[Recorded by Electronic Apparatus]
Tuesday, November 21, 1995
.1109 
[English]
The Chairman: Order. Pursuant to Standing Order 108(2), we're continuing with our study of environmental regulations and other regulations of the mining sector. We are fortunate to have with us today representatives of the Canadian Environmental Assessment Agency. We have Michel Dorais, president; Paul Bernier, senior vice-president; and Robert Connelly, vice-president. We shall be hearing first from Mr. Dorais.
.1110
We ask you to commence your statement when you're ready to do so. Thank you very much.
Mr. Michel Dorais (President, Canadian Environmental Assessment Agency): Thank you very much, Mr. Chairman.
[Translation]
Mr. Chairman, members of the committee, I'd like to thank you for allowing me to participate in your deliberations today. If you agree, I thought it might be useful to take a few minutes of the committee's time to give you some background on the Canadian Environmental Assessment Agency and to speak directly to some of the issues which this committee is focusing its attention on.
You have already welcomed my two colleagues, Mr. Bernier, Senior Vice-President, Process Management, and Mr. Connelly, Vice-President of Process Development and responsible for the improvement of this process through possible amendments to our legislation, regulations and operating guides.
The Canadian Environmental Assessment Agency is a relatively new entity on the federal scene. The agency was created to administer the Canadian Environmental Assessment Act which was proclaimed on January 19th of this year. The act itself was the product of a high-profile parliamentary process and follows the federal involvement in and practice of environmental assessment going back to the early 1970.
The Act, which we currently administer, was first introduced to Parliament in June 1990 and was designed as a major reform to its predecessor the Environmental Assessment and Review Process Guidelines Order of 1984, a process which led to high-profile litigation, federal-provincial disputes and costly delays.
Following the federal election in 1993, the present Minister of the Environment instructed officials to develop options for the early proclamation of the Canadian environmental Assessment Act which would reflect specific commitments made in the "Creating opportunity" document more commonly referred to as the Red Book. The result of this process was an enhanced regulatory framework and several key amendments to the legislation.
Three particular amendments were made to the legislation to include the principle of one project-one assessment, to legally entrench a Participant Funding Program and to require that the federal response to recommendations of a panel report be considered by the Governor-in-Council.
The result is the Government of Canada's first legislated environmental assessment process. A process which is seen as integral to making the concept of sustainable development a reality. Its objective is simple - to integrate environmental considerations into the federal decision-making process. This objective clearly reflects the government's intentions described in the Red Book statement that
- Good environmental policy is not only compatible with robust economy, it is a
prerequisite.
- Notable achievement have been made in integrating environmental considerations into
economic and sectoral policies. Examples include the legislated environmental assessment
process...
- No major impact on industrial competitiveness from environmental legislation.
I will not pretend to you that the Canadian Environment Assessment Act is the final word or a perfect instrument but it does include a variety of innovative and progressive mechanisms that enable the government to move towards its stated objective of sustainable development. The mechanisms that I am referring to relate directly to this Committee's study of regulatory development and its impact on the mining industry of Canada. Our Agency and the federal departments involved in the environmental assessment process are committed to ensuring that the process is appropriately applied and that it does not create an undue burden on proponents.
[English]
All of the regulations under the Canadian Environmental Assessment Act have gone through a rigorous consultative process. The Regulatory Advisory Committee was established above and beyond the normal federal regulatory process to advise government on the development of regulations under the act. The committee is an innovative mechanism that attempts to seek consensus on the issues involved in regulatory development. It is a multi-stakeholder forum that involves industries, environmental groups, provinces, federal departments, and aboriginal groups. The Mining Association of Canada is represented on that committee.
The Regulatory Advisory Committee has not reached consensus on all issues. It was not expected to, given the often polarized positions represented. But it has isolated problems and issues and has contributed to an open and transparent process.
In order to reflect industry concerns that the Canadian Environmental Assessment Act might have an impact on competitiveness, the agency and Industry Canada have undertaken the joint monitoring program. This program has three essential tasks: one, to collect comments on any problem encountered by proponents with the application of the act; two, to carry out a competitiveness study through Industry Canada's business impact test to establish the actual cost of the process to the proponent - there are in fact a number of mining companies that are participating in that study - and third, to conduct a sustainability study to document the benefits of environmental assessment to both environmental protection and the promotion of environmental technologies.
The results of the program are to be transmitted to the ministers at the end of the fiscal year. However, we have some indication that the program may extend beyond one year because the first year may not provide an accurate snapshot of the environmental assessment process. I should point out, however, that after seven months the joint monitoring program has not identified any issues directly related to the mining sector. While we have heard there may be concerns, to date we have not received any specific information on projects.
The joint monitoring program is further complemented by the legal requirement for a five-year review of the legislation and its regulation. That mechanism of review is built into the Canadian Environmental Assessment Act.
