Evidence of meeting #11 for Environment and Sustainable Development in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was nations.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Roger Jones  Senior Strategist, Assembly of First Nations
David Collyer  President, Canadian Association of Petroleum Producers
Chantal Otter Tétreault  Member, Cree Regional Authority, James Bay Advisory Committee on the Environment
Pierre Gratton  President and Chief Executive Officer, Mining Association of Canada
William David  Senior Policy Analyst, Environmental Stewardship, Assembly of First Nations
Graeme Morin  Environmental Analyst, James Bay Advisory Committee on the Environment
Justyna Laurie-Lean  Vice-President, Environment and Health, Mining Association of Canada

11:05 a.m.


The Chair Conservative Mark Warawa

We have a quorum. It is 11 o'clock, so we will proceed.

Thank you, colleagues.

And thank you that the coffee has arrived. That's good news, too.

I want to thank the witnesses. We have a large group providing testimony today. Each group is provided with up to 10 minutes.

We will begin with the Assembly of First Nations. I believe it's Mr. William David who is presenting. Or is it Mr. Jones?

11:05 a.m.

Roger Jones Senior Strategist, Assembly of First Nations

Thank you, Mr. Chair.

Mr. David is here, accompanying me today.

Prior to starting our formal remarks today, the national chief would like to convey his message of congratulations to all members of the standing committee on your election successes and your appointment to this committee. Of course, he wanted to be here. Unfortunately, his scheduling did not allow that today.

Environment and sustainable development is critically important to first nations, so it is with pleasure that we make our first appearance before you today.

The Canadian Environmental Assessment Act is important to all Canadians because it is the primary legislative vehicle used by Canada to reconcile environmental and economic considerations in the context of development. What is less well known is that the act is also the main legislative vehicle for reconciliation of aboriginal and treaty rights with development projects. It is through the environmental assessment process that first nations are often first engaged on proposed developments. This is especially the case where developments are proposed or conducted in the absence of an existing partnership with first nations.

Let the AFN be very clear that first nations are not opposed to development. There is no shortage of first nations either working in partnership with industry or even taking the lead on major resource developments. A number of these success stories were featured at the international mining and energy summit that the AFN hosted earlier this year in Niagara Falls. In these cases, first nations have already determined that development is entirely consistent with our obligations to the Earth and our peoples.

Many of these first nations are interested in an act that respects first nations environmental knowledge and economic interests. The act must be streamlined to allow first nations to develop our own territories. More often, however, development is proposed by companies that have not developed a relationship with first nations, which is of critical importance. They must do so in the context of the environmental assessment process.

Sometimes projects are proposed that threaten critical resources or culturally significant sites. This makes the process of engagement and dialogue difficult, because first nations may enter the process under threat of unknown impacts to their lands, territories, and resources. In these cases, first nations require a CEAA that can effectively reconcile first nations' rights with the interests of developers. Sometimes these rights and interests can be reconciled quite easily; other times they cannot. First nations are concerned that the current CEAA framework does not adequately assess whether and how our rights can be reconciled with the interests of industry.

AFN's main recommendation is that the committee should recommend that the government establish a joint crown-first nations process to reform the CEAA to fulfil the honour of the crown and make the act effective with respect to consultation and accommodation. The time and resources it takes to do so should be seen as an investment to get it right for all actors, rather than simply an exercise in first nations engagement.

In 2004, after the last review of the CEAA, the Supreme Court of Canada rendered many decisions that stated that reconciliation was an imperative in Canadian law in relations between the crown and first nations peoples and between industry and first nations peoples. That imperative of reconciliation is also reflected in the United Nations Declaration on the Rights of Indigenous Peoples, which of course Canada now supports. We're keen to work with the Government of Canada in implementing the rights set out in the declaration.

I would also point out that it's very important that Canada get it right, because of the recent announcement that was made by the Prime Minister of Canada on the creation of the Canadian International Institute for Extractive Industries and Development. That announcement was made at the gathering of the heads of the Commonwealth. It states that the newly created institute will undertake policy research to identify best practices in extractive sector management for individual countries and arrange technical assistance for governments and communities in developing countries through a partnership between Canada's private sector and Canadian civil society organizations.

It's important that Canada get it right before it starts exporting policies and practices to other countries, in particular where there are indigenous peoples who may be affected by development.

