Thank you, Mr. Chair, and committee members.
I appreciate the opportunity to speak to you about the proposed amendments to the Canadian Environmental Assessment Act.
At the outset, I should say that my general reaction to the amendments proposed in Bill C-45 is that some are helpful and others are not. None of them addresses what I would consider to be significant shortcomings in the current federal environmental assessment process. I propose to do two things in my 10 minutes. I propose to briefly go through the amendments proposed and indicate my reaction to them, and in the remaining time to comment more generally about the current act and perhaps what further amendments may be considered.
Starting with section 7, I suggest that the proposed amendments to section 7 are appropriate. They are helpful, so I don't propose to comment further on them.
With respect to paragraph 14(5)(b), my reaction to that proposed amendment is that the subsection already restricts the ability of the minister to call for an environmental assessment of a project not on the designated project list. Just because the federal authority has already granted one approval does not mean that a federal environmental assessment may not still be warranted. The amendment, in my view, would seem to make this worse by broadening the range of decisions which, once made, would prevent the minister from exercising discretion to require an environmental assessment. I would suggest that amendment not be passed.
On subsection 53(4), the amendment is a positive change to the act and I would support it.
The proposed amendments to sections 63 and 64 are very similar amendments, so I will make one comment with respect to both. It would seem inappropriate to permit the environmental assessment to be terminated unless it is clear that the decision not to exercise a federal power, due to your function with respect to the project, would in fact prevent the project from being carried out. For this reason, the proposed amendment to section 63 should not be adopted. The original versions of sections 63 and 64 are stronger.
With respect to the proposed amendments to sections 66, 67, and 128, I view those as appropriate and have no further comments.
That leaves me with a few comments about the current state of the Canadian Environmental Assessment Act, 2012. My view is that this version of the act no longer provides a solid foundation for good decision-making on projects, which is along the lines of what was suggested by Justice La Forest as far back as 1992.
The CEAA, 2012 introduces unnecessary uncertainties about the application of the act. It encourages the application of the act late in the process. It turns the process into a regulatory process rather than a planning process. It focuses on a narrow range of issues that will not enable a federal decision-maker to make sound decisions about whether and under what circumstances proposed projects be permitted to proceed. The focus on large projects carries with it the risk of missing significant adverse impacts and cumulative impacts of smaller projects.
In the time remaining I would like to make three modest recommendations for improvements to the act.
Number one is that we do away with the discretion not to require an environmental assessment at the project registration stage. There is a lot of experience with this approach in provincial environmental assessments. It has not been positive. The effect of this approach is to push the proponent to complete its planning and design before the EA actually starts. Essentially, it turns an environmental assessment planning process into a duplication of the existing regulatory process. In this case, the way the act is currently structured, this discretion is not needed. The designated project list is already modest. There is power of substitution and equivalency in the act already.
My second recommendation is that the scope of environmental effects to be considered under the federal assessment be broadened to ensure that appropriate information is gathered for sound decision-making.
I recognize that for joint panel reviews this likely already happens, but in federal only assessments, by limiting the scope of the assessment to key areas of regulatory responsibility, such as fisheries, migratory birds, and impacts on aboriginal peoples, we are turning an environmental assessment process into a duplication of existing regulatory and other core federal responsibilities, and in the process are undermining the whole point of doing an environmental assessment.
The third recommendation I would make is that we proceed further on the positive steps taken in the act to recognize regional environmental assessment and to recognize, in the purpose section, the importance of cumulative effects. The future of environmental assessment is to get a handle on how to do better cumulative effects and to more appropriately use strategic environmental assessment and regional environmental assessments to assist with the difficulties we've all encountered at the project level. I would suggest that the act should set out a process for doing strategic environmental assessments and regional assessments, and it should set out clear circumstances for when those are required.
With respect to cumulative effects, my main recommendation is that we need to move beyond doing cumulative effects with existing and future projects. It should be based primarily on reasonable future development scenarios, and that piece should become central to environmental assessments, including project EAs, SEAs, and regional environmental assessments.
Thank you very much.