ENVI Committee Report

DISSENTING OPINION
HER MAJESTY’S LOYAL OPPOSITION
BEYOND BILL C-9

The C-9 Process:

Interference from the Prime Minister’s Office, and the Privy Council Office made the review of Bill C-9, particularly at committee stage, far less effective than it could have otherwise been. Despite this, C-9 does represent an improvement over the existing Act.

During the committee process the bill’s transparency was improved, both in the defining of timelines for each stage of the Assessment Process, and the provision of documentation to affected parties well in advance of decisions being taken. These measures provided greater surety for all affected groups, and represent a step forward.

The seven-year review provision has been drafted in such a way as to ensure the entire Canadian Environmental Assessment Act (CEAA) can be re-examined at that time, rather than only specific sections of interest to the government. C-9 was hampered by its inability to amend sections of the original CEAA that were not already opened up for discussion within the context of C-9. The review mechanism included in C-9 recognizes this fact, and will ensure a more complete review of the legislation, likely in 2010.

Given this reality, the Official Opposition questions the need for a report that focuses on Beyond C-9 at this time. On the contrary, the report from the Standing Committee seems a thinly veiled attempt to counter decisions taken at committee in a number of areas, and represents a serious attack on the integrity of the work done by committee members over the past year. It is biased, undemocratic, and in many places fundamentally out of scope, even within the context of the CEAA as a whole.

Positives Resulting From C-9:

A number of positives were achieved at Committee Stage regarding C-9, including:

Negatives Resulting from C-9:

Negatives resulting from C-9 include:

Specific Response to Beyond C-9

The Official Opposition believes that the seven-year review mechanism built into the bill at committee stage will adequately address CEAA in future. The preparation of Beyond C-9 in this context appears unnecessary, and chiefly designed to revisit decisions made in the committee process.

Is Federal Environmental Assessment Making a Difference?

The Official Opposition supports the report’s contention that there is a greater consciousness for EA. We also agree EA should result in strong ecosystems and public participation. However the report also lists ‘benefit’ the environment’ as a purpose under the Act. CEAA’s preamble lists the legislation’s intention is to “achieve sustainable development by conserving and enhancing environmental quality” and “to ensure that environmental effects of projects receive careful consideration.” (pg 10)These are the goals of CEAA, which are in keeping with the Alliance belief in balancing development with environmental protection. While ‘benefiting the environment’ is a laudable goal, it is excessively vague and could be interpreted as exceeding the mandate of C-9 and CEAA, we reject Beyond C-9’s claims to the contrary.

Use of EA to Address Major Environmental Issues:

The attempt to turn CEAA into a mechanism to assess the ‘dangers of greenhouse gas emissions’ is wholly inappropriate. The Official Opposition opposes the Kyoto Protocol in the strongest possible terms, and will not be party to a report attempting to link this fatally flawed treaty with domestic Environmental Assessment. This is a typical example of the frittering away of important environmental resources in the ill-considered fight against global warming represented by Kyoto.

Is Environmental Assessment Resulting in Benefits to the Environment?

The Official Opposition agrees with the reports observance of the 1998 Commissioner of the Environment and Sustainable Development where the Commissioner stated “the federal government is not gathering the information needed to let Canadians know whether or not environmental assessment is achieving expected results (Para 6.5, Ch. 6, 1998 Report). The federal government has a poor track record in measuring results, as evidenced recently by the gun registry, and the GST audit.

A Clear Vision for Environmental Assessment:

Beyond C-9 emphasizes that the focus on process must translate into results on the ground. (pg 10) We agree that process must translate into results. However, this is a matter best taken up at the seven-year review of CEAA, not just following a review of the legislation.

Effective Enforcement of Environmental Responsibilities:

Beyond C-9 calls for the creation of an arms-length agency that will establish a permit system and regulate mitigation measures. We are concerned that such an agency represents little more than just another level of bureaucracy. Until it has been clearly demonstrated that such an agency would not just add expense, this measure is premature.

