Evidence of meeting #106 for Environment and Sustainable Development in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was rights.
A video is available from Parliament.
Conservative
Joël Godin Conservative Portneuf—Jacques-Cartier, QC
In other words, it does not improve the situation as to your rights. Is that correct?
Environmental Assessment Manager, Department of Lands and Natural Resources, Nunatsiavut Government
Yes, that's our concern. By not seeking consent, it continues to allow the federal government to have power over the indigenous groups.
Conservative
Liberal
The Chair Liberal Deb Schulte
I know six minutes goes very quickly.
At this point I am going to thank our guests very much for their time. Your testimony has been incredibly helpful to us. You're on the ground, you're dealing with this daily, and your advice is welcomed.
The reason I am stopping now is that we do have another panel. I want to make sure we're fair to both panels and give each panel 45 minutes, because we will have to close the meeting just before two o'clock to be able to get over to the House in time for QP.
Thanks again to our guests.
We're suspended.
Liberal
The Chair Liberal Deb Schulte
We're going to resume. Thank you very much. We're going to introduce our witnesses for the second panel.
We'll start with the Canadian Environmental Law Association, and we have Richard D. Lindgren, Counsel. We have the Métis National Council, with Kathy Hodgson-Smith, who's a Barrister and Solicitor at Hodgson-Smith Law. We have the Mikisew Cree First Nation with Melody Lepine, who is the Director of Government and Industry Relations. We have Mark Gustafson, who is an Associate at JFK Law Corporation. We have the Tsleil-Waututh Nation with Chief Maureen Thomas, and John Konovsky, who is a Senior Adviser.
Welcome to all of you. I'm just trying to figure out who might like to start with us. You'll have 10 minutes.
Mr. Lindgren, the floor is yours.
Richard Lindgren Counsel, Canadian Environmental Law Association
Thank you, Madam Chair.
Good afternoon, members of the committee. The Canadian Environmental Law Association welcomes this opportunity to speak to the impact assessment act.
As you may know, CELA is an Ontario legal aid clinic. We've been around since 1970. We specialize in environmental law, and on behalf of our clients, we've been involved in federal EA proceedings under the EARP guidelines, CEAA 1992, and CEAA 2012.
It is on the basis of that experience that we have assessed and evaluated the impact assessment act, and in our conclusion, the act is inadequate and incapable of regaining public trust in the federal process.
I've set out the detailed reasons for that conclusion in our written submission that I filed with the clerk and that I provided to each member of this committee. I'm not sure if you've had a chance to read it or whether it's caught up with you yet. I should say at the outset that I apologize for the length and complexity of those written submissions. I don't get paid by the word. I'm just simply trying to identify all the things in the act that need to be fixed, and frankly, that's a long list.
In our written submission we've also offered 35 different recommendations in relation to the act. You'll be relieved to hear that I don't intend to go through all 35 this afternoon. I don't have the time, in any event. I thought it might be more helpful and perhaps more efficient for me to simply highlight the top five concerns that we have about the bill.
In my respectful submission, the problems with the act really arise from the unfortunate decision to use CEAA 2012 as the starting point for the act, as opposed to beginning with a clean slate and drafting a whole new statute. In my respectful submission, it's obvious and regrettable that the basic architecture of CEAA 2012 has been carried forward into the impact assessment act, subject only to a handful of new provisions that, frankly, do not fully fix the problems and the weaknesses associated with CEAA 2012.
In my view, replacing one deficient law with another deficient law will not do the trick if we're serious about sustainability and about restoring public confidence. If anything, the act as drafted will continue or compound the many problems we see right now in recent CEAA cases.
What are the major concerns? I've boiled them down to five overarching concerns.
Number one, the act creates excessive discretion at virtually every assessment stage and every decision point under the legislation. You've heard that concern from several other witnesses, and I fully agree with them. Now, in making that submission, I recognize that giving broad discretion confers maximum flexibility to federal officials, but at the same time, it significantly diminishes the certainty and the predictability that proponents, members of the public, and others are asking for in the federal process.