One of the key indicators to monitor how the act is being implemented is what we call the federal environmental assessment index. Since January 1995 more than 1,700 projects have been assessed under the new act. The information contained in the index indicates that proponents are integrating environmental considerations into their planning process. This integration of environmental factors into decision-making facilitates the assessment of projects by federal authorities and significantly reduces the number of unacceptable projects.
The agency is closely monitoring the assessments appearing on the federal environmental assessment index. At the end of the joint monitoring program additions to the exclusion list will likely be recommended in order to reduce the number of screenings for projects with no known environmental effects. The use of class screening for repetitive projects undertaken by federal departments will also be encouraged by the agency.
Harmonization with the provinces is a key issue in the environmental debate. Duplication and overlap and clarification of the federal and provincial roles are prime issues, as they are elsewhere, in other areas. Environmental issues are perhaps less clear than some other areas because of their relatively new primacy in the public domain, because of our rapidly evolving understanding of environmental issues, and because the Supreme Court of Canada has viewed the environment as a shared jurisdiction.
.1120
The Canadian Environmental Assessment Act recognizes the need for harmonization by allowing the Minister of the Environment to enter into agreements with the provinces. To date we have signed cooperative agreements with Alberta and Manitoba and negotiations are under way with Saskatchewan, Ontario, and Newfoundland. Most recently, in Whitehorse the federal Minister of the Environment and the B.C. Minister of the Environment released a third-draft harmonization agreement for public comments. These agreements, along with the ability of the act to delegate the vast majority of environmental assessment to the provinces, contribute greatly to reduced overlap and duplication.
An additional feature of these agreements is the establishment of ``single windows'' in the provinces. Single windows are federal officials who serve to assist proponents in their environmental assessment requirements, primarily by coordinating the federal interests that may be involved in an assessment. Single windows in the agency itself are playing a major coordinating role for proponents.
To complement this further, the Canadian Environmental Assessment Act was amended, as I referred to earlier, to entrench the principle of one project, one federal assessment. We are currently developing a process-efficiency regulation to assist meeting the objective of one project, one assessment.
The Canadian Environmental Assessment Act has a variety of other provisions for streamlining I've not touched on, and we are involved in a number of initiatives designed to bring greater discipline to our process. The agency is committed to working with all stakeholders of all sectors, including the mining sector, to enhance the clarity, predictability, and timeliness of the process.
Mr. Chairman, in working with committees such as yours we can further the Government of Canada goals of ensuring the convergence of environmental and economic interests.
[Translation]
I want to thank you for giving me this opportunity to appear before the Committee.
[English]
We are of course at your service to answer any questions you may have.
Thank you, Mr. Chairman.
The Chairman: Thank you very much.
We'll begin with questions. Mr. Reed.
Mr. Reed (Halton - Peel): Thank you very much, Mr. Chairman.
It would appear you're heading down a very positive path. I commend the agency for that. Especially in the area of eliminating overlap and duplication, I hope you're able to bring all the provinces on-side, and for more than what appears on the surface to be simply to avoid duplication of effort...but also to make sure at that level the provinces become accountable and don't have anything to hide behind when it comes down to actually doing the assessing and making the decisions. I think that's been one weakness that has pervaded the process: there's been this ability to say, well, this is a sticky situation, so we'll throw it in the hands of the feds and let them worry about it.
An hon. member: That'll never happen.
Mr. Reed: I also like the encouragement for the use of class screenings for repetitive projects. It seems to me until now, in every case, each project has been required to reinvent the wheel. We've gone on and on being told to do something as a developer for which the answer was already known and had been established perhaps forty or fifty times in the past. Those things can be quite clearly documented.
There's one other item I think is worth raising here. The mining industry said to us at one point, if you don't accomplish anything else, the one thing we need to have is the security of knowledge that when we enter into a project, the regulations there at the beginning of the projects will be the same regulations as will apply through the process out to the end, so that, in their words, the goalposts are not being constantly changed through the process. That's something called grandfathering, if you like, or whatever, so that if a regulation is changed three months into a project, the next guy knows that it's on the list and must make an investment decision based on that regulation.
.1125
It has been terribly difficult for any entrepreneurial effort that interfaces with government to the extent that the mining industry must, and there are some others I can refer to, where you begin with one set of regulations and all of a sudden you're required to resubmit or rejig or recalculate or do something, at incredible cost if you're hiring the services of engineering consulting services. It has made smaller entrepreneurial projects almost prohibitive, because of those unknown costs that keep being added into a project.
So I suppose having made all those statements and not a question, I should ask a question.
An hon member: How about ``What do you think?''
Mr. Reed: The question would be: would you care to comment on the direction, and your consciousness, your awareness, of those difficulties?
The Chairman: You're usually so quick about the question; I'm just wondering what's happened to you today.
Mr. Reed: It's my little axe to grind.
Mr. Dorais: If I may, Mr. Chairman, I think the comments are very interesting, because they correspond to a lot of the things that we have heard over the last year. This new legislation has been developed after nearly six years of consultation.
