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37th PARLIAMENT, 1st SESSION

Standing Committee on Environment and Sustainable Development

COMMITTEE EVIDENCE

CONTENTS

Tuesday, February 19, 2002

0905

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

Ms. Elizabeth May (Executive Director, Sierra Club of Canada)

0910

0915

0920

0925

The Chair

Mr. Mills (Red Deer)

The Chair

Mr. Mills (Red Deer)

The Chair

Mr. Reed

0930

The Chair

Mrs. Kraft Sloan

The Chair

Mrs. Kraft Sloan

Mr. Bob Mills

Mrs. Karen Kraft Sloan

The Chair

Mr. Herron

Mr. Bob Mills

Mr. Herron

The Chair

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

The Chairman

Mr. Ed Wittingham (Director, Banff Environmental Action and Research Society)

0935

0940

Mrs. Kraft Sloan

Mr. Ed Whittingham

0945

The Chair

Ms. Lara Ellis (Wildlands Campaign, Canadian Nature Federation)

0950

The Chair

Ms. Joan Kuyek (National Coordinator, Mining Watch Canada)

The Chair

Ms. Joan Kuyek

0955

1000

1005

1010

The Chair

Mr. Mills (Red Deer)

1015

Ms. Elizabeth May

Mr. Mills (Red Deer)

Ms. Elizabeth May

The Chairman

Mr. Bernard Bigras

1020

Ms. Elizabeth May

Mr. Bernard Bigras

Ms. Elizabeth May

The Chair

Mr. John Herron

Ms. Joan Kuyek

Mr. John Herron

Ms. Elizabeth May

1025

Mr. John Herron

Ms. Joan Kuyek

Mr. John Herron

The Chair

Ms. Elizabeth May

The Chair

Mr. Reed

Ms. Joan Kuyek

1030

Ms. Elizabeth May

The Chair

Mr. Ed Wittingham

The Chair

Mrs. Karen Redman (Kitchener Centre, Lib.)

1035

Ms. Elizabeth May

Mrs. Karen Redman

Ms. Joan Kuyek

Mrs. Karen Redman

Ms. Joan Kuyek

Mrs. Karen Redman

The Chair

1040

Mrs. Kraft Sloan

Mr. Ed Wittingham

Mrs. Kraft Sloan

Mr. Ed Wittingham

Mrs. Kraft Sloan

The Chair

Ms. Elizabeth May

Mrs. Kraft Sloan

Ms. Elizabeth May

The Chair

Mrs. Kraft Sloan

Ms. Elizabeth May

1045

Mrs. Kraft Sloan

Ms. Elizabeth May

The Chair

Ms. Joan Kuyek

The Chair

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

Ms. Elizabeth May

1050

Mr. Ed Wittingham

Mr. Roy Bailey

The Chair

Ms. Joan Kuyek

1055

The Chair

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

The Chair

Mr. Joe Comartin

The Chair

Mr. Joe Comartin

The Chair

Mr. Joe Comartin

The Chair

Mr. Joe Comartin

Mr. Ed Wittingham

Mr. Joe Comartin

Ms. Elizabeth May

1100

Mr. Comartin

Ms. Elizabeth May

Mr. Joe Comartin

Mrs. Kraft Sloan

Mr. Joe Comartin

Ms. Elizabeth May

The Chair

Mr. Rick Laliberte (Churchill River, Lib.)

Ms. Elizabeth May

Mr. Rick Laliberte

1105

Mr. Ed Wittingham

Ms. Elizabeth May

Mr. Rick Laliberte

The Chair

Mrs. Kraft Sloan

The Chair

CANADA

Standing Committee on Environment and Sustainable Development

NUMBER 061

1st SESSION

37th PARLIAMENT

COMMITTEE EVIDENCE

Tuesday, February 19, 2002

[Recorded by Electronic Apparatus]

¿ (0905)

[English]

The Chair (Mr. Charles Caccia (Davenport, Lib.)): Order, ladies and gentlemen. The word “compensation” is still echoing in our ears, and it may echo for some time to come, who knows? Certainly that word yesterday caused a lot of repercussions.

I would like to thank you for the interventions that were made yesterday. They all contributed to a better understanding of the varying and differing perspectives, politically and regionally, so that between now and Easter we can complete our examination of the amendments.

I have two brief announcements. First, the meeting on Thursday is being cancelled, virtually as we speak, because we just can't do both. It's impossible to be in both places, and it would badly overlap--unless you ask for the contrary, of course. We may be forced to do the same for next Tuesday, depending on how much ground we cover between now and Thursday evening. The clerk is watching the scene every day and will make adjustments accordingly.

The other announcement has to do with a visit of parliamentarians from Hong Kong. The curriculum has been widely distributed. There is a lunch for them today. Several of you have indicated your willingness to welcome them. I hope that voting will not interfere and that you will be able to be there, because it is a parliamentary perspective we know very little about. As you know, when you travel long distances you want to meet other people, and they are very keen to make contacts. The clerk has sent out information to your offices.

Today we have quite a large number of witnesses in one group. We will start, if the witnesses are in agreement, with Elizabeth May, and then you can decide how you will proceed. If you could keep your comments within a reasonable length of time, it would allow for a round or two of questions, which usually brings out more than what was in the monologues. So it's up to you to determine the length of your interventions.

Welcome to the committee. The floor is yours.

Ms. Elizabeth May (Executive Director, Sierra Club of Canada): Good morning, Mr. Chairman and members of the committee. Thank you. It's always an honour to appear before this committee. I thank you for all the fine work you have done on previous legislation as well.

This bill is one where the changes may seem to be fairly modest, compared to starting from scratch with new legislation, but we regard Bill C-19 as extremely important and as an opportunity to improve a regime that is essential to sustainable development and environmental planning in Canada.

I will skip over the introductory comments about the role of the Sierra Club of Canada in environmental assessment, except to say that we've been involved at every stage of the development of CEAA and in the five-year review process. I have a personal history that involves having tried to get the Privy Council Office and the Government of Canada to approve the concept of legislated environmental assessment when I was in the Minister of Environment's office in the 1980s, and it was an environmental assessment issue that led to my leaving that office. So these are issues that have played a large part in my own life, and I care deeply about them.

In order not to repeat the excellent, thorough, and exhaustive briefs you've already had from the environmental law community, I would just like to say for the record that the Sierra Club of Canada has reviewed the briefs before you from the Canadian Environmental Law Association, West Coast Environmental Law, the Environmental Law Centre of Alberta, and the specific recommendations relating to parks from Sierra Legal Defence Fund, and we'd like to support all those proposals.

What I thought I would like to do is give you a dose of the real world, so that can frame some of the thinking that goes into the amendments you'll be examining. We, of course, over the years have noted that some of the things about CEAA, and before that the guidelines order inherent in the environmental assessment process, create, essentially, a conflict of interest, in that self-assessment means the department that most wants to have a project proceed is responsible for making all the key determinations, in most cases--sometimes it's slightly more arm's-length than that.

We really were very supportive of the commitments in the 1993 red book. As you may or may not recall, in the tortured history of CEAA, it was one of those bills that really went through the wars to get passed. It had actually got through the Senate in the Mulroney years, and it was in a hiatus, waiting for royal assent, when the Chrétien government came to power. So we were extremely hopeful with the 1993 red book, where there was a commitment that CEAA would receive royal assent, but it would be with significant strengthening and the creation of an independent Canadian environmental assessment agency that would be more like the CRTC in its functions. That would take us a step away from self-assessment, it would create rigour and professionalism in that body, it would create more predictability for industry, and it would create decisions that were not merely advice to a minister, as, if it was like the CRTC, those decisions would be binding unless cabinet overturned them.

I often regretted, for a lot of reasons, that the government that supported the red book didn't come to power. I don't know quite how that is, because they did. But anyway, the CRTC suggestion relating to CEAA is a critical and a good one, and I think it's completely outside the scope of reviewing Bill C-19, which is a shame, because those kinds of sweeping changes would be what I believe is required.

Another cornerstone of CEAA that is excellent is its public participation provisions, but here also, where there's a lack of political will, neither the environmental assessment regime itself nor, particularly, its commitments to public participation are always honoured. And that's, I think, why I wanted to focus on two particular case histories. I'll try to get through them fairly briefly, although they're tortuous. I could have picked many others. I allude to some of them in the brief.

We could talk about the decision of CIDA to fund an environmental assessment for a dam in Belize. You wouldn't necessarily think that could be a bad thing, but if funding that EA itself helps a bad project to proceed, then that decision to fund the EA should itself, in our view, have been subject to an environmental assessment, and it was not. For instance, the Department of Fisheries and Oceans has a regular practice of sending letters of advice to proponents to help them steer clear of triggering CEAA, so that they can minimize the amount of environmental assessment required for a project. Decisions to restrict environmental assessment to a single bridge across a river when the impact of building that bridge is to log hundreds of thousands of acres--these are the kinds of things. On the east coast of Canada we have the bizarre situation that the Canada-Nova Scotia Offshore Petroleum Board has been, until recently, completely immune from the environmental assessment regime. That's one that's coming under correction, but the amendments are still weak.

¿ (0910)

But in the interest of time, I'm just going to focus on two. One is an issue for which Sierra Club is still in court. That's the decision to avoid environmental assessment of the decision to finance two CANDU reactors being built in China. The second case history is a much smaller issue, but I find the facts of the case outrageous. That's a small--large for the region--aquaculture operation in a small harbour on Cape Breton Island. Bounty Bay is the proponent.

So I'll try to get through these quickly.

Some of you may be familiar with the rough outline of what happened in the CANDU reactor instance. I think I need to go back to the beginning. When CEAA was passed, one distinct difference between it and the previous guidelines regime was that CEAA was intended to apply to projects outside Canada. The initial view, when CEAA came into force, was that the entire environmental assessment regime, as written for domestic projects, applied in its entirety to anything done by CIDA or federal government departments, like the Department of National Defence.

I would say, parenthetically, that DND took this on board quite seriously and actually did EAs for things like digging trenches in Bosnia. They actually screened their actions that way. They had a very impressive officer in charge of following the EA process. Other departments didn't do as well, but CIDA also made efforts to follow the EA process.

Crown corporations, as you'll know, were treated completely differently. I think it's debatable legally that crown corporations were immune from the impact of CEAA, until such time as they were regulated to come within it.

I would like to add, for the record, that the record of the Canadian Environmental Assessment itself is stellar, in terms of public participation and consultation, through both the regulatory advisory committee and other bodies. During this period, they created a subcommittee of that RAC to review projects outside Canada and how they might be done.

In 1993, they struck this Projects Outside Canada subcommittee. I served on it, as did the Canadian nuclear agencies, the exporters of Canada, development NGOs, and other government departments. We worked until September 1995, when we finally signed off on a regulation to streamline the environmental assessment process for projects outside Canada.

