Environment Committee on April 19th, 2018

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

I'd like to bring the meeting to order.

We're a little late. Sorry about that. There was an exciting meeting just before us, and I hope ours will be as exciting.

[John Aldag, Liberal, Cloverdale—Langley City, BC]

Not that exciting.

[The Chair, Liberal, Deb Schulte]

Well, maybe not that exciting. I don't want all those reporters running after us.

We are carrying on with our study of Bill C-69, and we have quite a few witnesses in front of us. I always wonder, what is the right word: guests, witnesses, experts?

Thank you very much for joining us today, and I'll just let the committee know who's with us.

We have Nigel Bankes, professor, faculty of law, University of Calgary, and he's with us through video conference. From the Canada West Foundation, we have Colleen Collins, vice-president, research. From the Ecology Action Centre, we have Mark Butler, policy director. We also have Lisa Mitchell. executive director and senior lawyer for East Coast Environmental Law. Finally, from the Pembina Institute, we have Duncan Kenyon, managing director, and Nichole Dusyk. Dr. Dusyk is a postdoctoral fellow responsible for federal policy.

Welcome to each of you. We're very much looking forward to the discussions today.

We'll start with Mr. Bankes.

[Professor Nigel Bankes, Professor, Faculty of Law, University of Calgary, As an Individual]

Thank you.

Good morning and thank you for the opportunity to appear before this committee. Thank you also for accommodating my appearance via teleconference.

I am a professor of law at the University of Calgary, where I teach, amongst other subjects, energy law. I also comment regularly on developments in energy law and policy on our blog, which is the blog of the faculty of law. I appear this morning in my personal capacity, and I also made a personal submission to the energy modernization panel.

My submission focuses principally on part 2 of Bill C-69, which, as you know, is concerned with the abolition of the National Energy Board and the creation of the new Canadian energy regulator. My written brief makes six main points and I think I have time for three of those this morning.

The first point the bill needs to address, in my view, is the close connection between energy policy, greenhouse gas emissions, and Canada’s climate change commitments. I think it is self-evident that there is a close connection between energy policy and climate policy, simply because the extraction, processing, production, transportation, and consumption of carbon-based fuels results in emissions of greenhouse gases, including carbon dioxide and methane.

Part 1 of Bill C-69, the impact assessment act, addresses this connection in two linked provisions. Proposed section 22 deals with the content of an impact assessment, and proposed section 63 deals with the final project decision to be made by the minister or Governor in Council.

There is no similar provision in part 2 of Bill C-69, notwithstanding the interconnection between climate and energy issues. I think this omission is especially significant when we consider that the CER will continue to perform the NEB's energy information function under proposed sections 80 to 86 of part 2 of Bill C-69. We can anticipate that the CER will continue, as part of this function, to prepare energy supply-demand forecasts for Canada. It's crucial that these forecasts be informed, and indeed constrained, by Canada's climate change commitments, as well as relevant provincial commitments.

Accordingly, I recommend that the committee consider proposing a series of amendments to part 2 to recognize the connection between energy policy and climate policy. I have three concrete proposals.

First, part 2 of the bill might include appropriate references to climate and energy policy in the purposes section, proposed section 6, and in the mandate provision of the bill, proposed section 11.

Second, I think that part 2 of the bill might borrow from the provisions of part 1 of Bill C-69, which I have already mentioned, and list climate change obligations as a relevant consideration when considering new projects.

Third, I propose a substantive provision that might be inserted immediately after the current proposed section 55. This might read as follows: “When making a decision, an order, or a recommendation under this act, or in discharging its mandate under sections 80 to 84, the commission must consider the Government of Canada's ability to meet its environmental obligations and its commitments in respect of climate change.”

I am now going to change direction a little and address two issues that relate to the transparency of the NEB's and the CER's processes, and the resulting judicial supervision of these processes. To do that, I need to make two background comments. The first is that we find ourselves here today discussing part 2 of this bill, because the elected government concluded that Canadians had lost faith in the review system for energy projects. Accordingly, we should be checking to ensure that the procedures that are being proposed will help restore that faith.

