Evidence of meeting #9 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 ceaa.
A recording is available from Parliament.
Conservative
The Chair Conservative Mark Warawa
I call the meeting to order.
Colleagues, we're starting a little late. There's a possibility of a vote, in which case we will suspend and then come back.
Today we have witnesses by video conference and in person. We will begin with Mr. Gibson.
Mr. Gibson, you will have up to 10 minutes to make your presentation. All three witnesses will get up to 10 minutes each, and then we'll begin questions.
Please go ahead, Mr. Gibson, for 10 minutes.
Professor Robert Gibson Professor, Environment and Resource Studies, University of Waterloo, As an Individual
Thank you, Mr. Chair, members, and colleagues.
I'm Bob Gibson, a professor at the University of Waterloo, but I'm not representing the university or any other special interest. I've been working on matters related to the design of environmental assessment processes for longer than some of you, and maybe some of your parents, have been alive.
If anything, I try to take the perspective of my grandson's generation. The idea here is that I may be able to provide you with something of the long view and then talk briefly about some of the main implications, which should be in the speaking notes that you have.
The basic message I have is that Canada is now and has been for a long time in need of second-generation environmental assessment, and that tinkering with the existing process in a piecemeal fashion is unlikely to deliver the greater effectiveness and efficiency we probably all desire.
We've had environmental assessment in Canada for nearly 40 years. The Canadian Environmental Assessment Act is more recent. It has some aspects that are more recent, it has a quite acceptable set of purposes in section 4, it has admirable requirements to consider cumulative effects, but otherwise it is basically old-school environmental assessment.
Old-school environmental assessment came from the period when it was possible to expect that focusing assessment law on projects individually would be enough, when it was possible to think that it would be sufficient to reduce or mitigate the most significant adverse effects of our undertakings rather than to require a positive legacy from each of them, and when it was possible to expect that these requirements would lead proponents to incorporate environmental factors into their core planning along with the usual financial technical and political considerations. It was possible at that time to think that all of this, in well-designed processes, would make assessment easier and more efficient over time, because it would be more commonplace and habitual.
After 40 years, I think it's safe to say that not one of those assumptions was valid, or at least is valid any more. We have learned that the important effects of our undertakings are the cumulative ones, and that the main opportunities for positive change, for innovation, and for dealing with both our problems and our opportunities are at the strategic level, meaning the policy, program, and planning level.
We have found that despite the good intentions of assessment, and in part because of the poor design of actual assessment processes, proponents for the most part still look at these requirements as side issues, as administrative or regulatory hoops to jump through, rather than as part of their core decision-making. We have watched governments in virtually every jurisdiction become increasingly overwhelmed by the weight of expectations and responsibilities that they're expected to deal with.
Part of the problem is the scale of the issue. Part of the problem is also that the Canadian Environmental Assessment Act was not very well designed from the outset. It typically starts too late; and part of the reason for that is late regulatory-level law, which means less of a trigger. It leaves many issues open in negotiation. What you have to cover is subject to negotiation, both within the direct Canadian jurisdiction and when there are processes carried out jointly with the provinces or territories or other jurisdictions. We have responsible authorities with conflicting roles.
We have no effective enforceable decision out of it, and so it's not surprising that we have additional inefficiencies. I don't think it is possible to address these inefficiencies—deficiencies, effectively—through the usual kind of tinkering.
Basically two simple choices will be presented. You will be informed that CEAA's approach is inadequate, and it is. You could respond by simply adding new obligations to the existing shaky edifice. You'll be informed that CEAA's processes are frustrating and inefficient. You could respond by exempting more undertakings and by deferring many of the rest to the provinces and territories, but you will find that there is a dog's breakfast of miscellaneous flawed processes in all of the territories and all of the provinces, and some additional ones under land claims settlements, some additional ones at the municipal level and under sectoral law, etc., no two of which are the same and no one of which is a model. We have that problem. In addition, at the provincial level the motivation, the expertise, and the authority to deal with matters of federal jurisdiction are generally absent. The deferral option by itself, while superficially attractive, will not work.