I've brought with me, for your reference as a committee, if you'd like, the original draft recommendation. There was consensus from all those different interests, and it was also signed off by the larger RAC. It definitely scaled down CEAA's requirements. There were some within the environmental community who thought--I represented CEN in that caucus with another representative--we'd accepted too much in the way of streamlining.

But what we preserved in the draft regulation was the right of the Canadian public to access the information, to see a written environmental assessment of any project outside Canada, and to file written comments. It was an abbreviated process, but it I think it respected the essence of Canadian environmental assessment law.

We signed off on the draft POC regulation in September 1995, and at that point nothing happened. Nothing happened for more than a year. I've never shared all these details in this kind of setting, but I think you need to hear this.

On November 5, 1996, I came back to my office and found a very troubling phone message. Somebody from within some department had called and anonymously and painstakingly left a message with a volunteer aid, who wasn't very good at taking down messages. The individual who did this must have gone over it three or four times to get it exactly right. They left the message that the cabinet was about to gut the POC reg; that key sections of the regulation that required comprehensive study of megaprojects outside Canada were to be deleted entirely; and that a revised and emasculated version of the POC regulation was to go to cabinet for approval the next evening in a special cabinet session.

I didn't know if I could believe this message. It was anonymous. Sometimes when you know what's going on already and phone around, you're able to confirm things rather easily. So I will just say that subsequent conversations with people in four different agencies of government confirmed that the Prime Minister's Office had just been advised that the pending financing of $1.5 billion for the sale of two CANDU 6, 700-megawatt reactors to China would trigger CEAA. A determination had been made that there was not time to conduct a review of the reactors and the sale in Qinshan, China, before the Prime Minister's participation in the signing ceremony, which was slated for Shanghai on November 26, 1996, some 20 days later.

The passage of the POC regulation deleting mandatory review or public participation in projects within the comprehensive study list was the required quick fix. On November 6, 1996, the cabinet voted approval of what I regard as the hijacked POC regulation.

¿ (0915)

The next day, November 7, the POC regulation received royal assent without prior listing in the Canada Gazette and without the usual 60-day period for public comment. On November 26, in Shanghai, the Prime Minister witnessed the signing of a deal relying on the largest external loan in the history of Canada. On November 27, the POC regulation was listed in the Canada Gazette. It had had force of law for 20 days without being made public.

Some time later, in an interim that I don't relate in the brief in detail, we wrote to the ministers responsible for the financing decision—the Minister of International Trade and the Minister of Finance—and we requested that they conduct an environmental assessment of their decision. When that application to have an environmental review to the ministers was rejected, it gave us the timing to file a brief before the Federal Court of Canada, which we did on January 20. That was our deadline, and we filed an application for judicial review in the Federal Court trial division. We named as respondents the Minister of Finance and the Minister of International Trade, whose signatures had been required under the Export Act to guarantee $1.5 billion to the Canada account from the consolidated revenue fund of the Government of Canada. Our central argument was that providing a $1.5-billion loan guarantee fell within the financing trigger in section 5 of CEAA and required an EA.

What happened because of that quick fix on the regulation was an absurd result, and it still stands. Under the projects outside Canada regulation, minor projects—including such things as a manure management system for an ostrich farm in the same country, China—actually got an EA under CEAA, but nuclear reactors and mega-dams and anything really huge are exempt. This was an absurd result that came about because of the bind the Prime Minister's Office apparently found itself in.

In terms of what this meant for us as an organization, believe it or not, we are still in court. You don't hear much about it in the news, but we have had more than fourteen different motions and court appearances that have cost us over $100,000 thus far.

In April 1998, fifteen months after we filed our application for judicial review, the crown corporation AECL, which we regard as not being a party to our case, requested that the court allow it to join the proceedings as a respondent. The court refused that application but allowed them intervenor status, and AECL has been largely responsible for slowing down the progress of our case.

AECL initially challenged our right to bring the case at all. They lost, but that was after several layers of court, and you can imagine how much work that was. They then tried to strike out our pleadings, but again they lost. And then they asked for permission to introduce evidence of the environmental assessment conducted in China under Chinese law, but with the proviso that the Chinese environmental assessment information would be viewed as confidential by the court, that it could never be referred to in the judgment, and that our lawyers would have to take an oath of confidentiality to review this Chinese environmental assessment of the Qinshan reactors. Of course, we didn't agree to that.

The Federal Court trial division agreed with us that the public interest in open court proceedings was not outweighed by the commercial interests of AECL. The appeal division also agreed with us. But unfortunately for us, the Supreme Court of Canada gave AECL leave to appeal, so we've now gone all the way to the Supreme Court of Canada on preliminary matters.

On November 6, 2001, five years to the day after the cabinet gutted the POC regulation, the case for hearing confidential Chinese environmental assessment information before the courts of Canada was heard in the Supreme Court. We're still awaiting that court's decision. At this point, the merits of our case may not be heard for at least another year, and if I needed to point this out, the Qinshan reactors are nearing completion.

The hard political reality is that when the powers that be want a project, an environmental review is perceived to be an obstacle. Environmental review and the public's participation rights will be trampled. If you need any more proof of this, we were aware of a leaked cabinet memorandum that the media revealed in November 1997. The document dealt with a cabinet meeting on April 24, 1997, that dealt with proposed financing of nuclear reactors in Turkey. The cabinet approved proceeding with a financing scheme identical to the one used for the Qinshan reactors: $1.5 billion and a loan guarantee through the Canada account, without any environmental review. But what I found particularly shocking was that cabinet went on to consider the current litigation brought by the Sierra Club of Canada.

According to media reports, the cabinet document revealed that the justice department has advised that “its case is not strong and that the Federal Court may well rule in favour of the Sierra Club”.

¿ (0920)

Incredibly, the cabinet then went on to devise an invisible shadow environmental assessment for the Turkey sale, which could be quickly converted to a screening to meet CEAA requirements if we won our case. As it turned out, Turkey decided not to go nuclear, much to our relief, and I think the relief of Greece as well. But in any case, this is the kind of thing that goes on. Therefore, I think there's no question that the deliberate legal strategy here is to break us financially, which they may well do. This is again, I think, offensive to the public interest.

We've raised an important case. We've gone more than an extra mile. It's been very tough to keep this case in court and to find the funding for it. We've done it not just because we don't like the idea of nuclear reactors in China, but because it's so fundamentally offensive to see the environmental assessment regime being raped--there's just no word for the violence done to the process other than that, deciding it's in the way, we'll get rid of it.

I suggest that this committee can do something about this beforehand. The court may settle this for us eventually, when we get there, but in the meantime we could make it clearer. I know the Export Development Corporation has its own act. We support CELA's recommendations that perhaps Bill C-31 should be brought back within the ambit of this committee for review to ensure consistency with CEAA.

Another thing that could be done very easily, I believe, is to include in the law list sections those sections of the Export Development Act and the Financial Administration Act that require ministers to sign off on loans from the Government of Canada, from the people of Canada, and ensure a review.

Very quickly, I'll deal with the second case history. I'll only go to the key point, because I know I've gone too long.

The intensive mussel aquaculture operation in Cape Breton is one we're involved with as a national organization, both because we have local members there and because it would be the largest mussel aquaculture operation yet in Canada. It's quite intensive. It's in a small and vulnerable ecosystem. The only thing I wanted to point out to you, because I found it just extraordinary, is that the Atlantic region of the Department of Fisheries and Oceans accepted the proponent's demand that their environmental assessment here have the following warning: “This report is the property of Bounty Bay Shellfish Incorporated. This report is not to be distributed and/or copied without permission of the owners listed above.” It was not accessible. It was only available in five public locations in Cape Breton. As a national organization that wanted to review it, we couldn't get it. People who wanted to see it locally had to go into a public place, sign in that they were being allowed to look at it, and look at it while they were being watched to make sure they didn't transcribe sections out of it.

So we can have public participation rights in CEAA, but unless they're spelled out very clearly and unless there are some sanctions for enforcement, you can have some absolutely absurd results. If we hadn't been involved in this case, I don't think there's any chance that anyone at the agency would have known.

With the fact that the agency now is moving towards keeping the registry of information and the agency will be having a coordinator, there is progress in Bill C-19, but if there's any bottom-line message from my brief to you today, it is that you can't tie the law down tightly enough for people who want to evade it. So bear that in mind when you look at every section. The unbelievable will happen. It's in your hands to try to fix this.

Again, I want to thank you for your time and the thorough and careful work you'll bring to the task of reviewing Bill C-19. I'd just like to add that as hard as it is to be an environmental activist in this country, I think it may be more discouraging to be a member of Parliament, when the products of intense and painstaking deliberations are rejected by government. On behalf of our thousands of members, please allow me to close by thanking all the members of this committee, and especially its chairman, for your diligence and commitment to public service and environmental sustainability.

Thank you.

¿ (0925)

The Chair: Thank you.

Before the next witness, permit me to take advantage of the fact that we have a quorum to put forward a motion by Bob Mills, the vice-chair, in connection with the Vancouver event in March. Would you like to elaborate?

Mr. Bob Mills (Red Deer, Canadian Alliance): Thank you, Mr. Chairman.

I have looked through the schedule for and the details of this conference. Since Kyoto is going to have such a major impact on us and be a major focal point, it looks to me as though this could be a great opportunity to take a look at alternate energy and the sorts of energy options that might be available in the future. This conference runs from March 13 to 15. It's a trade show, with some 60 countries represented along with their technology for sustainable development in the future.

I don't think I need to go through all of the details. I just feel it would be good to have at least some members of the committee attend and participate in it. There should be some great presentations and an opportunity to see what the rest of the world is doing in terms of alternate energy, conservation, etc.

I don't think I need to say any more about that. It deals with reducing waste, new eco-design, and just all kinds of things. I feel that we can get to Vancouver, but I would suggest that the environment committee can handle the cost arrangements once we're there.

The Chair: You have to move a motion.

Mr. Bob Mills: I move that the Standing Committee on Environment and Sustainable Development seek authority to travel to Vancouver, British Columbia, from March 12 to 16, 2002, in relation to the upcoming conference presented by Globe 2002, entitled Globalizing Business...World Marketplace for Environmental Solutions.

The Chair: Thank you.

Any questions or comments?

Mr. Reed.

Mr. Julian Reed (Halton, Lib.): It sounds good to me, Mr. Chairman.

¿ (0930)

The Chair: Thank you.

Madam Kraft Sloan.

Mrs. Karen Kraft Sloan (York North, Lib.): Mr. Chair, this is a week that the House is sitting?

The Chair: Yes, it is.

Mrs. Karen Kraft Sloan: So would we be travelling as a committee or just a few members or... Would we have to get permission?

Mr. Bob Mills: I thought it would be up to the committee to decide. I just think one, two, five, or however many, it would be good for us.

Mrs. Karen Kraft Sloan: Sure. And you're going to stay in the hospitality suite, Mr. Mills?

The Chair: Mr. Herron.

Mr. John Herron (Fundy--Royal, PC/DR): Am I to understand, through Mr. Mills' motion, that air travel would not be covered?

Mr. Bob Mills: That's correct, yes.

