Environment Committee on Nov. 19th, 2012

[Craig Scott, NDP, Toronto—Danforth, ON]

Thank you.

With respect to section 128, which was quite well explained by the other witness, in terms of creating a little more breadth in the coverage of the act, there's an expiry date on that of January 2014 with respect to the exemptions that have been written back into the act by this bill.

Do you have a view on whether putting an expiry date of January 2014 makes sense? Would you agree with West Coast Environmental Law, which wrote us a letter suggesting that's a rather arbitrary thing to do and that no expiry date should be needed?

[Dr. Meinhard Doelle]

I can't really give you a firm answer on that. It's not so much a legal question as it is a practical question. Do I see harm in taking it out? No, but whether this date actually creates a practical problem is a question I can't answer.

[Craig Scott, NDP, Toronto—Danforth, ON]

Great. Thank you.

With the remaining minute I have, I'd like to give it to you. Is there anything that was said by your colleagues across the country that you'd like to comment on or respond to?

[Dr. Meinhard Doelle]

I would like to make a quick comment on the regulatory process versus planning process.

I accept that the joint review panel still has every opportunity to be a planning process. I guess my comment on it would be on the rest of the environmental assessment process being a more regulatory process. It's simply a combination of pushing the proponent to have the detailed design ready at the start to try to encourage a discretionary decision not to apply the act in the first place. That encourages a lot of detail to be completed before the process starts.

The second piece to this is that when you restrict the factors to be looked at to fisheries, migratory birds, and impacts on aboriginal peoples, with a few other minor issues thrown in once in a while, that no longer provides the opportunity for a broad environmental assessment. That is essentially duplicating the issues for which there are already regulatory processes in place.

[The Chair, Conservative, Mark Warawa]

The time has expired. Thank you.

Ms. Rempel, you have seven minutes.

[Michelle Rempel, Conservative, Calgary Centre-North, AB]

Thank you, Mr. Chair.

Thank you to all the witnesses for being here on relatively short notice. Your testimony is appreciated.

I'll begin my questions with Ms. Swanson.

I'd like to look at a few of the specific amendments in Bill C-45. I'll be referring to them by the clause number in Bill C-45 for ease of review, that have been brought up already today.

I'd like to start with clause 427. We've heard so far, Ms. Swanson, that there's a view this would broaden the exception, that this would somehow have adverse impacts. There are some assumptions made around the efficacy of the project list as well, that I believe were the basis of some of those comments.

I'd like to give you some time to comment on those comments and articulate your view on the efficacy of this change in clause 427.

[Elizabeth Swanson]

Thank you.

To begin with, I would say that I tend to agree with the testimony of Helen Cutts, when she said that these changes were by and large intended to bring parity to the English and the French versions.

When I look at it, certainly, the difference between “would” and “could” has an effect opposite to what Professor Doelle said. “Would” is more certain and directive, if you compare it with “could”; I think it enables action and the exercise of discretion, whereas there is less certainty that something is going to happen. When I look at a change from “would” to “could”, I see it as having the effect, if there is any effect at all other than bringing parity to the English and French versions, of in fact making the act broader.

With respect to a project list approach, if I put the development of environmental assessment into a context, asking where we have been, what we have done, and where we are now in terms of a deliverer and a decision-maker, having regard to environmental effects, the project list makes a lot of sense to me. It introduces a whole lot of certainty. Rather than having us look at what is an “activity” or a “physical work” and whether it is on the inclusion list or on the exclusion list, this approach is much more efficient, direct, and certain. To that extent, I'm a proponent of the project list.

I also note that the list can be expanded, can be amended, and can be added to, I'm sure, if circumstances arise that make it apparent that it should be.

[Michelle Rempel, Conservative, Calgary Centre-North, AB]

That's great.

Clause 429, I believe it was, was also referred to in previous testimony with regard to the termination of an environmental assessment project, there was some testimony given today concerning the value of concluding that it could lead to premature termination.

Could you use your expertise to comment on some of that testimony as well?

[Elizabeth Swanson]

In all fairness to Professor Doelle, and with all respect, I wasn't able to follow his argument. I was listening hard and trying to do so.

To me, when I look at it and put it into context to ask what the change is here, it is not a material change. The sense that it could force a proponent to do more detailed design at a time when doing detailed design would deprive us of the full benefit of doing an environmental assessment, I'm sorry, but I just could not make head nor tail of that argument.

I can only speak from a pipeline project perspective—I can't speak to other types of projects—but that certainly is not the case.

[Michelle Rempel, Conservative, Calgary Centre-North, AB]

As well, with regard to the testimony concerning the date that is included in clause 432, do you want to provide any comment on the clause as a whole or on the application of the date mentioned therein?

[Elizabeth Swanson]

No. I would agree with Professor Doelle that if there is a practical effect, I'm not the person to comment on it. I assume there is a reason for a date, but I don't know what it is.

[Michelle Rempel, Conservative, Calgary Centre-North, AB]

There are a couple of questions that came up in earlier testimony. I'd like to give you the remainder of my time to expand upon your thoughts in the comments you made about this becoming a regulatory process, but perhaps also with regard to some of the statements that have been made about cumulative impact analysis.

My understanding, through previous testimony in review of CEAA was that I understood it to be simple. Cumulative assessment often happens more effectively in a land use planning process within a provincial jurisdiction, and I realize this is an over-simplification, but inserting it into an environmental assessment process has the effect of complicating the purpose of an EA as well as expanding it more into the realm of industrial development policy.