Number two, the act fails to establish an independent quasi-judicial authority for gathering information and making credible, evidence-based decisions. This was one of the most important and far-reaching recommendations of the expert panel, yet the proposed impact assessment act does not reflect it at all. Instead the act simply retains political decision-making on the basis of some vague considerations. That's not a new and improved regime; that's essentially same old, same old. In this regard, I concur with Mr. Northey's testimony last week, when he strongly endorsed the need for an independent body or a tribunal to make decisions under this act.
Number three, the act fails to entrench meaningful public participation in all key phases of impact, regional, and strategic assessments, as well as in the self-assessment process that's been outlined for projects on federal lands. In short, too many critical details for public participation have been left out of the act, or have been left to unknown future regulations or undrafted guidance materials. That's not good enough.
Number four, the act fails to limit or prohibit life-cycle regulators from being members or even chairs of review panels under the act. This represents another key recommendation from the expert panel that has not been implemented in this legislation. To be clear, CELA does not object to having life-cycle regulators participate in the review panel process, but regulators should not be leading or co-leading the impact assessment for the reasons offered by the expert panel.
Finally, number five, the act fails to include mandatory triggers or clear procedures for the conduct, content, and outcome of regional and strategic assessments. Again, several other witnesses have noted this, and I concur with their submissions.
In conclusion, I urge the committee to take a hard, long look at the proposed act. If you agree with CELA and many other witnesses that there are fundamental problems with the act as proposed, that seems to leave this committee with very few viable options. Given its fundamental flaws, the whole act really should be rewritten in its entirety. That's certainly my preference, and that would be my primary recommendation to this committee.
However, given the committee's rather compressed timeline for reviewing Bill C-69, a complete do-over of the impact assessment act does not appear to be a realistic option for this committee to undertake on its own in the time frame. That leaves us with one other potential option, which is to try to patch up this act with a series of piecemeal amendments here and there. However, to me, that seems like putting band-aids on a patient who really needs major surgery, so that piecemeal approach will not work.
From a public interest perspective, CELA submits that it's far more important to get this law right than it is to rush things and get a bad law passed. In my view, the expert panel report gave all of us an excellent blueprint for constructing the new impact assessment law, so if this committee is inclined to amend the legislation, then let's use the expert panel report, not CEAA 2012, as the starting point for doing what's right.
Subject to any questions, Madam Chair, those are my submissions.
Liberal
The Chair Liberal Deb Schulte
Thank you very much.
What we'll do is hear from all of the panel members and then go to questions.
I'm wondering if Ms. Hodgson-Smith would like to go next.
Kathy Hodgson-Smith Barrister and Solicitor, Hodgson-Smith Law, Métis National Council
Thank you very much.
I'm hoping my voice maintains, my apologies.
On behalf of the Métis National Council president, Clément Chartier, I thank the committee for its important work and study, and for creating space for the Métis Nation in this important dialogue.
The Métis people, as you know, constitute a distinct indigenous people based in western Canada who ground their assertion and nationhood in well-respected international principles, with a shared history, culture, language, and traditional territory that spans the prairie provinces and goes into parts of Ontario, British Columbia, Northwest Territories, and the northern United States.
We have had a long legal struggle to find a place constitutionally, and a lot of political struggle to find our way into recognition under section 35, through the decision of the Manitoba Métis Federation case where the issue of relationship to land and outstanding historical grievances was before the Supreme Court. Most recently we have the decision of the Supreme Court in Daniels, which has clarified the issue of jurisdiction in terms of the Métis under section 91(24).
We have experienced significant isolation and exclusion in the absence of clarity under section 91(24). With this recent clarification it has brought us to this table to make comment on federal legislation while still having a significant bundle of outstanding grievances, including rights of authority over territory, lands, resources, and without having developed robust relationships with industry or government over the last number of years.
