Environment Committee on April 18th, 2018

[The Chair (Mrs. Deborah Schulte (King—Vaughan, Lib.)), Liberal, Deb Schulte]

If I could, please, I'd like to get the meeting started.

We have very important votes tonight, so it's going to affect our meeting because we have two panels. We want to make sure both panels have a chance to get our full attention.

I'd like to welcome our guests. Thank you very much for being here.

We have Ecojustice Canada, Joshua Ginsberg, barrister and solicitor; the Grand Council of the Crees, Bill Namagoose, executive director, and Jean-Sébastien Clément, partner; Mining Watch Canada, Jamie Kneen, communications and outreach coordinator; and West Coast Environmental Law Association, Anna Johnston, staff lawyer.

Some of you have been before us before, so we welcome you back. To those who are new, welcome. We have a couple of procedural things before I open the floor to you. Just because I do not like to interrupt people, I will put up the yellow card when you've got a minute left in your presentation. I do the same thing to the members, so they're getting used to it. I put up the red card when your time is over. I don't mean for you to stop in mid-sentence; just wrap up what you're saying quite quickly because we've run out of time. Hopefully that will be helpful to you.

Who would like to start?

We'll start with you, Joshua, thank you very much.

[Joshua Ginsberg, Barrister and Solicitor, Ecojustice Canada]

Thank you very much, Madam Chair and committee members, for inviting Ecojustice to provide suggestions to the committee on Bill C-69.

Ecojustice is a national environmental law charity providing free legal services to Canadian conservation groups, concerned citizens, and first nations. Lawyers from Ecojustice appear across the country before courts and tribunals at every level, including with respect to environmental assessment, which will be the focus of my comments today.

I am an Ecojustice litigator and a part-time professor at the University of Ottawa faculty of law and director of Ecojustice's environmental law clinic at the faculty, where I teach environmental litigation, including with respect to environmental assessments. My comments today are informed by those various hats.

The points I propose to focus on are the following: first, the discretion to exempt projects from an assessment; second, the importance of clear requirements for decision-making; third, environmental justice; fourth, assessments of federal projects; and finally, review and appeal.

I've submitted a brief touching on other aspects of the proposed IAA as well as the proposed energy regulator act and the navigable waters act, which I commend for your review.

One of the most consequential effects when the 2012 legislation replaced the previous Canadian Environmental Assessment Act was the shift from a triggers-based approach to a project list approach, which limited potential assessments to a short list of major projects under federal jurisdiction. CEAA 2012 reduced the number of project assessments to dozens annually, compared with the former legislation that applied to thousands of projects annually. Even then, the 2012 act added an off-ramp whereby the agency could exempt projects from assessment. That discretion has been used 27 times since the current act came into force, or about five times per year. It is a regular part of agency operations.

Here are just two examples of exempted projects as a result of that discretion: a gold mine located near Timmins, Ontario, with an ore production capacity of 4,000 tonnes per day, where the minimum production capacity to trigger a federal assessment is only 600 tonnes per day; and a crude oil storage facility with capacity for 6.64 million barrels just outside the municipal border of Edmonton, Alberta.

The proposed IAA does not remedy this exclusion problem. It retains the discretion to exempt projects from a list that will likely only include those with the most potential for adverse effects in an area of federal jurisdiction, according to the government discussion paper on the subject. To be clear, I am not suggesting that any particular project ought not to have been approved. However, projects make the list because they have real potential for adverse effects, like toxic heavy industry in proximity to communities, like the two I mentioned. Failing to assess those projects undermines public trust in the process. Communities should get a full picture of the potential adverse effects of the project and ways the project might be improved. Not assessing such projects also undermines efforts to tackle cumulative effects, which is a core purpose of the bill.

We, therefore, recommend that section 16 of the act be amended to allow the agency to exempt a designated project from assessment only if it determines that there is no potential for impacts on areas within federal jurisdiction. In other words, if the presumption of federal jurisdiction that led a project to end up on the list in the first place is rebutted, it doesn't need an assessment. Otherwise, an assessment ought to take place.

