Thank you very much, Mr. Chairman.
Let me introduce my colleagues who are here with us.
First, I'm Elaine Feldman, the president of CEAA. I am joined by Helen Cutts, our vice-president of policy development; Yves Leboeuf, vice-president of operations; and John McCauley, director of legislative and regulatory affairs for CEAA.
I have a slide presentation, which I believe you have, to supplement my remarks.
I will provide an overview of the Canadian Environmental Assessment Act along with a description of some of the challenges and achievements associated with implementing the act.
Slide 2 sets out a general description of environmental assessment or EA.
As you know, EA is based on the idea that it is cost-effective and prudent to make design changes to a project before construction as a way of avoiding harm.
An environmental assessment also allows the views and knowledge of all interested parties to be brought together in a coordinated fashion.
The process delivers results. One example is the Deltaport Third Berth in British Columbia, which reduced the overall footprint of its project by 30% without increasing construction costs. Improvements to the project protected migratory bird and fish habitat. The container terminal, now in operation, has significantly expanded capacity at this Pacific gateway.
The third slide sets out some of the key milestones in the evolution of environmental assessment.
The original process was set out in a three-page cabinet directive issued in 1974. Over time, requirements have been codified in legislation, resulting in greater precision but also greater complexity.
The fundamental purpose of taking environmental matters into account when planning and implementing projects has remained a constant.
Slide 4 provides details on the application of the act. An EA is required when a federal authority has a decision to make about a proposed project. These decisions are commonly referred to as the act’s triggers.
There are four types of triggers: when a federal authority is the project proponent; when a federal authority may provide financial assistance to a project; when federal land is required; and when a federal authority has a regulatory decision, such as whether to authorize the alteration of fish habitat under the Fisheries Act.
All projects that have a trigger require an environmental assessment, unless explicitly excluded.
The types of projects assessed range from the expansion of a maple syrup operation to proposals for major dams, pipelines, and mines. The act has limited application north of 60. Other federal legislation resulting from land claim agreements, such as the Yukon Environmental and Socio-economic Assessment Act, set out EA requirements.
Slide 5 describes the screening type of environmental assessment. The federal authority with the decision about a project is defined in the act as the “responsible authority”. The responsible authority conducts the screening, makes the EA decision, and ensures the implementation of mitigation measures. Despite its name, a screening is a full EA.
A responsible authority may involve the public or require a follow-up program. This discretion recognizes the relatively routine nature of most projects assessed through a screening.
Efforts have been made to reduce the number of small, routine projects that require screening so that government resources can be devoted to higher risk projects that are of public concern. Exclusions have been added through regulations and amendments to the act.
Despite these efforts, the act still requires a full assessment of many small projects. For example, upgrades to small craft harbours and, as I mentioned already, expansion of a maple syrup operation are projects that have been captured by the process.
Slide 6 refers to the comprehensive study-type of environmental assessment, used for large-scale projects, with greater potential for significant adverse environmental effects. These projects are identified in the comprehensive study list regulations.
There are currently 38 comprehensive studies underway.
A comprehensive study requires consideration of additional factors that are not covered in a screening, such as alternative means of carrying out the project. A comprehensive study includes opportunities for public participation and for participant funding. Follow-up programs are mandatory.
As a result of amendments made in July 2010, the Canadian Environmental Assessment Agency is now responsible for the conduct of all comprehensive studies, except for projects that are regulated by the Canadian Nuclear Safety Commission or the National Energy Board. When these amendments came into force, CEAA immediately took over 19 comprehensive studies from responsible authorities. Since then, 11 more have been started, in sequence with provincial reviews.
The agency is also operating in accordance with timelines set in regulation. These regulations provide 90 days to determine whether to commence a comprehensive study and 365 days to complete a report on the results of the EA for a final public comment period. This is supporting a more predictable process. Mr. Chairman, this is an extremely important point. In practical terms, it means that we're avoiding federal delay at the start of the process. It means that proponents generally receive one set of information requirements instead of two. It means that proponents have to prepare a single environmental impact assessment statement. It means that the two levels of government work together in a predictable and coordinated manner that achieves the goal of one project, one assessment.
In taking on its new responsibilities for comprehensive studies, the agency has also paid a lot of attention to how it engages the public. We know that public participation strengthens the quality of an assessment by bringing together the views and knowledge of interested persons and organizations. It also promotes trust and confidence in the process and in the decisions that result.
In some cases, the agency has gone beyond the typical practice of simply seeking comments on documents posted on the Internet. It has arranged interactive public sessions to encourage discussion about projects and their environmental effects.
At the end of a comprehensive study, the report undergoes a final public comment period that is normally 30 days. Once the Minister of the Environment makes a decision on whether the project will cause significant adverse environmental effects, it is returned to the responsible authorities to make their EA decisions and ensure implementation of mitigation measures in the follow-up programs.
Slide 7 deals with review panels of experts appointed by the Minister of the Environment. Panels are used for projects with the greatest potential for significant adverse environmental effects or when warranted by public concern in relation to matters of federal jurisdiction.
There are currently 11 active review panels.
A review panel holds public hearings that allow interested parties to make oral submissions.
A review panel is not a decision-making body. It provides recommendations to the government. Review panels are often jointly established with a province or another federal authority with a public hearing process, such as the National Energy Board.
After a review panel, the responsible authorities prepare a government response that is approved by cabinet. The responsible authorities are then required to ensure the implementation of mitigation measures and the follow-up program.
Slide 8 describes the special role of the Minister of the Environment and the agency in the EA process. The minister has powers and duties relevant to specific assessments, such as issuing a decision statement at the end of a comprehensive study.
