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.