[Recorded by Electronic Apparatus]
Tuesday, May 14, 1996
.1105 
[English]
The Vice-Chairman (Mr. Thalheimer): Order, please.
This is the last session we have on the study of environmental regulations in the mining sector. We have with us today Mel Cappe, the Deputy Minister from the Department of the Environment, and his assistant, I understand, Tony Clarke, the Assistant Deputy Minister.
Mr. Cappe, I would ask you to commence.
Mr. Mel Cappe (Deputy Minister of Environment): Thank you, Mr. Chair.
[Translation]
I will not be making an opening statement as I would imagine you have a number of questions.
[English]
I'd like to say simply that the government recognizes the important role of the mining industry, and certainly in our metal mining liquid effluent regulations we have developed a regime that provides for certainty for the industry and tries to harmonize with the provinces wherever possible.
We have a number of initiatives under way in working with provinces that touch the collaboration in terms of administration of our regulations. As well, we have a few initiatives under way that work with the provinces to harmonize environmental assessment as well.
I would just note that in The Vancouver Sun today the Minister of Natural Resources is quoted as recognizing that we've opened single-window environmental assessment offices in British Columbia, Alberta, Manitoba, and Nova Scotia. We are negotiating similar arrangements with Saskatchewan and Ontario and are working with Newfoundland to develop an efficient approach for the Voisey Bay project.
The mining industry is important to Canada. I think we have a very good record in Canada. Indeed, the nature of environmental regulation is such that Canadian companies have a competitive advantage in working abroad in being recognized as world leaders in environmental technology.
Thank you.
The Vice-Chairman (Mr. Thalheimer): A short presentation.
Mr. Cappe: I am here to answer questions, sir, and if we can be of any help -
The Vice-Chairman (Mr. Thalheimer): Have you got any opening remarks?
Mr. Tony Clarke (Assistant Deputy Minister, Environment Canada): No, sir.
The Vice-Chairman (Mr. Thalheimer): Mr. Canuel, you are the first to question these people.
[Translation]
Mr. Canuel (Matapédia - Matane): In his brief statement, the Deputy Minister said that provinces and the federal government were collaborating on certain initiatives. He named several provinces with which agreements have been negotiated, but he made no mention of Quebec.
The information that I have obtained about Quebec indicates that on the surface, this is a complicated issue. Duplication does occur from time to time and standards, without necessarily being disparate, are similar. Contrary to what the resource persons who come before the committee have been telling us, we have known for years that problems do exist in Quebec.
How should these problems be resolved? That is another question. Are these problems the responsibility of the federal government? What about the provincial government? I'm not in a position to answer that question. Is their some good will on both sides? I can't answer that question either.
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I'm wondering why this couldn't simply be left to the provinces, and I'm thinking here in particular about my province, Quebec. Why shouldn't it be given full responsibility for managing its environment? I have been following this issue for years and I have observed genuine problems in a number of areas in Quebec.
My question is a very simple one. The committee is hearing that certain sectors would be better managed by provincial governments, among others the Quebec government. To what extent would it be possible to adopt the single-window approach in applying federal environmental laws on a provincial scale?
I can anticipate your response somewhat. Very often, duplication is minimized. It was announced in the Throne Speech that responsibility for forestry and mining would be handed over to the provinces. Will the provinces have the opportunity to establish environmental regulations? If this were to happen, would the federal government withdraw completely from this area? We continue to hear a lot of double-talk on the subject.
The Minister says that she is prepared to withdraw from this area but that she would keep the associated funding. The provinces would then be in a bind. I feel that we should get back the sums invested by the federal government over the past several years, using as a basis the average for the past 10 years. The monies no longer needed should be handed over directly to the provinces.
This solution should have been implemented years ago. I would welcome your comments on this.
Mr. Cappe: Regarding the will of governments to adopt a single-window approach, we have already established such a service. A provincial public servant conducts inspections of pulp and paper plants on the federal government's behalf, in accordance with the provisions of the Fisheries Act and the Canadian Environmental Protection Act.
