ENVI Committee Meeting

37th PARLIAMENT, 1st SESSION

Standing Committee on Environment and Sustainable Development

EVIDENCE

CONTENTS

Tuesday, May 7, 2002

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0910

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

Mrs. Karen Redman (Kitchener Centre, Lib.)

The Chair

Mr. Paul Muldoon (Executive Director and Counsel, Canadian Environmental Law Association)

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0915

¿

0920

The Chair

Mr. Hugh Benevides (Researcher, Canadian Environmental Law Association)

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0925

¿

0930

¿

0935

The Chair

Mrs. Tamra Thomson (Director, Legislation and Law Reform, Canadian Bar Association)

Mrs. Magdalena Muir (Member, National Environmental Law Section, Canadian Bar Association)

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0940

The Chair

¿

0945

Mr. Paul Muldoon

Mr. Roy Bailey

Mr. Paul Muldoon

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0950

Mr. Roy Bailey

Mr. Hugh Benevides

Mr. Roy Bailey

The Chair

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

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0955

Mr. Hugh Benevides

Mr. Paul Muldoon

Mrs. Magdalena Muir

Mrs. Karen Kraft Sloan

À

1000

Mr. Hugh Benevides

Mr. Paul Muldoon

Mrs. Karen Kraft Sloan

Mrs. Magdalena Muir

À

1005

The Chair

Mrs. Karen Redman

Mr. Paul Muldoon

Mrs. Karen Redman

Mrs. Magdalena Muir

The Chair

Mr. Hugh Benevides

À

1010

The Chair

Mr. Hugh Benevides

The Chair

Mr. Paul Muldoon

Mr. Hugh Benevides

À

1015

The Chair

Mr. Hugh Benevides

Mr. Paul Muldoon

The Chair

Mrs. Magdalena Muir

The Chair

Mrs. Magdalena Muir

The Chair

Mr. Hugh Benevides

The Chair

Mrs. Magdalena Muir

The Chair

À

1020

Mr. Paul Muldoon

The Chair

Mr. Paul Muldoon

The Chair

Mr. Roy Bailey

Mr. Hugh Benevides

Mr. Roy Bailey

Mr. Hugh Benevides

Mr. Roy Bailey

À

1025

Mr. Hugh Benevides

Mr. Roy Bailey

The Chair

Mrs. Magdalena Muir

The Chair

Mrs. Karen Kraft Sloan

Mr. Hugh Benevides

À

1030

Mrs. Karen Kraft Sloan

Mr. Paul Muldoon

À

1035

Mrs. Karen Kraft Sloan

Mrs. Magdalena Muir

The Chair

Mrs. Magdalena Muir

The Chair

Mrs. Karen Redman

Mrs. Magdalena Muir

Mrs. Karen Redman

Mrs. Magdalena Muir

The Chair

Mr. Hugh Benevides

À

1040

Mrs. Magdalena Muir

The Chair

Mr. Hugh Benevides

The Chair

Mr. Hugh Benevides

The Chair

Mr. Hugh Benevides

The Chair

Mr. Hugh Benevides

The Chair

À

1045

Mr. Hugh Benevides

The Chair

Mrs. Karen Kraft Sloan

Mrs. Magdalena Muir

Mrs. Karen Kraft Sloan

Mr. Paul Muldoon

À

1050

Mr. Hugh Benevides

Mrs. Karen Kraft Sloan

Mr. Hugh Benevides

À

1055

Mr. Paul Muldoon

Mr. Hugh Benevides

Mrs. Karen Kraft Sloan

Mr. Paul Muldoon

Mrs. Magdalena Muir

Mr. Hugh Benevides

Mrs. Karen Kraft Sloan

Mr. Hugh Benevides

Mrs. Karen Kraft Sloan

The Chair

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CANADA

Standing Committee on Environment and Sustainable Development

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NUMBER 070

l

1st SESSION

l

37th PARLIAMENT

---

EVIDENCE

Tuesday, May 7, 2002

[Recorded by Electronic Apparatus]

¿  (0910)  

[English]

    The Chair (Mr. Charles Caccia (Davenport, Lib.)): Good morning.

    Our clerk informs me that we will complete the hearing of witnesses by the end of the week immediately after we come back, so we have this week and one more week of witnesses.

    To this overcrowded room I would like to announce that it would be very helpful to begin to receive amendments, if any, so the clerk can begin to organize them, translate them, and so on. In view of the fact that many members are not here, perhaps a note should go out to all members inviting amendments or letting them know it's harvest time, so to say, so we can have an idea when we can start the clause-by-clause study, which, theoretically, could begin in the last week of May, if everybody is ready. From past experience, we all know there is an almost complete silence until there is an eruption of amendments beyond the usual deadline set by the chair. So I have given up setting deadlines, but I would like to send out a message to indicate that we are open for business to receive amendments.

    Our clerk has to travel with another committee to Saskatchewan, so we will sit with a replacement the week we come back. During that week, because there is a slot that has suddenly become free, you will receive a notice to hear somebody who is topical and environmentally quite important. We will hear one teacher from Trent University on the health impacts of electromagnetic fields, which is an issue that has been around for some time. Dr. Magda Havas will speak on that. The other witness will be Dr. Vernon Thomas from the University of Guelph on ingestion of lead by wildlife and the desirability of replacing lead pellets and lead sinkers in fishing tackle and all the rest, which is also presently the subject, as you know, of a private member's motion in the House by Madame Venne of the Bloc Québécois. So please make an effort to come on that Tuesday; an appropriate notice will go out.

    Madam Redman.

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

    I'm wondering if it's the committee's desire to have the minister appear. He would be agreeable, if the committee wanted him to come and comment on this. I'm looking at his travel schedule, and he is here the week of May 27, so on May 28, 29, or 30 he would be available to appear.

    The Chair: It's always possible. Let the minister's office make the arrangements with the clerk, and we'll conclude with him. He will be the last witness, any time.

    We have the Canadian Bar Association and the Canadian Environmental Law Association before us: Ms. Thomson, Ms. Muir, Mr. Muldoon, Mr. Benevides. Welcome to the committee. Who would like to go first?

    Mr. Paul Muldoon (Executive Director and Counsel, Canadian Environmental Law Association): Thank you, Mr. Chair. We're happy to go first.

    On behalf of the Canadian Environmental Law Association, I thank the committee for this opportunity to appear with our submissions on amendments to on Bill C-19. My name is Paul Muldoon. I'm the executive director of the Canadian Environmental Law Association. With me is Hugh Benevides, a researcher at the Canadian Environmental Law Association and the principal author of our submission.

    The Canadian Environmental Law Association was founded in 1970, and is a legal aid clinic. It takes on cases representing low-income and disadvantaged communities with environmental problems. It also has a law reform role advocating for better and more effective laws and policies to protect the environment and natural resources. The Canadian Environmental Law Association has a long history in both provincial and federal environmental assessment. Provincially, we advocated for a provincial act in the early 1970s, which came to fruition with the Ontario Environmental Protection Act, and we've been monitoring and participating in issues and policy reform of the federal act since that time. We also have litigated a number of cases dealing with the federal act. Most recently, we acted for the Friends of Red Hill Valley in the judicial review of the case concerning Red Hill Valley. I'll talk to that in a few minutes.

    We forwarded to this committee some time ago a 66-page submission that provides a number of general comments and issues dealing with the Canadian Environmental Assessment Act, along with a detailed analysis of Bill C-19. Our presentation today will only cover some of the salient points dealing with that. I want to make some general comments, and then I'll hand it over to my colleague to make some more specific comments.

    As a general notion, from my case experience and working with the public, I think it's fair to say there is a crisis in credibility with environmental assessment in Canada. I think the public is very confused. They are often given the impression that a project undergoes a thorough, fair, and environmentally comprehensive assessment, but we find that the process was used to legitimate unsustainable and environmentally harmful activities. As a result, they are both confused and frustrated with the process, but more importantly, with the result. Process is not good enough if the result is a project that is or becomes unsustainable.