That leads to what would work and to what would be in a second-generation environmental assessment. Frankly, it's not easy, but there are some basic principles. I have set out in your notes a dozen basic categories of things that need to be done. I don't mean to oversimplify by doing this briefly, but that's how much of my initial brief could be translated by today. There's more in a longer brief that you will get shortly and there's much more to be talked about here today, but in what time remains, let me go through some of the key points. I'll be happy to answer questions on the other aspects.
First of all, we have tried in Canada to have harmonization of assessment across the many jurisdictions. More than 10 years ago the federal government initiated a multi-stakeholder process run by the Canadian Standards Association. That process lasted for years and reached draft 14 of a national standard for best practices in environmental assessment. At that point the provinces pulled out, and it has not been regenerated since. I have perhaps the last remaining copy of draft 14, if you'd like to look at it at some point. There may still be hope in that initiative, though I don't see it as being easy or quick.
The alternative would be for the federal government to set a strong, comprehensive, tightly designed environmental assessment process as a national standard; and through harmonization and joint agreements with the other jurisdictions where there is mutual application, you would raise other jurisdictions to the national standard. I think you can do that. I don't think it will be easy, but I think it's the best option available.
Second, in making this standard stronger and clearer and more transparent, there are a number of particular steps. One is that the purposes section now requires assessment to make a positive contribution to sustainable development. The act is mostly about mitigation of significant effects. Entrenching the test of a positive contribution to sustainability into environmental assessment is what various jurisdictions are now doing. We've now had five panels under joint jurisdiction in Canada apply it, and it is the leading edge. It is what we would hope to use to integrate all the considerations for a positive legacy. It's more likely to get things into core of decision-making, more likely to be efficient, and more likely to be quick.
Conservative
Conservative
The Chair Conservative Mark Warawa
We look forward to your answering questions.
Next we have Dr. Sinclair from the University of Manitoba.
Professor John Sinclair Professor, Natural Resources Institute, University of Manitoba, As an Individual
Thank you for the opportunity to speak and participate in your deliberations. I hope you're given the opportunity to hear from many Canadians as you carry out this task.
I would like you all to consider your own constituencies. You might pick up a newspaper in your constituency and learn about a new project. That's how many Canadians find out about projects that are happening in their area, projects that could bring risks to the environment, to the area's social and economic future, and to the health of the community itself.
While you might be interested in the jobs that a project has to offer, other people in your constituency will have other interests. Your neighbour may be interested in health services. She may note that many of the jobs are low-paying ones that will put pressures on the health sector. Your local environmental organization may be concerned about stack emissions and water emissions. What these people have in common is that they're interested in an efficient and fair way for decisions to be made about the project. The people who call your constituency office are all assured that there's going to be a proper pre-approval assessment. I think this scenario plays out on a daily basis across our country, and Canadians have come to expect environmental assessments and depend on them as one of the important policy tools for making decisions that are sustainable and provide net benefits.
It's what's referred to is minimum regret planning. That's what people like to see us engage in. Environmental assessment is a principle that is no more complicated than trying to incorporate common sense and concerns about community futures into the decisions that we make. It's now practised in over 100 countries. It's evolved in all those countries and will continue to evolve. It's a daunting task before you. Dr. Gibson has already outlined a number of the important aspects of assessment that you will need to cover, so I won't go through the list that I put into my brief. I'll just mention three: meaningful public participation, multi-jurisdictional assessment and substitution, and the focus of assessment processes.
Public participation is often identified as the cornerstone of environmental assessment. In fact, the Canadian Environmental Assessment Act underscores the importance of this by stating that one of the purposes of the act is “to ensure that there are opportunities for timely and meaningful public participation throughout the environmental assessment process”.
We've tried to make participation more meaningful since the five-year review of the Canadian Environmental Assessment Act. We now have funding for comprehensive studies. We've made improvements to the FEIA and there's new guidance material. But to my knowledge there's been no open review of these undertakings. We still have a long way to go to incorporate meaningful participation into environmental assessment.
There are a number of key issues that I continue to hear about from participants and as a participant. These relate to accelerated decision processes, insufficient resources, information and communications deficiencies, the lack of participation at early stages in the decision-making processes, and our weak participation in follow-up activities.
Meaningful public participation must continue to be a cornerstone of environmental assessment. I've suggested in my brief a number of things that need to be done in this regard, and I think they're particularly important as we move away from having government scientists participating in the process and bringing important details to the table. We're going to have to look to ways to make sure that other people have the opportunity to come and bring that information. We need to clearly identify the components of meaningful participation. We need to codify direction, and we need to look at other ways to encourage participation through alternative dispute resolution.