We have concluded an agreement with the provincial government over the management of the provisions of the Fisheries Act. We have no such agreement where mining is concerned, although the federal government is prepared to negotiate a similar arrangement with the province. The problem does not stem from duplication or overlap in so far as regulatory standards are concerned, but rather from the application of the regulations as such.
Although federal and provincial public servants may deal with the same people, they do not perform the same duties. In the case of a mining company, the federal government carries out inspections in compliance with the Fisheries Act or the Canadian Environmental Protection Act. The provinces for their part handle other areas such as health inspections and work-related issues.
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Therefore, we are prepared to negotiate with the provinces the establishment of single-window services for the application of the Fisheries Act. We are also prepared to negotiate with Quebec an agreement on environmental assessments, as we have done with the other provinces. I must point out that in Canada, there has never been an environmental assessment panel.
We have found ways of resolving duplication and overlap. Could we do more? Yes we could, and we are prepared to resolve all of these problems. We have to find some way of establishing a partnership with the provinces in the area of environmental management.
As far as funding is concerned, as I was saying, there are two types of funding. When the federal government awards a grant to a particular company, one of the conditions it sets is that the company carry out an environmental assessment, pursuant to the Environmental Assessment Act. The federal government has, however, discontinued its involvement with most grants of this nature.
As for the funds used to implement the legislation, we have turned over to the province the unspent sums of money, just as we did for the pulp and paper sector. We are therefore prepared to negotiate a solution that is amenable to both levels of government.
[English]
The Vice-Chairman (Mr. Thalheimer): Thank you. I'll come back to you if we have more time.
Mr. Stinson, please.
Mr. Stinson (Okanagan - Shuswap): In setting up this environmental approach with regard to natural resources, one of the factors we hear about is no binding time line. We keep running into this, time after time after time. When you talk to people involved in the natural resource industries, it's open-ended. I can use a number of examples, but I shouldn't have to. You should know some of this. So this is one question I'd like to put out there, whether you're working on a binding time line to put some certainty back into these regulations.
Also, you talk about working towards a single-window approach. I've been hearing this and hearing this, yet I've seen absolutely no action. We can go on forever on what the hold-ups and excuses are, but let's be totally honest here. The industry is tired of excuses and tired of hold-ups. I am too, sitting here on this committee. It's been going around and around in a circle ever since I've been on it, yet nothing seems to happen.
You said that you're willing to sit down and talk with the provinces and you have done this. I come back to a question I've asked time and time again here: what happened with regard to the Kemess mine in B.C.? There you had a province that signed off on everything. They said their environmental concerns and everything else were well looked after, yet when the federal government got involved, it was all put on hold over a few fish that were not on an endangered species list. When the province said they tried to talk to the feds with regard to this, and the mining companies too, it was all put on hold.
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Mr. Cappe: I'll deal with the three points separately. The issue of time lines is an important one, and I think you're right in raising the issue as a question of certainty. I think the objective is to provide certainty in the nature of the regulations. I don't think people are saying we shouldn't have environmental assessments. What we're asking is how we can do it in a way that will remove the uncertainty and the like.
As to the application of the Canadian Environmental Assessment Act, my colleague Michel Dorais is the president of the agency, and I know he testified before the committee in its first round of hearings. I won't duck, but I will say that he's the expert.
The issue of time lines is one we are indeed committed to. In the February 1995 budget there's a statement that says the government is committed to two principles for changing the environmental assessment regime: one is cost recovery on the proponent and the second is some certainty on the time lines. The government hasn't unilaterally imposed that yet; therefore we're a year and change from that point and we haven't resolved the issue.
We have engaged in a process of consultation with the industry - not just the mining industry, but other sectors as well - and with the environmental groups and other community groups to look at ways of providing certainty without undermining the principle of environmental assessment and quality standards.
There are two kinds of process time problems, if I could characterize it that way. There is the environmental assessment itself, and then there's the permitting or authorizations or whatever other requirements may be applied in the circumstances. A lot of the concerns over timeliness come from the decision-making process around the authorizations for the destruction of fish habitat, for the Navigable Waters Protection Act or whatever the particular federal authorization might be.
