Environment Committee on Nov. 15th, 2011

[Megan Leslie, NDP, Halifax, NS]

Thank you, Mr. Chair.

Thank you to all of the witnesses. This is very interesting and informative.

To Mr. Usher, you talked quite a bit about the importance of monitoring and follow-up and the need to improve this regime. I'd like to explore that a bit more with you. Could you describe to us what a robust and effective monitoring system would look like, why it's important, and what role it plays?

[Dr. Peter Usher]

In terms of the role it plays, if you don't have effective monitoring, then all the work that was done in assessing the project basically has dissipated, because people made predictions but they were never verified. People made undertakings but they were never verified as to whether they would actually work.

If we want value out of our environmental assessment system, it surely is to ensure that for the life of the project, the proponents, and indeed other actors, including governments, are held to account for what they're doing. The way to measure that is through a robust monitoring system, which has to be science-based.

I mean, everybody has an opinion. If I were to take, for example, the replacement of fish habitat, well, people can make an undertaking to replace fish habitat, but whether it really works or not has to be followed up. Somebody down the road has to say, well, the attempt was made in all sincerity, but in fact it didn't work.

So then what do you do? What's the fallback response to something that isn't working? I feel that it has to be objective and science-based. You have to have a rigorous monitoring program that, in order to be efficient, needs to be well-designed. You can't monitor everything. You have to have a reliable system for demonstrating that the...because people might think, well, the project caused something. Maybe it did and maybe it didn't. There has to be a proper objective, scientific method of assessing whether or not that impact or alleged impact is in fact attributable to the actions of a proponent, or whether it's cumulative in relation to other activities or whatever it might be.

I think without that kind of rigorous monitoring program, we're really in trouble in the downstream benefits of having gone through this environmental review. It takes time, it costs money, and a lot of people get involved. But if everybody just walks away from it at the end and does nothing to verify the predictions and verify the mitigations that were done, I think we've lost a great deal of value out of what we've put into it.

[Megan Leslie, NDP, Halifax, NS]

Thank you for that.

You touched in your testimony on the fact that you didn't think that was happening, if I understood you correctly, or it wasn't happening as well as it could be because of a lack of capacity perhaps at the agency.

Is that what you were getting at?

[Dr. Peter Usher]

Well, I think in order to design a sound, robust monitoring program, you need good science, and the science has to start somewhere. There's no reason to expect proponents to be doing that.

I think proponents are sometimes asked to do far too much with respect to impact assessment. It's actually the job of governments to do the baseline research and the ongoing monitoring and to do it in a way that will prove useful for environmental assessment.

So if you don't have the science capacity...and I don't know who else is going to do it if it's not the proponents--well, I mean, it isn't the proponents, or shouldn't be, I don't think. Governments have to maintain their science capacity to be able to design such programs. Just collecting data and throwing them into a computer without having some serious way of analyzing them, without having a hypothesis about cause and effect, about what it is about this project that might cause harm....

To be able to test that with measurable indicators is the challenge. I don't see it happening a whole lot. Part of the reason it's not happening a whole lot is because people don't devote time to talk about it.

I'll give you the example of the cumulative impact monitoring program in the Northwest Territories. This was announced some years ago by a previous government with great fanfare. I have to tell you that during our review of the Mackenzie gas project, we heard a great deal about how it wasn't working. It's just not happening.

I know that governments have...and in fact this government has put some money into that program, but it doesn't have any overarching design. It doesn't have any program. It's just throwing money at things that so-and-so wants to do, or that this community wants to do, or whatever. You'll never get a serious result that way.

[Megan Leslie, NDP, Halifax, NS]

Thank you.

Ms. Kwasniak, I found your submission very interesting, especially the part where you talk about the myth, and avoiding the trap, of overlap and duplication. If you've read the testimony we've heard here or even listened to today, that myth is very pervasive here.

I want to give you an opportunity to talk more about it or even to respond to the assertion by Mr. Atkinson, or perhaps by Mr. Barnes, that multiple jurisdictions don't add value to environmental protection.

[Prof. Arlene Kwasniak]

Thank you very much.

There's one thing I'd like to thank my colleagues at the table for, and that is for the most part, I think, properly using the terms “overlap” and “duplication”. Overlap is something that our constitution has. It's just the way it is. Duplication is something that can be inefficient, doing things more than once.

There are lots of ways of dealing with duplication. As I mentioned, the federal coordination regulation is one. There can be duplication within the federal family. A lot of the complaints I heard today had to do with duplication within the federal family, when more than one agency or ministry is involved in an environmental assessment.

We've been waiting for a new federal coordination regulation since the five-year review. We still don't have it. That new federal coordination regulation is meant to do such things as determine who's going to do what when.

[Megan Leslie, NDP, Halifax, NS]

And that could solve a lot of the problem?

[Prof. Arlene Kwasniak]

Yes, absolutely.

[The Chair, Conservative, Mark Warawa]

Thank you so much. Your time has expired.

Ms. Rempel, seven minutes.

