Evidence of meeting #12 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 ceaa.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Mark Wittrup  Assistant Deputy Minister, Environmental Protection and Audit Division, Ministry of Environment, Government of Saskatchewan
Tareq Al-Zabet  Director, Environmental Assessment, Ministry of Environment, Government of Saskatchewan
Nancy Malone  Vice-President, Operations, Canadian Association of Oilwell Drilling Contractors
Meinhard Doelle  Schulich School of Law, Dalhousie University, As an Individual

11:55 a.m.

Conservative

James Lunney Conservative Nanaimo—Alberni, BC

Okay.

I'd like to slip over to your remarks here. In the conclusion of your statement—I'll just quote part of it—you said:

...we believe that in this time of finite resources, both human and financial, and given the state of environmental knowledge, there is a unique opportunity to take some of the regulatory burden off the regulated community, and promote responsible business development and innovation without having to compromise environmental protection.

I appreciate the succinctness of that particular quote. My question comes out of the bullet just prior to that, your fourth bullet in recommendations, where you comment on “proactive and efficient measures that enhance the predictability and consistency of the federal EA process and provide incentives for projects that will improve environmental performance”. My question is about the second part of that. You say “and provide incentives for projects that will improve environmental performance”. Can you give us an example of what you're referring to?

11:55 a.m.

Assistant Deputy Minister, Environmental Protection and Audit Division, Ministry of Environment, Government of Saskatchewan

Mark Wittrup

As an example, a mining operation in Saskatchewan was looking to replace an acid-generating plant with one that produced one-tenth of the emissions, a state-of-the-art plant. It got dragged into a CEA trigger because on an already disturbed site, it was going to disturb more than 100 square metres. It ended up in a significant environmental assessment process through its responsible authority, and the province ruled that it could simply go ahead under the normal licensing and permitting conditions.

There was a year's delay. They had a deteriorating plant. It delayed any environmental improvements in operation simply to go through a process, even though the regulator basically said that the devil--CEAA--made them do it. A lot of resources were involved in that and really delayed improvements to the environment.

11:55 a.m.

Conservative

The Chair Conservative Mark Warawa

Time has expired. Thank you so much.

We are going to suspend for about four or five minutes and then begin our second half.

I want to thank the witnesses from the Saskatchewan government. You're welcome to stay on and listen to the second half.

Thank you.

Noon

Conservative

The Chair Conservative Mark Warawa

We'll call the meeting back to order.

In the second half, we have two witnesses. From the Canadian Association of Oilwell Drilling Contractors we have Ms. Nancy Malone. As an individual, we have Dr. Doelle.

We will start with you, Ms. Malone. You have up to 10 minutes to present. Please proceed.

Noon

Nancy Malone Vice-President, Operations, Canadian Association of Oilwell Drilling Contractors

Thank you.

Good afternoon, Mr. Chairman, and members of the committee.

My name is Nancy Malone, and I am the vice-president of operations for the Canadian Association of Oilwell Drilling Contractors, or the CAODC, as we like to call ourselves.

We want to thank the committee for the invitation to provide CAODC's perspective on the Canadian Environmental Assessment Act's statutory review.

But first, I would like to describe the makeup of our membership so you understand who I represent. CAODC represents virtually all of the drilling and service rig contractors in Canada. Our 42 land-based drilling contractors, two offshore drilling contractors, and 85 land-based service rig contractors own and operate 811 land-based drilling rigs, three offshore drilling rigs, and nearly 1,100 land-based service rigs.

Our members are located mostly in western Canada, but we are starting to work in central Canada and with some land-based activities in Atlantic Canada. As well, we work with the offshore drilling contractors in Newfoundland.

Drilling and service rig contractors are hired by oil and gas companies to provide the equipment and labour necessary to drill oil and gas wells. Oil and gas companies typically don't have the capacity to own the specialized equipment or to employ the skilled labour required to do this work.

At peak activity during our winter months, our members employ approximately 12,000 people through their crews. Due to the seasonality of our business, this number can fluctuate down to about 4,440 during the spring break-up months. In simpler terms, for every active rig, there are approximately 25 direct jobs and approximately 125 indirect jobs created.

