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37th PARLIAMENT, 1st SESSION

Standing Committee on Environment and Sustainable Development

COMMITTEE EVIDENCE

CONTENTS

Thursday, February 7, 2002

0915

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

Ms. Arlene Kwasniak (Executive Director, Environmental Law Centre)

0920

0925

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

Ms. Arlene Kwasniak

The Chair

Mrs. Karen Kraft Sloan

Ms. Arlene Kwasniak

The Chair

Ms. Arlene Kwasniak

0930

The Chair

Ms. Arlene Kwasniak

The Chair

Mr. Jerry DeMarco (Managing Lawyer and Acting Executive Director, Sierra Legal Defence Fund (Toronto))

0935

0940

The Chair

Ms. Karen Campbell (Staff Counsel, West Coast Environmental Law Association)

0945

0950

0955

The Chair

Mrs. Karen Kraft Sloan

The Chair

Mrs. Karen Kraft Sloan

The Chair

Mr. Casson

Mr. Jerry DeMarco

1000

Mr. Casson

Ms. Karen Campbell

Mr. Casson

Ms. Karen Campbell

Mr. Casson

The Chair

1005

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

Mr. Jerry DeMarco

Ms. Arlene Kwasniak

1010

M. Bernard Bigras

Mr. Jerry DeMarco

The Chair

Mrs. Karen Kraft Sloan

Mr. Jerry DeMarco

1015

Mrs. Karen Kraft Sloan

Mr. Jerry DeMarco

Mrs. Karen Kraft Sloan

Mr. Jerry DeMarco

Mrs. Karen Kraft Sloan

Mr. Jerry DeMarco

Mrs. Karen Kraft Sloan

Mr. Jerry DeMarco

Mrs. Karen Kraft Sloan

The Chair

Mr. Julian Reed (Halton, Lib.)

Mr. Jerry DeMarco

Mr. Julian Reed

1020

Mr. Jerry DeMarco

Mr. Julian Reed

Ms. Arlene Kwasniak

Mr. Julian Reed

Ms. Arlene Kwasniak

Mr. Julian Reed

Ms. Arlene Kwasniak

Mr. Julian Reed

Ms. Arlene Kwasniak

Mr. Julian Reed

The Chair

Mrs. Karen Redman (Kitchener Centre, Lib.)

Ms. Karen Campbell

1025

Mrs. Karen Redman

Ms. Karen Campbell

Mrs. Karen Redman

Ms. Arlene Kwasniak

Mrs. Karen Redman

Ms. Arlene Kwasniak

Mr. Jerry DeMarco

1030

Mrs. Redman

The Chair

Mr. Jerry DeMarco

The Chair

Mr. Jerry DeMarco

The Chair

Mr. Jerry DeMarco

The Chair

Mrs. Karen Kraft Sloan

Ms. Arlene Kwasniak

1035

Mrs. Karen Kraft Sloan

Ms. Arlene Kwasniak

Mrs. Karen Kraft Sloan

Ms. Karen Campbell

Ms. Arlene Kwasniak

Mrs. Karen Kraft Sloan

Ms. Arlene Kwasniak

Mrs. Karen Kraft Sloan

Ms. Karen Campbell

1040

Mrs. Karen Kraft Sloan

Ms. Karen Campbell

Mrs. Karen Kraft Sloan

The Chair

Mr. Julian Reed

Ms. Karen Campbell

Mr. Jerry DeMarco

Mr. Julian Reed

Ms. Arlene Kwasniak

Mr. Julian Reed

The Chair

Ms. Arlene Kwasniak

1045

Ms. Karen Campbell

The Chair

Ms. Karen Campbell

Mr. Jerry DeMarco

Ms. Arlene Kwasniak

The Chair

Ms. Arlene Kwasniak

The Chair

Mrs. Karen Redman

Ms. Karen Campbell

Mrs. Karen Redman

Mr. Jerry DeMarco

The Chair

Mrs. Karen Kraft Sloan

Ms. Arlene Kwasniak

1050

Mrs. Karen Kraft Sloan

Ms. Arlene Kwasniak

Mrs. Karen Kraft Sloan

The Chair

CANADA

Standing Committee on Environment and Sustainable Development

NUMBER 060

1st SESSION

37th PARLIAMENT

COMMITTEE EVIDENCE

Thursday, February 7, 2002

[Recorded by Electronic Apparatus]

¿ (0915)

[English]

The Chair (Mr. Charles Caccia (Davenport, Lib.)): We now have a quorum for hearing witnesses, so we may start.

Before starting, let me bring to your attention a very short but extremely interesting paper entitled “Implications for U.S. Companies of Kyoto's Entry into Force without the United States”. The study has been prepared and issued by the Pew Center. Some members of this committee visited that centre last week in Washington, and we were certainly very impressed by the quality of their work, the depth of their research, and the professionalism in their approach to this issue. They are probably the ones in North America who can provide the best possible insights on the U.S. situation vis-à-vis Kyoto and the economic issues resulting from it.

The clerk will distribute these copies to members of the committee and to people in the audience who might be interested. All they have to do is to indicate to Mr. Morawski their interest, but feel free to proceed. We have several copies already prepared, and I would recommend that you find the time to read these few pages, because this topic will be of emerging and increasing interest in the months ahead.

We have a budget request from the clerk, and it requires a quorum of nine. It is the normal operational budgetary request for the liaison committee, which will meet today at 1 p.m. and which is the committee that approves the budgetary requests, committee by committee. It would be helpful if you could somehow put me in a position to make that request at one o'clock, but I cannot put the motion forward for a vote until we have a quorum.

Just for your information in the meantime, the amount requested is $71,000. It breaks down into various components. I will ask Mr. Morawski to pass this sheet around—unless you have it already—so that at least you have an opportunity to see it before we can call for a vote.

We are very fortunate today to have before us the very learned representatives from a very fine institution in good, old Toronto, that being the Environmental Law Centre. We also have representatives from West Coast Environmental Law and the Sierra Legal Defence Fund.

Of course, we welcome you all again. We are anxious to hear you, and we wonder who would like to go first.

Ms. Arlene Kwasniak (Executive Director, Environmental Law Centre): Actually, I'm with the Environmental Law Centre in Edmonton. I believe the Canadian Environmental Law Association is speaking later this month, but thank you for associating me with them. They certainly are an excellent organization.

I'm going to be speaking first today. I thank everyone here for inviting the Environmental Law Centre to come to this hearing.

The Environmental Law Centre has been in existence since 1982. We have been involved with the Canadian Environmental Assessment Act since its very beginning back in the EARPGO days, and we've had representatives on the Regulatory Advisory Committee almost throughout its history.

I'm going to cover some of the issues in the Environmental Law Centre brief. I'm then going to turn it over to Jerry DeMarco, who is going to speak on issues on behalf of the Sierra Legal Defence Fund; and then to Karen Campbell, who will speak for West Coast Environmental Law and will cover a number of issues in their brief. The briefs that Karen and I have submitted cover a lot of the same issues, so we're going to try not to duplicate, if possible.

I'm going to start off by talking a bit about the federal role and jurisdiction in environmental assessment, because I know this is really key and is always a somewhat controversial issue. In the past, members of various provinces and representatives of industry have argued both in court and outside of court that federal jurisdiction over environmental assessment is really limited to those matters within federal jurisdiction. This is wrong for a number of reasons.

The first reason has to do with the division of powers under the Constitution. The division of powers and the heads of power talk about which level of government has the right to legislate a matter. But the CEAA is not about legislating a matter. It tells the administrators of various acts that exercise those powers under the Constitution—the Fisheries Act, the Navigable Waters Protection Act, the Migratory Birds Convention Act, and others—how to exercise their discretion under those acts in an informed way that will lead to environmentally sensitive, sustainable development.

