Natural Resources Committee on Oct. 5th, 2011

[The Vice-Chair, NDP, Claude Gravelle]

I'm going to call the meeting to order.

Before we get started, I want to advise the committee members that there's a delegation from the Parliamentary and Political Party Strengthening Project in Pakistan, Phase II, that would like to meet us Friday morning. Most of us are not available Friday morning, so if anybody's interested in meeting with this delegation Friday morning, please tell the clerk. He'll make the necessary arrangements.

At this time, I'd like to thank the witnesses for coming. We have, from the Canadian Environmental Assessment Agency, Helen Cutts, vice-president, policy and development sector, and John McCauley, director of legislative and regulatory affairs.

The floor is all yours for the next ten minutes.

[Helen Cutts, Vice-President, Policy Development Sector, Canadian Environmental Assessment Agency]

I am pleased to be here. My understanding is that as you embark on your work on the north, it would be useful for you to have a briefing on how environmental assessment works. My purpose is go to over a deck; I don't have any prepared remarks. I will review the deck, which explains the Canadian Environmental Assessment Act and how it works, and I'll be very happy to answer your questions.

Turning to slide one, you can see that environmental assessment has been in place in one way or another since 1974. It was a very thin cabinet directive at that time. It wasn't until 1995 that we brought the Canadian Environmental Assessment Act into force. Since then, we've had one round of parliamentary review, and we brought in amendments by 2003. We had a small round of amendments in July 2010. That was part of the jobs and economic growth package that came with the budget that year.

Before I get into slide three, I want to emphasize that environmental assessment is a planning tool. It's a way for the government to work with companies such that before a shovel goes into the ground there is a discussion of what the environmental impacts are and how to mitigate them. This is beneficial for proponents because they get to see early on what changes in design they might need to make or what adjustments to their strategy might be needed before they invest a great deal of money.

The act itself applies to federal authorities. It asks those federal authorities to carry out assessments. These are departments and agencies, typically. There are a number of limited conditions under which those authorities are asked to carry out an environmental assessment having to do with whether a decision is required from them on a project. If they are the project proponent or if that department or agency is offering some sort of financial assistance, then they need an environmental assessment--or if they are a source of land, or if they are a regulator.

The regulation is a very common one. A company that needs to get a permit related to fish would then go to DFO and would indicate that they believe they need an environmental assessment.

We have three types of environmental assessments. Those are screenings, comprehensive studies, and review panels. I'll briefly go over each of these three types.

Most of them are screenings; these are required for any project. Our act works such that any project requires an environmental assessment, and then we have a tier that says a subset of the projects we will name requires a more comprehensive approach. Those will need comprehensive studies.

The vast majority of our environmental assessments are screenings, about 6,000 a year. The responsible authority, the one with the decision to make, is the one that carries this out. We end up with 40 or 50 different agencies involved across the board. They make a decision about what type of opportunity they want to give for public participation, they determine whether to require a follow-up program of the proponent, they make the final decision, and they're also responsible for the implementation of the mitigation measures and follow-up.

Just as an aside, I'll explain what follow-up is. Follow-up means that somebody needs to verify that the particular mitigation measures that were set out in the environmental assessment are doing what they were expected to do. This is a little different from enforcement. If we felt there was some concern about the habitat and said the company needed to make an adjustment, needed to build a ditch to ensure that the water flow was in the right direction and beneficial to the fish or other habitat that use the stream, then you would want to make sure that building the ditch did indeed divert the water and create the level of water that you expected to be sufficient when you set out those plans.

A comprehensive study, as I mentioned, is a more intensive and generally thicker document that looks at environment assessment. It meets the same types of criteria as a screening, but it has a few additional elements; for example, it would be required that you look at alternative means of carrying out the project.

The agency to which I belong is responsible for most of the comprehensive studies. The only exceptions are the ones that involve the Nuclear Safety Commission or the National Energy Board.

With comprehensive studies, one thing that is different from screenings is that we have a participant funding program; therefore, if an aboriginal group or an environmental group or a citizen would like to participate in some way and needed some funding for some research or to collect the views of their members, they can apply to us for participant funding. That's an important element of our comprehensive study program.

At the end of a comprehensive study, it is the Minister of the Environment who has to make a decision, deciding whether or not there are significant adverse environmental effects from the project. That decision would be based on the project as modified; it would not be based on the original project but on the project as described in the comprehensive study, taking into account any design changes and any mitigation plans.