We recommend you look at the report of the special rapporteur on the rights of indigenous peoples, James Anaya. He's a United Nations rapporteur. He issued a report earlier this year, in July 2011. One of his conclusions and recommendations is:

On the basis of the experience gained during the first term of his mandate, the Special Rapporteur has come to identify natural resource extraction and other major development projects in or near indigenous territories as one of the most significant sources of abuse of the rights of indigenous peoples worldwide. In its prevailing form, the model for advancing with natural resource extraction within the territories of indigenous peoples appears to run counter to the self-determination of indigenous peoples and the political, social and economic spheres.

We have plenty of legal developments, both domestically and internationally, that direct that states and indigenous people need to achieve reconciliation in terms of their relationships, in all forms: politically, economically, socially, and culturally.

As far as the Assembly of First Nations is concerned, the act needs to be updated to ensure consistency with the crown's obligations in relation to the reconciliation imperative.

Members of the standing committee, I must inform you that first nations have litigated issues related to CEAA more than perhaps any other group. Expensive scientific and legal studies, coupled with litigation, are both major causes of delay. I must also inform you that despite the groundswell of litigation and delay, virtually no policy work has been undertaken with first nations to address consultation and accommodation issues, or reconciliation generally.

I'll skip right to our recommendations in view of operating within the 10-minute framework.

In the absence of more time or funding to explore potential improvements to CEAA with first nations, or even to analyze the current act, the Assembly of First Nations recommends that the standing committee recommend that the government engage first nations in its response to the report of the standing committee. First nations require a joint crown–first nations process to determine how reconciliation can be reflected in the act. Such a process should include, among other things, the following: recognition of free, prior, and informed consent in the preamble language of the act as well as an articulation of circumstances under which the free, prior, and informed consent of first nations must be secured prior to development; expanding triggers to include aboriginal title, treaty rights, and aboriginal rights, which is consistent with rulings of the Supreme Court of Canada and in particular with respect to Haida and Taku; a framework within which the crown will work with first nations governments on screenings and on strategic environmental assessments; a requirement for the crown to share strength of claim assessments with first nations and an opportunity for first nations to comment on those assessments; delivery of plain language assessments of environmental impacts by the proponents so that our community members will be able to understand them; and first nations participation at all decision-making stages of the environmental assessment process, including the policy development process, particularly with respect to scoping decisions.

I'll conclude there, Mr. Chairman. Thank you.

11:10 a.m.


The Chair Conservative Mark Warawa

Thank you, Mr. Jones.

Mr. David, thank you.

Next we will hear from the Canadian Association of Petroleum Producers, for up to 10 minutes.

Go ahead, Mr. Collyer.

November 17th, 2011 / 11:10 a.m.

David Collyer President, Canadian Association of Petroleum Producers

Good morning, Mr. Chair and members of the committee. My name is Dave Collyer. I'm the president of the Canadian Association of Petroleum Producers, or CAPP, as we refer to ourselves. I welcome the opportunity to provide CAPP's perspective on CEAA, which is important legislation in its own right. However, I want to start by positioning CEAA in a broader context and by encouraging the committee to review CEAA with an eye to the opportunity for more fundamental regulatory reform.

First, why does regulatory reform matter? It matters because it's fundamental to Canadian competitiveness, attracting investment, creating jobs, driving economic growth, and creating prosperity for Canadians. Our industry is the largest single private sector investor in Canada. We invest something in the order of $50 billion each year and we employ more than half a million Canadians, so the competitiveness of the industry and the ability to attract investment is critically important to us.

It's rather sobering from our perspective that a variety of domestic and international authorities have cited our overly complex, redundant, and open-ended regulatory system in Canada as a threat to our ability to attract capital to develop our abundant resources.

I also want to be very explicit that this is not just about delays in projects. This is about potential cancellations, it's about significant deferrals, and it's about a potentially chilling effect on investment in Canada and the attractiveness of Canada as an investment destination.

Often while we let the regulatory process churn along, market developments occur, competitive alternatives emerge, and market windows pass. So I think it's very important to think about this in the context not only of delays, which are potentially seen by some as an inconvenience, but rather of a much more fundamental impact on investment capital coming to Canada.

We propose three key principles to guide broader regulatory reform, and I think they're equally relevant to your considerations on CEAA. First, we believe the regulatory system must enable economic growth, environmental performance, and energy security and reliability. All three are important. There's no question that the high standard of environmental performance must be maintained. All Canadians expect that. But our economic growth and our energy security and reliability, we would argue, are critically important as well and must be given due consideration.

