Evidence of meeting #104 for Environment and Sustainable Development in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was projects.
A video is available from Parliament.
Conservative
Barrister and Solicitor, Ecojustice Canada
Environmental assessment plays a very crucial role in understanding and ensuring that projects, in fact, help to achieve our climate goals rather than derogate from them. It's fairly clear that we are not on track to meet those goals so far. An act that explicitly contemplates climate and makes it a bottom line should go a long way towards improving that particular indicator.
Conservative
Robert Sopuck Conservative Dauphin—Swan River—Neepawa, MB
I didn't hear a number, which is fine. I expected that. When I was on the fisheries committee, I asked witnesses who were against the changes we made to the Fisheries Act and exactly the same thing happened. Not one person could point to any environmental indicator. I'm a strange kind of guy. I actually look at the environment, look at the numbers for the environment and I hear none of those, unfortunately.
It's quite obvious that what is proposed here is a throttling of Canada's natural resource industries, and by extension, the economy. I should note that the Royal Bank has pointed out there's a real outflow of capital from this country. “Investment by foreigners has collapsed. Foreign direct investment...in Canada clocked in $31.5 billion in 2017, down 56% since 2013, when it totalled $71.5 billion.”
Again, the wreckage of communities that results from that is only beginning to be felt. Chris Bloomer, the head of the Canadian Energy Pipeline Association, pointed out that Canada has a toxic regulatory environment. Our competitiveness has slipped to number 16 out of 17 countries, when we used to be in eighth place. By the looks of it, I don't think we're going to have to worry about too much economic development, especially in the resources sector, over the next little while.
Mr. Ginsberg, you were quite negative about ministerial discretion, which is quite common in groups like yours. Why is it so offensive that people who are elected by citizens have the ultimate decision-making authority in the public interest?
Barrister and Solicitor, Ecojustice Canada
The problem with excessive discretion is the uncertainty that it creates. If you go into a process without understanding the benchmarks by which you're going to be judged, neither the industry that wants to get a project built, nor other participants can have any confidence that the outcome will reflect their concerns or will contribute to sustainability, which is the purpose of the act. Bottom lines help to level that playing field.
Conservative
Robert Sopuck Conservative Dauphin—Swan River—Neepawa, MB
That is what we politicians do. We have our ear to the ground all the time, listening to what the public is saying, and we have to factor in every situation before a decision is made. At least when an elected official decides something, citizens have a recourse. None of you are elected, with the exception of Mr. Namagoose I presume. When unelected bodies make final decisions, where do the citizens go? They can't go anywhere.
We had a very interesting testimony this week from Chief Ernie Crey of the Cheam First Nation in B.C. He was quite blunt about what environmentalists have been doing. He's the subject of an article whose headline reads, “Environmentalists 'red-wash' their fight against pipeline, First Nation chief says”. I'm quoting. This isn't me saying it. The article quotes Chief Crey as saying, “We have a vigorous environmental movement in B.C. and they have learned that they can use aboriginal communities to advance their agenda.”
We also had testimony from Chief Boucher from Fort McKay First Nation, an area I'm familiar with from when I spent time in the oil sands. They have 100% employment in their community. The annual income is $120,000 per year and they have financial holdings in excess of $2 billion, thanks to their willingness to do business with oil companies in the oil sands.
Mr. Kneen, is it a bad thing to have 100% employment?
Communications and Outreach Coordinator, Mining Watch Canada
No, of course not. Full employment is a great thing. The obstacle we're wrestling with is the lack of consistency in decision-making and the inability, without criteria in front of us, to understand the implications of those decisions. The point of trying to put economic development in the context of a sustainability assessment is to be able to actually interrogate all of those claims, understand the direct and indirect effects of any proposal, and evaluate them as such rather than in a black box behind some political content.
Conservative
Robert Sopuck Conservative Dauphin—Swan River—Neepawa, MB
Communities with 100% employment are happy.
Liberal
The Chair Liberal Deb Schulte
Thank you very much. We're out of time on that questioning. We'll obviously have another chance to pick it up.
Ms. Duncan.
NDP
Linda Duncan NDP Edmonton Strathcona, AB
Thank you, Madam Chair.
Rather than propounding, I'm looking forward to hearing more from you. That was great testimony and these are great briefs. I wish we could have more time with you. I want to thank Mr. Kneen for the recommendation that if they sign off on this really fast, let's have another review, quickly, to solve the problems.
My first question is to you, Mr. Namagoose. I'm very interested to notice that there is what one might call a carve-out in proposed section 40 of the bill, for the Mackenzie Valley Resource Management Act. The bill doesn't seem to recognize the difference between first nations who are under historical treaties and those who are under modern treaties—first nation final agreements. Of course, the Cree in Quebec have been innovative in the agreements that you've managed to reach. That's one area that probably needs a look. Why are we only singling out Mackenzie Valley resource management for that? It raises the question with me about Nunavut, the Yukon, and so forth.
Are you, Mr. Namagoose, proposing this mechanism only when the projects are on your lands, or are you proposing it also if your lands and peoples are impacted?
My second question is, are you proposing a joint panel where the Cree would determine who your representatives are?
Third, are you proposing that it be under the auspices of your agreement? I'd appreciate a bit more clarity so that we can make some sound recommendations for the bill.