Second, the drafting of part 2 of Bill C-69 exhibits, notwithstanding its huge length, a certain economy in approach. What l mean by that is that notwithstanding the new name and the abolition of the NEB, much of this legislation is simply cut and pasted from the existing National Energy Board Act. One of the implications of this is that there are missed opportunities to improve the current approach.

I'll now make have two substantive comments following from those propositions.

The first is that the bill, as drafted, fails to clarify what is referred to as the exceptions process in the current act. This process allows the NEB to exempt projects from the requirements of the act, including the requirements for a public hearing and the need to obtain a certificate of public convenience and necessity. While this seems fairly innocuous since it's confined to pipelines not exceeding 40 kilometres, it was also the process that was used in relation to the controversial Line 9 project, which involved the reversal of over 600 kilometres of the Enbridge line between North Westover, near Hamilton, and Montreal, and a related expansion of throughput to allow oil sands product to reach further east. The exemption could be triggered because the project was largely using existing pipe and right-of-way.

The difficulty with this current provision, which is section 58, is that it's completely opaque from the outside. It fails to communicate to the public, including municipalities and others, how this discretion will be exercised and what terms and conditions might be included as part of granting the exemption. Bill C-69 does nothing to clarify this in what is now proposed section 214 of the bill, which is a copy of the current section 58.

Accordingly, I recommend that the committee consider how the bill could be amended to provide more transparent direction to the CER in exercising this important discretionary power. One possible avenue to explore will be to require the CER to address its mind to all of the factors listed in proposed section 262, which is the list of relevant considerations for pipeline projects requiring a certificate.

My final point relates to another missed opportunity, this time in the context of judicial supervision of the process. Under the current rules, decisions of both the NEB and the Governor in Council, where appropriate, can be appealed to the Federal Court of Appeal. The first step in this process is for an aggrieved party to file an application for leave to appeal with the Federal Court of Appeal. It's only if the court grants leave that a panel of the court will consider the merits of the appeal. By tradition, and I think it's no more than that, the Federal Court of Appeal does not provide reasons when it grants—or more commonly, denies—an application for leave. As a result, unsuccessful applicants feel aggrieved when they are denied further access to the court without knowing the reasons. The city of Burnaby has recently experienced this in the context of the Trans Mountain expansion project.

Once again, the current provisions are reproduced verbatim in part 2 of Bill C-69, proposed sections 72 and 188. In my view, this undermines the faith of the public and the integrity of the project review scheme in a most unfortunate and unnecessary way. Accordingly, I recommend that the committee should propose amendments to Bill C-69 to require the Federal Court of Appeal to provide reasons for its decision on leave applications under this act.

While I acknowledge that it is perhaps unusual to give this level of direction to a court, I think that if the court can't see the problem itself then it needs some direction. Other superior courts in Canada provide reasons for exercising their authority under similar leave applications. For example, the Court of Appeal of Alberta routinely provides reasons on leave applications involving the Alberta Energy Regulator.

I make these last two points—the exception point and this point about reasons—in light of the concerns that are alleged to be driving this modernization process. I think that each of these proposals will add transparency and accountability and, hence, improve the public's trust in the integrity of the process.

That concludes my remarks.

[The Chair, Liberal, Deb Schulte]

You do have a minute.

[Prof. Nigel Bankes]

I'm done. Thank you.

[The Chair, Liberal, Deb Schulte]

Thank you so much.

Who would like to go next?

Ms. Collins.

[Colleen Collins, Vice-President, Research, Canada West Foundation]

Good morning, Madam Chair, and honourable committee members. I am Colleen Collins, vice-president of the Canada West Foundation, an independent, non-partisan public policy research organization with a western Canadian perspective.