Use of Environmental Assessment as a Constructive Tool to Improve Projects:

We support the Report’s recommendation to use CEAA as a constructive tool to improve the sustainability of a project, and avoid cost overruns in future. However, prior to tabling in the House, the relevant recommendation was inappropriately amended to remove the promotion of cost reduction. Part of turning CEAA into a constructive tool should include focusing on costs to proponents.

Public Review of Projects of Canada-Wide Importance:

Beyond C-9’s attempts in s.4.4 to apply CEAA to areas of purely provincial jurisdiction is completely unconstitutional. The use of a loaded term such as “Canada Wide Importance” seems more designed to access areas outside the scope of CEAA, than to ensure proper review mechanisms are employed.

Attempts to create automatic panel review or joint panel review on projects outside the federal purview are a subversion of the historic responsibilities and divisions of power under the Constitution Acts of 1867 and 1982. Section 92A(1) of the 1867 Constitution (BNA) Act reads:

In each province, the legislature may exclusively make laws in relation to:

The proposals in Beyond C-9 exceed federal authority into provincial jurisdiction. Further, they create unnecessary duplication of government.

Assessment of Cumulative Environmental Effects:

Beyond C-9 expresses concern that multiple but separate projects can have cumulative effects not covered by each single EA. It proposes to link up with or fold into other levels of government, when a trigger is met, and to do regional assessments of cumulative effects. While the Official Opposition supports reducing duplication, we are concerned that these measures could allow federal authority to interfere with provincial or local environmental assessment.

Achieving Federal Environmental Commitments through EA:

Beyond C-9 seeks to link Canada’s international obligations, like the Kyoto Protocol to our domestic EA laws, and uses the Athabasca Oil Sands greenhouse gas issues as an example. It also suggest the pushing of a ‘conservation first’ agenda (pg 21-22). This is wholly out of scope of the CEAA and should remain so.

The balance that exists now in CEAA and C-9’s amendments to it are appropriate and need to be given an opportunity to work. Again, conservation is an important goal, but Beyond C-9’s inflammatory, ‘conservation first’ language could result in an unreasonable bias against any new development

Promotion of Meaningful Public Participation:

The Official Opposition agrees that stronger mechanisms are required for public consultation. However, Beyond C-9 places inordinate focus on panel reviews as the tool to accomplish this. This is simply too narrow a perspective. Public participation has been enhanced through the amendments in C-9. While more can always be done, panel reviews should be initiated where a projects scope warrants, not simply to enhance public input.

Incorporation of Aboriginal Perspectives:

During committee, the Alliance argued for the inclusion of local land use authorities in the same way as was proposed for First Nations. Any proposed changes to the Act should reflect the need for equal treatment of other local communities in Canada on the subject of environmental assessment. This discussion has been ignored in Beyond C-9.

Improvement of Strategic Environmental Assessment:

The Official Opposition supports improvements to Strategic Environmental Assessment, provided these improvements are not reflective of the abuse of federal power so evident in other areas of Beyond C-9.

Conclusions

C-9 represents small but real steps toward cooperation between industry and environmental groups. It also takes significant steps to ensure public involvement in this process and to reduce litigation and lack of trust from all sides. As detailed earlier, it is far from perfect. Nevertheless, it is a positive step that allows a second review in seven years’ time.

By contrast, the Summary Report is biased, one sided and completely contrary to the spirit of cooperation built at the Committee level.

Environmental organizations, government officials, industry representatives and individual Canadians all provided valuable testimony on the subject of environmental assessment. Despite this, not a single industry representative is quoted in Beyond C-9.

Instead, Beyond C-9 is a report that is out of scope, unbalanced and advocates obstruction of the Constitution of Canada. Although it has some proposals and observations that merit further review, and even (in some cases) support, it is fundamentally flawed and wholly lacking any spirit of consensus — either among committee members, or among the various presenters committee heard during the review of C-9.

On these grounds, the Official Opposition strongly suggests the government reject Beyond C-9 as ill-timed, out of scope and excessively biased.

Recommendations:

Respectfully submitted,

Gary Lunn, MP
Saanich—Gulf Islands