Second, regulatory reform needs to address both intragovernmental and intergovernmental coordination. We need to sort out regulatory overlap and redundancy among the federal, provincial, and territorial governments, and we must also address, where it occurs, the lack of alignment and overlapping responsibilities among departments with regulatory responsibilities within each level of government.

Third, regulatory reform needs to improve process timeliness and efficiency with results based on sound science.

We also want to emphasize that without concurrent process improvements related to aboriginal consultation, we will not fully realize the potential benefits of improvements in the regulatory process.

As you conduct your review of CEAA, we would ask that you have an eye to those principles and the opportunity to both identify and address more systemic issues in the regulatory process.

As I mentioned earlier, CEAA also needs to be clearly anchored within the broader system in which it is only one input to decision-making. Regulation must be framed by broad public policy decisions taken at the political level and by regional planning processes, both considering a broad diversity of inputs. For example, decisions on whether or not to develop a particular resource, we would argue, are generally taken and appropriately taken at the political level and are often guided by regional planning. These decisions are informed by a very broad diversity of inputs encompassing economic, environmental, and social considerations.

It's not the role of CEAA, the EA process, or other regulatory and permitting processes to make those broad policy decisions, but rather to subsequently inform how the resource is to be developed, including whether there are any show stoppers from an environmental perspective.

We would suggest that the distinction between whether and how is an important distinction that you should consider in your review.

With that backdrop, let me turn to the specifics of the CEAA review. I'd like to start with a few comments from our perspective about what CEAA is and, importantly from our perspective, what it is not.

Starting with what it is, our view is that CEAA is a relatively narrow piece of federal legislation intended to allow informed decision-making at the early stages of project review. It requires regulatory authorities to engage in an EA if, and only if, there is a federal trigger.

If there is a trigger, CEAA requires the regulatory authority to determine whether a project is likely to result in significant adverse environmental impacts and to consider related impacts pertaining to socio-economic effects in aboriginal peoples. Full stop.

As to what it is not, while CAPP is strongly supportive of sustainable development, EA is not a tool to assess whether a project meets sustainable development criteria or to address broad socio-economic considerations. It's not about assessing impacts distant from the project. It's not about regional planning. It's not a tool to interfere with the legitimate role of other jurisdictions to conduct their own environmental assessments on projects within their jurisdiction. It's not a permitting process, nor is it a tool to review or try to undo resource development or related policy decisions that are within the broad purview of policy-makers. Finally, it should not be used as a tool to unreasonably frustrate, delay, or stop development.

In short, from our perspective, CEAA must be clearly grounded in its proper role of enabling informed decision-making in the early stages of the review of specific projects for which there is a federal trigger.

The scope of CEAA can, and from our perspective should, be confined to that core objective. I think some parties coming before this committee will argue that CEAA has a much broader scope or that the scope should be expanded. I would strongly urge the committee to discount those representations.

Turning to our specific recommendations on CEAA, I will just touch on a few points, and these will be more fully outlined in our written submission.

First, we need to move more consistently to a one-project, one-assessment approach, led by the best-placed regulator, and apply a risk-based approach that directs resources to higher-risk projects more consistently. That means that we need to address the long-standing issues associated with equivalency and substitution and ensure that we can move forward on that basis more consistently. I also want to emphasize that the absence of a federal trigger does not mean that an environmental assessment does not occur. I think the review of in situ oil sands projects in Alberta is a good example. They're subject to extensive regulatory review by the provincial authorities.

Second, we need to establish mandatory timelines and increased accountability to deliver results.

Third, we need to ensure that decision-making is directed back toward the fact- and science-based approach, which was the original intent of the act.

Fourth, we need to improve the aboriginal consultation process, for the benefit of all parties. That would include, from our perspective, a more consistent, time-limited process and better definition of the government's consultation responsibilities. Let me be really clear. Our industry is strongly supportive of aboriginal consultation, for all the obvious reasons, and that consultation takes place throughout the life cycle of most projects.

Fifth, from our perspective, it's very important that the committee, in its deliberations, be clear on where CEAA fits within the broader policy and regulatory framework and ensure that the mandate and scope of CEAA are defined accordingly.

Let me just wrap up with a few key points.

I think this committee has a tremendous opportunity to improve the competitiveness of the regulatory system in Canada, which from our perspective will have a real and tangible impact on jobs and economic growth.

I think we can all agree that this effort must continue to deliver responsible environmental outcomes. That's what we want, I believe that's what you want, and I believe that's what Canadians want.

Implementing the recommendations we've made with regard to CEAA and the EA process in a timely manner will improve both environmental assessment and, from our perspective, provide a foundation from which to improve the overall regulatory system in Canada.