The CEAA assessment processes do not take over or usurp any area of constitutional provincial legislative authority. As I said, CEAA only enables government to delegate authority to carry out legislation under federal jurisdiction in a well-informed and reasonable way. And you don't have to take just my word for it, because the Supreme Court of Canada has spoken eloquently on this issue on a number of occasions. I'm going to quote from a case that's fondly known by many people around this table as the Sunpine case. This was the Federal Court of Appeal decision, in which the judge said:

Under paragraph 16(1)(a)

—and that paragraph lists the factors taken into account in an environmental assessment—

the Responsible Authority is not limited to considering environmental effects solely within the scope of a project as defined in subsection 15(1). Nor is it restricted to considering only environmental effects emanating from sources within federal jurisdiction. Indeed, the nature of a cumulative effects assessment under paragraph 16(1)(a) would appear to expressly broaden the considerations beyond the project as scoped. It is implicit in a cumulative effects assessment that both the project as scoped and sources outside that scope are to be considered.

The really important thing about this case was that the Federal Court of Appeal quashed a permit under the Navigable Waters Protection Act because the coast guard, the RA in that case, explicitly stated that it was not going to consider things outside of federal jurisdiction, and that was their error. The coast guard erred in declining to exercise the discretion conferred on it and its cumulative effects by excluding consideration of effects from other projects or activities because they were outside of federal jurisdiction. Of course, the court in this case referred to the famous Oldman River Dam case from the early nineties, in which these considerations were first set out.

¿ (0920)

With that settled, I'm going to move on to a number of more substantive issues that have to do with the bill itself and CEAA , insofar as the bill amends CEAA.

The first thing I'm going to discuss is the definition of “environmental effect” in subsection 2(1) of CEAA. This is a bit of a tricky technical point, but I think it's a very important one. The current CEAA says:

“environmental effect” means, in respect of a project,

(a) any change that the project may cause in the environment

—and here's the important part—

including any effect of any such change on health and socio-economic conditions, on physical and cultural heritage, on the current use of lands and resources for traditional purposes by aboriginal persons, or on any structure, site or thing that is of historical, archaeological, paleontological or architectural significance.

This definition has been interpreted to mean that when environmental assessments are being carried out, the responsible authority can look at any change in the environment, but any of those specific things that were mentioned—health, socio-economic conditions, physical and cultural heritage, and all the things having to do with aboriginal uses—can then only be considered if they're the effect of a change in the environment. For instance if a project were to, say, blast an aboriginal graveyard, that's a direct effect and technically it cannot be considered. If it were going to cause a flood that would then flood the graveyard, it's an indirect effect and it can be considered. This is not a very good situation, of course, and we would recommend new wording to the definition of “environmental effect” so that all environmental effects, including those ones that were specifically mentioned, can be looked at whether they're direct or indirect effects.

As some of you might know, this was the same as the problem that had to do with the amendment to the Species at Risk Act, the SARA. One of the main problems was that amendment to the definition of “environmental effect”. The main problem was that it relegated effects on listed species and their immediate habitat to these indirect effects. That's why the agency and others, I believe, requested an amendment: so that those effects could be considered if they're direct effects. We think all the matters specifically mentioned in the second part of that definition should be considered if they're direct effects.

The next thing I'm going to talk about is replacement and model screenings. This is another matter that's new in Bill C-19. In CEAA itself, there have always been some things that are called model screenings. The agency can declare an environmental report to be a model screening if the project is so similar to other projects that the same environmental assessment report can be deemed to apply to it. However, with model screenings, the project assessment has to be adjusted for local conditions and for cumulative effects. Now we have a new concept introduced in Bill C-19, and that is the concept of a replacement screening. With a replacement screening, there is no adjustment for local conditions and cumulative effects. The RA has the right to declare something to be a replacement screening.

We have serious concerns about the idea of a replacement screening—and I'm not talking about the model screenings, for which I think there are uses. We see the replacement screening as really just another exclusion. It's something that should really be put on the exclusion list if you have something to qualify as a replacement screening, so at least you have the benefit of cabinet actually excluding an environmental assessment for it. With replacement screenings, although the project will have to meet certain specifications to qualify as a replacement screening, you can always make something on the exclusion list only qualify for the exclusion if it meets these specifications.

¿ (0925)

One of the main problems that we have is how a responsible authority can determine environmental effects as defined by CEAA—I just went over the definition—without taking local circumstances into account. Moreover, section 16 of CEAA requires that every RA for any environmental assessment, including a screening, will get cumulative effects. I just can't see how RAs can carry out their legislative responsibilities with the replacement screening. Therefore, we would suggest that it be deleted from the legislation and that we just have model screenings, which are already really shortcutting a lot of the process with respect to environmental assessments.

Mrs. Karen Kraft Sloan (York North, Lib.): Just as a point of interjection, I don't seem to have that particular section in my paper.

Ms. Arlene Kwasniak: I'm sorry, I should have given you the page number. That's on page 7.

The Chair: It's in the document whose title starts with “Submission to the Standing Committee”.

Mrs. Karen Kraft Sloan: Thank you very much.

Ms. Arlene Kwasniak: I'm sorry about that. I'll make sure I explicitly refer to the—

The Chair: Perhaps I might also encourage you to compress your presentation, so as to give your colleagues a chance to make a presentation as well, and to give time for a thorough round of questions.

Ms. Arlene Kwasniak: Thank you, sir.

The next thing I'm going to look at is on page 11, and it's proposed subparagraph 59(c)(iii), “Exemptions prescribed cost”. This is simply a regulatory authority that's new in the bill, and it would allow for regulations to be made to exclude the need for environmental assessments for projects under a certain cost. This has been before RAC before, and RAC could not come to any resolution on the issue. The plain and simple thing is that just because something doesn't cost a lot, it doesn't mean it's not going to have a big environmental effect. Moreover, there are no criteria to govern the prescription of the cost.

The next matter is on page 12, and it's the second-to-last matter I'm going to talk about. It's the Red Hill Creek problem, which has to do with the case Minister of Environment and Minister of Fisheries and Oceans v. Regional Municipality of Hamilton-Wentworth et al. It's a November 2001 Federal Court of Appeal case that, as I understand it, the government is not appealing.

In that case, the respondent, the Regional Municipality of Hamilton-Wentworth, argued that CEAA should not apply to the proposed construction of an expressway in an environmentally sensitive area of Hamilton for two reasons. First, it said the project fell under the grandfather clause, which reads:

Where the construction or operation of a physical work or the carrying out of a physical activity was initiated before June 22, 1984, this Act shall not apply...

It also said it should not be assessed because of subsection 11(1), which reads:

Where an environmental assessment of a project is required, the federal authority referred to in section 5 in relation to the project shall ensure that the environmental assessment is conducted as early as is practicable in the planning stages of the project and before irrevocable decisions are made

The court agreed with the respondent that because of both the grandfather clause and subsection 11(1), the environmental assessment was not required.

With respect to the grandfather clause, the facts would state that construction had begun, so it's very difficult to understand why that was expounded that way. But I think the other one is even more troublesome, because they said that since irrevocable decisions had been made, there didn't have to be an assessment. Obviously that wasn't the intent behind the act. The irrevocable decisions in this case were made by the respondent, so we would like to see that clarified in the legislation. We've put forth some suggested wording for how it can be clear that, even if a proponent goes out and carries out a project without an environmental assessment, he can't therefore escape the need for an environmental assessment.

The final thing I want to say is that, although our brief does not say it, we would certainly support a further five-year review of this legislation.

Thank you.

I'll pass it over to Karen now.

¿ (0930)

The Chair: Could you just read the paragraph on page 12 that begins, “The proponent argued and the Federal Court agreed”, in order to see whether there is any word missing in that particular sentence?

Ms. Arlene Kwasniak: Sure.

The proponent argued and the Federal Court agreed that under this section, since irrevocable decisions by the proponent the Act could not apply.

Oh. Thank you very much. There are missing words. It should say “had been made” before “by the proponent”.

The Chair: So on page 12, in the third-last paragraph, there is an insertion of three words. It should say “had been made” after “decisions”.

Thank you.

Who is next?

Mr. Jerry DeMarco (Managing Lawyer and Acting Executive Director, Sierra Legal Defence Fund (Toronto)): I'll go next.

I also wish to thank the committee for inviting us to speak today. I will be doing my presentation in English, as that's my first language, but I'm happy to attempt to respond to any questions in French as well.

