Environment Committee on Oct. 27th, 2011

[Brenda Kenny]

For the most part, if there are interests of federal jurisdiction, there is currently an overlap through permitting. But central to a national-interest perspective and modernization in Canada, we need good EA across the board and attention to best-placed regulator and equivalency, so that we have appropriate outcomes across the nation.

I point to a small anecdote. We now in the Major Projects Management Office have a queue of $120 billion worth of major resource projects. What I'm about to share with you is anecdotal, not a detailed survey, but I'm told by proponents that typically they'll spend anywhere from 3% to 5% of their capital on a project addressing EA. On $120 billion, that means we're about to spend $6 billion on process in Canada. When I ask friends of mine who are NGOs or bureaucrats or in companies how they would spend $6 billion if they were going to protect the environment, some of it has to be for good early planning processes and appropriate EA, but let's not think that this is actually going to deliver the best bang for the buck.

Specifically on the issue of how to address federal interests when there's a provincial project, I think we're much further ahead to advance best practices, use the best-placed regulator, and deploy good science and monitoring so that we know where we are with the environment and are on a continual improvement track transparently.

[James Lunney, Conservative, Nanaimo—Alberni, BC]

Thank you for that.

CEAA relies on enforcement powers in other acts, so this question is related to that. Legal constraints and problems of accountability and expertise mean that mitigation measures in areas of federal jurisdiction are not necessarily applied to a project. Should the enforcement gap be closed by adding enforcement provisions to CEAA?

[Brenda Kenny]

I think again that we have to be clear. Environmental assessment has as its primary purpose early planning. There has to be a focus on whether there is something to be worried about and, if so, how we are going to address it. To me, that's the fundamental premise and the most important thing in EA. I don't think that elaborate enforcement mechanisms are going to get us over the goal line, necessarily. We definitely need conditions that are important information as to how to design and advance the project and we need follow-up, to know how it turned out.

[James Lunney, Conservative, Nanaimo—Alberni, BC]

Okay. Here's a question then that relates back to one I didn't get to ask the last set of witnesses, and I'm curious about your take on this.

Many of the projects that are captured by CEAA are ones that have been done repeatedly in other parts of the country--highway construction, for example, or bridges over a waterway, pipelines across waterways--and they've been doing these things for a long time. We've had long experience with these things. Should it be possible just to deal with these things through regulation, so that there is some observation and enforcement to make sure that what everybody expects to be done is done?

[Brenda Kenny]

Yes.

[James Lunney, Conservative, Nanaimo—Alberni, BC]

Would it be helpful to come up with regulations on things like bridge crossings or other areas, instead of triggering CEAA every time we go to do a simple project?

[Brenda Kenny]

I think there's a lot of merit to consider that possibility, particularly where they are routine. If the purpose is early planning and you've essentially done the early planning by applying best practices, that's a good tool. We should be leveraging that much more directly.

We can't rely on process to protect the environment. We need to rely on good engineering and leading practices and continual improvement. If this is what you're getting at, should there be regulation, let's focus on how to get to the best outcome and follow through. It's not just about EA, and that's why we really lean to best-placed regulators. Again, the example we use on a large federal project is the National Energy Board; they've overseen tens of thousands of river crossings over the last 40 years. They know what works, what doesn't. We know what works, what doesn't. We apply best available technology, monitor and continually improve.

[The Chair, Conservative, Mark Warawa]

Thank you. Your time has expired.

And our last speaker in this round is Ms. Murray, seven minutes.

[Joyce Murray, Liberal, Vancouver Quadra, BC]

Thank you.

Most of my questions will be to Ms. Kenny.

You made an early comment that these processes need to be efficient and timely. I'm all in agreement with that. I know that most proponents would like a quick no rather than a long, dragged on process that might end up in a no. I know in the British Columbia EA process, one of the changes that was made in the previous decade was to put in an early off-ramp, because before if a proponent got in the process, they had to go through the whole process, even if it was clear early on. Is the off-ramp process adequate in CEAA'S structure, or is that a potential place to focus on getting an early no so that you're not tied up and the regulators aren't tied up unnecessarily?

[Brenda Kenny]

I think what's important is to get to early decisions about whether or not a particular project is in the public interest, and that means keeping a focus and a rigour and a discipline in that early planning stage on strategic issues that are of high importance. And if you get to a no, you get to a no. If you get to a yes, you proceed on the basis that this project is in the public interest and all matter of further detail is oriented toward getting the best possible outcome rather than prohibiting action.

[Joyce Murray, Liberal, Vancouver Quadra, BC]

Okay, so it would be helpful to have a clearer off-ramp, it sounds like.