The lack of clear criteria in the existing legislation has resulted in an interpretation by the courts that decision-making on assessments is based on nearly unfettered discretion. The assessment report is merely one input in an indeterminate sea of considerations that are never made public. The law is so vague that the Federal Court of Appeal concluded that decisions are, “based on the widest considerations of policy and public interest assessed on the basis of polycentric, subjective, or indistinct criteria”. In other words, after all of the evidence and public participation that goes into an assessment, there's no guarantee that it will do anything to influence the final decision.

What's more, courts have doubted whether the law imposes any standards for the content of the assessment report. According to some jurisprudence, it is doubtful whether the report is even required to contain substantive consideration of environmental effects, even serious ones like the release of liquid effluent from a nuclear reactor into Lake Ontario. The prevailing standard is “some consideration,” no matter how cursory or disinterested in relevant evidence that consideration may be.

To its credit, the proposed impact assessment act does try to do more than avoid acute harm. It requires politicians to consider the extent to which a project contributes to sustainability, including environmental, economic, health, and social factors. It also incorporates a consideration of Canada's climate commitments and indigenous interests, and it mandates reasons for environmental approvals.

However, the IAA should do more than require that factors be considered, since judicial history shows that mere consideration provides no enforceable standard. To avoid uncertainty as to whether the decision will really be based on the legislated factors, we suggest that proposed section 63 of the act be amended to ensure decisions are “based on” the legislated factors rather than simply taking them into consideration. That would be a significant change in law and accountability in the system and would help ensure that decisions that are tied to the EA process are evidence-based.

While the decisions should be based on the proposed section 63 factors, it's important to note that those factors are incomplete. The section should include bottom lines that place an outside boundary on ministerial or cabinet discretion so that all participants in impact assessment understand the minimum expectations. For example, the law should prevent the minister from deciding that adverse effects indicated in an assessment report are in the public interest if the evidence suggests otherwise. The minister should not make a positive public interest determination where adverse effects do not offset some more severe effect, or unless—as you heard from Professor Stewart Elgie yesterday—the benefits substantially outweigh the adverse effects. A project should also not be found in the public interest if evidence suggests it will result in the crossing of a dangerous ecological threshold or will substantially hinder Canada's ability to meet its international or national environmental, climate change, or biodiversity obligations. These bottom lines should not be reduced to optional considerations, which is currently the case with the proposed legislation. Proposed section 63 ought to be amended accordingly.

The bill also does not recognize that in Canada, vulnerable populations such as low-income populations, indigenous communities, and socially marginalized groups are disproportionately exposed to environmental hazards while also disproportionately lacking access to environmental benefits. In other words, environmental approvals often lack environmental justice.

Let me provide an example from some of our work. In “chemical valley”, located just outside Sarnia, Ontario, sirens can blare at any time of day to warn people to stay indoors when all-too-frequent pollution incidents occur.

[The Chair, Liberal, Deb Schulte]

I know you're on a roll, but you are going so fast that the interpreters are having a really hard time keeping up with you.

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

I speak English, and I'm having a hard time.

[Joshua Ginsberg]

My apologies. I'm doing my very best to stay within the time limit.

[The Chair, Liberal, Deb Schulte]

I know you're trying to get a lot into a short period of time. I can't really expand the time limit, but I do need you to just take a breath and slow down, because they can't keep up.

[Joshua Ginsberg]

Thank you for that, Madam Chair.

Let me take a step back and provide an example from our work relating to environmental justice. In “chemical valley”, which is located just outside Sarnia, Ontario, sirens can blare at any time of the day to warn people to stay indoors when all too frequent pollution incidents occur. In 2011 the World Health Organization said that the people of Sarnia breathe some of the most polluted air in all of Canada. The approximately 800 residents of Aamjiwnaang First Nation live next to industrial facilities that account for approximately 40% of Canada's petrochemical industry.

We recommend the following to incorporate environmental justice considerations into the IAA.

First, there should be definitions of ”environmental justice“ and “vulnerable populations”.

Second, there should be a new consideration under proposed section 22 of the act relating to whether the area impacted by the project is home to vulnerable populations and whether the human health or environmental effects of the project, including its cumulative effects, may be disproportionately high and adverse with respect to those populations.

Finally, there should be a decision-making criterion in proposed section 63 concerning the extent to which the designated project contributes to environmental justice.