Along with the seasonality of our business, the cyclicality sees our activity move through peaks and valleys based on the global commodity prices. For example, in 2009 during the global recession we drilled approximately 9,300 wells. By the end of this year, we should have that bumped back up to about 12,500 wells. But that's really not the peak of our business. Our peak was in 2006, when we drilled more than 23,000 wells, but this was due to strong natural gas prices at the time. Today we're operating more in an environment of strong oil prices and weak natural gas prices.

We're just one of the many service sectors that exist to support ongoing oil and gas exploration and development in Canada. The conventional oil and gas sector alone contributes $63 billion to the overall Canadian economy. We are proud of that contribution we make to Canada's overall financial well-being.

Unfortunately, as service providers in the services sector we don't have complete control over our own destiny. The health of our clients, the oil and gas-producing companies, dictates the level of our success each year. So we watch very carefully for the issues that may challenge our clients' ability to continue to invest in our country.

As a Canadian industry, we cannot control one of the biggest factors that contributes to our success or decline, and that's global commodity prices. Inside of our borders, however, we can work with local, provincial, and national stakeholders to ensure that our business can continue to operate efficiently through the ups and downs of the marketplace.

Included in that work is a goal to ensure that Canadian provincial and federal regulatory frameworks are consistent and efficient, and that they enable environmental and economic performance. A competitive regulatory regime benefits both the resource owner and the investor.

That's why I am here today to speak to you about CEAA and the opportunity this committee has to improve a necessary regulatory process, but also to strengthen Canada's position in the global market.

I'm speaking from the perspective of a group of companies that feel the immediate impact when their customers are delayed in pursuing their projects in any way.

Contrary to popular belief, the oil and gas industry is required to operate under a comprehensive regulatory framework. Our industry believes in the fundamental necessity of regulations. It establishes an equal playing field for all players. However, in recent years much of the regulatory structure has become unnecessarily complex with too much overlap between departments and provinces.

CAODC members encounter these complexities every day because of our multiple work sites in multiple jurisdictions. From safety to transportation, each jurisdiction has its own rules, which makes it challenging for our members to operate consistently across borders.

On a broader scale, our clients face similar hurdles with respect to planning for new projects, except in their case the timelines for receiving approvals are the biggest challenge. As a consequence, investment windows may pass because the regulatory process moves more slowly than market opportunities. These types of delays end up trickling down to our members and we lose work as a result.

In western Canada we've seen two initiatives that are working to eliminate some of these complexities by having government and industry stakeholders at the table. The Alberta regulatory enhancement project and the new west partnership agreement are two examples of where all stakeholders are moving towards the same goal, a strong but streamlined regulatory process.

Perhaps the most important output of this process has been the unprecedented inter- and intra-governmental coordination. Provincial and departmental counterparts are starting to communicate in ways we've never seen before, all to the benefit of the regulatory system. Not only are there cost savings, the system is moving toward tighter integration with fewer duplicate processes. Over the course of this statutory review, we would encourage you to examine and apply the types of practices that these two initiatives have undertaken.

The Government of Canada needs to signal to the rest of the world that it is serious about maintaining appropriate levels of regulation, but it is also responsive to changes in the larger business context. In our industry, Canada is known as one of the highest cost basins in the world to develop, partly because of our geology, and partly because of our exacting regulatory environment.

The latter piece is not a negative factor. Responsible operators and their shareholders are not scared of regulations, but they do take them into account when they're evaluating competing projects around the world. They have a solid understanding of both the provincial and federal regulations, as well as the politics that surround our industry in Canada.

The perfect example of this knowledge was demonstrated in 2007, when the Alberta government made disastrous changes to its royalty structure. Investment flew out of Alberta, some to be seen in Saskatchewan, but a lot to the United States and the rest of the world. Alberta, and by extension Canada, was branded as an unstable jurisdiction for business.

Many bridges have been rebuilt between the industry and the provincial government, as well as investors, since then. Investors, in particular, needed solid reassurances that our region's regulatory structure is responsive, but also reasonable in its scope. With this in mind, I would remind you that none of our members would disagree with the need for regulation. But they do become frustrated when federal regulations duplicate or unintentionally trump provincial regulations.