We strongly encourage the committee to conduct its review in a manner that puts CEAA in a broader context and with an eye to the broader regulatory reform opportunity.

Thank you. I look forward to your questions.

11:20 a.m.


The Chair Conservative Mark Warawa

Thank you, Mr. Collyer.

Next, we will hear from the James Bay Advisory Committee on the Environment.

Mr. Morin and Ms. Otter Tétreault.

11:20 a.m.

Chantal Otter Tétreault Member, Cree Regional Authority, James Bay Advisory Committee on the Environment

Good morning. My name is Chantal Otter Tétreault. I am a member of the James Bay Advisory Committee on the Environment. I sit on the committee as a member appointed by the Cree Regional Authority. I'm accompanied today by the committee's analyst, Graeme Morin.

I would like to start off by stating that the James Bay Advisory Committee on the Environment was created following the signing of the James Bay and Northern Quebec Agreement in 1975, an agreement that is protected by section 35 of the Constitution Act. The committee is composed of representatives from the three governments: Canada, Quebec, and the Cree Regional Authority.

Prior to highlighting our recommendations regarding the act, I would like to mention that our mandate within the committee is to oversee the administration of the environmental and social protection regime as outlined in section 22 of the agreement and to act as the official and preferential forum to advise and be consulted by responsible governments on issues, laws, policies, or regulations that affect the protection regime, land use measures, the communities, or the environment of the James Bay territory. This includes, of course, all issues pertaining to the environmental assessment and review process applicable to the territory, as outlined in section 22 of the agreement.

In light of our mandate, I offer to the standing committee today our recommendations regarding the revision of act, with two implicit goals: to improve the environmental and social impact assessment and review procedure; and to protect the James Bay territory, its inhabitants, and the rights and representative processes of the Cree people, as stipulated under sections 22 and 24 of the agreement.

Before I move on, please note that a map of the territory and additional information regarding some of the rights accorded to the Cree people under sections 22 and 24 of the agreement are available in the appendices to our brief. They offer more details, information, and examples. We must also affirm that we clearly understand that the Canadian Environmental Assessment Act is based on rules of application, purposes, and institutions that are quite different from those set out in section 22 of the agreement.

As a result of these differences, our message today is very straightforward and revolves around two central themes: clarity and coordination.

In terms of clarity, we stress that section 22's environmental and social protection regime affords a special status of participation and representation of the Cree people on all of the committees and at each stage of the environmental and social impact assessment and review procedure applicable to the James Bay territory. This special status is well over and above that which is provided for in the procedures involving the general public and is a fundamental element of the agreement.

Moreover, section 22's regime and assessment and review procedures are based on a particular set of nine guiding principles and are specifically designed and adapted to protect the Cree way of life, including Cree wildlife harvesting rights and guarantees as outlined in section 24 of the agreement.

Recognizing that these provisions, guiding principles, rights, and guarantees are not addressed in the act and that they cannot be amended without the consent of the agreement’s signatory parties, clarity in the act is required. Pertinent amendments to the act must be made to clearly address the special status of the Cree people, the guiding principles of the agreement, and Cree harvesting rights and guarantees when the act’s assessment and review procedure is triggered in the James Bay territory.

In terms of coordination, we stress that section 22 outlines the assessment and review procedures for projects affecting the James Bay territory. These procedures are unique to the lands under the James Bay and Northern Quebec Agreement and are recognized as such in Quebec’s legislation, such that Quebec’s southern procedures do not apply within these lands.

Section 22's procedures are thus adapted for the James Bay territory and outline the assessment or review of projects in light of their respective jurisdictional natures: provincial, federal, or pertaining to Cree category I lands. The Canadian Environmental Assessment Act’s assessment and review procedure is applied in concurrence with section 22's procedures. Some projects are thus subject to three different procedures, despite the ambiguities, additional costs, and delays that this situation creates.

The committee respectfully acknowledges the duties and responsibilities of federal authorities under the act but is of the opinion that development projects should ideally be the object of one assessment or review in order to maximize efficiency. We recommend that the act be amended to outline systematic coordination protocols for one assessment or review when the act and section 22's assessment and review procedures occur in concert in the James Bay territory.

At a minimum, such an amendment would cover situations where both federal procedures--the act and section 22's federal procedure--are triggered simultaneously. We recognize that revision of the Canadian Environmental Assessment Act and coordination with the environmental protection regime of section 22 is a very significant exercise.

