Environment Committee on April 17th, 2018

[Ed Fast, Conservative, Abbotsford, BC]

I'm glad that you used the word “cumulation” because I'm going to mention another quote from that very same CEO, Steve Williams. On February 9, 2018, just a couple of months ago, he said, “The cumulative impact of regulation and higher taxation than other jurisdictions is making Canada a more difficult jurisdiction to allocate capital in.”

You just, at least faintly, praised the policy of the current government on carbon taxes. What then did Mr. Williams mean when he referred to higher taxation in Canada resulting in a more difficult jurisdiction to do business in?

[Virginia Flood]

I don't think his comments were specifically focused on the taxation. That's just part of the overall cost in our environment. When you look at where we compete, we compete with the U.S., so I don't think that would be any surprise when we look at what's happening south of us. They used to be our biggest customer. Now, they're our biggest competitor. When we're looking at investment decisions, we have to look at the whole picture.

[Ed Fast, Conservative, Abbotsford, BC]

I totally understand that, but Mr. Williams expressly referred to higher taxation. What taxation should be rolled back then to make our economy and our investment environment more attractive?

[Virginia Flood]

Given that I'm here on environmental assessment, I would like to stick with that and not get into the specifics of the taxation regime, because I would have to get back to you on that.

[Ed Fast, Conservative, Abbotsford, BC]

You did praise the taxation regime and your CEO has actually lamented the fact that higher taxation in Canada is undermining our investment—

[Virginia Flood]

I did mention that we are supportive of a broad-based carbon tax.

[Ed Fast, Conservative, Abbotsford, BC]

Yes.

You also mentioned regulation, so let me ask you, do you believe that Bill C-69 as presently drafted is going to improve Canadian competitiveness?

[Virginia Flood]

As I stated, I think there are some aspects within Bill C-69 that need improvement in order to provide better certainty and better clarity in a number of areas. However, we do support many of the aspects within Bill C-69 around the focus on aboriginal communities.

[Ed Fast, Conservative, Abbotsford, BC]

I have one last question.

As you know, the Liberal government has announced that it will be spending $300,000 to “discern the reason behind the lack of investment in Canada's energy sector”. I'm wondering if you can explain to this committee whether we are going to have to spend $300,000 to determine why capital investment is fleeing Canada, or whether you can already tell us here at this table what those reasons might be.

[The Chair, Liberal, Deb Schulte]

You have only seconds to answer. Do you want to give a one-word answer or maybe a follow-up?

[Virginia Flood]

I'll do a follow-up.

[The Chair, Liberal, Deb Schulte]

Thank you very much.

Next up is Ms. Duncan.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

I only get one chance because there's just little old me for my party, so I have a lot of questions for you. I'd like to thank all of you for your presentations. They're invaluable.

I want to also thank you, Professor Olszynski, for your initial analysis and then for your submission, as well, because it has been very helpful.

Professor Olszynski, thank you for your input on clauses 84 and 22. There's one aspect on ensuring efficacy of the mitigation measures on which I would welcome any additional advice you have in order to redraft clause 84 and clause 22, which I notice also deal with that. The provision does mention that, but perhaps you don't think it's clear enough. There's one aspect to clause 84 that is deeply troubling to me. It only speaks to “significant adverse environmental effects”, and yet this bill is supposed to be dealing with sustainability.

You may be able to offer us some advice on how those sections can be redrafted to actually reflect what the act is supposed to be doing.

I've a question for probably the three of you, Ms. Ronson, and professors Olszynski and Elgie, on the strategic and regional assessments. A lot of people have raised this as a concern. It's just kind of an add-on, but there's no detail.

With regard to the strategic and regional assessments, do you think that when to call one should be simply up to the agency's discretion or up to the minister? Do you think it should be specified in regulation or in statute? Should the statute require regulations to specify the criteria for regional or strategic assessments? For example, it might say that, where information is available, a region or sector may pose cumulative impacts.

Should the law also specify the timing? In other words, should the law be providing that these strategic and regional assessments should be done before specific project approvals? I'm sure Ms. Ronson would like to speak to that, given the fiasco around the approval of the Site C dam, where there was absolutely no consideration of transboundary impacts and no consideration of the ongoing cumulative impacts to the world heritage site at Wood Buffalo via ongoing oil sands applications.

I would welcome your input, and if there's time, I'd love to hear from Ms. Flood on that as well.

[Martin Olszynski]

I think it's pretty unanimous, at least on the side of colleagues that I've talked to, that the more legislative criteria on these points you have in the act, the better. Again, it just provides, as Professor Elgie said, certainty and predictability to the regime.

I know several submissions to the expert panel and then to the government itself listed several criteria that could be useful, for instance, where a region is of particular importance from an ecological perspective. That might be an area where you would want to prioritize regional assessment. Another example might be where there is an area that has been demonstrated already to be under significant development pressure or soon will be. That might be another place where you might want to apply. Of course, the obvious examples, like the Ring of Fire in northern Ontario, have been discussed.

On the strategic side as well, we've talked about.... Under CEAA 2012 we refer to regional studies, and we've had the cabinet directive on strategic environmental assessment, neither of which has ever been used. With regard to regional studies, it's never, and with regard to strategic assessments, every CSD report on this topic shows clearly that the government is not complying. When it's not this government, it's previous governments; it's all governments. Again, the more meat in the act itself, the better, on that front for sure.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Thanks.

Professor Elgie.

[Prof. Stewart Elgie]

I agree with everything he just said, strategically. I think this is the most important part of the act. We thought about the options, and I don't think you can legislate that they must do a certain number, because then you just get back-of-the-envelope ones to meet the number. It's hard to do criteria and the reason is that, as you know Ms. Duncan, many of these regional assessments end up putting prescriptions in place for areas that are mainly within provincial jurisdiction. If you were to do an assessment of woodland caribou or the prairie ecosystem, the federal government couldn't unilaterally come in and give you a recommendation for how you should manage the tallgrass prairies.