    It is for this reason that we have made our submission to look at the nuances and specific amendments of Bill C-19, but we also feel compelled to look at broader themes. I'd like to outline five of those broader themes at this point. Our view is that the Canadian Environmental Assessment Act is fundamentally flawed. Not only are the amendments in Bill C-19 needed, but there must be broader changes, both in the act's structure and in approach. The recommendations we outline in part A deal with the more structural changes needed, and part B, particularly the table, outlines a clause-by-clause analysis of Bill C-19. The five general themes I'd like to briefly touch upon will be reviewed by my colleague.

    First is the central test of the act. As you know, the act has a number of laudable purposes. It's there to promote sustainable development and public participation in environmental decision-making. But the real guts of it state that a project may be approved by a responsible authority with any mitigation measures, and significant environmental effects that cannot be justified are also a central test. In our view, the act thereby has a problem, since projects may go through that have significant environmental effects, have some mitigation measures, but do not lead to appropriate, environmentally benign projects. At the end of the day, what we see is a disconnection between the central test in the act and the purposes. The act, in our view, should be amended to the effect that the project must make an overall positive contribution to the environment. I realize Professor Bob Gibson has made a number of submissions on this very point, and we certainly would like to endorse those submissions, because they're so crucial.

¿  (0915)  

    The Canadian Environmental Law Association has been long critical on something that goes to the root of the act, the self-assessment process. We have government agencies assessing their own projects. We realize the Commissioner of Environment and Sustainable Development has also been very critical of this aspect.We've been saying it for some 20 years, and we feel compelled to say it again: the self-assessment process must be replaced by a binding process administered by independent central agencies with the power to compel compliance with the act.

    The third point deals with public participation. The purpose of the act calls for the facilitation of public involvement in the act, but in fact and in practice, this has not been the case. We propose that the public be given the opportunity for notice and comment at every stage of the environmental assessment. Our specific wording proposals are on pages 64 to 66 of our submission. Through reviewing the transcripts of other witnesses, we recognize that the preponderance of evidence you've heard so far supports greater participation in the process, and we'd simply like to endorse that.

    Our fourth point deals with periodic review. The Canadian Environmental Law Association has been before this committee a number of times in the context of parliamentary reviews. We think it is a crucial element in a democratic system that periodically, we suggest every five years, important national laws like the Canadian Environmental Assessment Act are reviewed by a committee like yours. We would rigorously endorse the view that this act be reviewed every five years.

    The final point I'd like to make before handing it over to my colleague deals with one case we're involved with, the Red Hill case. If you recall, this is a Court of Appeal case that dealt with the construction of an expressway through the Red Hill Valley. The court stated that the environmental assessment did not have to be done, because of the interpretation of subsection 74(4), which dealt with whether or not construction was initiated before 1984, and also that irrevocable decisions by the proponent were undertaken, and therefore the act was not applicable. We are strongly of the view that these sections must be amended in order to ensure the act is not only clear and certain, but really leads to the purposes you'd like. In our view, there's nothing in Bill C-19 that addresses the problem addressed by the court dealing with this case, and this is a real live issue for both the public and projects that are out there.

    I'd like to end with a broader comment on our profound disappointment that the federal government did not have the backbone to defend its own national law by appealing this decision in the Supreme Court and clarifying a gap in this law. The Canadian Environmental Assessment Act did not help to save Red Hill Valley, but more importantly, the federal government failed the Canadian Environmental Assessment Act by not appealing and defending its own national law.

    I now leave my comments in favour of my colleague.

¿  (0920)  

    The Chair: On the superficial reasons given by the court in arriving at its decision, we had quite a thorough meeting on that subject as well. I agree with you, it should have been appealed, and we'll have to revisit this issue. But today we have to deal with Bill C-19.

    Mr. Benevides, you have the floor, and you can give us the benefit of your comments.

    Mr. Hugh Benevides (Researcher, Canadian Environmental Law Association): Thank you, Mr. Chair, and thanks, Paul.

    We can't possibly cover all the items in the submission we provided, but it was intended for the use of members during this process. That's why we tried to be as comprehensive as possible, including the clause-by-clause consideration. We invite your review of that submission and any questions that may arise from it, either today or any time. We'd be happy to talk to members or to the committee about it.

    The first theme I want to talk on, which I think you've heard about from other witnesses, is the need for reduced discretion in certain areas in the existing act. The first area in that larger theme is the scope of project, section 15. A number of witnesses have talked about the problem with scope, and in fact, Martha Kostuch of Friends of the Oldman River tabled an amendment here on April 11 that would ensure that the exercise of discretion in determining the scope of project is replaced by a mandatory decision. That amendment is intended to make mandatory what is currently guidance material provided in the agency's responsible authorities guide. It would clarify the scoping process, and would better ensure public input into scoping decisions. As Martha indicated, it would make a legal requirement of the interdependence and linkage tests that are in that guide and are also used in the U.S..

    Second under discretion is the need to make the fundamental considerations in any environmental assessment, the need for, the purpose of, the alternatives to and alternative means of carrying out a project, mandatory; they are currently discretionary in the act, and I'm referring to paragraph 16(1)(e) in the existing act.

    Third, you've also heard about the issue of discretionary public participation in screenings, subsection 18(3). The power to allow public participation in screenings is rarely, if ever, used, and the subsection provides for regulations to be made to give guidance in that area. However, those regulations have never been issued, and the matter has come up in this committee several times. Our mandatory notice and comment recommendations, which Paul referred to in the last three pages of our not-too-brief brief, would give the public an opportunity at least to participate in the assessment, combined with mandatory public participation.

    I'll speak also about class environmental assessments, the appropriate use of which could lessen the burden on responsible authorities to assess every park bench or whatever the issue is.

    Fourth is the discretion in section 8 to bump up to a review panel either a comprehensive study or a screening. As you've heard, there are many cases that have serious environmental effects, and yet we know of only one example of a bump-up from a screening-level environmental assessment to a panel, and that's the Red Hill case to which Paul referred. There are other cases where that hasn't happened as well.

    The fifth area concerns transboundary effects, sections 46 through 48 of the act. Bill C-19 proposes small improvements to these sections. We would, in addition to those changes, remove the discretionary language in these sections, changing “may” to “shall” and deleting the words “the minister is of the opinion that”. To CELA, this is a most obvious area of federal jurisdiction, where you have the possibility of transboundary environmental effects in another province or outside federal lands where a project is located. In recent months the minister has claimed that his hands are tied in cases involving power plants in Ontario and in Alberta. To us, it's a clear spot for that discretion to be exercised, and in fact, the discretion should be removed, because it's a clear federal responsibility, because it's not an area where provinces and other jurisdictions can act.

¿  (0925)  

    The next theme, briefly, is strategic environmental assessment. You've heard, again, on this issue from several witnesses, including Dr. Gibson. I would ask, in response to the exchange Dr. Gibson had here, why wait five more years for the next--if we get one--five-year review? Let's start working on strategic environmental assessment now. Our brief proposes language for the act, and there are infinite numbers--and members of the committee have asked questions of witnesses already--where this would be a huge benefit. I take as a striking example, I believe from last week, David Coon from the Conservation Council talking about ocean draggers. Imagine what we could do for that problem if we had a policy assessment. Dragging wouldn't happen if we were able to eliminate that activity through a thorough environmental assessment at the strategic level.

    Then, very quickly, there are a number of issues that arise from within Bill C-19. Our colleagues have gone over these, so I'll refer to them briefly, just to emphasize how seriously we view them. In most cases they're things we'd like to see changed from the proposed bill.

    First, the proposed section 55 would replace the paper registry requirement that exists now with an electronic registry on the Internet. So if you want to know about a project in your neighbourhood and you don't have the Internet, you'll have to take other measures, but it's not provided there as a right. It would replace a broad list of items that captures, potentially, all the important documents in an assessment with a finite list of mostly process-oriented items, and that simply should not happen. It would eliminate the requirement that public access be convenient, and the word convenient is in the existing section 55. It would be eliminated from the proposed section 55. Our ideal proposal for an electronic registry would be, first, that it be combined with the obligations in existing section 55. So you would take the existing obligations and include the better aspects of the proposed section 55, with the result that you'd have a paper registry and an electronic registry in respect of every project, and all documents relevant to the assessment would be available in both places.

    I know the government has an issue dealing with the Official Languages Act, which we believe is not a serious one, and I would strongly urge the committee to enquire into the nature of that problem, because we don't believe it is a problem. I'd be happy to respond to that further.

