Environment Committee on Nov. 22nd, 2011

[The Chair, Conservative, Mark Warawa]

Good morning, colleagues.

We'll call the meeting to order. We have a very full agenda today.

For the first hour our witnesses are from the Government of Saskatchewan. We have Mr. Mark Wittrup and Mr. Al-Zabet.

Welcome. You have up to ten minutes.

[Mark Wittrup, Assistant Deputy Minister, Environmental Protection and Audit Division, Ministry of Environment, Government of Saskatchewan]

Thank you.

Chairperson, committee members, ladies and gentlemen, thank you for the opportunity to present this brief on behalf of the Province of Saskatchewan.

My name is Mark Wittrup, and I'm the assistant deputy minister, environmental protection and audit. I bring over 25 years of environmental assessment experience, using both the federal and provincial processes, from an industry and government perspective.

With me today is Dr. Tareq Al-Zabet, director, environmental assessment, who brings considerable environmental and resource management experience as well.

In the interest of time, my comments will be brief, highlighting important areas of our more detailed submission.

In Saskatchewan, environmental assessment is only used for projects that pose a high risk to the environment or public safety. We don't use lists of projects; rather, we have a rigorous process to determine whether a project qualifies as a development under the act, and therefore requires a full environmental assessment.

For those projects and activities that do not require an environmental assessment, the normal licensing and permitting processes, and ongoing monitoring and inspection, ensure that they will proceed in a manner protective of the environment.

Under this regime, a responsible proponent can receive the provincial environmental assessment approval in less than a year, allowing the proponent to proceed to licensing, which they can then stage to maximize project efficiency.

Saskatchewan has been an active participant in national discussions on the environmental assessment process. Fundamentally, Saskatchewan supports the principle of one project, one assessment, done in a timely manner, and encourages the committee to consider fundamental changes to CEAA to achieve this goal.

Overlapping requirements between the federal and provincial environmental assessment processes have created procedural and regulatory complexity for all stakeholders that adds significant delays and costs to some projects undertaken in the province. What we see are proponents going to great lengths to avoid triggering CEAA, even if that means doing a suboptimal project, not doing projects or improvements, gaming the system, or attempting project splitting.

While the Government of Canada has attempted to address some of the complexity and problems with CEAA, many problems remain. As a result of these problems, projects take substantially longer to approve than is reasonable, given the state of environmental knowledge. Business opportunities are lost or simply cancelled due to the real costs, time, and resources that CEAA and, importantly, its interpretation by federal authorities, creates. Governments of both levels spend more time and money than necessary on duplicative assessment efforts, and legal challenges under CEAA rarely hinge on technical aspects, or environmental outcomes of a project. Rather, the complexity of CEAA encourages procedural challenges.

The national maturation of environmental regulation over the last 20 years is such that the significant environmental regulatory differences between jurisdictions, which existed when CEAA was first contemplated, do not exist any longer. In fact, Saskatchewan has largely adopted federal standards in most areas of regulation. This maturation of environmental regulation within Canada presents some unique opportunities in the areas of environmental assessment equivalency, elimination of screening-level assessments, and some pragmatic housekeeping items. Saskatchewan believes that enormous efficiencies can be achieved, and the duplication of effort reduced, if CEAA acknowledges the provincial environmental assessment as equivalent to the federal environmental assessment for any CEAA assessment. That is, an environmental assessment done under the Saskatchewan legislation can be used to meet the federal requirements, and vice versa.

Saskatchewan believes its environmental assessment process easily covers the technical needs of the federal assessment by the use of rigorous and comprehensive EA requirements that ensure significant adverse effects are identified and mitigated; by addressing the same factors as set out in section 16 of CEAA; assessing cumulative impacts; providing opportunities for public input, and duty-to-consult requirements; and providing transparency of process and access to information through the ministry website.

We have little disagreement with the projects that qualify for a comprehensive study under CEAA, as these projects, for the most part, would qualify as developments under our act. CEAA's own work shows that most screening-level assessments don't have any significant environmental effects. With a robust provincial regulatory system in place, we believe federal screening-level assessments are unnecessary to ensure environmental protection within provincial boundaries, except for projects where the project proponent is a federal ministry or crown, or the project occurs on federal lands.

