Environment Committee on April 18th, 2018

[Stephen Hazell, Director of Conservation, Nature Canada]

Thank you, Madam Chair and members of the committee.

My name is Stephen Hazell. I'm with Nature Canada. I have a long history with environmental assessment. I worked for the Canadian Environmental Assessment Agency when the initial regulations for CEAA 1995 were developed, so I have a long history with environmental assessment.

I wanted to say first of all that in the current bill, Bill C-69—and I'll be focusing on the impact assessment act provisions—there's a lot of good stuff. We support strengthening this impact assessment agency, requiring assessments to consider a project's contribution to sustainability, the incorporation of indigenous knowledge, and including Canada's climate commitments. These are all good things. We support the increasing transparency in decisions by requiring the minister and cabinet to provide reasons for approvals.

I wanted to focus on five areas in my comments. I want to talk about discretion and legal requirements, triggers for impact assessments under the act, the project list, getting federal house in order, and regional and strategic assessments. Some of what I say will overlap a little bit with what my colleagues have said in the previous panel. Some of it I hope will be new.

The first thing I want to say is that, leading up to 1992, the primary focus of the environmental community and Canadians generally was that we needed rules. We needed laws. We needed to know what projects were going to be subject to a federal assessment and which ones weren't. That was the key objective.

With CEAA 2012, we lost that almost completely because, with very few exceptions, there are no legally binding rules for what would be assessed and what would not. Unfortunately, this act sort of perpetuates that problem. It creates discretion at two levels.

No projects are assessed under the current proposed law unless they're on the project list. We're disappointed by that. Even if they are on the project list, it doesn't mean they are going to be assessed. They go through a whole process, the early planning process we talked about. At the end of that, the minister makes the decision whether there should or should not be an assessment. There's discretion all the way along, which just creates uncertainty for everybody. I would put it to you that it also politicizes the process.

Whereas under the 1995 law, proponents, stakeholders, and governments knew what was going to be assessed, under this law, we have no idea. We really don't. It will be at the discretion of the minister. That is something I would ask the committee to reflect on. Think about ways in which we can limit that discretion. Some ways have been suggested by colleagues in the previous panel.

The second thing I wanted to talk about is triggers for impact assessments. We're disappointed that the project list is the principal trigger for the assessment of projects. What it means is that many federal decisions that adversely affect the natural environment will not be assessed because the project list, as it's currently written, is very narrow.

Nature Canada starts from the position, and I think we would all agree, that one key function of environmental assessment is to provide good information about environmental effects and sustainability effects so that we can make good decisions. Ultimately it's about how we can make good decisions about projects. If the whole legal regime is focused on a handful of projects that are on that list, that means we're not going to get there. The decision-makers are not going to have the information they need to make good decisions.

I also want to note that the 1995 law had four distinct triggers. There was a regulatory trigger, a dispositional land trigger, a federal proponent trigger, and a funding trigger. Now, Mr. Northey may remind you that the expert panel in its report recommended that we continue with that four-trigger approach from CEAA from 1995. It was abandoned in the 2012 law.

What projects do we need to start getting better information about so that we can make good decisions? High-carbon projects—projects that we know are going to produce megatonnes or hundreds of thousands of tonnes of GHG emissions—should be assessed under the federal act so we can meet our Paris climate agreement.

There's a good example just downstream from Ottawa, upwind from Montreal, where we're not doing that. A cement plant is going to produce one megatonne of GHG emissions every year, not including all the trucks carrying all the cement. The sulphur dioxide and nitrogen oxide emissions are in excess of U.S. and European standards. Who did an assessment of that project? It wasn't the provincial government. It wasn't the federal government. The little municipalities around Hawkesbury did the assessment. Their only recourse was to deny a rezoning application. The proponent, a European multinational corporation, appealed the refusal of the rezoning to the Ontario Municipal Board.

That's where we sit. A megatonne of emissions are unaccounted for and there are no interventions by either level of government to figure out how we can get those GHGs down. We're missing the boat on that. High-carbon projects have got to be on the project list, at least. We think it would be better if there was a law list, like we had in the CEAA 1995, so that any regulatory approvals under the Fisheries Act, the Canadian navigable waters act, or the Species at Risk Act would be assessed. That would be our preference, but we think we could also do it by way of the project list.

Next, I want to turn to the project list itself. I want to talk about the regulatory approach that's being taken by the Canadian Environmental Assessment Agency for listing projects under your new impact assessment act. We say it's unacceptable.

