Evidence of meeting #21 for Environment and Sustainable Development in the 40th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was cema.
Conservative
Peter Braid Conservative Kitchener—Waterloo, ON
Are you pursuing those potential Métis community memberships?
Executive Director, Cumulative Environmental Management Association
Yes. Next Friday I'm spending all day in one of those communities.
Conservative
Peter Braid Conservative Kitchener—Waterloo, ON
Very good.
You mentioned, either in your presentation or in response to a question, that you've just concluded a traditional food study. Can you tell us anything about that study or the results?
Executive Director, Cumulative Environmental Management Association
Basically, it was conducted under our trace metals working group.
Initially, we found dietary experts who went into the communities and trained people within those communities to interview the residents as to what traditional foods they were still using and in what percentage of their diet. The next phase is to go back into those communities and report back what we have found.
Health Canada has always been a member of CEMA, but very recently, Alberta Health and Wellness has applied for membership in CEMA, to take that information to the next step of analyzing the results of those studies as to what is in those traditional foods.
Conservative
Executive Director, Cumulative Environmental Management Association
Under the trace metals working group, it's to see how those traditional foods may be affected over time.
Conservative
Peter Braid Conservative Kitchener—Waterloo, ON
When might we have further results from this study? When might they be publicly available?
Executive Director, Cumulative Environmental Management Association
For the initial studies, as soon as we get confirmation from the participating communities, we can make some of that public. That's always the restriction when dealing with first nations communities. You have to have their permission to release their data. We hope to work on that by the end of the year.
Conservative
Peter Braid Conservative Kitchener—Waterloo, ON
Finally and very quickly, you mentioned that you're in the process of making changes that will hopefully attract back the groups that have left. On a scale of one to ten, in your mind, how far along do you think you are in making those changes?
Executive Director, Cumulative Environmental Management Association
We're probably about halfway there. We have a lot of the process in place, and now we're into the details, but I'm an optimist.
Conservative
Executive Director, Cumulative Environmental Management Association
That's exactly right.
Liberal
The Vice-Chair Liberal Francis Scarpaleggia
I believe there are no other questions.
I would like to thank you, Mr. Semenchuk, for coming by and explaining the CEMA process and answering our questions.
We now move into our last segment, with Ms. Arlene Kwasniak, from the faculty of law at the University of Calgary; and Mr. J. Owen Saunders, from the Canadian Institute of Resources Law.
Welcome, and thank you for coming here to speak to us. You'll be capping three days of very interesting testimony and site visits.
I understand you each have a 10-minute presentation.
J. Owen Saunders Executive Director, Canadian Institute of Resources Law, University of Calgary, As an Individual
We've been told that we have seven minutes.
Executive Director, Canadian Institute of Resources Law, University of Calgary, As an Individual
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.
Liberal
Arlene Kwasniak Professor, Faculty of Law, University of Calgary, As an Individual
Thank you very much.
Of course I don't represent the University of Calgary either. These are my own points of view.
My presentation will concern two areas. I will speak on the importance of an effective legislated enforcement mechanism for the water management framework, instream flow needs of and water management system for the lower Athabasca River. This is what my colleague was referring to--that is, to one of the agreements and whether there is such a mechanism.
I will also briefly discuss how critical it is that we have an effective wetlands policy covering the northern boreal forest, where oil sands mining and in situ operations are occurring, and how the oil sands or oil and gas industry have effectively blocked a consensus policy recommendation to the government.
With respect to the first issue, the water management framework, as you probably know from other submissions, oil sands operations use a very large quantity of water. As development increases, so will their water needs, and there will be more of an impact on the Athabasca River. So in an attempt to deal with these water quantity issues, the Department of Fisheries and Oceans and Alberta Environment developed the water management framework, which, among other things, determines the instream flow needs of the lower Athabasca River and sets out water management responses for the oil sands industries that are using the water.