I will be addressing three relatively minor matters in the grand scheme of things under the act. At Sierra Legal, we feel they are quite doable and practical, and certainly within the scope of the bill. These recommendations are supported by my colleagues here with me today, Ms. Kwasniak and Ms. Campbell, as well as by several of the environmental organizations that will be presenting later in the month.

By way of background, as some of you may know, the Sierra Legal Defence Fund has been involved in environmental litigation regarding environmental assessment requirements from the outset, in terms of the Friends of the Oldman River case in the early nineties; the first Hydro-Québec case regarding energy exports, in the mid-nineties; and the Cheviot and Sunpine cases more recently.

Of particular interest today is the issue of the interplay between environmental assessment requirements and protecting our national parks. Our key interest in this stems from the fact that we were retained as legal advisers to the Parks Canada Panel on the Ecological Integrity of Canada's National Parks. That report, excerpts of which are found at tab 1 of my brief, set out the many stresses and threats that are affecting national parks in Canada. It goes on to actually make several key recommendations, many of which have now been implemented by Heritage Canada in order to better protect the national parks across the nation.

One of those key recommendations, however, has not yet been implemented, and that's the recommendation dealing with environmental assessment. That's not within the direct control of Heritage Canada, but rather of Environment Canada and, in particular, the Canadian Environmental Assessment Act.

Referring briefly to tab 1, which is on the ecological integrity panel's report, I would point out that they made specific reference to the fact that many of the threats now facing our national parks emanate from outside the boundaries of those parks—in other words, they're transboundary impacts—and that those parks were under the threat of becoming ecological islands unable to protect the natural values of their areas because of stresses imposed from external sources.

One of the key recommendations—and I'm at page 3 of my brief now—from that panel report was to make it mandatory for there to be an environmental assessment of projects affecting national parks. At present, under the act, that is a discretionary matter left to the presiding Minister of the Environment and not the minister responsible for national parks. The ecological integrity panel said that should become a mandatory trigger under the act, and that it should be something triggered by the minister responsible for national parks—who at this time is the Minister of Canadian Heritage—as that minister is most familiar with the threats facing the parks.

This panel recommendation was raised at the time when the Canada National Parks Act was being reviewed by the heritage committee, which was over a year ago. It was pointed out that it fell within the proper ambit of this five-year review; that it should be dealt with here rather than in the Canada National Parks Act, which was under going review at the time; and that for that particular recommendation, this is the correct forum in which to be dealing with it.

As set out in my brief, we have raised with Minister Anderson the fact that this recommendation from the ecological integrity panel was not included in the bill. More recently, I spoke with Heritage and the agency about that omission. We're certainly of the view that it shouldn't have fallen through the cracks. Because the federal government and, in this instance, Minister Copps had committed to implementing all of the recommendations if humanly and legally possible, the federal government should certainly follow up on that. The thrust of my presentation today is that this is a key recommendation from the ecological integrity panel and should very much be included within this bill.

¿ (0935)

It should be pointed out that the bill already does deal with improving the transboundary section somewhat, in clause 24, and that's a welcome change. The improvements that are made in clause 24 are helpful, but they don't address the issue that the ecological integrity panel was addressing, and that is making effects on parks a mandatory trigger under the act.

In tab 7 of the brief, we have provided an example of some of the language that could be used for making such a mandatory trigger. It's certainly not the only way it could be done, but in large part, this is the way it was drafted a year and a half ago for the ecological integrity panel. It sets out the clauses that could be used to make effects on parks a mandatory trigger under the act.

It should be noted that we point out that, under the existing transboundary provisions—sections 46 to 48 of the act—there is no middle ground option in terms of triggering environmental assessment. You either do nothing or you do a full hearing or mediation. But there should be a middle ground, at least when it comes to parks. One would not necessarily have to do an expensive hearing over it, but at least some sort of environmental assessment should be triggered, having to do with perhaps a comprehensive study to deal with those effects.

That's set out in tab 7, as are all of our recommended changes to the act. But it should also be pointed out that the inclusion of such a provision, in our view, should not be used to usurp any present role of the Minister of the Environment to also order an EA. It wouldn't be detracting from that authority, it would just simply add an authority for the heritage minister.

The second main point I'm making today is issue B on page 5 of my brief. Because parks are the areas of this country that we're trying to protect to the greatest degree in terms of their environmental and ecological values, at least in terms of federal lands, it should be ensured that there are no negative significant impacts on those parks when carrying out a course of action under CEAA. That again comes from the ecological integrity panel report.

Issue C, also on page 5, points out that what the ecological integrity panel proposed would fulfill an obligation under the Convention on Biological Diversity dealing with the obligation of Canada to take all possible and appropriate steps to promote “environmentally sound and sustainable development in areas adjacent to protected areas with a view to furthering protection of these areas”. It's a key international obligation, and one that is part of the background for the ecological integrity panel's report.

The next issue that I deal with, on page 6 of the brief, is the petitioner standing issue. It's simply a wording issue in the act that has actually only come up recently in terms of an opinion within the agency and the Department of Justice. The opinion is that one requires a property interest in order to request an EA, even though the language of the act simply says “an interest in lands”. We would like to see that clause clarified in order to make sure that, especially with regard to national parks...

Very few people have a property interest in a national park. Any member of the public should be able to ask for an environmental assessment, as is the case in most other provincial environmental assessment laws, which allow any member or resident to make a request for an environmental assessment. When CEAA was drafted, I don't believe anyone realized it was going to be interpreted to mean a property interest, but that seems to be the prevailing opinion now within the agency, so we would like to see that clarified.

One further clarification also pertains to the mediation section, which is dealt with under clause 15 of the current bill. We suggest one further improvement to make mediation more feasible. As you know, there have been no official mediations ever conducted under the act, even though that is potentially a good way of resolving disputes without the need to go to court. We suggest that the mediation provision be further improved so that it becomes a more viable option for the agency to use in terms of bringing the parties together for an agreeable resolution to a potentially contentious matter.

¿ (0940)

We have again set out wording for that. It's a relatively minor wording change, so as to ensure that a mediation can proceed as long as all the interested parties in the mediation are willing to participate, even if there are others who may be interested in the issue but not interested in doing a mediation.

So those are the three key changes that we believe should be made to the bill. To reiterate, they are implementing the national parks recommendations from the ecological integrity panel report that has already been accepted by this government, and fixing the mediation and petitioner standing provisions under the act.

And as I mentioned, we also support the more substantive recommendations that have been put forward by the Environmental Law Centre and West Coast, and those that will be put forward later this month by the Canadian Environmental Law Association.

The Chair: Thank you, Mr. DeMarco.

Ms. Campbell, would you like to proceed?

Ms. Karen Campbell (Staff Counsel, West Coast Environmental Law Association): Thank you very much, Mr. Caccia. I'd like to thank the committee for the opportunity to present here this morning.

West Coast has had a long-standing involvement in federal and provincial environmental assessment in British Columbia. We played a key role when the act was first drafted, and we have been members of the Regulatory Advisory Committee since its inception.

In addition to our work on RAC, West Coast also submitted comments as part of the five-year review on the proposed changes to CEAA. We prepared a joint brief with the Sierra Legal Defence Fund, and we submitted it to the agency back in March 2000. At that time, the particular brief that we did two years ago made very general recommendations.

As I go through Bill C-19, it seems to me that of the fourteen general recommendations that we made, about “three and two-halves” have been incorporated into the Bill C-19. But some of the more significant recommendations that we had made at that time are not reflected in Bill C-19.

EA is a complex process, and the act itself is a very complex piece of legislation. You should have my brief before you, so what I thought I'd do this morning is just take you through some of the key points in that brief.

As we've noted in our brief, when it's properly applied, EA is a very important planning tool and an integral part of sound decision-making. We welcome the five-year review as an opportunity to evaluate the success of the act against its stated goals. The stated goals and the purpose of the act are to achieve sustainable development and to promote sustainable development. Both of those goals are in the preamble as purposes of the act.

As proposed, Bill C-19 has amendments that will improve elements of the process, but we'd like to also see it really strengthen environmental assessment in Canada. We therefore hope you'll consider these following recommendations.