You've raised a number of very interesting points. First, the messages we receive from business are exactly the same as what you're saying. It is not as much the length of time that is of concern to at least the business interaction we had, but the predictability. Whether it's six months or eight months or a year is not as relevant as the predictability right at the outset. That has been expressed to us over and over and over again. This is why now, in our current practice, we tend to set very precise deadlines at the beginning of every hearing that we hold, for instance, and try to meet those deadlines. We've been pretty successful over the last couple of years in predicting almost to the day how long this will take.
The streamlining examples you raised with class assessment are also very interesting. That's a new feature of the act that we're taking advantage of. Another one is the comprehensive study; in fact we've just released the first decision on the comprehensive study. It involves a mining company, and that's Placer Dome and the Musselwhite gold mine project. The whole assessment in the agency was done in 38 days. That's an example of a company that decided in February of this year to play by the rules and just do the assessment according to the new tools that were provided in the act, including all the studies they started at the end of February. Now, in November, they have completed the assessment and have a decision from an environmental assessment point of view.
This is definitely a streamlining process. It would normally have taken maybe a couple of years to complete that.
The tools at our disposal such as class assessment and comprehensive studies are extremely precious to the industry and we developed them with the industry.
Those would be my comments.
Mr. Reed: Thank you, Mr. Chairman.
The Chairman: Mr. Wood.
Mr. Wood (Nipissing): Thanks a lot, Mr. Chairman.
I have a couple of questions. The Canadian Environmental Assessment Agency obviously has taken a lead role within the federal government in monitoring how the Canadian Environmental Assessment Act will impact on the mining industry. However, Industry Canada, Environment Canada and Natural Resources are also monitoring this implementation as well.
.1130
I was just wondering, are we not again seeing over-regulation within the federal government, as four departments or agencies watch the implementation of a new act to see how it affects this department? I'm just wondering if this is a case of competing bureaucracies and conflicting agendas between Environment Canada and Natural Resources.
Mr. Dorais: No. In this particular case we developed the regulations with the regulatory advisory Committee, but there were, according to certain representatives, especially from the industry, some grey areas, some unknowns. Working jointly with them and Industry Canada, we put together a program to monitor how the regulations are applied. As a result of that, if amendments need to be brought to regulations, we will bring the amendments.
There's only one set of regulations and that's ours. In order not to run the monitoring program one-sidedly, we've included Industry Canada in the picture. We're working at it jointly and expressing all points of view around the table. But there is only one set of regulations there.
Mr. Wood: Thank you. I'm also concerned with the requirement in the Canadian Environmental Assessment Act that cumulative effects of a project must be considered as part of the environmental assessment. When applied to the mining industry, is this requirement too broad and undefined, and does it go too far?
For example, is it necessary to assess the entire process from the beginning with prospecting, core drilling, and test shafts, all the way up to when an actual mine is proposed and constructed?
Mr. Dorais: The cumulative effect is in the act as it is in the legislation in the United States, and in Ontario I think, if I'm not mistaken. I have to agree with you there are unknowns in there. It's something that we've been doing since 1980. It has only been fifteen years that we've looked at cumulative impact assessment, so we're still learning.
However, provided with your package is a table of contents of guides that we've produced at the agency. One of them deals specifically with cumulative impact assessment and has been distributed to every department and industry sector. Laid out in this guide is the current state of the art in terms of how to assess cumulative impact assessment, and that's a good starting point for doing it.
Our experience to date with assessing cumulative impact assessment has in fact been fairly positive. Some companies in a number of industrial sectors have realized enormous gains in terms of advancing the state of the art in terms of cumulative impact assessment.
So there is a bank of knowledge. There is cooperation between various industries on how to do it at this time.
Mr. Wood: I just have one more quick question, Mr. Chairman. The act calls for a participant funding program to enable the public to participate in assessments by review panels. Has this been set up, and what sort of amounts of funding are being provided?
Is this a case where special interest groups who don't really need the funding are being paid by the government to oppose new mining projects? Do you have any examples of that, or can you see the potential for this happening?
Mr. Dorais: We have a program that's been in place since 1990. It has a budget of $1.2 million a year for the entire country, for all the projects. We've spent just under that amount every year over the last four years.
It's been working fairly well. Not only opponents of the projects but also supporters of the projects have been funded. The mechanism is a relatively unbiased one. We set up a special committee composed of people from the agency and people from outside who are unconnected to the review, and it's those people who receive applications to fund the participation of various people.
In order to receive funding under that program you have to demonstrate that you haven't received money from anywhere else to contribute to the assessment. There are pretty strict criteria, and then you have to demonstrate at the end how you spent that money. So there's a control mechanism built into that.
.1135
Mr. Wood: Thanks, Mr. Chairman.
The Chairman: Ms Skoke.
Ms Skoke (Central Nova): I'm going to ask you to comment generally on this, not on the merits.
I'm a member from Central Nova in the province of Nova Scotia. In the province of Nova Scotia the Minister of Environment just recently granted environmental approval to a private investor to strip mine in the town of Stellarton. Fisheries and Oceans and Environment Canada were briefly consulted. The town is opposed to the ministerial approval. Obviously they don't want a strip mine in their town.