Bill C-69 proposes to overhaul Canada's energy project assessment process, create a new impact assessment agency, and replace the National Energy Board with the Canadian energy regulator. Changes to the existing process are necessary to restore both public trust in the project approval system and the confidence of potential investors in the Canadian economy.

We are pleased that the government has put forward a comprehensive vision for a process that is intended to increase transparency, fairness, and inclusiveness. However, it fails to address the implications of that process on trust, economic activity, and national competitiveness, the very reasons that drove the change in the first place. Proponents and investors are not worried about tough, evidence-based regulation. What discourages investment is decision-making that is vague, uncertain, and subject to politically motivated decisions at the end of a long and expensive process.

Bill C-69, as proposed, retains some of the same features that are causing problems in the current system. Most important, the bill continues to leave the political decision until after the end of the regulatory process. Without question, decisions about what is or is not in the national interest should be made by our elected leaders. That is key to our democracy. However, those decisions need to be made up front, before the long and costly regulatory process begins. Bill C-69's proposed planning phase prior to the impact assessment provides an ideal window for this upfront political decision.

The national interest decision should not be subject to changing political views during or after the process. We have seen political decisions undermine the credibility of the regulatory process. If the government does not trust the regulator to make fair, independent, evidence-based decisions, then why should Canadians and investors? There needs to be certainty that during the long process of seeking regulatory approval the goalposts will not change and a new government will not overturn prior decisions and commitments.

Bill C-69 further compounds this problem by removing the requirement for a decision by the regulator at the end of its assessment process. Currently, the regulator recommends to the government whether it should approve a project or not. Bill C-69 does not extend this authority to the new IAA, and this is a mistake. The government's job is to put in place a framework for the regulatory process. It must let the regulator do its job. That job should go beyond communicating a project's impact, benefits, and mitigation. After examining the evidence presented, assessing and balancing positive and negative impacts, as well as potential mitigation, the regulator is in the best position to make an informed and impartial decision on whether or not the project should proceed.

Another critical driver of uncertainty and lack of trust has been a shifting of the development of economic, indigenous, and environmental policy onto the regulator. A regulatory process cannot and should not be expected to determine policy. Ongoing political debates about climate, energy, and indigenous relations have found their way into NEB project hearings for lack of any other venue in which to resolve these issues. These policy debates are much broader than any specific project. The federal government must address broader policy questions before they encumber the regulatory process with issues beyond its scope. The combination of clear policy on relevant issues and a regulatory process that deals with project specifics is critical to improving both trust and the investment climate in Canada.

A positive step forward is the shift to an assessment process that considers both the positive and negative impacts of a project, unlike the focus on negative impacts under the current system. In addition, including the formal recognition of health, social, and economic effects will also contribute to a more balanced assessment and a balanced public debate. The new regulator will also have to figure out how to deal with the increased volume of participation in regulatory reviews stemming from the elimination of the well-established principle of “standing”.

While obtaining input from a wide variety of people is a positive step, the regulator will need to establish a strong process to manage them. It should ensure that diverse voices are heard without the consultation becoming an impediment to good decision-making. It will need to ensure that the most relevant voices are not lost. Finally, whatever process is used, it must be clear to all that consultation does not mean veto power.

Thank you.

[The Chair, Liberal, Deb Schulte]

Thank you.

Mr. Butler, do you want to go next?

[Mark Butler, Policy Director, Ecology Action Centre]

We were going to start with Lisa.

[The Chair, Liberal, Deb Schulte]

Okay, that's fine.

Lisa.

[Lisa Mitchell, Executive Director and Senior Lawyer, East Coast Environmental Law]

Thank you. Good morning, Chair and committee members. Thank you for agreeing to hear from us today.

I'm with the East Coast Environmental Law association, an environmental law charity based in Halifax. We work throughout Atlantic Canada, providing environmental law information, advice, and support. Over the past several months, we have been providing support to the Ecology Action Centre—and my colleague, Mark Butler is with you today—and to the offshore alliance.

