Environment Committee on Nov. 17th, 2011

[Robert Sopuck, Conservative, Dauphin—Swan River—Marquette, MB]

I have a tendency to focus on the environment itself as opposed to process—things like water quality, biodiversity, air quality, and so on. Given that many of those are governed by various acts and regulations both federally and provincially—the Species at Risk Act, the Migratory Birds Convention Act, the Fisheries Act, and so on—when mines are being developed or energy developments are being planned, I would assume that you build in the compliance with all those acts and regulations from the very beginning. Is that correct?

[Pierre Gratton]

Yes. One of our concerns, which I voiced today, is that with some of the acts you just mentioned there aren't presently compliance mechanisms. That is a major concern of ours.

The Migratory Birds Convention Act, for example, is an absolute prohibition and there is no way to be able to comply with the act. You have to do your due diligence and hope it works and that you stay out of court. The Environment Canada website's current advice to its clients is to consult their lawyer. We actually don't think that's the answer. We think we need a regulatory mechanism that would allow us to obtain a permit to demonstrate compliance with the act.

[Robert Sopuck, Conservative, Dauphin—Swan River—Marquette, MB]

I really appreciate your reference to the Migratory Birds Convention Act, because carried to a logical extreme it would mean the end of Prairies agriculture, so I think your caution is very well taken.

Mr. Collyer.

[David Collyer]

I would just reiterate the same point. Compliance is the minimum requirement. I agree with Pierre that there's an opportunity to improve the clarity on compliance requirements, but in looking at any new energy project, compliance is the minimum threshold. We often try, for economic or other reasons, to perform better than that, but absolutely that is the going-in position.

[Robert Sopuck, Conservative, Dauphin—Swan River—Marquette, MB]

Right.

What do you think about a guidelines approach to a number of projects? For example, we know how to build stream crossings in a way that allows fish to go underneath roads and so on. What if the relevant regulatory authorities were to issue you guidelines and you simply followed them in many cases? Would that be helpful?

[David Collyer]

We have guidelines, recommended practices for many of the activities we undertake. We're always open, obviously, to improvements on that, but your question is somewhat contradictory in that you referred to guidelines and then said “you must follow”. In the context of best practices and improvements in the way we do things, absolutely, we are open to that, whether they come from government regulators or from our own industry.

[Robert Sopuck, Conservative, Dauphin—Swan River—Marquette, MB]

Your point is well taken.

Mr. Collyer, I was struck by the comments you made making the very strong distinction between the words “whether” and “how”, and as an elected official I really appreciate the fact that you've recognized the role of elected officials in making these kinds of decisions. I think you are exactly correct in your assessment of what an EA should be.

Unfortunately, it has become a political process, which questions whether a project should even go ahead or not, and that takes the responsibility out of the hands of elected officials, who, in terms of consultation processes, are subject to something called elections, and we're consulting on a regular basis. Having environmental assessments deal with the environment itself and how a project is developed makes a lot of sense.

I also appreciated your reference to the Mackenzie Valley pipeline, having been part of that assessment back in the 1970s myself, personally, and again, it's an astonishing poster child for how not to do things.

Mr. Collyer, just talking about the Mackenzie Valley pipeline for a minute, do we know how to build pipelines in an environmentally sound way, especially with regard to stream crossings?

[David Collyer]

The short answer is absolutely. We have a long history of building pipelines in a diversity of environments, including many stream crossings. Yes, the technology exists. We know how to do this, and one of the really unfortunate outcomes of the Mackenzie process—over and above the fact that it took so long and may well have an impact on whether that project ever proceeds or not—is the fact that we went over and over the same issues in a multitude of forums with a multitude of people. And that in no way is a representation that those issues should not be addressed. What we need to do is find an efficient and effective way to address them and make sure they are addressed to the satisfaction of the key stakeholders and the regulator, and then move on.

We keep recycling and going over and over things that frankly are well established and we've already done justice to in terms of addressing the issue.

