Environment Committee on April 24th, 2018

[The Chair, Liberal, Deb Schulte]

Okay, I understand. I just wanted to be clear on what that was.

Are you sharing your time?

Okay.

Mr. Amos.

[William Amos, Liberal, Pontiac, QC]

How much time is there left?

[The Chair, Liberal, Deb Schulte]

You have about two minutes.

[William Amos, Liberal, Pontiac, QC]

Okay. I really wanted to go into that consultation issue and the “expectation of a response” issue, because I think it's an important one. I would simply say that it has to be very difficult in this kind of process for government and expert panels to respond to every single comment that is made. It's a Herculean task.

My question goes to Mr. Lindgren, because we've had an ongoing discussion with a number of witnesses on the issue of review, judicial or tribunal, of this process. Given that a quasi-judicial model has not been chosen for the impact assessment agency, is there a way in your estimation to craft a provision or set of provisions that would enable engaging that form of tribunal?

Also, is there language you might suggest that would enable that kind of process in such a way that it does not overload and overweigh the system, and in such a way that it might even help lighten the federal court system, which is ultimately also available?

[Richard Lindgren]

The short answer is yes, Mr. Amos, it is possible to construct an appellate body that can hear and resolve disputes arising from the impact assessment process at every stage, whether it's early planning, right in the middle, or at the tail end.

In my brief I have provided some drafting instructions concerning what such a tribunal might look like as an alternative, but I can undertake to provide more detailed language to this committee in the next day or two to flesh out what that appellate body might look like if it were to provide some meaningful oversight and accountability in the impact assessment process.

[William Amos, Liberal, Pontiac, QC]

Thank you.

[The Chair, Liberal, Deb Schulte]

Monsieur Godin.

[Joël Godin, Conservative, Portneuf—Jacques-Cartier, QC]

Thank you, Madam Chair.

I would like to thank our esteemed witnesses for being here today. We all have the same objective, which is to enact laws that are more effective than the current legislation.

My first question is for Mr. Lindgren, from the Canadian Environmental Law Association.

Your comment that we are doing a good job is puzzling. You said—and I pretty much agree—that this bill does not restore confidence. I think that is very important as regards the environment. If I may summarize, you said that you find section 27 very simplistic. From what I understand, you think Bill C-69 is a shortcut.

I have a very specific question for you, since this kind of bill seems to be part of your daily work.

Can you please compare the current bill to the Canadian Environmental Assessment Act 2012 in terms of the process and the timelines for project certification?

[Richard Lindgren]

Thank you for the question.

I think it's fairly clear that the timelines now proposed in this act are shorter than what we currently have under CEAA 2012. The government's rationale for shortening the time frames is that they expect that the early planning phase will result in a scoping of the issues, a narrowing of the dispute, the proper and early engagement of affected communities and indigenous governing bodies, and so on.

That's kind of wishful thinking, based on how the act is drafted right now. I don't think the concerns and the problems we've had with timing will magically disappear with this early planning phase. I think it's because there's very little content prescribed in the act in terms of how the planning process is actually going to work. As drafted, the act only sets out a screening process for the agency to decide whether or not there's even going to be an environmental assessment of a designated project.

I would say to you, sir, that there's lots of room for improvement in terms of making this process work in the way the government says it should work.

[Joël Godin, Conservative, Portneuf—Jacques-Cartier, QC]

You said that a number of improvements should be made to the new act, but you also said that it needs to be rewritten. I would be inclined to choose the second option.

I will now turn to Chief Maureen Thomas.

I found your comments and philosophy very interesting. You said that we have to take action to protect our children. That has a very maternal ring to it. I am a father and I will be very paternalistic by adding that we must protect not only our children, but also our grandchildren. I think that is important. We need robust legislation that also balances economic development with sustainable development. We need to act to protect our children and for the sound financial management of our country.

You said that every small improvement counts. I agree, but we might as well do as much as possible to improve the situation. We could make small improvements, as a minimum, but I think we are able to make huge strides. It takes a lot of small steps to get anywhere.

I now have a question for your colleague, Mr. Konovsky.

Mr. Konovsky, you talked about a mechanism for recourse to a tribunal, with a right of appeal.

Can you elaborate on this suggested improvement?

[John Konovsky]

In our written testimony, as you will see when you get it, we recommend that there be a new section added to the bill, and that it be broadly construed to allow anyone who has an issue with decision-making, at any stage of the process, to appeal. In our conversations with the government, that has met with some resistance in terms of such a broad-based kind of mechanism.

Our bottom line is that in those lists of factors, constitutionally protected indigenous rights are unique. They need unique protection. In a new proposed section 62 or 63, perhaps, there should be a provision specifically for that kind of appeal should there be infringement or the threat of infringement. That's our bottom line. We agree with the idea of a tribunal as being the best solution, but if the committee doesn't want to go there, that's really the baseline we need in order to be satisfied with the bill.

[Joël Godin, Conservative, Portneuf—Jacques-Cartier, QC]

Thank you.

Ms. Lépine, you said that international organizations think Canada is not doing enough. I tend to agree with you. That is why the current government wants to make improvements, but I am not sure it can do that with this bill.

More specifically, you said in your presentation that this bill barely addresses the obstacles we are facing because it focuses primarily on physical obstacles. What other obstacles would you like to highlight?

[The Chair, Liberal, Deb Schulte]

Mr. Godin, I hate to do this, but we are over time, so we don't have time for the answer, unfortunately. It was a good question.

