Environment Committee on Oct. 25th, 2011

[The Chair, Conservative, Mark Warawa]

We have quorum, so we'll call this meeting to order, colleagues.

Toward the end of our last meeting, on Thursday of last week, Ms. Leslie—we regret to hear she is not feeling well and we send her our best wishes—asked a question of the agency. She said, “I was wondering if we could ask the clerk to ask the agency if they're able to answer questions about other jurisdictions”. The response was that the agency would answer all questions to the best of their ability and knowledge, but they could not provide expert testimony on issues beyond their mandate and authority. So that deals with that.

We have with us two well-respected lawyers and experts in their field. We thank Mr. Stephen Hazell and Mr. Paul Cassidy for being with us today. We will begin with Mr. Hazell.

You have up to 10 minutes for your testimony.

[Stephen Hazell, As an Individual]

Thank you, Mr. Chair.

Good morning, members. My name is Stephen Hazell. By way of introducing myself, I should say that I'm a lawyer in private practice but I wear a number of hats, one of which is that I act as counsel with Ecojustice, a not-for-profit law firm. Today I'm speaking as an individual.

I thought I would provide what I call a number of new directions for the committee to consider as it figures out how it wants to proceed with the seven-year review. I'm of the view that the Canadian Environmental Assessment Act has done a pretty good job over the years, but it has many flaws.

It has become complicated and unwieldy, and it's not addressing Canada's most pressing ecological issues or the needs of governments, proponents, and the public in the environmental assessment process. CEAA is often failing to properly assess projects with critically important environmental effects, such as greenhouse gas emissions from oil sands projects, but it also legally requires assessments of hundreds of small projects--such as scientific permits to study birds--whose well-understood effects either are minimal or can be mitigated.

This committee has a tremendous opportunity to step back and take a look at some other ways of proceeding with environmental assessment and to make the system better, from a number of perspectives.

Copies of my brief have not been distributed because unfortunately I was away on holidays last week and didn't really get down to serious writing until the weekend. The clerk assures me that it will be provided once it's translated.

I firmly believe that any environmental assessment process has a number of key elements, and I won't review those. But it must be legislated, it must engage the public effectively, it must be accountable,and it must avoid duplication of other environmental assessment processes.

I want to focus the bulk of my time on discussing some of these ideas. Probably none of them are my ideas, really. It's just that I'm here compiling and presenting to the committee some different ways in which we could proceed with environmental assessment that I think would improve the process.

They're not necessarily mutually consistent either, so one idea doesn't necessarily mesh well with the others. Partly that's your job, as I see it, to figure out what the best structure should be as we go forward.

There are five basic ideas.

One, shouldn't we focus on sustainability as opposed to assessing environmental effects?

Secondly, shouldn't we try to make sure that we're addressing federal environmental commitments in our federal environmental assessment system process?

Thirdly, there's this thought that maybe if we had permitting for environmental assessments, once completed that would be helpful in terms of their implementation.

For the fourth idea, which was raised a little bit by President Elaine Feldman of CEAA the other day, how about a single agency approach rather than the self-assessment approach by multiple departments and agencies?

Finally, this one is a bit more dramatic, perhaps, but I think it has some appeal. It's the idea of integrating the environmental assessment process with the regulatory approval process for projects, so that it would be one-stop shopping federally for assessments as well as for approvals.

Sustainability assessment asks these questions. Does a project or policy provide net benefits for the community, province, and nation? Does it advance our economy and society towards a sustainable future? It's a much narrower framework, and it differs from environmental assessment under CEAA, which asks, “What are the adverse environmental effects of a project, are they significant, and how can they be mitigated?”

As well, sustainability assessment asks questions about how to improve the positive aspects of a project instead of just focusing always on the negative stuff. Sustainability assessment also looks at fairness issues--intergenerational as well as intra-generational.

Sustainability assessment has been gaining ground in a number of environmental assessment processes around the country. Some federal panel reviews have used the sustainability assessment approach, partly because it deals better with issues such as greenhouse gas emissions, which, frankly, have been very poorly dealt with by most panel reviews recently. There are a few exceptions to that, but given my limited time I won't get into them.

Think about whether we should be assessing the sustainability of projects. And by sustainability, I'm talking about environmental, social, economic sustainability, and not just focusing on adverse environmental effects, as is currently the case. So this is asking the committee to think about that.

Secondly, on achieving federal environmental commitments, the federal government has a number of environmental commitments. Some of them are stated in, say, the federal sustainable development strategy. Some of them are stated pursuant to international agreements that we have, say, the Copenhagen Accord or the biodiversity convention. Shouldn't we be using the environmental assessment process to support the achievement of those existing federal commitments?