    We believe these recommendations regarding the registry would be more likely to result in meeting the purpose in paragraph 4(d), namely, that the act ensure an opportunity for public participation in the environmental assessment process.

    Second, class screenings offer a huge potential for avoiding repetitious aspects when conducting environmental assessments of similar projects. The existing class environmental assessment mechanism should be used more fully before adding what's proposed as a replacement class screening process, which is extremely heavy-handed compared to what could be done with the model approach. Particularly, replacement class screenings as proposed would remove the obligation to consider cumulative effects and local circumstances affecting a proposed project. I'm not sure what considerations are more fundamental in environmental assessment.

    Third, the environmental assessment track decision in section 21.1 proposed in Bill C-19 would allow the responsible authority to make an irrevocable decision whether to send the assessment to a review panel from a comprehensive study. This interferes with the flexibility to order a review panel at any time during the assessment when information comes to light about the effects of a project. I just observe, Mr. Chair, that this is the one discretionary power I'm aware of Bill C-19 proposes to remove. An elegantly simple alternative proposed by our colleagues during consideration of this bill is the transformation of the comprehensive study list into a review panel list.That would be more likely, we believe, to achieve the certainty of process that is so desired by proponents.

¿  (0930)  

    Finally, proposed section 11.1 in Bill C-19 is a timid first step towards ensuring compliance with the act. We recommend deleting the words “and that would alter the environment.” The minister should be allowed to make an order preventing a proponent from proceeding with any step that, if taken, tended to sidestep the environmental assessment or to render the environmental assessment redundant by allowing it to proceed before the assessment is complete. We are unconvinced that ministers will use the new power proposed in section 11. At a minimum, we recommend that the agency be independent and at arms length or the Minister of the Environment be given this power. As I just said, we would recommend a truly independent agency--this is really the most fundamental thing we would propose--allowing it to enforce compliance with the act within government. The current orientation of the act makes true compliance improbable.

    In closing, I should say that we generally support the submissions of our colleagues from the CEN environmental planning and assessment caucus, from whom you've heard already, and from other public interest environmental law groups and environmental law centres. As some witnesses have said, Bill C-19 really is a tinkering process around the edges of the act. As Paul also emphasized, we believe the act needs much more fundamental changes.

    We welcome questions on any aspect of our comments today or on any aspect of our written submission.

    Thank you, Mr. Chair.

¿  (0935)  

    The Chair: Thank you, Mr. Benevides.

    We will now proceed with the Bar Association.

    Mrs. Tamra Thomson (Director, Legislation and Law Reform, Canadian Bar Association): Thank you, Mr. Chair.

    On behalf of the National Environmental Law Section of the Canadian Bar Association, we are very pleased to appear before the committee today on the amendments to the Canadian Environmental Assessment Act. I am Tamra Thomson, the director of Legislation and Law Reform with the Canadian Bar Association. With me is Magdalena Muir, who is a long-standing member of the national environmental law section.

    The Canadian Bar Association is a national organization representing over 37,000 jurists across the country. Our primary objectives include improvement of the law and improvement in the administration of justice. We have a long history of commenting on federal environmental laws from the national section's point of view, and our branch sections are very active in commenting on provincial legislation. It is through this “improvement of the law” rubric that we give you our comments today.

    Before turning it over to Ms. Muir to outline the substantive amendments we are recommending, I would like to make a comment on the paper you have before you from us. First, there is submission specifically addressing the amendments in Bill C-19. We have also provided you with a submission that you saw a couple of years ago on the five-year review of the Environmental Assessment Act. We thought those recommendations would be helpful in putting some of the Bill C-19 matters into perspective.

    With that, I will hand it over to Ms. Muir.

    Mrs. Magdalena Muir (Member, National Environmental Law Section, Canadian Bar Association): Thank you, Tamra. Good morning, Mr. Chair, members of the committee.

    Today I will present brief remarks on Bill C-19. There are a number of matters I'm going to refer to through the different materials. The first would be the integrity of the national environmental assessment process. The second would be some aspects of the preamble. The third would be scoping timelines and certainty. The fourth would be mechanics and monitoring. The fifth would be public participation, the registry, and access to information. And I'd also like to refer to our list of recommendations. These will be brief remarks. As Tamra has mentioned, I'm going to be speaking to the April 2002 submission on Bill C-19, and I'm also going to referentially incorporate the submission of April 2000 . I'll certainly be available to answer questions at the committee's convenience afterwards.

    One of the aspects, as in the comments of our colleagues at CELA, is the overall nature of the environmental assessment process under the existing act and as amended by Bill C-19. Highlighting some comments on page 2 of the April 2002 submission, there is a need to change the screening process if one retains the existing framework of both screening and review. That's evidenced by the very small number of assessments that actually go to full review.

    Similarly, there's a concern with respect to participation in the screening process. If the existing process of screening and review is maintained, there's a necessity within the screening process itself to incorporate greater participation and information. That's referring to comments now on page 3 of the submission.

    There's also the nature and the treatment of government documents and disclosure of these and other documents. I'm referring now to comments on page 4 and 5 of the submission.

    I'd like to draw the committee's attention to the nature of the preamble and the need for greater certainty in that preamble, as well as the nature of compliance with international conventions. I should highlight that the CBA recently, as a national association, and not only as the national environmental law section, supported a resolution dealing with the appropriate implementation of international environmental conventions, both at the federal and provincial level of government. We see it as a very important objective.

    Other aspects that are very important and referred to somewhat in the preamble deal with the whole nature of environmental quality and the links between this and significant negative environmental effects, and overall, the development and the implementation of sustainable development.

    Looking at comments on page 6 and onwards dealing with the whole nature of clarifying the intent of paragraph 4(c) and the whole nature of the explicit criteria of environmentally sustainable development, one matter that has come up on this in past submissions is the whole nature of the inclusion of federal policy in environmental assessment, with respect both to the long-term environmental effects and the short-term environmental effects.

    In the April 2002 submission and in the previous submission--I'm referring to page 8 now of the April 2002 submission--there are quite extensive comments on scoping timelines and certainty. One comment we would make is that many of the recommendations contained in our submission on the five-year review are not implemented. I can speak to these if there are any specific questions, but I'd just like to highlight the nature and the extent of them.

    Part 4 of our overall submission addresses the nature of mechanics and monitoring, on page 15 and onwards, dealing with the overall integrity of the process. Some concerns I'd like to highlight here would be the lack of direction on the process of assessment, the nature and treatment of cumulative effects, and a key lack of specific provisions to deal with offences. We would look to something such as the Canadian Environmental Protection Act as a model for enforcing the different processes within the Canadian Environmental Assessment Act.

¿  (0940)  

    I refer now to part 5 of the submission, on page 16. I'd like really to speak to issues that have been of key concern in many of the Canadian Bar Association national environmental law section submissions, involving the whole nature of public participation, the use of electronic and other forms of registries of documents, and access to information. We have had national resolutions passed by the Canadian Bar Association that support full public participation and, as I mentioned earlier, compliance with international obligations, such as the Aarhus convention.

    If we are to consider an electronic registry, there's a necessity to have very complete information on both screening assessment and technical reports. I have already referred to the nature of the screening process and how most things go to public review. In that case, the nature of screening and participation in screening and having the appropriate information are very important, as is having sufficient information in those instances when they go to public review, along with technical reports. We do understand that there are some concerns with respect to translation requirements, so we suggest that it would be very important to provide summaries, and then have the ability to readily secure the complete documents upon request.

    I'd like to conclude by referring to the summary of recommendations. I don't want to paraphrase all the different ones here or repeat them, but we are certainly willing to speak to all of these. These are our recommendations for Bill C-19.

    The only other thing I'd refer to is appendix A, containing the different resolutions that have been passed by the Canadian Bar Association as a whole, which provide the context in which the national environmental law section makes its submissions.

    The Chair: Thank you, Ms. Muir.