Mr. John Herron: Okay.

The Chair: Mr. Bigras.

[Translation]

Mr. Bernard Bigras (Rosemont--Petite-Patrie, BQ): If I understand correctly, a request has to be made and approved by the House leaders. So will the request be made on behalf of all committee members? That's how I understand it.

The Chairman: On behalf of all those who wish to go.

[English]

All right. Can we have an indication, by hand, of possible interest at this stage from those who would like to go?

So it's a quarter or a third of the committee.

(Motion agreed to)

The Chair: Thank you.

We go next to Mr. Wittingham.

Mr. Ed Wittingham (Director, Banff Environmental Action and Research Society): Mr. Chair, members of the committee, on behalf of the BEAR Society and UTSB Research, I thank you for the opportunity to present our brief today on Bill C-19. I believe you have a copy of that brief.

[Translation]

Because I live in western Canada, I don't have much opportunity to practice my French. So, today, I will make my presentation entirely in English.

[English]

The BEAR Society is a not-for-profit conservation group dedicated to the preservation of wilderness habitat in the Canadian Rockies. UTSB Research is a not-for-profit conservation company, a firm, that provides advice to individuals, to businesses, to government, and to other not-for-profit groups, like the BEAR Society. Combined, the BEAR Society and UTSB Research have reviewed approximately 150 environmental assessments in the mountain parks in western Canada, of which we have provided written comments on roughly 50. We think this extensive experience participating in environmental assessments will help provide important insight to the committee on the actual execution of public participation at various points throughout an environmental assessment. I'd like to begin with exactly that, talking about public participation.

Please note that the responsible authority we deal with predominately in the mountain parks is Parks Canada, so when I'm talking about an RA I will be talking mostly about parks.

Generally, Parks Canada is good at soliciting public participation on environmental assessments. They have an e-mail notification system, which is handy for groups like ours. Unfortunately, Parks Canada isn't very good at what we would say is closing the loop on public participation, giving guidelines as to how public comments are actually taken into account in the EA process. That advice would better help groups like ours to tailor our public comments, to think through it, to make them as effective to the process as possible.

Accordingly--and I'm condensing my comments here in the written brief--we would like to make the following recommendation. We support the proposed amendment in subclause 10(2) as a means of improving the consistency and the extent of public participation in screenings, but as with Bill C-19 in general, we think the amendment could go further. We point to the recommendation that the RAC committee made in its report to the minister, consensus recommendation 3 from issue 21. I believe some time last week or the week before someone from the RAC committee was actually presenting to you. Their recommendation has to do with determining guidelines for public participation, specifically how that public participation is to be considered, if it's appropriate, determining the extent, and also determining whether it is meaningful or not, as prescribed in the act. That, of course, is a subjective term, it's a difficult term, so we also recommend that the committee consider establishing or better defining that term in regard to what constitutes meaningful public participation.

I'd like to go on and make other recommendations specific to different Bill C-19 clauses. I'd like to talk about clause 7 on ministerial orders and injunctions. We think this clause is worthwhile and to be applauded, and in fact, had it been in place, it would have been handy. However, it can go further, and I'll elaborate on that in just a moment, after I give a specific example of how it would have been handy.

If you turn to page 5 in the brief, you can see I've included a cartoon. Unfortunately, it's not a very good scan, so I'll explain the cartoon to you. In 1996 the Lake Louise ski area in Banff National Park proposed a project that would see it clear space, cut trees for a new run called The Waterfall. The tree-cutting occurred before the determination for the environmental assessment required for this project had been made. So you can see in this cartoon one local cartoonist's take on how they would put things right if the project were in fact to be denied, and because it's not clear, I'll explain it to you. We have stumps, we have trees cut, and they're numbered to match up. Of course, the implication is that if Parks Canada turned around with its determination and based on its determination, denied the project, the proponent here could make it right by, presumably, gluing them back into place. Of course, this is absurd. This cannot be done.

When we see examples like this of a project happening before the determination is made, it hurts public trust in the process immeasurably. It also hurts the public's willingness to participate in and respect the environmental assessment process. As a side note, we've seen this type of environmental assessment behaviour repeating itself now with the Lake Louise community plan. The Lake Louise community plan is a plan that guides growth specific to the Lake Louise area.

¿ (0935)

It was given ministerial approval in June of 2001 pending legislative approval under the legislation that guides national parks, the Canada National Parks Act. Section 34 says specifically that community plans must go before the House. They must go to committee so that parliamentarians will have the opportunity to review and assess things like growth plans in parks. Perhaps some parliamentarians think we've reached our capacity in places like Lake Louise, as our groups believe.

We learned just last week that Parks Canada senior planning managers consider the plan operable. They're proceeding with the plan as operable, considering it to be operable, before it has actually come to a committee such as yours, Mr. Chair.

Further to these cases, these examples, we recommend that the committee amend new proposed section 11.1--I'm looking at page 6 now of my brief--to empower not just the minister, but also the public to use injunctions to prevent projects not in compliance with CEAA from going ahead.

I'd like to talk about proposed section 8, which adds a new proposed subsection 12.2. It includes the requirement for the federal environmental assessment coordinator to ensure that those who may be in possession of specialist information regarding a project are identified and included in the process.

I will give you another example from our mountain parks, a place where we deal with this most often, of how this would have been handy. In January of 2001, during the environmental assessment for the Lake Louise waste water treatment plant, Banff National Park's chief aquatic scientist submitted, unsolicited, a report raising doubts about the impact of planned development in the area on aquatic ecosystems and subsequently on Banff's ecological integrity, and of interests also beyond the boundaries of the park. His report looks specifically at the impact on the Bow River, which flows through the park and out to communities like Canmore and Calgary and out to the prairies.

His report later became the subject of House of Commons order paper question Q-17, February 21, 2001. However, he had to submit this report, as I said, unsolicited, and subsequently his report was fairly critical of growth planned under the Lake Louise community plan.

We regret to inform the committee, Mr. Chair, that this chief aquatic specialist for Banff, although still chief aquatic specialist, has been relieved of all his Lake Louise area duties, although his concerns are shared by, among others, Dr. David Schindler, who some of you may recognize as one of Canada's most prominent aquatics biologists.

We make a recommendation that we think would help to avoid situations like these that again help to erode public trust in the EA process. I'm looking at page 7 of my brief, the first bolded section. We ask the committee to amend new proposed subsection 12.4(1) to include national parks as another specified jurisdiction where the CEAA will act as the federal environmental assessment coordinator and will be accountable to itself rather than to Parks Canada.

You might ask why. I can give you a couple of reasons for this. First, Parks Canada is both the proponent and the responsible authority in 25% of environmental assessments in Banff National Park. As you can imagine, being both responsible authority and proponent can lead to a certain degree of conflict of interest.

Second, after Parks Canada had its budget slashed by about 25% in 1996, it was faced with other means of raising revenue. Two of those means are to keep people in the park longer and to bring people into the park during the shoulder seasons, i.e., the fall and the spring, when they normally wouldn't be coming to the park. We think this lends bias of approval to projects doing exactly this. I can raise as an example the proposed seven-storey convention centre at Lake Louise in Banff National Park. It is designed to bring people into the park during the shoulder seasons.

We think separating Parks Canada and the federal environmental assessment coordinator, making this person accountable to the CEA agency rather than to Parks, will help to avoid apprehensions of bias towards approval of developments and will also help to avoid concerns over conflicts of interest in the future.

¿ (0940)

I would like to speak briefly about clause 26, the Canadian Environmental Assessment registry. I'm looking at page 8 of my brief.

Both the BEAR Society and UTSB Research have benefited from e-mail notification and web posting of screening reports in Banff. Invariably, though, our groups have still had to rely on paper or CD-ROM copies of EAs because of size or electronic glitches, or just for ease of reviewing, and we find that most groups agree with us.

I can raise a topical example. This voluminous environmental assessment report--I can tell you it's pretty heavy--was released just this past February 11. It looks at the environmental impacts of a water withdrawal permit for the Chateau Lake Louise, one that would take into account the operations of the convention center I mentioned. It's a 340-page report. This cannot be posted, Parks Canada told us. They cannot PDF it; they cannot put it on the web; it's too big. They have to have paper copies. My colleague, Elizabeth May, talked about difficulty in accessing paper copies. I have here one of ten copies that are available in three places. Normally you cannot take out copies in Banff. You have to review them on site. Fortunately you can transcribe sections of it--they haven't copyrighted it--so I can bring it to you here today.

But if we had just an electronic registry providing access to electronic copies of EAs, we think that would hurt Canadians' access to environmental assessments and subsequently would affect participation in environmental assessment processes.

Mrs. Karen Kraft Sloan: I'm sorry, could you repeat that? Did you say it would hurt? If you had an electronic format, it would hurt?

Mr. Ed Whittingham: No, but it would if it were only electronic. We recommend that we maintain the existing registry but also add the electronic requirements proposed by the act.

But we think it's imperative to keep paper copies of environmental assessment reports like these available and that we go further in Bill C-19 and ensure that the CEA agency require and monitor responsible authorities providing paper copies of all materials to any individual upon request in as timely a manner as possible.

This environmental assessment report, although only 340 pages, has a 15-day common period. Normally parks gives 14 days. We requested an extension; they gave us 15 days.

And finally, I'd like to conclude by offering some food for thought. Our two groups have observed CEAA conflicting with and eroding the effectiveness of other environmental legislation in the national parks. We can understand that conflict and erosion when we consider the different mandates of CEAA and, say, the Canada National Parks Act. As the members of the committee, Mr. Chair, are probably aware, the Canada National Parks Act puts ecological integrity as the first priority in all decision-making in the national parks, whereas CEAA is more about sustainable development. It's about balance without stopping development.

We can think of it in hockey terms. Mr. Chair, forgive me the analogy, but if you take Sunday's game with Canada versus Germany, when you have one team that in talent is up here and the talent and strength of the other team is down here, you can have one of two things happen. You can have the weaker team rising up to match the skill and strength of the stronger team, or you can have what arguably happened in Sunday's game: the stronger team coming down and meeting the level of the weaker team.

We think that's what's happening in our national parks with CEAA and the Canada National Parks Act: that with these competing mandates our national parks legislation is actually weakened.

One thing we would like to see given future consideration, Mr. Chair, is possible separate environmental assessment legislation specific to protected areas like national parks that have by nature stronger degrees of protection. This, however, is not what we're proposing for this round of Bill C-19; rather, our recommendations are twofold.

The one is that we adopt the Sierra Legal Defence Fund's proposed amendments to CEAA via Bill C-19, set out in tab 7 of its brief, regarding the act's application in parks. I know my colleague from the Canadian Nature Federation will speak later on ecological integrity and the importance of the ecological integrity panels in national parks and to the CEAA process.

Our final recommendation is that the committee amend Bill C-19 to include a mandatory five-year review and consultation process, as required under the current act, so we can continue to raise tantalizing possibilities like this of separate environmental assessment legislation for protected areas.

