I'd like to thank the committee for asking me to participate in this work.
I've had the honour of serving on review panels for over eight years and have participated in review processes for forty. My written submission has addressed what major project review panels are intended to accomplish and the challenges they face, the critical role of monitoring and follow-up once a project is approved, and the scientific framework and resources required to ensure the success of both.
My concern is with outcomes and what you as legislators can do to improve those outcomes.
Major projects are elevated to a panel review precisely because they are not routine. The core questions a major project review should address are these. Does the project require the application of technology and methods that are novel or are untested in the receiving environment? What are the risks of accidents or malfunctions in terms of probability of occurrence and severity of consequences?
A major project review, then, is not simply a planning approval hoop. It provides guidance to proponents and regulators on how to ensure that the objectives of the CEA Act are realized over the life of a project, from the time a shovel goes into the ground until decommissioning and abandonment, and it ensures public input in doing that. It must also consider the cumulative impacts of a project with other developments, and applying a contribution-to-sustainability approach ensures that its economic and social benefits are taken into account--not only short-term benefits, but durable and lasting ones.
Now, as the CEAA representatives have already told you, panels have the statutory obligation that was made clear by court cases to fulfill all the requirements of CEAA, and it's for them to be satisfied in each case that they have all the information they need to report back to the minister.
There are other obligations concerning both product and process that a panel must meet by law. I invite you to be aware of those with respect to the three questions that you've already been asked to consider, one of which is whether there ought to be mandatory time limits. I have to tell you personally as a panel member that I would have welcomed anything that would have allowed me to return to my family, my home, and my work sooner rather than later. I'm sure that every panel member with whom I have served would heartily endorse that view; however, it is a public process and its participants have both legal rights and reasonable expectations that must be addressed.
The process, once begun, has certain required steps. The rules of procedure must be within established guidelines and legal norms. Motions on procedure or substance must be given due consideration. If a proponent chooses to postpone the proceedings, the panel cannot compel it to do otherwise. If there is a court-imposed injunction on the panel proceedings, the panel must abide by it. If the panel does not fully address its mandate, it may be subject to challenge. If such challenges occur--and they have--then whatever time and money was saved taking shortcuts may be more than expended in the courts later on.
Is there room for improvement? Absolutely, and I've mentioned some improvements in my submission. The point is, I don't think you can accomplish any of them by simply imposing a time limit. I think those are matters for the agencies and responsible parties to deal with as a matter of their own policies and procedures.
You've already heard submissions on the need for review processes that go beyond the project-specific, such as strategic level and regional level reviews, and that may be a good idea, not least if it reduces the burden on panels for project reviews. If you go in that direction, I would caution you to provide substantial clarity on the distinction between strategic review and project review, and that clarity should address matters of how a review panel is constituted, how it should go about its business, and who would pay for it.
Recently, the NEB and the CNSC have been assigned greater authority over the environmental review of projects within their jurisdiction.
With due respect to their competence as regulatory bodies, it is not clear whether either of them, in their mandate, culture, or scope of expertise, has the means to consider cumulative impacts or project contribution to sustainability. They are in the business of regulating industrial operators, not making recommendations to governments. Therefore, the NEB and CNSC can add to but not substitute for major project review panels as they now exist.
I want to talk about monitoring and follow-up. They are crucial to ensuring that impact predictions are verified, prescribed mitigations are of demonstrated effectiveness, unanticipated adverse effects are detected and addressed, and there is a prescribed course of action to correct for significant adverse effects as they occur. Those are the fundamental means of ensuring that the review process actually produces tangible results with respect to environmental integrity and sustainability.
If effective monitoring and follow-up do not occur, the public benefit of reviewing major projects is much reduced. Effective monitoring and follow-up are a science program at their core. A similar base of data, information, and analysis is required by both a review panel and the agencies that will later be responsible for monitoring and follow-up over the life of the project. The science programs required for both purposes, especially to determine cumulative impacts, must by their nature be continuous over time; regional if not national in scope; and meet high, consistent, and recognized standards of measurement and analysis.
So who generates the required information, how does the science get done, and how does it get put on the table? There's no reason to expect individual proponents to conduct baseline scientific research or ongoing monitoring programs at a regional level. Proponent monitoring is properly limited to its own compliance with permitting and contractual conditions. But once government adopts a review panel's recommendation on mitigation, monitoring, and follow-up, it is government that must ensure it has the resources and can take the necessary follow-up action to improve the quality of future environmental assessments, as the act calls for. If governments can't do that, there's no basis for expecting the desired environmental quality outcomes or improvements specified by the CEA Act to be fulfilled.
Most of the time that our EA system has been in place, which is nearly 40 years, both review panels and the responsible authorities have relied heavily on the federal government's in-house science capacity to provide baseline monitoring, impact assessment expertise, and the scientific infrastructure for monitoring. Canada has for a long time maintained an internationally recognized standard of excellence in this regard, and we should be proud of it.
Unfortunately, much of this is now at risk. As a result, Canada's system of environmental review will be of decreasing effectiveness,. Government, on behalf of its citizens, must set the objectives and standards for scientific research and monitoring programs, and design them. The private sector, the universities, and citizen organizations can each contribute to that design and conduct much of the work, but none of those actors have the interest, incentive, or capacity to design and maintain permanent research and monitoring programs of national scope.
Thank you.