I want to know what jurisdiction, if any, the Canadian Environmental Assessment Act has regarding this particular project. What, if anything, can we do to override the provincial ministerial approval or discretion granted in this particular case? How, if there is a way, can we activate this particular act?
Mr. Dorais: It's very difficult for me to comment on the specifics of the project because I'm not really aware of the specifics, but it allows me to make one very important point about the jurisdictional aspect of environmental assessment. The act is not based on who's got jurisdiction on what. It doesn't carve a jurisdiction for environmental assessment. It is tied to who makes the decision.
If a federal minister or a federal authority has a decision to make and if we have a project as defined in the act, the act applies. So if the fisheries minister has a decision to make or has a permit to issue or if another federal minister has a decision to make, the act applies. It is not so much a question of jurisdiction. It is a question of who has decisions to make.
In many cases, especially for smaller projects, the assessment is performed at the provincial level and the results are used by the federal minister to make his or her decision. I don't know if my colleagues are aware of the specifics of that project. It's difficult for me to comment any further.
Ms Skoke: Yes. I understand you can't get into the merits of a particular project, and I'm not really asking you to do so at this committee. My question was posed more for general information regarding jurisdiction and the operation of the Canadian Environmental Assessment Act.
So just what types of projects do you mean? I don't have a list here, but I presume there is a list available. You make reference to the inclusion and exclusion lists, but they don't appear in the information I have before me.
Mr. Dorais: If I may just come back to your original question, I would be pleased to look into the specifics of the project and provide you with any information we have.
As for the more generic question, the act is built in a particular way. First, in order for it to apply you must have a federal authority, which can be a minister or an agency such as the National Energy Board or something like that.
Second, you need a project that is not just anything. It is something that you build, a physical project that you actually build or an activity that is included in the inclusion list. There are very few of those at this time.
Third, you need a trigger. A trigger can be whether the federal government is the proponent, like the government building a DND base or an airport, or whether or not we provide money or land or if we have a very particular regulatory responsibility listed in a regulation. There are about 180 of them for the entire government. A permit is issued. The act applies only under those three conditions.
It's a complex way of defining the application of the act. There were some other ways to define it. A lot of people said, well, it applies to everything, so let's just have an exclusion list. We've chosen this way because it's the clearest way to ensure certainty, which was the key concern when this was built. Any proponent now can have this checklist of three points and very quickly go through the list of authorities and find out whether his or her project is covered by the act.
Ms Skoke: That's fine. Thank you very much.
.1140
The Chairman: Mr. Shepherd.
Mr. Shepherd (Durham): You talked very briefly about deadlines and you said you're very proud of your rapidity in moving applications through the system. Do you have a form somebody making the application receives from you within a week, for example, telling them when there is an expectation of a completion? In other words, is there some kind of an internal procedure so the people who are applying know how long the process is likely to take?
Mr. Dorais: I wish we had one. Unfortunately the situation is not always as simple as that.
In terms of comprehensive studies, which is the experience we lived with Placer Dome, we were able to give them a fairly precise indication of how long it would take. In fact we were faster than the indication because we had total control over the process.
In most cases an assessment is done by the province and by us, and we get together in order to avoid duplication and overlap. The actual amount of time we devote to assessing a project depends on where it is and how many jurisdictions are involved. You could have native government systems or international requirements involved. It depends on the project as well. There are some projects that are very simple and straightforward and some that spread over ten years and are modified five times for all kinds of reasons. Those are a lot more difficult to predict right from the outset.
The other complication is that we don't have time lines in the federal legislation. We don't have them for a very good purpose. One of the principles behind the Canadian legislation is to try to harmonize with the specific legislation of each of the provinces. Each of them has a slightly different time line, a slightly different process.
At the present time we can harmonize with any of the ten or twelve environmental assessment processes. In each case there are specific time lines that are slightly different from one province to the other. This is why we don't have time lines in the federal legislation, but we do have them for each and every one of the projects being assessed.
In other words, we're aiming at trying, at the beginning of a process, to plan every step of the way, but we have to do it with the proponent, the province and the various departments involved. That quite often takes more than a week. We don't have a rule that applies from coast to coast for all kinds of projects.
Mr. Shepherd: I was just wondering, within those parameters.... I understand it's a complex matter. You could take the worst-scenario case and attempt to apply some kind of a timing factor to embrace that. Presumably those who have provincial jurisdictions that react a lot quicker will of course get a benefit from that.
I guess we're trying to convey a degree of certainty to the business community about what they're dealing with once they start this process and whether in fact it isn't possible to develop that kind of a process within your agency and bring something forward to that effect so that industry can have some kind of degree of certainty.
You might have some parameters, such as, given we get this, this, and this and such and such a date, we believe we can complete this by it*x.
I look at this and I don't know whether they're valid or not, but I see National Defence has six projects, none of which have been approved. I don't know what that means, but presumably if there were some kind of parameters, at least people would know when they should fall off the table. Yes or no?
