Good afternoon. Thank you for the opportunity to be with you today.
I would like to begin by acknowledging that we are on the unceded territory of the Algonquin nation. This fact needs to shape our discussions here. It's not just something that we say before we go about our business, but a reality that we need to carry through everything we do.
Like many, Mining Watch was greatly encouraged by the government's commitment to reforming environmental assessment and by the expert panel process that was created to advance that agenda—notwithstanding its compressed time frame—both in the astonishing extent and thoughtfulness of participation from the public, indigenous people, and experts alike, and in the depth of consideration that the expert panel reflected in its report.
My focus today is primarily on part 1 of Bill C-69, the impact assessment act. There are certainly important concerns with respect to other parts of the bill, as well as Bill C-68, the amended Fisheries Act, both on their own and in relation to the impact assessment act, especially regarding the assessment and monitoring of non-designated projects. I would direct your attention to the submission of the Canadian Freshwater Alliance, especially as it appears they will not be called as a witness.
This bill brings great promise and great disappointment. Overall, we find that it cannot fulfill the government's commitment to restore public confidence, and therefore, also cannot fulfill the promise of facilitating good development projects. In some respects, it represents a failure of ambition, where a stronger commitment and stronger leadership are required to meet the challenges of the 21st century. In other respects, it's just a matter of design flaws and limitations of implementation. At this juncture, it may not be possible to address the bigger structural problems, but we have the opportunity to fix many of its deficiencies.
We are greatly concerned that while this committee has heard the testimony of the responsible ministers, it has not heard from the civil servants, the government's own experts who worked diligently to develop the government's direction in the bill that is before us now. We strongly urge you to call those involved in drafting this legislation as witnesses. We're also greatly concerned that there is very little time for this committee to hear witnesses and to develop and integrate the necessary amendments in order to allow for a more thorough evaluation of some of the critical structural aspects of the impact assessment act.
The minister, through the new impact assessment agency, should undertake a short-term review of the new act and develop a package of housekeeping and substantive amendments to bring before Parliament within a year or two. As well, the proposed 10-year parliamentary review will come much too late. The legislative review requirement should be changed to a five-year ministerial review cycle.
I'll not attempt to address the needed amendments comprehensively—there just isn't enough time—but we have worked extensively through the Canadian Environmental Network, the RCEN, and its environmental planning assessment caucus, of which Anna and I are both co-chairs on a national level, which has made submissions to this committee. We endorse and support the observations and recommendations of the caucus, as well as those of its other members, and I would refer you to the caucus's written submission, as we're not actually here on behalf of the caucus.
The bill does make an important advance in setting out a broad consideration of economic and social factors in addition to biophysical environmental impacts. All of those factors are to be subject to public scrutiny and scientific evaluation, allowing decisions to be based on much more transparent reasons and justifications than has previously been the case. This is something we have advocated as critical to allowing an assessment of any proposal's contribution to long-term sustainability. The bill's inclusion of gender-based analysis is also important.
However, as I think Josh has already laid out, the bill does not provide a clear legal link between the consideration of those factors and the justification for actual assessment decisions. Neither does it establish basic criteria to provide a solid and consistent base for those decisions.
As Professor Doelle pointed out in his submission, the enabling nature of the legislation allows for good decision-making to take place, but it does not guarantee it and, without clearer requirements for justification, doesn't even encourage it. Provisions that enable action also enable inaction and do not provide certainty. It is greatly helpful in understanding the application of discretion if wherever the bill says the minister “may”, one reads “the minister may not”. This is not a question of ill will or irresponsibility, but more one of natural administrative tendencies to conserve money and energy, and natural political tendencies to seek short-term benefits.
We note that the question of discretion has been raised as a concern of all sectors, including industry representatives, indigenous peoples, public interest groups, and environmental law experts, with varying degrees of emphasis on three factors.
First is certainty and clarity, being able to know what the decision-making criteria are at the legislative level, and how they will be established at the level of individual project assessments or regional and strategic assessments.
Second, with regard to fail-safe criteria, is assurance that where benefits or, at least, no harm cannot be assured in all areas, any trade-offs will be subject to defined weighting and limits.
Third, on indigenous self-determination, is definitive protection for indigenous rights, including implementation of the UN Declaration on the Rights of Indigenous Peoples, so that impacts on treaty and indigenous rights and the outcomes of nation-to-nation processes are determinative so that the requirements are clear and knowable. I think the James Bay and Northern Quebec Agreement provides a clear example of that.
We urge the committee to pursue amendments to more closely tie the proposed section 63 decision-making factors to the proposed section 22 factors to include in an assessment.
This is not the first time that you are hearing this, and it won't be the last. We should include a requirement for regulations setting out generic decision-making criteria in each area, and establish a requirement for specific criteria for individual assessments, as well as making impacts on treaty and indigenous rights and the outcomes of nation-to-nation processes determinative and not just considerations.
We have made recommendations for specific amendments and provided background arguments in our written submission in seven other areas to help ensure that public participation is meaningful; that indigenous peoples involvement in any assessment processes respects their self-determination; that there are effective mechanisms to assess regional development impacts as well as policies, plans, and programs, with clear links to project assessments; that impact assessment is linked to monitoring of non-designated projects authorized under the Fisheries Act and the Navigation Protection Act, especially in relation to cumulative effects and project assessments; that energy regulators have a specific and a much more limited role in assessment processes; that international transboundary processes and international obligations and guidelines are given adequate weight; and that scientific integrity is built in, including in mitigation, adaptive management, and follow-up.
In conclusion, Bill C-69 has the potential to make important and badly needed changes in the federal impact assessment regime. Unfortunately, it does not provide clear enough direction on implementation to give us confidence that its promises will be fulfilled. It also replicates many features of the existing failed CEAA, including its limited scope of application. We have provided recommendations in key areas, and we trust this committee to do its best work to improve the bill.
Thank you.