The primary mechanism of the framework is to establish three river flow conditions: green, yellow, and red for each week of the year. So far in 2009 Alberta Environment has issued three yellow zone warnings. Both the yellow and the red zone management actions potentially require a Fisheries Act authorization, if the withdrawal or cumulative withdrawal “results in the harmful alteration, disruption or destruction of fish habitat” under subsection 35(1) of the Fisheries Act.
As well, the framework contemplates that when water supplies are limited by flow conditions, the industrial water users will cumulatively limit their withdrawals from the river to meet the targets established by the framework, and will then share the residual amount so that every industry will get some water to keep carrying on with their development.
But to protect the instream flow, it is critical that the oil sands water users, at minimum, adhere to the framework's required water management responses. There are some who indeed think that the instream flow requirements could have been set higher than they are.
So the question I raise here is what is there in place to ensure compliance? Under the Water Act, where the industry users have their rights to use water, there is nothing that would require compliance, nor is there anything under predecessor legislation. In fact, water rights are based on first in time and first in right, and each water user has the right to take their entire allocation in accordance with their licences and the terms and conditions of those licences.
What the framework is requiring the industries to do is essentially to contract out of the legislation in order to maintain the instream flow requirements in the Athabasca River. So I then raise the question, what is there to require this contracting out to be maintained?
Having looked at the 2008 industry agreement, I do not even see consideration of this mentioned in it, and it's not clear to me that it is an actual binding contract. Moreover, there is no legislation requiring this voluntary arrangement to be continued.
There are other things that have been touted as regulatory backstops. For example, there are conditions on water licences. However, if one were to look at these conditions, you'd see that the conditions are different on all the licences. Some of them I think are legally specious, in that they seem to have been added after the licences were issued, and I'm not sure if government would actually be enforcing these conditions.
In any case, in other areas the province has indicated that it will not enforce such conditions--this is for the South Saskatchewan River basin, a different basin--unless they were issued after 2005. So I'm certainly not confident that conditions on licences will do the trick.
There's also, of course, the Fisheries Act and the requirement for a Fisheries Act authorization if withdrawals will cumulatively, or I guess individually, result in a harmful alteration, destruction, or disturbance of fish habitat, or HADD. However, I think there are real issues with that as well, because unless you can pinpoint one licence, it's going to be difficult to determine who was responsible for that HADD. And in any case, it could always be authorized by the federal government, which is not going to protect our instream flows.
Finally, the agreement, the framework itself, says that it does not apply to pre-1977 water licences, because that's when the HADD provisions were put into the Fisheries Act. The pre-1977 licences are those of Suncor and Syncrude, or at least some of Suncor's licence, and they amount to about 75,000 acre-feet of water per year. I would contend that there really is no reason in law to exempt those licences, and indeed, the DFO otherwise has published a policy that says it will apply section 35 to pre-1977 structures. So it's not clear to me why they haven't amended the framework to make it clear that it also applies to pre-1977 licences.
My suggestion is that it's in the public interest, and if we're going to protect the river, we're going to have to have some effective legislated control over these licences and to maintain the industry agreement. If industry is bona fide, as it claims to be, about really wanting to adhere to the framework, it shouldn't be unhappy about having such legislation put in place.
The second thing I want to talk about briefly is the provincial wetlands policy. Since 1993, Alberta has had a wetland policy that applies to what we call the white area of the province, or the settled area of the province, and not the boreal forest where the oil sands mining is occurring. That is a no-net-loss policy, meaning that if someone wants to destroy or disturb a slough-marsh wetland, then they have to, according to the policy, restore one in some other place.
Since 1993 the government has been trying to develop a comprehensive wetland policy that applies not only to the white area, the settled area of the province, but also to the northern boreal forest and the peatlands. In May 2005, the province took a major step to this end when the Alberta Water Council was charged with the mandate to develop such a comprehensive policy and struck a wetland team, of which I was a member. I represented the Alberta Environmental Network.