Mr. Dorais: Yes. At the present time there is one regulation being developed or being looked at by the Regulatory Advisory Committee. It's a process efficiency regulation. Part of that examination includes the look at time lines and predictability of the process and how we can include that in regulation. Industry is very much involved in developing that regulation. That will assist us in doing exactly what you are suggesting, which is to have a benchmark. We will be able to say, for that type of project, here is the estimate for how long every step should take.
.1145
The only thing I'm saying, I think, is that we have given that to manage enough flexibility to be able to adapt with each provincial system in order to avoid duplication and overlap, which could be worse in particular cases. But there is a need to look at the time line issue, and that is being looked at now, as we speak, by the Regulatory Advisory Committee, through the development of an efficiency regulation.
Mr. Paul Bernier (Senior Vice-President, Canadian Environmental Assessment Agency): I would like to add one comment to that. Currently we have a draft of an agreement with British Columbia, as Michel referred to in his opening remarks. In this draft agreement, which is out for public comment, there is a provision for delegation to the province of two categories of environmental assessment as defined under our act, the screening we referred to and the comprehensive study. This provision would allow environmental assessment to be done by the province, and the outcome of that work would be used for decision-making purposes by both levels of government, where there was a requirement for both to make a decision. In that case you would clearly have the time line issue resolved because of the respective process.
Mr. Dorais: The B.C. system has some time lines built in there.
Mr. Bernier: Similar undertakings with other provinces are certainly contemplated.
The Chairman: I have a question arising out of that. You say the review would be done by the province and that material would be used by both the province and the federal government to make a decision, but you were saying there is no restriction on the amount of time the federal government could take to make its decision. Say the B.C. decision had to be made within thirty days of the receipt of the report. We could just sit there for two years and not do anything. Is that possible right now?
Mr. Dorais: In the particular case that was raised, the time lines we have in British Columbia, let's say, are the British Columbia time lines. They're built into their regulations and legislation. By signing the agreement with them, which said in virtually all cases we will follow the B.C. process in order to gather the information we need, we are following the time lines set in there.
The Chairman: Are we required to, though?
Mr. Dorais: We are required by the administrative agreement, which is public now. It's not signed yet, but it's intended to be signed early in the new year. We would be bound by that agreement to follow those time lines. That was the subject of a lot of discussion, because at the federal level many departments are involved in the process.
The more specific point you've raised is the decision-making ability at the end. Once the assessment is finished, it is up to the responsible minister or the cabinet to make a decision on the project itself, on the permit - whatever decision needs to be taken. In other words, once the assessment is finished, according to the time lines set in legislation....
Let's say the federal fisheries minister might have a decision to make. Now there are no time lines associated with the time to make that decision once the assessment is over there. No time lines are set for cabinet to make a decision. So in a sense yes, they can take three days, thirty days, or two years to make a decision. It is up to cabinet to decide how long they will take to make decisions. But by that time the environmental assessment process is over.
Mr. Rideout (Moncton): On that same point, Mr. Chairman....
The act itself does have provision, though, for establishing time lines if you want to.
Mr. Dorais: Oh, yes, definitely - by regulation. But we cannot regulate cabinet by regulation.
Mr. Rideout: No, I appreciate that.
Mr. Dorais: But all the process up to the moment when the assessment is finished can be regulated through time lines, yes.
Mr. Rideout: So far you haven't done that?
Mr. Dorais: No. We have signed agreements with provincial systems that have time lines. The reason is that the Alberta, Manitoba, and B.C. time lines are different. Overall they're about the same, but each step has some time lines that are different. The Newfoundland process has legislated time lines. It's not only regulation, it's legislated time lines. In order to adapt to all of them and avoid duplication, the route of administrative agreement is much easier than trying to impose a uniform time line.
Mr. Stinson (Okanagan - Shuswap): You mentioned that Placer Dome came on faster than expected. What timeframe are we looking at there for when everything was in place?
Mr. Dorais: What timeframe we looked at?
.1150
Mr. Stinson: No, what was the final time that it took for Placer to come on-stream?
Mr. Bernier: I think we received an indication from Placer Dome - this is with the agency - in the early part of the spring of this year, that they would be coming forward with a proposal. This was just after the passage of our act.
In discussions with them and with the federal department responsible, in this case Fisheries, we concluded that, yes, the act applied. We proceeded from that point forward to explain what was required to apply the act, and through an extensive series of exchanges with the company we ended up in a situation in which we received the comprehensive study from, in this case, the Department of Fisheries and Oceans, which I think we got in late September. It included all the work that had been done by the company, and that document was put out for public review for a period of thirty days.
I stress this public review complemented that which the company had done. The company had done excellent work previously in involving the affected communities directly through public consultation, and as a result the public consultations that we conducted did not elicit much response. But there was some response, and taking that into account we formulated the recommendations to the Minister of the Environment. Within a very short order, she came to her conclusion with respect to the application of her legislation. As Mr. Dorais indicated, something of the order of just under forty working days elapsed from the time we received the document to the time the decision was made by the Minister of the Environment.
