear both from an aboriginal perspective and, off-reserve, from a general perspective.

My question is, pursuant to your point that you would like to see that scoping process more deliberative and with a greater degree of clarity, did the RAC give any...or in their deliberations come up with...? You mentioned that you're interested in guidelines, the guidelines that might be entrenched in the legislation. Did the RAC give any consideration to what those guidelines might be?

Ms. Justyna Laurie-Lean: No, we didn't have time to go that far, but it is on the work plan of RAC. We strongly urged the agency to make that a high priority, that there be guidelines on scope determination in general and that they be included in any procedural guidelines for the comprehensive study.

The issue we emphasized most was the need to document and to do the deliberate step, because that is currently not taking place. The act, as you said, does give a lot of discretion in the scoping process. It does set out minimum requirements and say the scoping has to take place, but it does not actually oblige the responsible authority or authorities to write down what that decision was and explicitly make that decision. In our experience across the country, most of the litigation, dissatisfaction, and controversy has flowed from this lack of explicit, transparent scoping.

À (1040)

Mr. Alan Tonks: So the RAC is going to be following-up on that?

Ms. Justyna Laurie-Lean: Yes.

Mr. Alan Tonks: My second is from an aboriginal perspective. You mentioned the whole issue of capacity-building with respect to linking or bridging the empowerment under the act and the ability to have the resources to undertake due diligence, if you will. I take it from the question asked by Mrs. Kraft Sloan that there is a regimen in place that some aboriginal peoples have access to and others don't. Can you just expand on what you mean in terms of capacity-building and resources and at what stage there is a shortcoming right now where you would like to see those resources provided?

Ms. Merrell-Ann Phare: I`m not sure I understand what you mean in saying there's a regimen in place that some have access to and some don't.

Mr. Alan Tonks: You'd indicated that the organization you come from has a training regime, but others don't, that's all.

Ms. Merrell-Ann Phare: Okay. I wanted to clarify that you didn't mean a legal regime.

When I referred to the self-serving answer of my institution, I did not mean the Assembly of First Nations, I meant the organization I work for.

À (1045)

Mr. Alan Tonks: Yes, we understand.

Ms. Merrell-Ann Phare: There are in the universities very few courses--other than in a natural resources kind of institute or department, or something like that--that deal specifically with environmental assessmen, and virtually none that deal with reserve-based issues.

So eight or so years ago our organization created a national training program that deals with this issue--and deals with it in the context of federal legislation--and also assists communities in working through how to enhance that kind of regime, from their perspective, by the inclusion of traditional knowledge, or broader community-based participation processes, or that kind of thing.

That training program exists, and I know other communities in different parts of the country have similar kinds of local training programs to deal with their local needs. But generally, at the senior political and licensing levels, where the people who make the decisions in the community would grant approvals, there's not necessarily an awareness of what an assessment process can do--vis-à-vis economic development, for example, or something like that--so there's a broad need.

The organization that did the whole five-year review consultation for the first nation communities spent a huge amount of time actually just educating the communities on what the assessment means and what it is. So there's that level.

Then there's the actual “how to do an impact assessment”. That's a practitioner-level kind of training that's needed. It's science-based; you need to know some law; you need to know some social impact stuff. That's mostly what our program, for example, deals with.

The broader governance--how an institution or entity on reserve would deal with assessment--is something, from my knowledge, that is just not being dealt with at all, and it's very needed.

Mr. Alan Tonks: Am I out of time?

The Chair: Go ahead, make it brief.

Mr. Alan Tonks: I was just going to ask where the resources are going to come from. If you`d just give us a suggestion, would it be in conflict with the intent of the spirit of the act that those kinds of programs would be funded through--I don't know--the ministry, or the Ministry of the Environment, or what?

Ms. Merrell-Ann Phare: No, I don't think.... The obligation to deal with lands reserved for Indians, which is section 91.24 of the Constitution, is a federal responsibility. I think there isn't a conflict over where the resources come from. I know the act currently allows for training programs to be developed and delivered by the agency, for example. I think there wouldn't necessarily be a problem there; in fact, I think it would be a benefit to communities if it were broadened somewhat.

Mr. Alan Tonks: So you're talking something much broader than intervener funding, or something of that nature?

Ms. Merrell-Ann Phare: Oh, most definitely, yes.

Mr. Alan Tonks: Okay, thank you.

Thank you, Mr. Chairman.

The Chair: Thank you, Mr. Tonks.

I have two brief questions. One, the word “consensus” is frequently used throughout your paper. Could you please give us your definition of that word?

Ms. Justyna Laurie-Lean: It's actually in the operational procedures of RAC, which are included in the report. Basically, it is consensus where no member objects to consensus being declared. It does not necessarily mean every last member wholeheartedly would die for that particular decision, but it does mean they do not object to its moving forward.

Sometimes it's a question that they don't have an interest in a particular issue. Sometimes they may have some hesitation, but they're not opposed.

The Chair: Thank you.