Provincial governments are likely the best source of expertise, information, and enforcement within our industry. As an example, I would use the ERCB, the Energy Resources and Conservation Board in Alberta. There is no need to layer repetitive regulations and assessments onto the industry.

In terms of regional sustainable development planning, our western provincial politicians are elected to make decisions on the policies and practices that will directly impact their constituents. They are knowledgeable around the diversity of economic, environmental, and social considerations that must be accounted for in creating public policy. This includes regional planning and development.

CAODC, along with the rest of the upstream industry, is supportive of sustainable development. However, we believe that good sustainable development practices must take into account the entire list of considerations that I mentioned.

We also believe that environmental assessments are not a tool to interfere with the legitimate role of provincial jurisdictions to make decisions around resource development or related policy decisions. An environmental assessment is a tool. It describes how a resource should be developed, and it identifies any major issues with respect to the environment. It's a tool to enable responsible development.

In summary, Canada has always been known for its abundant natural resources. Be it agriculture, forestry, mining, or petroleum products, we are a nation that has grown on its ability to harvest and sell its resources internationally. Currently we have a wonderful opportunity to become a global energy power. Part of this exercise will be to demonstrate to Canadian citizens, and to rest of the world, that our policies reflect a clear understanding of how to responsibly and sustainably develop our resources.

As contract service providers, CAODC and its members are not generally directly affected by the Canadian Environmental Assessment Act. However, our clients are, and therefore we take great interest in this issue. Our industry develops Canada's oil and gas resources in the most responsible manner possible with today's technology and practices, but we're always looking to improve, and we will.

When reviewing CEAA and its scope, the focus should be on continuing to deliver responsible environmental outcomes. But we also believe that the review process can become more streamlined and competitive in its regulatory view.

On behalf of CAODC and its members, I want to thank you again for this opportunity, and I look forward to any questions that you may have.

12:10 p.m.

Conservative

The Chair Conservative Mark Warawa

Thank you, Ms. Malone.

Next is Professor Doelle for ten minutes.

12:10 p.m.

Professor Meinhard Doelle Schulich School of Law, Dalhousie University, As an Individual

Thank you very much.

I'd like to thank the committee for inviting me to appear on this important CEAA review.

Before I get into the substance, I have a few words about my perspective and experience with environmental assessments. I worked with the Canadian Environmental Assessment Agency during the development of the act and the regulations in 1992. I also worked with the Province of Nova Scotia on the development of its process. As a practising lawyer, I've advised proponents and intervenors on federal and provincial environmental assessments. I served on the regulatory advisory committee from 2002 until 2008. I also served as a panel member on the Lower Churchill joint review panel, from 2009 until 2011.

Throughout this period, I've taught, researched, and written about the Canadian environmental assessment process. I've looked at the act from a variety of perspectives, and I think those perspectives have informed my views on the act and how it might be improved.

In terms of general context, I would suggest that improvements to CEAA should be guided by three principles: efficiency, effectiveness, and fairness. My basic contention is that we should make every effort to pursue integrated improvements and to avoid changes to the process or the act that result in improvement in one area at the expense of the other two. I will try to highlight a few key issues in the time that I have, and then I'd be happy to take questions on those or others.

As a starting point, it seems to me that a fundamental issue this committee needs to consider in the development of the Canadian Environmental Assessment Act at this time is whether to give up on self-assessment. This has been an experiment that has been under way for 15 years, and I think the idea that we should encourage federal decision-makers to understand the broader environmental and social implications of the decisions we're being asked to make through a process such as CEAA was a laudable goal.

But I think it is fair to say that after 15 years this experience has had limited success. Either we need to find out why it hasn't worked and improve the self-assessment approach, or we should move away from it and consider the alternative, which is the idea of an independent agency that looks after the process and makes decisions. That fundamental choice has significant implications. I tried to outline some of those in my submission, but really that is a fundamental choice that guides much of the rest.

Short of a fundamental change, there are some modest improvements that I think have the potential to improve the efficiency, effectiveness and fairness of the federal process.

Number one, I think the act could start to look at the next step in terms of bringing strategic environmental assessments into the federal process. Strategic environmental assessments could be formally recognized in the act, the basic process could be set out, and we could take some initial steps to identify ways that strategic environmental assessments could be initiated. I don't think an initial step towards strategic environmental assessment can go all the way to identifying mandatory triggers, but there could be opportunities identified for starting strategic environmental assessments.