We do have time for one more questioner, so maybe we can pick up on that. We'll see.

Mr. Bossio.

[Mike Bossio, Liberal, Hastings—Lennox and Addington, ON]

Thank you, Chair.

Mr. Lindgren, I'd like to expand a little bit further on the meaningful public participation piece, if I could, quickly because I have a question on UNDRIP that I want to get to as well.

Maybe you could explain the importance of ensuring the full breadth—not just a definition but the mechanisms—of meaningful public participation is written into the bill rather than the regulations.

[Richard Lindgren]

Thank you, Mr. Bossio.

My starting point would be referring once again to the sparse language we find in the act. Quite frankly, it's inadequate and unacceptable to simply say, “provide an opportunity to participate”. We need further and better detail in the act in terms of the principles and the mechanisms to ensure meaningful public participation.

I fully anticipate that those basic public participation rights will be more fleshed out by regulation. In fact, I said that in my submission to the committee. There may well be a need for further and better guidance material as well, to ensure that we are all on the same page as to how you actually solicit and act upon public input.

The observation I would make is that we have lots of good guidance material from the agencies and others right now as to how to effect or implement meaningful public participation. It's not being done, and I invite you to look at the expert panel report on that very issue. Simply confining public participation requirements to a single sentence in the act was found to be utterly deficient by the expert panel. That's why we need to do better under this legislation.

[Mike Bossio, Liberal, Hastings—Lennox and Addington, ON]

Once again, though, does it suffice to have the words within the act “meaningful public participation” and then leave it to the courts to determine what that means based on previous arguments within the courts, or based on the regulations? I'm just tyring to figure out what is the best process in order to get at what “meaningful public participation” is.

[Richard Lindgren]

We should build as much of it as we can into the act. We should supplement it by more detailed regulations as to what it means and how these participation opportunities will be provided on the ground. That's including but not limited to participant funding.

I'd rather have that sorted out in the act through regulation and guidance materials than having us trot off to the Federal Court every two weeks. That is not going to be a timely and efficient process, as you may know.

[Mike Bossio, Liberal, Hastings—Lennox and Addington, ON]

Thank you very much.

Mr. Amos and I both sit on the indigenous committee as well, and right now we're studying Bill C-262 around UNDRIP—the implementation of UNDRIP and the framework around it. Of course, FPIC is a constant point of discussion around that. There seem to be three definitions of free, prior, and informed consent: good faith, without necessarily obtaining it; a type of process, a consensus-oriented process that is sometimes referred to as collaborative consent; or a veto.

I know Mr. Gustafson mentioned earlier that they had made a submission around Bill C-68, for example, and within Bill C-68 they actually have quite an extensive overview of recognizing indigenous rights without actually spelling out UNDRIP itself.

What is your view of FPIC, and what is your view of C-68 in how they've defined indigenous rights and consultation?

[Mark Gustafson]

Those are very good questions. For protocol reasons I would ask whether any of the indigenous participants want to jump in first, and then I can pick up second, if that's okay.

[Mike Bossio, Liberal, Hastings—Lennox and Addington, ON]

Yes, of course.

[Chief Maureen Thomas]

That's a really tough one. Again, we're saying we know we have jurisdiction. We know, and it's about building that relationship so we can work together. I don't like to get caught up in the words of reconciliation and all those things. The way I see it, we have to be one. Even though we're totally separate in our identities, as to who we are, we are part of Canada. We have to be part of you; you have to be part of us. You are connected to us.

When we get into all those words and all those things, we have to forget about those words and really focus on what it means, and not identify specific words as to how we relate to one another. In terms of our purpose here, we're not here to be totally separate all the time as indigenous people. Who I am as an indigenous person is who I am. I'm connected.

We always identify ourselves as to where we're from. That is our connection to the land and the water, and that's our jurisdiction. That's who we are. We're part of our ancestors. We're part of you, so you are part of us now, whether you want to be or not. I know a lot of people don't want to be, but we're here to look after one another. We're here to move in this world now as a unit, because without the ability to do that, we are going to have so much conflict and so much wasted time and energy and so many wasted dollars that we will be doing more harm than any good.

If we can always find this way, if you can respect me for who I am as an indigenous person, where my ancestors lie, from this country.... My connection to the Algonquin people is strong. I feel them here today. I feel them standing with me. That's how I am. I want to be part of all of you in order to have survival for our future generations. To me, it's that serious. We need to be a unit, not with just Canada but the other nations as well. I know that's a huge challenge, but we have to start here. We have to have that ability, your respect. Hear my voice and listen to it with meaning.

I'm not here telling you what to do or how to do it. I'm here to help you.

[The Chair, Liberal, Deb Schulte]

Thank you very much for your wise words. You've all given us a lot to consider. We will see your briefs. You've all expressed a concern about the speed at which this is moving along. We are under tremendous pressure to hear everyone's recommendations and consider them. The reason we want to see that done in a speedy manner is that we all recognize that the legislation, as it stands today, is not meeting the needs of the country and that we need to change it. It does take quite a while to get through the process and come out the other side as legislation approved by both Houses.

What we want to do is to hear from all of you, as we have done. We really appreciate the time you've taken to come and do that face to face. We will read your briefs. We will get them in time to be able to bring forward recommended changes.

Thanks again. Meegwetch.

The meeting is adjourned.