Environment Committee on Nov. 7th, 2012

[Helen Cutts]

No. These are technical amendments. None of them change the policy intent of the original act.

[Michelle Rempel]

I want to look specifically at clause 430 with regard to the review of EAs on federal lands. I understand the intent of the clause, but perhaps you could give the committee an example of what type of project this would apply to and whether it undermines the environmental assessment process at all.

[Helen Cutts]

As you know, there is an obligation in the act that federal authorities examine projects that are non-designated and happen to be on federal lands.They need to determine that there are no significant adverse environmental effects of their actions.

Now, what we felt we needed to clarify was that when we said “federal lands”, did we mean only the portion of the project on federal lands, or did we mean there was an obligation by federal authorities to look at the whole project? The example you'd be looking at would perhaps be a transmission line that crosses federal lands, for instance, where several kilometres of it is on federal lands through the corner of a park. This amendment says that the only obligation of the federal authorities is to look at the portion on federal land; it's not appropriate that we look at the other portion.

This does not reduce the standards. This was fully the intent of the original provision. It's for greater clarity in case someone would think that the clause meant something broader than it really does mean.

[Michelle Rempel]

One of the questions we had in our preparation for this meeting was on how to ensure that the clause doesn't weaken or reduce the provision of the environmental assessment for the portion on federal lands. My understanding of what you're saying today is that the portion would still be reviewed. Is that correct?

[Helen Cutts]

It in no way weakens the standards we use for environmental assessment under these federal authorities. We refer to them as “federal stewardship”.

[Michelle Rempel]

That's great.

We're in a process of transition right now, so what would be the impact of this change—or any of these changes—on the transition provisions that we've already outlined with CEAA 2012?

[Helen Cutts]

There are some transition provisions that indicate the possibility of exempting a project from the act. We don't think that our new change, which addresses this issue in order to create more fairness, will have a significant impact in terms of the number of projects being subject to the act. It's mainly a technical change on order to make sure that a project that would have been subject to the former act because a trigger was found subsequently would still be subject to the new act.

It's not something where we expect to have huge implementation changes, in that the number of projects or the way we look at them would change. It's a minor adjustment to deal with the intricacies of transition, of going from a trigger-based system to a non-trigger-based system.

[Michelle Rempel]

I'm sure you've consulted with stakeholders and you've had reaction from stakeholders on these changes. Could you tell the committee a bit about any reaction you have had from stakeholders on these changes to date?

[Helen Cutts]

The reaction has been very muted. We were doing a tour with our provincial colleagues, and they understood fully that these were technical changes.

We had some consultations in the summer that were broader—on the project list—but at that time, these elements were still under the radar because they had not been tabled in the House, so we were not able to discuss them broadly with stakeholders this summer in the course of our other stakeholder engagement.

[The Chair, Conservative, Mark Warawa]

Your time has expired.

Ms. Leslie, you have seven minutes.

[Megan Leslie, NDP, Halifax, NS]

Thanks very much, Mr. Chair.

Thanks very much for your testimony.

In regard to my first question, I'll tell you that I'm a little worried that we have amendments to one piece of legislation twice.... Well, I was going to say twice in the same year, but I need to remember that the first round with CEAA wasn't an amendment, but a new bill. I'm a little worried about amending a bill that essentially was just tabled this spring.

With these.... I mean, it's good and it's due diligence that there are going to be corrections made to this bill, but one correction that I was actually surprised not to see was anything to do with abrogation or a derogation clause, because I have had some feedback from first nations groups who are saying that surely to goodness this new act—in particular, when it comes to the notice provisions—doesn't apply to them with regard to consultation.

I wonder if you have any feedback about any discussion you've had or any future plans for that kind of clause or even if you've had the same feedback that I have.

[Helen Cutts]

We had, as I say, some conversations with first nations in the summer. There was a general comment that the process in the spring had been inadequate from their point of view, because they had not been consulted on the new act before it had been tabled.

More broadly in terms of consultation activities, we have not had any of the first nations complain about consultation on a project-by-project basis. The way we proceed with consultation is that it is the same process under the new act that it was under the old one. We interact with them early and frequently.

I'm just not fully aware of the feedback that you had. Mr. Mongrain might want to add something.

[Steve Mongrain, Senior Policy Advisor, Policy Development Sector, Canadian Environmental Assessment Agency]

Yes. I could add to that.

The legal duty to consult is constitutionally founded, as you know. The government has chosen to use the EA process as a means, to the extent possible—

[Megan Leslie, NDP, Halifax, NS]

The what process? I didn't hear.

[Steve Mongrain]

Sorry: the EA process, the environmental assessment process.

[Megan Leslie, NDP, Halifax, NS]

Thank you. It was just that I didn't hear it.

[Steve Mongrain]

The government has chosen to use the EA process to deliver on the legal duty to consult to the extent possible, but there is nothing in CEAA that can diminish that obligation or take away from aboriginal rights.

[Megan Leslie, NDP, Halifax, NS]

The feedback I was getting was specifically about the amount of time—I think it was 15 days—when the information is gazetted and you're looking for feedback. That's where I was getting some concern—pressure is too strong a word—from various groups saying that surely that didn't apply to them because of the case law that's out there, because of the duty to consult.

[Steve Mongrain]

There is a 20-day period—

[Megan Leslie, NDP, Halifax, NS]

Twenty days? Thank you.

[Steve Mongrain]

—once the agency has received a project description from a proponent and we review that to make a determination on whether to require an EA or not. If an EA is not required, that does not take away the legal duty to consult if the federal crown is contemplating conduct. Similarly, the 20 days is a new consultation period; it didn't exist under the old act. We're trying to open it up to the public and to aboriginal groups earlier than what has occurred under the old CEAA.

We also, as the federal authority that helps deliver on the legal duty to consult, endeavour to contact potentially affected aboriginal groups and give them as much advance notice as possible. Where practicable, that may involve contact even before that formal project description phase.

[Megan Leslie, NDP, Halifax, NS]

Thanks.

Ms. Cutts, you were talking about the movement from a trigger-based system to a non-trigger-based system and that transition. I can only imagine how difficult that is to navigate from a technical perspective.

In developing the new project list that came into force in July, was there consultation about the project list or was it just a cut-and-paste from the old—

[The Chair, Conservative, Mark Warawa]

On a point of order, Ms. Rempel.

[Michelle Rempel]

We are here today to review the clauses that are outlined and tasked to us by the finance committee. I understand that there are broader issues, but I think our study should be focused on questions related to the specific clauses that are laid out in front of us.

[The Chair, Conservative, Mark Warawa]

Are there any speakers to that?

Ms. Leslie.