According to the consultation paper, the project list would “focus federal impact assessment on projects that [would] have the most potential for adverse environmental effects in areas of federal jurisdiction”. They're saying that even very bad projects with serious adverse effects in areas of federal jurisdiction may not be listed on this project list so long as there are projects that have more serious impacts. That's a problem. That means they only want to have a very select number of projects listed that would be subject to the whole process.

I want to add that I found nothing in Bill C-69 or in the proposed act that requires the approach that appears to be taken by the agency with respect to the development of these absolutely critical recommendations. We would say delete that word “most”, so that the language would read “federal impact assessments would focus on projects that would have potential for adverse environmental effects in areas of federal jurisdiction”, not the “most potential”. I would make that recommendation.

Next I want to talk about the federal house in order. The exemption of federal projects from assessment under the proposed act is simply unacceptable. As it's written now, federal authorities are required only to determine “that the carrying out of the project is not likely to cause significant adverse environmental effects”, and that factors set out in proposed section 84 be considered.

“Just trust us” is just not good enough. Let me give you an example from the Canadian Parks and Wilderness Society. I don't know if they're testifying before the committee, but they said to go ahead and tell the story.

Since 2012, Parks Canada has made 1,600 determinations under a provision identical to the one I just read to you. Instead of doing an assessment, they're required to make a determination based on...we have no idea what. They made 1,600 of those determinations over two and a half years. Not once did they identify a project that had significant adverse effects.

These projects are in our national parks, where presumably we're a little more sensitive to what “significant” might mean. Remember that in national parks the minister has, as her first priority, the maintenance and restoration of ecological integrity when considering aspects of the management of parks.

Am I over...?

Okay. I did want to say something about regional and strategic assessments.

[The Chair, Liberal, Deb Schulte]

I get it. The problem is—

[Stephen Hazell]

Just one...?

[The Chair, Liberal, Deb Schulte]

Be really, really quick.

[Stephen Hazell]

Very quickly, the idea in the bill of having this expert committee identify regional assessments is a fabulous idea.

[The Chair, Liberal, Deb Schulte]

Okay. That was quick. Thank you very much. I appreciate that.

Who is up next?

[Rodney Northey, Partner, Gowling WLG (Canada) LLP, As an Individual]

I've been invited just this second to be next, so I will take the honour.

I'm very pleased to be here. This is the third or fourth time I have been before this committee over a long time—20 years—and I'm always honoured to do this. I am arriving in my personal capacity, but I am one of the four, the gang of four, that wrote the expert panel report. I will say that although I'm not speaking for the other three, I'm very happy to defend any part of that report. I'm still very proud of it and I am happy to speak to any part of it that may assist you in what you're up to.

The other thing I'll say is that I'm a bit like Stephen. We've crossed paths. Stephen didn't quite illuminate how far back he goes, but the very first federal court case that happened to get EA in play in the late 1980s was part of the machinations of Stephen Hazell, for whoever he was working for or with then. He is an esteemed member of how law came to environmental assessment. I'm a little behind that, but I've done two books on federal environmental assessment, one in 1994, believe it or not, on the first 20 years, and now I have a current guide. I come at this with a great deal of interest.

The final thing I want to say just on background is about the panel report. I will speak to one part of it only, but I do want to say here on the record that it's an integrated vision. One of the things that may make it helpful to the committee is that if you want to ask me about a specific thing, we tried to balance all of the interests in the constituencies that we thought were relevant to this: the first nations, the industry, the government, the public, and the provinces. We tried to figure out how all of them had a legitimate role, so pulling one piece out of our report is not likely to be terribly helpful because it's not capturing all of the things that we tried to balance together.

Now, having said that, I am going to say one thing and, strangely enough, it echoes something I said in 1994. I said it in 1994 because it was powerful then. It is that I believe the federal EA law needs a CRTC-like model. It needs a tribunal, full stop. In 1994 I wrote 25 pages for this committee or its predecessor on how to do that. I'm not going to do that again here. The panel gave you a vision on why that's important.

What I want to say very quickly on this topic is about the thing that a tribunal can do. It spoke for itself well then as a model because, unlike a court, the facts and the experts are all relevant. Every time we go to court, we throw out the facts and the experts, and we deal with the law. That surely is not the way to do the best EA. Similarly, notwithstanding how noble they are and how much time our federal ministers and agencies want, they are not the same thing as an independent tribunal in how well they balance and address expertise.

