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—