At this time, I can't emphasize enough the importance of a strong federal role in environmental assessment. I live in British Columbia, and we just learned yesterday that the provincial government is dramatically turning back the clock on provincial EA. The current act that we have in British Columbia, one that has been there for five years, is going to be repealed. It's going to be replaced with a separate piece of legislation that is going to permit significantly more proponent choice and have significantly narrowed application.

One of the elements we were told about yesterday is that the harmonization provisions will extend to local governments. I don't really know what that means, but I can only speculate that there's some expectation that municipalities will be conducting or undertaking some form of environmental assessment. I'd therefore like to use that as a backdrop to say that we really need some strong federal legislation in EA, and that we'd like to keep it that way.

Depending on my time, there are four or five points I'd like to make, so I'll just get started.

The first issue that I wanted to cover is comprehensive studies, which are dealt with on pages 8 and 9 in my brief. By their very nature, comprehensive studies conducted under the act cover larger projects with a greater potential for impacts. One of the most significant and substantive changes we see in Bill C-19 is to the comprehensive study process. In a nutshell, clause 13 of the act is proposing an irrevocable track determination at an early stage in the process.

Currently, if a project is undergoing a comprehensive study and there are issues outstanding at the end of the review, it can be bumped up to a panel. This provision would remove that. Instead, at an early stage in the process, the responsible authority will make a determination or a recommendation to the minister as to whether or not the project will go through a comprehensive study or through a panel review. In exchange, the opportunities for public participation are being strengthened. To that end, we note that there is going to be participant funding for comprehensive studies, which we welcome.

I have a couple of comments about this shift generally. First, we have some real concerns about the responsible authority's ability to make a fully informed recommendation about which track to take prior to the conduct of an environmental assessment. In our view, if one track must be chosen, we think it should be panels. As I understand it, one of the reasons for this is that, in industry, there is concern about the certainty provided by the process. In our view, if we want to make that certainty available, a panel will do that just as well as a comprehensive study. We would therefore prefer to see all projects that would otherwise have been subject to comprehensive studies, going to panels instead.

¿ (0945)

The second comment I'd like to make is that if this provision stays in and we have this irrevocable track determination, what we'd like to see is some more clarity in terms of the public participation provisions as they exist. Right now, there are provisions for public input at the front end of the environmental assessment, but there is no clarity about the fact that there must be public comment on the scope of the project. We would like to see stronger wording in the act, and you'll see in our recommendations 13 and 14 that we think the responsible authority must have to consult on the scope of the project and the scope of the assessment before making a recommendation on which track should be pursued.

The second area I'd like to cover actually relates to public participation again, with respect to the screening-level assessments. This area is covered on pages 6 and 7 of my brief, and in recommendation 9.

Currently, the act does not require public participation in screening-level assessments. As I'm sure you know, screening-level assessments account for the vast majority of environmental assessments conducted in the country. About 99% of EAs federally are conducted by way of screening, and agency figures have indicated that, to date, public participation in screening has only happened in 10% to 15% of those screenings. Two changes are therefore recommended in our brief, based on clause 10.

Clause 10 currently removes the expectation that the government will pass a regulation to provide for public participation in screening. What it says instead is that public participation in screening can be done in prescribed circumstances. As I see it, the purpose of this change is a removal of the expectation that the government will pass a regulation, and a designation that this participation can occur in prescribed circumstances. To this end, work is underway right now on a ministerial guideline that will provide guidance on when this public participation may occur. We commend that. We think it's great. In my view, though, we would like to see that guideline transformed into a regulation. We think we need more clarity on when and how public participation will occur, and we'd like to see something more stringent than what is currently being proposed. I believe that's covered in recommendation 9 of my brief.

The third area I wanted to cover is the issue of regional effects studies. Clause 9 of the bill—and this is on page 6 of my brief—includes factors to be considered in the assessment. One of the additional factors proposed in Bill C-19 is the inclusion of consideration of regional effects studies. We welcome this as well. In our view, this is an initial attempt to extend consideration of factors in the environmental assessment beyond the specifics of the proposed project, and it's going to permit consideration of regional studies in some limited circumstances. But we do have some specific comments on how that provision could be reworded to be stronger—and those comments are contained in recommendation 6, I believe.

The point I'd really like to make here is that while this seems to be opening the door to consideration of issues beyond the site-specific project, I think a way around this altogether would be to provide for the assessment of policies and programs under CEAA. To me, this is the heart of sustainable development. If we were to do assessments of broad plans, broad policies, and broad directions, it would obviate the need for individual environmental assessments in a number of different circumstances. If we go back to my comment earlier about what's happening in British Columbia, this, to me, is another reason why strategic environmental assessment or assessment of policies and plans would be particularly valuable. It might enable us to have a meaningful understanding of what the implications of activities across the country are in areas where they might not otherwise be assessed.

There are a number of models out there. Currently we have a non-binding cabinet directive on strategic environmental assessment. We think that should be strengthened, and we think it should be put into CEAA.

What I'd like to draw your attention to is the fact that, just last year, the European Union passed a mandatory binding directive for all of its member states, requiring that they conduct strategic environmental assessments or assessments of policies, plans, and programs. All member states in the European Union are going to have to transpose that directive into their own state legislation by 2004, so there is a good precedent out there for this kind of activity occurring at the government level.

¿ (0950)

The next thing I would like to talk about is compliance, which has been a concern with the act since its inception. Since the act was initially passed, there has not been a meaningful mechanism to ensure compliance with the act. Bill C-19 does take some steps to remedy this, and we're quite pleased to see that, but we also think more could be done.

The first thing I'd like to mention is the ministerial order provisions in clause 7—and this compliance discussion is all at the end of my brief, on pages 12 and 13. The ministerial order section is a new provision allowing a minister to order a proponent not to take a course of action in pursuit of a project without approval. We have a number of concerns about the way this is worded. There's a two-week time limit. There is the fact that any extension of this two-week time limit has to be granted by cabinet, meaning that we need cabinet approval for it. There's an inability to reissue an order once it has already been issued. We're not sure why some of these provisions are in there, so if you take a look at our recommendations in this sense, we're basically asking that some of these narrowing and prescribing phrases be deleted.

The second area I want to cover pertains to clause 19, and that's the follow-up program provision. We're pleased to see this has been given more teeth. We note that it's mandatory now for comprehensive studies, but it's not mandatory for screenings. We think it should be mandatory for screenings as well, because, as I said earlier, screenings account for the lion's share of federal environmental assessments in Canada.

The final thing I'd like to comment on is the quality assurance program, which is again something we welcome. In our view, though, we need more significant details on what it is going to be comprised of; how it is going to operate; whether or not it is going to be an audit; what the reporting out will be; whether there will be an annual reporting on this quality assurance program; whether it's going to audit compliance with approval terms; or if it's going to audit the implementation of mitigation measures. So while I see the quality assurance program as a very good start, I think a lot more detail would be very helpful in terms of understanding what it's going to mean.

I would suggest that the committee might be interested in obtaining some more details on this quality assurance program, prior to your deliberations on this bill. As I see the quality assurance program, while it's going to be a very good addition to the process, it's not a substitute for statutory compliance requirements. You'll note that, at the very end of my brief, I have made a suggestion that there should be some sort of mandatory duty on the agency and/or the responsible authority to require proponents to participate in follow-up programs and to require compliance with the act.

I think I'm going to leave it at that. I'm happy to take questions on this presentation or on anything else in my brief.

Thank you very much.

¿ (0955)

The Chair: Thank you. You've done very well, Ms. Campbell.

Before we start the full round of questions with Mr. Casson, Mr. Bigras, Mr. Herron, Madame Kraft Sloan, and Mr. Reid, we should take advantage of the fact that we have a full quorum, which is required in order to deal with this little financial item. Could we entertain a motion to the effect that this be moved? Would someone like to move it?

Mrs. Karen Kraft Sloan: I so move.

The Chair: The motion is moved by Madame Kraft Sloan.

Are there any questions or comments on the content of this paper, which is entitled “Operational Budget Request”?

