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.
3:30 p.m.
Conservative
The Chair Conservative Mark Warawa
We'll call the meeting to order. This is the 53rd meeting of the Standing Committee on Environment and Sustainable Development.
As we study Bill C-45, we will welcome as witnesses, Ms. Swanson, Ms. Kenny, and Dr. Doelle. We will be ending this portion in 45 minutes, at 4:15.
Each of the witness groups has 10 minutes, so Ms. Swanson and Ms. Kenny, you will be sharing 10 minutes.
We will begin with Professor Doelle from Dalhousie University. You have 10 minutes.
3:30 p.m.
Dr. Meinhard Doelle Professor, Dalhousie University, As an Individual
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.
3:35 p.m.
Conservative
The Chair Conservative Mark Warawa
Thank you very much.
Next we'll hear from Ms. Swanson and Ms. Kenny. You have 10 minutes.
3:35 p.m.
Dr. Brenda Kenny President and Chief Executive Officer, Canadian Energy Pipeline Association
Thank you, Mr. Chair.
Good afternoon. My name is Brenda Kenny, and it's a pleasure to appear before you to share some of the views of the Canadian Energy Pipeline Association.
Joining me is my colleague Elizabeth Swanson, who is chair of CEPA's work group on regulatory affairs. Importantly, she brings her perspective as a lawyer who has worked in the practice of environmental assessment for many years.
Before she provides her legal perspectives, I'd like to share a few general comments from CEPA's point of view with respect to Bill C-45 and the clauses being reviewed.
In delivering budget 2012 Minister Flaherty acknowledged that the natural resource and energy sector is “driving economic growth across the country. They are creating good jobs, not only directly but also indirectly, in manufacturing, clerical work, skilled trades, and financial services.” Minister Flaherty said, “Canada’s resource industries offer huge potential to create even more jobs and growth, now and over the next generation.”
Accordingly, the responsible resource development provisions of Bill C-38 put in place the enabling conditions to realize these opportunities, and we believe Bill C-45 is a further positive step in this direction.
CEPA is a very strong supporter of the objectives behind regulatory reform, namely improving the efficiency of, and most importantly, the environmental outcomes, from environmental assessment and regulatory review of major infrastructure projects.
We do not believe that environmental protection has been watered down or impaired in any way by these changes. Rather, for the pipeline industry, the processes enabled through CEAA, 2012 and amendments to the NEB Act allow government and stakeholders to improve outcomes by focusing assessments on key environmental concerns, using best practices and avoiding significant adverse environmental effects by being able to allocate resources more efficiently and effectively. Together these changes have strengthened, focused, and clarified the purposes of Canada's environmental legislation and set the scene for enhanced environmental outcomes going forward.
Bill C-45 makes a number of important contributions toward these objectives and clarifies the interpretation of the new provisions and the transition arrangements to the current regulatory system, all of which will provide greater certainty.
I'd like to invite my colleague Elizabeth Swanson to provide her perspectives.
November 19th, 2012 / 3:40 p.m.
Elizabeth Swanson Chair, Regulatory Policy Work Group, Associate General Counsel, TransCanada PipeLines, Canadian Energy Pipeline Association
Thank you.
I've had the opportunity through my 26 years of practising law to participate in both the emergence of modern project environmental assessment right back to the EARP guidelines order through the early days of the first CEAA, then through the development of regulations under that first CEAA, through the amendments in 2009 until now with CEAA, 2012.
I've sat on both sides of the table. I have looked at this from an academic point of view partly. I worked for the first 10 years of my career with the environmental community through the environmental assessment caucus understanding what their vision, their concern, and their approach to environmental assessment was. For the last 14 years I have advised and worked with pipeline companies. I'm in-house counsel for TransCanada PipeLines and I actually do environmental assessment in project contexts.
When I bring that full breadth of experience to the table, in my view CEAA, 2012 strikes the right balance now of where we are in terms of the generation and evolvement of environmental assessment. It is in my view again, the right approach to focus federal assessment where it ought to be. The federal government is not the only level of government doing environmental assessment of projects. In my view, CEAA, 2012 is a modern, focused, and credible piece of environmental legislation.
I want to quickly address something that Professor Doelle said. I'm not sure if I understood you correctly, but if you were saying that somehow CEAA, 2012 turns project environmental assessment into a regulatory process, I don't agree. I know what it feels like and how much work goes into doing project environmental assessment. I don't see it all of a sudden becoming regulatory in nature. Perhaps you and I are thinking different things, but I'll make that point.