[Michelle Rempel, Conservative, Calgary Centre-North, AB]

Thank you to all the witnesses for coming out today. Very comprehensive presentations have been made here.

I'll start with the Canadian Construction Association, and then maybe parallel questions for the Hydropower Association.

Mr. Atkinson, you spoke a bit about a potential list approach as one of the things we should be looking at in this review. So you're aware that right now CEAA utilizes an “all in unless” approach. This means that projects are automatically subject to environmental assessments unless specifically noted otherwise in regulations or legislation. An alternative approach, a list approach, is used in many provinces and other countries, and the list approach involves legislation or regulations listing which projects are subject to environmental assessment.

Based on your comments, could you elaborate on your thoughts about this approach and some of its potential benefits as opposed to current approaches, and could you provide specific examples where this approach could have improved assessments by providing more clarity?

Then I'd like the Hydropower Association to answer this question as well.

[Jeff Barnes]

As I mentioned in our discussion, triggering can occur in four different ways. There's a “federal coordination process”--I do put that in quotations--of federal agencies figuring out who needs to do an environmental assessment. That process takes two, three, four, sometimes five or six months, and even longer on larger projects.

A list-based approach, contrary to that, will be one where certain projects or projects with certain attributes would require an environmental assessment at a certain level. The whole administration of who should do the assessment and so on just wouldn't occur with a list-based approach, provided you also made amendments that look to centralizing the responsibility for decision-making around screenings as well, as we've done with comprehensive studies.

The fact that you have different actors is not a very efficient process.

[Ed Wojczynski]

I think we agree with everything Mr. Barnes said. Our perspective on this is not a simple one in the sense that we don't think the current process is a good one. We think a pure inclusion list may not be workable in itself, though, because just because there's a project....

Let's just use the criteria. What criteria would you use? I'll stick to electricity. Let's say, as in Manitoba, anything over 200 megawatts needs to have a full-scale environmental assessment in the federal system. I just use that as a possible example. Well, there could be projects that currently aren't even subject to the federal triggers and don't have a lot of environmental impact.

So you need to have something more than just a list of projects, because it would be very hard to define the characteristics that would then cause you to include these projects.

We have actually an expert from our association, Pierre Lundahl, who spent decades on environmental assessment. If you wish, Mr. Chair, I can ask him to supplement that answer. He has a lot more experience on this particular topic.

[Michelle Rempel, Conservative, Calgary Centre-North, AB]

We'll just move on to the next question here, I think, for the sake of time.

[Ed Wojczynski]

Okay, sure.

[Michelle Rempel, Conservative, Calgary Centre-North, AB]

You can finish your answer, then.

[Ed Wojczynski]

I think that would probably be answered. Thanks.

[Michelle Rempel, Conservative, Calgary Centre-North, AB]

Okay.

You spoke about how one would structure a list, if there was one. If we're looking at best practices in other jurisdictions, perhaps both associations could speak to how a list could be structured, or to some of the potential pitfalls of taking such an approach.

[Jeff Barnes]

As Ed said, a list isn't necessarily a perfect process, but it does work. The World Bank and the IFC and various other IFIs use a list approach. It has a number of project attributes. That could include things like how it affects the habitat of, say, an endangered species, or something like that. So it can be more than just projects. It's a list of projects or project attributes that would trigger an environmental assessment under a specified legislation.

The thing is to take the administrative debate about who's supposed to do it out of the equation. At the outset, proponents and governments and the public all should be able to see that this project requires a comprehensive study. There should be no four- or five-month debate that doesn't produce any discussion of how to mitigate the environmental effects or to plan a better project.

[Michelle Rempel, Conservative, Calgary Centre-North, AB]

You've both mentioned in your testimony some of the issues with reviews being triggered by a “federal decision”. If we were looking at other alternatives or improving that process, what would you suggest could be used instead?

[Jeff Barnes]

To me, in the case of, say, a mining project, which is largely the jurisdiction of provinces when there's an environmental assessment being conducted, if there's some minor trigger--a small component of the project requires a fisheries authorization--it doesn't make a lot of sense to use that as a basis for requiring an environmental assessment that duplicates the provincial process.

This is particularly problematic because before the Red Chris Supreme Court decision, the federal government was implementing a policy of doing intelligence scoping and not duplicating other mandates. That was rubbed out by the Supreme Court decision.

Basically, what it points out is that the legislation's flawed in this regard. It entrenches duplication, and that's a real problem.

[Michelle Rempel, Conservative, Calgary Centre-North, AB]

Ms. Kwasniak, some of the industry groups have spoken about the need for a more efficient coordination process. I think both you and Dr. Usher have spoken about that little bit in your testimony.

Can you speak to some ways the legislation could be improved or added to in order to facilitate that?

[Prof. Arlene Kwasniak]

So you're asking about facilitating more coordination.

[The Chair, Conservative, Mark Warawa]

I'm sorry; unfortunately, the time has expired.

Can you give a 30-second answer?

[Prof. Arlene Kwasniak]

That might be difficult, actually.

[The Chair, Conservative, Mark Warawa]

Okay. Then we will move on.

Ms. Duncan, seven minutes.