We can do that in a number of ways. Australia has done it one way. They identify projects that are of national significance and that may not have a specific federal trigger, so those projects are assessed. There's a determination that it is a project of national significance and they're going to do a federal environmental assessment because it's important for the country to do that.

There's another way of looking at this. In the recent couple of years, we've had a number of terrible disasters, the Fukushima disaster this year, the Deepwater Horizon disaster last year, and to make sure that we don't omit some Canadian disasters, the 1984 Ocean Ranger disaster, which killed close to 100 people. The environmental effects we don't know about; they weren't really measured. Maybe they weren't that great. Nonetheless, it was a terrible disaster. How can we use an assessment process to ensure that Canada doesn't have those types of disasters anymore?

The current legislation doesn't require assessment of worst-case scenarios. It does require assessment of accidents and malfunctions, but generally speaking, there has been a minimal attempt to try to figure out what would be the worst thing that can happen. What would we do about it? What would be the effects if the worst case happened?

One that's been on my mind a lot recently, because I've been involved in some of the panel reviews in northern Alberta, relates to tailings dams for oil sands projects. What if there were a tailings dam failure along the Athabasca River?

If you've ever seen photos of the Suncor tailings dam adjacent to the Athabasca River...it's pretty startling. You have a gigantic tailings reservoir cheek by jowl with the Athabasca River and dozens of metres above the level of the Athabasca River. This is just a pile of dirt, basically.

There are engineered standards. There are the Canadian Standards Association standards that are applicable to these tailings dams; nonetheless, what would a worst-case scenario mean if something were to happen to that dam? Basically, you would probably wipe out most aquatic life in the Athabasca River for many kilometres downstream.

On a different thought, right now when an environmental assessment is done under CEAA, a determination is made as to the significance of the effects and suggested terms and conditions. Those are implemented by the responsible authority, and then there's supposed to be follow-up and monitoring, which, generally speaking, doesn't happen, or happens very infrequently.

One idea is to say okay, the agency is going to actually issue a permit following the completion of the environmental assessment. The permit will say what the terms and conditions related to that approval are, and it will cover off the full gamut of environmental issues dealt with by...whether it's a joint panel review or a comprehensive study. So that's another one.

There are two others, which I'll run through quickly. One is about establishing a single agency rather than the self-assessment approach. Elaine Feldman discussed that one a little the other day. I think this is a good idea. You would enable the agency to focus on bigger projects and perhaps have less focus on smaller projects.

One quick point that didn't come up the other day in the committee was that there are existing regimes federally that allow smaller projects to be assessed. You have the parliamentary commissioner in place now, who wasn't there 20 years ago when CEAA was enacted, and you also have the federal sustainable development strategy and the departmental sustainable development strategies to look after the smaller types of projects.

Finally, this is probably the boldest idea of all. It is the idea of having the agency, probably the Canadian Environmental Assessment Agency, do assessments of big projects like comprehensive study projects and the panel review types of projects, but also having it issue the approvals for those. It would be one-stop shopping.

If you're a proponent, a mining company, say, and you're looking for some federal decisions so you can get on with your project, there would be one agency you could go to and say, “Okay, let's do the environmental assessment”. At the end of that day, that same agency would issue the approvals, whether it's Fisheries Act stuff, CEPA, or species at risk, you name it.

The chairman is telling me I have to wind up, so I will stop there.

[The Chair, Conservative, Mark Warawa]

Thank you, Mr. Hazell. That was very interesting.

Mr. Cassidy, you have 10 minutes.

[Paul Cassidy, As an Individual]

All right. I'll do my best.

Thank you very much to the committee for the invitation to appear before you today. I hope my appearance will be of assistance to you in your study of this important piece of legislation.

By way of a brief introduction, I've been a lawyer for 27 years, the first three of those years in the Department of Justice, and the last 24 in private practice devoted exclusively to environmental law. I'm a member of the bar of both Ontario and British Columbia. As a Maritimer by birth and upbringing, I'm very proud to say that I've practised environmental law across this country, including north of 60.

I had my baptism by fire between 1988 and 1994, when my career intersected with Mr. Hyer, I'm delighted to say, when I was heavily engaged in the Ontario class environmental assessment for timber management, which I believe still holds the record for the most number of hearing days of any environmental assessment process in Canada, if not the world. I might also add that I'm also very proud to see my member from Qualicum Beach, Nanaimo, and Port Alberni here today--Mr. Lunney.

A major part of my practice is advising corporate proponents--large and small--on major projects in respect of the intricacies of environmental assessment law in Canada. That's where my abiding interest in this legislation comes from.