The situation in Sarnia also reveals another gap in the IAA and that is the failure to provide for assessments of projects not only on federal lands but those with federal proponents or that are federally funded. In December of last year a chemical company produced a new polyethylene facility in chemical valley designed to increase its polyethylene production capacity by 450 kilotonnes per year. The federal government will contribute $35 million to that project, yet it will receive no federal or provincial environmental assessment. That's an unacceptable oversight. We therefore recommend that proposed section 81 of the act be amended to ensure that effects of all federal activities, whether as proponents or funders, be assessed. Those assessments should use the expertise of the newly created impact assessment agency, which will ensure that assessments of federal projects are independent and seen to be independent.

Finally, I note that the courts are the proper arbiters of when an assessment report is legally compliant and whether the decision conforms to the evidence before the decision-maker. Appeals should be rare but there should be recourse to them where necessary. I note the discussion yesterday concerning a potential appeal or review tribunal, which we absolutely support. However, if that is impossible at this stage, the IAA should provide for a right to review reports under the Federal Courts Act and to appeal the final decisions on questions of law and jurisdiction.

Thank you very much.

[The Chair, Liberal, Deb Schulte]

Thank you very much. I appreciate your understanding and patience in wrapping that up.

Who would like to go next?

Mr. Namagoose.

[Bill Namagoose, Executive Director, Grand Council of the Crees (Eeyou Istchee)]

Madam Chair and committee members, bonjour. On behalf of the Cree Nation of Eeyou Istchee, I thank you for the invitation to address you today with respect to Bill C-69.

[Witness speaks in Cree]

My name is Bill Namagoose. I'm the executive director of the Grand Council of the Crees, the Cree Nation government. With me today are Cree Nation government representatives Brian Craik, director of federal relations; Geoff Quaile, senior environment adviser; Kelly LeBlanc, environmental and social assessment coordinator; and Jean-Sébastien Clément, our legal counsel.

Bill C-69 must guarantee the Crees of Eeyou Istchee our treaty right under the James Bay and Northern Quebec Agreement to be active and mandatory participants in any environmental or social impact assessment of development projects carried out under federal legislation in the JBNQA territory of Eeyou Istchee. Any federal legislation providing for environmental or social assessment of development projects in the JBNQA territory of Eeyou Istchee must ensure that the assessment is conducted by the federal environmental and social impact review panel, known as the COFEX, established under section 22 of the JBNQA. To achieve these ends, Bill C-69 must provide for a carve-out or distinct regime that specifically addresses the JBNQA territory.

The Cree Nation of Eeyou Istchee counts more than 18,000 Eeyouch, or Cree, occupying our traditional territory of Eeyou Istchee. This territory covers over 400,000 square kilometres and is located mainly to the east and south of James Bay and Hudson Bay. We occupy and intensively use the entire area of Eeyou Istchee, both for our traditional way of of hunting, fishing, and trapping, and increasingly, for a wide range of modem economic activities.

As a result of massive hydroelectric and resource development over the past 40 years, the Cree of Eeyou Istchee have undergone extremely rapid and disruptive cultural, social, and environmental changes. These changes have caused enormous stress on the Cree in terms of our traditional way of life and culture. Fifty per cent of Hydro-Québec power is now generated in our territory.

I will now tum to the specific issues that relate to Bill C-69 and the assessment projects in Eeyou Istchee. Section 22 of the JBNQA sets out the first environmental and social impact assessment and review regime for development projects in Canada. I want to stress that the first environmental and social impact assessment in all of Canada was a gift from the Cree. This assessment is done by tripartite and bipartite committees that assess both the environmental and social impacts of projects.

One of the main objectives of the regime is to ensure that the Crees are active participants in the orderly development of the resources in Eeyou Istchee so as to safeguard their hunting, fishing, and trapping rights, as detailed in section 24 of the treaty.

There are four joint committees established under section 22 of the JBNQA. For today's purposes, the relevant committees are, first, the federal environmental and social impact review panel, also known as the COFEX, a joint Cree-Canada panel that is mandated to review projects under federal jurisdiction. The COFEX is composed of five members: three appointed by the federal government and two by the Cree Nation government. The second is the provincial environmental and social impact review committee, also known as the COMEX, a joint Cree-Quebec panel that is mandated to review projects subject to provincial legislation. The COMEX is composed of five members: three appointed by Quebec and two appointed by the Cree Nation government.