[Brenda Kenny]

A strategic early review to get to an early public interest decision.

[Joyce Murray, Liberal, Vancouver Quadra, BC]

Now I have a question in regard to your comments about how comprehensive assessments have been consolidated under CEAA but you're proposing that they should be deconsolidated, I guess, and put into the hands of regulators that are entrusted in a specific industry, so that would mean we would have not consolidated. There would be potentially fisheries, mining, oil and gas, wind, hydro, thermal. So wouldn't that be the opposite of consolidation, to have environmental assessment be in the National Energy Board's hands for your pipeline industry?

[Brenda Kenny]

With respect, the CEAA legislation itself contemplated from its origins that there are reasonable alternatives. That's why they have a clause about substitution, which has been used very sparingly and came into force with the change to the National Energy Board Act enabling participant funding, which our sector completely supported. We believe public participation is an important element to that. So consolidation doesn't have to just be within CEAA. So no, we're not arguing for deconsolidation at all. Keep in mind as well just one important feature: for the self-assessment within the current legislation, about three-quarters of that is about federal government projects, not private industry projects. So there is a big difference in how you want to structure your approaches on those two things. And for private industry, where there is a major regulator they are the best-placed regulator, in our view.

[Joyce Murray, Liberal, Vancouver Quadra, BC]

I was quickly looking up....The term “best-placed” I find an interesting one when the idea of the regulator that describes itself on its website.... And you'll forgive me if I take a moment for this--

[Brenda Kenny]

That's fine, certainly.

[Joyce Murray, Liberal, Vancouver Quadra, BC]

It says on their website:

The National Energy Board...is an independent federal agency established in 1959 by the Parliament of Canada to regulate international and interprovincial aspects of the oil, gas and electric utility industries. The purpose of the NEB is to regulate pipelines, energy development and trade in the Canadian public interest. These principles guide NEB staff to carry out....

It never mentions environment anywhere in there. So this is an organization that has not seen that a key purpose includes protecting the environment--

[Brenda Kenny]

I think you'd have to look at section 52 of the National Energy Board Act and recognize that the origins of their mandate are very much a fully embracing public interest--

[Joyce Murray, Liberal, Vancouver Quadra, BC]

I hadn't finished, sorry, when you interrupted there.

[Brenda Kenny]

Pardon me.

[Joyce Murray, Liberal, Vancouver Quadra, BC]

So when the core of an environmental assessment process is to ensure that is given weight, having an organization that has another core mandate I think would be a very dramatic solution.

I want to comment that I was just at a day-long event with the major construction companies and proponents. British Columbia has a lot of development going on, good stuff, and not once did the EA process even come up as a barrier. The biggest barrier that was heard there is the lack of skilled tradespeople and apprenticeships and that there was going to be a huge gap in being able to get enough skilled people to do this work.

I would like to understand how in reviewing CEAA such a dramatic change would address the real problem with these major development projects.

[Brenda Kenny]

First, no doubt you would have heard from those suppliers that labour is of high concern, and certainly it is. So I'm not sure what the specific topics of that conference were, but I've been to many myself that are focused on that aspect.

However, getting to decision-making in a way that's strategic and timely does not at all meaning rushing, but not languishing either--so we can know, as you said, if it's in the public interest or not, and if it's not, then we will invest elsewhere.

The central point here is that for a group like the National Energy Board, this is not at all a departure from common practice that has been in play for decades. CEAA screenings are routinely done by the NEB currently, and many of those screenings can be very large, leading to full public hearings. A good example was 147 kilometres of looping through Jasper National Park. It rated as a screening under the definition of CEAA, but by any measure was clearly a critically important project.

[Joyce Murray, Liberal, Vancouver Quadra, BC]

Okay, thank you.

If I have any remaining time, I'd like to hear a comment from Mr. Lindgren.

Would you imagine there would be different outcomes and differences to the mitigation that would be proposed if an industry-entrusted regulator were the sole point of regulation?

[The Chair, Conservative, Mark Warawa]

Unfortunately, time has expired. If you would like, I can give you 15 seconds.

[Richard Lindgren]

I'm a little nervous about the proposal to simply hand off EA responsibilities to regulatory agencies. That's not what CEAA is all about. I can't speak to the National Energy Board situation. I don't practise before that tribunal. But I do get involved in matters before the Canadian Nuclear Safety Commission, and let me just say that that commission's legislation pales in comparison to the requirements set out in CEAA. So I'd be very nervous about any proposal that would send EA obligations solely to that commission.