We met for three years. We had numerous meetings, all-day meetings. It was a huge amount of work. During this, the NGO community made many concessions in order to reach a consensus document at the end, which I thought we had. Indeed, after we had our last meeting, the two oil and gas stakeholder organizations sent letters in and either denied they had consensus or withdrew consensus and said they could not accept the document. So that's where it stands right now, after three years.
The document now is with the provincial government and we do not have a wetland policy, notwithstanding that oil sands mining will destroy or has destroyed 80,000 hectares of peatlands. As I'm sure all of you know, these peatlands, these wetlands in the north, provide numerous water quality and water quantity functions, as well as provide for ecosystem health.
My recommendation--and I don't know what power you would have to do this--is that somehow we really need to get this policy in place before there are more approvals. My hope would be that it would apply to approvals under consideration and that the government no longer delay on this.
Thank you very much.
Liberal
The Vice-Chair Liberal Francis Scarpaleggia
Thank you very much. That was fascinating testimony from both of you.
We'll start with Mr. Trudeau, for seven minutes.
Liberal
Justin Trudeau Liberal Papineau, QC
Thank you.
Mr. Saunders, you mentioned at one point that you feel that the federal government, for two or even three decades, has been stepping back from its legal and potential interventions and responsibilities towards environmental enforcement in areas particularly of provincial and jurisdictional conflict. Do you get a sense of why that trend has been so marked, regardless of which governments have been in place?
Executive Director, Canadian Institute of Resources Law, University of Calgary, As an Individual
I think my comments were a little more restricted than that. I might agree with a more general comment, but my comments really were restricted to the federal government's role on transboundary water management, and specifically with respect to the Mackenzie basin. I think one could make the case more generally.
If you look at the Mackenzie, for example, the first meetings geared at getting some agreement on the Mackenzie were in 1972. They produced an agreement in 1997, 25 years later. That agreement is contingent on subsequent bilateral agreements that would actually provide the substance. Well, 12 years later, we have one, between the Northwest Territories and the Yukon, and that's possibly because there's virtually no water flowing between them.
It's characteristic, I think, of all federal governments. There have been times when the federal government has indicated that it might become more interventionist, or I won't say “interventionist,” but that it might take on its responsibilities, because I think the federal government really has to be the place of last resort where you have conflicts in interests between the jurisdictions.
The last time you saw that willingness was in the mid-1980s, when two successive governments--first, a Liberal government with the Pearse inquiry, and then a Progressive Conservative government, which followed up with the federal water policy of 1987--showed some interest in that, but it has really fallen apart since then. This is, I think, aggravated by the fact that the federal government has in many respects lost the capacity to engage in this sort of work even if it wanted to. It has largely stripped itself of much of the expertise it once had in terms of policy.
Liberal
Justin Trudeau Liberal Papineau, QC
It stripped itself of expertise how? Is it in not having the staff, or just not having the habit of intervening?
Executive Director, Canadian Institute of Resources Law, University of Calgary, As an Individual
At one time in the 1980s, if I wanted to talk to the federal government about water policy, I knew where to go: I'd go to the inland waters directorate. That doesn't exist any more. I wouldn't know who to go to in the federal government. That “who” may be a number of who's, located in different places.
One of the things you need, of course, in the federal government, if you're going to advance an agenda, is a champion. I think the inland waters directorate did that. It's hard to see who the champion is in the federal public service on water right now.
Liberal
Justin Trudeau Liberal Papineau, QC
With the issue that water is becoming in the 21st century, I think we need to get back to that.
Ms. Kwasniak, in our capacity as a committee on environment, we're doing an oil sands and water study here. We're also looking at renewal of SARA. We're looking as well at a bill on environmental enforcement, which has been a big issue of direction that this government is enthused about. So it concerns me to hear that we are not, as a government, stepping up in terms of enforcement of the rules that are on the books. Is that consistent, that there are regulations we could be applying in terms of protecting the environment that are not being enforced?