Though the Minister of the Environment has that responsibility, it would still be a particular department that would be responsible for ensuring that those mitigation measures were taken. Often, as I say, it might be the Department of Fisheries and Oceans because the issue at hand was an issue surrounding fish habitat, for example. The follow-up programs under a comprehensive study are mandatory.

The third way we do environmental assessments involves situations in which the Minister of the Environment appoints independent experts, who will do research, call upon witnesses, hold hearings, and make recommendations to the government. This is another case in which we offer participant funding. The role of the agency in this particular case is limited to being a secretariat for that panel.

In the end, the responsible authority, the one with the decision to make, makes the final decision, with the approval of the Governor in Council. Again, the responsible authority checks to make sure that the mitigation measures are undertaken and that follow-up is done to ensure that mitigation is working as planned.

The last element I would like to flag to you today is on federal-provincial cooperation. The environment is really a shared responsibility between the federal government and the provinces. Many of you will already know that the provinces have their own environmental assessment processes.

This situation has the potential to create overlap and duplication. It is difficult for proponents if they have to respond to two sets of requirements. What we try to do is work with the provinces to run a process that is as seamless as possible. In order to facilitate that process, we have bilateral agreements with a number of provinces that set out how we would run a particular project when we are working together.

When we get into these cooperative arrangements, it's usually the provinces that take the lead and we participate actively.

That is simply the nuts and bolts of the Canadian Environmental Assessment Act, and I'd be pleased to answer any of your questions.

[The Vice-Chair, NDP, Claude Gravelle]

Thank you very much.

Leading off the first round will be Mr. Allen.

[Mike Allen, Conservative, Tobique—Mactaquac, NB]

Thank you very much, Mr. Chair.

I want to thank our witnesses for being here today. I really appreciate that.

Do you have any accountability responsibility or jurisdiction over north of 60 in the northern area, or is most of your work done in consultation with the provinces?

[Helen Cutts]

There's virtually no involvement in the north. The reason is that in the north, north of 60, the environmental assessment regimes are dependent on the particular arrangements through comprehensive claims. In those land claims, a board will be established. For example, in the Yukon there was an agreement between the federal government and 14 Yukon first nations. Based on the land claims there, they set up what they called the Yukon Environmental Socio-Economic Assessment Act, and there is a board associated with that that carries out all those environmental assessments.

In the Northwest Territories, the Yukon, and Nunavut, any of those arrangements in the north do have the option of referring a project to the Minister of the Environment, and they would be asking the minister whether he'd set up a review panel. When they would typically do that would be if there were transboundary effects. If the effects of a project in the Yukon, Nunavut, or Northwest Territories are limited to that region, those individual boards would look after things.

[Mike Allen, Conservative, Tobique—Mactaquac, NB]

Okay. You have led me into my next question. You said there are about 6,000 of these screenings. Going up the ladder, how many of those would ultimately end up going through a comprehensive study and then a review process? What are some of the criteria that would indicate or dictate that this should go to a review panel, and is that requested?

I'll put it into context. Let's say, for example, you have an agreement with the province to do an environmental impact assessment, which I think you do with New Brunswick. What would be the driver in you escalating that up to a review panel? Is that requested by the province? Could it be requested by any group or organization? Exactly how would that process happen?

[Helen Cutts]

First of all, of the 6,000 that we would do in a year, only 1% of them would end up either as a comprehensive study or as a review panel. Technically, according to the act, something that starts as a screening could receive a request to be elevated to a review panel, or a comprehensive study could be requested to go to a review panel. The request could come from a provincial government, an environmental association, or a proponent. It could be something that our own agency would consider.

One of the reasons why we would look to a review panel is if the environmental effects were expected to be significant. And if there were significant public concerns about the project, then we would use those as criteria to say yes, the public will be better served by having a review panel; they will feel comfortable knowing that there is an independent group of panellists considering the issue.

[Mike Allen, Conservative, Tobique—Mactaquac, NB]

Then you could in fact overrule a process that would happen through a province. If I understand correctly, if the environmental impact assessment process was started and it was deemed that there would be an implication for DFO in the process because it was a mine, and we're doing a lot of mining.... Let's say, for example, a tailings pond was going to impact a brook or something of that nature. DFO would obviously be involved in that. So you have this caveat that some group could simply write you, express a concern, and you could override that process and turn it into a review panel. Is that what you're saying?

