Environment Committee on Dec. 13th, 2011

[Scott Vaughan]

I think broadly that Canadians would be better protected if the regulations on the books were actively enforced. They're there for a reason; they're there to protect human health and environmental quality. As I said, we found significant issues in all three entities. I would also say that we have proposed recommendations to fix the issues that we've identified. All three departments have accepted our recommendations.

The National Energy Board actually began to move on them this summer or early fall, so I'm optimistic that the deficiencies that we're bringing to Parliament's attention today will be addressed in the coming months.

[Kirsty Duncan, Liberal, Etobicoke North, ON]

Thank you.

Is environmental data being gathered using consistent methodologies, and if not, is there something that could be done to improve that?

[Scott Vaughan]

This was not an audit, but a study. It was intended to complement the science audit.

We've had many questions, including questions from this committee and, for example, from the previous chair, as to how many environmental monitoring systems exist, what they look like, what departments run them, what they do, what they cover, and what geographic areas they have covered.

We went back, and the last time an inventory was done was 20 years ago. We didn't audit whether or not there were duplication and gaps, or how they're run. I think it is important to provide this information to parliamentarians so they can ask how these systems are working and whether there are potential gaps.

We do mention in the study two areas where there are gaps. One is in the north, and that's almost across the board. The second area is biodiversity data, and that would be across the country. On biodiversity data there are important gaps that have been long-standing.

[Kirsty Duncan, Liberal, Etobicoke North, ON]

Thank you.

I have very little time. This has been excellent.

Just a few days ago, NOAA, the National Oceanic and Atmospheric Administration, released a formal scientific integrity policy, which is really to restore science to its rightful place. It supports scientists and their scientific activities. It allows scientists to speak freely to the media.

I'm wondering if you have thoughts on--

[The Chair, Conservative, Mark Warawa]

Unfortunately, the time has expired.

We're going to begin our second round. Because we're a little short on time, it will be four minutes for each questioner.

We'll start with Monsieur Choquette, for four minutes.

[François Choquette, NDP, Drummond, QC]

Thank you very much, Mr. Chair.

Thank you for your presentations, gentlemen.

My first question is about chapter 3 of the report, which deals with the enforcement of the Canadian Environmental Protection Act.

I think there were discrepancies between your findings and recommendations, and those of the department. Can you explain the nature of those differences of opinion?

[Scott Vaughan]

Thank you for your question.

There was disagreement between Environment Canada and our office regarding the issues noted in this chapter. We found a number of weaknesses in the department's systems for enforcing the act. These are serious basic deficiencies, and we found a number of them. Environment Canada has a different view of this matter.

Our office has standards relating to the communication of the reasons for a disagreement with a department. That is why we noted in this chapter that there was a disagreement. Our findings are based on facts and evidence, in accordance with very rigorous standards applied both in Canada and internationally.

That is the reason behind this disagreement.

[François Choquette, NDP, Drummond, QC]

At least you agree on recommendations to improve the act. That is the most important thing for me.

A review of the regulations was also recommended. In response, the department affirmed "the importance of regulations being written in a way that facilitates enforcement". In my riding of Drummond, there is a serious problem with shale gas exploration. The Canadian Environmental Protection Act applies, but this is part of the exclusion list.

I know you also reviewed the petitions received by the department in this regard. Was this part of your study, or should this be included in a possible study of the confusion created by the exclusion list? Because there is disagreement. For example, people are wondering whether chemicals used in shale gas exploration should be disclosed.

[Scott Vaughan]

Thank you for the question.

We noted in our annual report on environmental petitions that a number of petitioners wanted to better understand the role and responsibilities of the federal government in the area of shale gas exploration. However, we did not study that issue. I have a mandate to inform parliamentarians of matters that Canadians raised with the department. That is the purpose of the annual report.

[François Choquette, NDP, Drummond, QC]

I want to quickly ask you one last question because I do not think I have much time left.

I would like to get back to the follow-ups intended to prevent new violations. A request was made to start implementing a recommendation during the winter of 2011-12, which is now. Has anything been done to address that recommendation?

[The Chair, Conservative, Mark Warawa]

Unfortunately, the time has expired.

Our next questioner is Ms. Ambler. You have four minutes.

[Stella Ambler, Conservative, Mississauga South, ON]

Thank you, Mr. Chair.

I would agree with Ms. Duncan that enforcement is critical in the area of environmental protection. My concern today, though, is about the report's failure to give due weight to the many accomplishments of the enforcement branch of Environment Canada.

During the period covered by this audit, the Government of Canada made, I believe, significant and progressive funding and budgetary investments to enhance the ability of Environment Canada's enforcement branch to do its good work. I'm referring to the recently passed Environmental Enforcement Act, which strengthens environmental enforcement by increasing the fines, sentencing provisions, and the enforcement tools of the acts administered by Environment Canada and Parks Canada.