Mr. Stinson: Are there any other cases like this that you could give us, or is Placer just the one?
Mr. Dorais: This is the first and only one under the new legislation for comprehensive studies. There are a few that are coming there, but that's the first decision that has been made under the new act as a result of the comprehensive study, which was one way to streamline the previous process. I think the act has proven that it can indeed streamline the assessment process. Thirty days for a decision is a very short time.
Mr. Stinson: If something gets turned down through this system, is there a form of appeal?
Mr. Dorais: The decision belongs to the Minister of the Environment at that stage. She can essentially do four things. She can say the project shall not proceed any further and can send it back to the Minister of Fisheries; she can say the process can go to mediation or to a panel, which is that form of appeal that is essentially an appeal to a public hearing process; or she can agree to proceed with the project, which is what happened in the case of the Musselwhite project. But then it's important to understand that the decision is not the Minister of the Environment's decision in the end. That belongs to the Minister of Fisheries, who has to issue a permit. So the next step in that process is for the Minister of Fisheries to issue a permit to the company. But the environmental assessment is finished and it was done in 38 days.
Mr. Stinson: So basically, if the minister decides that it should go any further, there is no form of appeal for any of these companies?
Mr. Dorais: No. If the Minister of Fisheries decides not to issue a permit, that's his prerogative under the Fisheries Act.
Mr. Stinson: Also, you said you've been in existence for fifteen years?
Mr. Dorais: The agency itself was actually born on December 22 of last year. Before that, its predecessor was the Federal Environment Assessment Review Office, which was created in 1984. Prior to that, there was a service under Environment Canada, in place since 1973, I think.
Mr. Stinson: Thank you.
The Chairman: Where is the Placer Dome Mine?
Mr. Bernier: It's north of Sioux Lookout. I think Pickle Lake is the closest community to it.
The Chairman: We have heard some discussion suggesting that while you get coordination of federal-provincial environmental assessments and those types of things with these provincial agreements, it still isn't really a joint process as such.
.1155
Mr. Dorais: It depends on what you mean by joint process. The comments we got from the single windows are extremely positive. One of the reasons is that many of them come from the provincial environmental assessment offices and have been hired into the federal office. Actually, office is a big term; essentially it's one person who's there. Their mandate is basically to make sure it runs smoothly. They bring their knowledge of the provincial process and their knowledge of the federal process into the picture to make sure that everything runs smoothly there.
The federal system is divided into a number of phases. According to those agreements, in many cases screenings will be done by the province and we will simply get the results and apply the decision. In fact, we're not talking about a joint process; we're talking about a process that is essentially carried by the province, and we use the results. It's the same for comprehensive studies.
For the three, four or five big projects that reach the panel level, in many cases what we will do is a joint process, which means that we, the province, do have members on the board and we hold one set of hearings, one set of environmental assessments. At that stage, then, it becomes a truly joint process. Before that, it's usually done by one jurisdiction or the other, but the results are used jointly.
Mr. Stinson: Just following up on that, if the province were to come to the conclusion that this is viable and that you will go ahead, and the federal department decides it's not, who overrides whom?
Mr. Dorais: Nobody overrides anybody in this. The Minister of Fisheries and the Minister of Transport have some responsibilities that are given to them by their respective legislation, and their responsibilities are limited to that. Environmental assessment or no environmental assessment, the Minister of Fisheries can decide whether to issue a permit to a particular company for a particular project for reasons related to the environment or other concerns he may have that are related to his responsibilities as the Minister of Fisheries.
So it's not a question of overriding. It's a question that any project might require permits from the federal, provincial and municipal levels. Those permits are unaffected by the act.
What the act does is to make sure that the environment is brought into the picture before the decisions are made to issue those permits. At the end, if a project is not viable and the Minister of Fisheries decides to authorize it anyway, he can do it. The only requirement is that he has to explain why he's still doing it.
Mr. Stinson: I want to get this straight. I just want this perfectly clear. If I'm sitting there as a provincial minister and I decide it's economically viable for the province to go ahead with the mining program here, are you telling me that if there's concern on the federal level, the federal government can stop that mine from going ahead?
Mr. Dorais: Concerns at the federal level are not sufficient. In the case of the environmental assessment, what would be required is a trigger. Let's say the federal government was a party because of money. Then the only decision the federal government can make is not to invest in that particular case. If the decision is money, let's say $10 million, then the decision of the federal government might be not to invest $10 million, but the project can still continue.
Mr. Stinson: What if in some way they say no, this looks to us like it could become an environmental concern?
Mr. Dorais: After the environmental assessment is completed, if the Minister of Fisheries looks at all the factors he's responsible for and decides not to issue the fisheries permit, the project has some significant problems. But that's not because of the assessment; it's because of the permit issued by the Minister of Fisheries or the Minister of Transport, or any other minister. If it's the International River Improvements Act, it's the Minister of the Environment; if it's the Navigable Waters Protection Act, it's the Minister of Transport.