This recommendation would have a very low risk to the environment while eliminating significant areas of overlap and duplication. Screening-level triggers are also the area where some responsible authorities failed to make pragmatic decisions about what level of screening is required. There are many instances in Saskatchewan where responsible authority has required an environmental assessment that takes in excess of a year for minor CEAA law list triggers. Provincially, these were simple licensing and permitting matters.

Saskatchewan also recommends that any agreement it makes with CEAA should take legal precedence over any agreement negotiated between CEAA and another federal agency. Accordingly, Saskatchewan recommends that the act confirm the role played by CEAA in negotiating such agreements and add a provision to ensure that such agreements with the provinces bind and take precedence over any agreements entered into with other federal bodies, such as the CNSC or the NEB. This would ensure that all federal agencies are aligned with the federal environmental assessment process and that there would be consistency in all federal-provincial interactions.

The costs to business in missed opportunity have never been effectively studied, but they are likely very large, and there is no evidence that the excessive process added by CEAA provides any benefits to environmental protection, especially at the screening level.

To improve the situation, we recommend the following measures be considered in all aspects of the review: bring more predictability and consistency to the federal environmental assessment process by setting predictable and enforceable timelines; provide mechanisms to reward proponents with less process for good environmental and stewardship practices through the use of new technologies, process upgrades, refurbishment, and so forth—things that will improve environmental performance; and provide exclusions for the projects of substantially similar nature to a project described in the exclusion list regulations and/or projects that will not generate new or increased levels of environmental impacts—i.e., those within the current disturbance footprint of an existing operation—and can be managed by existing regulatory processes.

Saskatchewan supports a vision that would redefine federal and provincial responsibilities to endow Canada with a system based on a principle of one project, one assessment. Consistent with our move to a results-based regulatory framework, Saskatchewan recommends CEAA acknowledge provincial environmental assessments as equivalent to a federal environmental assessment for all projects on provincial lands; also on provincial lands, provide a blanket exclusion from all CEAA screening-level triggers, as these areas of environmental interest are fully covered by existing provincial mechanisms; consider bilateral agreements on environmental cooperation negotiated by CEAA as legally binding on all federal authorities; and introduce proactive and efficient measures that enhance predictability and consistency of the federal EA process and provide incentives for projects that will improve environmental performance.

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

Thank you.

[The Chair, Conservative, Mark Warawa]

Thank you very much.

Our first questioner is Mr. Toet, for up to seven minutes.

[Lawrence Toet, Conservative, Elmwood—Transcona, MB]

Thank you, Mr. Chair, and thank you, Mr. Wittrup, for your presentation.

First, you did talk, in your presentation, about the overlap. I note that in 2009, the Canadian Council of Ministers of the Environment recommended the addition of substitution provisions for managing federal-provincial overlap and duplication.

Would you like to see a situation such as that, whereby you have the substitution or equivalency included in the act, to be part of the act?

[Mark Wittrup]

Those provisions actually exist right now. The problem is that the substitution that is envisioned is really substituting the provincial process with the CEAA process, so there are no savings in terms of time or process involved in that discussion.

So we haven't gone that way because it doesn't really lead to an improvement in the process.

[Lawrence Toet, Conservative, Elmwood—Transcona, MB]

If I understand you correctly, what you're saying is that you'd like to see the substitution be...that a provincial assessment would be a substitute for the federal assessment.

[Mark Wittrup]

It's the assessment itself, absent the process, that.... So we would undertake an environmental assessment through our process, and that could be used as a substitute for the federal environmental assessment if that were deemed.

And really, because we have equivalent...we look at the same things.

[Lawrence Toet, Conservative, Elmwood—Transcona, MB]

Can you give an example of where an equivalent assessment in Saskatchewan would have been, in your mind, every bit as effective as the federal assessment?

[Mark Wittrup]

An example would be with the uranium mines in northern Saskatchewan. There are many instances where the provincial process would not have indicated that an environmental assessment was required, given that the facilities already existed and had management systems in place, licences, permits, and so forth. In addition, many of the projects that have gone into joint environmental assessments--some of them are uranium mines--would have taken substantially less time just using the provincial process.

[Lawrence Toet, Conservative, Elmwood—Transcona, MB]

That kind of leads to my next question. In your presentation you said that most of your provincial assessments would be completed in less than a year.