As I'm sure you know, Commissioner, the Environmental Enforcement Act establishes tough new penalties for offenders, including greatly increased maximum fines of $1 million for individuals and $6 million for large corporations. There are also additional fines for benefits derived from an offence and other aggravating factors. Corporate officials can be held individually liable, which I believe is a huge step forward. And, of course, my personal favourite is minimum sentences for serious offences.

During the audit period, the enforcement branch conducted thousands of inspections, and many investigations led to successful actions, including prosecutions, against violators. A $3 million award was imposed when Syncrude Canada was convicted of violating environmental laws. Those charges were related to the deaths of 1,600 migratory birds in the company's Aurora settling basin, or tailings pond, in 2008.

Second, Suncor pleaded guilty and was fined $200,000 for violation of the Fisheries Act. It released effluent from sedimentation ponds into the Steepbank River, north of Fort McMurray.

Third was the seizure in Montreal of over $1 million worth of illegally imported ozone-depleting substances used in the refrigeration industry.

Fourth, Public Works and Governments Services Canada made a contribution of $50,000 to the environmental damages fund for violations of federal halocarbon regulations under CEPA in 1999.

I consider all of these to be significant accomplishments of this government, which speak to our commitment to enforcement in the area of the environment as it relates to the health of Canadians affected by environmental violators.

Is it still your belief that the enforcement program has not been well managed?

[Scott Vaughan]

Thank you very much for the questions, Chair.

I'll say just two things. On the changes, which the honourable member has outlined, and the new schedule of penalties and increased maximum thresholds for the penalties, we weren't able to audit those, because they are not yet in force. They've been announced, but they haven't gone out. That's my understanding.

In terms of whether we stand by our overall conclusions, nothing would please me more than to say that I think this system is working well at Environment Canada. This is an important institution, with dedicated people. But the budget increase in 2007, for example, was intended to increase the number of inspections per year, and the number of inspections has actually remained steady or has dropped a bit between 2007 and now.

[Stella Ambler, Conservative, Mississauga South, ON]

Would you say that overall, Commissioner, the concerns expressed in your report are mainly about management processes and gaps in documentation and follow-up rather than environmental enforcement results per se?

[Scott Vaughan]

No, I would characterize it more this way. The management systems are there to make the system work. If there are gaps in the management systems, particularly when they involve gathering evidence, and there are gaps in the evidence, they actually cripple the ability to pursue actions in courts or otherwise. To repeat myself, and I apologize, this wasn't just a matter of sloppy paperwork but a problem of major gaps that we found in the management systems.

[The Chair, Conservative, Mark Warawa]

The time has expired.

Ms. Leslie, you have four minutes.

[Megan Leslie, NDP, Halifax, NS]

Thank you, Mr. Chair.

I want to go back to the enforcement of the Canadian Environmental Protection Act. The department says that it does not accept the enforcement audit findings or conclusions. However, they accept the recommendations. Is it usual for the department to not accept your findings?

[Scott Vaughan]

No. It would be fairly rare. I think we found one previous case in the Auditor General's office, so this is quite rare. It's less usual for a department not to accept recommendations. But it is very rare not to accept the findings or the conclusions, but to accept the recommendations. This is quite rare, yes.

[Megan Leslie, NDP, Halifax, NS]

You still put your findings into print, and you are confident in them.

[Scott Vaughan]

This one has gone up, down, and sideways, involving many senior colleagues in the Office of the Auditor General because of the unusual nature of this. This is a rock-solid audit, which is based on facts.

[Megan Leslie, NDP, Halifax, NS]

Thank you.

Forgive me if this was covered while my colleague Monsieur Choquette had the floor, as I was frantically flipping through pages then. You noted gaps in the capacity to enforce CEPA regulations. Can you describe those gaps?

[Scott Vaughan]

According to Environment Canada's own analysis, 40% of the regulations have some kind of enforceability gap. We list the types of gaps—but it's about the clarity of definitions within the regulations themselves. If there are vague definitions or there's an omission in a regulation, then either that vagueness or lack of clarity is going to run a risk of affecting an inspector's ability to fully pursue the regulation, because it's not clear what the inspector is supposed to do or what its meaning would be if it were actually to move forward to the courts, for example.

They're going through an analysis now. They've identified them and they're beginning the process of correcting those regulatory enforcement gaps.

[Megan Leslie, NDP, Halifax, NS]

What about human resources? There's some dispute about the government saying that it is pumping money into Environment Canada and all things government, which is great, but what about capacity when it comes to the folks on the ground in terms of training, knowing what they're doing, and how to get at these issues?

[Scott Vaughan]

Two things that we did say about capacity—which, again, would be a reason why we came to this overall observation—is that with 16 out of 45 regulations, there is a lack of necessary training for the inspectors to do their jobs, and that 5 of the 45--

[Megan Leslie, NDP, Halifax, NS]

Sorry, the regulations lack...?