Environment Committee on Nov. 22nd, 2011

[Laurin Liu, NDP, Rivière-des-Mille-Îles, QC]

Sorry, my question was more on the process of EA, whether or not an inactive government presence in EA can sometimes create process uncertainty. Have you ever seen that happen?

In Manitoba there was a case, the Wuskwatim projects, where some people were concerned that the government took a hands-off approach to EA. It meant that the process was uncertain. That was a concern expressed by those who were taking part in the EA. I was wondering if there were any cases in Saskatchewan where that was the case.

[Mark Wittrup]

No, I'm not familiar with any that occurred in Saskatchewan.

[Laurin Liu, NDP, Rivière-des-Mille-Îles, QC]

Thanks.

Something else I've been hearing about a lot is the idea of social license. Industry and proponents are looking for the social legitimacy that comes from EA, because EA allows the public to take part in the decision-making process through consultations. This is valuable in project development.

You know, I think an active government has a role in increasing social license in public hearings. Notably, government has the resources to increase the range of issues considered politically throughout public hearings. That takes resources that participants in public hearings simply don't have.

What are your thoughts on that?

[Mark Wittrup]

First of all, public consultations are a very important part of the whole environmental assessment. But I would argue that the environmental assessment process per se is only a small part of developing the social license. A big part of that responsibility rests with the proponents in their ongoing relationship with the stakeholders, which they build around any given project.

Government's role is to set the standards, make sure that the project can move forward without affecting the environment negatively, and establish the social discussion. The ongoing monitoring that goes on after that is also part of the process. Social license is actually a great big package of which EA provides only one small part. It is arguably a bit of a gatekeeper to the rest of the regulatory process.

[Laurin Liu, NDP, Rivière-des-Mille-Îles, QC]

So you wouldn't say that the process of public consultation embedded in EA is necessary for a social license?

[Mark Wittrup]

Oh, no, it's part of it. It's all part of the dynamic that goes on, and it's a very important one. In fact, I would argue that given the state of regulation right now, most projects in the country could be approved without consultation. The reason we have environmental assessment is to bring that dialogue to the table and find out what the other issues might be.

[Laurin Liu, NDP, Rivière-des-Mille-Îles, QC]

In the case of federal-provincial harmonized EA as well, each government manages its own public registry according to its own legislation, as you know, and CEAA includes a record of public contents related to EA. There's a public registry that includes a significant body of correspondence that takes place throughout an EA.

On the provincial level, do you see that kind of public registry existing?

[Dr. Tareq Al-Zabet]

I want to add first to the previous question.

One of the triggers within the Saskatchewan EA process is if the project triggers a public-wide concern, which is really an added value there, because some of the projects don't have that environmental impact but have wide public concern. So we get the community, the public, the aboriginal and Métis nations engaged up front, from the beginning. That could be one of the triggers.

On the other piece, everything in the EA process is transparent; it's on the website. From the start, from the point when we receive an application and we've decided that there will be an EA, everyone in the public is notified and we make sure that first nation communities and so on are also engaged. All of that process is transparent and on the website, accessible to everyone.

[Laurin Liu, NDP, Rivière-des-Mille-Îles, QC]

Is that available through the discretion of a regulator? How does that work?

[Mark Wittrup]

No, we don't censor.

[Dr. Tareq Al-Zabet]

It's an open website.

[Laurin Liu, NDP, Rivière-des-Mille-Îles, QC]

So correspondence throughout an EA would be made public in every instance, without fail?

[Dr. Tareq Al-Zabet]

Absolutely; yes, everything.

[Mark Wittrup]

The only exception would be if there were a very small technological item that needed to be kept secret for proprietary reasons, and that would be decided by the minister.

[Laurin Liu, NDP, Rivière-des-Mille-Îles, QC]

That would be discretionary.

[Mark Wittrup]

Absolutely, but only a very small component.

[Laurin Liu, NDP, Rivière-des-Mille-Îles, QC]

Interesting.

You also talk about taking measures to harmonize the EA process; however, the federal government, I believe, does have a particular role to play vis-à-vis the consultation with first nations. You mentioned that in your presentation, so I see that it's something that's very important to you as well. There's a concern with the EA process in Saskatchewan that first nations aren't able to participate, whether it be because of language barriers or a lack of resources, etc.

Do you think the federal government should play a role in consultation with first nations--for example, in providing resources?

[The Chair, Conservative, Mark Warawa]

Unfortunately, time has expired, so I'll let the witness answer that in a future question.

Thank you.

Ms. Rempel, it's your time, for seven minutes.

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

Thank you for coming out today.

You spoke quite a bit about potential advances that could be made by harmonizing or adding equivalency or substitution processes in the EA process. Earlier in our proceedings we heard testimony that this perhaps is not a desirable route, because the federal government is best positioned to look at issues that are within its jurisdiction and vice-versa.

Could you speak to the validity of that statement, from your experience? If there are issues involved there, how could we address them if we were looking at substitution or equivalency?

[Dr. Tareq Al-Zabet]

I think this is a good question. We had a joint agreement with the federal agency and there are some concerns on some issues. The first one is that although there is a joint agreement, in reality they are different processes. Every agency has its own process, completely separate from the others. We meet at certain points, but at the end of the day everyone has to meet their acts and regulations. So actually we're just coordinating two pieces together; there isn't one streamlined process. There is a lot of duplication there, and each party is still legally accountable for their acts.

The other piece is the duty to consult. It's repeated twice, because we have our duty to consult, while the federal agency has its own duty to consult. So the whole effort, the whole exercise, is done twice.

The third piece is that even bilateral agreements between us and CEAA were overridden when CEAA, for example, decided to go with an agreement with other federal agencies. We were notified, but there wasn't really any coordination on how we were going to deal with the other agency there. So that was another issue.

The final one is that a bilateral agreement does not address transfers in the case of joint panels. That comes at the higher-level issues, when it gets complicated, a joint panel. That does not exist in their joint-review agreement. It's a process that is just coordinated; there isn't really one review process.

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

I would just like to follow up on some of your comments on the agreement we have, the Canada-Saskatchewan agreement on environmental cooperation. In your view, how could we strengthen that, or how could we make it more effective? Could you maybe elaborate on some of those points you just made?

[Dr. Tareq Al-Zabet]

You know what? We thought of that--in 2012 we'll have to renew that agreement--but we were looking at the other exercises that were done with other provinces. The problem is that it's always going to be superficial or cosmetic, in a way, because due to the nature of the act, they cannot change things at their end, and neither can we. So it needs to change--

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

In what regard?

[Dr. Tareq Al-Zabet]

There are different issues. There is the consultation process itself, the duty to consult. Screening at the provincial level is only 30 days. It takes 90 days, in the federal act, to provide a decision. We have a smaller decision-making circle. They have 40 federal agencies, and they're all bound to the act.

It's really tough to change things unless you change the act itself to make it more open to change or give more authority to the minister to go into agreements that override some of the provisions in the act. Other than that, it's just going to be good relationships and neighbourhood things, but nothing more.

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

Mr. Wittrup, do you want to expand on that at all?