Given the breadth of your review of Bill C-69, our focus today is very narrow. Our focus is on the role of the offshore energy regulators in impact assessment; so in particular, the Canada-Newfoundland and Labrador Offshore Petroleum Board and the Canada-Nova Scotia Offshore Petroleum Board, which I will refer to collectively as the petroleum boards. As you know, the petroleum boards are the regulatory bodies responsible for the development of oil and gas resources and the management of petroleum operations off the coasts of Nova Scotia and Newfoundland and Labrador.

Currently under CEAA 2012, the petroleum boards do not conduct environmental assessments of designated activities. In this regard, they are treated differently from the other two energy regulators, the Canadian Nuclear Safety Commission and the National Energy Board. The NEB and the CNSC are responsible authorities under CEAA 2012, with the power to conduct EAs of designated projects in combination with their own regulatory processes. Of course, this was not always the case. Prior to CEAA 2012, the NEB and the CNSC did not conduct EAs. The merging of project assessment processes and regulatory processes began under CEAA 1992, through the substitution provisions, and proceeded to be formalized for the NEB and CNSC under CEAA 2012. Those changes were made with the intent of streamlining project assessment.

The federal government has stated an objective of regaining public trust in environmental assessment. The appointment of the expert panel on EA reform was part of that objective, and the introduction of Bill C-69 is presumably the culmination of the government's efforts to achieve this objective. Perhaps in an effort to strike a balance, Bill C-69 requires referral to a review panel of all designated projects that include physical activities regulated by CNSC, the Canadian energy regulator or CER, and the petroleum boards. This would be a significant change for the NEB and the CNSC, reducing the role of those regulators in the assessment process and to some extent decoupling the assessment and regulatory processes.

The assessment and regulatory processes are not entirely separated, as proposed section 51 of the impact assessment act requires the review panels to provide conclusions and recommendations to support licensing and other processes under the Canadian energy regulator act and the Nuclear Safety and Control Act. This is for the most part positive, in that the planning or assessment process appears to be at the forefront with the role of informing the regulatory considerations. However, there could be more clarity provided in the act to ensure that review panels under the impact assessment act would not serve as regulatory hearing processes.

Let me move to the petroleum boards. The proposed implementation of the impact assessment act through Bill C-69 creates some confusion for those of us seeking to understand the role of the petroleum boards in impact assessments. As written, the IAA would treat the petroleum boards in a way that is different from the CER and the CNSC initially, but it would subsequently be amended to treat all energy regulators in a similar manner. I'll base my comments on a presumption that the amendments will be passed, but I do seek clarification on why there are provisions in the bill, specific to the petroleum boards, that would come into force at a later date.

In any case, once the amendments are in effect, the impact assessment act would require referral to a review panel for designated activities that are regulated by the petroleum boards. We agree that a review panel should be established for major offshore activities, including exploration and extraction drilling. We also agree with the requirement that the review panel hold public hearings.

As it is written, the review panel must include, at a minimum, two members of the petroleum board, selected from a roster. We do not believe that it is in the best interests of the assessment process, communities, potentially impacted industries, or the environment to have regulators on the review panel. To that end, we would recommend that proposed subsections 46.1(3) and 48.1(3) be deleted.

Regulators have an important role to play in providing expertise to the impact assessment process, and we support consultation and co-operation with the regulator as prescribed in proposed section 21 of the impact assessment act.

However, the assessment process should be conducted independently. Selection of the review panel members should be done on a case-by-case basis with the focus of ensuring that those selected have relevant expertise, local knowledge, no conflict of interest, etc. Limiting the role of the regulators in the assessment process to providing their input and expertise rather than full participation as panel members helps to protect the independence of the assessment process.