In respect of multi-jurisdictional assessment, Canada has a long history of interjurisdictional coordination. Three approaches to environmental assessment have been considered: standardization, harmonization, and substitution. Dr. Gibson already talked about standardization, so there is no need to explain this further.
Many contend that there continues to be duplication in the process, but that it will be eliminated once we deal with harmonizing the process. I think a lot of duplication has already been removed from the process, because political masters have required that be the case. In fact, much of the duplication that's left is the result of politics.
Basically, there are two forms of multi-jurisdictional assessment that we have traditions in, one being bilateral agreements, of which there are many. All provinces west of and including Quebec have bilateral agreements, and we've had project-specific agreements, such as the Sable Island project. More recently we've had one example of substitution, that being the Emera Brunswick pipeline case.
I feel that the focus of this review should be on bilateral agreements. Specifically, I think that bilateral agreements should be completed with all provincial jurisdictions and that the existing agreements need to be strengthened to ensure process certainty for proponents and the public, while limiting the variation in what's required. As Bob has already mentioned, it's a dog's breakfast in terms of the processes that we're trying to harmonize. There are misunderstandings about decision authority that need to be corrected, and we need to ensure that harmonization occurs to a higher standard and not a lower standard.
I'd just like to comment on substitution. I think that the Emera pipeline project has indicated to us that, really, we should be eliminating substitution at this time, or at least restricting it until regulatory processes are modified. We need to further discuss how and if it's even appropriate to substitute regulatory tools for what is largely viewed as a planning tool for sustainability. It's also hard to substitute outside of one's jurisdiction.
Lastly, I'll talk about the focus of EA law and policy. It's been suggested that to gain efficiencies we just need to reduce the number of EAs that we do. There are a number of ways of achieving that. I will just mention two. One is the elimination of screening level assessments; the other is moving to a new model of deciding what projects should be assessed, such as projects of national significance.
Screening levels assessments have been a target for elimination for as long as I can remember—at least 20 years, I think. While there are cogent arguments for reducing the number of screenings, especially now that we have class assessments, we need to carefully consider the sorts of projects we would be eliminating. The proverbial park bench is often referred to as the sort of thing that is subject to screenings. That's a simplified argument. There are many projects at the screening level that require careful consideration. We have to think about how those projects should be assessed; in other words, they're large projects if we get rid of screening level assessments.
You'll be directed to the Australian experience in terms of thinking about projects of national interest. Consideration of projects-of-national-interest approach will require you to tackle the difficult or delicate issue of how to make the determination of what should be considered. You'll be directed to the Australian experience, and I will just point out a couple of thing in that regard. First, the Australian Environmental Protection and Biodiversity Conservation Act relates to projects of national environmental significance. The act actually combined a number of other acts related to biodiversity, conservation, whaling, and so on, which helped to provide the significance test for the act. As well, the number of cases actually went up once the act was put in place, and the delegation that's occurring under the act has been problematic.
So in conclusion, I'd like to say that much has been learned about EA law and policy from practice here in Canada. In fact, we were at one time the go-to jurisdiction for ideas and innovation in relation to EA process and practice. Canadian practitioners continue to do this, but nationally many leaders in the field are concerned about slippage as we move to make EA processes more efficient by limiting the scope of assessment, restricting public input, and spending time in court. We need to only look at the projects we undertook before national assessment processes were in place to see the value of forward-looking assessment processes.
We need to do a better job—Parliament needs to do a better job—of making sure that Canadians have the tools to advance sustainability, protect ecosystems, and retain their social and economic well-being. This requires strong EA law, regulation, and policy that is legislated and gives the public a meaningful voice in decisions, avoids duplication, and is effective, efficient, and fair.
Thank you.
Conservative
The Chair Conservative Mark Warawa
Thank you, Dr. Sinclair. I appreciate that so much.
Next we have the Saskatchewan Mining Association. I believe Ms. Pamela Schwann, the executive director, is going to be presenting.
You have up to 10 minutes.
Pamela Schwann Executive Director, Saskatchewan Mining Association
Thank you, Mr. Chair.