I'm most interested in engaging in the questions and answers with you, so my opening remarks will be brief to stay within the 10 minutes. They will relate primarily to improving the efficiency of the EA process. I want to make it very clear, however, that my remarks will be based solely on my personal experience. As such, they represent only my opinions and not necessarily those of my clients, my law firm, or any other individual or company.

I want to come back to focus on that word “efficiency”. Mr. Hazell used some interesting words, many of which I can agree with. In fairness, I think CEAA is quaint, arcane, unwieldy--to use one of his words--and a little out of date. I'm glad that this review is happening, because a lot has happened since it was first enacted. A lot has happened since its predecessor, the EARPGO, was in place, and I think it needs some serious reworking to improve its efficiency.

My remarks on efficiency are not designed to reduce the capability of parliamentarians, the agency, RAs, or anyone to provide for effective environmental assessment in this country, but they are designed to address what I think are some serious inefficiencies that have developed in the CEAA process. There are other ways to conduct environmental assessment in Canada effectively, and they're already being done, in my respectful submission, by some of the provinces.

Some of those efficiency issues relate to topics that I'm sure you're well familiar with and have heard discussed. Mr. Hazell used the word “duplication”. I concur with his views on that. There is hopeless duplication involving the provincial and federal environmental assessment processes, and in many regards, and that could be avoided by adjustments to the federal environmental assessment process.

There can be improvements in another area you're very familiar with, and that is the concept of harmonization between the federal and provincial processes. Better efforts can be made to harmonize the various regimes that exist across Canada in environmental assessment.

That may involve things such as the concept of one project, one assessment. That may involve things such as process substitution, where the minister can decide that the provincial process can substitute for the federal environmental assessment process in particular defined circumstances. That may involve--and Mr. Hazell has touched on some of this--the concept of permitting and marrying the environmental assessment process with the permitting process that occurs. I'll discuss that in a few minutes.

Again, this all goes back to the efficiency concept. I think we can do a lot of work on improving the timeline for these processes. It is unacceptable for an environmental assessment of whatever size of project to take four years, and that's not uncommon in the federal environmental assessment process. I think you can improve the federal timeline requirements.

That was started this summer, in June, with the enactment of the timeline requirements, but it is still very lacking.... For example, it doesn't have any requirements on the time limits for the reviews. It doesn't have any time limits on the decision to be made by the minister, which stands in contrast to British Columbia, where I practise and happen to live. It has very clear timelines for those things to occur.

So it's a good start, but more work needs to be done, I believe, by that process to improve efficiency.

I agree with Mr. Hazell that we can do more to avoid potential multiple processes. Indeed, you even have the scenario now...because somebody amended section 21.1 of CEAA last year to take out a provision that could prevent a comprehensive study process from being completed and then having a review hearing. That section was amended, and now we have that prospect again. You might end up with a comprehensive study process followed by a review process, which I think makes no sense.

So those are the themes I want to touch on today and those are the themes I intend to discuss--along with any questions you might have in that regard.

I would close by saying, and I'm sure the agency is going to be delighted to hear this, that I think there needs to be more improved resources for that agency. Time and time again, whenever I get involved in a federal environmental assessment process, it's like a revolving door with personnel changes and people having to be re-educated. I don't believe there are enough resources dedicated to that.

I like Mr. Hazell's idea about perhaps having this agency beefed up to a circumstance where you have a lot more role for the agency as opposed to these responsible authorities. I mean no disrespect to anybody in the room who is from a responsible authority, but I find that to be actually an out-of-date concept.

In that regard, I'm going to close off with a rather radical suggestion that you might even rethink this whole concept about triggers in CEAA--that is, the law list trigger--as the basis for deciding that a federal environmental assessment should occur. I think that's out of date. I don't see any reason, and I'd be happy to debate it with you, why you wouldn't consider avoiding all of that and instead just set out a prescribed projects regulation. In other words, everything that's on a regulation that you want assessed federally, you list. If it meets that criteria, there's going to be an environmental assessment.

You can have safety valves. You can have the minister, where it's not on that list, nevertheless decide there has to be one. Or, where a proponent may not be on that list--in other words, its project does not meet the criteria for an environmental assessment--you can nevertheless have some valid reasons why a proponent wants to go through one.

Why don't we do that? In other words, we now have this very complicated piece of legislation--i.e., we don't know if it's a project that's reviewable or if it's on the exclusion list or the inclusion list--and we get all bound up in that. I can tell you that when I do a memo as to whether or not the provincial environmental assessment applies in a particular province, that takes up usually a paragraph. But when I turn my mind to whether or not the federal environmental assessment applies, it's like three paragraphs.

I just use that as an order of magnitude. It's a much more complicated piece of legislation, in my respectful submission, than it needs to be in 2011.