I was reflecting on the submissions of the Inuit recently, of their success stories. I reflected upon the success of co-management under parks, where part of that success grows out of long-standing, historical relationships, where people, together, have looked at, for example, environmental assessment over a 30-year period.
For the Métis Nation we are embarking on negotiations under section 35, and the design of what we hope to be parallel systems of engagement with the Métis Nation on environmental impact. In the absence of that, we have been looking at existing structures to see what works. Where does this particular piece of legislation create the space for what could be negotiated, and does it close doors on opportunities?
Canada has made commitments to fully implement the UN declaration on a principled basis, to address the needs of the Métis Nation, and to implement obligations under section 91(24). It has committed to protecting section 35 rights.
The bill, as it's currently proposed, lacks those commitments front and centre, not just in a preambular kind of way but in a way that decision-making mechanisms and processes could reflect and do reflect a genuine implementation of jurisdiction and authority of indigenous peoples over particular lands.
This is the context in which we have come to look at Bill C-69.
When I look, for example, at the issue of decision-making, one of the questions we had was to try to flow chart out when and where indigenous authorities would make decisions. At what point in the process is an indigenous consideration considered? It was an impossible flow chart to draft. Therefore, we recommend clarity and reconsideration around the decision-making structures.
I think that there are several triggers of the Métis in Cumberland House who are dealing with the changing water flows of the dam, and are seeing cumulative effects and buildup and saying, “What's the trigger? How do we trigger an environmental assessment on this?”
I then go to the legislation and say, “Where would that trigger be?” However, I don't see that trigger. I don't see where the inclusion of the indigenous peoples in decision-making is for determining what the effects are, whether we have done sufficient research and analysis to know the effects—is the evidence sufficiently long—what the effects are on indigenous rights, or real clarity on what the public interest test is?
I'm reminded of the recent Supreme Court of Canada comments on balancing the public interest, where they said:
The public interest and the duty to consult do not operate in conflict here. The duty to consult, being a constitutional imperative, gives rise to a special public interest that supersedes other concerns typically considered by tribunals tasked with assessing the public interest. A project authorization that breaches the constitutionally protected rights of Indigenous peoples cannot serve the public interest.
Therefore, a review of the decision-making points is important. What gets on a project list? What's on schedule 2 remains a mystery.
The other, broader lens, in terms of the promises of government and the path forward that I think indigenous peoples have felt will be an effective one, is the nation-to-nation and government-to-government approach. However, that approach is really not here either. There is a generic category of indigenous group, community, or people, but how the relationship unfolds, in terms of reconciliation moving forward, is an important consideration.
If there is a recognition of a nation-to-nation relationship, there is then, in the implementation of the legislation, a clarity on appropriate representatives, with appropriate and effective investments in capacity, which are crucial, and which need to be ongoing and substantive. For the Métis Nation, without any capacity, when you're standing still, it's a very huge job to get the momentum going.
Also important is determining effective partnerships, clarifying when consent is achieved or what mechanism is best placed to advance consent, and in that way, legal certainty, and ensuring the proper protection and use of indigenous knowledge. I use that as a broader category than traditional knowledge, in the sense that, in this country, we don't have protections for indigenous knowledge. That's left for indigenous people to manage on their own. Once it goes into the public realm, where does it go? How is it used? What is the mechanism around that? That is unclear, but perhaps subject to a guideline or a schedule yet to be determined.
I think it would also allow the indigenous peoples' expertise on sustainability to have a meaningful influence on decision-making. There are many strengths to this piece of legislation, including early engagement and other mechanisms. With a bit more focus on the indigenous peoples, I think you could have a much stronger piece of legislation that meets a lot of needs, including those of industry and more broadly, other Canadians.
Liberal
Chief Maureen Thomas Tsleil-Waututh Nation
Thank you, Madam Chair.
I would like to acknowledge all the committee members who are here today to listen to us and to thank you very much.
I would also like to acknowledge that we are on the Algonquin territory and thank them.
