ENVI Committee Report

DISSENTING OPINION ON
BILL C-9

Joe Comartin, MP (Windsor—St. Clair)

Background

Bill C-9 and its precursor, Bill C-19 came about as a result of the requirements of the mandatory statutory review requirements set out in the Canadian Environmental Assessment Act (CEAA). CEAA or C-13 was proclaimed in 1992 and came into force in Jan 1995. Section 72 of the current Act required that the Minister undertake a comprehensive review of the provisions and operation of the Act five years after its coming into force. It also required that within one year after the review, the Minister submit a report on the review to Parliament, including a statement of any recommended changes. Discussions and consultations took place between, December 1999 and March 2000 and Bill C-19, the precursor to C-9, was tabled March 20, 2001.

At the outset the review was fundamentally flawed. The Minister’s report failed to address significant deficiencies revealed over the five year history of CEAA. Although participants indicated some progress in improving environmental planning, there remained significant deficiencies in a variety of areas including sustainability, regional planning and policy coordination, alternative development options, traditional land use and aboriginal participation, devolution to other jurisdictions and perhaps most significantly the lack of practical enforcement measures.

New Democrats had reservations about the bill as it was introduced because it did not adequately address these and other severe problems associated with the Act. Our initial opposition was based on the assertion that the bill failed to address three principal criteria:

During debate of the bill and throughout Committee hearings we raised these and other concerns over the lack of effectiveness, transparency and efficiency in the EA process.

After reviewing the legislation and in consultation with a variety of environmental, aboriginal and legal experts, the NDP submitted more than 50 amendments to bill C-9. These amendments attempted to address some of the identified shortcomings of the Act. While there was some success in getting several amendments passed, many more were defeated. Although we had initial reservations about the bill, throughout the course of the hearings we worked with stakeholders in an attempt to improve what we felt was a very limited piece of legislation.

In introducing the bill the Minister’s stated three goals for renewing the federal environmental assessment process, namely to; provide a greater measure of certainty, predictability and timeliness to all participants in the process; enhance the quality of assessments; and ensure more meaningful public participation.

Although the bill and the amendments partially address some of the concerns relating to the efficiency of the process it is not clear how the effectiveness or transparency of the EA process will be improved through C-9.

Many groups and individuals commented on the need to review the entire environmental assessment (EA) process. In fact, the Canadian Environmental Law Association in its submission to the Standing Committee on Environment and Sustainable Development commented on the need for review of the entire EA process and not simply limit the scope to amendments made by C-9; “in its current form, CEAA will continue to be applied to fewer projects, with little on no opportunity for meaningful public involvement”¹

Committee Report

While there are some recommendations and issues within the report that we support in principle, we do not endorse the complete document as it fails to adequately address the concerns New Democrats clearly laid out.

Unfortunately, the final report has been “watered down” over the course of numerous revisions. It appears that many of the concessions made during the drafting of the report were aimed at appeasing the Privy Council and the Prime Ministers Office and not at forcefully addressing the inadequacies of the environmental assessment process. We maintain that the changes proposed in the bill and report will move environmental assessment towards the “lowest common denominator”.

It is also regrettable that the report, which contains some strong wording in the text lacks similarly forceful wording in its recommendations. Additionally, the recommendations are just that, recommendations and there is nothing compelling the government to act upon them.

As indicated earlier one of the NDP’s principal concerns about the bill and amendments was with the “streamlining” or harmonization of EA process. Our concerns about harmonization seem to have been justified as the report includes section 1.3 which cites a provincial and federal harmonization agreement as an example of addressing “the issues of cooperation, uncertainty and duplication of effort”

In fact, when the NDP introduced amendments to create greater certainty and less duplication of effort they were defeated by the government majority on the Committee.

Section 1.5 states that: “the central question is whether federal EA is making a significant contribution to sustainable development and being used to make decisions that benefit the environment. If the answer to this question is no, then changing the EA process must be given the highest priority.”

The Committee heard considerable evidence to suggest that federal EA is indeed not “making a significant contribution to sustainable development”. However, the report contains no meaningful recommendations for immediate changes to the EA process or for ensuring that changing the EA process be given the “highest priority” in subsequent reviews of CEAA.

Another example of where we dissent from the findings of the report is in section 2.3 that states that, “the Committee felt that the goals of Bill C-9 were laudable, and that the bill should improve CEAA and federal EA as a whole.”

We remain unconvinced that the bill will make meaningful improvements to the stated objectives of the EA process. In fact the bill does not even adequately address the three goals outlined by the Minister when it was first introduced.

Still another case where we disagree with the report is in section 2.8 that states, “This report examines areas where the current federal approach has not succeeded, sets out a number of important challenges that remain to be addressed, and provides recommendations on what should be done. The report deals with the basic questions. In short, how can the federal EA process be improved to better meet the goals of sustainable development?”

The report, however, does not deal with the entire EA process and meeting the goals of sustainable development. Nothing in the report or the bill provides consequential reassurances that deficiencies within CEAA and the environmental assessment process will be remedied.

Throughout the examination of C-9 the Committee also heard witnesses discuss problems with “self-assessments”, the failure of the regulatory authority (RA) to trigger an EA in a timely fashion, and the lack of meaningful, timely public participation. These problems are not adequately addressed in the bill nor in the recommendations contained in the report. As well, the report also lacks meaningful recommendations requiring enforcement or oversight mechanisms to ensure that federal authorities comply with the Act.

These are just some illustrations of how the report and bill fail to deal with the New Democrats’ stated concerns.

Recommendations

It is disappointing that so much time and hard work has been dedicated to a meagre piece of legislation. The Committee heard from numerous witnesses on the need to simplify the process and the Act. In the final analysis C-9 does little to meet these objectives and Canadians are left with a complex and inaccessible piece of legislation. Given the shortcomings of the Act and the amending legislation, the NDP recommends that an entirely new Environmental Assessment Act be introduced — an Act that would create an environmental assessment process that is succinct and straightforward while providing for proper government transparency and meaningful public participation.

From the outset and throughout the process, the government has maintained that the existing CEAA is the only choice available for Canada. This is simply not the case. Other options have been presented and several other pieces of legislation have been suggested. We have presented one such model EA (Appendix A) to provide an example of what can be enacted. The model legislation clearly and succinctly addresses six key failings of the current legislation while adhering to a CEAA-like model; (1) proper scope of the project to be assessed; (2) defining what constitutes a “significant adverse environmental effect”; (3) meaningful and timely provision of project information; (4) meaningful and timely public participation; (5) increased use of “streamlined” panel reviews; and 6) penalties for failure to comply with the legislation.

In conclusion, we cannot fully support C-9 or the recommendations of the Report of the Standing Committee on Environment and Sustainable Development. It must be made clear that the NDP supports the goal of improving the environmental assessment process to make it more accountable, more transparent and to strengthen protection for our environment. Therefore it is with regret that because of the inadequacies of CEAA that were not meaningfully addressed in C-9 or in the recommendations of the report we are forced to dissent from the majority of the Committee.