My name is Pam Schwann. I'm executive director of the Saskatchewan Mining Association. I'm very pleased to be here today to present to the Standing Committee on Environment and Sustainable Development in respect of the review of the Canadian Environmental Assessment Act.
I am joined today by representatives of two of our member companies. They are Ms. Tammy Van Lambalgen, vice-president of regulatory affairs, and corporate counsel for AREVA Resources Canada; and Mr. Liam Mooney, vice-president for safety, health, environment and quality, and regulatory relations, with Cameco.
In the brief submitted to the committee, we have identified four areas in which changes to environmental assessments can immediately improve the process while ensuring the integrity, intent, and spirit of environment assessments.
I'll quickly go over these four reforms and then go into a little more detail, if time permits.
Incorporating the following reforms to the CEA Act will be beneficial, we believe.
The first one is eliminating multiple environmental assessments so that there's one project and one process. This would give the federal authority the ability to designate another jurisdiction's assessment of a project as equivalent under CEAA. This will reduce the duplication and overlap of federal, provincial, and local environmental reviews that our companies experience.
The second reform suggested is to rationalize project triggers. Administrative decisions should not trigger an EA. Expanding the exclusion list regulations to reflect a more common sense approach would end costly and unnecessary reviews of a great number of minor projects.
The third reform would be to better integrate environmental, social, and economic considerations. When considering environmental mitigation measures, it is important to identify what is technically and economically feasible and to factor in the economic and societal benefits of projects to Canadians.
Fourth would be to establish environmental assessment cycle times. The stated goal of the Major Projects Management Office or MPMO is to complete an EA within two years. Much could be gained by requiring that federal authorities set and follow timelines mandated by legislation or the federal environmental assessment coordinator.
Last—and this really has more of a Saskatchewan focus currently, but has national implications further down the road—is to ensure that positive reforms to CEAA are extended to projects that are primarily regulated by other federal authorities, such as the Canadian Nuclear Safety Commission.
The 2009 report of the Commissioner of the Environment and Sustainable Development cited a number of the problems with the CEAA process, noting that the federal environmental assessment suffers from systemic delays and a lack of coordination, and focuses on expensive and frustrating processes without being able to demonstrate value to the environment or to society.
We would like to compliment the Government of Canada for taking some positive steps toward improving the federal EA system through amendments brought forward in the 2010 Jobs and Economic Growth Act. However, we believe that more change is needed.
We'd like to emphasize at this point that the changes we are proposing are not aimed at lowering environmental standards or removing any area of industrial activity from regulatory scrutiny. They are simply intended to improve the efficiency, timeliness, and predictability of the EA processes. The SMA believes these changes will help to strengthen environmental protection by enabling regulators to focus on the areas that are of greatest environmental concern rather than devoting precious resources to projects and activities that have little or no environmental impact.
We'd like to further elaborate on these four proposals specifically. In the brief, we have specific wording addressing each of these proposals.
The first one is to eliminate multiple environmental assessments and adopt a one-project, one-process model. The principle of one project, one process is often not observed by responsible authorities administering CEAA. There are structural reasons for this. The CEAA process is predicated on the assumption that all projects that have federal involvement require some form of federal EA, except those that are specifically exempted by regulation.
This approach is inherently inefficient and inconsistent with provincial EA regimes, which provide for agreement of a single EA process or the exercise of discretion as to whether a formal EA is needed, based on an initial project description.
In the view of the SMA, the concept of equivalency offers the best path forward for redressing deficiencies in the current system. Subsection 12.4(1) of CEAA presently enables the responsible federal authority to cooperate with other jurisdictions in discharging EAs. We would urge the government to implement changes to CEAA that would instead enable the federal responsible authority to designate another jurisdiction's assessment as being equivalent to an assessment under CEAA.
Such a duplication of effort among multiple regulators often results in lengthy delays to projects without any additional benefit to the environment whatsoever. Instead a single, thorough process undertaken by one level would be accepted to satisfy both the federal and the provincial requirements. We understand that this practice is already being applied to certain projects in British Columbia.
The brief that we submitted proposes specific wording to an amendment to sections 12 and 54 of the act that would address the one-project, one-process equivalency.
The second reform is to rationalize project triggers.
Conservative
The Chair Conservative Mark Warawa
Ms. Schwann, I'm sorry to interrupt.