I have a scripted thing in front of me, but I'm never very good at using one, so I would like to just speak.
My ancestral name is Si’lhe-Ma’elWut. It comes from my Si’lhe-Ma’el family. I'm a part of the Tsleil-Waututh Nation now, which is located in North Vancouver along the north shore.
Tsleil-Waututh is a community on the north shore, but at one time our ancestors inhabited the whole of the north shore. We are very central to a highly urbanized region, and we are a tiny little piece of property there. We are so impacted by the human element, by industry. There are so many things that impact our well-being and the well-being of the whole of the city of Vancouver. Today we are going to be talking, therefore, about the impact assessment part of Bill C-69.
The other key component I've been noting this morning or this afternoon is that there is a lot of discussion about indigenous jurisdiction. I think that's where I will focus.
John Konovsky is here with me, and he will speak to some of the detail. He's better at it than I am.
When you think about indigenous jurisdiction, I know right away when I look at all of you here that all sorts of red flags are going to go up. You immediately are going to look at all the risks and what they are going to mean to Canada. Someone said to me that relationships are important. When I look at you people—you're the Liberal, you're the NDP, and you're the Conservative—you're here for Canada. You have to have a relationship. You don't always have to agree, but that relationship among you to run this country is important. Without each other, you cannot do it. You bring a balance.
That's how I perceive first nations and the jurisdiction that we have and, I'm going to say, that I have for my community. It's inherent. It's within us to be stewards of our land. We're here to protect it. We're here to ensure that it's there for our grandchildren down the road. There is nothing that is going to stop us from protecting it. When you.... I don't want to say “you”; I'm sorry. When things come into our territory, we have to ensure that what is brought there doesn't leave a lifelong risk that is going to extinguish our being on that territory for my children and grandchildren down the road.
I appreciate your looking at this act with the idea that the existing one is inadequate. I also want to acknowledge how important it is for all of you to get it right, how important it is for Canada.
I know he wants it all rewritten. I know that is going to be challenging. For me, every little bit of improvement along the way is all we can truly ask for. If there is improvement, if there is a true desire for reconciliation.... All these words mean nothing to me in the sense that they're words from here. It's when you start living those words that I can truly come to this table and work with you to find a way to improve all of our living and well-being, for today, tomorrow, and well into the future.
That's what Tsleil-Waututh is about. We're not about taking anything from you. We're not about making life difficult for you. We're here to help you. We're here to work with you. Without that ability to do it, we're going to fail. If we're not allowed this freedom and these rights to protect, you're going to fail, and we don't want that.
You don't have to be afraid of us. Sure, you're going to have communities, and everybody is at a different level across Canada, including your constituencies. First nations are no different. We're all at a different capacity. We live in different regions. We have different strengths and weaknesses, but in our hearts and souls, we're all the same, including you. You want to protect what we have, and I know you guys can see the damage to this global world of ours that's going on.
That is what we're here for. We're not here saying let's fight with the Liberals, let's fight with the NDP, or let's ignore the native people. It's not about that. This whole process, this document, is about the environment and how we're going to protect it and how we're going to move forward into the future.
I can honestly tell you from my perspective, I care about each and every one of you. I care about your well-being. That's who we are. We're not here to fight with you. We're not here to cause problems for you. I know it's seen that way, but you always have to look at the bigger picture. That's how I approach everything. That's why I have no idea what's in this document.
Thank you.
John Konovsky Senior Adviser, Tsleil-Waututh Nation
I hesitate to follow up on that with some technical details.
Thank you, Chief Thomas.
We have submitted a number of recommendations in our written submission, and I will refer you to those. There are a number of ways that the bill could change, but we have tried to identify some key things that we think need to happen.
