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 In fairness, I think CEAA is quaint, arcane, unwieldy--to use one of his words--and a little out of date.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?