The time lines around the environmental assessment are the second area where there's an irritant. We've been talking about the time lines around the environmental assessment. We would like to see put in place some fixed limits so that when people enter the process, they can have a clear standard to work towards and can provide the information to the government. The government then says, you've met the obligations of the Canadian Environmental Assessment Act and we now have the facts. Now it's time for the responsible minister to decide whether to issue a permit, an authorization or whatever the particular legislation requires. At that point you're back to the discretion of the authorizing officer, and it's not an environmental assessment problem, although it appears to be.
I don't want to duck it again, but I want to make clear that we have to fix both kinds of problems. We've been looking at ways to bring together the various federal departments that may be triggered. You might have the Department of Natural Resources involved, the Department of Fisheries and Oceans, and the Department of the Environment. We've tried to put together a single window, if you will, at the federal level, and this is getting at your second point about single windows. Even among federal departments we have ways of everybody serving a different mandate, and we have been working towards bringing that together.
If I could use the example of Voisey Bay, the Department of Natural Resources is playing the role there of coordinating among the federal departments all of the issues taking place in the development of the Voisey Bay ore body. Natural Resources is playing the role of bringing people together and having the single window. So we're trying to move forward on that.
In terms of the single window with the provinces, we have signed agreements in the last two years with the Province of Manitoba and the Province of Alberta to provide a single window for environmental assessment. We've opened local offices for environmental assessment in those provinces so that we don't have to do it out of Ottawa and can provide better service.
We have an agreement with the Province of British Columbia that was initialled about six months ago, which says we're prepared to work collaboratively. In fact, the B.C. agreement goes even further than the Alberta and Manitoba agreements and says we're going to use the B.C. standard. So if you satisfy the B.C. government that you've done an adequate environmental assessment, we will accept that for our process, and then you go back to the responsible authorities for a decision on whether to issue permits, authorizations and the like.
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That agreement with B.C. was initialled six months ago but has not yet been signed. We've done the consultation over the last six months and heard from industry and environmental groups, and we think that with some minor modifications we're ready to have ministers sign it and bring it into force. So there is a lot of potential success out there.
We're also working with Ontario and Saskatchewan to come up with something similar, and those provinces are interested in coming up with a single window that would solve this problem of two processes.
Mr. Stinson: I just want to make sure you understand that time is of the essence here. This has to be done. I'm not interested in turf wars. I want that ended; I think everybody around this table wants that ended. But what seems to be the hold-up here, or what is perceived to be the hold-up, is strictly a turf-war situation.
Mr. Cappe: With respect, I want to make it clear. And I didn't answer your third point, which was on Kemess and a few fish, as you put it.
Mr. Stinson: The most expensive in the world, I might add.
Mr. Cappe: There are some in Tennessee that I think may go further, but I'm not going to argue with you.
Some hon. members: Oh, oh!
Mr. Cappe: The point here is there are laws. This is not a question of bureaucratic discretion; it's a question of the enforcement of the laws. The Fisheries Act creates certain requirements that the Minister of Fisheries has to enforce, and it's not a question of a fisheries officer merely speeding up the process of assessment. If there is the destruction of fish habitat, then the law has certain application, and the principle of no net loss has to apply, which is in the regulation.
I don't know enough about the details of the particular situation, but I would not characterize it as just a few fish.
The Chairman: Thank you. Can we move on?
Mr. Reed.
Mr. Reed (Halton - Peel): I never thought I would find myself in agreement with Mr. Stinson.
Mr. Cappe: This is my value-added.
Some hon. members: Oh, oh!
Mr. Reed: The timeline issue is an incredibly important issue to anybody who is interfacing with government, regardless of where it is. Time is money. Time is financial interest. Time is also interest by potential investors in a particular project. If there is great uncertainty that something will not be coming to a conclusion within some given period of time, it makes life very difficult. It has done so and continues to do so.