The other question has to do with this point that you would welcome a clause in the act that would make the five-year review a permanent feature.

Ms. Arlene Kwasniak: Did RAC speak to that?

Ms. Justyna Laurie-Lean: Yes, we did suggest it was a good idea. I remember a discussion on the issues of information available for a five-year review, that on some issues we simply did not have the information. By having the information for future reviews it was definitely the intent that there be future reviews.

The Chair: And that recommendation didn't make its way into your paper for some reason?

Ms. Arlene Kwasniak: It wasn't intentionally left out. I think it was perhaps an oversight.

Ms. Justyna Laurie-Lean: Or it was assumed.

Ms. Arlene Kwasniak: I think it was just assumed that provision would stay in the legislation.

The Chair: Would you like to transform the assumption into a letter to the members of the committee?

Ms. Arlene Kwasniak: We will try to do that, yes.

The Chair: Thank you.

Second round, Mr. Bailey, suivi par M. Bigras.

Mr. Roy Bailey (Souris--Moose Mountain, Canadian Alliance): Thank you, Mr. Chairman.

Your group has a tremendously large job, being an advisory committee to the Canadian Environmental Assessment Act. Can you tell me, in your work as an advisory committee do you concentrate only on Bill C-19?

No; it goes beyond that. In other words, then, the Canadian Environmental Assessment Act covers a larger field .

Do you know how many different branches of government are affected by the Canadian Environmental Assessment Act? There's the Department of Fisheries, and how many more?

Ms. Justyna Laurie-Lean: Basically, all of them.

Mr. Roy Bailey: All of them.

Ms. Justyna Laurie-Lean: Yes. Every federal department is covered by the act. They vary in how many of them have triggers, or fund or do other activities that would affect outside proponents. All of them would be affected in their own activities and the vast majority of the screening-level assessments are in fact projects for which the government itself is a proponent.

À (1050)

Mr. Roy Bailey: So then is your advisory committee aware of...? There's an incident I can draw from here right now, an act that really surprised me. I got a call that a local government was very mad at DFO. Now, where I live, it's a long way from oceans, but there was a ditch at the headwaters of what potentially formed a little bit of a creek that finally made a dam. They went up there, and they found two fish all summer. Then they left regulations, and the bill of $43,000 went to the local government board.

That type of thing is not conducive to the cooperation we hope to establish in environmental areas. So I'm wondering, before these projects are invented in this case.... Are you aware of these, are you told of these, of what the intent or the purpose of the activity is?

Ms. Justyna Laurie-Lean: RAC does not oversee individual assessments. It was formed initially before CEAA came into force to assist the agency in drafting the key regulations to give it effect.

The issue you refer to, and it's a broad issue, of applications of the Fisheries Act as a trigger, has been under discussion within RAC many times. However, in this five-year review discussion we recognize that we are discussing how to amend CEAA, not how to amend all the other Canadian legislation. The bottom line is that some of them were not designed to act as triggers for acts like CEAA. Therefore some of the fit may not be the way people would wish it would be. But that was just not something we considered in the five-year review because it was outside that mandate.

Mr. Roy Bailey: We have developments in forestry in the northern part of my province that include international corporations there and some that are totally Canadian. You have some joint crown corporations, you might say, federal and some first nation activity at Meadow Lake, and I believe you have some Métis projects that are about to start. The compliance with the regulations would be, I'm assuming, the same for all. In other words, because the province has its own environment assessment act, they would treat the crown corporation portion of their industry the very same way, I would hope, as others.

Is it your job to in any way make some advisory comments in some cases even to the provinces and the federal government involving environmental assessment of what they're doing?

Ms. Justyna Laurie-Lean: Although the provinces are represented on RAC, we do not deal with provincial assessment processes. They are there more to assist and to provide their expert advice on how the act could be made so it will be more compatible with harmonization.

In terms of how the act is applied to crown corporations, we did have a discussion and did recommend that in general they should be brought under the provisions of the act, but that's federal.

The Chair: Thank you, Mr. Bailey.

From now on, because we have to vacate the room in a few minutes, could we possibly have questions of one minute and brief answers.

Monsieur Bigras.

[Translation]

Mr. Bernard Bigras: Mr. Chairman, I'd like to focus for a moment on Crown corporations.

In issue 34 of your May 8, 2000 report, you note that there was considerable discussion of Crown corporations, including EDC, that are active outside Canada.

You note that this issue is of some concern. You summarize several arguments which I feel lend weight to my position that EDC should be brought under the act. Firstly, you state that EDC's environmental review framework is not adequate. You go on to state that EDC counterparts in countries like the United States and Australia are subject to domestic environmental assessment legislation.

However, you put forward a recommendation that is rather tame, namely that certain steps be undertaken to begin addressing issues related to bringing Crown corporations under the act. “Begin addressing” is a fairly paradoxical choice of words . How did the RAC manage to formulate such a timid recommendation, after conducting seemingly revealing discussions?