Mrs. Karen Kraft Sloan: May I have a copy of it?

The Chair: Everybody has a copy, yes.

Are there any comments or questions? No?

(Motion agreed to)

The Chair: We'll start with you, Mr. Casson. Welcome back to the committee.

Mr. Rick Casson (Lethbridge, Canadian Alliance): Thank you, Mr. Chairman. It's good to be here.

Thank you for your presentations this morning. Mr. DeMarco, I'll start with some of your comments and maybe get some clarification from you, having to do with national parks.

Waterton Lakes National Park is in my riding, the Oldman River flows through my riding, and the dam is just a little upstream from where I live. I know there's a development outside of Waterton Lakes National Park that is drawing some concern right now, and there has been in the past.

Already existent are municipal rules and regulations, area structure plans, municipal bylaws,and those types of things. The province also has some. How are you suggesting that this would all be balanced? Or are you saying the Canadian Environmental Assessment Act has precedence over everything? That's one point.

Another point is the fact that for any development that would have an effect on a park...what do you, in your mind, see as being reasonably far enough away? If you look at drainage basins and that type of thing, you could be talking about areas not immediately on the boundaries, but quite a distance away from the park. You'd be extending the effect of a national park into quite a bit of the area around it.

Maybe I could get some comments from you on that.

Mr. Jerry DeMarco: On the first question, by adding a federal process to the existing municipal and/or provincial structures, we would think the joint assessment provisions from the act would be most applicable. If there were some sort of assessment going on with another order of government, we'd like the impacts on the parks to be assessed as an addition to that. Essentially, it would all be considered in one holistic, comprehensive, or integrated manner.

In many instances, there may be existing bylaws or municipal structures in place, as you mentioned, but they aren't designed to take a look at the impacts on a federal interest, so this would be added to that. This wouldn't take precedence or supplant the municipal structures, it would just supplement them.

I would hope there would be a joint process to deal with it all at once, as is becoming more often the case, because although there are three levels of jurisdiction, many of the effects flow through all three. If we can deal with them in an integrated, comprehensive manner—which is actually what I did my graduate work in, that being environmental planning— that would be a good way of handling it, because we'd be looking at the big picture all at once. So I don't see this as being yet another track to go down. It will be separate, distinct, and myopic from the other ones altogether.

On the second issue regarding how important or how significant a project would have to be to be considered triggered by the proposed sections, just as there's some subjectivity in determining the significance of a project under the current act, the minister responsible would have to apply some common sense to how significant this project was vis-à-vis the impacts on the parks when he is applying these sections. If it were a minimal or extremely distant project and the impacts on the parks were quite minor, it would not be proper to do an environmental assessment. This is intended to catch those things that are impacting the parks.

It should be noted that the panel's report notes that many of the impacts threatening the value of parks nowadays are emanating from sources outside the parks.

À (1000)

Mr. Rick Casson: I have a question for Ms. Campbell, too.

You mentioned doing an assessment of policy and procedures. Can you explain a little more what you mean by that? What policies and procedures? Are these the ones we're talking about, the ones the municipalities and the provinces have? Do you want this act to look into them?

Ms. Karen Campbell: That could possibly be it. One example would be a regional sustainable development plan, some sort of regional energy policy—I'm trying to think of some good examples—or a provincial energy policy—which would be provincial jurisdiction, of course, unless there was some sort of federal trigger.

The benefit of policy and program assessment is that you look at things in an overarching way before you deal with a site-specific issue. You could be looking at a plan for park management; park management plans would fall into something like that. You could be looking at proposals for offshore oil and gas exploration. Instead of looking at one particular well or one particular installation, you would be looking at the impacts on, for example, the Hecate Strait as a whole. But you're taking a step back from a project approach and you're looking at the broader, longer-term implications of what a particular course of action is going to mean.

Mr. Rick Casson: Through this process, if it was found that the policies and the structures put in place were properly handling each of the projects that were proposed under them, would that be all that was required, or would each project again have to go through that?

Ms. Karen Campbell: That would be a comprehensive detail that would need to be sorted out. Certainly, as I think of policy and program assessment, in some respects, once a policy or program had been assessed, you would not need site-specific environmental assessment in a number of instances. But it may also be that under a particular program or plan of action, there will be some proposals that may have a significant impact that would be larger in scale, so they would still warrant assessment because they are going to have site-specific impacts.

Mr. Rick Casson: Thank you, Mr. Chairman.

[Translation]

The Chair: Mr. Bigras.

À (1005)

Mr. Bernard Bigras (Rosemont--Petite-Patrie, BQ): Thank you, Mr. Chairman. I would first like to join Mrs. Campbell in criticizing any legislative project, whether federal or provincial, directed at reducing environmental assessments.

I would like to return to questions that have been asked by Mr. Casson and that Mr. DeMarco has talked about.

The three of you have mentioned the importance of clarifying the act. I think this is in the nature of the legislative process. However, you have been more silent on section 22 of the bill which extends in practice the minister's authority to deal with projects that concern provincial territory.

When you answered Mr. Casson's question, you talked, Mr. DeMarco, about the subjectivity in the act. You used the expression “common sense” , saying it should be applied. You also said that we should make good judgments. The least one can say is that this policy about the minister dealing with provincial lands is far from being clear and precise, especially since Mrs. Kwasniak writes in her brief:

The CEAA has long been criticized for not mandating environmental assesment of the federal government's own policies, plans and programs...

Here is my question. If the federal government, Mr. Chairman, is not very clear about its policies, its plans and its programs... Inasmuch as the act does not specify clearly when section 22 allows the federal government to act on provincial lands, how dare he encroach on provincial lands, when its policies are so vague and the act even more so? When should section 22 apply? Are you proposing that the act be made clearer so that it is possible to know when the federal government may intervene and impose a safety net?

Mr. Jerry DeMarco: I can start but I am not sure that I can finish that. Today, ther is a lot of talk about parks. The national parks are mainly a federal interest. This is a very simple example of a federal interest which must be protected even if the environmental threats come from somewhere else.

It is impossible to have a cristal clear act. Like you, I wish the act were more precise, but even if we make it better, there will still be common sense judgments to be made to make sure that federal decisions do not encroach on municipal or provincial interests.

[English]

Ms. Arlene Kwasniak: In order to trigger the act, of course, you'd have to have a federal interest—either a permit that's required under some federal legislation, some federal money that's going to be involved, or perhaps an interest in federal land. That is how the act gets triggered.

I think questions about interference with provincial jurisdiction usually come when, in addition to a federal interest, there's also a provincial interest and a permit or something is needed under some provincial legislation. In such cases, for the provinces that have them, harmonization agreements normally will set things up so that the proponent only has to undergo one process.

It is just a matter of fact that the federal interests are different from the provincial ones, so I don't really see that there are indeed jurisdictional problems. As I said earlier, though, the reason for CEAA is to allow the authority making the decision to have the information base needed to make a good decision.

À (1010)

[Translation]

M. Bernard Bigras: Mr. Chairman, I understand that you think that there is no need to limit section 22 of the bill, that is to restrict the authority of the minister to act on provincial lands. That's what I understand. There is therfore no need to clarify the act on this point.

As far as you know, is there, apart from the act, some clear guidelines or policies that provide that if a province has not passed an act, for example, or if this act is not fully enforced, the federal government has the right and the minister the power to use a safety net?

Do you wish, first, that section 22 were more precise and second, are there, as far as you know, guidelines?

Mr. Jerry DeMarco: I will answer in English because there are some legal terms that I don't know in French.

[English]

Regardless of what's in this act, the Constitution still overrides whatever is said in it. If there's any concern about intrusion into provincial jurisdiction—and I don't see anything in the current act or the amended act that would give me that worry—it can't override what the Constitution says in terms of what is purely provincial and what is federal.

Having said that, as Ms. Kwasniak mentioned at the outset of her presentation, when the federal government is exercising some sort of authority or managing its lands, it should have the right to at least look at the big picture even if it can't legislate about things that are provincial or municipal. Of course it does that in many areas that aren't environmental, like budgeting, municipal infrastructure programs, and other things like that. It's not legislating municipal bylaws, but it is still taking them into account in managing federal resources.