[Helen Cutts]

We could decide to take something to a review panel that the province was not doing, but our practice would always be to work with the province and to get an agreement with the province on what the best way is to deal with the issue. We know that we are better served if we can work with the province. That would be a factor that would enter into our decision.

There is no automatic rubber stamp that says if we get a request for a review panel we will always go to one. We always want to ensure that we are as aligned as possible with the province.

[Mike Allen, Conservative, Tobique—Mactaquac, NB]

Can you comment on whether the major projects management office has helped the process in its early stages? Are you seeing a change in some of the duplication that might have been in the process before?

[Helen Cutts]

I've been very impressed with what the major projects management office has been able to accomplish. They've helped set up project agreements with timelines. That's the first thing. We have a tracker that is available to the public so they can watch what is happening on any given project and what the key milestones are. I believe that when transparency is emphasized it puts the onus on public servants to ensure that things get done in an efficient way.

The major projects office has played a key role just by shining a light on the slower timelines we had five years ago and the more rapid ones we have right now. The major projects management office has also ensured that the integration among government departments is stronger, that there is less time spent trying to decide which is going to be the lead department, so the projects get going faster.

[The Vice-Chair, NDP, Claude Gravelle]

We're going to have to move to the next round. Thank you very much.

Monsieur Lapointe.

[François Lapointe, NDP, Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC]

Thank you, Ms. Cutts.

Very shortly, your services are going to be reduced by 43% by the current government. But I see that you still have a major role: you do 6,000 assessments.

With cuts like those, can you foresee a plan that will allow you to continue such a huge job? Can you imagine being able to carry on?

[Helen Cutts]

At this stage, the possibility of a 43% cut still remains a possibility. What we do in the agency is carry out our duties to the best of our ability. Right now the agency is not doing all 6,000 of those. You have to remember that these 6,000 projects are carried out across 40 different agencies. The existing work we do we will continue to do with whatever resources we are given.

[François Lapointe, NDP, Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC]

Do you have a plan that leads you to believe that it is possible to keep your service and your studies at the same level of quality, even with a reduction of more than 40%? Can you see that happening?

[Helen Cutts]

We are waiting to hear about the evaluation of the projects management office, and when we hear about that evaluation and the results in terms of a cabinet decision about what will happen to our funding, we will put in place whatever plans we need to put in place.

[François Lapointe, NDP, Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC]

So we do not know whether it will be possible to maintain the same quality and any plan still depends on decisions that have not yet been made. But those decisions could involve reductions of up to 43%. So, in a nutshell, we know nothing about the quality of the assessments that Canadians will be getting in a few short months.

[Helen Cutts]

In the coming months we see no reason for the quality of environmental protection to suffer. This government has a commitment to environmental assessment quality, and we will wait and see what the decision is on budget cuts.

[François Lapointe, NDP, Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC]

Do you have a plan for what one might call

worst-case scenario

if, very shortly, more than 40% of your budget has to disappear?

[Helen Cutts]

I think the question you're asking is very political and it's very difficult for me as a public servant to talk about what the political plans of the government are.

[François Lapointe, NDP, Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC]

I get it, Ms. Cutts.

In a recent report, Scott Vaughan, the Commissioner of the Environment and Sustainable Development, wrote, of the environmental effects of the oil sands, that data are at best incomplete and at worst mediocre or non-existent, and make it impossible to conduct a proper assessment.

To what extent was your organization involved in those assessments? Do you agree with the commissioner's conclusions to any extent?

[Helen Cutts]

Yes, we agree with his assessment. It is necessary for us to look at the methods to assess cumulative effects better. What he's asked is that when we have some information from the cumulative effects assessment in one particular assessment to use it in future ones.

The particular projects that he examined were projects from a few years ago. Before his report was out we had already started taking into account that the results of one cumulative assessment have to go into the next one. So we are learning and already adapting.

The other area the commissioner mentioned was that the guidance materials need to be up to date. Now, the commissioner did not examine the guidance materials per se. He did not criticize our guidance materials but said we should examine them to see that they include the latest information on how to access cumulative effects.

[François Lapointe, NDP, Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC]

You say that the data he examined were from a few years ago. Can you tell me if we are talking about two years, three years, four, five, seven, eight years? Were the data he examined current as of 2008, 2006, 2002 or 2010?

[Helen Cutts]

The projects were from five years ago.

[John McCauley, Director, Legislative and Regulatory Affairs, Canadian Environmental Assessment Agency]

The commissioner looked at environmental assessments of oil sands projects that have occurred in the past that went back to, I believe, roughly 1999.