    Before opening it up for questions, let me say that both the Bar Association and CELA have brought here to the table an impressive intellectual capital for the committee and the officials. You are the last witnesses on our list for the purpose of giving us legal advice. The remaining witnesses are people who have expert knowledge in other fields. Since we have in this room officials from the agency, I would like to cordially invite them to make the best possible use of the submissions made today, the recommended amendments, since there is time to do that, and to do their best to make this process as meaningful as possible by recommending, as an agency, those changes the agency can accept and the minister can accept, so that this exercise is not forgotten by the time we adjourn this meeting, but will somehow find positive repercussions when we start the clause-by-clause. I hope the officials will take this invitation to heart and report it to their colleagues in the agency.

    Mr. Bailey, followed by Madam Kraft Sloan.

¿  (0945)  

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

    Thank you for appearing. You give us a different perspective towards the bill. I appreciated some of your comments. For instance, I believe in the earlier part you wrote that environment must be more broadly defined. I suggest to you that you'd have to be a master craftsman with words to do that, because environment means so many things to so many different people. However, I do agree that what constitutes environment should be defined.

    Mr. Muldoon, I caught very quickly your phrases “a crisis in credibility” and “confused and frustrated”. I think this is an accurate definition of what you find when a project is about to be announced or the newspapers take a wing-ding at a particular project, the locals are contacted, and so on. Often, the definition, the outcome, and the purpose are quite contrary to what's actually taking place. From a different background--I'm not an environmentalist per se--it seems to me there's something lacking that would get us away from this confusion and frustration. It seems we--I mean the environmentalists, the act, and the promoters--should be first on the scene with the information in a process of educating the people. Don't let somebody get the jump on you, because the more they get the jump on you, the more confusion you have to follow. I'd just like you to comment on that.

    Mr. Paul Muldoon: Thank you.

    A lot of our experience derives from representing citizens' groups that are in a situation such as you've described, where they're all of a sudden notified that something's happening and they're trying to figure out what the process is and how to become involved. One thing I recognize is that the power of the public and the understanding of the public are underestimated, if they're given fair access to the process, given the information, and given the opportunity to truly participate. I agree that if those characteristics are part of the process legitimately, we'll get a more predictable and a fairer process.

    Mr. Roy Bailey: What did you mean, sir--if I heard this correctly--in saying Parliament must have more backbone?

    Mr. Paul Muldoon: I made a specific comment, but I can generalize it. What we're seeing is, I think, more litigation dealing with environmental issues, particularly interpretation of the Canadian Environmental Assessment Act. Even though I made a specific comment with respect to Red Hill, I think the broader point is that my plea to you is to make the act clear and better, so the courts do not have to arbitrate on how to interpret the act. There's a myth that environmentalists like going to court. In fact, for many members of the public it's too expensive. In my view, the makers of the law are the ones who ought to clarify it, rather than the courts, because it's their intention that reflects the public interest and public expectations.

    My experience is that at times the government does not want to do that. In fact, they leave it to the courts. Over the last few months you've heard a lot of comments from public interest groups about what's wrong with the act. We're making a plea that you act upon those recommendations and fill the gaps we've identified for you, rather than having us go to court to seek clarification.

¿  (0950)  

    Mr. Roy Bailey: I want to turn to Mr. Benevides. Did I hear you say there is often a conflict between the federal and provincial counterparts in environment, and one backs away from the other, that in too many cases the federal people will back away from a provincial project, that you do not always see the same guidelines of the act being applied?

    Mr. Hugh Benevides: I didn't say that, but I will respond to it, not surprisingly. I spoke about the provisions in the act dealing with transboundary effects, and as we all know in this room, projects touching on the environment are not provincial, they're not federal, they have an impact on the environment, period. The example I'll give is power plants with transboundary impacts in another province or country. This committee last December discussed the case in Ontario, but there are two others in Alberta that would affect your province, as you know. There is a possibility for interested parties, for example, the Government of Saskatchewan or neighbouring states, to petition the minister to conduct a federal environmental assessment of impacts. In both of those cases, the Nanticoke station in southern Ontario and the EPCOR and TransAlta plants near Edmonton, the federal government said the provisions of the act prevented it from doing that. Those are not provincial projects, even on a mild definition, because of their impacts in another jurisdiction, so that clearly, from a constitutional, legal, and practical standpoint, is a role for the government.

    If I could respond very briefly to your earlier questions about what Paul referred to as crises in credibility, confusion, frustration, and just go back to the act, I would say the structure of CEAA, as many commentators over the years have said, is Byzantine, and the way the act is administered is extremely confusing and frustrating as well. I look at, for example, Mr. Lavoie, who was here some days ago talking about the impossibility of getting documentation from responsible authorities, for various reasons to do with the way the federal government is structured. There's the silo mentality, and what we propose is the kind of cross-cutting responsibility for environmental assessment that economic central agencies have elsewhere in government. It's a pretty radical thing to talk about around here, but it's the only way, in my view, to reach the problems where you have structural and operational ways of dealing with assessment that are not dealing with them.

    Mr. Roy Bailey: Thank you.

    I'll get to more in the next round.

    The Chair: Thank you, Mr. Bailey.

    We have Madam Kraft Sloan, and then the chair, unless someone else wishes to ask something.

    Mrs. Karen Kraft Sloan (York North, Lib.): Thank you, Mr. Chairman.

    In the CELA brief, on page 6, you have identified the concern that practitioners have with the lack of clarity and the use of terms like construction, operation, decommissioning, abandonment, etc. So I have actually two questions for you.

    Could you elaborate on the problems of having so many critical terms undefined? I think you already touched on this when you said people are finding themselves in court because of the problems in interpretation of the act, but I'm wondering if there's anything else you or the witnesses from the Canadian Bar Association would like to add on this lack of clarity in the way terms are being defined or not being defined.

    My second question has to do with “significant effect”. Can you tell me what a significant effect is, whether the issue of lack of clarity exists for this term, and what kind of problem that creates with regard to environmental assessments and the way proponents and the public have to deal with this lack of clarity?

¿  (0955)  

    Mr. Hugh Benevides: I'll take the first question. Of course, our thinking on these kinds of issues is evolutionary, if you will--ideally, not that slow, but evolutionary. My thinking at this point is that the section 15 amendment I referred to that Ms. Kostuch tabled would, to a large extent, solve those kinds of problems. If you connect undertakings that are linked, one function of an undertaking can't proceed without the other, then you don't have to worry about those definitions, which, in any case, are everyday language. That's the evolution of the thinking on that today.

    Mr. Paul Muldoon: I think the question of significant environmental effect is really the linchpin of the act. The purposes talk about the promotion of sustainable development and the definitions refer to the nature of an environmental effect, and then the responsible authority has certain obligations, but total discretion when the effect is significant. Where does this leave the public in understanding the purpose of the act and how the central discretionary decision-making function of responsible authorities connects to what the act will accomplish?

    I don't have an answer for you, but you've hit the issue on the head, with the very frustration we meet on a day-to-day basis in administering the act.

    Mrs. Magdalena Muir: I'd like to refer to some aspects where we saw problems in definitions. First, we referred to the preamble and the lack of certainty in how it's drafted. We also highlighted the whole nature of the definition of environmental quality, the relationship between that phrase and significant adverse environmental effects and the need for some degree of definition in that, and a necessity that environment be broadly defined, in conjunction with historical reports we've put together, going as far back as 1990. The nature of the definitions is a problematic aspect of the act, particularly given that we're dealing with a process designed to bring environmental considerations into decision-making, resulting in a recommendation. It should be clear and it should feed into that process.

    Mrs. Karen Kraft Sloan: The witnesses from the Canadian Environmental Law Association put forward the idea that the act should be amended so that whatever project is going ahead makes an overall improvement to the environment. When I hear this, it sounds like a radical suggestion, to be quite honest with you. I thought, this is an incredibly radical idea, and then I thought, well, why shouldn't we be doing these things, isn't that what we're here for, isn't that what the purpose of government is? The bottom line for the private sector is measured in financial determinants, and the bottom line for government should be the health and well-being of its people. Also, we get into what Parks Canada has been doing, no-net environmental laws or something. We get into a bit of mumbo-jumbo there, but I think they're working towards the idea that if a project is to go ahead, there's got to be some kind of environmental benefit.

    I'm wondering if you could expand on this idea. Maybe you could be your own devil's advocate and talk about some of the pros and cons of advocating this position--the Canadian Bar Association as well.