It's the same thing with the Canadian Environmental Assessment Act. If a matter is federal, it's fairly simple in terms of the ultimate decision-making authority. But even if a project is primary provincial in terms of the permits it may need, it may impact a federal authority, so the federal government should at least have an opportunity to look at the project's effects even if it's not the ultimate decision-maker.

The Chair: Mr. Herron has evaporated, so we'll move to Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: Thank you very much, Mr. Chair.

Mr. DeMarco, I would like to ask some questions with regard to the issue you had raised about the omission of the ecological integrity panel's provisions from Bill C-19.

I would ask that committee members turn to tab 4 of Mr. DeMarco's brief, because there is a letter here to the Minister of the Environment outlining his concerns about this particular issue.

I'm wondering if you have received a response from the minister, and what your response is to that particular response.

Mr. Jerry DeMarco: In August of last year, we received a response to that letter. Minister Anderson's response was a good one, but it wasn't a response to the question we posed. It was a response to the question of fixing the transboundary provision in regard to the problem that existed prior to this bill, which was that if there was some other federal authority over the project, one could use the transboundary provision—and that's a welcome change.

But Minister Anderson's response—and I can make copies for the clerk—doesn't deal straight on with the point I was trying to raise about there being a mandatory trigger for federal parks. I was curious about what happened with that, as well, so we did an access to information request to check on whether or not there had been some deliberations about this in the minister's office, and there hadn't been. I then met with the agency about this, and it appears it largely fell through the cracks.

As for the report of the Panel on the Ecological Integrity of Canada's National Parks, 99% of the report dealt with heritage matters. All the legislative matters besides environmental assessment were dealt with in the parks bill the year before last, and this largely fell through the cracks. When it was finally raised last year, the bill had already been drafted and there had been no consideration of it by the minister's office. The agency had given it some thought but hadn't gone any further.

In retrospect, I should have been more vigilant in seeing that this outstanding recommendation held over from last year made its way into the five-year review. With the statement made by Minister Copps, and given the fact that the federal government had committed to implementing all the panel's recommendations, though, I had assumed it would happen as a matter of course and wouldn't actually play an ongoing role in the five-year review.

When I saw the bill that resulted from it, I then raised it, and I have since met with officials in the various agencies to indicate that this should still be incorporated. It's not something that is a huge change to the existing regime. It changes something discretionary to something mandatory, and it's something critical to protecting the parks. From a problem-solving point of view, if we really are serious about protecting our parks, then we should implement one of the central recommendations of that panel.

À (1015)

Mrs. Karen Kraft Sloan: Just as a point of clarification, you sent your letter on April 17, 2001, and you received a response from the minister in August, is that correct?

Mr. Jerry DeMarco: Yes.

Mrs. Karen Kraft Sloan: And had the bill been drafted at that point?

Mr. Jerry DeMarco: Yes, so at that point we—

Mrs. Karen Kraft Sloan: So the bill was drafted by the time you received the response from the minister.

Mr. Jerry DeMarco: I believe the bill was drafted at the time we even wrote our letter. That's when we noticed that it had been omitted, so given that there was nothing on paper either in the documents we had or subsequently received, there was nothing that said anyone really opposed this. We simply put our position on the record, and we hoped that hole could be filled through the legislative process, including this committee's deliberations. We're hopeful that it will be filled by this committee.

Mrs. Karen Kraft Sloan: So you're saying the bill was drafted in April of last year.

Mr. Jerry DeMarco: The legislative drafters would know exactly when they drafted it, but it was some time... the copy that Ms. Kwasniak has is dated March 15.

Thank you, Arlene.

Mrs. Karen Kraft Sloan: Okay, thank you. That's correct.

The Chair: Next, we have Mr. Reed and Madame Redman.

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

Mr. DeMarco, you mentioned that you would like to see an “any person” amendment in the act, and that this would line it up with some provincial bills. How do you feel about the abuses the “any person” clause has caused in Ontario, and how would you recommend that we couple it with the necessity to provide a clause for personal responsibility for frivolous action?

Mr. Jerry DeMarco: That's a good question.

The way we've proposed dealing with it is set out on page 3 of tab 7, and it's simply by deleting the qualifier “each of whom has an interest in lands”, so that a request for an EA can be made by any person. Abuse would be prevented by the fact that the ultimate decision over whether or not to do an EA is still with the minister, under both sections 46 and 48. This simply covers who is allowed to write a letter asking for an EA, not who can actually trigger an EA. It's not like a right of appeal or a right to require an EA. It's simply who has the standing to ask for one. The oddity of this, of course, is that under public interest standing rules in the courts, it would be easier to get public interest standing to challenge an environmental assessment than it would be to simply ask for one to start with.

So this would just harmonize things with other environmental assessment legislation that allows citizens to ask for an EA, but they cannot abuse that right because they don't have the ability to actually require the EA. That ability still remains in the minister's office.

Mr. Julian Reed: I thank you for that, because in some legislation in Ontario, there is an ability for any person to stop a project.

À (1020)

Mr. Jerry DeMarco: In certain tribunals, there are automatic rights either to appeal or to require certain hearings. In other ones, there are provisions that allow one only to request the minister to do so. This is modelled after the request example, as opposed to the ones that can be triggered as a right.

Mr. Julian Reed: Thank you for clarifying that.

Ms. Kwasniak, you were talking about direct and indirect impacts, and you used the example of aboriginal graveyards in terms of whether they were blasted or flooded. But what about non-aboriginal graveyards?

Ms. Arlene Kwasniak: This would also apply if those graveyards are considered to be a cultural effect.

There have been a lot of concerns about the definition of “environmental effect”, because it's really not clear. The way it reads right now, any environmental effect has to be considered. But it then says the effect of those effects has to be considered when they are on certain things, including cultural effects, effects on traditional land, and all those other things I mentioned. That has been interpreted to mean that if any of those things are affected, they can only be considered if there are these indirect effects. If an effect on a pioneer graveyard is a cultural effect, that can only be considered if it's an indirect effect.

Mr. Julian Reed: At the present time, I'm not familiar with laws across the country, but we move graveyards in Ontario. We empty them out at the proponent's cost, and we move them to another site. We did that with the construction of the St. Lawrence Seaway, and it has been done with the expansion of churches and so on. Would this impact on that?

Ms. Arlene Kwasniak: It would in the following way: If an effect on a graveyard is a direct effect, it technically does not have to be considered in the environmental assessment, so it might just be obliterated instead of being moved. If it's something that has to be considered in the environmental assessment because it's an indirect effect, then that certainly could be a way of mitigating the damage—by moving it—but that would of course depend upon how the decision was made.

Mr. Julian Reed: Do I have time for one more brief one, Mr. Chairman? Yes? Thank you.

You were talking about this business of projects under a certain cost, and about the fact that a low-cost project could have a major impact. I thoroughly agree. The question that comes out of it is who pays. In other words, if you have a proponent, an entrepreneur who wants to do something—a relatively low-cost project, if you like—and an environmental assessment is needed, who stands the gaff for that? Right now, it's the proponent, isn't it?

Ms. Arlene Kwasniak: Yes.

Mr. Julian Reed: So nothing gets done.

Ms. Arlene Kwasniak: As it should be, I would think that if a proponent is proposing something that is going to cause environmental damage, then it should be up to that proponent to pay for the study that's going to see what it is and possibly mitigate it and lessen those effects, even if it's a low-cost project. I don't honestly see the logic of choosing between high costs and low costs. If it's going to cause environmental damage, then it must be assessed and it must be mitigated. If it's bad enough, the project should not go through.

Mr. Julian Reed: Thank you, Mr. Chairman.

The Chair: We'll hear from Madame Redman, and then we'll have time for a second round.

Mrs. Karen Redman (Kitchener Centre, Lib.): Thank you, Mr. Chairman.

Ms. Campbell, if I look at recommendation 13 in your brief, it proposes to eliminate the comprehensive study process by making the comprehensive study list a panel review list. With this recommendation, you appear to be recommending the elimination of the comprehensive study process, which is basically a fundamental rewriting of the act. I'm wondering if this is a new proposal. Was this raised during the five-year review?