[English]

The Chair: Who would like to answer the question?

Ms. Arlene Kwasniak: I think it's part of the consensus process we have. Certainly, there were a number of members who had a stronger view on that, but it really is that we're trying to find some kind of common ground. Perhaps that's the most common ground we could find, that eventually this happened. There was a large discussion about it. Some of the members of RAC had different views on that.

The Chair: Thank you.

Mr. Comartin and Madame Kraft Sloan. Brief questions, please.

Mr. Joe Comartin: I guess I' m a bit surprised by your endorsement of the process, given that a number of your significant recommendations weren't followed. Do you have any suggestions for us as to how the system could be improved so your recommendations would be taken more seriously and implemented in subsequent review?

Ms. Arlene Kwasniak: I thank you very much for the question.

I think, as a matter of fact, that a lot of our recommendations were followed, though there were some that weren't. I went through our recommendations, and I really tried to capture every one that wasn't followed and put it down. Some of them were obviously not as important as other ones, for example when we asked for something on international agreements to be put in the preamble. That was really just us trying to find consensus on something.

Other ones were way more important, like the scoping issues. That was certainly a very important one. I think that all in all we were listened to, more so, I think, than I'm listened to when I act in different capacities, such as when I'm acting in my capacity as a representative of the environmental community. I don't feel that we're responded to in quite the same manner.

To improve the process, I would like to see a little more feedback as to why those recommendations weren't followed, especially the key ones.

À (1055)

The Chair: Thank you, Mr. Comartin.

Madame Kraft Sloan, could you make it a short question so as to accommodate Mr. Reed and Madame Redman.

Mrs. Karen Kraft Sloan: Yes, Mr. Chair, thank you.

In your brief you indicated that you only responded to issues the agency had put forward. I'm wondering, what were the issues RAC would have liked to have discussed and responded to and what essentially is the importance of these things? I understand that's not something you can go into right now, but if you could follow up with something in writing, it would be very helpful.

Thank you.

Ms. Justyna Laurie-Lean: Just to clarify, it was a combination of the issues that were identified by the agency through its initial consultation that led to the discussion document and those issues RAC identified as important to RAC as a group. There was no constraint on RAC as to the issues it dealt with. There were certain issues that were simply of a very specialized nature and that RAC as a group felt did not either merit the priority or raise enough interest around the table to be pursued. But as far as I know, there wasn't an issue RAC as a group felt was important that we did not pursue.

We're quite assertive as a group.

The Chair: Thank you.

Mr. Reed.

Mr. Julian Reed: Let me just briefly expand on my paranoia about public responsibility and [Inaudible—Editor] charges. When RAC was discussing this, was there any examination made of existing legislation, either provincial or federal, to find out if there is any legislation where the public must assume responsibility for their actions?

Ms. Arlene Kwasniak: I don't think the three of us were in the subcommittee that dealt with public participation itself. I think at RAC we always made the distinction between what's in the federal law right now and what's in provincial legislation. A court always has the right to throw something out if it's frivolous or vexatious and to award costs, and courts do that. Indeed, I think it has put a chilling effect on legitimate causes that otherwise would be court actions.

You can address that, Justyna.

Ms. Justyna Laurie-Lean: I'll add to that, because in this industry we're often the ones who make some of these noises. I've been on RAC since the beginning, and that issue does come up. Whether participant funding will generate an intervener industry is a question that occasionally arises, and then the issue of the frivolous intervener, the nutcase who disrupts proceedings. Once people have experienced it, they have been satisfied that at least so far the participant funding process has not generated an intervener industry, if only because what most people think of as the special interest groups are already well funded and they don't need participant funding. It does flow mainly to the community groups, the affected parties.

While different industry sectors may have different degrees of comfort, it's not as significant an issue as may appear. At least in our own sector my own members' feedback is that, yes, there are always a few individuals who are maybe not on topic in an assessment, but on balance they believe they should be heard, and being heard makes the process work.

Where there is misunderstanding as to what is being assessed, because the scope has not been laid out clearly or because people feel that they have not been listened to, that's when you get into issues of litigation and controversy.

Á (1100)

The Chair: Thank you, Mr. Reed.

Madame Redman.

Mrs. Karen Redman: Thank you, Mr. Chairman.

Ms. Kwasniak has partially answered my question; we're dwelling on recommendations that weren't followed through on. What percentage of your recommendations were acted on in your review and are reflected in Bill C-19, and how substantive were they?

Ms. Arlene Kwasniak: I think that's an excellent question. I don't want to mislead you as to numbers, so I will get back to you on that and write a letter to the committee. I believe the agency might have that information, or I was led to believe that, so I'll get back to you.

The Chair: Finally, Mr. Tonks.

Mr. Alan Tonks: Oh, no. I'm fine, thank you, Mr. Chairman.

The Chair: You can see from the questions that the committee members are very interested in and keen on your work and your recommendations. On behalf of all the committee, I thank you very much.

We look forward to your letters.

Adjourned.