We remain very open to discussion with the standing committee and the pertinent departments, in accordance with our mandate.

Thank you.

11:25 a.m.


The Chair Conservative Mark Warawa

Ms. Morin, are you presenting also? Thank you.

Next we will hear from the Mining Association of Canada, Mr. Gratton and Madam Laurie-Lean for up to 10 minutes.

11:25 a.m.

Pierre Gratton President and Chief Executive Officer, Mining Association of Canada

Thank you for the opportunity to present to you today. I am here with my colleague, Justyna Laurie-Lean, who has worked on federal environment assessments since the act's inception.

MAC represents the majority of major mining producers in Canada. Our members produce a diversity of minerals and metals, including base metals, gold and precious metals, steel-making coal, diamonds, iron ore, uranium, and oil from the oil sands.

All our members subscribe to MAC's award-winning corporate responsibility initiative, called Toward Sustainable Mining. TSM, which is a condition of membership, includes reporting against a range of comprehensive performance metrics subject to external verification at the mine site level. It is the only system of its kind in the world for mining and has been recognized by groups like the Canadian Business for Social Responsibility as best in class.

As you have already heard from the agency, mining is its most important client, comprising the lion's share of its workload. While this has been the case for a long time, it is even more the case today, given the growth under way in our sector. Rising commodity prices driven by China are creating opportunities not seen in decades. We have estimated that there is as much as $137 billion in new private sector mining investment to be spent across Canada in the next decade or less. A lot of this will be subject to federal environmental assessment, so we have a decided interest in your deliberations.

My first message to you is this: for major projects subject to comprehensive studies, i.e., mines, CEAA is no longer broken, so don't fix it. That is to say, with the 2010 amendments we now at last have a federal environmental assessment process that is well managed. The worst unjustifiable delays have been eliminated and the agency is doing a good job running effective and efficient assessments. This was not the case before 2010.

What did the amendments do that was so good? They put someone in charge.

For almost 20 years, Canada had a Canadian Environmental Assessment Agency that had no responsibility for environmental assessments. They didn't run them and they were little more than a policy shop. Instead, EAs fell to individual departments whose legislation triggered EAs. For mining, this often meant Fisheries and Oceans, but sometimes Environment Canada or NRCan.

As these departments were neither trained in EAs nor resourced to do them, what happened in practice was that they resisted assuming the responsibility for them. One of the biggest sources of delay was at the front end. Proponents pounded on doors in Ottawa asking for an EA to commence, sometimes waiting as long as 18 months for a process to start. By this time, the provinces were well on their way with their own respective assessments, so harmonization was impossible.

In 2010, the agency was given responsibility for running comprehensive studies and determining whether panels were required. The agency has implemented the amendments well and efficiently, and we commend them for this.

As a result, mining EAs, which are almost always comprehensive studies or panels, start on time. As I said, the agency runs them well. As a result, Ottawa and the provinces are now working together. Reports from our members on the ground are consistent: the agency is doing a good job.

I would pause here to emphasize what we've said to the natural resources committee, the finance committee, and to anyone else who will listen: the funding for the Canadian Environmental Assessment Agency and for the major projects management office sunsets at the end of this fiscal year and we need their funding renewed. Without it, you won't be able to handle the volume, and we risk undermining the gains we have made.

The 2010 amendments did little else of consequence to us. They did not change the nature of EAs, nothing was made easier, and no demands were lessened. All we have ever asked for was a well-run process and now we have one. This is why, as we appear before you today, we implore you not to do anything that might compromise the efficiencies we have finally attained.

We do have some suggestions on how you might go further. We point out that the 2010 amendments have benefited our sector the most, but sectors that are subject to lower-level screenings not administered by the agency did not see meaningful benefits flow from the 2010 amendments.

First, you should consider amending the act to allow for equivalency. Our brief provides sample text. It would allow the federal government, on a case-by-case basis, to allow another jurisdiction's EA to be accepted as equivalent to Ottawa's. In an era of scarce resources and deficits, this means simply letting Canadians' limited tax dollars support one good EA instead of two--one process, not two; one set of public servants, not two. Sometimes these public servants may be federal, sometimes not.

Second, the committee should look at the possibility of giving CEAA the power to work with other jurisdictions at their request on strategic environmental assessments. In 2003, MAC, jointly with environmental groups and the Assembly of First Nations, advanced this idea. It was rejected at that time. Today, there may be more of an appetite for this idea. It would allow the federal government and the provinces to jointly assess a region's carrying capacity and look at broad environmental issues. This would help to prevent layering onto a proponent the undue burden of trying to answer for future developments that may or may not occur. It would provide a useful baseline of environmental information for proponents to build upon and address. It's an idea that would, for example, respond to concerns being raised about the potential developments in the Ring of Fire.