Over the years, the Crees have been involved in litigation regarding section 22 of the JBNQA and the various federal assessment processes external to the JBNQA, including the environmental assessment and review process, or EARP, guidelines and the Canadian Environmental Assessment Act, known as CEAA.

The most recent litigation on these issues ended up with the 2010 decision of the Supreme Court of Canada in Quebec v. Moses. The Moses judgment distinguishes between the environmental review processes internal to the JBNQA treaty and the environmental review processes external to the treaty as required by CEAA. The court held that the JBNQA treaty permits only internal review process, either federal, provincial, or combined. However, an external federal review process is also required where mandated by the federal environmental law.

The federal assessment process external to the JBNQA proved problematic in the past, as they set out a regime in JBNQA territory that did not take proper account of the specific context of the JBNQA treaty, a fact expressly noted in the Supreme Court of Canada in the Moses decision. In addition, federal assessment processes were set out despite the treaty requirements that the federal laws or regulations be established by and in accordance with section 22, including the Cree right to be active participants in the decisions made for the territory.

The key message of our submission today is that Bill C-69 should provide for a carve-out, or distinct regime, to address specifically the JBNQA territory. In so doing, Bill C-69 must guarantee the treaty rights of the Cree of the Eeyou Istchee under the JBNQA, as recognized in the Moses decision, to be active and mandatory participants in the assessment of development projects in Eeyou Istchee carried out under federal legislation. The mechanism to ensure this participation is the COFEX panel already established under section 22 of the JBNQA.

The Crees have consistently urged our federal counterparts to use COFEX, established by the JBNQA, to assess all projects subject to external federal review processes in the JBNQA territory, and not to impose a foreign process.

In Moses, the Supreme Court accepted the Cree arguments in respect to the necessity to ensure Cree participation in external federal environmental assessments of projects in a manner compatible with JBNQA processes. The following sentence of paragraph 48 of the judgment sums up this view of the Supreme Court. I quote:

Common sense as well as legal requirements suggest that the CEAA assessment will be structured to accommodate the special context of a project proposal in the [James Bay Treaty territory], including the participation of the Cree.

This statement indicates that a project subject to internal assessment by COMEX, under the JBNQA, should not be reviewed by COFEX when an external assessment process is required under federal legislation. We have been in discussions with Canada since 2010, including through the dispute resolution process further to the passing of CEAA 2012, in an attempt to ensure that the changes called for in the Moses judgment are properly implemented.

What is the solution for the JBNQA territory? The solution is simple and anchored in two basic principles flowing from the JBNQA treaty and the Moses decision. One, every time an internal assessment is carried out by COMEX under the JBNQA territory for a project that has impacts within areas of federal jurisdiction or that requires a federal permit, an environmental assessment should be carried out under the proposed impact assessment act. Two, impact assessments under the proposed impact assessment act in JBNQA Cree territory should be conducted through COFEX, already established under section 22 of the JBNQA, thus ensuring direct Cree participation as mandated by the Moses Supreme Court decision.

In order to ensure certainty and predictability, we urge Canada to engage with us immediately in discussions to make the necessary amendments to Bill C-69, and section 22 of the JBNQA, to put in place the various agreements and regulations required to give effect to the proposals that I have outlined here.

On the Canadian energy regulator act, the most pressing amendment required is to clarify that the consent of the concerned Cree first nation is required when a company proposes to construct a pipeline on category 1A lands, where our communities are located, or if a company proposes to engage in related activities or take possession of such lands. This requires an amendment to proposed section 317 of the Canadian energy regulator act.

In conclusion, Bill C-69 proposes a measure of consultation and accommodation with respect to first nations. However, the JBNQA, as affirmed by the Supreme Court of Canada in the Moses judgment, goes further by providing the Crees with the treaty right to full and mandatory participation in environmental and social impact assessments and reviews carried out in JBNQA territory.

We are available to answer any questions.

Thank you.

[The Chair, Liberal, Deb Schulte]

Thank you very much. We really appreciate that.