¿ (0945)

The Chair: Thank you, Mr. Whittingham.

Next is Ms. Ellis.

Ms. Lara Ellis (Wildlands Campaign, Canadian Nature Federation): Thanks very much for letting me come and talk to you today about an issue I've had a lot of experience with over the past 10 years.

I work on national parks issues for the Canadian Nature Federation. We have over 40,000 supporters, including 100 affiliated organizations, from coast to coast. We also are part of Birdlife International. The Canadian Nature Federation's work on national parks has a long history. We've helped protect or establish many national parks, and as well, we've been involved in many issues concerning the ecological integrity of Canada's national parks.

I'm going to keep my comments very brief today, because I know you've already heard a little about this particular issue from Jerry DeMarco from the Sierra Legal Defence Fund.

The panel on ecological integrity in Canada's national parks, after years of work, published their report in the year 2000. Part of this report contained recommendations about amending the Canadian Environmental Assessment Act. The reason these recommendations were made was that within their program of work, they recognized that many of the stresses to our national parks are not only from internal activities--my colleague from the BEAR Society has mentioned some specifics--but also from activities that are external to national parks. These stresses include habitat loss, habitat fragmentation, loss of large carnivores, air pollution, pesticides, exotic species, and overuse. While the new Canada National Parks Act deals with many of these issues, it cannot deal with issues external to the national parks. All our national parks have reported levels of stress on their ecological integrity, except for Vuntut, which is in the far northwest of the country.

We received the panel's recommendations very gladly, since we felt they would go a long way to dealing with these issues, and we were very pleased when Minister Sheila Copps accepted these recommendations. We were a little distressed when they were not included in Bill C-19, which we understand, after some investigation, was just because they fell through the cracks, as Jerry DeMarco mentioned in his presentation.

I just wanted to give you a short rundown of one particular issue I'm dealing with right now that we feel would be greatly helped if CEAA were amended to the specification of the panel. P.E.I. National Park is what we consider to be Canada's most endangered national park. It's only 18 square kilometres. It receives 35,000 visitors per kilometre every year. It contains important habitat for the globally imperiled piping plover. The park was very fortunate to acquire a new addition, called the Greenwich Dunes Adjunct, which is actually in very good shape. It contains very high quality dune and beach ecosystems. Last year a development was proposed directly adjacent to the new part of the park. It includes plans for a 150-room hotel and restaurant, over 900 time-share units or condos, an 18-hole golf course, and 8.5 kilometres of hiking and cycling trails. The proponent of the resort said he was anticipating 140,000 visitors per year, which is double the caps set by Parks Canada for the particular adjunct. So we would see actually three times the number of visitors Parks Canada thinks it could sustain. We know it would have a very high impact on the park's wildlife, but probably more significant would be the impact on the fresh water ponds in the park. The groundwater drawdown that the level of water use in the resort and condos and golf course would have would mean that there would very likely be salt water intrusion of the water table, which would contaminate the whole water system.

While it's obvious to everybody that this proposal would have a very significant impact on the national park, there's no requirement for the provincial government to look at what the impact will be. If the amendments put forward by the EI panel were accepted, we think this sort of situation would not happen in the future.

¿ (0950)

This sort of situation is one that I've dealt with in other national parks as well--Pukaskwa, Bruce Peninsula National Park. There's also an issue around Waterton Lakes National Park right now. It's our hope that if the EI panel's recommendations are made part of legislation, we'll be in a better position. It's not because the answers to these problems are easy--they're not, they're difficult solutions that need to be felt--but we feel that by bringing the parties together and having an examination of evidence and looking at mitigation and strategies to deal with these issues, we'll be able to come up with solutions in a much more cooperative and conciliatory way.

I'm not going to run through the amendments, since you've already received them from Jerry DeMarco. But I wanted to give you a real-life example of the sort of situation we feel that accepting these amendments would deal with in a conciliatory fashion.

Thank you.

The Chair: Thank you, Ms. Ellis.

Ms. Joan Kuyek (National Coordinator, Mining Watch Canada): Thank you very much, Mr. Chairman. It's a pleasure to be here and to address you.

The Chair: Would you like to introduce yourself for the record?

Ms. Joan Kuyek: Yes. I'm Joan Kuyek with Mining Watch Canada. I'm the national coordinator.

Mining Watch is a coalition of environmental, aboriginal, social justice, development, and labour organizations. Our membership includes the Sierra Legal Defence Fund, the Canadian Nature Federation, the Canadian Environmental Law Association, the Canadian Parks and Wilderness Society, and Sierra Club. So we support their recommendations. Our job is to talk about mining issues particularly.

I'd like to also introduce to you Jamie Kneen, who's our communications coordinator and works with us. Jamie chairs the Canadian Environmental Network environmental assessment caucus, so he'll be presenting later on their behalf. But just to let you know, we support the recommendations of these other bodies to you, but we want to bring to your attention some very specific problems around mining in this country. This is mostly a collection of stories.

We have a number of concerns about amendments to CEAA, and I'm going to refer to specific mining projects in addressing them.

The first and most important one, in our mind, is that public involvement must not be discretionary. We are concerned that it shouldn't be discretionary at any level. Right now, even when public involvement is carried out, it's often controlled by the project proponent and there's no evaluation of the quality of these assessments.

The difficulties faced by communities in northern Ontario that are concerned about the Aquarius Mine illustrates this. The Aquarius Mine is in the Timmins area. It was finally reviewed under CEAA through a comprehensive study in the year 2000. It's an open-pit gold mine being developed by Echo Bay Mines and AGRA. The mine is directly beside an esker containing the main regional aquifer, the Frederick House aquifer, and is beside Kettle Lakes Provincial Park.

To keep the water from draining into the pit, the company is freezing the ground around it with 2,200 columns filled with brine, kept at minus 20°C by two refrigeration units. This is a completely experimental technology when it's applied to mines, although it's used in construction.

Processing of the ore will take place on site and tailings will be discharged into a pristine valley on the eastern flank of the esker, which will be lined with high-density polyethylene and impounded by an earthen dam. After passing through a wetland, the effluvium will be discharged into Crooked Creek. The waste rock stockpile will cover 250 hectares and have an elevation of over 30 metres. The mine is only expected to be there for six years. At the end of the mine, the freeze wall will be allowed to thaw and a lake will form in the pit. There has been almost no discussion of contingency plans or emergency responses if this doesn't work.

CEAA was first triggered in 1996, with the Department of Fisheries and Oceans as the responsible authority. However, when the project was posted on the federal environmental assessment index, the name of the project and its location were posted incorrectly. So although Northwatch, which is a small regional NGO in the area, was monitoring the index, they were unable to retrieve the posting until February 1999. In March 1999, and at additional times throughout 1999 and into the first quarter of 2000, Northwatch requested information on the project from DFO, with no response. The final CSR was finished and available for public comment in March 2000, shortly after the six-week review period commenced.

The proponent held three open houses in the area--one in February 1997 in Timmins, which 150 people came to; and one each on May 8 and May 9, 1977, in Timmins and in Connaught, which were attended by a total of about 110 people. A fourth meeting was held on June 3, 1997, to address some other concerns.

Most of the concerned local people who attended these open houses told Northwatch that they had no idea these open houses were considered to be public consultation in the CEAA process. They thought they were a public relations program for the mine.

During the event, 137 individuals expressed concerns with respect to the project, in letters, directed comments, or by signing a petition. These concerns were not treated respectfully by the company or the responsible authorities. The CSR described the concerns as having been satisfied with the exception of two individuals. It's a very clear example of how public participation is treated.

We support the concerns of our partner organizations that the new electronic registry is weaker than the existing system. There's an assumption that affected persons have access to sophisticated computers and telephone lines.

¿ (0955)

We work regularly with persons in communities affected by mines who rely on facsimile information, on post or courier, or on some antiquated computer technology that might have been donated to them. The requirement that the paper documents are kept in convenient locations must be retained, and we would certainly support BEAR's recommendation that they should be available in many other places.

Thirdly, the minister must be able to change environmental assessment tracks if the public concern and new information warrant it. We give you an example here of Niocan, a mine near Oka, Quebec. It is to be an underground niobium mine close to a closed columbium mine that had been operated by St. Lawrence Columbium. The mine has been exempted from environmental assessment under the Quebec BAPE because its projected production falls short of the levels for automatic inclusion. However, there has been a growing outcry as more information on the mine comes to the attention of the community surrounding it.

The mine will impact over 28 square kilometres of land and a homogeneous and dynamic agricultural area that markets directly from the farms to the population of Montreal. This area includes the traditional territories of the Mohawks of Kanesatake, and will affect their water supply and their farms. The mine will draw down significant amounts of water from the aquifers in the region.

Furthermore, the mine has radioactive effects. Isotopes of radium/polonium exist in elevated concentrations in the ore body that Niocan proposes to mine. These and other radioactive materials, including radium-226, lead-210, and thorium-230, will be left behind in the large volumes of radioactive waste from the mining operations, in the form of slag and tailings. It is intended to use water from the processing to water farmers' fields.

The environmental impact study done for Niocan did not include any expertise on radioactivity. There were engineers, hydrogeologists, biologists, and many others, but there were no people with expertise in radioactivity. The company doesn't have any management plan for dealing with these radiological effects.

As the population has become more aware of these problems, the public has become more involved. First, a referendum was conducted by the parish of Oka, the rural area that would be most affected. More than 60% of the population opposed the mine. The municipality then hired its own consultant, Donat Bilodeau, who found that the mine would have a more dramatic effect on the aquifers than Niocan had predicted. And then the Mohawk Council of Kanesatake entered the fray. They hired their own lawyers and consultants and are opposing the mine in court, in an appeal of a decision by the Commission de protection du territoire agricole du Québec to allow the mine to proceed.

The questions about the mine have now reached the point at which a case could be made that despite the production levels from the mine, the level of public concern is such that it warrants a full environmental assessment under the Quebec act. Further, the radiological concerns, aboriginal use, and interest questions, and the location of the mine near important transboundary rivers, are all reasons for CEAA to be involved.

Fourthly, the new regulations should make it impossible for deals to be worked out with proponents to avoid triggering CEAA. Elizabeth referred to this in her presentation.

The Lac des ÎIes Mine expansion is a case in point. North American Palladium, Canada's only primary producer of palladium, operates a large open-pit mine 85 kilometres northwest of Thunder Bay. The Lac des Iles Mine recently began a major expansion, expecting to move from 2,400 tonnes per day of milled production, to 15,000 tonnes per day by the end of the year. The expected mine life is only 11 years. The massive scale of the mine will be visible from a distance, with waste rock piles towering above the local terrain at 80 metres high, twice the height of the highest natural feature in the region.

In 1997, Lac des Iles was operating as a high-grade, low-tonnage, open-pit mine. With the massive expansion, the mine will become a low-grade, high-tonnage operation. The current expansion includes the construction of a new mill, a warehouse, a maintenance shop, and an assay laboratory, and a water treatment plant, in addition to the expansion of the mining operation itself. You can see that it's massive.