Ms. Karen Campbell: This came up during the five-year review. As you know, CEAA has screening, comprehensive study, and then panel or mediation.

What came out during the five-year review was the proposal to... Given the way the comprehensive study provisions work, you can bump up to a panel review. If a matter isn't successfully concluded at the comprehensive study stage, there is an opportunity to go over to a panel review, which is more independent and has broader public input.

As part of the five-year review, one of the proposals that came out of that—and it's reflected in Bill C-19—is the loss of that bump-up provision. Once you've chosen your comprehensive study track, you don't have that bump-up to a panel review any longer. Because everything is a balancing exercise, the trade-off for that was to increase the level of public participation available in the comprehensive study process.

So in a balancing sense, while that may well work—which is why I have the two-fold recommendation—if there is going to be only a one-track determination and it needs to be done early on in the process in order to err on the side of caution, I think it would be wiser to actually have a broader process. It would be better to have the panel process in place instead of the comprehensive study process.

À (1025)

Mrs. Karen Redman: And did this come out as part of that five-year review?

Ms. Karen Campbell: Yes, it did.

Mrs. Karen Redman: Thank you.

Ms. Kwasniak, the Environmental Law Centre has recommended the addition of the requirement of assessments for government programs under this bill. As a legal society, how would you propose to define “program”?

Ms. Arlene Kwasniak: I think that's a difficult question. The reason why words like “program”, “policy”, “guidance material”, and the like are lumped together is that there often are no really clear lines between one and the other. For instance, the North American Waterfowl Management Plan is a program that is a joint effort between the federal government, provincial governments, and a number of non-governmental organizations, although it's a government policy to support wildlife habitat enough to participate in this program. Programs typically involve using government money to pursue some end, whereas policies normally explain the direction that government is taking on a certain issue.

Mrs. Karen Redman: So what I'm hearing is that it's hard.

Ms. Arlene Kwasniak: It is difficult, I know, but programs typically involve using funds to carry out policies.

Mr. Jerry DeMarco: I might just add that West Coast Environmental Law prepared draft legislative wording some time ago that would define how to include policies, plans, and programs. The definition that we have for “program” would be:

(a) an agreement, proposal, plan or program to develop, fund, guide or encourage a set of projects designated as a program under section 15; and

(b) an agreement, proposal, plan or program for developing, funding, guiding, or encouraging a particular class of similar projects or a set of projects in a particular geographic locale, whether or not the specific individual projects are identifiable.

À (1030)

Mrs. Karen Redman: Thank you.

The Chair: On the issue of ecological integrity, if that were to be in the form of an amendment, where would you suggest that this amendment be attached? What would it amend in Bill C-19? In other words, we are looking for a hook.

Mr. Jerry DeMarco: Each of the matters that I raise in the brief is already touched on within the scope of the bill. In this particular case, clause 24 of the bill is already amending section 48 in a positive way; three paragraphs are already being amended in section 48.

Whether the committee used our language or some other language that got at the main point of triggering a federal environmental assessment for effects on parks, it would be another paragraph under clause 24. That spot would also be the location for—

The Chair: So you're on page 45 of the bill?

Mr. Jerry DeMarco: I have electronic version, but it's wherever clause 24 is. It's the section 48 issue, the transboundary environmental provision.

That would also be where one would deal with the problem of who can ask for an EA. That's also under section 48 of the current act, as well as section 46 of the current act.

Looking at the bill itself, it would be page 19, clause 24, which already sets out several modifications to section 48. This would be a further modification adding additional paragraphs or an additional paragraph to the existing section 48.

The Chair: Is it an amendment to subsection 48(1) or 48(2)?

Mr. Jerry DeMarco: Depending on how the legislative drafters want to approach it, I would expect that this would simply add a new subsection to section 48. It could probably be done by altering the wording of subsection 48(1), but it may be clearer to just do it as a separate paragraph.

The Chair: Thank you.

We will move to a second round, beginning with you, Mr. Casson. You don't have anything? Then we will go to Madame Kraft Sloan.

Mrs. Karen Kraft Sloan: I was just looking at page 7 of your brief, Madam Kwasniak. There, you are looking at this issue of the new comprehensive study provisions. In them, the minister's decision is based on a report that comes from the responsible authority, and it's actually clause 13 of Bill C-19, which amends Section 21 of the act. As I understand it, the amendment is that as soon as the RA is of the opinion that... It's not clear to me that there are criteria established in terms of what the trigger is for the responsible authority to acquire this particular opinion, or that it has sufficient information with regard to all of the items underlined under proposed paragraph 21(a).

These are very important decisions that are going to be made, and the minister is going to be making an irrevocable decision about what track this particular environmental assessment is going to go down. It seems that it's often hard to understand the things we don't know, but as you get into a process, there's a clearer understanding of what issues arise before you get into them. So when you look at proposed subparagraph 21(a)(iv), for example—“the ability of the comprehensive study to address issues relating to the project”—how is the responsible authority going to be of the opinion it knows that ahead of time?

I know you've addressed this issue of public participation—proposed section 21 says, “and has provided an opportunity for public participation”—but to what degree does that opportunity take place? Do you just put a notice in that paper, asking for the public to send in letters?

Ms. Arlene Kwasniak: I believe we recommended that there be public participation at various stages. One stage would be the scoping of the project, so that we know what the project is before the track it's going to go on is even considered. So one of our recommendations is that there be public participation, i.e., that it be put on the electronic registry and in some other places, as we suggest, and that there also be consideration given to making it so that people who do not have Internet access can also be aware of this to assist in the scoping determination.

With respect to the scope of the assessment, you need public participation in the scope of the assessment. Once that is determined, the public has to be able to give its views on which track this should take. The way the act is right now, a project will go to panel review if there are uncertainties, if there are unanticipated significant environmental effects, or if there is a public outcry for it. That's what gets lost if it's just the minister looking at this and the minister or the RA then coming to be of the opinion that the track has to be decided.

So we would certainly suggest that there be public participation in each of those stages, so that there will not be something lost. And we're still concerned that there will be something lost, because, right now, it has to go to panel review if there are uncertainties. That's not in there anymore.

À (1035)

Mrs. Karen Kraft Sloan: But it seems that there's almost double discretion here, as well. The decision is based on a report that allows a lot of discretionary scope in putting this information together. But the second aspect of discretion is that the responsible authority is able to determine when it has sufficient information. In many respects, that sounds like double discretion.

When the minister is making a decision about which track he is to send this EA down and it's an irrevocable decision, I'm a little concerned first about the criteria that are going to be used to trigger the report, and then about the decision the minister is going to make.

Ms. Arlene Kwasniak: I agree with you, and there certainly should be some criteria governing that decision of the RA so that he has enough information. I think part of it can be dealt with by making sure the public is involved in all of the steps leading up to when the RA makes the determination that he's now ready to prepare his report.

Mrs. Karen Kraft Sloan: Mr. Chair, I'm also deeply concerned about items that were not addressed in the review and items that were not addressed in Bill C-19. I'm wondering if the witnesses could comment about the things that are glaring omissions from Bill C-19.

Ms. Karen Campbell: One issue that I can identify that was of concern to us when we initially did our review is the definition of scoping, or the way scoping is done. In fact, there is no definition of scoping in CEAA.

As most of us from the environmental law centres know, much of the litigation that has happened over interpretations of CEAA has been with respect to the fact that scoping is not clearly defined. A lot of litigation has therefore been dedicated to clarification. If some more clear direction was given from the legislature, though, we would have a better sense of how projects are scoped.

So that would be one item.

Ms. Arlene Kwasniak: We mentioned strategic environmental assessment as something else that's missing, and then there are Mr. DeMarco's concerns, of course.

One thing I know we would have liked to see is some way to have this act better enforced. I know Ms. Campbell covered that, but it would be great to have some provisions, such as making it an offence for proponents to carry out projects that require environmental assessment under this act without actually carrying out that environmental assessment or without at least having some piece of paper from the government that says, no, they don't have to have one.