That's the CRTC piece, but now you have one more piece to this that in my view makes it even more imperative, more vital, that you do this. If you are going to have EA deal with the rights of indigenous peoples, which you must in order to deal with UNDRIP, which you must to deal with our Constitution—and you've now embraced that—how are you going to do that without some kind of body that can adjudicate what a “right” is? I believe it needs to be adjudicative, because otherwise the only place you go is court. We surely do not want to have court as the only place where you can talk about rights and get an answer.

What I say is that we really need a speedier, expert-based process to adjudicate the vital question of rights. If you read the panel's report, you'll see that we tried to address consent within a framework of a tribunal. The consent was not absolute; it was embedded in a framework. I cannot see a better way to do that. I'm happy to hear of an alternative, but going to court is not an alternative to that.

Thank you very much for your time. I'm here to try to assist.

[The Chair, Liberal, Deb Schulte]

That was super speedy so that made up for a little bit of run-over there, so I appreciate that.

May we have the next person, please?

[Jay Morrison, Chair, Environment Committee, Paddle Canada]

I'm happy to give whatever time I have left to my two colleagues here. What I'm here to talk about is perhaps a little less relevant to you. I had hoped that there might be a few members of the transportation committee who might drop in as guests; I don't think there are. I'm going to focus mostly on the navigable waters aspect of the bill, even though I'm a current member of the board of the Canadian Parks and Wilderness Society. I thank Stephen for mentioning that example.

[The Chair, Liberal, Deb Schulte]

That is why we invited you to come. We wanted to hear about that aspect.

[Jay Morrison]

Thank you, Madam Chair.

My name is Jay Morrison and I'm representing Paddle Canada today as the environment chair. I should also mention that I'm the secretary of the Canadian Safe Boating Council.

Paddle Canada welcomes the opportunity to comment on Bill C-69. We have been engaged with the public right of navigation since amendments to the Navigable Waters Protection Act were first proposed in 2009. Closely related to navigation rights is the question of safety, and Paddle Canada has been coordinating its work with the Canadian Safe Boating Council. Paddle Canada has several recommendations with respect to the bill.

The mission of Paddle Canada is to promote recreational paddling instruction, safety, and environmental awareness. Paddle Canada's 3,000 certified instructors teach canoeing, kayaking, and stand-up paddleboarding to more than 10,000 Canadians every year. For the millions of recreational paddlers in Canada, we are the organization that is most concerned with their public right of navigation.

The mission of the Canadian Safe Boating Council is to promote safe and responsible boating throughout Canada. The CSBC contributes to a declining mortality rate for recreational boaters but the annual toll is still much too great and most deaths are highly preventable. When you are boating, wear your life jacket.

Allow me to do a very brief demonstration.

[The Chair, Liberal, Deb Schulte]

Thank you for showing us how to put on a life jacket. That's going to save you from the questions.

[Jay Morrison]

One of the benefits of it, as you can see, is that it's just webbing. It's very light, very breathable, and there is no excuse not to wear it. I must confess that until I had a daughter, 10 years ago now, I would often not wear my life jacket if I was on warm waters that I could swim across. I'm a whitewater instructor as well, and I wouldn't always wear my life jacket in whitewater. These are extremely light, easy to wear. Wear them. Most people who die are not wearing their life jackets.

There are a number of strengths and potential weaknesses in the proposed amendments to the NPA in Bill C-69. Our general perception is that the proposals in Bill C-69 may, with some caveats, effectively restore an acceptable level of ministerial oversight to the right of public navigation to all navigable waters. Bill C-69 continues the use of a schedule of waters where proposed works would require ministerial permits. Ideally, and I know some of my colleagues have proposed this, abolishing the schedule would go toward restoring full oversight to all navigable waters. However, effective oversight may be realized through the bill's requirements that owners of works on unscheduled waters give notice to those who may be affected and by providing a dispute resolution process.

The caveat here is that the minister provide sufficient program resources to ensure that proponents do give such notice to all potentially affected parties, including paddlers, and that the minister does respond to unresolved disputes in a timely and effective manner. The bill should specify a time limit for the minister to respond.

Whether this new approach works as intended should be closely examined when the five-year review is done.

I should add that I'm a former senior manager with the Treasury Board and I'm very sensitive to the issue of efficiency and the cost to taxpayers. By implementing this new regime, there is a possibility that the long waiting list of projects and the cost to taxpayers can be reduced. My understanding is that is why Transport Canada has proposed this new approach.