We will suspend this meeting and reconvene after the vote.
You will have just a little over four minutes to present when we come back, Ms. Schwann.
Thank you.
Conservative
The Chair Conservative Mark Warawa
We will resume.
We have the Saskatchewan Mining Association, with Pamela Schwann, the executive director.
You have a little over four minutes left.
Executive Director, Saskatchewan Mining Association
Thank you, Mr. Chair.
We'll continue with the second of our four major recommendations for CEAA reform. The second one, as mentioned—
Conservative
The Chair Conservative Mark Warawa
Ms. Schwann, I have one minor issue. We've each now received the briefing document. It was translated during the break, so everybody has that briefing document in front of them.
Executive Director, Saskatchewan Mining Association
Great. Thank you very much.
Then we are on page 6 of that briefing document, and the recommendation we are looking at is headed “Rationalize Project Triggers”. It has been mentioned by Drs. Gibson and Sinclair that the environmental assessment is intended to serve as a planning tool for the projects. However, functionally the EA process has been extended to regulatory decisions made with respect to minor approvals that are already covered under an existing licence.
The net result is a great number of EAs for minor works, introducing lengthy process delays into what are essentially administrative decisions. Section 7 of CEAA specifies the circumstances under which an environmental assessment is not required. Perhaps it could be expanded so that projects that actually improve environmental performance are not put through the same protracted review, which only prolongs their implementation.
The SMA brief proposes an amendment to paragraph 5(1)(d) of the CEAA and the addition of a paragraph 5(1)(d.1) to ensure that only those activities or undertakings that are not bounded by the current licence would have the potential to be encumbered with the federal EA process.
In the interests of time, we won't expand on recommendation number 3, to better integrate environmental, social, and economic considerations. I'd like to move to page 8 and the fourth recommendation, which is the establishment of environmental assessment cycle times.
Cycle times for the completion of federal EA processes vary between industry sectors and between regulators. While the typical timeframe for major projects in Canada has been four years, the MPMO's stated goal is to reduce this to two years. We would note that the Australian Olympic Dam deposit went through its EA process in just over two years.
The new regulations, the establishing timelines for comprehensive studies regulations, are very promising in this regard, and the SMA is very encouraged by the potential improvement in predictability and timeliness.
However, these regulations and any other improvements to CEAA should be extended to all industry proponents, including uranium industry proponents, irrespective of other federal regulatory regimes. The SME brief proposes adding a new section 12.6, which would specify that
Every federal authority shall comply with timelines prescribed pursuant to Regulation and by the federal environmental assessment coordinator unless otherwise authorized by the Minister.
Finally, we'd like to look at ensuring consistency for all project proponents. CEAA applies to resource developments that are regulated by the Canadian Environmental Assessment Agency. However, for developments in the uranium field, the CNSC is the main federal body, with the Nuclear Safety and Control Act serving as the primary piece of the regulatory authority.
As such, we would put forward an additional recommendation that these reforms be extended automatically to the uranium and nuclear industry so that project proponents in this sector are treated equally to those in other resource and energy sectors. It bears repeating that what we are seeking is not lower environmental standards, but improved efficiency in the overall regulatory process.
Again, in summary, our four recommendations are to eliminate multiple environmental assessments; to rationalize project triggers; to better integrate environmental, social, and economic considerations; and fourthly, to establish environmental assessment cycle times, and to make all of these provisions also applicable to the uranium industry, which is regulated under the CNSC.
Mr. Chair, thank you very much, and thank you to committee members. We'd be happy to entertain any questions you might have.
Conservative
The Chair Conservative Mark Warawa
Thank you so much, Ms. Schwann.
The first round of seven minutes begins with Mr. Lunney.
You have seven minutes.
Conservative
James Lunney Conservative Nanaimo—Alberni, BC
Thank you.
Thank you to all of our witnesses, and my apologies for the interruption that slowed us down a little bit.
I think we've had some very interesting presentations from all of our witnesses. I would like to start with some questions for our friends in Saskatchewan.
You gave us a very thorough and concise presentation, but at the same time covered your points quite succinctly, I thought, though you were cut short a little bit because of the time.
First of all, I want to ask about the concern about having multiple authorities responsible for environment assessment and how that impacts the investment in projects. Can give us an example?