In response to your comment about the fishery and the law - and I've said this here before, on record - the assessment of fisheries is part art form, part alchemy and part science. It depends from which university you graduate as to how you develop an opinion about what is happening to the fisheries, and I can give you chapter and verse on that if you like. So the Fisheries Act does open a door for the particular prejudices of the individuals involved when they're assessing a situation.
The mining industry brought one very important concern to us, and I think we should restate it. You may have addressed this. It is the business of the changing regulations after the introduction of a project. We call it the ``moving goal post'' syndrome. I don't know of any other single issue that is of greater concern.
Perhaps there's an assumption that every company that is developing a mine or doing something is a big company with a lot of resources, and it can submit and then resubmit, depending on how the regulations change, all during this process of trying to end up with a permit to do work or to develop.
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I speak from some very personal experience with this, not in mining directly, but in a related enterprise, in which regulations and requirements were simply changed on the whim of the particular office with which I was dealing.
It's been my concern that a project should be grandfathered. That is, if there's a set of regulations or rules, a financial decision is made on the basis of those rules. If you decide you're going to change regulations further down, okay, that's for the next guy, and then he knows the set of rules.
To me, that's maybe the most important statement I can make here. I wonder if you'd be kind enough to comment on that.
Mr. Cappe: Mr. Chairman, let me try to address both issues here. There is good news and bad news in the changing of the regulations. I'll give you a change that's happened that I would say is good news and a change that hasn't happened that may not be good news.
The change that has happened is that we left the EARPGO, Environmental Assessment and Review Process Guidelines Order, which was an order of cabinet that ended up getting in the way of a whole bunch of projects because the rules were unclear. It was a guideline order of cabinet, but the public and companies didn't know what the rules were. Indeed, we had to go to court far too often to have the courts tell us what the rules meant.
With the proclamation of the Canadian Environmental Assessment Act about a year ago, we've been able to remove a lot of that uncertainty by having a much clearer, statute-based environmental assessment process. That's created a problem for some companies, of course, who are working toward the old rule when the rule changes.
We have grandfathered projects that were under assessment prior to the change of the legislation, but for projects that hadn't got started yet the rules changed on them. When did a project start? Was it when the first exploration took place, or when they started on the ground? That's where a little bit of the confusion comes after the rules changed on them.
There was a grandfathering provision built into the Canadian Environmental Assessment Act that allowed the EARP guideline order to apply to projects and assessments that were already under way. So we tried to take account of it, but it was imperfect. I don't have a solution.
Consider the changes we haven't made to regulations. I'm not that proud of this, frankly. The liquid effluent regulations for metal mining have been in place since 1977, but I think our understanding has changed and the industry has changed. Arguably, we should go back and update them.
I'm not shy about saying that I think these are good regulations. I'm not saying that we shouldn't continue to have them at all. Rather, I'm saying that it might we worth while to go back and look at changing them. I don't want to take your comment to say that we shouldn't work to modernize them.
There's a lot of stability in the mining regulation business. In fact, the problem we've got now with our liquid effluent regulations for metal mining, being as old as they are, is that a lot of provinces have gone further. So we're out of sync in a way. In some provinces, you've got to meet lower effluent standards for some effluents in the provincial regulations than you do for the federal ones. That presents awkwardness for the company. It would be nice to have that aligned.
So I guess what we have to do is modernize these regulations and do it in a way that's sensitive to the fact that we're changing the saddle while the horse is galloping, and we don't want to get the rider to fall off. I think we should take your concern seriously. I'll certainly see that whatever changes we bring have a grandfathering provision to account for some elements of these things.
The Vice-Chairman (Mr. Thalheimer): Okay, Mr. Reed. Mrs. Cowling, please.
Mrs. Cowling (Dauphin - Swan River): Thank you, Mr. Chairman.
I have two questions. My first one relates to your last comment.
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We all recognize that recylable metals are essential to the feedstocks of Canada's metallurgical facilities. When do you expect that the definition of ``waste'' will be changed so that it excludes recyclable materials?
Mr. Cappe: I'll ask my colleague, Mr. Clarke, to comment, but I'll just offer an opening remark.
