Environment Committee on Nov. 3rd, 2011

[Prof. John Sinclair]

Sure. Thank you.

For some time, the Canadian Environmental Assessment Act has allowed mediation to occur as an alternative dispute resolution technique.

We've just finished some research published in the Dalhousie Law Journal that looked at why mediation wasn't being used as much as it could be under the act currently, and how it might be used more. Two things that we came forward with were, first, the kind of assessment—and here mediation could be a type of assessment—and second, the use of mediation within an environmental assessment. As a result of our work, what we recommended in regard to this seven-year review is that a small but critical step forward would be to enshrine the mandatory consideration of mediation as a process option in the legislation.

[The Chair, Conservative, Mark Warawa]

Thank you, Mr. Sinclair, and Mr. Lunney.

Next is for Monsieur Choquette for seven minutes.

[François Choquette, NDP, Drummond, QC]

Thank you, Mr. Chair.

I would like to thank the witnesses for sharing their information with us.

My first question is for Mr. Sinclair.

We have recently welcomed Mr. John Bennett from the Sierra Club. He talked to us about the importance of public participation.

[Prof. John Sinclair]

I'm sorry, the audio equipment—

[Megan Leslie, NDP, Halifax, NS]

I didn't hear any of it.

[The Chair, Conservative, Mark Warawa]

The time has stopped.

[A voice]

Apologies.

[François Choquette, NDP, Drummond, QC]

That's okay.

[A voice]

Go ahead, please.

[François Choquette, NDP, Drummond, QC]

I was just talking about the importance of public participation. One of our witnesses told us about a potential two-step environmental assessment. The first step—even before the project is set up—would be to determine whether the project is worthwhile. Mr. Gibson talked about national projects. It would then be a question of conducting more comprehensive studies as the project is being developed.

At which stage should the public be most involved?

[Prof. John Sinclair]

The earlier they participate, the better. That's early and often. The sooner the public can be involved in the approval cycle, the better. It's no use bringing people in to participate in a process if the decisions have already been made about what we will do, and how we will do it. One of the hallmarks of meaningful participation is that there's actually an opportunity to influence what's happening on the ground, or what's proposed to happen on the ground. If that's not part of the process, then it's going to be very difficult to have meaningful participation. The earliest in the project decision cycle that it can happen, the better. A number of jurisdictions have looked at how to try to accomplish that.

[François Choquette, NDP, Drummond, QC]

Thank you.

In your report, you talked about interjurisdictional coordination and the one that should take precedence in environmental assessment. What really stayed with me is that we should think of assessments as a way to improve things, not a way to relax requirements.

At the moment, which jurisdictions have the best environmental assessments? How can we improve legislation to make environmental assessments more strict?

[Prof. John Sinclair]

Here's my experience. In working with all of the provincial jurisdictions across Canada, everybody thinks that their process is the best and that CEAA's is the worst. I've actually published about that. So you're starting at a disadvantage when nobody thinks you're very good to start with.

What I am suggesting is that there's a need to strengthen the existing agreements to ensure that we are actually harmonizing process so that, as you mentioned, we know who the lead authority is; we know how the federal government is going to participate; we have some certainty as to what the role of the provincial governments is going to be; and we have some certainly, if a hearing is called, that it's either going to be a joint panel or that the federal government will participate in that panel. We don't have certainty on those sorts of issues right now.

I can't point out and say which one is the best. As I said earlier, it's a bit of dog's breakfast. There are certain provisions in some provincial legislation that are forward-looking and others that aren't so much. So it's hard to just pick one and say that it's the best—but all of the provincial jurisdictions think that their process is the best.

[François Choquette, NDP, Drummond, QC]

Thank you.

My question is for the two people here, Mr. Sinclair and Mr. Gibson.

Can you expand on the idea of projects of national interest, large-scale projects? What do you mean by that? What is a project of national interest? How can legislation better address projects that need environmental assessment?

Mr. Sinclair, you can go first. Mr. Gibson, you can answer afterwards.

[Prof. John Sinclair]

I think that's the challenge before you, to identify how you would try to come up with some criteria of what a project of national significance is. As I've mentioned already with the Australian example, what they used were other pieces of legislation. For them, one thing that's very important is biodiversity. One of the triggers of a project needing national environmental assessment is if it affects biodiversity. That's a very good trigger. Another relates to wetlands and impacts on wetlands. Those are the sorts of things that we would have to look at to identify to establish those sorts of criteria for determining the types of projects that would fall into that realm.