By the way, there's a revision of the document you've been given. This example isn't in the document that you have, but the clerk has a copy of it.

The expansion of the mine has not been assessed under the Canadian Environmental Assessment Act. Under federal environmental assessment law, it's our understanding that any mine expansion that would increase ore capacity by 50%, or 1500 tonnes per day, is to go through a comprehensive study, because, as the regulations state, certain projects are likely to have significant adverse effects, given their size. But according to sources in the provincial department, the company has worked with the Department of Fisheries and Oceans in order to avoid triggering CEAA

À (1000)

Provincial reviews have been piecemeal, with the ministry of the environment amending already existing approvals to accommodate the increase in mine effluent treatment and discharge, and air discharges, and the ministry of northern development and mines accepting an amended closure plan.

According to industry reports, the mine received the necessary construction permits just 60 days after deciding to expand. Conversely, the Department of Fisheries and Oceans took more than twice that time to respond to inquiries about the federal review of the mine expansion.

There are many triggers for a review, including permits for the destruction of fish and fish habitat, and the deposit of deleterious substances into waters frequented by fish. There's a whole list of others I've included in the brief, including the sewage treatment plant, the discharge of mine effluent from multiple discharge points into Camp Creek and Hasson Lake, and the potential for long-term water impacts in the future, as a result of acid mine drainage and consequent metal leaching.

The Gull Bay First Nation is nearby, and they have only been very peripherally involved by the proponent in discussing it.

Fifth, policies and programs should be able to trigger environmental assessments. We find we are frustrated in our inability to engage in discussions of the environmental implications of broad federal government programs and policies. Trade policy is a case in point.

In Tanzania, Ghana, and the Philippines, the Canadian government has been actively promoting the development of large-scale gold mines owned by Canadian companies, and the forcible eviction of thousands of artisanal miners who have been working these claims.

Political risk insurance is provided for many of these companies through Export Development Canada. No environmental assessment of the implications of these trade policies has ever been done in Canada, although intensive studies, such as that done by ThomasAkabzaa, of Third World Network, in Boomand Dislocation, make it abundantly clear that the policy contributes to environmental degradation and poverty.

Sixth, there is an unrealistic reliance on mitigation measures that frequently do not work or are not carried out. In our experience, CEAA decisions to allow a project to go ahead rely too heavily on the mitigation of adverse environmental effects, even when these effects may be extremely damaging to the environment. Often these mitigations do not work or are completely unenforceable. When they fail, compensation and fines cannot make up for the damage to the environment that has been caused. I offer three examples.

First, the Diavik Diamond Mine put forward a number of mitigation measures and commitments on which the permit to proceed was based. The environmental assessment of the project required that all regulatory approvals be granted before the project proceed. But on December 31, 1999, Diavik applied for a land use permit to quarry 40,000 cubic metres of rock on this site, and it was refused by DIAND on the basis that the environmental agreement had not yet been signed off by the minister. At the end of January, a routine inspection by DIAND showed that Diavik was already quarrying a large area on the site, and had 115 to 120 people working there.

The second example is also Diavik. They're building a massive dike on Lac de Gras, 300 kilometers north of Yellowknife, to do the mine. When it's finished, the dike will hold back a tiny portion of the 60-kilometer-long lake. Once the water is drained from behind the dike, the company will begin open-pit mining of kimberlite pipes on the lake bottom. They expect to mine up to 6 million carats of diamonds at Lac de Gras, when full production begins in 2005.

Construction of the dike and the rest of the project is in full swing, and a massive four-kilometre rock wall now stretches out from the land, and curves around in a horseshoe shape. This wall is about 30 metres wide, about the size of a road.

Diavik has been using plastic silt curtains to contain the muddy water created by the dike construction and to protect fish habitat in the rest of the lake. The silt curtain floats from the surface down to the lake bed, to about two meters below the lake bed. When muddy water is stirred up by the construction, the current takes this muddy water away from the construction area, and the silt curtain redirects the muddy water back to the lake bed, where the muddy water settles quicker.

À (1005)

The curtain is supposed to reduce the impact of the muddy water they have outside the construction area. This is part of the water licence. However, during a bad storm in August of 2001 and at other times during the summer, part of the curtain came off its anchors and blew inland. After that it was just a lump of plastic. At one point where these curtains blew inland, staff from DFO noticed that some of the murky water inside the silt curtain had been lost into the rest of the lake.

The curtains could not be fixed until the weather calmed. However, it wasn't a problem from Diavik's point of view, because it turned out that the levels for total suspended solids that had been set by the Mackenzie Valley Land and Water Board for the Diavik project were high enough that, according to Carl Loughton, the manager of regulatory reviews for the board, “even a massive failure of the silt curtain wouldn't be a problem”.

The Ekati Mine is the third example. In 1996, after an extensive federal environmental assessment panel reviewed the proposed development, the Ekati Mine was given permission to proceed. As part of the environmental agreement signed by BHP and federal and territorial governments, an independent monitoring agent was established. A number of mitigation measures were part of the agreement.

On March 31, 2001, this agency reported on its findings. It found two very disturbing and completely unanticipated problems at the mine.

First, although the BHP 1995 environmental impact assessment did not predict it, there have been downstream changes in the Koala watershed geochemistry and aquatic environment, including depressed oxygen levels in certain lakes, increases in phytoplankton abundance--probably due to increased nitrates from explosives--and slight increases of sulphates, arsenic, copper, and nickel in some lakes downstream.

Second, mining activities, as you know, result in large amounts of waste rock being brought to the surface and deposited there. In the ten months from April 2000 to February 2001, over 30 million tonnes of waste rock were produced from these three pits. These piles tower over 50 metres above the natural profile of the landscape.

It has now been discovered that acid rock drainage is developing in these waste rock piles as a result of the oxidation of sulphide minerals in the rocks, some in violation of the water licence. No one knows how to stop acid mine drainage once it starts.

Our seventh point is that the Export Development Corporation should come under CEAA. We're very disturbed about its being left out. We're members of the NGO working group on the Export Development Corporation, and support the inclusion of EDC under CEAA.

We recently attended a meeting on the new environmental review framework that has been developed by the EDC, and it will certainly not be effective in protecting the environment. It leaves the EDC to police itself.

Thank you for hearing us. I'm sorry we didn't have the final draft of this for you, but the clerk has the new one and it will be available afterwards.

À (1010)

The Chair: Thank you for the cheerful news.

Voices: Oh, oh!

The Chair: We'll now have a quick round of possibly five minutes each. Mr. Mills will start, followed by Monsieur Bigras, Mr. Herron, Mr. Reed, Madam Redman, and Madam Kraft Sloan.

Go ahead, please.

Mr. Bob Mills: Thank you, Mr. Chair. I'd like to thank our guests. I certainly listened with interest, as most of Banff National Park, or at least a good part of it, is in my constituency. I look out on it every day when I'm at home, so I can enjoy that.

On the issues, there are several things. Elizabeth, you mentioned that you'd like this whole organization to be like the CRTC. That's not a good example, from my perspective. I think the CRTC protects CBC and creates what we have there, so I just counter that comment. Anyway, that's not my question.

When we talk about putting the export development agency under this whole set of regulations, I look at a place like China, which I know quite well. I see potential there. They plan eighteen coal-fired generating plants using no modern technology. That means no scrubbers, and that's really damaging to the environment. Those plants are to be bigger than anything we have here, and they have a huge supply of coal. But then I look at the options like the Three Gorges Dam or I look at CANDU reactors, and I see less environmental damage if we are in fact looking at the energy needs of that country. So I wonder about us getting involved in that sort of thing.

When we talk about the Sydney Tar Ponds, about the Fraser Valley, or about sewage going into our oceans, I also see the terrible conflict of taking care of our problems here at home and making them our priority for this legislation. I see a conflict there, and I see a problem.

As well, there's the provincial-federal conflict, the conflict in mining between the socio-economic versus...there are trade-offs that have to be made. Can the industry make those trade-offs? Can it do a better job, and how does it do that?

À (1015)

Ms. Elizabeth May: If I may, Mr. Mills, first of all, I will only say that my comment on the CRTC was to reaffirm that the red book commitment was to the form of an agency in terms of its decision-making, not the decisions it makes.

Mr. Bob Mills: But that's not my bible.

Ms. Elizabeth May: I know; it doesn't seem to be anybody's any more.

I just want to address the question about projects outside Canada. We may have concerns as an organization about a decision at the time to provide nuclear technology to China when China was in violation of the Nuclear Non-Proliferation Treaty provisions. The United States at the time had an embargo against private sector nuclear companies doing business with China because of the potential for proliferating nuclear weapons in the region, particularly with threshold nuclear states such as Pakistan was then, which gained nuclear technology through that.

Leaving that aside, the concern is that if we're not going to be involved overseas, that's okay, as long as the Canadian taxpayers aren't on the hook for $1.5 billion with zero oversight here. If we're going to be providing large financing schemes to get countries to buy our technology, which in the free market would otherwise not appeal to them without this kind of preferential financing scheme...

The way that CEAA reads I think is very clear myself. Section 5 talks about the provision of financing or loans or guarantees, in whole or in part. Section 5 seems to be language that embraces all manner of financial transactions, and yet this kind of major financial transaction has been viewed politically as being outside the ambit of CEAA.

I have both versions of the POC regulation here, and I'll leave them with the clerk in case people are interested. There's the original one that had the consensus of all groups: exporters, the nuclear industry, DND, DFAIT, CIDA, environmental groups, development groups. We all agreed with an expedited process for projects overseas, and we ended up with this absurd regulation that exempts all large megaprojects from mandatory review or public participation in Canada.

For us, in terms of why we wanted that, I'm not prejudging. If we'd done an EA, it very well may have come up with your point of view. Isn't this wonderful? We may be assisting China in avoiding greenhouse emissions from its coal plants, or we may... But we didn't get a chance to see anything because there was no screening, there was no environmental assessment done in Canada, because the government took the position... From our information, that was purely because they hadn't thought of it and time no longer allowed them to do a decent job of it. The expedited POC regulation that we'd agreed to as a community through the RAC was so streamlined that it would not have taken very much for them to meet its requirements.

So it comes down to some concerns about democracy and free speech. In the instance of the China CANDU reactors, we have on the record in part of our court case interviews given at the time by cabinet ministers when we filed our application to federal court. At the time, the Minister of Natural Resources, Anne McLellan, actually said that the Chinese didn't like the idea of public participation in Environmental Assessment Canada and that even though they felt they didn't have to do a review, they were passing this regulation just to assure their customers in China. That's an added level of being offensive.

I'll stop there.

[Translation]

The Chairman: Mr. Bigras, please.

Mr. Bernard Bigras: Thank you, Mr. Chairman.

By the way, we agree with you that Export Development Canada should fall under the Canadian Environmental Assessment Act, but I won't go into that when I ask my brief question.