Up next we have Jamie.

[Jamie Kneen, Communications and Outreach Coordinator, Mining Watch Canada]

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.

[The Chair, Liberal, Deb Schulte]

Thank you very much.

We'll hear from one more, Ms. Johnston.

[Anna Johnston, Staff Lawyer, West Coast Environmental Law Association]

Thank you very much for this opportunity to be here on the traditional territory of the Algonquin nation. My name is Anna Johnston. I'm a staff lawyer with West Coast Environmental Law, a non-profit environmental organization that has been protecting B.C.'s environment through law for over 40 years.

Today I'm going to focus my comments on the impact assessment act. I will make a couple of recommendations touching on the navigable waters act amendments and the CERA, but mostly focusing on the impact assessment act. I won't be able to go into as much detail as we did in our brief, of course, but I will suggest that if you want more specific language we've put a series of actual amendments in our appendix.

The impact assessment act intends to introduce some important and much-needed shifts in the way that we do environmental assessments here in Canada. But we're concerned that the act leaves a lot of detail to guidance and to the discretion of decision-makers and so fails to provide the kind of certainty we need that assessments on the ground will actually achieve the act's goals or that future governments will implement the act as it's intended.

My first set of recommendations is around how to make the planning phase work. We welcome the introduction of a planning phase, which we believe can help improve public engagement, collaboration, and the conduct of assessment, but the combination of the agency decision, as Josh mentioned, about whether an assessment is required at all and the lack of any requirement for there to be clear outcomes of the planning phase risks that this phase will just end up becoming a screening level assessment.

In order to make it function as it should, we recommend two things. One, as Josh suggested, is limiting that agency determination to only a determination that no assessment is required where there's no federal jurisdiction, so get rid of that discretionary ability to exempt projects. Two, turn proposed subsection 16(2) into a requirement that the agency produce an assessment plan that prescribes the things that need to be considered in the assessment, the way the participation opportunities have to be considered, criteria to guide this decision and timelines, etc.

Second, to ensure sustainability we have a series of recommendations. We fully support the transition towards the broader impact assessment model and the purpose of the impact assessment act to foster sustainability, but we're really concerned that, ultimately, decisions don't have to actually help achieve sustainability or help Canada achieve its climate commitments.

As both Josh and Jamie suggested, we fully support that proposed section 63 be amended to require that decisions be based on those factors that are listed, instead of just taking into account those factors, so that decision-makers can't, for example, take into account whose riding the project is in and votes that count. Also, in regard to adding some legal bottom lines, we completely support that to make sure that there are certain circumstances where projects cannot be approved. For example, when there's a significant risk that they will hinder Canada's ability to achieve its climate commitments.

Then, thirdly, there's tightening up that decision statement, proposed section 65, so that instead of just issuing a decision statement, which in my reading of it a decision-maker could just say, I've considered all the factors and believe the project is in the public interest, it actually requires decision-makers to explicitly justify how they've reached the public interest determination and any adverse effects, residual adverse effects.

I've represented clients on an environmental assessment where they've picked up cans out of ditches for years and held bake sales and dances to fund their participation in a project where the review panel report was essentially ignored by decision-makers. It made a mockery of the process and was a completely pointless exercise of years of my client's life. In order for them to feel like they've been meaningfully heard, they need to be able to see that justification that went into the decision.

The third area I'm going to touch on is how to achieve binding regional and strategic assessments. I think the committee has already heard quite a lot on how to ensure that regional and strategic assessment tools are used and used well. In addition to those, we'd recommend, first of all, enabling the minister explicitly to enact regulations prescribing how those assessments are conducted, so that we know that they're done in a robust and rigorous manner, and also to prescribe periodic updates to them so that the information doesn't become quickly out of date.

Secondly, amend the act to require that the strategic and regional assessment outcomes actually are binding on project-level decisions instead of just factors to consider, because, otherwise, if it's all left to discretion there isn't necessarily much of a point in doing them.

Finally, related to that, we'd recommend actually requiring a government decision—either ministerial or cabinet—at the end of a regional or strategic assessment. This can be done in the form of a response to the committee report or agency report, and it can say whether or not it accepts the report, accepts it with modifications, or rejects it. In order for regional and strategic assessments to provide that necessary policy guidance at the project level, we believe there has to be some kind of government decision at the end of them.