One of the reasons for suggesting this is that I think strategic environmental assessments offer the opportunity to deal with broader policy issues in a much more efficient, effective, and fair manner than is possible at the project level. Specific ideas about how to initiate strategic environmental assessments in this initial pilot stage would be something that I call an “off-ramp”. If during a project assessment a broader policy issue is identified, you provide an opportunity for those participating in the project assessment to make a recommendation that the broader policy issue be addressed.

There are many examples of areas where a strategic environmental assessment would be worthwhile and would make follow-up project assessments much more effective, efficient, and fair. I'll just give you one example, and that is wind developments. But there are many others.

The third would be to proactively identify new industry sectors in need of a strategic environmental assessment. When I look at that from a Nova Scotia perspective, over the last decade there have been a number of new industries that have come to Nova Scotia, and each of them would have benefited from a strategic environmental assessment before individual project decisions were made. Examples include finfish aquaculture, LNG facilities, shale gas and fracking, and carbon capture and storage. Those are just examples of industries that have come along in Nova Scotia over the last decades that would have benefited from this.

By the way, we've done one strategic environmental assessment in Nova Scotia, and it was on tidal energy. I think it served the province very well. Unfortunately, the federal government did not actively participate in that process.

Some other changes that I would consider to be modest changes would be to continue the trend towards giving more responsibility to the Canadian Environmental Assessment Agency. That could go all the way towards establishing it as an independent decision-making body as opposed to a body that is just responsible for the process. So that's another area.

The third and final area in the category of modest adjustments that I want to quickly raise deals with monitoring and follow-up. I think we've gotten better at doing monitoring and follow-up, but we haven't really come to grips with how we ensure that the information that is gathered in the monitoring and follow-up process is actually effectively utilized, in two respects.

Number one, in terms of improving decision-making with respect to the project that was assessed and then went through the monitoring and follow-up program, where's the feedback to look at revising the conditions for approval or imposing obligations to respond to problems that are identified in the follow-up and monitoring process?

Secondly, and probably the bigger long-term gap, is that we haven't really figured out yet how to learn from the mistakes of past environmental assessments for future assessments. I'll give you the example of the Lower Churchill project . It was very difficult to get information about predictions and mitigation measures that were made for the many hydro projects that had been proposed before the Lower Churchill project. We really didn't have a good sense of to what extent the predictions that were made in our process and the mitigation measures that were being proposed had been proven successful and accurate as a result of previous environmental assessments.

In terms of more fundamental changes, I think the exercise of discretion is probably one of the critical ones. This, I would suggest, would need careful study. There are two components to this exercise of discretion issue. First of all, in a general way it is natural when you start a new process like a federal EA that you leave a fair amount of discretion, but over time, with experience, you have the ability to narrow the discretion. That's one thing. The other is that you have to reflect carefully on which entity, which decision-maker, is granted the discretion. Does the discretion rest appropriately with the responsible authorities? Should it rest with the Minister of the Environment? Should it rest with an independent agency?

Then, in terms of narrowing the discretion over time, as you gain experience, there are opportunities to now look at establishing criteria for some of the key decisions that are being made in the process, such as criteria for the process selection, criteria for the appropriate level of public engagement, criteria for scoping decisions, for significance, for justified in the circumstances.

I'll just mention—

12:20 p.m.

Conservative

The Chair Conservative Mark Warawa

Professor Doelle, unfortunately your time has expired. We look forward to you answering some questions.

12:20 p.m.

Prof. Meinhard Doelle

Okay. That would be great.

12:20 p.m.

Conservative

The Chair Conservative Mark Warawa

To allow for committee business at the end, instead of a seven-minute round of questions it will be a six-minute round.

Mr. Sopuck, you have the first six minutes.

12:20 p.m.

Conservative

Robert Sopuck Conservative Dauphin—Swan River—Marquette, MB

Thank you very much.

Ms. Malone, could you comment on the opportunity costs of inefficient environmental assessment processes for your industry?

12:20 p.m.