Rather, I'm more interested in people's right to know about any project in order to increase public participation. In reading all of your briefs, I realize you all have certain reservations with regard to the registry which will be created under section 26. Section 26 calls for the creation of a public electronic registry.

First, do you feel a paper copy of this registry should always be available and do you think that the bill, as worded, excludes a paper version from the process?

Second, do you feel the registry will include all the relevant documents which would lead to increased public participation? If not, what documents do you think should be available on the electronic public registry?

À (1020)

Ms. Elizabeth May: I will try to give part of my answer in French. All the other recommendations made by legal organizations such as CELA and the West Coast Environmental Law Association of Edmonton are good and very specific, but the principle is that all the information should be made available. An electronic registry is a laudable idea, but if there is a problem and something is not available electronically, there should be a hard copy. The principle is that the information should be available. At the start of a project, the relevant information should be contained in the electronic data base. Further, the decision must be available electronically or on paper.

[English]

So it's clear that what we need to see is enough information to be able to participate. If it could all be available electronically, we wouldn't object to that, but the problem is, as my colleague Ed from the BEAR Society has pointed out, if the documents are not amenable to being placed on an electronic registry, we may not be able to get them.

The other problem is around translation. That has been a problem for CEAA. If the documents have to be available on their registry in English and in French, they said that presents a difficulty for them. There are clearly some logistical problems in making the electronic registry work, and that's where we don't want to preclude in certain instances and in local instances the availability in paper or electronic--both where possible. But we don't want anything left off public accessibility because it simply can't be placed electronically. Also, we have to recognize that not all Canadians are on web networks. Many people will be better able to access the information if they can find it in paper format in the local location.

[Translation]

Mr. Bernard Bigras: I have a brief question: in your view, does the bill automatically exclude a hard copy, a paper copy?

[English]

Ms. Elizabeth May: Yes, that's our understanding as the bill is now written. We think it's a mistake, but that's our understanding. Thank you.

The Chair: Thank you, Mr. Bigras.

Mr. Herron.

Mr. John Herron: Mr. Bigras said on the issue of having access to documentation in paper form that it would be complementary to electronic form. Could it also be said that by actually hosting applications in paper form in certain public venues that public notification could actually even raise attention to the issue where people may not have been aware of the project, and it may actually be helpful in engaging the public as well?

Ms. Joan Kuyek: I think it definitely would help engage the public. There's a real problem in remote areas where people aren't even aware of the operations of CEAA. So anything that draws their attention to their ability to find out more about the project, to oppose it if they wish, to be able to intervene, is very important.

Mr. John Herron: If I read this correctly, the EDC is not compelled to be reviewed by CEAA. You're advocating that it should be included as well. Is there any reticence between the Government of Canada or PCO or any comments that you've heard why EDC shouldn't be?

Ms. Elizabeth May: The position has been taken that to be globally competitive in these commercial transactions they shouldn't have to have the same level of scrutiny. Now if you look at the way the current law operates, given the gutting of the projects outside Canada regulation, I don't think EDC would have much trouble complying with being within the Canadian Environmental Assessment Act from any commercial vantage point.

The expedited method is now an advisory committee as well as having exempted comprehensive study for mandatory review. Given how gutted the process became to accommodate the sale of the CANDU reactors to China, it's extraordinary that EDC went its own route with Bill C-31 to create a different process. Frankly, I don't understand the excuses that have been given.

À (1025)

Mr. John Herron: Has the Government of Canada said specifically why they don't want the EDC to be added to the CEAA process?

Ms. Joan Kuyek: It's around commercial competitiveness and their ability to compete with other countries that they say have lesser environmental standards than we do. The Government of Canada has said it would like to do this through the OECD and other international bodies and raise standards on that level.

Mr. John Herron: You cited numerous examples where the Government of Canada chose not to engage the CEAA process for projects outside our own borders. I wonder if anybody would like to comment on the loophole the Government of Canada utilized under the CIDA application in Belize and how we might be able to close that particular loophole in the context of what we're reviewing now.

The Chair: Please make your response brief.

Ms. Elizabeth May: I'll just clarify that any standing, including for project proponents conducting EAs, must receive a screening and have public participation rights.

The Chair: We had a good discussion in Washington one evening on that very issue; namely, the role of export development agencies country by country. A paper was produced, and I will be glad to send you a copy.

Apparently, the total volume of export development corporations, such as EDC, throughout the world amounts to a staggering figure of almost $40 billion a year. A phenomenal amount of activity is taking place, with competition country by country. This reinforces what Ms. Kuyek said earlier.

I now have on my list Mr. Reed, Madam Redman, Madam Kraft Sloan, Mr. Bailey, Mr. Tonks, and the chair.

Mr. Reed.

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

Just to illustrate the challenge that this committee has in trying to strike a balance, the example of China was brought up and the sale of CANDU reactors. David Schindler has said that at any given time approximately 5,000 tonnes of mercury are floating around in the atmosphere that precipitate from the Arctic and contaminate wildlife there. China is the second biggest, if not the biggest, contributor to those mercury emissions. They come from their combustion of coal. So in striking a balance, it seems to me that has to be a consideration.

China as a country is doing its part in terms of providing clean energy to its people. It's the world's largest producer of hydraulic turbines and it's its own best customer. All of that has happened, but the fact is that this coal combustion--and China has an abundance of coal--is still going on, and we, among other countries, are the recipients of that contamination. I only say that to try to put it into some balance, and you can see the line we have to walk.

Ms. Kuyek, you brought up some tales of difficulty and you mentioned three examples of mines. I don't know whether I heard all of your presentation properly, but I was wondering if you had put in any recommendations for mitigating those problems you perceive.

Ms. Joan Kuyek: First, I think it's important to realize that our understanding is that it's the Canadian Environmental Assessment Act that is supposed to make it possible to have that kind of open discussion about the values of a project. The information about whether supporting a coal-based industry or a nuclear industry is going to make a difference should be part of a strategic and project-specific environmental assessment. We're here to ask for the government to exercise its responsibility that way properly. This committee has done everything it can, I think in most cases, to try to urge the government to do that.

It's the same with the recommendations we would have about mining. We made general recommendations. As I said earlier in my presentation, among our membership are a number of organizations that have made very specific line-by-line recommendations, and we support those entirely. Certainly the recommendations that come from the Sierra Legal Defence Fund and West Coast Environmental Law and the other organizations that have presented to you are recommendations that we support. We didn't see the purpose in reiterating all those recommendations to you today. We think they would go some way to mitigating the problems we see with the CEAA.

Like the Sierra Club and the other groups that have presented to you, it's hard not to become very cynical when we look at all the mining projects going on in the country and all the damage we see them doing, knowing they have not gone through a proper assessment of whether the economic benefits they generate are going to offset the environmental damage they're doing. And in places where there have been those hearings, we're realizing that the reliance on mitigation measures, which are untested in many cases, isn't protecting the environment.

It makes a mockery of some of these really extensive environmental assessment processes that went on around, for example, the Ekati Mine, when you discover later that there are effects that can't be controlled and that could cause damage for centuries to come.

I think what we're asking for, all of us here and most of the members of the committee, is an environmental assessment act that we can trust, that really does properly evaluate the environmental and social impacts of large projects as well as some damaging small ones, both in Canada and by Canadian companies overseas. That would enable us to assure ourselves and future generations that we didn't make decisions in short-term economic interests that are going to destroy their planet for them.

À (1030)

Ms. Elizabeth May: May I very briefly add one point that hasn't been made before the committee?

It's not only the environmental damage that comes from skipping environmental assessment, or doing it incorrectly. There are often economic costs to bad planning. I could give you a whole lot of examples, from the incinerator built in Sydney in the late eighties and early nineties, where they said they didn't need an environmental assessment, except for a preliminary one, because it was an environmental project. They went ahead with it. Good planning would have caught the fact that $55 million was being wasted on something that didn't work.

There are many examples of the failure to do environmental assessment, fast-tracking something...Westray. There are examples of fast-tracking things for short-term political ends that are actually bad economic decisions as well as being bad environmental decisions.

The Chair: Thank you, Mr. Reed.

Madam Redman.

Mr. Ed Wittingham: Perhaps I could add one point to that, Mr. Chair.

In addition, we've talked about economic consequences. We've also talked about environmental consequences. We ought to talk about the consequences in terms of public participation as well and losing faith and trust in the process. When we see an environmental assessment process that for whatever reason seems to be expedited, seems to be put forward in a way that isn't open and transparent, that isn't genuine, then you find interested interveners simply drop off. They say they're going to make their concerns for it in another forum. Therefore, I think it's imperative that we have environmental assessment processes that are really trustworthy in order to ensure public participation.

Thank you, Mr. Chair.

The Chair: Thank you.

Madam Redman, please.

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

Ms. May, in his report to Parliament the minister said he was proposing to develop regulations for selected crown corporations--you mentioned this in your presentation--that would recognize unique and diverse circumstances.

Our friend has already brought up the CBC, and I have to say I'm a big fan of the CBC.

A voice: Hear, hear!

Mrs. Karen Redman: But it's vastly different from the National Capital Commission.

In your opinion, which crown should be dealt with on a priority basis?

À (1035)

Ms. Elizabeth May: As I indicated earlier, I think it's questionable that the act doesn't apply to crown corporations as written. The decision that they only come in by regulation has been a problem, because there's no incentive to develop the regulation if you're currently not covered. If they were covered in the way CIDA was from the beginning, but with a subsequent regulation to clarify the kind of assessment required of them, we'd see some incentive to get crown corporations dealt with.

Obviously, there are crown corporations that have very little impact on the environment directly. I don't have an exhaustive list with me, but certainly at one end you'd see something like CBC and say they're not building a lot of projects. If you look at a crown corporation like Atomic Energy of Canada Limited, you'd see a reason that they should be brought in rather quickly. We've referenced crown corporations like Export Development Corporation and the peculiar situation that they already have Bill C-31. There are decisions made by various funding agencies across Canada that are crown corporations. Just to use an example, Enterprise Cape Breton Corporation is one I'm familiar with.

There are big and small crown corporations that have environmental impacts, and it's going to be very cumbersome to regulate one at a time. I think it makes much more sense to say, at this stage under Bill C-19, that these crown corporations must obey CEAA unless they specifically find a streamlined regulation otherwise.

If a crown corporation has little environmental impact, meeting CEAA's requirements isn't a burden for them. They just have to look at it, go through the screening, and say this doesn't require any further review. If they're having an environmental impact and follow CEAA, they should be following the act as written. The transactional costs for the system in developing regulations crown by crown are certainly prohibitive and really not necessary.

Mrs. Karen Redman: Ms. Kuyek, in the application of the Canadian Environmental Assessment Act, if it were extended to include strategic assessment, how would you propose to define “program” in that context?

Ms. Joan Kuyek: I think it should encompass almost any program or policy that was introduced by the federal government, and there would be a screening program as there is for projects. The fact of the matter is, an awful lot of policy has often much more devastating implications for the environment and for the economy than a project does, and it would obviate a lot of smaller project screening if there were policy screening to start with, too.