Bill C-69 defines “navigable water” as that which “is used or where there is a reasonable likelihood that it will be used by vessels”.

In our view this is sufficiently specific that it would include waters that have been, are currently, or may be used in the future by human-powered craft. Attempts in 2009 at legislating an objective canoe-test definition of navigability—which, by the way, never was in the old NWPA—were, in my view, a failure. This bill's specific definition, therefore, represents an improvement over the old NWPA in securing the right of navigation for paddle craft.

The NWPA contained provisions that certain types of works on navigable waters—notably dams, bridges, booms, and causeways—always would require ministerial permit and the Canadian Environmental Assessment Act specified that such works would require an assessment.

The proposed Canadian navigable waters act does not contain any specific triggers for impact assessment, so we urge that the proposed impact assessment act ensure that works that obstruct flows or change water levels require impact assessment and that provision be made for assessing the cumulative effect of lesser works.

Paddle Canada recommends that such works that completely obstruct navigation of unscheduled waters specify a requirement that a ministerial permit be obtained. This is not a matter of only effectively maintaining the right of public navigation, but it is also a matter of safety, especially in the case of power dams and their treacherous cousins, weirs, where in the absence of safe and reasonable portages, paddlers may sometimes take dangerous risks.

When asked by parliamentarians and officials at Transport Canada to name our main concerns with respect to works, our answer has been power dams. We are pleased that officials have responded positively to the need to mitigate the obvious dangers posed by power dams; however, the hazard also posed by weirs, or low-head dams, requires more explanation.

Weirs often involve a relatively gentle drop, sometimes less than a metre, tempting the uninformed to run the weir in a canoe or kayak or even to swim in it. The drop can sometimes set up a recirculating hydraulic that can trap a boat or a person in the foaming water until they tire and drown. For this reason, those of us who are trained whitewater paddlers refer to weirs as drowning machines. As an example, a weir on the Bow River in Calgary took the lives of 14 people over the course of the last 30 years in many different incidents until it was recently re-engineered. A Paddle Canada instructor, a friend of mine actually, recently recounted to me an incident at a day camp during which in spite of the efforts of a large, strong man who risked his life to attempt a rescue, a young boy drowned when trapped in an innocent-looking current below a weir.

Paddle Canada recommends that no dam or weir should be permitted on any waterway without provision for a safe and reasonable portage with appropriate signage.

Paddle Canada also recommends that in the case of works that completely obstruct navigation, such as dams and weirs where permits have already been granted, Transport Canada should consider the feasibility of reviewing the status of the permit with respect to a requirement to provide a safe and reasonable means of bypassing the obstacle. Of all the rivers on the historical fur trade routes from Montreal to the Pacific and Arctic oceans, the power dams on the Ottawa River stand out as exceptionally poor in this regard. Paddle Canada may be able to assist in identifying opportunities for improvement.

Similarly, we recommend that in order to give the right of navigation full meaning, Transport Canada should also examine the general legal status of portages, particularly on historical routes. Specifically, the department should be able to advise those who travel such waterways whether they have the right to walk on private land in order to bypass natural obstacles such as rapids and waterfalls. If not, the department should examine measures that might establish that right.

Many historical portages have been lost to development over the years. One of them is within sight of these Parliament buildings. The first nations portage that is thousands of years old and closest to us right now was also used by every single one of the early European explorers to bypass the Chaudière Falls. These routes are part of our shared history and must be preserved.

Our final recommendation is that because the proposed Canadian navigable waters act deals with a historic public right that is not established by any overarching document such as the charter, consideration should be given by legislators to inserting a short preamble into the Canadian navigable waters act that describes the nature and importance of this right as part of our Canadian heritage.

Madam Chair, I would like to point out to the members of the committee that while I have been involved for a long time with environmental organizations, impact assessment is not at all my area of expertise. As a certified Paddle Canada instructor who has canoed the 8,000 kilometres from the Gulf of Saint Lawrence to the Arctic Ocean, my expertise is in the safety and navigational aspects of this bill.

I would be pleased to answer any of your questions. Thank you.

[The Chair, Liberal, Deb Schulte]

Thank you very much.

We're going to start the questioning with Mr. Fisher.

[Darren Fisher, Liberal, Dartmouth—Cole Harbour, NS]

Thank you very much, Madam Chair.

Thank you very much, gentlemen, for being here.

Madam Chair, if you could let me know when I'm roughly halfway through, I'm going to share my time. Because of bells, I think it's important that we all get a chance to say a few things.