Vice-President, Operations, Canadian Association of Oilwell Drilling Contractors

Nancy Malone

As I said, we are not directly responsible for the environmental assessments. However, in terms of the time and cost of putting them together, the less efficient the process is the more expensive it becomes.

I think in my remarks I referred to the window of opportunity with some of these international marketplaces. While Canada is an excellent place to invest, if they are looking at our processes and saying they're not certain of the outcome of an assessment or there's a lack of opportunity there, they would put that into the category of saying, “Well, that might not be an opportunity for us”.

12:25 p.m.

Conservative

Robert Sopuck Conservative Dauphin—Swan River—Marquette, MB

The poster child for inefficient processes has been brought up at our hearings a number of times, and that's the 34-year process for the Mackenzie Valley pipeline. The tragedy of that particular one is that there are some 20-odd communities in that valley that will remain impoverished for the foreseeable future. So efficient environmental assessments are more than simply a bureaucratic nicety; they can be economic life or death for some communities and businesses.

Do you think that CEAA could be made more efficient and predictable without sacrificing environmental protection?

12:25 p.m.

Vice-President, Operations, Canadian Association of Oilwell Drilling Contractors

Nancy Malone

Absolutely. The scope of it needs to be very focused and kept tight in terms of harmonizing with what provinces have already done. Is CEAA the gap-filler or is it the overarching piece of business that needs to be taken care of? I don't think anyone believes that there would be a lesser regulatory framework. It simply needs to be more focused and efficient.

12:25 p.m.

Conservative

Robert Sopuck Conservative Dauphin—Swan River—Marquette, MB

Professor Doelle, you made a recommendation, if I heard it correctly, of giving more responsibility to CEAA and allowing it to become an independent decision-making body. Did I hear that correctly?

12:25 p.m.

Prof. Meinhard Doelle

Yes, that's fair.

12:25 p.m.

Conservative

Robert Sopuck Conservative Dauphin—Swan River—Marquette, MB

I'm curious to know, then, where's the role for elected officials in this particular process? Don't you think the decision to allow development to go ahead should ultimately be in the hands of elected officials as opposed to unaccountable appointees who can't be talked to by the voters and electorate?

12:25 p.m.

Prof. Meinhard Doelle

The decisions I'm talking about are not the final project decisions but process decisions--decisions about whether you go to a comprehensive study or panel review, decisions about what the scope of the assessment might be, decisions about the level of engagement.

I completely agree with you that the final project decisions should be made by an elected official.

12:25 p.m.

Conservative

Robert Sopuck Conservative Dauphin—Swan River—Marquette, MB

I'm very pleased to hear that. Too often in these hearings we've left out the role of elected officials. As someone who represents a specific constituency, we are more responsible to the citizens than just about anybody else, because they put us here.

Would you agree, Professor Doelle, that in many cases environmental reviews have devolved into processes that talk about whether a project should proceed as opposed to how it should proceed? There's a major difference between the two, you would agree.

12:25 p.m.

Prof. Meinhard Doelle

Yes, I mean.... First of all, I think the ideal process considers both. I think we should always ask whether a project should proceed, but we should also always ask how the project can be made the best project possible. I think we should be more clear about the criteria that we apply to that.

Most of the processes that I've been involved in, I would say, have been more focused on how the project proceeds and less focused on whether the project should proceed.

12:25 p.m.

Conservative

Robert Sopuck Conservative Dauphin—Swan River—Marquette, MB

Ms. Malone, perhaps this is not a fair question given that your members are clients of developers, but would you agree that when a project developer plans a project, they should take into account in the planning process all of the statutes, regulations, and environmental quality objectives that a given jurisdiction may have?

12:25 p.m.

Vice-President, Operations, Canadian Association of Oilwell Drilling Contractors

Nancy Malone

Do they take those into consideration?

12:25 p.m.

Conservative

Robert Sopuck Conservative Dauphin—Swan River—Marquette, MB

Yes.

12:25 p.m.

Vice-President, Operations, Canadian Association of Oilwell Drilling Contractors

Nancy Malone

Absolutely.

12:25 p.m.

Conservative

Robert Sopuck Conservative Dauphin—Swan River—Marquette, MB

So that's built in?