I'll next turn to how to ensure that participation is actually meaningful in assessment. There's a good intention in the act to meaningfully engage the public. We were quite happy to see that there's no more standing test, but we're again worried that the lack of specificity in the act means that assessments don't necessarily need to provide those meaningful opportunities. I just want to make it clear that the goal here isn't to get 100% agreement on decisions, but there ought to be and can be a 100% buy-in of them. To that end, our earlier recommendation that the agency be required to produce an assessment plan will go a long way to helping get buy-in by setting out a participation plan that the public has actually been consulted on in that planning phase.

In addition to that, we would recommend a pretty simple amendment to the public participation processes to say that public participation should be meaningful and in accordance with that assessment plan, and then amending those timeline provisions to allow the agency to come up with alternate timelines in that planning phase. A little bit of flexibility to adapt the length of assessment processes is required.

Finally, I'll touch a little bit on the federal projects and getting the federal house in order. The provisions respecting federal proponent projects on federal lands and projects outside of Canada were quite disappointing. To better ensure the federal government's own projects actually help achieve sustainability, we would recommend, as Josh pointed out, including as a trigger for those projects that have federal funding or where there's a federal proponent on provincial crown land or private land, appointing the agency as the responsible authority rather than letting federal proponents self-assess, and bolstering the public participation opportunity, which currently just says that the federal authority should make a determination and provide a 15-day comment period before that determination is made.

They've already made the decision. They're not even doing an assessment there, so lengthening those public participation processes and requiring the federal proponents to provide project descriptions is a pretty basic amendment that should be a given in any assessment. Then they should have a comment period on the draft determination.

In our brief, we made recommendations on a few other areas, including, really importantly, respecting how to uphold indigenous rights, jurisdiction, and decision-making authority. Given that this committee is hearing from a number of indigenous colleagues, I think I'll defer to their submissions on that front.

I will just quickly turn to a few recommendations respecting the Canadian energy regulator act and the Canadian navigable waters act, as I think it will now be named.

We didn't provide a brief on the CERA. We support the recommendations that a number of our colleagues, including the Pembina Institute, Environmental Defence Canada, and Équiterre provided. In particular, we would like to support amendments that would align the CERA with the impact assessment act in requiring that reviews of energy transmission projects consider climate implications and align with Canada's climate targets.

In addition to those submissions, we have one additional thing that we'd like to bring to your attention. We'd recommend amending proposed sections 201 and 202 of the CERA to allow non-landowners to submit comments on detailed routes and to participate in hearings on detailed routes. Right now, those provisions are limited to landowners, but there are of course going to be circumstances where landowners are not aware of sensitive ecosystems or stream crossings, or where pipelines will cross on provincial crown land. Just to make sure that we're actually routing pipelines and transmission lines where they ought to go, include general-public provisions in those.

Finally, on the navigable waters act, we did submit a brief on that. I just want to make two really quick comments. One recommendation would be to amend proposed subsection 7(7) to add environmental considerations to the factors that have to be considered when assessing projects under that act. We've been told that the amendments to the navigable waters act are supposed to act in conjunction with the impact assessment act and that the navigable waters act is supposed to catch projects that aren't being caught.

If you're not considering environmental factors under the CNWA, or NPA, then it's not a safety net.

Second, either delete the definition of “navigable waters” or amend it. Right now, it takes a much more restrictive definition than what a lot of the common law cases say, so either delete it or apply the broader common law definition to make sure we are capturing them all.

Thank you very much.

[The Chair, Liberal, Deb Schulte]

Thank you very much.

Thanks to each of you for your very detailed advice and recommendations.

We'll open the floor to questioning, and we'll start with Mr. Amos.

[William Amos, Liberal, Pontiac, QC]

Thank you, Madam Chair.

Thank you to our witnesses. We really appreciate the effort and consideration you have invested in these presentations and also in your written submissions. We will be reviewing all of them closely.

Mr. Namagoose's comments have caused me to turn my mind to the issue of substitution and equivalency around federal and provincial assessments.

