Environment Committee on Nov. 17th, 2010

[Jacob Irving]

I don't think we said that they're incapable of considering this. We're saying we feel it's more appropriate that this decision-making rest in existing parliamentary bodies that were created through Parliament and that reside within the civil service. We have professional departments that have been built up over the past number of years based on the legislation that has been passed, such as the Canadian Environmental Assessment Agency and others. We feel that's where the expert opinion lies, and that's where the resources lie to be able to provide some of the best possible judgments.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

So you're suggesting that all applications for judicial review of legislation should go before government scientists, not before the courts?

[Jacob Irving]

I'm not saying “all”. What we're saying is that in this case, we feel the existing system provides the necessary measure of protection and enforcement of the regulations that would help our industry achieve the certainty that it needs.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

I'm just trying to seek clarification. You've said you're not going to seek repeal of exactly the same provisions under CEPA, and yet you don't believe that these provisions--the right, say, for a citizen to seek an investigation if they think there's an alleged offence occurring, or the right to seek judicial review if they believe that an environmental law is not being enforced by an agency--should apply to other environmental statutes? You don't believe there should be recourse to the courts in those matters or that a citizen should have recourse to file a request for an investigation of an environmental offence?

[Jacob Irving]

It's really not up to us as an industry to have an opinion on when and where people should be able to have recourse to the courts.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

I wasn't speaking about the courts, sir. I was talking about the right to file an investigation. You've spoken against the bill, so I'm asking you a question: Do you support the aspects of this bill--for example, the right of a resident to file a request for investigation of an alleged offence?

[Jacob Irving]

I understand that this is where it's an investigation to the minister. Is it that portion of the bill?

[Linda Duncan, NDP, Edmonton Strathcona, AB]

That portion of the bill provides the right, which is identical to that under CEPA, of an individual to request an investigation where they have information that comes to them that there may be an alleged offence under a federal environmental law.

[Jacob Irving]

No, we're not seeking that under CEPA. But under the auspices of this bill, we find that there's increased uncertainty compared to that one.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

So are you of the view in your industry that at no time should environmental changes to your industry be advanced?

For example, I was advised last evening, by an American expert, that the United States Army Corps of Engineers are actually revisiting their dams to examine whether it's possible to operate them in a more environmentally benign manner but to still proceed with the operation of the dams. Are you opposed to any opportunity to reopen environmental approvals to perhaps allow for operation in a more environmentally benign way?

[Jacob Irving]

No.

[Ian Kerr, Vice-President of Development, Brookfield Power Services Inc.; Canadian Hydropower Association]

Perhaps I can offer some comment.

There already are those provisions in all of the jurisdictions in Canada I work with.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Can you give an example in law where that right is important?

[Ian Kerr]

Certainly in the provisions for approvals under the Fisheries Act, for instance, there is a requirement for what's known as adaptive management. Those are usually conditions of approval, under the act, that for certain parameters for which there is some uncertainty at the time of the approval the proponent has to be willing to adopt an adaptive management approach whereby as impacts are better understood throughout the operation of the facility--

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Right, you're 100%--

[The Chair, Conservative, James Bezan]

Thank you. Your time has expired.

Mr. Blaney, go ahead.

[Steven Blaney, Conservative, Lévis—Bellechasse, QC]

Thank you very much, Mr. Chair.

I would like to thank Messrs. Irving and Kerr for appearing on such short notice.

You have just confirmed my worst fears about the bill currently before our committee. We can't blame you for exploiting fossil energies and being polluters involved in oil or shale gas, which are found in Quebec. While I have a lot of respect for those two industries, the truth is that they are not exactly getting good press.

You are an industry leader in the field of renewable energy in Canada. Hydropower is our greatest resource, especially in Quebec.

Your testimony is crystal clear, if you'll forgive the expression. You pull no punches. You're already saying that this bill could compromise hydropower projects. There are several projects currently under way in Quebec, and we'd like to have more. You say that it normally takes 8 to 14 years to carry out a hydropower project, and that this bill would introduce a level of uncertainty. Unless I've misunderstood, you're saying that this period could become even longer. Did I understand you properly?

[Jacob Irving]

That's how we interpret the bill's provisions. It would add another level of uncertainty, a new way to slow down projects. We are not against changing or improving the way the environment is taken care of. However, we are not completely sure that this approach will help us reach that goal. It's more likely to slow down most of our projects.

[Steven Blaney, Conservative, Lévis—Bellechasse, QC]

You were very clear during your presentation. You say that the bill would raise the level of uncertainty and the risk of litigation, and would thus prevent you from playing your stewardship role, as you put it. I would call you a champion of project development monitoring.

I see this bill, especially from a Quebecker's point of view, as the New Democrats trying to pull the wool over Quebec's eyes. It appears that the bill is clearly interfering in provincial areas of jurisdiction. As it was shown earlier, the bill's scope is overly broad, and I find that fact extremely worrisome.

I would like to hear what you think about this quote from a Shipping Federation of Canada submission presented to us by an industry representative:

[...] we are concerned that Bill C-469 would enable anyone to challenge any regulatory standard at any time, thereby trumping the existing regulatory process and creating regulatory unpredictability.

As my colleague Blaine Calkins said, we have spent decades implementing an extremely strict and complex environmental regulatory framework. Now, a new element is being added to the framework and is creating a kind of a “twilight zone” situation. As things stand, anything is possible. It seems that the bill will create a potential risk for developers like yourself who want to carry out sustainable development projects.

What's your reaction to this situation? Could it negatively affect investments? Could this bill compromise the funding provided for sustainable development projects?

[Jacob Irving]

That's how we see it. The bill would introduce uncertainty, and that's why I say that it could interfere with our other efforts to promote environmental improvement. Our industry has been especially successful in adopting various measures for improving the environment. We are well aware that our development activities have consequences and that many things must be done in compliance with the regulations. Other measures, unrelated to the regulations, must also be adopted to improve the situation.

The problem is that this costs money, of course, and it requires and diverts resources. Improving the environment is something we take seriously and are committed to. If a bill were to introduce a new level of uncertainty, it would force us to reassess our additional efforts, and would perhaps bring us to question whether we should be involved in environmental improvement initiatives. If something like this were done, we could end up wondering...

[Steven Blaney, Conservative, Lévis—Bellechasse, QC]

Mr. Irving, I apologize for interrupting you, but we're running out of time.

We were provided with a legal opinion at the beginning of the week. The opinion states that the bill goes against sustainable development because such development requires a balance between the economy and the environment. You are something of a sustainable development champion in Canada. Do you feel that this bill creates an imbalance because it stands in the way of the economic support needed for carrying out sustainable development projects?

[Jacob Irving]

That is the potential risk and the reason why we are very pleased to be here today.

[Steven Blaney, Conservative, Lévis—Bellechasse, QC]

Mr. Chair, you signaled that my time is almost up, so I would like to wrap up my comments.

You said that this bill is extremely harmful and devastating for sustainable development projects, right? You said this in English. Did I understand you correctly?

[Jacob Irving]

Yes, this is what could happen if the bill is not amended.

[Steven Blaney, Conservative, Lévis—Bellechasse, QC]

Great, thank you very much.

I'm done.