The first really relates to what Chief Thomas said. There needs to be a way to self-identify as a jurisdiction in the bill. We have submitted in our written testimony an additional definition of a “jurisdiction” under proposed section 2 that allows self-identification. Of all the things we could possibly say, that's the key issue that Chief Thomas just raised. We can't have a system where we have to go through another process to be identified as a jurisdiction. It needs to be consistent with the Prime Minister's commitment to recognition and implementation of an indigenous rights framework, so the amendment that we have proposed is really key.
I agree with the panel members on another issue, that the bill provides wide discretion for the minister. If the discretion remains in the act, Tsleil-Waututh requires some type of safety valve to address disputes. In particular, Tsleil-Waututh is concerned that the act in general makes no mention of an appeals process in the event of a disagreement. While the act provides an opportunity for indigenous groups to participate as jurisdictions, it falls short of true decision-making. We therefore believe a dispute resolution process is necessary.
One option is the tribunal idea that was floated at the panel. We would be supportive of that idea, but if that doesn't sit well with the committee, we would, at a minimum, request that there be an automatic right of appeal included directly in the legislation.
Our preference is to broadly construe that right of appeal, and we have provided language to this effect in our written testimony. Stepping back a bit more, when you look at the factors in proposed sections 16, 22, and 63, we see that indigenous communities are subsumed under factors to consider. We really assert that the constitutionally protected rights of indigenous communities are different from the other factors on that list. At the barest minimum, there needs to be an automatic right of appeal should there be infringement or the threat of infringement on indigenous rights. That's really the other key thing that we want to drive home here for the committee today.
With that, I will let the written testimony speak to the rest of our comments. Thank you.
Liberal
The Chair Liberal Deb Schulte
Thank you very much. I'm sure we'll be getting into some of it with the questions as well.
Next up is Ms. Lepine.
Please go ahead.
Melody Lepine Director, Government and Industry Relations, Mikisew Cree First Nation
Good afternoon, Madam Chair and committee members. It's an honour to be on Algonquin territory today. Thank you for the invitation to speak.
I hold the position of director of government and industry relations with the Mikisew Cree First Nation. I'm joined today by Mark Gustafson. Mark is a legal counsel who is assisting me on numerous regulatory files and will be helping me answer some of your questions today.
Mikisew has prepared a written brief. That brief contains detailed legislative amendments that we ask you to consider.
The Mikisew Cree is the largest Treaty 8 first nation within the Athabasca oil sands region. Our office has been reviewing numerous environmental impact assessments for the last 17 years and has directly participated in about eight joint regulatory hearings, raising environmental concerns and concerns about impacts upon our culture and way of life.
Our traditional territory houses a convergence of federal interests. It is home to Canada's largest national park, is a world heritage site designated under UNESCO, is inclusive of transboundary waters, provides one of North America's most important migratory bird pathways, and is home to such iconic species as woodland caribou and wood bison.
Recently the UN's world heritage committee sent experts to review the state of Wood Buffalo National Park, after we raised concerns that Canada is not doing enough to deal with downstream impacts from hydro dams and oil sands development. Those experts found that Canada is failing the park and the indigenous people within it. Flaws in Canada's environmental assessment process played a role in this embarrassing outcome for Canada. The 2017 IUCN World Heritage Outlook says that the park is now of significant concern and shows a trend of deteriorating.
I cannot stress enough how important federal assessments are to creating better relationships with industry and government, building healthy communities, and protecting federal environmental interests. That's the lens we have used to review Bill C-69.
For us, the most disappointing part of Bill C-69 is that it likely means that the federal government is abandoning the best tool it has to protect Canada's largest world heritage site from the very activities that have put the national park on the verge of being added to the list of world heritage sites in danger.
It is also abandoning a key tool for respecting the Migratory Birds Convention, abandoning a key tool for protecting iconic federally recognized species at risk and for reaching Canada's greenhouse gas goals.
It is also abandoning the best tool available to us in implementing UNDRIP and recognizing our right to take part in making decisions that affect our livelihood.