Third, we want to comment on some ideas brought forward by others to date. We agree with the general idea that federal liaison should focus on major projects. Allocating scarce resources to assess the impact of a new park bench in a national park does not seem like a good use of resources. I don't use this example frivolously. These park benches do trigger EAs. However, we would be concerned with wholly abandoning the concept of federal decisions as triggers for federal liaison. Federal EAs should be grounded in federal jurisdiction. To move to a project list approach without triggers would stray significantly into provincial jurisdiction and add yet more complexity and challenges to the natural resource sectors, whose primary regulator is the province.

I note that Arlene Kwasniak, who appeared before you a few days ago, who does a lot of work for the Canadian Environmental Network, also agreed with us on this point. There are means for the federal government to insert itself into projects of national significance if required, but we strongly oppose the idea that Ottawa should become involved in matters of provincial jurisdiction, just because, maybe, it can. There should be a better reason than this. Do not ignore the fact that on environmental matters, the federal government has many other laws at its disposal.

Lastly, we want to comment on the idea of granting CEAA enforcement powers. To us, this seems like passing the buck. We are currently urging the federal government to implement compliance mechanisms for several acts, including the Migratory Birds Convention Act, the Species at Risk Act, and aspects related to the Fisheries Act. Compliance mechanisms would bring enforcement with them. The best way to ensure compliance with the outcomes of federal liaison is to have federal acts that can be enforced in a clear, predictable manner. This is not currently the case. Rather than amend CEAA to create an enforcement provision, we suggest that the federal government make its other acts work the way they should.

Thank you, and we look forward to your questions.

11:35 a.m.


The Chair Conservative Mark Warawa

Thank you to each of the witnesses for your presentations and staying within the 10 minutes. Also, thank you for the briefs that you provided to the standing committee prior to today's meeting. It made it possible for us to be well prepared.

We will begin the seven-minute rounds of questioning with Ms. Rempel. You have seven minutes.

11:35 a.m.


Michelle Rempel Conservative Calgary Centre-North, AB

Thank you to all the witness groups for coming today.

To Mr. Collyer and Mr. Gratton, your industry associations represent industrial groups where there is a great deal of capital intensity and investments, as well as sensitivity around the investment processes. Your industry associations also represent a great deal of employment in this country. The statistic I have for the Canadian Mining Association is 350,000 jobs within Canada. CAPP member companies employ about 500,000 people.

Given all these things, and some of the comments you've made, perhaps you could describe the importance of having predictable and efficient environmental assessments on investment within each of your industries, as well as some tangible examples where perhaps we haven't seen that, and how we can improve our processes from there.

11:35 a.m.

President, Canadian Association of Petroleum Producers

David Collyer

First, thank you for the question. I would start by saying the premise is absolutely correct. Given the magnitude of the investments that our industry makes and the significant capital exposure that's involved in those investments, predictability around scope and timing of the regulatory process is extremely important. People need to know that when they bring forward projects of a significant magnitude, their views will be heard, there will be a fair and due process, and they can expect that process will lead to a decision within a reasonable timeframe.

I come back to my comments in my remarks. This is not just about project delays. We're in a global investment climate where capital is mobile and the competitive environment changes rapidly. If a project is held up for a long time in the regulatory process, we often run the risk.... And the Mackenzie Valley pipeline project is probably the poster child for what can go wrong, but it's a good example of the market changing dramatically during the course of the regulatory process.

So I think scope and timing are extremely important. Mackenzie is a good example. I agree with Pierre that there have been changes, improvements made, but the Jackpine Mine that Shell is advancing in the oil sands has been waiting, I think, about four years for the process to be clarified in terms of how it will be reviewed.

The recent review of the major hydroelectric project in Newfoundland is another example, I think, of a case where the scope of the review was uncertain. The regulator, from our perspective, although not directly involved in our industry, looked well beyond what a reasonable scope of EA would be in terms of reviewing that particular project.

So there are two or three examples, but there are others. We've asked our member companies also to provide some information to the committee that will be helpful in demonstrating some cases where the process has not worked particularly well.

I will just reaffirm the point. Predictability on the scope and timeline of the regulatory process is critical for our industry, from a competitive standpoint.