I'm not in a position to tell you exactly how to do that. There are other organizations--members of ours and others--who have worked that through.

Mrs. Karen Redman: So your answer is to just include policy with program, and then you get away from having to define program?

Ms. Joan Kuyek: Yes.

Mrs. Karen Redman: Thank you.

The Chair: Thank you.

Perhaps I should mention the fact that ten years ago, when this legislation was discussed and examined clause by clause by this committee, there was a very intensive debate on including or excluding crown corporations. Of course the government of the day felt they should not be included. I would imagine the same position is being taken by the current government; namely, there is a notion out there that crown corporations ought to be given greater autonomy than departments. Until that mindset is dealt with and resolved, we will have this constant problem with us.

The knowledge and the fact that crown corporations are exempted is one that is deeply ingrained in the parliamentary memory, and perhaps it is a subject we should revisit. But it is certainly not within the scope, as I understand this bill, to permit an amendment to that effect. Even if it were to be presented, it would be out of order.

That doesn't mean the issue is not an important one, and we may want, if we can't deal with it in committee by way of an acceptable amendment according to the rules, at least to raise it at third reading debate and make the points there and transfer the debate from this committee to the full House--as a minimum.

I'm sorry for that intervention.

Madam Kraft Sloan.

À (1040)

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

As an aside with regard to the discussion on EDC and what you've been hearing from the government about the issue of commercial competitiveness, it is the Americans who are pushing the Europeans and the Canadian government to have some standards with regard to a better environmental framework. They're looking at the World Bank. I don't know the issue very well, so I can't tell you whether that's a useful framework or not, but when the issue comes up of commercial competitiveness, our largest trading partner, the one we're supposed to cower before every time we want to stick our nose out and do something interesting or important like Kyoto, is actually trying to push us further down the path of environmental sustainability.

That said, Mr. Wittingham, I was interested in the comment you made with regard to the new section 11.1 allowing for provisions for penalizing non-compliance with Bill C-19. I think all of us around the table can talk about projects we know of where compliance was a questionable item. I have Bill C-19 in front of me, and I'm wondering if you can help me with this, how you would see this recommendation of yours fitting in with proposed section 11 in Bill C-19.

Mr. Ed Wittingham: The reason for that recommendation was that we wanted some sort of provision for groups to make sure that if we have a situation, as with The Waterfall, which I mentioned, we can ensure, if the minister isn't going to act on our behalf.... I'll have to admit, Ms. Kraft Sloan, that I'm not a lawyer

Mrs. Karen Kraft Sloan: And neither am I.

Mr. Ed Wittingham: I would defer, on questions of a specific legal nature, to Ms. May or to the Sierra Legal Defence Fund. I'll explain the intent of that.

We need the public to ensure that if we have a situation like this, where we want to intervene and ask the minister to place an injunction, or if the public has, as we recommend, the same provision as the minister to place an injunction on a project that isn't in compliance with CEAA, there is some recourse for filing a public grievance or making sure we review it, coming back and ensuring that situations like that depicted in this cartoon aren't repeated in the future. That is what we mean by that clause.

Mrs. Karen Kraft Sloan: Okay.

Madam May.

The Chair: Very briefly.

Ms. Elizabeth May: Until the federal environmental assessment has been created and completed, a new offence and penalty part of the act should be created to set out penalties for violations of proposed section 11 and other provisions. For details, I'll refer you to the brief of the Canadian Environmental Law Association at pages 16 and 17, and also the table of proposed changes at the end of their brief.

Mrs. Karen Kraft Sloan: So we would need a new penalty section.

Ms. Elizabeth May: It is tempting to go on about how mitigation measures aren't fulfilled and no one checks up on them. The famous case is the Oldman Dam. After it went to the Supreme Court of Canada, the decisions were made on what should be done to mitigate a dam that should never have been built, and even those measures were never implemented by the coast guard.

The Chair: Madam Kraft Sloan, very briefly.

Mrs. Karen Kraft Sloan: Thank you very much, Mr. Chair. I do have a number of other questions, which I hope to raise during the second round.

Madam May, you mentioned in your presentation this issue of letters of advice, and I'm wondering if you could elaborate on that a little more, so it's clear to committee members.

Ms. Elizabeth May: What has been happening as a matter of course in recent years is that the Department of Fisheries and Oceans advises proponents who need a permit under the Fisheries Act that they can design their project and their application for environmental assessment so as to avoid triggering a full review. There is a litany of examples. It is now apparently business as usual for the Department of Fisheries and Oceans to advise proponents to scale down the nature of their activities to avoid triggering more than a minimal review of what they plan to undertake.

À (1045)

Mrs. Karen Kraft Sloan: Often I have constituents who come in to see me because they're applying for some government program, say a Heritage Canada program, and I set up the Heritage Canada contact and they explain how they can best put their application forward so that they're eligible for the project. Is it as benign as this? A project is a project is a project.

Ms. Elizabeth May: We don't find it benign, frankly. We find it a deliberate attempt to evade the public participation rights and the scope of the act, to evade the implications of looking at the full range of things that CEAA would require in terms of looking at alternatives, looking at the cumulative impact of projects. Segmenting projects to their tiniest discrete piece and evaluating only that is in the interest of expediting projects that have far greater environmental damage.

Joan may want to comment on this. Right across the country we hear of examples of this through the environmental assessment caucus in which people have been scandalized, frankly, by the fact that DFO has routinely found ways to help people circumvent the act. We do not find this helpful advice on how to get into the CEAA process, unlike your Heritage Canada example, but actually advice about how to circumvent the act.

The Chair: Ms. Kuyek, please respond very briefly.

Ms. Joan Kuyek: The example I gave of the Lac-des-Îles mine I think addresses that specifically. The company was very anxious to avoid the process of CEAA, and DFO advised them on how to do that. That's our understanding. And they worked with the Ministry of Northern Development and Mines in Ontario to figure out how to do it so it wouldn't have to go through an environmental assessment.

The Chair: Thank you.

Mr. Bailey, please, followed by Mr. Comartin, Mr. Laliberte, and the chair.

Mr. Bailey, please.

Mr. Roy Bailey (Souris--Moose Mountain, Canadian Alliance): Thank you, Mr. Chair, and thank you all for coming.

I have some sympathy for people like yourselves and your organizations, in that I don't doubt your sincerity, I don't doubt your expertise, but if at some time all of that put together comes up against a big job potential, a potential to save a certain area, any words of caution on your part may sometimes bring about a negative reaction, because that huge megaproject, to the people involved, is much greater than what you represent.

I think you know what I'm speaking of in areas like that. I'll cite the example in the Northwest Territories, with Yellowknife and now the diamond mine, to which you alluded. There's a lot of negativism towards organizations like yourself because that is completely overshadowed by the commercial advantage it would bring. That's just an observation I have. And If I were to ask a question in regard to that, it would be how do you overcome this?

The other question I have for you, and I see it as a type or rule of law, is it seems that we have Bill C-19 and it's clearly enough written--even for myself, and, again, I'm not a lawyer--so that we understand it, yet we see the government themselves, and sometimes the mining organizations, circumventing the act itself to their own advantage. And we on this committee can sit and watch this and do this, but the government remains the master in the end of many of these decisions, particularly in the crown corporation situation, and we're handcuffed here. I'm sure you feel the same way.

What do you suggest, and what would you suggest to this committee, to make more prevalent and more common the rule of law in dealing with these matters?

Ms. Elizabeth May: Thank you, Mr. Bailey; I can finally take a stab at this.

The first point I want to make is that it shouldn't be seen that our commitment to proper environmental assessment in Canada is somehow anti-job or anti-development. The Government of Canada and the Parliament of Canada and the people of Canada are either committed to sound planning--and an environmental assessment is really a tool for sound planning--or we're not, and if we aren't committed to it, then we should stop pretending we are.

I mentioned the $55 million spent on an incinerator that didn't work, that avoided environmental assessment; I could also mention that the largest layoff in the history of Canada involved the 30,000 people who lost their jobs when the cod fishery collapsed.

Mr. Roy Bailey: You're right.

Ms. Elizabeth May: There was an attempt to get an environmental assessment of the cod stock quotas by the inshore fishers, but they were not successful in Federal Court at getting anyone to listen to them. But if we'd done a proper environmental assessment of those decisions, those jobs would still be there. There are lots of examples like that.

What we can do, I think, in this process of Bill C-19... and I take the chair's comments very much to heart. If you go out and say “This should apply like a CRTC-like agency, and this should apply to all crown corporations”, those changes will not likely be accepted by the government of the day.

What changes can you bring to make a difference? Bring in some penalties for failure to observe the act. Bring in some requirements. This is pretty routine. You either believe in this process that the government has set up or you don't, so failure to abide by the rule of law should have some consequences and some follow-up. Under the current version of the act, it doesn't.

Mr. Roy Bailey: Yes.

À (1050)

Mr. Ed Wittingham: I'd like to offer one example from the national parks. Our focus is a little bit more limited. We don't look overseas--at issues in China, for instance--but just looking at the national parks, I'd like to come back to a recommendation we made.

If you're going to have a federal environmental assessment coordinator, have some separation between who that person is accountable to and who that person is working for. I raise the example of Parks Canada. Parks Canada does a tremendous amount of self-assessment, and naturally, given the nature of self-assessment, you can imagine there's some suspicion of conflict of interest, or times when Parks Canada might be able to go ahead and start a project before the determination's been made. The system itself is inherently flawed.

In our parks we could have some distinction by having a federal environmental assessment coordinator accountable to an entirely different ministry--that is, Environment Canada instead of Canadian Heritage. That would allow Parks Canada to remove itself from this difficult position in which it has to not only generate revenue but also try, without too much bias, to look at projects that would generate revenue. In this case, if we have someone separate, then we eliminate a certain apprehension of bias. It gives groups like ours recourse to go to this person who is accountable to a different ministry.

So that's one example, Mr. Bailey, from national parks.

Mr. Roy Bailey: Thank you.

I have just one more quick question.

In the past we know--and you've cited some examples, Ms. May--that certainly if they had taken the advice of the scientific community, and some government had stepped in and said no, for the reasons I mentioned earlier, things would have been a lot different.

But is it possible to have any mining project, any true development--and I'm thinking about on the prairies themselves--without there being some negative impact on the environment? Is it possible to ever have a project of any magnitude without there being some impact on the environment?

The Chair: That is something for a three-day conference.

Ms. Kuyek.

Ms. Joan Kuyek: I don't think it is. I think it's like most choices in life; you know it's going to have some impacts, but you sure want to know what those are going to be. Unfortunately, unless there's some good environmental assessment, you don't know, which means people are buying, as they say, a pig in a poke all the time.

The Northwest Territories diamond mines or the northern Saskatchewan uranium mines are some very big issues. We're talking about very long-term effects. They're not expecting any of those mines to be around after 20 years. That's less than a generation now. Sure, in the short term it's of really great economic benefit to the Northwest Territories, and goodness knows they need it, but that's not the issue. The issue is, what happens 20 years later? What happens when those mines aren't there?