[Robert Sopuck, Conservative, Dauphin—Swan River—Marquette, MB]

That surprised me as well. I know from own time in the Mackenzie Valley that the streams hadn't changed from the 1970s to the 1990s. To have to do that assessment all over again, given the multitude of reports from the 1970s, on almost the very same streams, seemed a little redundant and expensive to me.

I take your point about the tragedy of that process. I think it can be called that because those communities up there are impoverished now, and may remain that way for the foreseeable future, because the pipeline was not built. I think there are real consequences for communities with these processes.

Thank you, Mr. Chairman.

[The Chair, Conservative, Mark Warawa]

Your time has expired.

Monsieur Coderre, welcome to the committee. Ms. Duncan had to leave because of a health issue. We are studying the CEAA review. We'll provide some latitude.

[Denis Coderre, Liberal, Bourassa, QC]

I will attempt to do honour to my colleague. Thank you very much.

Welcome, gentlemen. Clearly, when one considers the environmental reality from an industrial perspective, it always looks different from the way it appears when viewed from a First Nations perspective.

My first question is for Mr. David. Do you think that, in the context of all of this legislative upheaval, it is possible to harmonize an environmental assessment act with the requests, or with the traditional respect of aboriginal peoples?

It is the strategist who is going to respond. Go ahead.

[Roger Jones]

We believe it's entirely possible to achieve coordination and collaboration among governments. I think the first principle that needs to be included and respected in any federal legislation regarding environmental assessment is that our governments have to be respected. They have to be included in the definition of jurisdiction and not simply regarded as a stakeholder or as an interest rights holder who is allowed to sit at the kid's table.

If you want coordination, collaboration, and partnerships to achieve everything that people want, which is effective, efficient assessments and compliance, then I think you should include first nations governments right from the start. This will ensure that all the issues are addressed, and that all the parties have the ability to streamline examinations and, where necessary, come to agreements on how to proceed. As far as we're concerned, it's entirely possible.

[Denis Coderre, Liberal, Bourassa, QC]

As a Liberal, I am what Mr. Trudeau used to call a radical centre, meaning we have to strike a balance. We want to protect the environment, but we don't want to kill the industry, and we want to build a partnership with first nations.

Do you feel that it's just a fight based on interests? Is there a way, Mr. Collyer, to monitor, use, and work with them as partners? I have just been here for a few minutes, but with your answers, I have a feeling that it's a bit of an irritant more than anything else. I'm a straight shooter.

Do you believe that through the legislation we can make things happen?

Of course, we have to be respectful of governments. If there's a treaty we have to respect the treaty. At the same time, you don't want to kill the industry. It's good for the people—you create jobs for first nations and work in full partnership.

In a doability process, what can we do to make things happen? I believe the monitoring is important.

[David Collyer]

Thanks for the question.

I would strongly reinforce your premise that we need to find a way to make all of this work. We need economic growth, we need to protect the environment, and we need to find ways for the major stakeholders--aboriginal people--to be involved in the process. I would say first that our industry understands the need for extensive aboriginal consultation. It's a regular part of what we do on all of our projects, and it happens throughout the project life cycle.

I think everybody understands the legislative requirements around aboriginal consultation. I can't comment on the specifics of some of the particular treaties, but there are existing legislation and requirements outside of CEAA that address many of these issues. I would caution the committee against trying to put all of those things into CEAA and expanding its scope to address things that are appropriately addressed elsewhere.

There may be occasions where that is necessary, but I think we have a tremendous tendency whenever we look at a piece of legislation to go like this and keep trying to put more into it, as opposed to saying, “This piece of legislation is intended to address significant environmental impacts.” That's what it's for. Let's make sure it does that. Let's make sure it does it well. But let's rely on other pieces of legislation to do what they do appropriately, and not try to feed it all into CEAA.

[Denis Coderre, Liberal, Bourassa, QC]

I've had the chance over the last 15 years to be on both sides, so my role as a legislator is to find that balance. It's to respect the fact that we have to protect our environment, but also have all of the players working together.

When you're working with first nations, do you consider them as a level of government? Do you believe they are a government, so there is a jurisdiction issue that you have to respect in the negotiations?

[David Collyer]

We respect the government's obligation to consult and reasonably accommodate, and we respect the role we have to play in that. That's what we do.