À  (1000)  

    Mr. Hugh Benevides: Dr. Gibson, with whom I talk on these matters all the time, because he's been able to think about them for a lot longer than I have, made a strong point that these matters are not easy, you have to struggle with them, but it is doable. The gesture of proclaiming the act was tied very closely to a number of other commitments the government made about how it would promote sustainable development and make it happen, for example, in A Guide to Green Government in 1995; environmental assessment was mentioned as a linchpin. I won't try to go into the details of how you do that, but certainly, there are examples in other parts of the world, and indeed within Canada, where that is done. The concern we have is that change has been not that dramatic. In fact, there's a lot more description of how we want to do things differently, but not a lot of evidence of that happening.

    Mr. Paul Muldoon: You said this is a radical thing, and unfortunately, or fortunately, it's not our idea. We mentioned that Professor Gibson has written a lot about it, but this has actually been employed. This is the test that was used in review panels on both Voisey's Bay and Red Hill. They both suggested that the appropriate test for approval is whether or not there is some net gain from a project, rather than minimal or justified damage. We looked at those review panel terms of reference and asked if this was an appropriate way to interpret the act and an appropriate way to apply the act. We looked not only at our own history on this issue, but at the literature and the practice. The practice shows, I think, that from a review panel point of view, that's the direction it's going. What we're asking for is a confirmation that this is an appropriate interpretation.

    Mrs. Karen Kraft Sloan: I think the only reason I suggested that it was radical is that we're falling so grossly behind in so many different areas in the environmental file. It is absolutely appalling what goes on. You think that if you get a few crumbs thrown at you, you've made an advance on a particular environmental file. So suggesting that we should be ensuring that there are positive environmental effects is exactly what we should be doing. Yet, in light of the other things that go on around this place, and in light of the kinds of issues we have to deal with on a regular basis in the environmental portfolio, it seems like a wild and crazy notion.

    Mrs. Magdalena Muir: Could I just comment as well on that question? The first point I would make is that we're in a situation where Canada, with international principles and conventions, has adhered to things such as sustainable development, which is partly what you're referring to, and also the precautionary principle. You mentioned the no net loss idea of Parks Canada. We also have things with Fisheries Canada on no net loss of fisheries habitat with developments, which means, say, for the BHP diamond mine, where you end up taking away a lake, you would create new fisheries habitat.

    In our submission we tried to address that, and I am going to refer to page 6, where we talk about the necessity to amend paragraph 4(b) and state that one of the purposes of the act is to “encourage responsible authorities to ensure that development which they promote is environmentally sustainable, and thereby achieve or maintain a healthy environment and a healthy economy.” This recognizes both matters, but provides an equal weight to environment, also recognizing that a healthy environment is part of sustainable development.

À  (1005)  

    The Chair: Thank you.

    Madam Redman, please.

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

    My first question is to Mr. Muldoon. Many of the proposals in Bill C-19 are aimed at improving the quality of assessments and opportunities for public participation. I can point to some of them, such as the more consistent application of the act as a result of the federal environmental assessment coordinator provisions or the mandatory follow-up for larger projects, the authority for prohibition orders to stop projects before the assessment is complete, mandatory notice on the new electronic registry, and participation funding. The government has committed $51.2 million in new funding over the next five years to implement this bill. Overall, do you see these changes in new funding as an improvement over what currently exists?

    Mr. Paul Muldoon: Certainly. Our submission and comments should not be interpreted as limiting or criticizing some positive aspects of Bill C-19. That is not our intention. We look at it as a genuine opportunity to go further, and the recommendations we make on pages 64 to 66 take it a few steps further than what is being proposed in Bill C-19. The kinds of amendments in Bill C-19 you refer to are steps in the right direction, and we certainly would want those to be furthered.

    Mrs. Karen Redman: Ms. Muir, would you like to comment?

    Mrs. Magdalena Muir: You mentioned a couple of matters, and maybe those would be good to highlight in the context of your overall question. We do support positive changes, but our comments go to whether those changes are sufficient. You mentioned the prohibition orders. We would argue that there should be a broader range of offences in there, that the prohibition order is not sufficient. With respect to the electronic registry, we would argue that it should have more disclosure of technical documents, that it should include internal government documents, if they're relevant, and that it should address to a greater extent the screening process, given that most matters only go to screening. So our comments are not against the positive changes, but suggest that they do not go far enough for an effective process.

    The Chair: Thank you.

    Before starting the second round, there are a couple of questions from here. I'm intrigued by your serious observations on compliance and enforcement, particularly at the bottom of page 25, where you make a reference to proposed subsection 11.1(5), which “would prevent a minister from making a subsequent order prohibiting the same act or thing. This limitation has no legal and certainly no environmental justification, and CELA recommends that subsection 5 should therefore be deleted.” Are you basing this recommendation on a particular case, or is it a conclusion that you arrive at in general terms?

    The second question is on the following paragraph, on page 26: “CELA recommends that the power to apply for an injunction of this nature should be made available to any person, not just the Attorney General.” Again, what prompted you to make this recommendation? Was it a specific case or a general philosophical reason?

    Mr. Hugh Benevides: I can answer the first one, Mr. Chair. Section 11.1 is proposed by Bill C-19, so it's not because of any experience that we comment on that section, because it's not in the act yet. But to take a practical example, if, for some reason, a project is commenced before the assessment is complete, a minister appropriately issues a stop order; the way the mechanism works, if the cabinet does not approve that order before 14 days is up, the order expires. That could be one example of why an order is no longer in effect. If the proponent decides to continue with the action, subsection 11.1(5) would prevent the minister from reissuing what would be, in effect, the same stop order. That's why we say, what's the legal reason for that? The minister's colleagues might want the project to go ahead for some reason, but because of that subsection, he would be prevented from stopping it. There doesn't seem to be a reason for that. If it's going to harm the environment or if it's going to get in the way and render redundant the EA process, that should be there and it should be available to him on a repeated basis, if the proponent is insisting on trying to continue.

À  (1010)  

    The Chair: Or if that activity takes place in the middle of summer and cabinet may not be meeting within 14 days.

    Mr. Hugh Benevides: That's right, of course. If it expires without cabinet making a determination, that's correct.

    The Chair: And on the other point?

    Mr. Paul Muldoon: We recognize that the government has the primary authority to defend and protect its interest and the public interest, and therefore we certainly support the notion of the government having the ability to go to court to seek an injunction preventing action contrary to law. But there are many interpretations of what's in the public interest. We don't think it's large leap to give the same power to citizens' groups, the public, to go to court to seek an injunction where the government, for whatever reason, whether it be interpretation of the facts or law, decides not to seek an injunction. If a proponent is in fact about to do something to harm the environment and the local group or some other interest really believes it is contrary to law, we think a court, in that context, is the perfect body to adjudicate on whether or not that's appropriate. Right now the act does not allow us to do that, and if it does, it's very onerous. So we think a recognition allowing any person to seek an injunction is appropriate.

    Some may say, won't that turn into a large number of court cases? I think you've heard other submissions about the trend of the federal court, in particular, awarding adverse costs against citizens' groups. I think the cost itself is a very large chill on frivolous or vexatious litigation. So it would only occur, I think, in rare cases, but also in the most genuinely important cases.

    So I think legislative recognition allowing the public to seek an injunction in those cases is not a large leap, but an appropriate one.

    Mr. Hugh Benevides: I think it's really important, Mr. Chair, also to make a general comment on enforcement, because it's mentioned a great deal in the context of this act. I was puzzled in previous years hearing on a number of occasions the president of the Environmental Assessment Agency talking about enforcement of the act, because there are really two things. One is the section you specifically asked about, 11.1, which generally would be used against a proponent to enforce a stop order or whatever. The other element of enforcement in environmental assessment, which is really contrary to the entire structure of the current act, and that's what we're getting at, is the question of the mechanism for the government to enforce the act against itself on, for example, the different occasions our colleagues have referred to in past weeks when the act is not being administered correctly. So it's enforcement in a different way. It's about the processes not being implemented . How, one asks oneself, can the act be enforced within the family, so to speak? That's why we propose that arm's-length independence, so that if we take environmental assessment seriously, there's a body within the government that actually has the power to do that. That's not the case now, and that's the more important arm, I would suggest, of enforcement, when we use that term.