I'd like to speak briefly about designated activities. Not all offshore activities are necessarily major energy projects that require a review panel, but many do require independent impact assessments. Under the impact assessment act, energy projects are assessed by a review panel, or they're not assessed at all. We're concerned that this means that designated activities will be limited to the worst of the worst.

Let's take seismic surveys for example. The negative impact of seismic surveys on fish species and marine mammals is not well understood, but recent studies have indicated that seismic survey activities require more thorough scrutiny than they currently receive. We would recommend that seismic surveys be added to the list of designated activities to undergo federal impact assessments; however, there is no path currently in the impact assessment act to assess these activities other than by a review panel. We ask the committee to consider a revision to Bill C-69 to enable offshore activities that may not qualify as a major energy project to be subject to an independent impact assessment by the impact assessment agency.

I'm going to turn the rest of my time over to Mark Butler.

[The Chair, Liberal, Deb Schulte]

You have just over three minutes.

[Mark Butler]

Thank you.

Chair and members of Parliament, thank you for the opportunity to present today. I'm the policy director at the Ecology Action Centre. Prior to working at EAC, which is some time ago, I worked in the fishing industry and as a marine consultant.

EAC is a member of the offshore alliance, which is a newly formed coalition made up of environmental, fishing, community groups, as well as indigenous spokespeople. Yesterday, Rod Northey from the EA panel presented. I thought the panel that he was a part of did a good job of consulting with Canadians, including indigenous peoples. I drove to Fredericton through the tail end of a hurricane to present on a more central role for science in impact assessment and on offshore regulation. I spend my precious minutes mentioning this because I was saddened by the lack of uptake by the government of the panel's report. If this becomes a pattern, it engenders cynicism and damages democracy.

The EA panel in their report recognized the value in keeping EA and regulatory processes separate. The panel also recognized that a regulator can get too close to the industry it is regulating, creating regulatory capture, although they did not label it as such. Relevant quotes from the panel's report can be found in our written submission.

When elected, the government promised to make EA credible again. Outside of the petroleum industry, the boards have a credibility problem. When these proposed changes were announced, The Chronicle Herald, which is a Nova Scotia newspaper, ran a cartoon showing the regulator looking through binoculars that were actually oil barrels. Once again, cartoonist Bruce MacKinnon said it all in one picture.

Giving the boards more power, such as seats on review panels, was not what we expected and is a step backwards for EA in Atlantic Canada.

Before I close, I have a few words on the witness list. I truly appreciate the opportunity to present along with the East Coast Environmental Law Association today. However, I am concerned that the committee is not hearing from any representatives from the fishing industry in Nova Scotia. As we saw in the Gulf of Mexico and elsewhere, a major blowout or spill can have a devastating impact on the fishing industry and other industries such as tourism. It is not just a direct impact on fish stocks or beaches that affects these industries. It is the damage to the product or brand as a result of the spill.

Thank you very much.

[The Chair, Liberal, Deb Schulte]

Thank you very much.

Just to be clear, we did invite over 150 groups to present briefs. Not everybody has a chance to sit in front of the committee, but the briefs are coming through translation right now, and we will be considering those briefs that have come in.

Next up, who would like to start?

[Duncan Kenyon, Managing Director, Pembina Institute]

I'll start.

[The Chair, Liberal, Deb Schulte]

Thank you.

The floor is yours.

[Duncan Kenyon]

Good morning, Chair, and committee members. Thank you very much for allowing us to present today on Pembina Institute's recommendations for Bill C-69.

My name is Duncan Kenyon, and I am the director of Pembina Institute's work on responsible fossil fuels. I'm here with my colleague Nichole Dusyk, who is a postdoctoral fellow with Pembina Institute.

The Pembina Institute is a national, non-partisan, non-profit think tank that has over 30 years of experience providing research and recommendations to inform energy policy and regulations in Canada. We have been actively engaged in the environmental law reform process for the last two years, and our submission to the NEB expert panel, a report entitled “Good Governance in the Era of Low Carbon”, was based on original research that involved interviewing 23 experts from around Canada and the world. Our comments today are largely based on that research, and in fact, as energy nerds, it's always a good day when we get to share our perspective on energy policy with decision-makers.