CEAA was enacted at a time when there were debates about the jurisdiction of the federal level of government over the environment. I think those have by and large been answered. Anybody who takes issue with the federal jurisdiction of the environment in 2011 is probably going to lose, the way the court rulings have come.

So there's actually, in my view, clear law that the federal government has the ability to have federal environmental assessments. Why don't you just list what it is you want to have an environmental assessment of? If Mr. Hazell wants these big projects listed, fine...if that's up to Parliament to decide, or whoever. But if you don't, we can have that debate and then avoid a lot of back and forth on whether or not a trigger is applied, etc.

Those are my submissions. I hope I have been helpful. They're very general, but I'll be happy to answer questions.

Did I meet the 10 minutes?

[The Chair, Conservative, Mark Warawa]

You actually have a little over a minute left.

[Paul Cassidy]

Well, since I've been espousing efficiency, I'll leave it at that.

[Voices]

Oh, oh!

[The Chair, Conservative, Mark Warawa]

Thank you, Mr. Cassidy.

Thank you to both witnesses. That was a very thought-provoking presentation.

The first round begins with Ms. Rempel, for seven minutes.

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

To both witnesses, thank you for coming today and for your comprehensive presentations. Your time here is most appreciated. We certainly think this is a very important issue for us to review.

My questions today are for Mr. Cassidy.

In the context of your concept about efficiencies and the impact this could have on end users, perhaps you could briefly tell us how long you've been serving clients in this area with regard to providing assistance in environmental assessments.

[Paul Cassidy]

Well, I'll stand to be corrected on when CEAA was enacted, but I believe it was 1993. I've been involved in the development of projects involving federal environmental assessments since the get-go. Indeed, I was involved in the EARPGO process before then, so that dates me to about 20 years.

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

Roughly how many clients have you served in that period of time?

[Paul Cassidy]

Hundreds.

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

What types of projects have your clients been engaged in such that an environmental assessment was required?

[Paul Cassidy]

Well, as I indicated, I tend to get involved in the larger projects, but sometimes the proponents can actually be small. You could have a small mining company, for example, that's been trying to develop a project for several years, all the way up to a large mining company that has a smaller project but is nevertheless caught—as Mr. Hazell indicated, sometimes these projects get caught for no apparent reason—under a law list trigger.

The projects are typically resource extraction projects and energy-related projects. These are all aspects of resource extraction, including clean energy.

The concept Mr. Hazell talked about, which is that we should have some recognition in the environmental assessment process of the positive benefits of things like clean energy, for example, I think is a very important statement to make. I don't see that necessarily in CEAA right now.

In fact, one could make an argument...and I think Professor Weaver at the University of Victoria, who is on the Intergovernmental Panel on Climate Change, is strongly of the view that we're going to have to make some pretty dramatic decisions here. Sometimes these clean energy projects have to go through a process that is expedited, to get them through and get them to deal with the important issues Mr. Hazell has raised. By that, I mean clean energy in all forms: run-of-river power, hydroelectric power, and wind farms.

I can suggest names of witnesses who would be delighted to come forward from those various industries to give you an idea of how important that is.

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

Thank you.

You spoke of the need for process efficiencies. Perhaps in that context, could you speak to some of the major challenges your clients have faced, including stranded capital, window-to-markets issues, etc.?

[Paul Cassidy]

That's a big issue with regard to some resource extraction industries, but for other industries perhaps not as much. Market timing is a key issue.

You always run up against this with regard to investments in those industries. People say they have a window where the market is at this point, and this mine or this project becomes uneconomic if they can't get an EA approved within 18 to 24 months, so if you're telling them it's four years, they say, “Forget it”.

I've actually been involved in those situations a lot. I say to clients that I can't give them a guarantee, that I can't even give them a reasonable likelihood that it's going to be mapped within what I consider to be a reasonable timeframe. Quite frankly, most often the culprit is CEAA. It's not the provincial regimes across the country.

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

How often do you find that this is an issue in dealing with your clients?

[Paul Cassidy]

Very frequently.

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

Most of the time? The majority of the time?

[Paul Cassidy]

I would refer to the word “frequently”.

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

We're talking about your clients and the challenges they face. In your experience, what are some of the burdensome aspects you might face in your practice with regard to the legislation?

[Paul Cassidy]

Well, lawyers always like certainty, because clients like certainty.

[Voices]

Oh, oh!

[Paul Cassidy]

It's a very uncertain process in CEAA. For example, Mr. Hazell referred to this RA concept. I know the major projects management office is doing the best they can on this, but for a long time you'd have RAs fighting over which one was going to take the lead. You'd start to guess. I hate guessing.

Mr. Hazell and I are not paid to guess, are we?

[Stephen Hazell]

No.