Environment Committee on April 19th, 2018

[The Chair, Liberal, Deb Schulte]

No, you're all good. Thank you.

Mr. Amos.

[William Amos, Liberal, Pontiac, QC]

Thank you, Madam Chair.

I just want to start by setting the record straight, at least on the Kearl oil sands project, and perhaps Mr. Kenyon would have comments in this regard.

I appreciate that Mr. Sopuck did environmental assessment work for the proponent on that file. I believe it was Imperial, and my understanding is that it went to federal court. The panel decision was overturned, and the panel decision was one that approved the project. I'm not sure what the subsequent developments were in that, but I would expect it may have been appealed further.

My understanding was that the Canadian courts found significant problems, and really, what this brings us to is a helpful kind of thought process. We're trying to fix proceedings that aren't working for the environment and for Canadians. I wonder if you could comment on that, Mr. Kenyon.

[Duncan Kenyon]

That would be for Mr. Bankes. I don't remember the specifics of that, to be honest. It predates my day in the discussions on oil sands. I think significantly, though, when we look at the role for us to review bad decisions, or potentially mistakes on the decisions..... For example, on the northern gateway decision, that was a case where the courts found that there was not proper consultation with first nations. It was not a political decision. It was about a justice issue. I would like to point that out.

Mr. Bankes, you can comment on Kearl specifically.

[Prof. Nigel Bankes]

My recollection of Kearl is that it was a case brought by Pembina, and yes, it did result in the review going back to the panel and it rectified the omissions in its assessment.

[William Amos, Liberal, Pontiac, QC]

Thank you. I appreciate that, and I appreciate also the clarification that the northern gateway decision was not a political one. It was a judicial one.

In any event, I'll move on because I think there's more evidence that should be put on the record in relation to achieving clarity around the decision-making criteria for a cabinet decision. There have been a number of interventions by several witnesses, several organizations, who were seeking more specificity on what the proper basis of a cabinet decision should be. Obviously that would enable the courts, if they are to do their job at a subsequent stage, to evaluate the reasonableness of such a decision.

I appreciate this is sort of a direction that the Canada West Foundation has led us in, but I would like to direct this to Mr. Bankes in particular.

What is your assessment of the public interest test and the criteria that are attached?

[Prof. Nigel Bankes]

I think that is a very interesting question. It's interesting to look at the differences between the IAA legislation and the CER legislation.

For the CER legislation, what we have now is an expanded list of the criteria that are found in the National Energy Board Act. I think that the expanded list does clarify, in fact it largely reflects, the practice of the board, which has been to take into account a broader range of considerations. What's missing in the CER legislation is any specific reference to climate change, and we've already discussed that.

What's more interesting, actually, is the direction given to the Governor in Council in the CER legislation, because the CER legislation is completely silent on that question. It doesn't tell us how the cabinet is to be making those decisions. By contrast, under the IAA legislation, there are three or four specific considerations that the minister or the Governor in Council must direct their minds to.

One of the things I say in my brief is, why aren't we following that same approach in the context of the CER? In other words, why aren't we giving cabinet more explicit direction and then, as you say, making it possible to have a more objective review of that decision by a court, if necessary? That adds to transparency, accountability, and public trust.

[William Amos, Liberal, Pontiac, QC]

I appreciate that comment. I would agree that some criteria to put a frame around cabinet decision-making is entirely appropriate, and certainly better than none.

I'll invite the other witnesses to engage on this one, because what we've been told is that the criteria that have been advanced for the impact assessment aspect, they, themselves, are not specific enough and clear enough, and they don't really put enough of a framework around it.

Perhaps the Pembina Institute would be willing to comment. I know this is an issue that your organization has focused on in the past.

[Dr. Nichole Dusyk]

Yes. In our written brief, we did make a recommendation along those lines. The factors that we thought would be important to consider would be climate impacts, indigenous rights, and impacts on indigenous peoples, as well as public input. We would like to see that included in a parameter around the decision that goes into making a decision.

I agree with the critiques that perhaps what's in the impact assessment act doesn't go far enough, but what we are asking for in the CER act is basically to at least, at the very least, have something that somehow mirrors that, so that we can avoid the situation where we have decision statements that say, “We considered it and we made our decision” and they don't actually explain how things were considered, to what extent they were considered, or what factors were weighed in.

[The Chair, Liberal, Deb Schulte]

We're going to have it cut it off there.

Next up is Ms. Duncan.