11:40 a.m.

President and Chief Executive Officer, Mining Association of Canada

Pierre Gratton

First, in response to your first point, I'd like to add that while the Canadian economy presently is shedding jobs, we can't hire people fast enough. We are facing a human resource shortage and need people across a whole range of disciplines as quickly as we can. With the numbers I was giving you around new project developments, that's only going to be accentuated in the years ahead. This work shortage is a global phenomenon that we're facing.

The $140 billion investment also translates into tens of thousands of direct jobs, and a lot more indirect jobs, so there's a huge opportunity ahead of us.

I'll give you two examples that come to mind. One is a bit dated, but I'll use it anyway.

There were two major mining deposits around the same size, discovered around the same time. One was Voisey's Bay, which you've probably heard of. The other one was in Australia, the name of which escapes me. Their mine was reviewed and built before our process started. So that's just one example.

The other one that comes to mind, which is more recent, which is I think a sad story--though, hopefully, it's going to have a happy ending--is the Red Chris project in northwestern B.C. This was a project that underwent a comprehensive provincial assessment. The federal government, again, under the old rules, was quite far behind and ultimately decided at that time to do a screening-level assessment instead of a comprehensive environmental assessment. The federal government was taken to court. It was tied up for three years at different levels of court. Finally, the Supreme Court ruled that the federal government erred in scoping down and should have treated this as a comprehensive assessment, though they did, to put it one way, show pity on the proponent. And the proponent was allowed to proceed because it wasn't the proponent's fault that the federal government made the determination it did.

Now, the new amendments have clarified all of this, and we now do comprehensive studies or panel reviews. We don't have an issue with that. We just want the rules to be clear and to know what we're getting into when we get into it.

So that is a project that is now in final permitting, and it's probably, we hope, going to start construction in the spring and start to create jobs for British Columbians and for Canadians. But that's a long delay and just an example of what can happen when the rules aren't clear.

11:40 a.m.


Michelle Rempel Conservative Calgary Centre-North, AB

You just spoke to some of the potential benefits of looking at an equivalency or substitution system with the provinces. Are there specific areas that you think could be quick wins or ways that we could look at potentially implementing a substitution or equivalency process?

11:40 a.m.

President and Chief Executive Officer, Mining Association of Canada

Pierre Gratton

The example we provided in our brief already exists in at least one province's environmental assessment legislation, which is simply an enabling mechanism. The Province of B.C. can determine on a case-by-case basis that a particular project is best reviewed by the federal government instead of by the provincial government. They have used this in a couple of cases around port facilities because the federal government has more expertise, ports being its jurisdiction. So the federal government does the environmental assessment and then the province accepts it as its own.

We're suggesting that the federal government have a similar provision that could be used on a case-by-case basis if it deems that the province can answer appropriately.

11:40 a.m.


The Chair Conservative Mark Warawa

Thank you. Time has expired.

Madame St-Denis, seven minutes.

11:40 a.m.


Lise St-Denis NDP Saint-Maurice—Champlain, QC

I wish to thank all of the witnesses.

Given that we presently find ourselves on the traditional territory of the Algonquin, I will begin with the two First Nations representatives.

As representatives of the First Nations of Canada, could you explain to us how the Canadian Environmental Assessment Act can integrate the diverse cultural specificities and aboriginal rights of each of these nations?

11:45 a.m.

William David Senior Policy Analyst, Environmental Stewardship, Assembly of First Nations

I'll take this on behalf of the Assembly of First Nations.

The act itself, as a whole, can't do that without a specific provision. Our position is that it has to be done on a case-by-case basis and that first nations have to become engaged early in the process. The process itself has to respect, specifically, aboriginal treaty rights of those first nations. As well, it has to be sufficiently holistic to take into account, for instance, socio-economic impacts as well as benefits, cultural impacts, and human rights impacts.

As far as I know, the act does not do an adequate job, in our mind, of even taking into account the rights considerations, never mind some of these other ones. It's something the Assembly of First Nations has identified as a major issue with the act—which does not have an easy solution but requires dialogue between first nations and the crown, or between first nations and the government, more precisely, in order to address comprehensively how to deal with consultation.

11:45 a.m.

Member, Cree Regional Authority, James Bay Advisory Committee on the Environment

Chantal Otter Tétreault

Concerning the Cree of the James Bay area, within our agreement, within section 22, it is based on both social and environmental aspects. In that, social does include our cultural values. Within our environmental assessment, we do take into consideration cultural values.

