Evidence of meeting #6 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 federal.
A recording is available from Parliament.
As an Individual
No. We're paid to actually give our best opinion.
So you end up, for example, with an RA with a minor role in a project getting involved in debates as to whether they will have a more significant role.
Those are the types of process examples that I pull my hair out trying to deal with, and which are not in existence in other jurisdictions across Canada.
Conservative
Michelle Rempel Conservative Calgary Centre-North, AB
We've already started to hear some testimony with regard to experience around small projects. You've spoken to this briefly as well today.
In terms of the small projects you've dealt with, do you believe that environmental benefits attained by an assessment outweigh the effort by the project proponent and the government?
Conservative
Michelle Rempel Conservative Calgary Centre-North, AB
Sure. In your experience when you've been dealing with assessments pertaining to smaller projects, and with regard to some of the challenges your clients might have faced, which we talked about earlier, is there a sort of cost-benefit point you've experienced when they're entering this process?
As an Individual
Yes, there is. I think the initial screening process was designed to deal with that back when CEAA was originally developed. Of course, when you have a trigger under the environmental assessment.... For example, if a bridge, a minor stream crossing, necessitates a subsection 35(1) authorization of the Fisheries Act, that's a potential harmful alteration of fish habitat. That triggers CEAA. The federal jurisdiction, of course, goes far beyond the fisheries issues, and the federal Environment Assessment Act says you have to assess it all. You have this minor project for one stream crossing and, the next thing you know, you're into a full-fledged federal environmental assessment.
In circumstances that Mr. Hazell has aptly described, some of those circumstances are very well known and very well mitigated. This is why, for example, we have these operational statements that the Department of Fisheries and Oceans has in place. You follow those. Why do we need to have a separate federal environment assessment in that circumstance? I don't understand it.
Conservative
Michelle Rempel Conservative Calgary Centre-North, AB
Again, with regard to small projects, to carry on with some of your thoughts here, small projects are caught right now, as I'm sure you're aware, under the “all in unless excluded” approach. You're probably aware that many provinces do utilize a list approach. Perhaps you could speak to some of the benefits of using that approach with regard to small projects.
Conservative
As an Individual
I'll just repeat what I said earlier. I would be in favour of the somewhat radical idea of doing away with this whole law list trigger concept and going to defined, prescribed regulations that have thresholds on size and impact on the environment, but I realize that's probably out there.
Conservative
Bruce Hyer NDP Thunder Bay—Superior North, ON
Thank you very much.
Mr. Hazell, I have a quick question on this. I know it likely has a long answer, but I'd like the high points. How should projects be identified? If we're not doing a good job of it now, if we're missing the big ones and doing a lot of small ones, how would we improve on that?
As an Individual
That is really a central question. My concern with just regulating or establishing a set list of projects, as Mr. Cassidy is suggesting, is that it's problematic because new things come along. If you have a set list, you might not catch some important things. I think there certainly has to be some discretion.
I do share his view that the law list approach has not worked. The problem with the law list approach is that the regulatory statutes, such as the Fisheries Act, are antique, much more antique than the Canadian Environmental Assessment Act, and they don't mesh well with environmental assessments.
The Fisheries Act really is one of the key problems. Ten years ago, there was a major effort in the federal government to try to reform the Fisheries Act, to try to establish a permitting sort of approach as opposed to this crazy authorization approach. I think it was basically the federal-provincial issues that ultimately killed it, and that was too bad.
How do you identify projects? I'm not sure. I think there have to be a number of ways. Mainly you have to work with the project list, but certainly there has to be some ability for the federal government to identify projects that are of national significance, that do relate to the achievement of federal environmental objectives and give some authority to the federal government to launch a panel.
NDP
Bruce Hyer NDP Thunder Bay—Superior North, ON
Let me build on that, Mr. Hazell.
It sounds as though CEAA is very reactive in its present mode. It sits back and waits for triggers and that kind of thing, and it seems to focus on doing that for small projects and avoiding some of the big ones.
