I'll be able to speak at a reasonable speed, then. That's fine.
I should probably begin, Mr. Chairman, because it sounds like I have somewhat more of a broader overview than my colleague.
Thank you for the invitation. I want to begin by emphasizing that I'm here in my personal capacity. The Canadian Institute of Resources Law does not actually take positions on public policy issues, so the views of its professional staff remain just that, their own views.
Turning to the substance of what I want to say, I'm going to restrict my comments here to two issues: first, transboundary water issues that may arise as the consequence of oil sands development; and second, some of the interjurisdictional implications arising out of new provincial approaches to natural resources management, particularly as they affect the oil sands.
I'm going to deal with the first of these issues very briefly. The federal role in transboundary water management is of relevance to this committee, it seems to me, in at least two respects.
First, with respect to the lower Athabasca, this watershed is, of course, part of the large Mackenzie basin. If one were to take the broader view and look at the likely stresses on the basin in coming years, particularly in light of possible impacts of climate change, then one is inevitably struck, it seems to me, first, by the highly deferential role that the federal government has played in the negotiation of the interjurisdictional agreement on the Mackenzie; second, by the consequent weaknesses of the agreement itself; and third, by what I think we have to say is the poor track record of jurisdictions in concluding the subsequent bilateral agreements necessary to give some substance to the master agreement.
In sum, there are important federal interests here and a clear need for federal leadership, which has largely been abdicated by the federal government over the past three decades.
A second transboundary issue the committee might want to consider relates to the federal interest that would be triggered by the use of transboundary deep saline aquifers that extend into the United States, and that would be for CCS purposes. This is not idle speculation. There are indeed just such transboundary formations that are of interest in the south of the province.
Again, there would appear to be a clear federal interest in these aquifers, but as legislation now stands, it is not clear that there's even a trigger for the federal government to initiate an environmental assessment. Put differently, would the federal government in such a situation simply leave the field to the province even though we are dealing with transboundary waters?
Turning now to the second issue I referred to at the beginning, I'd like to discuss briefly how one reconciles the nature of the federal government's constitutional responsibilities with the imperatives of modern approaches to natural resources management.
I think the challenge facing the federal government in this respect may be summed up this way. The role that our Constitution contemplates for the federal government in natural resources management is, in some respects, strong, but more importantly it is narrow, predicated primarily on a relatively small range of interests—for example, fisheries, navigable waters, and so forth.
By comparison, of course, the provincial basis for exercising jurisdiction in this field is very broad, and in the result, the proposition that the provinces should, in general, take the lead in the management of their own natural resources endowments is not seriously questioned. What is more problematic, though, is how natural resources management regimes can be structured to both recognize the pre-eminence of provincial authority and yet accommodate the federal government's constitutional responsibilities, while still allowing decisions on resource development to be made in an effective fashion.
One of the primary tools for integrating federal concerns into the process of natural resources management in recent decades, of course, has been environmental assessment. Over the years, federal and provincial cooperation on EA has enabled the federal government to introduce its specific concerns with particular projects into approval processes for projects that are primarily of provincial interest. The value of EA is beyond doubt; however, the limitations of project-specific analyses have also increasingly been recognized in recent years, particularly with respect to the recognition of cumulative effects.
To some extent, EA itself has been adapted to take account of cumulative effects. However, there has also been a move, more generally, to create different processes that take on this planning function independently of EA.
Sometimes these processes are sectoral in nature, such as Alberta's “Water for Life“ strategy. Sometimes they are broader, such as Alberta's land use framework, for which legislation has recently been introduced in the legislature. The signature of most of these new initiatives, though, is the recognition of two fundamental principles: first, that planning is best done at the landscape level, so that all interactions between humans and the natural environment are taken into account; and second, that planning exercises should be place-based, so that planning reflects the unique conditions of the area in which it is being conducted, and should therefore include a significant role for local input.
The challenge posed to the federal government by such approaches is if the nature of effective planning is that it is landscape in scope and place-based in orientation, how does that fit with the federal goal that is largely sectoral in scope, whether protecting fisheries, or navigable waters, and primarily national in orientation?
One possible response to this challenge lies in the approach that has been taken with respect to the lower Athabasca River; that is, to deal with federal interests—in this case, those primarily related to fish and fish habitat—on an ad hoc basis, and initially in the context of CEMA, and subsequently through a federal-provincial agreement on a water management framework. I won't address the merits of either CEMA or that framework at this point, though I suspect my colleague will, but I would point out that even CEMA has questioned where they stand in the face of the types of provincial planning exercises represented by the new land-use framework in its implementing legislation.
I think this is an area where the committee could provide some useful advice as to how the federal government should adapt its own role in natural resources management in light of these new and emerging provincial approaches.
Thank you.