Evidence of meeting #53 for Environment and Sustainable Development in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was regulatory.
A recording is available from Parliament.
NDP
François Choquette NDP Drummond, QC
Mr. Chair, I know that you are very attentive to members' questions and that you do not hesitate to speak up when they are not in line with our study.
Mr. Woodworth is an excellent colleague and I appreciate him very much, but since we have very little time for the study on amendments to Bill C-45, I think we should get to the heart of the matter right away.
Thank you very much, Mr. Chair.
Conservative
The Chair Conservative Mark Warawa
That's not a point of order; that's for debate.
Carry on, Mr. Woodworth.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Thank you very much.
Just to make it very clear for my colleague and other members and people who may be watching or listening, my view is that the advice we get from witnesses does, in some respects, depend upon their credentials and the trust we place in them. It depends on their experience and expertise, and it's toward those I am directing my questions at the moment.
Dr. Kenney, I understand that you are also a Canadian Academy of Engineering fellow. Is that correct?
President and Chief Executive Officer, Canadian Energy Pipeline Association
Yes, that is correct.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
You are active in a variety of community groups, including Sustainable Calgary. Is that correct?
President and Chief Executive Officer, Canadian Energy Pipeline Association
I served on their board for several years. That's correct.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Our committee, as I'm sure my colleague, Mr. Choquette, would want me to point out, is only tasked today with examining the amendments contained in Bill C-45. May I ask you, Dr. Kenney, if you've had those amendments provided to you?
President and Chief Executive Officer, Canadian Energy Pipeline Association
Yes, I have.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Ms. Swanson, have you also had those amendments provided to you?
Chair, Regulatory Policy Work Group, Associate General Counsel, TransCanada PipeLines, Canadian Energy Pipeline Association
Yes.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
My understanding of these amendments is that they are, in fact, completely housekeeping or clarifying amendments. They do not have any significant substantive effect on the provisions being amended. Some of them, in fact, as I understand it, are to bring the English version into concordance with the French version.
Could each of you provide me with your comments as to whether I am correct in assessing these amendments as being largely clarifying and housekeeping amendments?
Chair, Regulatory Policy Work Group, Associate General Counsel, TransCanada PipeLines, Canadian Energy Pipeline Association
I agree they are housekeeping and technical for the most part.
I would point to the exception being clause 432, which brings an amendment to the transition provisions. The net effect of that is to close a loophole that might have existed. It's very complicated. If I try to explain it, it's going to take a few moments. The way I understand it is the original drafting under CEAA, 2012, as I looked at it, would have enabled certain projects for which an assessment was deemed not necessary under CEAA, 2009 to not require an assessment under CEAA, 2012 for the very reason there was a statement that an assessment wasn't required.
The proposed amendment closes that loophole. For example, if a trigger under CEAA 2009 came up subsequent to a decision being made, and if they would otherwise be assessed under CEAA, 2012, that loophole's closed now.
Chair, Regulatory Policy Work Group, Associate General Counsel, TransCanada PipeLines, Canadian Energy Pipeline Association
Yes.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
As a lawyer who has become a politician, perhaps I could be permitted to paraphrase what you're saying. This amendment would permit assessments on projects that probably would escape assessment without that amendment. Is that correct?
Chair, Regulatory Policy Work Group, Associate General Counsel, TransCanada PipeLines, Canadian Energy Pipeline Association
Exactly.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Thank you. She got her answer in, Mr. Chair. I hope it's on the record.
Conservative
NDP
Craig Scott NDP Toronto—Danforth, ON
Thank you, Mr. Chair.
I'll be directing my questions to Professor Doelle.
I would preface them by saying that apart from the provision just drawn to our attention closing the loophole in section 128, subsection 53(4), making sure that a broader range of conditions can be attached, is by no means a housekeeping amendment and will certainly add to the force of the Canadian Environmental Assessment Act. I think it's probably very welcome.
Professor Doelle, there is some sense in which a series of these amendments changing the word “would” to “could” can be presented as mere housekeeping or technical, but if I understand you correctly, these can have quite dramatic consequences. I heard you say that in two instances this is either neutral or pro-environment to move from the word “would” to “could”, but in at least three instances it's regressive.
I'm wondering if you could elaborate on sections 14, 63, and 64 where you've indicated in your comments that you think there should not be an amendment to change the word “would” to “could”. Subsection 14(2) of the act gives the minister power to designate as requiring an environmental assessment an activity that does not fall within the regulations' list of designated projects. Proposed paragraph 14(5)(b) affects some changes in that. Sections 63 and 64 deal with termination of environmental assessments.
Could I ask you to explain why you would not want us to change the word “would” to “could”?
Professor, Dalhousie University, As an Individual
Sure. Let's start with proposed paragraph 14(5)(b). As you point out, the context of this is it provides an exception to the discretion the minister has to refer to an EA a project that is not on the designated project list. The change from “would” to “could” has the effect of broadening the exception.
My approach to the section is, given how short the list of designated projects is and given that these are early days of applying the new act, I would like the minister to have fairly broad discretion to add projects that really should be assessed that were not on the designated project list.
When I see a change to proposed paragraph 14(5)(b) that would appear to limit that discretion, I don't view it favourably. I think changing the word “would” to “could” limits the discretion of the minister to require an assessment of a project that is not on the designated project list.
November 19th, 2012 / 3:55 p.m.
Professor, Dalhousie University, As an Individual
With respect to sections 63 and 64, the context is about the termination of an environmental assessment. The question is, under what circumstances is the termination of an environmental assessment appropriate? To say that it should be terminated when the responsible authority in section 63, and the minister in section 64 decides not to exercise the power, duty, or function that could permit the designated project to proceed, in my interpretation leads to a situation where an EA could be terminated even though there's still value in doing an environmental assessment.
If it is clear that the refusal to exercise the duty, power, or function would not permit the project to proceed; in other words, if the regulatory decision blocks the project, of course there's no point in doing the environmental assessment. By changing the wording from “would” to “could”, suggests it is uncertain whether or not the regulatory duty, power, or function would prevent the project from proceeding, yet we are still terminating the environmental assessment.
NDP
Craig Scott NDP Toronto—Danforth, ON
Thank you.
On the last point, it could result in a premature termination of an environmental assessment. Is that a correct summary?
Professor, Dalhousie University, As an Individual
That's my interpretation, yes.