I lived 30 years in Sudbury. In 1970, when I moved there, 20,000 people were working at Inco. Now the number is 5,000. If that company closes down--and they're always saying the ore body isn't going to last all that long--we're left with 900 square miles of devastated land, and nothing much is going to happen.

So those kind of decisions have to be made up front. The short-term jobs have to be measured against the long-term sustainability of that area. That's what CEAA is about, and that is what the environmental assessment process is supposed to be about. To you, unfortunately, is bequeathed the responsibility to make sure it does.

À (1055)

The Chair: We have Mr. Comartin, Mr. Laliberte, and the Chair. Then we have to adjourn.

Mr. Comartin.

Mr. Joe Comartin (Windsor--St. Clair, NDP): Thank you, Mr. Chair.

Ms. Kuyek, you just stole my thunder, because I was going to do the same thing. You did it much more eloquently than I would have. I just spent part of my Christmas break up at Port Colborne and saw what Inco did to that community and the results to that community--both economically and from a health standpoint. When you go and look at that, you recognize the importance of this legislation. So, to all of you, thank you for coming and for all the work you do.

Mr. Chair, are we stopping at eleven o'clock?

The Chair: We are stopping at the end of the first round. Some of us have other commitments.

Mr. Joe Comartin: I wanted to raise an issue. Perhaps I'll do it now and use up some of my time.

I'm a bit concerned about one of the statements you made in your intervention about the fact that we are limited to within the four corners of the bill as proposed. I don't agree with that interpretation. I think it has been raised once before. Have we moved that along to get a determination--either to get a legal opinion or to get a ruling from the Speaker?

The Chair: We've asked the Speaker for a ruling. He referred us to one of his clerks, and we are now constantly checking with him about the admissibility of proposed amendments. But there's no final decision. When we go into clause-by-clause, of course at that time the clerk representative or the Speaker representative will be able to tell us which amendments are acceptable and which are not according to the rules.

Mr. Joe Comartin: If perhaps it can be impressed upon the clerk who is looking at this that we're.... Let me change that. I'm doing work on the assumption that we may be able to move amendments outside the four corners of this bill. If we're not going to be able to do so, that's wasted time. Perhaps it could be communicated to the clerk that we need the ruling fairly quickly.

The Chair: Definitely amendments have to be within the four corners. The question is how do you define them and how do you find escape clauses or open-ended portions of the proposed bill that might allow for entertaining a motion to move along in the process. But we have to stay within the four corners. There's no--

Mr. Joe Comartin: Mr. Chair, I don't agree with you on that, because if we're going through a review of this legislation, how can it be mandated that we're stuck with just the amendments that are brought forth by the government?

The Chair: If you have suggestions to make on how we can change the rules to permit amendments outside the four corners, by all means, make them at our next meeting, because that is the dilemma we are facing.

Please would you answer Mr. Comartin's question?

Mr. Joe Comartin: Mr. Wittingham, I was disturbed, if I understood you correctly, that Parks Canada has already begun to treat the amendments as law. Did I understand that correctly?

Mr. Ed Wittingham: I was referring specifically to the Lake Louise community plan. Is your question further to that?

Mr. Joe Comartin: Yes.

Mr. Ed Wittingham: We've learned that we have a community plan for Lake Louise, as with Banff and other national park communities, that looks at how to implement growth. What we have learned is that Parks Canada is already considering the plan to be operable. Now this, from my lay person's perspective of looking at the Canada National Parks Act, seems to be a contravention of section 34 , which says the plan actually has to go before parliamentarians and has to be referred to committee.

Mr. Comartin, it was a flag, because they said this will allow us to develop a growth implementation plan and also go forward with steps such as posting a commercial lottery, which gets to the point of telling proponents to submit proposals that would then be considered and eventually trigger environmental assessments.

Mr. Joe Comartin: I have one quick question for Ms. May--more of an update on the CANDU case. Do you have any sense of when the Supreme Court is going to give their ruling?

Ms. Elizabeth May: No, we don't know. The case, as I said, was heard in early November. It could be any day now or it could be six months from now. We attempted to get a ruling from the Supreme Court for the case there to be expedited, so that we could try to get our case on the merits heard. That was denied. The legal costs of this enterprise are difficult to bear, and with the time going by it's very likely that the Qinshan reactors will be entirely built before we get a ruling on whether the ministers of international trade and finance had been required to subject their decision to the act.

Á (1100)

Mr. Joe Comartin: Have you had any favourable rulings of costs throughout the whole process?

Ms. Elizabeth May: Every time we win on a matter, which has been most times, costs have been awarded in the cause. The one time we lost, on the question of expediting this matter so that we could try to get it heard on the merits, costs were awarded against us right away. So we currently owe AECL $10,000.

Mr. Joe Comartin: And they've never, at court, paid you any costs for any of those awards?

Ms. Elizabeth May: No.

Mr. Joe Comartin: I just want to make a quick statement, because we get all these nasty comments from certain members of this committee about lawyers that may...

Some hon. members: Oh, oh!

Mr. Joe Comartin: I have to get a defence in here, Mr. Chair.

Mrs. Karen Kraft Sloan: [Inaudible—Editor] ...an exclusionary clause from you.

Mr. Joe Comartin: The point here is that we have heard in all seriousness a number of comments, across the table from Mr. Reed, and I think from Mr. Mills, that lawyers are out there advocating these cases--that is, promoting these cases. But in fact when you see this type of history--and it's not unusual where you have small, not-well-funded groups coming forward--they oftentimes can be litigated into non-existence simply by way of costs. So there are two sides to the coin. It's not entirely small landowners who are penalized by the process, from a cost standpoint.

Thank you, Mr. Chair.

Ms. Elizabeth May: If I may speak to that, I don't want to scare my board of directors if they see these comments in Hansard, but it's a very real risk to survival.

We're not a charity. Sierra Club of Canada Foundation, as a separate organization, has charitable status. All the money we've spent to pay our lawyers and to pay disbursement costs over the last five years has had to come from donations without benefit of a tax-charitable or a tax-creditable receipt.

It is very hard work to keep the case alive and get the matter heard. The only reason we want it heard is on the matter of principle: can the federal government, and can the federal cabinet, with impunity, ignore their own laws?

The Chair: Thank you, madam.

Mr. Laliberte.

Mr. Rick Laliberte (Churchill River, Lib.): Thank you, Mr. Chair.

I will maybe put a question on cumulative effect in different projects. We have eco-regions--not only water basins; we also have the entire boreal forest that stretches right across the country. How will this act...? In what way can the federal government assess cumulative effects of projects on eco-regions or aquifers or the different aspects of projects and impacts they could have?

Ms. Elizabeth May: I'd just venture to say I can't imagine, in a project-based EA, a cumulative impact taking in a region as large as, say, all the boreal forest. The goal is to look at the cumulative impacts in a specific region.

To use the example of the Cheviot Mine, for instance, near Hinton, Alberta, there was concern that with the amount of logging going on in that area, and an open-pit coal mine, and oil and gas activities, a cumulative effect of all of those would be devastating on grizzly bear habitat--more than just looking at that one project alone. In that sense it defines its eco-region; you're looking at habitat of a particular species.

Where you might look at say an entire eco-region like the boreal forest, if you wanted to undertake a class EA and look at the question of how current logging permits affect Canada's benefits for sinks under Kyoto, I can see that as being one where you want to look at the whole eco-region. But on a specific project-based EA, it's extremely unlikely that the eco-region would be other than what I think will define itself out of common sense in each instance.

Mr. Rick Laliberte: Well, I used a wider example of an eco-region, but there are also water basins. I think a lot of watershed areas are now tied into aquifers. There's a huge awareness, nationally, of water and the quality of water, and I think the cumulative...

In what aspect does the act cover cumulative issues? It talks about federal government involvement in reviews, but where do the provincial or international reviews come into play? Some of our waters are international boundary waters; some of our watersheds flow into the United States; some of our interprovincial waters flow to another province; some of our airstream from Alberta falls into Saskatchewan; some of our uranium tailings end up in the Mackenzie River system.

This whole concept puts us beyond provincial boundaries. Let's put it up; let's discuss what the cumulative effects of these projects would be. What do you see?

Á (1105)

Mr. Ed Wittingham: Mr. Laliberte, we share the same concern. I raised the example of the Lake Louise waste water treatment plant, and the park's chief aquatic specialist, whose report was submitted very late in the process, wasn't even consulted, although he was the acknowledged expert in the area on cumulative effects and looking at water quality. We need to ensure that specialists like these are included. We also need to ensure that regional reports, like Environment Canada reports where we are measuring climate change and looking at snowpack loss and the reduced availability of water over the long term, are incorporated in the environmental assessment process. The way the act currently stands, these reports can be ignored, these specialists can be ignored. There are amendments here that would ensure the inclusion of specialists like these and reports like these, so we can get the overall regional perspective.

It was for this, cumulative effects, that our group actually went to court. Further to what Mr. Comartin said, we went and challenged section 15 on scoping and section 16 of the act, under the Canadian Environmental Assessment Act. We lost, and now we're on the hook for $40,000 of court costs.

Ms. Elizabeth May: I would just add that one of the consensus recommendations of the regulatory advisory committee was to look at improving transboundary provisions and to allow the minister to make a decision for a review track of either screening, comprehensive study, mediation, or panel review. Your comprehensive study is the place where you're going to best look at cumulative impacts. Another was to allow the minister to designate a lead federal authority in the assessment of the project. These are both consensus RAC recommendations that I think get to your point, although I certainly want to echo your comments.

I hope I didn't sound as though I was dismissive of the notion that on watershed management, cumulative effects of an eco-region will certainly extend beyond one province's boundaries, and even beyond one nation's boundaries. There are provisions, of course, for joint environmental assessment processes, and I think the creation of the federal environmental assessment coordinator should assist. We think those provisions can be improved, as various briefs have already suggested, but it does go to the question of coordinating different jurisdictions to better address the cumulative impacts of projects on transboundary watersheds, airsheds, and so on.

Mr. Rick Laliberte: Thank you.

The Chair: Thank you, Mr. Laliberte.

Let me conclude by asking whether you would be willing to read the questions contained in the briefing notes for today's meeting, and having done so, whether you would choose some questions to which you may want to prepare a written reply. There are some questions in there that you may find interesting. Thus we get the benefit of a much longer meeting, which could stretch for several hours, of course.

Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: I was just going to add, not having seen those briefing notes--and I do apologize--that if there is a question on what's missing from Bill C-19 that you feel should be in it, please add those comments. Thank you.

The Chair: There are such questions in there.

You can do it by way of a letter addressed to the members of this committee, at your convenience, of course.

Let me thank you on behalf of the members of this committee for this very informative and helpful exchange. Ms. Kuyek, Ms. Ellis, Mr. Wittingham, and Ms. May, we hope to hear from you again. Thank you for appearing before us today.

The meeting is adjourned.