À  (1015)  

    The Chair: Does what you are proposing exist in legislation in other countries, or would it be a unique feature?

    Mr. Hugh Benevides: I don't know an international instance, but we talked early in our brief about the hallmarks of independence, and at different points in various provinces, for example, in a stronger environmental legislation day in Ontario, there was greater independence on the part of agencies to implement the act, because they were indeed arm's-length. I know there are examples to point out, but I'm sorry, I can't point to any.

    Mr. Paul Muldoon: On the question of whether or not the public can use injunctive orders and other types of judicial avenues, the U.S. legislation used that quite a bit. In the National Environmental Policy Act, in fact, the main enforcement mechanism is through a judicial review procedure fashioned by the courts to allow the public to enforce it. I'm not saying we should copy the United States, but other jurisdictions recognize the importance of having mechanisms other than government oversight through the courts in citizen actions.

    The Chair: I would like to ask Ms. Thomson or Ms. Muir, in relation to their recommendation 8, whether they would like to offer this committee a definition of significance.

    Mrs. Magdalena Muir: We'd be very willing to consider that and to respond within a reasonable period of time, but I would prefer to consult my colleagues and come back with a written response to that.

    The Chair: In relation to recommendation 3, where you say the preamble should be clarified and improved, can you elaborate on how you would like to do that? I know the preamble is an earth-shaking part of any legislation, but nevertheless, you took the trouble to wrestle with it.

    Mrs. Magdalena Muir: I'm just thinking about an appropriate way to respond. I can refer to comments we already have on page 4 and 5 that talk about some aspects of it. Would there be some specific aspects in the preamble you would be looking for comments or clarification on?

    The Chair: I'm asking you whether you have any specific aspect in mind.

    Mr. Hugh Benevides: If I may, I don't want to make it sound as if we're beating up on the agency particularly, but I know they've done, or at least commissioned, work on this topic, so it might be interesting to hear from them. For example, Dr. Gibson, to evoke his name again, has done work on the issue of significance determination.

    The Chair: Thank you.

    Mrs. Magdalena Muir: I'd like to refer to the suggestions we've already made for clarifications in the actual submission. If you don't mind, I'll just walk through some of the different ones we refer to in there.

    We did refer to the definition of environmental quality and significant effects, but we actually have some specific clarifications contained within our recommendation, the one dealing with the removal of a qualification in paragraph 4(c), on page 6, and the amendment to paragraph 4(b), also on page 6. Those two are the key ones we would refer to in this respect.

    The Chair: Thank you.

    Mr. Muldoon, in your opening remarks you did refer to the public consultation. Would you like to tell this committee to what extent the content that emerged during the public consultations is reflected in the content of the bill?

À  (1020)  

    Mr. Paul Muldoon: I just want to understand the question. Is the content of the consultation reflected in the environmental assessment?

    The Chair: Yes, in Bill C-19. And if so, to what extent?

    Mr. Paul Muldoon: I can only address that from my own experience, and I'll ask my colleague to elaborate. My understanding is that much of the consultation did raise a number of the broader themes and issues that we brought, and what resulted was more of a tinkering with the bill. That's why we felt compelled to remind this committee of the broader themes and concerns, because of our feeling that Bill C-19 did not reflect the kinds of concerns the public at large has over the Canadian Environmental Assessment Act.

    On the last question about the preamble and the purposes, if you recall, this committee spent a lot of time on the Canadian Environmental Protection Act, and I think there are two things this committee worked on that were very positive. One was a declaration, in addition to the preamble, of government policy with respect to the interpretation and application of that act. There's no such declaration in the Canadian Environmental Assessment Act. Second, section 2 of the Canadian Environmental Protection Act has a long list of administrative duties of the government . These duties are not a preamble, but they are the mandatory duties of government to guide decision-makers in applying and implementing the act. I think those two legislative mechanisms are very important and very useful, and they are not found in the Canadian Environmental Assessment Act. For your overall consideration, while we're on the topic, guides outlining a set of administrative duties for the interpretation and implementation of the act are a very good vehicle, and I just would remind how useful that was for the Canadian Environmental Protection Act.

    The Chair: Thank you.

    Second round, Mr. Bailey.

    Mr. Roy Bailey: Thank you, Mr. Chair.

    It seems to me I hear you saying the bill, without the recommendations you have submitted for amendments, lacks teeth, and also probably lacks the capacity of an act to be truly an act you could put into practice. There are too many loopholes without these amendments. Is that a fair observation from a layman?

    Mr. Hugh Benevides: I wouldn't call them loopholes. I did refer to the complexity of the act, which some observers comment on, but it's really, in many cases, failure to implement various aspects of the act that's the real issue.

    Mr. Roy Bailey: Mr. colleague Karen mentioned the hodgepodge and what appears to be a lack of forthright procedures dealing with the act, somewhat backing off, and so on. Is that the fault of the act's being poorly written, or would these amendments make it at least appear to be more concrete and to have a greater ability to be applied as an act with some strong measures?

    Mr. Hugh Benevides: I think it's a combination. First, what are the objectives, what are the requirements of the act? Are they, as Paul pointed out, to ensure that undertakings that we assess actually contribute to environmental quality, and do we want to go towards sustainability? There are mixed signals within the act about where we're trying to go. Second, there is the issue of commitment to achieving those goals, and that's why I point out, for example, A Guide to Green Government from 1995 and other commitments of the government that aren't square with reality.

    Mr. Roy Bailey: We've already discussed what I consider to be some very positive things about not just the written registry, but the on-line version. Giving thought to that, I can see many positive things myself. Do you see anything negative about going that way? Is there anything negative about doing that? I just wondered if you'd given any consideration to that.

À  (1025)  

    Mr. Hugh Benevides: I think it's a positive development, subject to the comments I made about retaining the paper registries. I do know that some of my colleagues who are really in the grassroots environmental movement in various places across the country don't have access. Documents you want to print are voluminous. There's nothing like going to the library, or Martha Kostuch's kitchen, and reading the registry documents, if that's where the registry is established. You imply that there's a lot of documentation, and I think that's true. Environmental assessments aren't easy. There's a lot of paper, it's a paper process, so that's a reason you'd want a public registry.

    Mr. Roy Bailey: I think we'd be surprised how many people out there who make use of this are very intelligent people, and intelligent people aren't going to hurt you. I just make that comment.

    Thank you, Mr. Chair.

    The Chair: Thank you, Mr. Bailey.

    Ms. Muir, please.

    Mrs. Magdalena Muir: I'd like to respond at least on whether there can be too much information. If we have an environmental assessment process the public is to rely on, there should be access to the information, whether at a screening or a review level, in which recommendations are made or decisions to go to screening or review. If those documents are internally relied on or relied on by responsible authorities, obviously, they have a certain degree of credibility and should be sound. So there can be no problem with the actual information, and the real question then is whether it should be available to the public, so that they can participate and comment on the screening and the decisions made there or at the review process, and I think the answer must be a resounding yes.

    The Chair: Thank you.

    Madam Kraft Sloan.

    Mrs. Karen Kraft Sloan: I want to follow up on an earlier line of questioning. When the minister made his report to Parliament, there was this strong element in it that there was a need for environmental assessments to be undertaken through predictable and timely processes. However, to go back to this issue on lack of clarity with some of the definitions, if we don't know what physical work is or an undertaking or significant effect, how can we expect the statute to be applied in a predictable and timely fashion? You have given some examples this morning of problems with interpretation. If this is supposed to be one of the hallmarks of the new legislation, how can we say that's been achieved--or can it be said it's achieved?

    Mr. Hugh Benevides: Timeliness has its merits, but I don't think we should be worshipping at the altar of those concepts, particularly in the case of certainty. It's almost a mantra of industry that they want certainty. One understands that, and process certainty should be encouraged to a certain extent to stand as a surrogate for real certainty, because life is about uncertainty, and so are the environmental problems. So timeliness, for example, is achievable if you do have steps that are prescribed with time limitations. We've proposed those in our brief, although I inject a note of caution: you don't want to be slavish to time, because the problems can't necessarily be solved during a 30-day notice period. It's a consideration that one should take into account.