One of the realities of this is that these will work best, other than in a federal jurisdiction like marine, when they work co-operatively with provinces, and you can't legislate that. The reality is that you have to encourage that as many be done as possible. That's why the recommendations I put forward are the best I can think of. One of these is that you have a list of what they identify as priorities, assuming there's been some negotiation with provinces. Another is that the advisory council will do its recommendations for the criteria and priorities. At the end of the day, however, a lot of this is going to depend on which provinces are willing to dance with the federal government on this stuff.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Ms. Ronson.

[Alison Ronson]

It is difficult to figure out how to trigger a regional assessment when you're looking at cross-boundary effects, and some of our national parks do cross boundaries in this country. You could suggest an ecoregion-based approach, an ecosystem-based approach, or a watershed-based approach. One thing that is glaring, though, is that what we should be looking at is whether a project is going to impact our parks, especially parks that have world heritage status. If they do, then that could be a trigger for a regional assessment.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Before I let Ms. Flood respond, I have a second question. In fact, I have a million questions for you that I won't get a chance to ask.

There is a lot of concern with the designated project list and with the loss of what was known as the law list. Do you think that the solution simply is to keep expanding the ways to add projects to the designated project list or should we be going back to other triggers that include the law list? Is there a law that applies to federal lands or impacts adjacent lands and waters and federal spending?

[Prof. Stewart Elgie]

That's a great question. The law list meant that you used to do thousands and thousands of screenings each year. Those screening-level projects, other than in federal lands, have been largely eliminated. In my view, if the trade-off for not doing all those screenings is that you actually do a number of good-quality regional assessments, I think it will be a better outcome environmentally and economically.

These used to be mostly box-ticking exercises that didn't really look at the context of a project. If you took a whole watershed and looked at overall thresholds in that watershed, instead of every little bridge and jetty that went into it, and you did it well, you would get a better outcome for both the environment and the economy. That's why I say that ensuring these regional assessments get done is really important and that all the cost savings from not doing all the screenings should be rolled back into doing regional assessments.

[Virginia Flood]

Suncor actually does support the idea of strategic regional assessments. We do them in our part of Alberta. I think the trick is to do them in a way that they're going to do what Stewart just said. When I was with Fisheries and Oceans, we did over 10,000 of these small screenings a year. I think regional assessment would be good as long as they inform and support other decision-making so that you're not repeating it all again in an environmental assessment process. How they work together will be a very important aspect of this, together with the timing.

[The Chair, Liberal, Deb Schulte]

Thank you for that. That was good.

Next up is Mr. Amos.

[William Amos, Liberal, Pontiac, QC]

Thank you, Madam Chair. Thank you to our witnesses. It's a real privilege to have this opportunity.

Mr. Olszynski, could you opine on Professor Elgie's contributions around the constitutional jurisdictional questions? This is a really important issue. Recently, the last 30 years of environmental federalism politics seems to be bubbling up to the surface again, and I think we need to have a healthy conversation around how this bill is asserting or not asserting appropriate federal jurisdiction and what's the proper way to go about enabling it.

[Martin Olszynski]

There are two big points. The first is that Professor Elgie is right. The last word on this is from the Supreme Court in 2010, and that's the MiningWatch decision. In that case, you had a mine that was triggered by a Fisheries Act permit, and the issue was whether DFO could somehow reduce its environmental assessment responsibilities to just those parts that were going to have an impact on federal jurisdiction.

The Supreme Court decided ultimately that actually there was no ability to do that under the act. We had an example of a mine triggered by a fisheries impact assessment that nevertheless constitutionally enabled the federal government to assess the whole thing and base its decisions on that assessment. That's the Supreme Court's last word on that point in 2010.

We actually have a perfect example also, which Professor Elgie described as such a laborious task. I recommend that the panel read the New Prosperity panel report. That's a federal panel report on what was then called the New Prosperity mine. You see the panel, in a very thoughtful way, burning all kinds of ink and time in this exercise of trying to figure out what the federal, provincial, incidental, or indirect federal effects are. At the end of the day, notwithstanding the fact that again the project was triggered presumptively on the basis of a section 35 Fisheries Act authorization, the panel ultimately concluded that the effects on grizzly bears, which most people would normally think of as being provincial in nature, were a federal issue that had to be considered, because it was the destruction of the lake that was going to have an impact on their habitat.

Again, I can only commend you to read the panel report. It is a huge intellectual endeavour. At the end of the day, as Professor Elgie pointed out, there are so many hooks provincially and federally on almost all of these projects. You have to add the interconnectedness and the basic issue of science and ecology: all these things are linked, and you can't take one species out of the environment without it having a cascading effect on something else. It just becomes a very difficult exercise.

I totally agree that it essentially becomes a.... Again, it seems like there's nothing broken here that needs to be fixed.

[William Amos, Liberal, Pontiac, QC]

I'd like to continue down that avenue.

Professor Elgie mentions the issue of project splitting, which has been litigated many times in the past. His recommendation is to adopt a solution through a connected actions approach, where the interdependency is brought into play. I wonder if you could comment on the appropriateness of that.

I take the point that at the end of the day, the interconnectedness of all these components is going to be brought to bear in both a provincial and a federal assessment setting, and the end goal has to be one project, one assessment. The trick that has to be turned is getting to a federal law that best encourages the strongest possible impact assessment approach, yielding public acceptance of good projects and weeding out bad ones.

Please comment on that interdependency, the project splitting, and the connected actions aspect.