Mr. Ginsberg, Mr. Kneen, and Ms. Johnston, what is your assessment of the current framing of these provisions? What strengths and weaknesses do you see?

In my estimation, this is one of the most crucial aspects of this legislation, but all too often not enough attention is paid to how we're going to make this law work in the context of federalism. If you could please expand on that, I'd appreciate it.

[Anna Johnston]

I'd be happy to respond.

We believe that the ultimate goal of the intention of “one project, one review”, should be multi-jurisdictional collaboration, not substitution, and that where any kind of collaboration or substitution is allowed, that should be to the highest standards, so we were fairly disappointed in those provisions in the act.

We think if the government wants to move forward with retaining substitution as an option, it needs, first of all, to require any substituted processes to implement them or to fulfill the conditions that are set out in proposed section 63, rather than just be based on the minister's opinion that they will live up to some general standard.

Add a requirement to obtain indigenous consent on substitution decisions and then require participant funding on substituted processes. Right now the act exempts the federal participant funding program from substituted processes, but a lot of provincial jurisdictions, including mine, don't provide participant funding. That should be maintained.

[Jamie Kneen]

I think the drafters have tried to cover too much ground with one concept. They have tried to accommodate substitution of provincial processes and recognition of indigenous processes in the same basket. It's not working because there's a set of requirements that we'd quite cheerfully apply to provincial processes. They have to meet the standards that Anna was talking about, but provincial jurisdiction over natural resources is not the same thing as indigenous self-determination and constitutionally protected agreements like the JBNQA and all the modern comprehensive claims in addition to recognition of treaty rights. Nation-to-nation relationships are not the same as federal-provincial relationships, and they don't work well together.

I have proposed elsewhere that they be treated separately, that there be specific recognition of nation-to-nation relationships in law, not just in rhetoric, and that the provincial jurisdiction be treated in a more collaborative way so there is provincial jurisdiction. We have had harmonized and successful environmental assessment processes and we can work on expanding them to sustainability assessment or impact assessment, and of course, there is lots of room for other co-operation, other collaborative processes. Whether that is regional municipalities or provinces doesn't really matter.

[Joshua Ginsberg]

I would just add one brief point, which is that if it is proposed to substitute the federal process with something new that may be less familiar to participants, there should be an opportunity to comment on the form that assessment will take, which would involve a description of the method of substitution to be posted on the website created by the act, and an appropriate time for the public to comment and potentially adjust it to reflect the needs of the particular assessment.

[William Amos, Liberal, Pontiac, QC]

I'd like to ask for your quick comment on the merits of the impact assessment agency as a dispute resolution entity versus a separate tribunal, such as one that was discussed yesterday.

[Anna Johnston]

I don't think the agency could really fulfill that function. It's going to be at the heart of a lot of the disputes. You don't want the responsible authority providing alternative dispute resolution and mediating disputes that are between it and the public or it and other jurisdictions, as examples. Having a tribunal take over those functions is a terrific idea.

[Joshua Ginsberg]

If we're talking about a review of a report or a decision, after the fact, clearly the agency itself is a bit too embedded in the initial determination to be impartial. If we're talking about something like mediation, which existed under CEAA 1992, then potentially, there's a role there.

[The Chair, Liberal, Deb Schulte]

That's it. Sorry, Will.

Go ahead, Mr. Sopuck.

[Robert Sopuck, Conservative, Dauphin—Swan River—Neepawa, MB]

Thank you. I was disappointed in the testimony of the witness. I didn't hear any enthusiasm for economic development and the human capital that is elevated because of economic development.

Mr. Ginsberg and Mr. Kneen, I could tell that both of you were opposed to the changes we made in CEAA 2012. That's a fair assessment.

Mr. Ginsberg, I'll ask you directly. Which environmental indicator, quantified, in Canada, declined because of the changes we made in CEAA 2012? I'm asking for a number regarding a science-based evaluation of the environment. Which environmental indicator declined?

[Joshua Ginsberg]

One thing that certainly does spring to mind is that we are not—and this has been confirmed recently by the commissioner of the environment—making sufficient progress towards meeting our international climate goals.

[Robert Sopuck, Conservative, Dauphin—Swan River—Neepawa, MB]

[Inaudible-—Editor] CEAA 2012?