How have we come to that view? It comes down to triggers and what is happening in the oil sands. As the bill is currently drafted, federal assessments will only happen if an activity is on the project list or if the minister makes a discretionary decision to require it. We agree that both have a place in the bill, but they aren't enough for the federal government to protect its interests.
First, the project list is a blunt tool. It's meant to capture megaprojects—and it's useful in that regard—but it isn't flexible enough to be responsive to key areas of federal jurisdiction, such as world heritage sites, species at risk, or transboundary waters. It has been our experience that the project list excludes many of the activities that have been shown to directly and cumulatively impact species at risk and the Peace-Athabasca delta. As it stands, the project list means that you will likely never see another federal assessment in the oil sands region.
Let me repeat that. Even though industrial activities are putting a national park, woodland caribou, and bison at huge risk, there may never be another federal assessment as this bill is currently drafted. This is because the future of oil sands is the expansion of countless smaller projects that are less capital-intensive but equally problematic for federal environmental interests.
Second, while there is a process for updating the project list under way, not a single request we have ever made for an activity to be added to the project list or its predecessor has ever been accepted.
Third, discretionary decisions to require assessments are inherently hard to deal with, and they don't provide certainty to anyone. They also leave that important decision up to political lobbying campaigns that, in the end, undermine the very trust in the system that you are trying to restore.
Fourth, on many occasions we've requested a federal assessment because a project could impact federal matters and our rights, and the answer has been no. From that perspective, the new criteria guiding discretionary decisions isn't likely to make a difference. Where does this leave us? We believe there is a path forward that will allow you to be responsive to core federal jurisdiction without upsetting the structure of the bill.
Our proposal would provide greater certainty to Canadians that key federal matters are being properly assessed. At the same time, it would easily merge with the new planning phase to ensure the assessment matches the size and complexity of the proposed activity. In other words, it won't create delays. You'll find our solution on page 7 of our brief.
First, it entails creating a modest, third way to trigger assessments. This category is tightly scoped to core matters of federal jurisdiction. Second, we've also proposed that the minister develop sub-regional regulations with new assessment triggers where a regional assessment has determined an area that is experiencing a high degree of cumulative impacts. This flows from normal impact assessment practice. Once thresholds are exceeded, even a small impact can have serious consequences.
Next, I will highlight a few other proposals in our brief that connect with questions the committee has asked over the last few weeks about what the bill means for achieving indigenous consent.
In my experience, when there is a federal assessment, we have a better chance of getting the information we need to make informed decisions and getting us on a path to consent. The same cannot be said for provincial regulatory processes. The Alberta regulatory process creates a loss of trust, animosity, and in the end, legal and investment uncertainty for proponents. If the government is serious about getting first nation consent in a timely and effective way, the key starting point is improving the triggers for when assessments take place.
Another way to advance this goal is to make sure that the act works for indigenous consultation. We have proposed a few modest changes on pages 8 and 9 of our brief for improving how timelines are calculated and how the agency works with us to improve our chances of getting to consent.
Next, there a few inconsistencies in the bill that we have identified in terms of criteria for decision-making and tracking through the improved language around traditional knowledge. We've proposed solutions for these on page 9 of our brief.
Before I make my closing comments, I want to highlight that our brief also covers the navigable waters act. The key issue we have brought to your attention is that the act needs a key tweak to enter the 21st century.
If you come to our territory, you'll hear everyone talk about impediments to navigation, but the huge impediments we are facing are barely covered by the act because it is primarily focused on physical barriers. Activities that change the flow of rivers is what impacts navigation most heavily in our region. There are a couple of new sections in the act that start to get at this issue, but they are essentially inadequate. If you want to make a difference to our way of life and inland navigation, fix these provisions.
I want to leave you with a quick snapshot of our proposal.
First, take federal jurisdiction seriously. When you do, you protect Canada's international standing, respect indigenous people, and build a stronger economy. All that is needed is to add a small list of legislative triggers to provide a backstop to the project list. Those are in our brief. We are confident that Canadians and industry would support reviews for projects that could impact nationally important species like caribou and bison, and Canada's world heritage sites.