Our involvement to date has focused on mobilizing the National Energy Board, and our comments today will continue in that vein. We will focus our comments on part 2 of the bill pertaining to the Canadian energy regulator.

We believe that the Canadian energy regulator act is a good piece of legislation that will move us toward more credible review processes. It is clear that the government is aware of major issues that have been identified with the NEB and is seeking substantive reform that will address many of those issues. In particular, we support the revised governance regime for the CER, the transfer of authority for impact assessment to the impact assessment agency of Canada, the expanded list of factors that must be considered when issuing a certificate or authorization, the removal of the standing test for public participation, and the emphasis on partnering with indigenous groups and jurisdictions.

However, the act contains significant omissions that will need to be addressed if it is to achieve its intended purpose of providing credible, evidence-based project reviews and ultimately restoring public trust in the federal energy regulatory process.

In our testimony today we will address four issues: climate change, the composition of review panels, public participation, and energy data. We ask you to refer to our written statement for additional recommendations to strengthen the accountability and transparency of CER decision-making, to ensure the CER is diverse and has a range of competencies, and to tighten up the conflict of interest provisions.

Our first recommendation is to include climate considerations. Similarly to Nigel's discussion on that, the CER act makes no reference to climate policy, commitments, or impacts. In fact, the word “climate” does not occur once in the entire act. This is a major omission. If the economy and the environment are to go hand in hand, the federal energy regulator must have the mandate to integrate climate considerations throughout its activities and functions. This includes the climate impacts of energy infrastructure but also the financial and physical risks that climate change poses to energy infrastructure.

We recommend including climate considerations in the purpose of the act, in the reporting and advising responsibilities of the regulator, and in the factors considered in issuing a certificate or authorization under the act.

Our second recommendation is to limit CER representation on project review panels. We strongly support transferring the responsibility for impact assessment to the impact assessment agency of Canada. Having a single agency responsible for conducting all assessments under the impact assessment act will help ensure consistent application of the law for all sectors and projects. We recognize the specific expertise of the life-cycle regulators and feel it is acceptable that the CER and other life-cycle regulators have a seat on review panels. In fact, that's critical. It is not acceptable, however, that they potentially comprise a majority or the entirety of an impact assessment review panel. The existing wording of the impact assessment act allows for this possibility and must be amended to ensure that project review panels have balanced representation and expertise, including representation from relevant regions.

We recommend amending proposed subsection 47(3) in the impact assessment act to limit CER representation to one of three seats.

Our third recommendation is to provide specific mechanisms to ensure meaningful public participation.

We are very pleased to see the removal of the standing test for public participation. While the intent of the bill is clear, removing barriers to participation is not enough to ensure the public has a real voice in major energy projects. The practical need for improving public participation in the assessment of major projects has been noted by the commissioner of the environment and sustainable development as well as both the expert review panels.

We are past the point of acknowledging the need for public and community engagement. We need to make this happen. This requires explicit and careful design from the outset and throughout project life cycles. We believe the best way to ensure this happens is to create a public intervenor office, as recommended by the NEB expert panel, to ensure meaningful public engagement.

We recommend creating a public intervenor office to advise on public engagement activities and ensure public access and representation throughout the project life cycles. We also recommend making the participant funding program mandatory.

Our final recommendation is to create an independent energy agency. We were disappointed to see no specific provisions in the Canadian energy regulator act to improve the state of energy information in Canada or to ensure that federal energy regulation is based on high-quality, independent data and analysis.

The expert panel on NEB modernization stated:

We feel that the Canadian Energy Information Agency needs to have the mandate and ability to tell it like it is on energy matters, and inform the development of energy policy and strategy, without being involved in the determination of energy policy, or administering energy infrastructure regulation. This will help to assure that information is seen as neutral and credible.