On the issue of the treatment of waste, we have to be careful about how we view waste. Waste, as we commonly understand it, is a bit of a loaded term. The fact is, for the purposes of the Basel Convention and the international convention on the trade in hazardous waste, it has certain waste treatment requirements in there.
The definition has to be addressed. We are doing that internationally. Mr. Clarke can explain how. But we should be careful not to forget that we are dealing with potentially toxic substances. So when we're dealing the trade in lead, we're dealing with lead that can have an effect on human health. Whether or not we call it waste, we should be promoting recycling. I think we can do that. But we should also recognize that we want certain standards to be in place.
Perhaps Mr. Clarke can update you on the international negotiations.
Mr. Clarke: There is a working group internationally. They are members of the Basel Convention, where this whole problem started initially in terms of getting everything under the rubric of wastes, with no sense of recycling being an important economic activity. That group is working, and Canada is playing, I like to think, a leading role in trying to influence the whole project.
We have not been shy in saying that recycling is good. We are a country that relies on recycling. We export a lot of metals, and we expect them to come back if we can take them back. So we are trying to influence that process. I think the whole exercise should be ready sometime next year in terms of the definition of wastes, which hopefully will take into consideration recyclables.
Mrs. Cowling: Great.
If the environmentally most inexpensive way of dealing with the tailings from Voisey's Bay were to deposit them offshore, are there any problems in getting the necessary regulatory approvals? What would be a reasonable timeframe in getting those approvals?
Mr. Cappe: Again, I'll ask Mr. Clarke for the details, but let's be clear: part of the Canadian Environmental Protection Act deals with ocean dumping. It's not prohibited. It says ocean dumping permits can be provided. Indeed, the Department of Environment issues many of them during the course of the year. So it's conceivable that ocean dumping of those tailings would be possible.
The determination of whether to issue the permit would depend on the environmental implications. Depending on whether it's in fine silt or whether it's large boulders and whether they settle or disperse and whether or not they contain arsenic comes to the judgment of whether you allow the ocean disposal. So you're not going to get an answer of yes or no from us today.
In terms of the timing - and it's obviously a theme of this discussion - the company has to be able to show what their precise plan is and then give us a proposal that says, here's an application for an ocean dumping permit, and here are the environmental implications of depositing these tailings in this or that location. The location matters, of course.
So until we have a proposal from the company, we really aren't in a position to say yes or no, but the company is well aware of the kind of considerations we would apply.
Mr. Clarke: If I may, Mr. Chairman, I'd like to say a few more things in the sense that Canada, as a matter of practice in recent times, has stopped the dumping of industrial wastes into the ocean. That is pretty consistent with the way the rest of the countries are going right now. The ocean was seen as a very convenient sink for dumping wastes. There are now conventions out there that morally take us toward no more dumping of industrial wastes.
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I have no doubt, absolutely none, that simply dumping wastes into the ocean would be the most cost-effective way of doing business. But as Mr. Cappe has said, that would be all part and parcel of the environmental assessment and what the environmental implications would be. That will resolve itself through that particular process.
The Vice-Chairman (Mr. Thalheimer): Thank you.
Before I go back to Mr. Stinson, I have a couple of questions I want clarity on.
We still don't have a government response to our interim report. Could you explain to us why that is? Is it your department that's responsible for holding it up? We don't understand why we haven't gotten a report yet.
Mr. Cappe: It's not our department that's responsible for holding it up. We've been in consultation with the Department of Natural Resources, and I know the government is considering and continues to consider exactly how to respond.
The approach the government will take in its response - and I don't want to presage what the government will do - will reflect that it was an interim report. Your hearings over the course of the last couple of months will obviously lead you to have a different report at the end, so there's a problem of responding to the interim report. But I would hope the government would be in a position to do that very early next month or by the end of this month.
The Vice-Chairman (Mr. Thalheimer): I have one more question before I get to Mr. Stinson.
Since 1993 the Canadian Council of Ministers of the Environment has endeavoured to reach federal, provincial and territorial agreement on specific areas of environmental management where it's thought we could harmonize. The results of the discussion are contained in a draft environmental management framework and agreement, which has not yet been approved. How would you categorize the negotiations that have taken place to date?