Mr. Stinson: I don't care what minister it is. It can be any minister you want to pick. If it's in environment, what I want to know is whether that can stop that project from going ahead.
.1200
Mr. Dorais: Yes, of course.
Mr. Stinson: Thank you.
The Chairman: Yes, and significant difficulties equate.
Mr. Stinson: All I wanted was yes or no.
Mr. Dorais: I would venture to say, so can municipal government by not issuing the complexity of big projects.
Mr. Rideout: It's not just the federal government.
Mr. Dorais: No, no.
The Chairman: Any level of government could say no.
Mr. Stinson: I want to know, if all the levels of government up to the federal level had okayed this project, could the federal level still shut it down?
Mr. Rideout: Conversely, the federal government could approve and the municipality could say no.
Mr. Dorais: It's tough to do.
Mr. Reed: I have a question that follows on that. This happened in the past in Ontario.
Mr. Dorais: Some provinces have this ability to petition. The federal act is not organized this way.
This is the point that is difficult to get across. If there were no Environmental Assessment Act whatsoever, the federal government could still stop or allow a project to proceed because of the degree of authority it has in various fields. This is why I'm giving you a complicated response to it. A simple citizen cannot sort of rise up and stop a project.
Mr. Thalheimer (Timmins - Chapleau): When does your agency or your predecessors get involved in the assessment?
Anybody can stake a claim and have mining claims. Thousands of them are being held. So I have a mining claim. I erect my mining drill and lo and behold I find a gold mine. Then you come along and you say, as in the Windy Craggy situation, sorry, it's environmentally sensitive. When do you get involved in this thing?
Mr. Dorais: I've outlined three very important conditions. If there is no project, then no assessment is being done.
We get involved hopefully at the earliest possible time. This is why the contacts we maintain in the regions and with the industry are so important. The earlier we catch it or start discussing it, the easier it is to implement the process later on. We get involved only when there is a project and not when there is a claim.
Mr. Thalheimer: I have a mining claim. The minute I drag my drill on-site, or whatever work I do, that could result in a discovery tomorrow morning.
Mr. Robert Connelly (Vice-President, Canadian Environmental Assessment Agency): Perhaps I could jump in to attempt to respond to this. I think it's important to realize that the process has a screening stage, a comprehensive study stage, and then a public review stage. In other words, it's designed in a way so you apply a rigour or a thoroughness to associate the process to the size of the project you have in mind.
Most of the projects that go through our process don't involve the office directly because they're at the screening stage. We get involved with the larger ones at the comprehensive study stage and panel review. Those that get involved in the screening stage are what are called the responsible authorities or the departments themselves.
For example, if you were seeking a permit for prospecting, let's say north of 60, you would get that through the Department of Indian Affairs and Northern Development. In issuing its permit for prospecting, it would ensure that the process is applied. In other words, it would assess that and then issue you your permit. So the responsibility in that case lies with that department. It reports the project decision to us and we put it in the federal environmental assessment index that Mr. Dorais referred to earlier.
Mr. Thalheimer: The mining industry's fairly concerned about situations like Windy Craggy. You are familiar with that situation. Those are the types of things that are real irritants to mining communities. Here we have a situation where a major discovery is made and then they come along and say, whoa, this is an environmentally sensitive area, so you're not going to mine. That thing has been going on for years. Hundreds of millions of dollars were spent and the discovery was finally made, but then they say, you're not going to mine. How do we prevent such a situation? Or how does your agency help in preventing such a situation?
.1205
Mr. Dorais: Of course, we're very familiar with the Windy Craggy situation, and not because were involved, but because no assessments were done of the Windy Craggy project.
The federal system, either the previous one or this one, has never been triggered. We were not involved at all. There was no project. It was not submitted to an environmental assessment system. But it's been put under an enormous amount of pressure by environmental groups, and for other reasons that have nothing to do with the objective assessments of the project, some decisions were made. But it's very important to understand that in many cases the issues are confusing. The environmental assessment process allows a very objective look at whether or not there is an impact on the environment, and that is very different from the public debate that can go around a project without any form of scientific assessment. In the case of Windy Craggy, no assessment was done.
Mr. Thalheimer: I'm trying to prevent those types of things, and what I'm saying is that there's no pressure. Say I have a claim in the bush, 60 miles north of Timmins, and I decide I'm going to explore there. I make a major find, and all of a sudden the environmentalists come along, everybody comes along, and says, no, you're too close to fishing, there are fish spawning here, and so on. Next, you shut the thing down.
Where do you people get involved? At the beginning? How do you stop this sort of thing? I don't want to find a major mine and then be told, for whatever reason, that, sorry, you're not going to mine here.
Mr. Dorais: We do get involved very early in some of the projects. We do have discussions.
I think the essence of what you're bringing up is related to the relationship that develops between the industry and environmental groups and local citizens, and that's far beyond my responsibility in terms of applying the assessment process. The only thing I can tell you is that when there is a project and we get involved at the beginning, such as in the Placer Dome project, and the company decides to do the assessment and do it well.... We have one example under the new legislation and I can tell you it works.
