First I wish to thank you for the invitation to address this committee. I am happy and honoured to be here.
What happens to the CEAA as a result of this committee's deliberations will strongly influence the kind of federation we in fact have in Canada and the kind of environmental and social legacy we leave to our children and their children. As you know, you have a lot of responsibility to the citizens of Canada--the common citizens--and their children and your children.
In my submission I will largely make and substantiate a plea that in this seven-year review, the federal government, for the sake of the public interest and the sake of Canadian democracy, reverse its retreat from its role and responsibilities in federal environmental assessment. Instead it should strengthen and improve federal environmental assessment presence, processes, and legislative authority.
To these ends, this submission will cover the following few relevant areas.
First is why we need strong federal environmental assessment in Canada. Second is why we should avoid the myth and trap of overlap and duplication rhetoric. Third is why a federal project approach will not work in the Canadian federal democracy.
Finally, I will make a very brief comment on the Keystone project, because I think it teaches us some lessons about doing environmental assessment right the first time.
Why do we need strong federal environmental assessment? As we know, in Canada the federal government may assess a project when it falls under its constitutional jurisdiction and some other conditions are met. The constitutional jurisdiction is exclusive in Canada, meaning that if the federal government has the exclusive right to regulate something, no other level of government may do it. The areas that are most important in environmental assessment are fisheries, navigation, migratory birds, federal lands, aboriginal interests, nuclear facilities, and interprovincial and international matters.
Having the exclusive right to regulate in these and other areas, only the federal government can in fact, law, and from a political and moral perspective do an effective job in assessing these impacts.
It's “in fact” because it's only the federal government, which has to do the regulation in the end, that knows what it needs in order to regulate; knows what it needs in order to set out monitoring provisions; to do follow-up; and to put in any adaptive management provisions.
It's “in law” because only the federal government is accountable for its areas of jurisdiction. It cannot delegate its matters to the provinces. The provinces simply cannot do it. If the federal government doesn't do it, it will not get done.
It's “from a moral and policy perspective” because only the federal government, again, is politically and morally accountable to the people with respect to these resources. As the federal government retreats from this, I would say that it also retreats from its responsibilities under our constitution, and our federal democracy is thereby eroded.
I'd like to say that this is not missed. In Calgary there are discussions about the federal government retreating from its federal responsibilities, not just among the people who are occupying Calgary but also among intelligent academics and others.
Moving on to overlap and duplication--I've written about this in my submission and elsewhere--I basically want to address the fact that we always hear this rhetoric about overlap and duplication: we have to get rid of it, so let's get rid of the federal government.
Well, as a matter of fact, overlap is not a bad thing. Under our constitution, there are bound to be overlapping issues that are of interest to both the federal and the provincial governments because of the way our division of powers work. There may be a fisheries issue with respect to a project, and there may be all kinds of provincial issues. So overlap is not bad in and of itself. It just is. Unless one is complaining about the constitution, one really shouldn't complain about overlap.
Duplication, of course, is something different. That's when a proponent or someone is asked to do something more than once, perhaps in different formats, and so on. Duplication is something that can be dealt with. I think the federal government and the provincial governments have tried to deal with duplication. I think there are more things that can be done, such as better harmonized agreements, a new federal coordination regulation, which we've been promised for eight years, and effective dealing with late triggering within the federal family to deal with federal duplication.
The fact that there is overlap and duplication should not be a reason for the federal government to recede from environmental assessment or make environmental assessment less effective. There are ways of dealing with that duplication. Overlap just is.
With respect to a project list approach, I understand that the federal government is looking at a project list approach to replace the trigger approach, which we now have. I would like to say that I don't think this is going to work. Because of the way our constitution works, there are projects that fall under federal jurisdiction unless, for example, it's completely on federal lands or a couple of other exceptions. Even if you had a project list approach, you would still need a trigger, so why do away with the trigger in the first place?
Only looking at projects of national significance or the like, such as under the NEPA in the United States or under the Australian legislation, just doesn't work here because in both of those countries their constitutions are different. They don't have exclusive legislation over important things like fisheries and navigations seated in the federal government. There's more of a concurrent type of power, where the federal government will prevail if there's a conflict. I think you have to take into account these constitutional differences when you're thinking about a project-based approach. I would be happy to talk about that more.
Finally, I have a couple of comments on the Keystone pipeline. As we know, President Obama recently announced that he is going to delay that decision, and he wants to study the environmental, social, and health impacts on Americans. As I'm sure everyone here knows, the environmental impacts of that project have been studied quite extensively both in Canada and in the United States. However, the environmental assessments—especially the one under the National Environmental Policy Act in the United States—were very roundly criticized by not just environmentalists, but by farmers, ranchers, and a lot of other common people because the route around the Ogallala aquifer just wasn't seriously considered. Industry's evidence was pretty much just taken for the way things were, and so the assessment was determined on the basis of the pipeline going through the aquifer.
What we've ended up with now, because of the incomplete environmental assessment, is the mess we have. Not only do we have the decision being delayed—some people like that, some people don't—but we also have this turning into a major battle having to do with climate change and dirty oil. I think if a proper environmental assessment had been done in the first place without the shortcuts, the Keystone pipeline would have been a done deal and it would have avoided the Ogallala aquifer, which is probably going to happen, but probably not for two or three years.
I'm finished. Thank you very much.