I'll leave you with those two points to comment on, given your experience. I'll use the remainder of my time for that.

[The Chair, Conservative, Mark Warawa]

You have 30 seconds.

[Elizabeth Swanson]

Cumulative effects are absolutely an important part of doing good project assessment. Could it be most effectively done in a broader land use planning? I think the answer is yes. Do I think that regional and strategic planning are good ideas? Absolutely.

In a project-specific context, the difficulty is knowing information. If you broaden things out to what might be possible or even conceivable, how is a project proponent able to come forward with credible information about speculative things? There is a practical problem with it. Conceptually, it's a good idea.

[The Chair, Conservative, Mark Warawa]

The time has expired. Thank you.

Ms. Duncan, you have the last seven minutes.

[Kirsty Duncan, Liberal, Etobicoke North, ON]

Thank you, Mr. Chair.

Thank you to the witnesses for coming.

I am struggling. We are hearing two very polarized views, in some ways, of CEAA, 2012. For example, from one group, it's strengthened and focused, and it strikes the right balance. From the other side, it's not a solid foundation for good decision-making; it's regulatory rather than planning; it's narrow, and focuses on large projects, and there is a risk of missing cumulative effects.

I'd like to give both groups an opportunity to respond to that.

Professor Doelle.

[Dr. Meinhard Doelle]

In part, I think you see the different perspectives that are broad and from different interests. I have worked for proponents in the past, and I am not surprised that a proponent would focus on efficiency, timelines, and reducing the cost of doing an environmental assessment. That's not a big surprise to me. The fact that we have different views about what a good environmental assessment process would look like doesn't surprise me either.

[Kirsty Duncan, Liberal, Etobicoke North, ON]

Thank you.

Now the other group.

[Dr. Brenda Kenny]

Let me lead off on that. My own view is that when we back up and look at the regulatory reform objectives here, I think that at the core level it is not correct to paint our objectives as polarized. Everybody wants to see effective environmental protection for Canadians, appropriate, responsible development where it's appropriate and responsible, and a clear outcome-oriented focus on conditions should a project be chosen to proceed, through both good EA planning input as well as appropriate regulation.

Our views on these particular amendments that are the subject of today's session are that they are largely very minor inconsequential cleanup amendments. The overall regulatory framework will do an excellent job for Canada to ensure good environmental decision-making, particularly, in our view, on the pipeline pieces, which are well handled at both the federal and provincial levels, from EA right through to the end of use of those facilities.

Elizabeth, do you have anything to add from a legal perspective?

[Elizabeth Swanson]

I'll focus on whether CEAA, 2012 delivers robust environmental assessment, or whether it is so focused that in essence it becomes shallow.

When I look at the kind of information that will be required to complete an environmental assessment for the agency, for example, because they have come out with suggested content guidelines, it is absolutely a good, deep, comprehensive, and broad environmental assessment. Whereas decision-making might be focused, I think we're going to get the same kind of broad and deep environmental assessment that we have seen under the other two acts.

[Kirsty Duncan, Liberal, Etobicoke North, ON]

Thank you.

Professor Doelle, do you believe it delivers robust environmental assessment?

[Dr. Meinhard Doelle]

No, it doesn't. Let me give you one example. If you do even a federal-only review panel, you will not know, as a basis for making project decisions, what the impact of that project will be on endangered species on land. How can you say you have a solid basis for federal decision-making when you don't even know that?

[Kirsty Duncan, Liberal, Etobicoke North, ON]

Professor Doelle, can you give us other examples, please?

[Dr. Meinhard Doelle]

If you do a joint assessment, there is every opportunity for a comprehensive assessment, and essentially the assessment process will carry on as it has. But when you're looking at a federal-only panel or a federal-only standard environmental assessment, you are looking essentially at the impact on fish, the impact on migratory birds, and the impact on aboriginal communities. By the way, no one has been able to figure out quite yet how you do that last part. It will be very interesting to see how that is done in isolation or without doing a comprehensive assessment.

Those are the things you look at, and everything else is left to the provinces in the expectation that the provinces will do it. I can tell you that in Nova Scotia, the ratio of federal to provincial assessments, historically, has been about 10:1. The federal government does about 10 times as may assessments as the province does. The hope that for every assessment the federal government doesn't do any more, or does by focusing only on those three areas is a false hope.

No, for anything other than a joint review panel, I don't think there will be a basis for sound decision-making, because if you want to make good decisions about projects, you need to know more than whether there are significant impacts on fish, on migratory birds, and on aboriginal communities. You want to know what the overall impacts are. You also want to know what the benefits are and what the uncertainties are so you can make a decision, at the end of the day, about whether this is a good project, and as a result of that, about whether the environmental impacts are warranted.

We know that projects can't go ahead without having an environmental impact. What we want to know, as a result of the environmental assessment process, is whether, overall, this is a good project and whether the environmental impacts are warranted in light of all the effects and all the benefits and all the uncertainties.

[Kirsty Duncan, Liberal, Etobicoke North, ON]

Thank you, Professor Doelle.

I have one last question. I think you both agree that clause 432 closes a loophole. If that's the case, and it closes a loophole, I'd like to ask both groups why it's only until 2014.