Maybe start there, and then I have a number of other questions I want to move through. Maybe one of your other colleagues would—
Executive Director, Saskatchewan Mining Association
Liam Mooney will respond to that one.
R. Liam Mooney Member, Vice-President, Safety, Health, Environment and Quality, Regulatory Relations, Cameco Corporation, Saskatchewan Mining Association
Thanks, Pam.
It's Liam Mooney, with Cameco Corporation.
On that subject, I think the Province of Saskatchewan is ultimately going to have a story in relation to this. But I would go back to the example that Pam Schwann delivered earlier on the Olympic Dam project, a major expansion to an existing project going through an environmental assessment process in a little over two years, in stark contrast to the length of time required to go through a similar process in Canada. I guess the conclusion that can be drawn is that there are other investment opportunities in other parts of the world that might be more attractive, with the regulatory certainty and predictability of process that is present in those jurisdictions.
Conservative
James Lunney Conservative Nanaimo—Alberni, BC
Summing that up, you might say that if an EA is unpredictable or inefficient it can delay or prevent a project.
I'm wondering about the mining association website. I notice that mining in Saskatchewan employs about 30,000 people directly and indirectly. I notice that your sector is also a leading employer of aboriginal people. As of 2009, northern mines employed some 1,368 people of aboriginal ancestry, according to what I gleaned from the website. I guess the conclusion is that inefficient environmental assessments not only lead to lost investment but also lead to lost jobs. The question we had there was, how can CEAA be made more efficient and predictable without sacrificing environmental protection? That's really the focus of our discussion today and of the points you brought forward.
I noticed that you were a bit rushed in answering, and you had a bullet that you wanted to expand on. I think it would be item 3 in your summary of recommendations, “Better Integrate Environmental, Social and Economic Considerations”. Would you care to expand on that concern?
Executive Director, Saskatchewan Mining Association
I think we have some specific examples. I'll again ask Liam and Tammy to respond to this.
Member, Vice-President, Safety, Health, Environment and Quality, Regulatory Relations, Cameco Corporation, Saskatchewan Mining Association
On that question, the point that is being made in the SMA submission is actually what you're driving at: to recognize that we are a significant part of the employment picture in northern Saskatchewan and that projects that take much longer to come into place might not be as attractive as projects in other jurisdictions, which will ultimately the jobs. The availability of jobs is directly driven by the projects that we can carry forward through the environmental assessment process, and where capital dollars are best spent with the certainty of a licensing and approval process that is predictable.
Conservative
James Lunney Conservative Nanaimo—Alberni, BC
I want to ask you about the period when we were dealing with the Jobs and Economic Growth Act and the amendments that took place in July 2010, which partially consolidated authority for most comprehensive studies. In your assessment, have the amendments made it easier for your member companies to navigate environmental assessments?
Executive Director, Saskatchewan Mining Association
I can speak to that. We haven't had very many new projects or expansions outside the north that have been triggered under CEAA. One of our main points is that we have a lot of uranium activity in the province. We produce 100% of Canada's uranium; we're the second leading producer in the world. Unfortunately, the improvements to CEAA do not apply to any of the uranium projects, because they are regulated by the Canadian Nuclear Safety Commission, and those projects were exempted under the good amendments that were made to CEAA. What we would like to see is those amendments being transferred across and applied to CNSC-reviewed projects.
Conservative
James Lunney Conservative Nanaimo—Alberni, BC
So you're predicting that further consolidation would make environmental assessments more predictable and straightforward for your member companies and that there are still disconnects in jurisdictional responsibility.
Executive Director, Saskatchewan Mining Association
Yes, absolutely there are in jurisdictional responsibilities among federal regulators. When a competitor for producing uranium such as Olympic Dam is able to get a project approved anywhere from two to four times more quickly than you can get a project approved in Canada, we are put at a serious competitive disadvantage.
Conservative
James Lunney Conservative Nanaimo—Alberni, BC
Thank you for that.
I want to turn to Dr. Sinclair for a moment.
You focused your remarks on three areas: public participation, jurisdictional assessment, and the focus of our laws and policies. In one of your bullets, under “Meaningful Public Participation”, you mention the “identification of alternative ways to resolve disputes that should be included in any legislation”. Would you care to expand on that?