Mrs. Karen Kraft Sloan: What about projects that are currently undergoing assessment? Suppose the sign-off hasn't happened but the project commences. Would you include that as an offence as well?

Ms. Arlene Kwasniak: Oh, yes. Right now, that is partly addressed through the injunction, of course. I know our two briefs address the limitations on the injunction provisions, but, yes, I would agree with you completely. That should be part of the enforcement provisions.

Mrs. Karen Kraft Sloan: As I understand it, the witnesses had mentioned that there was a binding requirement throughout the EU that member countries do environmental assessments on strategic projects. Is that correct?

Ms. Karen Campbell: That is correct. It's a new directive that was just passed by the European Union last year.

À (1040)

Mrs. Karen Kraft Sloan: I was wondering if the clerk or the Library of Parliament can get copies of how they're undertaking this process, in order to provide some guidance for committee members. If we can get copies of that, it would be very helpful.

Ms. Karen Campbell: There's a footnote in my brief that actually directs you to the website, and you can immediately download the directive.

Mrs. Karen Kraft Sloan: Okay, so it will be easy for the Library of Parliament to access that.

The Chair: Mr. Reed.

Mr. Julian Reed: There are some kinds of projects that are carried on, and some fairly new ones will be carried on in the near future, and they probably will require environmental assessments. If you take those projects and address their commonality, I wonder if you favour class environmental assessments in order to address those types of projects that have such commonality in them.

Ms. Karen Campbell: In my view, class environmental assessment is a good idea. It makes eminent sense in a number of circumstances, and it certainly does when characteristics of projects are going to be very similar. In some respects, I like the wording that is already in the act, which states that there must be some consideration of local circumstances.

So, yes, as a principle, class screening is a very effective mechanism and it ensures efficiency, as long as there is some consideration and review of local circumstances.

Mr. Jerry DeMarco: I have experience with it at the provincial level in Ontario, where it has been used for many years, first in an ad hoc manner and now via legislative mandate. It's certainly appropriate for recurring, predictable projects, but I wouldn't like to see it abused for things that really aren't truly recurring and predictable. For instance, we have the same class environmental assessment dealing with forestry in cottage country north of Toronto as we have to deal with forestry in the very farthest part of northern Ontario, in the boreal region. Perhaps that's stretching a one-class environmental assessment a bit too far. Maybe a regional one that deals with the mixed forest in central Ontario and a different one for the boreal forest would have been more appropriate.

But as long as one is true to the principles of class environmental assessment—that it be recurring, predictable, and minor—then it is a good way of rationalizing resources and not essentially reinventing the wheel with each environmental assessment.

Mr. Julian Reed: That's what I'm getting at. It's the cost factor.

Ms. Arlene Kwasniak: Yes, and I would agree too. As I said in the brief, I think the model class screenings and environmental assessments can be very useful. The ones the centre and I have trouble with are the replacement ones. Those are the ones that are not adjusted for local circumstances, nor for cumulative effects.

Mr. Julian Reed: Thank you.

Thank you, Mr. Chairman.

The Chair: In your oral presentation this morning, you are silent on whether it would be desirable to have in this legislation a clause whereby there would be a mandatory review every few years. I am raising this question with you to find out if you see merit in that type of amendment because of the complexity of the process, because of constantly evolving approaches and thinking about the particular discipline of environmental assessment. Should the five-year review stop with this exercise, or should it become a permanent feature in the legislation? Do you have any comments?

Ms. Arlene Kwasniak: On behalf of the ELC, I just want to say that the reason why we didn't include it is that, since it wasn't mentioned in Bill C-19, it was assumed we should just stay within the act. If we should say something explicit, though, we certainly will. We believe the five-year review is a very good idea, and we strongly support it.

À (1045)

Ms. Karen Campbell: I would also add that, for the same reason, we didn't actually address that in our brief because we were looking at Bill C-19.

Certainly, in principle, we do support regular review of the act. For our part, the five-year review process that we have participated in has been incredibly valuable and useful in better understanding how EA works.

I could also mention that the European Union directive that I've mentioned already is to be reviewed after five years, and the Europeans have entrenched a review every seven years thereafter.

The Chair: The next question would be where you would place the amendment.

Ms. Karen Campbell: Are you asking where it would go within the existing Bill C-19?

Mr. Jerry DeMarco: Before my colleagues answer that, perhaps I could add to the previous question to help fill in the air time.

This committee may also wish to consider doing hearings on environmental assessment broadly, as opposed to just this bill. This bill makes some improvements, but it isn't a very comprehensive look at whether or not we're doing a good job overall in terms of performance indicators in environmental assessment; how good a job environmental assessment is doing on the ground; or if we have done any follow-up to see if mitigation measures are really reducing environmental impacts. So just as this committee occasionally looks into topics as opposed to bills, it may want to delve into environmental assessment practice and theory at some point, as opposed to simply looking at legislation.

Ms. Arlene Kwasniak: I believe I can address your other question regarding where it would go. I would suggest that it would be an amendment to section 72 of the act so that it would read:

Five years after the coming into force of this section and every five years thereafter, a comprehensive review of the provisions and operation of this Act shall be undertaken by the Minister.

But we can also do a follow-up amendment to our brief that would include that.

The Chair: Could we put this in the bill?

Ms. Arlene Kwasniak: No, I don't find a specific place for it in the bill, but correct me if your understanding is different from mine. I see Bill C-19 as amending the act. If we're only dealing with Bill C-19, then I don't see that there's a real problem in asking for another amendment to Bill C-19 to further amend the act.

The Chair: Madame Redman.

Mrs. Karen Redman: Thank you.

For anyone who chooses to answer, I find it interesting that the European Union chose seven years, so I'm wondering if there's anything magical about why we're choosing five as opposed to seven.

Ms. Karen Campbell: I don't think there's anything magical about five over seven at all, no.

Mrs. Karen Redman: Okay, thank you.

Mr. Jerry DeMarco: Since this act came into force, it's better than what we have right now anyway.

The Chair: We have one more question from Madame Kraft Sloan.

Mrs. Karen Kraft Sloan: Thank you, Mr Chair.

Madam Kwasniak, on page 12 and 13 of your brief, you refer to the Red Hill Creek problem. It's my understanding that the federal government had the opportunity to appeal this decision, but it chose not to because it thought it would be able to fix the problem through Bill C-19. I know you have some recommendations here, but I'm wondering if Bill C-19 has indeed addressed that problem. And I'm also wondering, within the context of Bill C-19, how we are able to move forward with your recommendations on page 13 with regard to subsection 74(4) and subsection 11(1).

Ms. Arlene Kwasniak: I'm not aware that Bill C-19 does address the Red Hill Creek problem. Again, I guess I can reiterate my understanding of what is possible here. Bill C-19 amends CEAA, and even if the committee's consideration of the bill is limited to the bill itself, since it is amending CEAA, I logically don't see a problem with asking for an amendment to Bill C-19 to amend an additional section of CEAA.

Perhaps that's not something the committee sees within its mandate. If that's the case, I would appreciate that clarification. That way, any time we go beyond that in the centre's brief, we could try to amend it in order to work it in so that we are only dealing with it within the four corners of the bill as written.

À (1050)

Mrs. Karen Kraft Sloan: I think the opinion on what we are able to amend is divided and the decision still remains to be made. But if we are only looking at Bill C-19, how do we address the Red Hill Creek problem? As I said earlier, it was my understanding that the federal government did not go ahead with the appeal because Bill C-19 would address the problem. Indeed, you have told us that, in your opinion, it doesn't address it, so how would we address it if we were only looking at what Bill C-19 has?

Ms. Arlene Kwasniak: I will have to get back to you on that. I will look at the amendment to that section to see if it needs further amendment, to see how I would do it if it does, and to see whether or not it would fit within the four corners of the bill as written.

Mrs. Karen Kraft Sloan: That would be very helpful. Thank you.

The Chair: Are there any further questions? No?

Well, we are very pleased that you were able to come, and we thank you for your advice and cooperation. We look forward to seeing you again on other occasions.

This meeting is now adjourned.