[The Chair, Liberal, Deb Schulte]

Will do.

[Darren Fisher, Liberal, Dartmouth—Cole Harbour, NS]

Jay, I'm going to go to you.

I hope it's okay if I call you Jay. I assumed that you paddled here, since you brought your own life jacket.

I represent the riding of Dartmouth—Cole Harbour in Nova Scotia. Dartmouth is known as the city of lakes, as I mentioned to you earlier. We're also on the Atlantic Ocean.

I think it's important that folks have the ability to report any issues to navigating or enjoying our beautiful lakes and oceans. I think that should include non-scheduled waters as well. I'm interested in your thoughts on the complaints mechanism. Is it strong enough in this bill? More importantly, is the procedure simple enough that regular Canadians will be able to report an issue with regard to the navigation of our waterways?

[Jay Morrison]

Again, that depends on the implementation and whether the department has the resources, and whether they make it sufficiently clear to proponents that they must give notice of works to the public and how that happens. It's also whether the department has the resources to investigate complaints in a timely manner. That's why I put those caveats in there.

I don't know to what level the navigable waters program is resourced today. I know that there are fewer people than there were in 2009 when we were looking at this issue and I appeared before a Senate committee to talk about it. Perhaps because I was a public servant for 32 years, with 20 years at the Treasury Board, maybe I have a little more faith in the intentions of public servants to do the right thing and their ability to do so.

I think it's worth a try, but I think it needs to be monitored. The one improvement that should really be in the bill is that the minister should have a time limit to respond to complaints.

[Darren Fisher, Liberal, Dartmouth—Cole Harbour, NS]

Mr. Northey, I'm going to ask you a quick one because I'm probably going to run out of time.

How would you strengthen this legislation to ensure that projects are truly in the public interest? How would you better define public interest, and how would you change this legislation to keep it from being political?

[Rodney Northey]

That's a great question.

The panel turned its mind to that, and our answer was to put the whole thing under the heading of “sustainability”. The meaning of sustainability we had as five pillars. The idea was that you would balance those five things.

What I want to distinguish between the pillars of sustainability and what we have is that the pillars were a test. You had to assess all five ingredients and come out with a view that overall you had something sustainable, a test. Public interest is not really a test, because the criteria are so amorphous that one doesn't have any idea what you're balancing or what you're doing with it. I think we've lost something in where this is headed by moving to public interest and away from sustainability.

[The Chair, Liberal, Deb Schulte]

You're halfway through.

[Darren Fisher, Liberal, Dartmouth—Cole Harbour, NS]

Okay. Thank you.

[William Amos, Liberal, Pontiac, QC]

I'd like to continue on the vein of this dispute resolution entity.

From my understanding, having been a counsel at the CRTC, the challenge is that this is a model where you have a regulator that also performs a quasi-judicial function. In this circumstance, would the impact assessment agency be a regulator as well as an adjudicative body, or...? I'm just trying to figure out exactly how it would be structured. We've heard other witnesses suggest that it should be something entirely separate; it shouldn't be the impact assessment agency.

Furthermore, how would one ensure that indigenous considerations would be appropriately built in and consultation appropriately achieved so that such a body would actually pass muster pursuant to UNDRIP and constitutional obligations?

[Rodney Northey]

Wow. That was very nicely compressed. Let me try to deal with some of that.

Yes, I do hear the point and the point is well made about the issue of how one entity can deal with these various aspects. I don't have a simple answer for you other than I think we do have a path where you can have an entity that has a tribunal component to it, and that's the way we recommended this. You would have some part of the agency with a board, or whatever we're going to call it, with an adjudicative function. Over to the side, if I can call it that, is a distinctive branch that wasn't controlled by the other parts of it. That's where we try to get to, because we are concerned about a couple things, and you got to this.

How do you get early planning? Is early planning adjudication? No, it isn't. The adjudication and the early planning parts to this are complicated. What we wanted to do was to have an independent body do an assessment, as you've pointed out, and we wanted to have some adjudicative means at the end of it all to deal with it, or in the middle of it to do dispute resolution. I don't think that is problematic if a statute expressly authorizes all the different parts to it. To me it's a kind of balance of powers problem, and you specify the roles of the various entities. That's really the best I can say about this. I don't think they're necessarily in tension, but they need to be separated by a statutory mandate.

There were a few other questions, but you may get back to me.

[William Amos, Liberal, Pontiac, QC]

So, what of the indigenous aspect...?

Am I done?