This is not portrayed within the CEA, so for certain examples in the past, such as the Eastmain-1-A and Rupert project, many of the questions the proponent, Hydro-Québec, needed to answer were based more on social questions rather than environmental ones. So it's somewhat of a balance, within our environmental review, that the social aspect—which does mean cultural—is respected.

11:45 a.m.


Lise St-Denis NDP Saint-Maurice—Champlain, QC

Thank you.

Much has been said, even yet again today, about jurisdictional issues relating to environmental assessments. We have thus discussed provincial jurisdiction, federal jurisdiction and, with regard to section 22, aboriginal jurisdiction.

Could you briefly explain the position taken by the Supreme Court of Canada in the 2010 Moses decision regarding timelines? It somewhat explains why the delays are sometimes so long. Regarding the Moses decision, I would also like us to discuss the compatibility between the Canadian Environmental Assessment Act and the consultation process provided for under the James Bay and Northern Quebec Agreement.

11:45 a.m.

Graeme Morin Environmental Analyst, James Bay Advisory Committee on the Environment

Quickly, first I just want to state—and I don't think anybody here would disagree—that we need to respect the decisions of the Supreme Court, so we're not going to put into question what was in the Moses affair.

Conversely, at least, the committee itself is of the opinion that it is a good decision to respect and to consult first nations from the beginning, which is more or less what was in the decision. Of note, though, is that it is one of the principal considerations in the agreement. The Crees enjoy a special status of consultation and participation over and above what is generally afforded to the general public, and that applies to section 22 of the James Bay and Northern Quebec Agreement.

What we see is perhaps the Supreme Court properly reacting to concerns, obviously subsequent to the signing of the James Bay and Northern Quebec Agreement, which was done in 1975.

The issue, though, is that when we get to the operational stage within the EA process, there is a disconnect between what happens during that process and what was supported or decided upon by the Supreme Court. So what we're asking—at least what Chantal forwarded—is to fill that gap. Section 22 goes well beyond what is in the CEAA, and it, of course, is in concordance with what the Supreme Court mentioned or decided, so perhaps it behooves this commission to consider specifically recognizing the convention, perhaps in the preamble or text of the act, when environmental assessments occur in the territory, so that by default we can then fill that gap.

In essence, right now section 22 goes well beyond what is in the act, and of course a Supreme Court decision is in line with that. There is still some road that has to be traversed before that.

11:50 a.m.


Lise St-Denis NDP Saint-Maurice—Champlain, QC

My next question concerns my riding. During the course of a visit to Wemotaci, Mr. Boivin, the chief of the Conseil Atikamekw, shared with us his concerns regarding the difficulties those nations that are far removed from large urban centres are having with regard to the adoption of certain environmental practices, such as recycling, for example.

Do you think the Canadian Environmental Assessment Act sufficiently takes into account…

Have I finished my time?

11:50 a.m.


The Chair Conservative Mark Warawa

I'm sorry, your time has expired. Thank you so much, Madame St-Denis.

Next, Mr. Sopuck, for seven minutes.

11:50 a.m.


Robert Sopuck Conservative Dauphin—Swan River—Marquette, MB

Thank you, Mr. Chair.

The question is for Mr. Collyer or Mr. Gratton. Would you agree that federal resources should be focused on larger projects that pose a higher risk to the environment rather than on smaller projects, and do you think that an approach that uses a project list to determine which projects would require a federal EA would be effective in focusing resources on significant projects?

11:50 a.m.

President, Canadian Association of Petroleum Producers

David Collyer

I can start with a response to that.

Absolutely, we agree that the focus should be on those projects that are higher risk, and a risk-based approach should absolutely be used to allocate resources, which are scarce everywhere.

Our view is that we need to continue to focus on federal triggers. That is the appropriate mechanism by which to trigger any aid at the federal level, and I'll just reiterate the comment I made during my remarks that one should not assume, because there is not a federal assessment, that these projects are not being assessed, and there are many that are not assessed at the federal level. In situ projects, which are subject to a rigorous provincial review, would be an example of that.

11:50 a.m.

President and Chief Executive Officer, Mining Association of Canada

Pierre Gratton

I would agree with everything my colleague has just said. I would also clarify one other point that was raised before this committee before, as an example. There was the notion of having greenhouse gases become some kind of trigger in Australia, and I would just like to clarify to the committee that there is no such mechanism in Australia.

For the act to really be effective and to work as it should within federal jurisdiction, it has to focus on those things for which there are real federal triggers.