Executive Director, Grand Council of the Crees (Eeyou Istchee)
The James Bay and Northern Quebec Agreement was signed by Canada and Quebec in 1975. It was actually signed by the Liberal government of 1975. It's a treaty, and it's protected by the Canadian Constitution. It's part of the law. It was the first environmental and social impact assessment of its kind in Canada. Like I said, it was a gift from the Cree to Canada.
It has legal status. There is already a process in there, and we would want that process to be respected. The main thing is that the Crees participate in the review process, and it's a social impact review process also. The JBNQA was the deal for getting the approval and the construction of the project of the century in 1975. We accommodated that project of the century in 1975. Section 22 has already assessed and approved and recommended an amended huge project in the territory. It's a successful process when the Crees are participants. Rather than being outsiders and making complaints, we are participants in the process.
NDP
Linda Duncan NDP Edmonton Strathcona, AB
I suggest that what you have raised here is very important. If there's anything you can further submit to our committee to outline how you think that might go.... For example, I would think you don't just want an indigenous person appointed to a panel. You want to have representatives of the northern Cree selected by the northern Cree. Any details you could provide would be really helpful.
My other question is to the other three on the panel. What do you believe are the most critical changes to the bill needed to restore public trust in the federal assessment process, perhaps in addition to what you have already said? What do you think needs to be done?
Barrister and Solicitor, Ecojustice Canada
In addition to my point about clarifying the decision criteria in proposed section 63, the bottom line I discussed, which is absolutely critical, I would also underline something I didn't get a chance to mention, which is the importance of the central role played by regional and strategic assessments.
There is a huge amount of promise in this bill that, for the first time, we may get regional assessments that look at landscape issues and strategic assessments that consider policy issues in a way that can provide guidance to project-level assessments so that they don't get bogged down with those issues.
The problem, or the gap, is that it is not clear from the language of the act that those assessments will actually proceed, because once again they are left to discretion. A helpful amendment would be to have the expert committee contemplated in the bill recommend a list of regional and strategic assessments that ought to occur and to have the minister respond to that, or even better, to schedule those regional and strategic assessments in the bill such that they stay on the radar and don't fall off it if, for instance, there's a change of government. That's the critical piece.
Staff Lawyer, West Coast Environmental Law Association
I suppose I can't say everything—
Staff Lawyer, West Coast Environmental Law Association
—because it's a package.
I would go back to two things. One would be the planning phase. Reflecting on what Mr. Sopuck said about the regulatory environment now being fraught, I think one of the intentions of CEAA 2012 was to shut the public out of environmental decision-making. We're in this boat now where we have protests and lawsuits because the public don't feel like they have a forum in which to meaningfully engage and have their concerns heard. The more you can do in the assessment-planning phase, the more you can get the relevant jurisdictions—indigenous peoples, the public—to sit around the table together and design the process to ensure that all the right things are being considered and that participation occurs in a meaningful way and collaboration agreements are entered into, the more easily you will get to decisions that work for everybody.
Liberal
Mike Bossio Liberal Hastings—Lennox and Addington, ON
Thank you.
I want to expand a little bit on where Mr. Amos left off. I assume you are familiar with Ontario's Environmental Review Tribunal process, which is used as an appeal process. I want to know if you feel we should be creating a statutory right of appeal that proceeds from ministerial or cabinet decisions on designated projects to a specialized independent body established under the act on the model of Ontario's Environmental Review Tribunal. Would you concur with that? In saying that, are there any other suggestions you would recommend under proposed section 63 to ensure we are fully involved in protecting the public interest?
Barrister and Solicitor, Ecojustice Canada
I'm happy to address that. As I suggested in my submissions, the idea of a dedicated review tribunal to, in the first instance, review final decisions made under proposed section 65 of the bill is a good idea in my view. Certainly, courts are the default body and can turn their minds to these issues, but to have a body that is both independent and has some expertise in environmental assessments could also be helpful.
As to the model of Ontario's Environmental Review Tribunal, I think it's potentially helpful. I would mention, though, that the issue of access to the tribunal in terms of a leave test is a barrier that ought not to be replicated if we are going to do that federally.
Liberal
Staff Lawyer, West Coast Environmental Law Association
I think it's a great idea, as I said before. I would add two functions of this body if it is implemented. One would be to provide alternative dispute resolution in multi-jurisdictional negotiations, government-to-government negotiations, all the way through. In the planning phase, for example, if jurisdictions can't come up with an agreement to conduct an assessment, this tribunal could either provide mediation or arbitration to get us to a process that everybody agrees on.
Second, I would recommend equipping this body to undertake quality assurance programs for project-level follow-up programs as well as for the implementation of the act in general. I think one of the witnesses yesterday was talking about how a quality assurance program would greatly contribute to the learning in environmental assessments in general. Having some kind of an independent oversight body to do that would really help us to begin to learn from these assessments.
Liberal
Mike Bossio Liberal Hastings—Lennox and Addington, ON
What other public interest aspects would you add to proposed section 63?
Staff Lawyer, West Coast Environmental Law Association
As public interest...?
Barrister and Solicitor, Ecojustice Canada
Perhaps I'll just underline the environmental justice aspect, which is an important consideration—again, on the theme of levelling the playing field—in taking into account that environmental impacts don't actually impact everybody in the same way. If proposed section 63 were sensitive to this, it would be a significant improvement to the bill.
Liberal