[Mark Wittrup]

Correct.

[Lawrence Toet, Conservative, Elmwood—Transcona, MB]

It sounds as if there would probably be some exceptions to that, based on your saying “most”. What would your typical timeframe be with a federal assessment--a comparative assessment, the same project, the federal component of that? When you say less than a year provincially, what happens when a federal assessment kicks in?

[Dr. Tareq Al-Zabet, Director, Environmental Assessment, Ministry of Environment, Government of Saskatchewan]

If it's a joint review process, it could go to three or four years. The joint review is only an agreement on coordination, but they are completely separate processes. From our side, it could end within one year, while the federal one could take three to four years.

So there is a delay, because we can approve a project through EIA but still not get it approved by the federal agency. It could take two years there.

[Lawrence Toet, Conservative, Elmwood—Transcona, MB]

So there's a time difference, but is there an outcome difference, or is it strictly a process difference that you're seeing between the provincial and federal?

[Dr. Tareq Al-Zabet]

I think it's purely a process difference. The outcomes are almost identical. There is no difference. Actually, we have side effects because of the delay. A lot of opportunities are missed.

[Lawrence Toet, Conservative, Elmwood—Transcona, MB]

In your mind, where are the delays happening in the federal process? If you say you're coming to the same outcome within less than a year, what are the weaknesses that are causing this to become a three- or four-year process with the federal assessment?

[Dr. Tareq Al-Zabet]

The first one is the decision-making process in the federal agencies. You have 40 federal agencies, and CEAA is the coordinator of those 40 agencies. By the time that federal responsible authority triggers a reason for going to a screening process, it takes 90 days just to decide if they even want to screen the project or define whether it's an EIA or non-EIA. They have more stages. There are processes rather than outcomes, and it's a one-size-fits-all process. So whether it's a small project or big project, it goes through the same process.

For example, the Canadian Nuclear Commission takes three years just for a screening because they deal with screening as a full EIA. That's why it can sometimes take us three months or one year, and it takes them three years. So there are process and decision-making issues

[Lawrence Toet, Conservative, Elmwood—Transcona, MB]

In your presentation you talked about companies not even doing projects because of the federal assessment. Are there many examples of that, or is it pretty limited?

You also touch a little on gaming the system. I wonder if you can expand on that a little.

[Mark Wittrup]

Just anecdotally in talking with companies and from my own experience, the discussion that goes on within these companies is whether or not it is worth embarking on a two- or three-year project for upgrades. Because of the time, amount, and the human resources required to move something through the CEAA process, companies often say that they decided not to do something because it just wasn't worth entering the approvals process. Time and money are important. So they just move on or leave things until they absolutely have to change something, and it becomes precipitous.

It's the same with gaming. The discussions go on. It's a screening, they'll say, but it might be better to have a comprehensive study, because at least the timelines are somewhat predictable. The problem with the screening is that there are no predictable timelines. So they try to move projects around. The gaming has to do with whether they can move it to an area where there are no triggers. As a result, they get suboptimal projects, or not the project they envisioned originally, and all because they don't want to enter the whole process.

[Lawrence Toet, Conservative, Elmwood—Transcona, MB]

But you're--

[The Chair, Conservative, Mark Warawa]

Mr. Toet, you have 10 seconds. Do you want to hold it there?

[Lawrence Toet, Conservative, Elmwood—Transcona, MB]

I'll pass. You can't get much done in 10 seconds.

[The Chair, Conservative, Mark Warawa]

Thank you.

Ms. Liu.

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

Thanks for coming in today and for your thorough presentation. It was definitely informative.

We've been learning a lot in committee from different stakeholders. We've come to realize that EA should have some common ground. The EA should respond to the needs of industry as well as the concerns of the public.

We've been talking to a lot of industry about ways to improve EA so that it would help to promote innovation and business development. One thing we've been hearing a lot is that industry wants process certainty. I'm wondering if you could respond to whether or not inactive government presence can create process uncertainty in some cases.

[Mark Wittrup]

I'll speak to the Saskatchewan example. We've been able to work with the process in the province so that it gets a fulsome review. Yet we've brought the timelines down so that a full-sized potash mine, for instance, can get its environmental approvals within seven to ten months.

Now, that's a responsible proponent who has researched the issue--