[Prof. Robert Gibson]

We do the identification of major undertakings now typically as indicated by what goes to a panel. There is an established process by which there is at least some judgment of that kind. However, the criteria that are most obviously useful are the ones that are setting some kind of major precedent and are dealing with cumulative effects. My answer would be to try to do as much of that identification through strategic-level assessment, where you can address some of the cumulative and policy-level issues and options, and those processes themselves should identify particular projects of national significance.

[The Chair, Conservative, Mark Warawa]

The time has expired. Thank you so much, Monsieur Choquette.

The next seven minutes are for Mr. Toet.

[Lawrence Toet, Conservative, Elmwood—Transcona, MB]

Thank you, Mr. Chair.

I want to direct my first question to the Saskatchewan Mining Association, and it's in regard to some of the different approaches we've seen in Canada and in some international contexts.

CEAA currently uses the all-in-unless-excluded approach, meaning if it has a federal aspect to it, it automatically is in. An alternative approach is a list approach.

Would your association have a preference for a list approach or an all-in-unless approach, and why would you have that preference?

[R. Liam Mooney]

Hi. It's Liam Mooney again.

In that regard, I think the answer that we've been pushing for is more that equivalency compensation, the recognition of the jurisdiction and the capability of the province to do environmental assessment. We would not advocate for a list approach. I think the idea of the triggers isn't a bad one in the conversation; but we see efficiencies potentially where there might be a federal trigger for an environmental assessment, but there is also a provincial assessment process that is adequate in the circumstances that have been reviewed, and there are criteria in place to ensure a degree of consistency across projects across Canada.

That would be our response on that front, that the answer lies not in the either/or but in looking to the provincial jurisdiction and its ability to manage environmental assessment.

[Lawrence Toet, Conservative, Elmwood—Transcona, MB]

So you're really moving to have it more in a provincial jurisdiction and not in a federal jurisdiction.

[R. Liam Mooney]

We believe that if equivalency is adopted, there are efficiencies, in that you have the provincial assessment process that's carried out for the project, and the checks and balances that would be in place federally do constitute a review of that process and provide a degree of comfort by the minister with the processes that are in place before the provincial projects. Once there's that degree of comfort, it's essentially accepting the provincial EA process as adequate, and we'll take the outcome, and then there will be federal approval still required in the grand scheme of things.

[Lawrence Toet, Conservative, Elmwood—Transcona, MB]

On a provincial level then, whether it's for federal or provincial review, you're saying you would still like to have a trigger approach to the assessments. What would you see as the basis for those triggers?

[R. Liam Mooney]

In our first recommendation, we talked about rationalization of the project triggers. And I think in that conversation there was some clarity: It should be the bigger asks, the bigger questions, that precipitate a federal environmental assessment requirement. Whether it's ultimately satisfied by the provincial equivalency conversation or is run through the federal environmental assessment, it's still driven by the same thing. There is a rationalization of triggers but not a loss of the trigger approach that's currently in place.

[Lawrence Toet, Conservative, Elmwood—Transcona, MB]

Okay, thank you.

I have a question for Dr. Sinclair that goes back a little bit to the public participation aspect. I know that it's been asked on a few different occasions.

When you talked about meaningful participation, you said that the sooner in the process it is done, the better. I'd like you to maybe expand on how you see that really working out in reality. How does that participation become much more meaningful. At whatever stage it is in the process, it doesn't play as much of a role if we don't expand on that ability, right?

[Prof. John Sinclair]

Thank you.

During the five-year review, we had near consensus on what meaningful participation was at the regulatory advisory committee, which comprised industry and first nations and environmental groups. It included a number of criteria that are in my brief, so I won't repeat them. But I will add to that list some work that we've done with the same groups from a research perspective. To define meaningful participation, what we've added to the existing list in my brief are the importance of integrity and accountability, including transparency and clear process intentions; the ability to influence decisions; fair notice and time for participation; and inclusive and adequate representation. Some that are critically important to me are the opportunity for open dialogue and the use of multiple approaches and methods of participation.

In terms of the timing, there are opportunities that could be better used, both within and outside the assessment process as currently legislated, to involve people in decisions that affect them.