[Denis Coderre, Liberal, Bourassa, QC]

Mr. Jones, do you feel that these are the kinds of things that happen on the field?

[Roger Jones]

More often than not we hear people's dissatisfaction with the level of engagement that takes place in these processes. They are looking for more effective and meaningful engagement in these processes and in resolving issues relating to economics and social and cultural considerations.

I agree with the observation that everything is political around these major projects, and maybe as legislators you're not being given due respect and due regard in your role in managing those issues. The fact is that you have the ability to play an effective, efficient, and meaningful role in addressing these issues in the legislation you're examining and making recommendations on.

[The Chair, Conservative, Mark Warawa]

Unfortunately, your time has expired.

Thank you, Mr. Coderre.

Next we have Ms. Leslie for five minutes.

[Megan Leslie, NDP, Halifax, NS]

Thank you very much.

To the mining association and the petroleum producers, thanks very much for your testimony. I learned quite a bit. However, this is the first opportunity we've had to have first nations representatives bring the first nations voice to the table here at our committee. My questions will be for AFN and the James Bay committee.

When the president of the Environmental Assessment Agency was here they talked about how the environmental assessment process was well suited to delivering the responsibility of duty to consult, as far as the views and knowledge of first nations.

I had a meeting recently with Matawa First Nations about the Ring of Fire. As you probably know, that environmental assessment will be a comprehensive review, a paper review. It's the opinion of the Matawa that doesn't fulfill the duty to consult.

In your opinion, do the CEAA provisions fulfil the duty to consult? I'd like you to touch on the different levels as well, whether it's a comprehensive review or a full panel review.

[William David]

Thanks for the question.

I've been sitting here listening to a lot of discussion about aboriginal consultation. Let me make one thing clear. With respect, I don't know of any federal legislative requirements that fulfill the duty to consult—I understand it's done on a policy basis. I'm not quite sure what that policy is.

The second point I want to make is that when we talk about consultation in this room, I've heard about the Red Chris case and the Moses case, and AFN raised the Haida and Taku cases as well. These are all Supreme Court of Canada cases that directly impact the specific projects. I would suggest to you that by not actually having anything within the legislative framework, and by not having first nations involved in the policy development framework, everything is being kicked out to litigation. That's really bad for first nations, obviously, and we've heard that it's bad for industry.

With respect to the Matawa case, that's a scoping issue, just like the Red Chris case was. As I understand, it is now in the courts, and I see that as a failure. I understand they wanted a review panel. I don't know what kinds of discussions or what kind of feed-in they had to the decision to do a comprehensive study. I don't know if they were making reasonable suggestions or not; I assume they were. The point of the matter now is any kind of discussion on that situation is moot until it runs through a court process. This is another one that could well end up in the Supreme Court of Canada. I don't think that's really good for anybody.

[Megan Leslie, NDP, Halifax, NS]

Your answer really turned my question on its head, and I appreciate that. Thanks.

Would the James Bay committee like to comment?

[Graeme Morin]

I completely agree with what Mr. David said; that's probably the crux of the answer.

What I would like to add is perhaps pursuant to what Mr. David had mentioned, with regard to the different levels within the CEA Act of what is consultation. Consultation is a loaded word in the CEA Act—there's a specific definition; there's involvement; there's informing; there are different levels, which are discretionary for the responsible authority, depending on the nature of the project and the nature of the environmental assessment. As was mentioned, it's very important to be talking about the same thing—apples and apples, oranges and oranges. So, for instance, definitions for consultation within the CEA Act are defined within the act itself, but within a different jurisdiction—our own in James Bay territory—it means something else.

The duty to consult would theoretically have to be defined case by case, jurisdiction by jurisdiction in terms of what that means in situ. Do we need to do that? Do we need to go there? Gosh, that's most definitely a work in progress for the JBACE. We actually have a subcommittee working on that right now.

Unfortunately, I can't give you an immediate answer.

[Megan Leslie, NDP, Halifax, NS]

Sure.

How much time do I have, Mr. Chair?

[The Chair, Conservative, Mark Warawa]

You have 25 seconds.