Mr. Cappe: To be precise, the environmental management framework and agreement, which was worked on at the officials' level, was not approved by ministers. The original approach was to go out and consult. Some consultation has taken place with industry groups, environmental groups, aboriginal groups and others. That consultation has provided a useful critique of the document in many ways: too tough, not tough enough, it does the wrong things, it does the right things.
I can tell you the Minister of the Environment for the federal government, Mr. Marchi, has been in contact with his provincial colleagues to discuss the issue. The CCME, the Canadian Council of Ministers of the Environment, will meet in Toronto on May 30 and 31, and that is one of the most important subjects they will discuss at that meeting. So the discussions continue.
The Vice-Chairman (Mr. Thalheimer): When do you expect agreement could be approved, if it ever will be approved?
Mr. Cappe: Let me be careful to say that the federal government has expressed its interest in trying to negotiate on specific environmental problems. I think you asked the question in such a way, by talking about environmental problems.
The environmental management framework and agreement doesn't deal with specific problems. It deals with a general framework. In my response to Mr. Stinson I made the point that we have made progress with the British Columbia government, by way of example, in putting together a bilateral environmental assessment agreement. We're prepared to do that with others as well.
I want to distinguish the multilateral negotiations on a framework from dealing with specific issues on a multilateral basis, and then distinguish that further from the bilateral agreements, which we are continuing to work on.
Everyone would like to see clarity brought to the overall framework, and that's what ministers will be discussing in Toronto. I hope they will reinvigorate those discussions.
The Vice-Chairman (Mr. Thalheimer): Do you think having 13 partners to agree on a common standard is the right approach? Do you approve?
Mr. Cappe: I don't have an opinion on that, Mr. Chairman. I'm just a bureaucrat; I don't have opinions.
It is fair to say one of the problems of the environmental management framework and agreement, and one of the reasons it was criticized by a number of people, is it creates a council of the parties, which is the ultimate decision-making body. It struck many other people that this is a recipe for paralysis and that you can't get thirteen jurisdictions to agree. Moreover, it creates a superstructure of some 11 or 13 committees of officials that were going to work on various things. Again, I don't think that's going to deal with the timeliness question this committee has already raised several times. I think it is difficult to have 13 jurisdictions agree. It would be a lot easier if the feds did it unilaterally. I don't think that's going to happen either.
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The Vice-Chairman (Mr. Thalheimer): Mr. Stinson.
Mr. Stinson: Everybody here is very concerned about the environment, so I don't want anybody to get the wrong impression. I also don't want you to have the wrong impression about Kemess, seeing as you're not fully up to date on it. What we were talking about there was 18 bull trout.
Mr. Cappe: I know.
Mr. Stinson: The question to me has to be, as concerned about the environment as I am, why could the lake only support 18 bull trout? Why weren't there 300 or 400 there?
I talked to some of the people involved with Voisey Bay and this ocean dumping came up. It was my understanding that this was not even really an option. They were not even looking at this. This is something that has come to them from the media and from people who are not involved in Voisey Bay. Has Voisey Bay ever put a proposal towards the government with regard to ocean dumping?
Mr. Cappe: I don't want to speak for the company either. I have not been privy to any of those discussions, so I'm not aware that they have or haven't. I was responding generally about the application of the ocean dumping provisions of CEPA. It's up to the company. I'm not aware of it.
I know there are extensive discussions going on with the Department of the Environment and the Department of Natural Resources. I met last week with Fred Way, the deputy minister of mines in Newfoundland. We had discussions on the process of all this, but we weren't dealing with the particulars of the project. So I just don't know.
Mr. Stinson: I just wanted to leave that out there. People out there who are listening don't understand everything that's going on, and I don't want the misconception left that this was even -
Mr. Cappe: I'm not aware if this is a critical issue for them or not.
The Vice-Chairman (Mr. Thalheimer): That being all the questions, thank you for attending, Mr. Cappe and Mr. Clarke. I'm sure the committee will consider your comments.
The meeting is adjourned.