    Perhaps I should be even more emphatic about predictability. If you're predicting what the environmental effects are, that's an evolving science, and that's what we're doing this for. If you want to predict the outcome of the environmental assessment, for example, what the mitigation measures would be or whether the project will proceed or not, I'm sorry, we can't provide that kind of predictability if we're doing environmental assessments properly.

    I'm often very suspicious of the way these concepts are invoked, as though they are the end. The end of environmental assessment is improved quality, good EA, good projects, good ecosystems, and human health. We recognize that the thing had to be framed with certain themes, but to be slavish to those themes, I think, is counterproductive.

À  (1030)  

    Mrs. Karen Kraft Sloan: I certainly do not disagree with you. I often see documents that are full of rhetoric, for want of a better term, that are laden with concepts and terms that are supposed to provide a certain--I wouldn't want to use the word mythology, Mr. Chair; I'm struggling with my language this morning. Mr. Bailey always comes up with the right solution, and just so we get it on the record, he said b.s. However, there is a particular image or portrayal of what this is going to accomplish. There are certain buzz words and platitudes that are used to describe it. Say we were in agreement with those. If that is the objective of the exercise, do you not think that cross-statute consistency would be an important way to achieve an overall objective of predictability and timeliness?

    For example, there are five-year reviews built into CEPA, and those reviews come to the environment committee, a parliamentary standing committee. However, we have a situation where there was a five-year review under the old CEAA, but it didn't come to a standing committee. There are many questions as to how credible that review was, whether the legislation actually reflected the review process, etc.. So I'm just wondering, with regard to parliamentary review, even if we wanted to accept this idea of consistency and predictability, should we not have cross-statute consistency?

    Mr. Paul Muldoon: Overall, yes. There are two areas where I think it is useful. In my opening comments I did talk about the need for a periodic review, particularly before parliamentary committees. I say that without underestimating how difficult it is at times and how busy committees like this are. I do think it is a way we can communicate the aspirations of the constituencies we deal with to elected members of Parliament indirectly. We can try to explain the aspirations of that constituency, the practical problems, the conceptual problems. I do think it furthers the broad general interest. I am not against there being background work done by agencies and other processes, but I think the use of parliamentary reviews for our national laws is very important. That is why I did mention it in my opening comments.

    The other areas of consistency, though, I also think are important are those dealing with public involvement. I don't quite understand why under some statutes the public has greater rights than in other statutes, like the Canadian Environmental Assessment Act, especially with information, citizen enforcement, those kinds of issues. I don't understand why under certain regimes we have public participation rights, while under other regimes we do not. There is no logical reason for it. In that context, I do think a consistent approach leads not only to predictability and certainty, but also to fairness.

À  (1035)  

    Mrs. Karen Kraft Sloan: Yes, exactly. Particularly at this committee, because we are the environment committee, we get legislation that has citizen suits or public participation mechanisms in it, and then in the next piece of legislation we don't have that opportunity. It has often been said to me, you work very hard, the department puts something forward, and some win is achieved on a particular area--it might not be a great win, but some minor achievement has been made--then you get the next piece, and whatever you won on that former piece of legislation doesn't exist in the new legislation. Not only are you starting the battle all over again, but the battlefield has changed, and you have less to start with. So every time you make some progress, there is all this regressive action that goes on as well.

    Mrs. Magdalena Muir: I'd like to comment on that.

    The Chair: Could you make it a quick comment, please?

    Mrs. Magdalena Muir: I have had the pleasure of being involved in the proposed Species at Risk Act, the Canadian Environmental Protection Act, and the Canadian Environmental Assessment Act on behalf of the section. We have often tried to make comments with respect to the enforcement, the nature of an electronic registry, or even the documents. I think, if we are going to have a consistent approach, it is very important to have the same breadth, to the extent possible, given the differing nature of the legislation, in public participation, in enforcement provisions, and in compliance with international conventions. Those are the points we constantly stress with the different pieces of the legislation.

    The Chair: Thank you.

    Madam Redman.

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

    The Canadian Bar Association, in its submission, recommends that timelines be imposed. This was touched on briefly by Mr. Muldoon earlier. The environmental assessment sometimes requires a collection of seasonal ecological data. Many of the interested public groups may also be involved in the EA reports, and they largely consist of volunteers who have limited time available. In view of these and other considerations, Ms. Muir, would it be practical to try to prescribe time limits for each stage of an assessment?

    Mrs. Magdalena Muir: I would like to refer to our comments on page 12. You've raised an interesting aspect of timelines, the constraint on the public in some matters. Timelines are in place for fairness in the process, so they shouldn't preclude fairness, but they should be fair for all parties, the applicant, the government, and the public. There are some instances where perhaps the applicant or government is not behaving in a timely fashion in responding to questions and inquiries. So the timelines, where they're useful, would be for all aspects of public participation, including disclosure of matters that are requested. Any imposition of timelines should be fair and should have a way to be flexible, if necessary, to give a longer period for response or consideration of matters.

    Mrs. Karen Redman: So they should be fair to all parties and flexible, where necessary, for all parties.

    Mrs. Magdalena Muir: Yes.

    The Chair: Mr. Benevides.

    Mr. Hugh Benevides: I did say, as Mrs. Redman has said, you need some flexibility in some cases, and I understand from colleagues in B.C., for example, that's been the case with the provincial act there in the past. I don't know what condition the regime is in today, but in the past sometimes it has been too rigid perhaps for the public, as well as others than proponents.

    The other thing we would emphasize is that our proposals in the last three pages of our brief on public notice and comment involve the public much more than any other proposals I've heard in debate of this bill. They propose that the public have input into a scoping process, rather than the public being advised what decisions have been made on scoping, and at all the other stages we've outlined. If you're simply telling the public, we've scoped this project, I'm afraid that's not good enough. Public involvement means having input into what the scope might be, for the reasons that Mr. Bailey alluded to earlier. I just wanted to add that remark.

À  (1040)  

    Mrs. Magdalena Muir: Another point I would stress is that timelines also must not be undermined by a failure to provide access to information in a ready form. You heard some comments earlier about timelines and the definition process, but if you have an uncertain process and not a very good provision of information, to impose timelines with what may be inadequate information is not a fair process.

    The Chair: All right.

    I have two brief questions, one on project scoping, which was the subject of many comments by other witnesses. You make, on pages 23 and 24, the comment that sections 20, 37 and 38 are constructive, you propose two additions, and then you make a comment on page 24 that this bill “proposes that current subsection 38(2) respecting public notice be deleted.” Would you like to comment on your overall approach to scoping, and particularly the deletion?

    Mr. Hugh Benevides: I think you said we recommended that 38(2) be deleted. In fact, it reads that it be retained. That's the clause I think you're referring to.

    The Chair: No. I'm referring to the entire clause and the additions you are recommending. Then, at the top of page 24, you note that the bill proposes that subsection 38(2) be deleted.

    Mr. Hugh Benevides: That clause allows guidance to be provided on follow-up in accordance with any regulations made for that purpose. This language exists--and we commented on it elsewhere in our brief--in other places in the existing act, including the regulations surrounding crown corporations. Our interpretation of that clause is that there's an obligation to do something even if there are no regulations made, and the bill proposes in a number of places that this language be changed to clarify that interpretative issue, and yet the words “in accordance with any regulations” reappear in this proposed subsection.

    The Chair: What are you, in essence, then, proposing with your comment at the top of page 24?

    Mr. Hugh Benevides: Let me get to the crux. The way those words have been interpreted in this past is to say there will be no mandatory follow-up, which is what subsection 38(2) proposes, if those regulations are never made, as has been the case with the crown corporations and in other examples under the act. There is nothing pushing the government to bring forth those regulations, and the government's interpretation is that the obligation doesn't exist unless and until you make those regulations. In fact, they seem to acknowledge that they do have the obligation, because they've changed that wording in other sections, and yet here they're reintroducing that language.

    The Chair: So you are suggesting that the committee should not support the deletion of subsection 38(2).

    Mr. Hugh Benevides: That's right. It replaces subsection 38(2) in the existing act, and we would retain that.

    The Chair: Fine. thank you.

    The other question has to do with binding centralized EA decision-making, on page 23. Could you elaborate how you would visualize this oversight, either by cabinet or by the commissioner? You are really charging a political body or an officer of Parliament. You're asking that one of the two should have the oversight. What is your preference, and how did you come to these two choices?

