Evidence of meeting #4 for Bill C-39 in the 45th Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was nature.
A video is available from Parliament.
Liberal
Danielle Martin Liberal University—Rosedale, ON
That's helpful.
I want to make sure that we touch on the question of land trusts. They're something I'm quite passionate about in the urban environment, but I understand that we're talking about land trusts as they relate to this bill. Can you say a bit about how you see land trusts fitting into that long-term regional planning?
Vice-President, Conservation Strategy, Nature Conservancy of Canada
Absolutely.
This is an opportunity for Canada's nature strategy and our building Canada strategy to come together. One of the places land trusts, which are organizations whose mission is land conservation, could be working with proponents.... These are the people who know the land better than most people. They wake up every day thinking about what needs to be done to help support biodiversity outcomes. By working with these local land trusts, they can be part of your team on the ground identifying the optimal places to work, both with proponents and with governments.
Gabriel Ste-Marie Bloc Joliette—Manawan, QC
Thank you, Mr. Chair.
I would like to extend my greetings to all the witnesses.
Mr. Chair, I provided two quotes from the Barreau du Québec's brief. I just want to remind the committee members that the Barreau du Québec sent this brief to the committee and that it will be available on the committee's website once the translation is complete.
My questions are for Ms. McMurray.
First, clauses 5 and 49 of the bill grant the minister the discretion to authorize measures that affect the environment even before the approval of a project. This means that the proposed amendments to the Impact Assessment Act would make it possible for the Minister of the Environment or the Canadian Nuclear Safety Commission to authorize a proponent to begin construction on a project before obtaining final authorization based on the impact assessment.
Would the requirement to impose restoration conditions, under the proposed new subsection 7(6), provide sufficient protection against the negative effects of premature construction?
Government Relations and Campaign Specialist, Ecojustice Canada
Thank you for the question. I will answer in English to be as precise as possible.
In a word, no. If the full extent of a project's impacts on an area of federal jurisdiction is not fully assessed or not fully understood, we can't mitigate harms we don't know about yet. We can't foresee all potential harms if we haven't completed the assessment.
Early construction activities can still have significant adverse environmental effects. I believe last week the minister suggested examples of building culverts or roads. These have significant adverse environmental effects. We don't know what the effect will be on a fish-bearing stream if we haven't done the assessment yet. We don't know what the impact will be on a species at risk if we're not fully sure whether a species is in the area.
Building roads, for example, causes increased predation by wolves on large ungulates, such as caribou, because they create linear corridors that are faster and more efficient to travel. If we don't know about the endangered status of a herd of caribou in the area before we issue these conditions, how can we know how to protect these caribou who may be a keystone species for an indigenous community that may not yet have disclosed that they practise their rights in this area?
We're putting the cart far before the horse in this situation.
Thank you.
Bloc
Gabriel Ste-Marie Bloc Joliette—Manawan, QC
Yes, it's very concerning.
Thank you very much. You could have given your short answer in French. I'm teasing you.
There are clauses in the bill—several of them—that require decision-makers to consider what is called the technical, economic and practical feasibility of the conditions set out in the authorization before issuing it to the proponent. In practice, these amendments might discourage decision-makers from approving conditions that would increase costs or extend the construction time of a project. It's a bit technical, but the wording of this requirement contains no indication, which means it is entirely up to ministers to determine the feasibility of the conditions set out in their authorization. That could slow down the enforcement of strict conditions to protect the environment. It will always be more expensive, more difficult and take more time to protect the environment, threatened species, fish and their habitat than to carry out a project with no strings attached.
What guarantees are there that decision-makers will take into account the technical, economic and operational feasibility of the conditions imposed on projects in the authorization documents before determining whether they can move forward?
Government Relations and Campaign Specialist, Ecojustice Canada
Thank you. I will answer again in English. We'll try next time.
There are a couple ways to do this. The first thing would be to remove the requirement to assess the “technical, economic and practical feasibility of the conditions.” Something else would be to introduce a reverse onus provision that would make it the job of the proponent to prove that a condition wasn't technically, economically or practically feasible. As it stands right now, the discretion means that the minister could pre-empt the strength of their own conditions in issuing them, because they would worry that it would be too onerous on a proponent, but introducing a reverse onus provision would mean that the proponent would have to say, “No, I can't do this, and here are the practical reasons.”
Introducing a measure of a burden of proof would be helpful. For example, the Impact Assessment Agency of Canada has this requirement in section 22 of the Impact Assessment Act. What happens in practice is that the decision statements team at the agency has a dialogue with the proponent, and the proponent has to do that proving. That's a policy that's in place, but there's no guarantee that this policy would be put in place at the Canada Energy Regulator for the Canadian Navigable Waters Act, etc. I think a reverse onus provision would be very helpful.
Jarislowsky Chair in Clean Economy, University of Ottawa, As an Individual
The other thing you can do, in addition to looking at the technical and economic feasibility, is to look at all feasible measures to mitigate environmental harm and offset impacts. Look at the environmental feasibility and make sure everything feasible is being done to minimize, avoid and offset the impacts of the project. That's the kind of balance we want in this bill.
Bloc
Gabriel Ste-Marie Bloc Joliette—Manawan, QC
Thank you very much.
My next question is about the Canadian Energy Regulator, which is being granted an exemption power. You talked about it earlier when answering another question.