You, in your 2010 report, said that the environmental assessment process under CEAA has not been used effectively by the Government of Canada in addressing at least one of its own stated environmental priorities: climate change and greenhouse gas emissions.
Also, this committee, in section 3.6 of the 2003 report, said something similar: “...Canada's national and international environmental legal and policy commitments, objectives and standards” should be “incorporated into the environmental assessment process under CEAA”.
So should we somehow build strategic and policy objectives of the government--the stated ones that we supposedly stand for--into CEAA? If we were to do that, how would we do it?
As an Individual
There are two parts to the question. The first part relates to projects that are of federal interest that are not currently being assessed. Elaine Feldman gave an example last week. She talked about these in situ SAGD oil sands projects and how, if they are not having some effect on fish habitat, there will not be a federal assessment, whereas for oil sands, mines usually do destroy fish habitat, and hence there's a federal trigger. Why is that? In both cases, they're producing huge amounts of greenhouse gas emissions. That was the first point.
With respect to what we call strategic environmental assessment, how do you actually build sustainability into federal decision-making? I should say that there is actually a cabinet directive that applies right now and says that as cabinet memoranda are developed, there's supposed to be an analysis of the environmental effects. That's supposed to happen. It used to be the case that some public information emanated from that. Now it doesn't.
I think there's a case to be made for legislating a strategic environmental assessment process, so that as part of the normal course of events in developing decisions and policies for the federal government, the environmental effects would be considered as a matter of law. I wrote a paper on that 10 or 15 years ago. I prepared a draft bill, actually; it's part of the paper I wrote. I can provide that to this committee if it's of interest.
NDP
Bruce Hyer NDP Thunder Bay—Superior North, ON
Mr. Cassidy, would you like to build on those thoughts?
As an Individual
Well, for years I've heard the discussion about strategic environmental assessments. The Ontario class environmental assessment was, in many respects, almost a strategic environmental assessment. It dragged on for six years.
I'm very concerned about the use of the environmental assessment process to deal with what are basic public policy issues that I think involve a conversation with Canadians far beyond the individual participants in an EA process.
So I have concerns about that process. I think it can be hijacked, and in addition—
NDP
Bruce Hyer NDP Thunder Bay—Superior North, ON
But how do we deal with cumulative effects, Mr. Cassidy, where—
NDP
Bruce Hyer NDP Thunder Bay—Superior North, ON
—a whole lot of small and large projects contribute to environmental degradation in a huge way, most scientists would agree, and yet we don't deal with them collectively?
As an Individual
CEAA already deals with cumulative environmental impacts. So I think there is a mechanism for that to be dealt with in the federal process, and it's increasingly being adopted in provincial processes. You have to remember that the environmental assessment process in Canada, the first legislation for which was in Ontario in 1975, has always been proponent-driven, and I'm in favour of keeping it that way. In other words, the proponents....
You used the phrase “reactive”. I say it's proponent-driven, so I would prefer that it maintain that focus on proponents coming forward and, then, proper decisions being made. That's the point of the EA process: that you take into account all the appropriate factors that you should take into account. Whatever you want to include—cumulative environmental impacts, climate change, whatever Canadians want—should be in that process, but I come back to the concept of efficiency that is my major concern.
Conservative
The Chair Conservative Mark Warawa
Thank you. You ended 15 seconds early.
Our next seven minutes is for Mr. Woodworth.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Thank you very much, Mr. Chair.
Thank you to the witnesses who are here today.
Having practised law for almost 30 years, I was only waiting for somebody to say that when you said you were a lawyer, we wouldn't hold it against you, because--
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Yes, they always do. That's what I got for 30 years.
Thank you very much. You're both well versed in these issues.
I did want to direct some questions to Mr. Hazell, because you said at the outset that you are not here on behalf of any particular group today, but on your own behalf.