À  (1045)  

    Mr. Hugh Benevides: The preference, without question, is the arm's-length agency, and the original red book promise made by the then environment critic was that it be a CRTC-like body with the kind of arm's-length powers the CRTC has, or at least had. We don't prescribe exactly what that should look like, but we make some comments on page 5 or so about the hallmarks of independence. That would be the kind of design. We don't know what happened to that concept, and in fact, A Guide to Green Government, which I keep referring to, talks about proclaiming the act, saying, this is why we have created the independent Environmental Assessment Agency. I'm not sure why, in that document, the agency is referred to as independent, because currently, it's not, and it has no powers, in any case, to enforce compliance.

    The commissioner option would be a distant second. The commissioner obviously has value in the system, but it's a limited one, and I'm not sure it's something that's appropriate to the commissioner as her position exists now. She performs a valuable role in reviewing performance in certain areas, but the arm's-length agency is our first choice.

    The Chair: Thank you.

    We're into the third round. Madam Kraft Sloan.

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

    Because our witness has been invoking the name of the document A Guide to Green Government, I think it would be useful for the clerk to get copies and circulate them to members, because it was a very interesting document. We could remove the dust and recommit ourselves to the document.

    To follow up on some of the questions I posed on cross-statute consistency, the precautionary principle appears in CEPA and other legislation. I'm wondering if you feel that this bill is reflective of the precautionary principle and whether it's something we should consider inserting.

    Mrs. Magdalena Muir: That's quite an interesting question. If one thinks of environmental assessment and incorporating environmental aspects in decision-making, plus the nature of sustainable development and correlating economic impacts in environmentally sustainable development, that would suggest the whole act really should be the operation of the precautionary principle. With other statutes, we certainly have suggested that the wording be explicitly in there, most recently in the Pest Control Products Act, where they paraphrased it, but didn't put it in the preamble. We could support the inclusion of the precautionary principle in the preamble, particularly given that Canada is a signatory to international conventions and agreements that bind it to its operation.

    Mrs. Karen Kraft Sloan: Particularly in light of our discussion on an environmental benefit as the result of an environmental assessment, I'm wondering if the witnesses from CELA have a comment.

    Mr. Paul Muldoon: We would wholeheartedly endorse the inclusion, both in principle and in practice, of the precautionary principle. It's being furthered in a way that would make sense. I think it should be recognized, as my colleague just stated, that the entire theory of environmental assessment is to be preventive in nature. You're trying to anticipate and prevent environmental problems. Often, the problem with a preventive regime is that there is uncertainty of science. In our view, that uncertainty would trigger automatically the precautionary principle.

    One of the uncertain areas is with the whole issue of cumulative effects. I know you've heard some evidence on how to include and why it's important to include a whole notion of cumulative effects. There is an enormous amount of data and science now being looked at connecting human health and toxins, for instance, and all those areas. It would seem to me that it's an area the act doesn't anticipate well, so it would be greatly served by the inclusion of the concept.

À  (1050)  

    Mr. Hugh Benevides: Paul mentioned earlier an administrative duties section for the preamble. You'd want to have it perhaps in operative sections as well, but we don't need to rewrite the act. If it is in a duties section that imposes an overall obligation, in the face of uncertainty, to apply precaution, that would be appropriate, I think.

    Mrs. Karen Kraft Sloan: Thank you. I think it would be particularly useful. If there is a policy of draining a lake and creating a fish habitat somewhere else, while that's laudable, one would wonder what the net result of that really is. How much of that is really replicable, and how much of that really deals with the issue of the first lake drainage, or five lakes drained in the north? Anyway, that's just an aside, Mr. Chair.

    I wanted to ask the witnesses from the Canadian Environmental Law Association about some material they have on page 4 of their brief under “Essential Elements of Environmental Assessment”. You have a list of eight items here. This was part of the brief you put forward to the legislative committee on CEAA in 1991. You talk about a mandatory EA process, binding decisions, and different things in this list. I'm wondering, given that you made this presentation when people were looking at the original CEAA, where you feel some of the biggest problems have arisen, where the suggestions and advice you gave in 1991 were not listened to, with the result of big problems for the Canadian Environmental Assessment Act, and whether those big issues have been dealt with in Bill C-19.

    Mr. Hugh Benevides: I look, for example, at number seven, and this bill makes some continuing strides with monitoring and follow-up. But we've said today, yes, it's mandatory, but is that mandatory nature actually enforced by an independent agency? No. With “binding decision”, in fact, the word decision never appears, at least not in a way one would expect, anywhere in the act. The bill proposes, for example, something called a decision statement, which is simply another instance where the public is advised about what action is to be taken after the fact. Definitions we've talked to. The way the act is structured, with the lack of accountability through enforcement, means that many of the elements, the really fundamentals ones, aren't there.

À  (1055)  

    Mr. Paul Muldoon: Point 4 deals with “need for”, “alternatives to”, and “alternative means”. In many instances there is an agreement among the stakeholders that something needs to be done, and the question is how to do it. Then you get into a battle about how to do it, but often the process does not allow a full discussion about what the true alternatives are and how you can, rather than simply mitigating environmental effects, achieve the purpose collectively by doing it a different way. You have an expressway--are there different transportation modes? That kind of discussion, which I think leads to more of a preventive approach, often is not undertaken, nor is there a form to undertake it.

    I think my frustration emanates from the lack of an ability to deal with alternatives and alternative needs, and that's certainly not reflected in current amendments.

    Mr. Hugh Benevides: And even if there's an agreement on need, going back to a real discussion of what the purpose is can also achieve the goal of seeing whether where we're going is sustainably appropriate.

    Mrs. Karen Kraft Sloan: Doesn't the Ontario legislation say the first requirement is looking at an alternative to the project?

    Mr. Paul Muldoon: Yes. Under the Ontario legislation there's a negotiation of the terms of reference, and even though the 1996 amendments allow it to deviate from that, the basic framework is to ensure that the question of rationale or the need is first looked at, then alternative means and alternatives to the project or program, and then, if it's needed and there are no alternatives, whether or not mitigation is appropriate and what kind of mitigation of effects. It's a three-stage analysis. In theory, I think, that is still a coherent way to look at environmental assessment.

    Mrs. Magdalena Muir: Maybe I can make a more general observation. If there are some flaws in the existing environmental assessment process, limited revisions to that in Bill C-19 may not be enough to address them. That goes to commending positive changes, but if there are essential flaws in the operationalization of it and if those aren't addressed, you're not going to have a significantly improved process.

    The other aspect goes to the whole framework of international obligations. There's the matter of how things are domestically implemented in Canada, public expectations and the extent to which they're met, but there's also the increasing framework of international obligations that Canada is a signatory to, on things like the precautionary principle, sustainable development, transboundary environmental assessment, protection of biodiversity, endangered species. So that's the other thing I think is very important for a consistent context for this legislation.

    Mr. Hugh Benevides: I would just repeat what I said in the initial presentation. We would make consideration of purpose and need and alternatives mandatory. In paragraph 16(1)(e) of the existing act they're now discretionary in every case, and we would assert, given that essential element, that it should be mandatory in every environmental assessment.

    Mrs. Karen Kraft Sloan: That's in your clause-by-clause?

    Mr. Hugh Benevides: I'm not sure it's in the clause-by-clause, because our chart is really more reactive. I can point the committee to that, but I'm not sure I know off the top of my head.

    Mrs. Karen Kraft Sloan: Okay. Thank you.

    Thank you, Mr. Chair.

    The Chair: Thank you.

    On behalf of the committee, let me thank you for your very valuable and almost encyclopedic contribution to our efforts. We appreciate the analyses you have made and the advice you are providing for the short and the long term. I don't know whether you have reinforced our belief that we are engaging in a very meaningful exercise, but nevertheless, we will live with that conclusion. We'll make good use of your suggestions, and as I mentioned earlier, I hope the agency will also look very thoroughly at the amendments, so as to make your work and the work of this committee meaningful. We look forward to another opportunity to consult you and to hear your comments, which are always very relevant and based on experience.

    With this, many thanks, and this meeting is adjourned.