With respect to unnecessary uncertainties, I don't agree. I think CEAA, 2012 is clearer. It's early days so perhaps there's time yet to be confused, but I think it is a much more direct and much more easily understood approach.
Those are my comments. I'll turn it back to Brenda.
3:40 p.m.
President and Chief Executive Officer, Canadian Energy Pipeline Association
Thank you, Elizabeth.
I'll close by saying we believe overall the process set in motion by the Government of Canada to reform the regulatory system is very important. We feel, particularly with respect to pipelines, which of course are governed nationally by the National Energy Board, in which the environmental assessment is fully incorporated within public interest determinations, that these are important avenues to clarify to enable everyone to focus on the issues at hand that matter most, and so that regulators have the necessary resources and tools to perform their roles. Overall these steps are supported and reinforced by our industry's commitment to safety, environmental protection, and performance in both project development and in ongoing operations throughout the decades.
For the pipeline sector the regulatory changes the Government of Canada has made express confidence in the ability of our industry and our regulators to manage the environmental issues that challenge us as we continue to build Canada's energy highways for the 21st century. Through these changes we will pursue opportunities to work with aboriginal groups and other stakeholders to create positive environmental outcomes that build from rather than end with regulatory compliance.
I thank you for this opportunity to speak with you today.
3:45 p.m.
Conservative
The Chair Conservative Mark Warawa
Thank you very much.
There will be just one round of questioning because of time restrictions. We'll begin with Mr. Woodworth, for seven minutes.
3:45 p.m.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Thank you very much, Mr. Chair, and welcome to all of the witnesses. I'll begin with Ms. Swanson.
I was grateful that you provided us with a bit of your background. I'd like to go back over that very quickly to be sure that your credentials are spelled out. I understand that you at one time had a position as staff counsel with the Environmental Law Centre in Edmonton, Alberta. Is that correct?
3:45 p.m.
Chair, Regulatory Policy Work Group, Associate General Counsel, TransCanada PipeLines, Canadian Energy Pipeline Association
That is correct.
3:45 p.m.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Very good. Thank you.
I understand that you then spent 10 years in your legal practice focused on developing Canadian environmental law and policy, with an emphasis on environmental assessment and regulatory negotiation at the federal level. Is that correct?
3:45 p.m.
Chair, Regulatory Policy Work Group, Associate General Counsel, TransCanada PipeLines, Canadian Energy Pipeline Association
That's correct. I did a variety of work with the Environmental Law Centre, but that was my primary focus.
3:45 p.m.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Very good. I understand that you, in fact, were on the board of directors of the Sierra Legal Defence Fund in Canada from its inception until 1998. Is that correct?
3:45 p.m.
Chair, Regulatory Policy Work Group, Associate General Counsel, TransCanada PipeLines, Canadian Energy Pipeline Association
That's correct.
3:45 p.m.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
You were involved in the litigation concerning the Rafferty-Alameda and Oldman dams, which led to judicial determinations regarding the EARP guidelines order. Is that correct?
3:45 p.m.
Chair, Regulatory Policy Work Group, Associate General Counsel, TransCanada PipeLines, Canadian Energy Pipeline Association
In a background sense, yes. I was counsel at the Environmental Law Centre at the time and did some background work.
3:45 p.m.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Very good. I understand also that you were appointed to the regulatory advisory committee, with others, to give regulatory advice to the federal minister in respect of the regulation and implementation of the Canadian Environmental Assessment Act. Is that correct?
3:45 p.m.
Chair, Regulatory Policy Work Group, Associate General Counsel, TransCanada PipeLines, Canadian Energy Pipeline Association
That's correct.
3:45 p.m.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Dr. Kenny, if I may, I would like to get your credentials on the record.
I'm told that you hold a doctorate in resources and the environment, a master's in mechanical engineering, and a bachelor's in applied science. Is that correct?
3:45 p.m.
President and Chief Executive Officer, Canadian Energy Pipeline Association
That is correct.
3:45 p.m.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
That alone would be impressive to me, but I understand also that you spent a number of years with the National Energy Board providing leadership in policy, regulatory review, and finance. Is that correct?
3:45 p.m.
President and Chief Executive Officer, Canadian Energy Pipeline Association
That is correct.
3:45 p.m.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
I also understand that you're an adjunct professor at the Haskayne School of Business at the University of Calgary, and you chair the environment, health, safety and sustainability subcommittee of the board of governors of the University of Calgary. Is that correct?
3:45 p.m.
President and Chief Executive Officer, Canadian Energy Pipeline Association
Yes, that is correct.
3:45 p.m.
Conservative