Second, recognize and respect your treaty partners. As the Supreme Court said, consultation with indigenous peoples is always in the public interest. That can start to be achieved if you adjust the wording around timelines and better incorporate the UN declaration. We've given you a few recommendations to get there.
Finally, make the space for certainty and good decision-making. That means fixing the triggers for assessment and clarifying the considerations for decision-making.
Bill C-69 is far from perfect and less than we expected to see after months of engagement on EA reform, but it can be improved.
Thank you for your time.
Liberal
The Chair Liberal Deb Schulte
I thank all of you very much for the very detailed recommendations that you've made. We don't have all of your briefs yet in front of us.
I think your brief came in just after the deadline, but because you're one of the groups that we had identified we wanted to hear from I authorized quite a few briefs that came in late, so they're in translation right now. We should be getting that by the end of the week, just so you know that we don't have it in front of us.
Starting up is Mr. Bossio.
Liberal
Mike Bossio Liberal Hastings—Lennox and Addington, ON
Thank you, Chair.
I thank all of you very much for being here today.
Rick Lindgren, it's great to see you, sir.
Rick and I have worked together for 20 years where he represented a community organization that I was a part of. We've gone through one full environmental assessment—we are in the process of another environmental assessment—a judicial review, and an environmental review tribunal together. We have a lot of experience.
Going through that process creates a lot of concerns for me around meaningful public participation and the importance to both proponents and the public of an appeal mechanism that upholds accountability and oversight.
If you could, please, I'd like you to highlight for us some of the areas in the bill that could be improved to ensure that we have meaningful public participation, and the importance of having an appeal mechanism like an environmental review tribunal.
Counsel, Canadian Environmental Law Association
In my view, meaningful public participation is the condition precedent to informed decision-making and to restoring public confidence in the process.
The problem with the bill as drafted is that it provides few, if any, details as to how public participation is going to be provided under this bill, particularly in relation to project-level assessments. For example, I draw your attention to proposed section 27 of the bill, which says that when conducting an assessment, the agency shall provide an opportunity for the public to participate.
That's it. There is no indication of how, when, through what mechanism, or when participant funding will be provided. Is it going to be provided in the planning phase? Those essential requirements are wholly absent from the bill. That's regrettable, because that's exactly the same provision that was in CEAA 2012, the one that was found to be wholly deficient by the environmental assessment expert panel. I would have expected further and better details about public participation in this bill, the proposed impact assessment act, yet they are almost wholly absent.
To fix that, do you want the long list or the short list? At the very minimum I would expect to see a good definition of meaningful public participation. I provided one in my submissions. The preamble and the statement of purposes should be expanded to breathe some life into the concept of meaningful public participation. Then, at each and every stage of the impact assessment process, there should be explicit requirements in terms of access to information, reasonable notice, and the ability for people to call and cross-examine witnesses. Those are the kinds of procedural safeguards that I say are essential to the timely, effective exercise of public participation rights. If you don't have those safeguards built into law, those public participation rights are hollow.
In terms of the preference for a tribunal, I've been practising environmental law in this province for over three decades. I've spent a lot of time before this province's environmental tribunals. I say to you, if you really are interested in having meaningful public participation, you want procedural fairness, and you want accountable, evidence-based decision-making, the tribunal route is the way to go. If you want over-politicized, highly controversial backroom deal-making, go the route of this act. You can't pretend to be restoring public trust by avoiding the public scrutiny of a tribunal and leaving it ultimately to the minister and/or cabinet to make a decision at the end of the day.
If this bill is passed intact without any amendments, I would be hard-pressed to advise a client to participate in the impact assessment process. I'd say, “Why bother? Why spin your wheels? Why spend literally months or years raising funds, making submissions, and doing everything you need to do at the agency level or the review panel level only to have that mean little or nothing when the decision actually gets to the decision-maker?”