Could you explain again what that is? In some cases, pipelines could be built without an environmental impact assessment being done. In some situations, it is the minister and his team who will give the authorization, and in others, it will be the regulator, when a project requires at least 300 kilometres. That said, with an exemption, there would no longer be any assessment.
I don't have much time left. You have 30 seconds to answer, but I can come back to it in the next round, in 10 minutes.
Government Relations and Campaign Specialist, Ecojustice Canada
The Canada Energy Regulator would have the ability to exempt a pipeline of any length, over or under 300 kilometres, from the need to obtain a certificate. It would take away cabinet's power of approval for a project of over 300 kilometres and would remove any need for assessment at all. Because there would be no requirement at all for a pipeline to undergo an impact assessment, a pipeline could be approved prior to any environmental evaluation.
Liberal
Conservative
Branden Leslie Conservative Portage—Lisgar, MB
Thank you, Mr. Chair.
I'll continue with you, Ms. McMurray.
Ecojustice has also said that Bill C-39 “tears apart Canada's key environmental regulatory safeguards”. I sit on the environment committee, and last week I heard the Liberal chair of our environment committee say in the House that this bill has been subject to a “wild disinformation campaign”.
Do you think that the government is dismissing legitimate environmental concerns, or as Liberal MPs are claiming, are you and your organization in fact deliberately offering a wild disinformation campaign?
Government Relations and Campaign Specialist, Ecojustice Canada
I sincerely hope that I am being entirely honest with you. I intend to be entirely honest with you.
All jokes aside, this work that my colleagues and I are doing is not mis- or disinformation. We are interpreting the legislation as it stands to explain what its impacts would be on the environment and on projects. We are looking at what the legislation says and not just what the legislative intent is. The legislative intent may be that a region of national interest could never be an entire province, as you exchanged last week with Minister LeBlanc, but the legislation as it stands does permit that.
If Liberal MPs are talking about what the bill does and doesn't do, while the legislation offers so much discretion, I think there is a need for this committee to introduce guardrails on that discretion to ensure that the legislative intent of the bill matches the wording and the powers that are possible under it.
Jarislowsky Chair in Clean Economy, University of Ottawa, As an Individual
That's pretty much what we're proposing.
Conservative
Branden Leslie Conservative Portage—Lisgar, MB
Thank you for that.
Just quickly, because you touched on the region of national interest, both in your intro and in that answer, it's very unclear what that means. Maybe it's a good idea, but none of the ministers could really offer any clarity, and there seems to be no willingness to put any sorts of guardrails in that space.
In your view, if cabinet were to designate a very large area, what could go wrong?
Government Relations and Campaign Specialist, Ecojustice Canada
I think we have to take one step upstream. In order to have a region of national interest, we must have a regional assessment. Regional assessments are conducted under the Impact Assessment Act or under the relevant territorial legislation.
Let's take the Impact Assessment Act. Section 92 gives absolutely no guidance as to what a regional assessment must be. There's no required purpose. There are no required factors to consider. There are no required outcomes. A regional assessment could be a six-month study of offshore exploration drilling in Nova Scotia, or it could be an ongoing six-year regional assessment in the Ring of Fire in partnership with first nations and indigenous communities.
The risk of designating a large area on the basis of a regional assessment that was done without clear guidance, without clear requirements for what it must be, means that cabinet could designate a region of national interest based on very thin regulatory requirements, which could lead to high-risk environmental harms.
Conservative
Branden Leslie Conservative Portage—Lisgar, MB
Thank you.
Five years ago, the Liberals passed the Net-Zero Emissions Accountability Act, which I know you're aware of, which legally committed to certain emissions reductions. Now, Bill C-39 is intended to accelerate major energy projects, including new oil pipelines.
Do you believe those two laws could possibly be working towards the same goal?
Government Relations and Campaign Specialist, Ecojustice Canada
With deliberate and careful amendments introduced in this committee—some of the amendments proposed by my colleagues here—I think it's potentially possible.
The Prime Minister has already said that we're going to miss our goals under the Canadian Net-Zero Emissions Accountability Act. We are going to miss our goals under the Paris Agreement. I worry that if Bill C-39 passes as is, we run the risk of losing ground on climate change entirely.
Conservative
Branden Leslie Conservative Portage—Lisgar, MB
My understanding is that your organization is representing a number of groups and students who are taking the government to court over failing to meet its obligations under that Net-Zero Emissions Accountability Act.
How can Canadians have confidence when we hear ministerial assurances while we have an organization, like yourself, currently taking the government to court over their unwillingness to update their existing emissions reduction plan and while the environment committee hasn't had any sort of statutory review undertaken after the five years have been up?
Government Relations and Campaign Specialist, Ecojustice Canada
Are you asking me how Canadians can have confidence in the government taking these actions?
Government Relations and Campaign Specialist, Ecojustice Canada
I think the comfort that Canadians can take is that organizations like mine, and like West Coast Environmental Law, East Coast Environmental Law and the Canadian Environmental Law Association, are there, on the ground, trying to ensure that the government implements the legislation as it was promised and to ensure that we get the outcomes that we wanted to achieve when we passed this legislation in the first place.
Conservative
Branden Leslie Conservative Portage—Lisgar, MB
Why, in your view, is the government...? They tried to dismiss that court case, and that failed. They tried to use the fact that they built “may” into that legislation, rather than “shall”. Why is it that the government is resisting the actual review being undertaken and updating their emissions plan?
Government Relations and Campaign Specialist, Ecojustice Canada
I wouldn't presume to speak for the government's intent in doing so.
Thank you.