I've been in this position now for four years. Before that I chaired the provincial board for two years. My experience has demonstrated that the main problems and the bad stories we had in this country with environmental assessments occurred when companies or governments, provincial or federal, tried to figure out a way to go around the assessment and not do it. It failed every time, and we now have 76 court cases under the guidelines ordered by the previous legislation to prove that.
Mr. Thalheimer: You're missing my point.
Mr. Dorais: Sorry.
Mr. Thalheimer: Do I, as a prospector, get my environmental assessment before I even prospect, or at what point do I do it? You're shaking your head. You say, no, you don't do that.
Say I have a mining claim. I can legitimately go out there and drill. I can drag my drill out there; I'm drilling. All of a sudden I think this could be something big. You don't do it by one hole, but there's a good indication there. What do I do? Stop everything and say, I have to get my environmental assessment done now because it appears I might have a gold mine here? Just where do you people fit in?
The Chairman: I think the situation you're talking about is the provincial government and the Windy Craggy situation. I think the difference is that in the Windy Craggy situation, the provincial government came in and said, you're not going to the use the land for this type of purpose, period. It was a political decision. It didn't go through an environmental process that ended up with no as an answer. They just said no, it's not going to be used for that.
Mr. Stinson: The answer to your question is when you go in and get your work permit, that is when the assessment starts. It's when you apply for your work permit to take your diamond drill there. You put your Cat in and make a trench. That's where these people....
Mr. Thalheimer: I'm talking about a situation, for instance, where I want to buy claims in the Voisey Bay right now. I'm just going to buy claims. I'm going to spend a lot of money buying claims. All of a sudden I'm told that I can't drill there. So you do it even before you purchase claims.
.1210
Mr. Dorais: I'm trying to answer the specifics of your question. The key point is when you need a federal minister's decision, that's where it starts. It's not where the project is in its life; it's when you need a federal decision.
What we're trying to do now is to plan far in advance, to say if you go that route, you will need federal decisions at those three points there. Quite often in complex projects you need many federal decisions. We put all this together and do only one assessment through the life of the project.
The trigger is whether or not you need a permit from a federal minister. That's really where it starts.
Mr. Bernier: You mentioned Voisey Bay in this context. I think that's a very good example of how the agency is attempting to coordinate federal responsibilities. Just a short while ago we realized it was important for us to bring around one table every potential federal department that could have a decision on this particular production proposal we're expecting from Diamond Fields Resources. We had them all around the table, and we asked them, do you have the information you need to come to a conclusion on whether or not you have a decision to make? If you don't, what are you looking for? As a result of that, we're having a meeting next week with all the federal authorities and Diamond Fields in St. John's, I believe, and we will try to answer that very precise question: what do you need in order to come up with that which you're looking for?
This is not something we do as an agency on every project, but in this case we clearly thought it was important for us to step in early. We've been having discussions with Diamond Fields for the last four or five months. We're also having discussions on this project with the province. We want to make sure whatever decisions may be required federally can be coordinated with whatever is required provincially.
Mr. Thalheimer: I think what you're saying is the bottom line is the owner has an obligation to report the area he's going to explore in, I suppose, to see whether there is a need for a federal licence, or a possible need for federal-provincial licences. The initial onus is on the exploration company or the owner.
Mr. Connelly: I'd add one thing, just to get back to the example. At this point I don't believe any federal permits or authorizations have been required. So in that particular development we've seen it go through the prospecting and exploration stage, but the moment we get to the actual proposal to develop the mine, some federal decisions will be looming. Hence the reason why we've become involved: to try to coordinate that.
Mr. Thalheimer: That seems very prudent to me, because you don't want a situation where the whole thing can be shut down because of a requirement that couldn't be met. That's what the industry is always concerned about. That's what I'm saying. This is why I wanted to know where you as an agency fit in, or when you start your....
In the case of Voisey Bay, I can see because of the excitement and activity over there you took the initiative yourself and said you'd better take a look, which is fine. That's what should be done.
Mr. Dorais: In that particular case we know there will be a provincial process, we know there will be a federal process, so the role of our agency is to make sure there is one process, it's coordinated, it's streamlined, it works really smoothly, and we don't end up tripping on each other in the end.
The Chairman: Hearing no more questions, I want to pass on from the committee our very sincere thanks to you, Mr. Dorais, and your colleagues from your agency who are with us today to share your views on overlap and duplication in regulation. Thank you for coming and good luck with your future endeavours.
Mr. Dorais: Thank you very much, Mr. Chairman.
I just want to add that in the package that was distributed is the first annual report. It covers only three months of operation of the new agency, but it gives you the transition between the old system and the new. Also included is the table of contents of the guides we have, which are about that thick. We'll be pleased to send a copy to anyone who wishes.
.1215
The Chairman: Thank you very much.
I'd like to have a very quick meeting with the steering committee.
[Proceedings continue in camera]