You're going to get six minutes.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

There is so much to talk about and so little time. I really appreciate everybody's input, particularly the fact that you are also talking about the Canadian energy regulator. It's insane that we're also reviewing that act. We don't even report to that minister.

One of the things that I think has been left confused, and probably Professor Bankes can speak to this, and also the representative from East Coast Environmental Law, is that there seems to be confusion about the expert panel recommending a permanent tribunal as opposed to ad hoc appointments to a panel. I think people are getting confused about that permanent tribunal versus judicial review.

Maybe it would be good if the lawyers who are testifying to us would explain that. Those are two totally different things. I can relate to one of the reasons the expert panel recommended a permanent tribunal, because I'm from Alberta and we're used to a permanent energy review panel. They are used to people coming forward. They're used to sitting down with participants and saying, “Can you get together with those other groups and combine and hire one lawyer and one engineering expert?”

The problem is that, with this bill, nobody ever knows how their project is going to be reviewed. It might never be reviewed at all as a result of the so-called planning process. It might be reviewed by the agency. It might be reviewed by some type of panel. It's not really clear what the participation rights are under any of those. There is a need for clarification. If there are participation rules, those rules should apply across the board, including probably to the CER.

There have been a couple of suggestions, some that might actually be put in the statute, or on the other hand, are actually under the regulation power of the cabinet, that the cabinet be required to issue regulations that state those rights. One thing I would point out, and I would be interested for people to comment, is that under the environmental co-operation agreement to NAFTA, Canada long ago signed on to deliver, for the rights before tribunals, the right to present evidence and the right to cross-examine, so it is odd that none of this is in there.

I'm troubled by the suggestions of throwing in something like an adjective for “meaningful” participation, and then feeling that there's a need to define what meaningful participation is. You're cutting off the opportunity to actually have clear guidelines as to what the rights are. I would appreciate some feedback on that and who you think should best decide what those participation rights should be and what the access to costs should be. Where should those be laid out?

Would anybody like to comment on that?

[The Chair, Liberal, Deb Schulte]

You have three minutes to answer that very complicated question.

Go ahead. Who's up first?

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Somebody talk. The clock is ticking.

[The Chair, Liberal, Deb Schulte]

Yes, the time is running out.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Okay, I'll ask another question.

I notice that Pembina has recommended that UNDRIP be specifically referenced. We did have a number of other first nation leaders appear, and we're having more. Each of them seems to be echoing what you're saying, that UNDRIP should be specifically referenced.

You might want to clarify one of the concerns that some people have raised, that this Bill C-69 appears to be premised on the Conservative reiteration of CEAA, not the original iteration. That's where there's some confusion. The Conservative iteration of CEAA was that the decision is by cabinet, not by the panel, so I find it puzzling that the Conservatives are raising the concern that in this bill the decision is left at the political level. In other words, it's the same—

[Voices]

Oh, oh!

[The Chair, Liberal, Deb Schulte]

You'll have another chance. She has the floor.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

It used to be that way. They introduced that. What do you think? Do you think the final decision on a major project should be by the review panel or at the political level?

Nigel?

[Prof. Nigel Bankes]

That's a political decision.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Yes. Do you like the way CEAA was before, or did you like it under the Conservative regime? Which way should it go?

[Prof. Nigel Bankes]

I'm focusing more directly on the CER legislation. The decision should be a political decision, but as we've just talked about with Mr. Amos, there should be some guidance provided. There should be reasons given by cabinet or the minister, and that decision should be reviewable by a court.

I'm not just saying it's political and therefore anything goes. It's political within those constraints.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Thanks.

[The Chair, Liberal, Deb Schulte]

You have a minute, Linda.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

I would like to hear a little more about those two recommendations by Pembina, including for the Canadian energy information agency and the rationale for how that is critical.

[Dr. Nichole Dusyk]

Basically there are two functions we look at when we're looking at energy information, and this is important because good decision-making has to be based on good data and based on high-quality data that is bias-free. What we have suggested is expanding the role of Stats Canada in terms of its energy data collection capacities, utilizing its existing expertise, and then creating a separate small body housed under NRCan that would do analysis.

That said, I will say that there are a lot of different proposals out there for how this could be organized. Rather than actually being wed to any particular institutional structure, we really want to see energy data collection and analysis separated from both regulatory and policy functions.

[The Chair, Liberal, Deb Schulte]

Thank you very much. I have to cut you off there. My apologies.

Mr. Sopuck.