We strongly agree with that statement.

We recommend amendments that would enable and fund the creation of a new Canadian energy information agency and expand energy data collection at Statistics Canada. In addition, we recommend that the new agency be tasked with producing annual scenarios for energy supply and demand, including a reference case that considers domestic and international action on climate change.

Thank you for the opportunity to appear today and we welcome your questions.

[The Chair, Liberal, Deb Schulte]

Thank you.

I want to thank all of you for very detailed briefs and statements today. There are lots of good ideas there, for sure.

I want to recognize a new member at the table. We have MP Dave Van Kesteren. Thank you very much for joining us today.

We'll start questions with Will Amos.

[William Amos, Liberal, Pontiac, QC]

Thank you, Madam Chair.

Thank you to our witnesses, both video and live. It's clear you've invested significant time in your presentations. We all know how much you have focused on this issue for the last couple of years. We take that very seriously.

Professor Bankes, I've read with great interest for many years your commentary on energy governance in Canada and on impact assessment. I wanted to give you an opportunity to comment further on sustainability and regional impact assessments. You've written on this topic in the past, and I'd like to know a bit more about where you think this legislation hits the mark, and, more particularly, where it misses it and how it can be fixed.

[Prof. Nigel Bankes]

Thank you, Mr. Amos.

I think it's a positive step to see that both the IAA panels and the CER are directed to take into account strategic assessments and the like. As you know, I have written on the importance of engaging in strategic environmental assessments. I think there is an integration here.

I also think, if I recall correctly, that there is a provision that allows a party to inquire of the minister to establish a strategic environmental assessment for a particular type of issue and that the minister is required to provide a written response to that. All of that seems to me to be positive in these two bills.

[William Amos, Liberal, Pontiac, QC]

The comment was raised earlier by Mr. Butler that a major debate is happening, particularly on the east coast—that's where I'm hearing it the most—around the appropriate role for the regulator in the context of an impact assessment panel.

Mr. Butler's opinion is one I share, which is that there is an appropriate role and it would be important to have a regulator on a panel, but that having a majority of seats on a panel would not be appropriate. What is your opinion on that matter?

[Prof. Nigel Bankes]

I guess my opinion—certainly in relation to the CER, which I've thought more about than the offshore boards—is that I would agree with Mr. Kenyon's comments that it's important to have that CER involvement because of the knowledge base that it brings and because it will be the life-cycle regulator for a project, if approved. I'd also support Mr. Kenyon's comment that it shouldn't be a majority. It's an interest and an expertise that's necessary, but I think the whole idea is for this not to be a dominant consideration.

[William Amos, Liberal, Pontiac, QC]

Thank you.

We will move now to the issue of the appropriate role of the judiciary and other dispute settlement entities that could be contemplated in the context of this bill. The panel came with recommendations suggesting that a quasi-judicial entity was important, but this bill doesn't follow that path.

This issue has been discussed by previous witnesses before our committee, including Mr. Northey yesterday, and Mr. Olszynski, your colleague, the day before. Do you have opinions regarding the appropriate role of a non-court entity, some kind of specialized tribunal, to deal with disputes that arise in the context of this?

We also have the cabinet's role, which is integrated into this discussion. I'd like to hear your comments on that.

[Prof. Nigel Bankes]

I've made one comment, of course, in my brief and remarks this morning about requiring the Federal Court of Appeal to provide reasons to support its decisions. However, you are asking me much more, I think, about the creation of an environmental court or an environmental appeal board as a part of a supervisory scheme. My own view is that I rarely see the value of EABs, those sorts of bodies, in the context of reviewing decisions made by departments rather than by quasi-judicial bodies. I've written in the past about the way in which EABs can shed light on internal decision-making within departments.

I don't see that as being necessary in the context of either panels or the CER. What I want is reasoned decisions and no undue deference to decisions made by the Governor in Council or the minister.