The minister also shapes the process by bringing forward regulations, issuing guidelines and entering into agreements with other jurisdictions.
Prior to the Supreme Court's MiningWatch decision in January 2010, it was assumed that all responsible authorities had discretion to narrowly scope a project. The court has ruled that this is not the case. Rather, the scope of a project is the project as proposed by the proponent.
The Canadian Environmental Assessment Agency reports to the Minister of the Environment.
The agency provides support to other federal authorities through training and guidance. We administer the Canadian environmental assessment registry Internet site, providing information about individual assessments.
In addition, as the agency president I am the federal administrator for the federal EA process under the James Bay and Northern Quebec Agreement. In 2010, there was a Supreme Court decision that confirmed that the act applied in the territory covered by the agreement. We work to ensure that the requirements of each process are applied in a manner that avoids duplication.
As I noted earlier, the agency is responsible for most comprehensive studies. We are also the crown consultation coordinator for those projects and most other major resource projects. This is because the government has chosen to integrate the legal duty to consult aboriginal groups, to the extent possible, into the EA process. The EA process is well suited to delivering this responsibility as the views and knowledge of aboriginal groups can be used to ensure that potential changes to the environment that may affect aboriginal or treaty rights are fully examined.
An advantage is that an EA starts early in the planning phase of a project, well before final decisions. There are also key points in an EA that provide a natural opportunity for consultation. This helps to ensure that consultations with aboriginal groups are meaningful.
Finally, the participant funding program required under the act, serves as an efficient means to flow capacity funding to aboriginal groups for consultations on projects assessed through a comprehensive study or a review panel.
Slide 9 deals with federal-provincial cooperation, which is an essential aspect of EA in Canada.
All provinces have an EA process with specific standards and practices.
In recognition of this, one of the purposes of the act is to promote cooperation and coordination action between federal and provincial governments.
Bilateral arrangements with provinces and project-specific arrangements are intended to meet the goal of one project, one assessment. A cooperative assessment prevents duplication while respecting the constitutional powers and legal responsibilities of each order of government.
In 2009, the Canadian Council of Ministers of the Environment examined the challenge of combining the federal process with different provincial processes. It recommended that all jurisdictions should ensure that their statutory regimes included a range of cooperative tools, including joint processes, delegation, and substitution.
The act currently allows for delegation of an EA or part of an EA to another jurisdiction. The act also provides for joint processes, such as a joint review panel. The act does not include provisions for federal-provincial substitution, which would allow the EA process of one jurisdiction to replace the process of another. Under substitution, both levels of government would retain their decision-making at the end of the environmental assessment.
Slide 10 describes some of the challenges that we have encountered in implementing the legislation over the past 15 years. The first challenge is that certain projects with the potential to cause adverse effects on matters within federal jurisdiction do not require an EA because there is no federal decision associated with the project. In other words, there's no federal trigger.
The second challenge relates to the point made earlier about the act being implemented by over 40 federal authorities. Federal coordination was a problem highlighted by the Commissioner of the Environment and Sustainable Development in his 2009 report. But, as I have mentioned already, targeted amendments to the act since then have addressed this issue for the larger projects by making the agency responsible for the conduct of comprehensive studies. The problem remains for screenings.
In addition, decision-making at the end of a comprehensive study process remains a two-step process whereby the Minister of the Environment makes a decision and then sends it back to one or more responsible authorities for their EA decisions.
The third challenge stems from the number of small routine projects that require an environmental assessment, as I noted when describing the screening type of environmental assessment.
The fourth challenge relates to the lack of an enforcement regime in the act. The act relies on enforcement mechanisms that reside in other laws. Experience has shown that these other laws are often not well-suited for the purposes of environmental assessment. This has created challenges in ensuring appropriate mitigation measures are implemented and monitored.
Often an EA is triggered because there is a federal regulatory decision about a project. A particular department may have to issue a permit, for example. That department will be heavily engaged in the EA process. At the same time, other departments will provide expert information about environmental risks and how to mitigate these risks. While the department making the permitting decision is able to use its permit to specify and enforce mitigation requirements for matters within its mandates, other departments without permitting decisions do not have a means to do so.
The act assumes that a federal authority will use its permitting power to require appropriate mitigation for matters within the mandate of another department. For example, the act assumes that Fisheries and Oceans Canada will use powers under the Fisheries Act to protect migratory birds that are within the mandate of Environment Canada. In practice, problems of accountability along with legal constraints have been a deterrent for federal authorities to include, let alone enforce, such conditions in their permits.
Finally, the Commissioner of the Environment and Sustainable Development, along with others, has pointed to the challenge of using a process that assesses single projects to also assess cumulative effects of many projects in a region. There are no provisions in the act that enable comprehensive regional assessments.
I don't want to leave you with the impression, Mr. Chair, that all is doom and gloom. The last slide talks about some provisions in the act that are working reasonably well, in our view. First, the registry Internet site, added as a result of the last review of the act in 2003, has been extremely useful in providing easy public access to project information and public notices.
Another success, which I noted earlier, is that we are now starting comprehensive studies in sequence with provinces. This prevents duplication and allows for greater efficiencies.
Over the life of the act, review panels have generally provided high-quality EAs for government decision-makers. In fact, Australia’s ten-year review of its legislation explicitly referred to Canada’s positive experience and recommended that the same approach be adopted in that country.
Our whole-of-government approach to aboriginal consultation, which integrates those consultations into the EA process, to the extent possible, has replaced previous piecemeal and uncoordinated efforts.
Mr. Chairman, this is a snapshot of the act and how it operates.
We look forward to your questions and to assisting the committee as it undertakes this review.