That's why I strongly support the principle. There should be an administrative tribunal that's fully equipped and properly resourced to make the decisions. They hear the evidence; they can assess the credibility of the witnesses; they observe the demeanor of the witnesses. They're in the best position to make the decision. Unfortunately, that process is not reflected in this bill.
Liberal
Mike Bossio Liberal Hastings—Lennox and Addington, ON
How do you see the role of the Federal Court system in this, in comparing the tribunal process to the court system?
Counsel, Canadian Environmental Law Association
In theory, the courts are there to ensure compliance with statutory requirements. That's their traditional function on judicial review. The courts are there to provide some level of judicial oversight. The problem is that when you leave these things in very vague terms, the courts are reluctant to intervene.
I can tell you this because I've been chewed up and spit out by the Federal Court a few times on these kinds of issues. Where on behalf of our clients we've gone to court and we've indicated to the court that there was little or no evidence to support a finding or a conclusion, the court said, “You know what? They've mentioned the word 'need', or 'purpose', or 'alternatives', so at least they've cast their mind to that issue. They've given it some consideration, so we're not prepared to intervene.” That, unfortunately—
Liberal
Mike Bossio Liberal Hastings—Lennox and Addington, ON
Would you agree, though, in regard to the tribunal, that the importance of it is the fact that you have a panel of experts in all the different areas of sustainability that are supposed to be the purpose of the law?
Counsel, Canadian Environmental Law Association
That's the whole purpose of a specialized administrative tribunal in modern-day Canada.
Conservative
Robert Sopuck Conservative Dauphin—Swan River—Neepawa, MB
Thank you very much.
One of the things that puzzled me about all the testimony today from both our panels was that little or nothing was said about jobs, economic development, and the importance of people having incomes.
I used a phrase in the last meeting that if someone has a livelihood, they have a life. I think it's important that we focus on jobs and economic development, but all done in an environmentally sound way.
Just for the panels' benefit, I'm a fisheries biologist and spent my whole life and career involved in environmental assessment and conservation. However, I represent a natural resource constituency and again, just for review, the natural resources sector—I'm quoting from a study here—“accounts for 13 percent of gross domestic product (GDP) and 50 percent of exports. When spinoff industries are added, the contribution of natural resources to GDP jumps to nearly 20 percent. About 950,000 Canadians currently work in natural resource sectors, and another 850,000 workers, spread across every province and territory.... Combined, this amounts to 1 in 10 jobs in Canada. In addition, the energy, mining, and forestry industries provide over $30 billion a year in revenue to provincial and federal governments,” providing all of us with the public services that we so greatly need.
My first question is to you, Ms. Lepine. We had testimony from Fort McKay Chief Jim Boucher. I should let you know I spent time in the oil sands, I worked on the Kearl project close to Fort McKay. It was pointed out in this article that Fort McKay has a zero unemployment rate with members enjoying average annual incomes of $120,000 and financial holdings in excess of $2 billion thanks to its willingness to do business. Also, the Mikisew Cree, I guess, have just purchased 15% of a Suncor facility.
Isn't this a major success story to be celebrated by your community? I think you've done remarkable work here based on these numbers.
Director, Government and Industry Relations, Mikisew Cree First Nation
Absolutely. Our community has celebrated that success story.
I want to also note that the livelihood that you mentioned refers to a way of life and cultural intactness in which we do need, I think, an environment that supports that way of life and that livelihood as well. We should not restrict those members of our community who choose to have the ability to have those meaningful livelihoods, not only for today but for future generations.
Good projects come from good assessments. Good assessments come from ensuring that a healthy environment and healthy community, who advance the economic opportunities that are provided to us, are very important. However, without proper assessments and assessing impacts to rights and impacts to our way of life, our culture, and to our social well-being, you can have all of the opportunities in the world provided to indigenous communities, but if they're not ready and if they're not provided the ability to participate in federal assessments in a meaningful consultation process, then those opportunities mean nothing to us.