Evidence of meeting #108 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 process.
A video is available from Parliament.
Liberal
Churence Rogers Liberal Bonavista—Burin—Trinity, NL
Ms. May, I know, is looking for some time so I'm going to graciously pass to her.
Green
Elizabeth May Green Saanich—Gulf Islands, BC
Thank you. That's so kind of you. Thanks, Mr. Rogers.
One of the things that came up in this discussion about municipalities is an observation, and perhaps I'd ask Professor Doelle, or Karine, if you have any thoughts about this. We tend to focus on environmental assessment as though it's a bad thing that slows down good projects, but in my experience, the failure to do EA often leads to a tremendous waste of money and bad projects.
Since you're from Nova Scotia, Professor Doelle, do you recall that back in the early nineties the first proposed cleanup of the Sydney tar ponds was exempted from EA, and they spent $80 million on a set of piping to a location for a future incinerator that didn't work? I just wondered if you wanted to comment on the planning tool, because I see EA primarily as a planning tool, not a fast-track to yes or no. Bad projects waste money when they're not assessed, and I wonder if you have any comments on how significant the process is as a planning tool.
Professor, Schulich School of Law, Dalhousie University, As an Individual
I think that's critical. As a general comment, I would say that the greatest risk I see to projects from any kind of assessment or regulatory process is the uncertainty that is associated with the loss of social licence, and environmental assessments are an opportunity to gain that social licence.
As I mentioned earlier, aquaculture is an example where we did a strategic assessment in Nova Scotia. We did the same with tidal energy. There was strong opposition to both ideas when we started. Through an effective engagement process with all interested parties, we came to common ground. We identified what the legitimate concerns were, and we found a way to get them addressed.
Ultimately, the end product is that good projects can go ahead, and there's more certainty as a result of that than you would have if you had a shorter, firm process, but then all kinds of uncertainty at the end of the process because of litigation and political opposition to the project. There are hundreds of examples of that.
Green
Elizabeth May Green Saanich—Gulf Islands, BC
I'll stay with you for just a minute, Professor Doelle.
Your brief says that “criteria are warranted”—and thank you for listing the many areas of the bill where there's too broad a discretion—and you suggested “triggering”. This question of federal jurisdiction has come up before. I'll be quite up front about it. I'm a fan of federal land, federal money, and a law list so that you know what you're doing. I wonder if you have any comments on what kinds of triggers you think are appropriate.
Professor, Schulich School of Law, Dalhousie University, As an Individual
I think there are many different ways to do that. Certainly, I think the old process worked, and I think we got to a point where it was fairly refined, but I think a project list can also work. The key issue is not whether you take a definition and a law list approach or whether you take a project list approach. The key question is, how do you decide what's on and what isn't?
I think we need better criteria, broad criteria in the statute, and then regulations that help ensure that good decisions are made about what should be on the list and whether you assess something that is on the list.
Green
Green
Elizabeth May Green Saanich—Gulf Islands, BC
Your brief says that you don't see any role—they have no place—to have the nuclear regulators, the NEB, or the offshore regulators on panels. I wonder if you can explain why.
Managing Director, Québec Environmental Law Centre
As I said, it's that their jobs will be to regulate their projects. If they want to have a job, there need to be projects going forward, so that's pretty much an institutional bias in favour of approving projects. From the bad experience in Quebec, we think generalists are better placed to integrate the socio-economic and environmental considerations, rather than very narrow expertise.
If I can just piggyback, the role of municipalities is key. The Quebec law recognizes in its sustainable development principles the principle of subsidiarity, and it would be great if the federal law did the same.
Liberal
The Chair Liberal Deb Schulte
Thank you.
Ms. Duncan, we're going to give you six minutes, and we're going to add one more round to each side for six minutes. Then, I think, we are out of time.
NDP
Linda Duncan NDP Edmonton Strathcona, AB
I think I just have one question—although I could ask lots of them—for Professor Doelle.
I'd like you to speak a little more about the appeal tribunal. One thing I find really odd is that the government insisted on putting these three acts together in one bill, presumably because they would relate to each other. For part 2 for the CER, they have ADR and they have appeals but we don't have it in the first part of the bill. Is one option just to bring forward those same provisions, where ADR could work very well in the assessment process as well in some way?
I wonder if you could talk a bit, too, about the difference between appeals to the Federal Court on matters of law or fact in law, and to this appeals tribunal. Who would sit on that tribunal? Do we have a problem because it's not in the bill? Are they going to say that we need a royal recommendation?
Professor, Schulich School of Law, Dalhousie University, As an Individual
I'll let others comment on the last point.
I think there are many different ways to do this, but the challenge with the Federal Court of Appeal is, number one, judicial deference. Some of the administrative law cases since Dunsmuir have not been very helpful in providing an appropriate role for the court of appeal. Also, it's a drawn-out, expensive process. It won't be timely. Unless you create a specialized subgroup of the court of appeal, they also won't necessarily have the expertise.
I think a separate body that has specialized expertise, is independent, and can quickly review decisions based on clearly established criteria in statute and regulations is a very efficient, effective, and fair way of improving the quality of decision-making. To me, that's the answer. Now, having said that, one of the things that some of us who saw these various acts come along were advocating for at the same time is the consideration of a specialized environmental court, similar to what Australia has.
There was a question earlier about what Australia is doing well. Australia and New Zealand, at various levels of government, have specialized courts—
Professor, Schulich School of Law, Dalhousie University, As an Individual
—and they can be much more effective, much more efficient, at making decisions.
Having said that, at this point I think a good step forward would be just a small-scale specialized tribunal that hears appeals on key decisions in the process.
NDP
Québec debout
Monique Pauzé Québec debout Repentigny, QC
Thank you very much, Ms. Duncan.
Thank you very much, Madam Chair.
I thank all of the witnesses for their very interesting testimony.
I would, of course, also like to thank Ms. Péloffy for having begun her presentation by reminding us that the need to act to support biodiversity has never been as urgent as it is now.
Mr. Doelle, you spoke about public interest and social licence. One of the representatives of the Federation of Canadian Municipalities also said that too often, what we want to protect is not taken into account.
I would like to ask Ms. Péloffy if her amendment to clause 63 of the bill fills in the gaps that have been so well defined.
Managing Director, Québec Environmental Law Centre
I would like to say that the amendment we propose aims to clarify the fact that the rights of the province and indigenous jurisdictions must be respected or at least taken into consideration when the federal government makes a decision. The point, more specifically, is to avoid situations where promoters who are governed by federal regulation refuse to respect provincial laws. There are several at this time in Quebec.
This would solve the problem related to compliance with municipal rights, to the extent that the province where they are located gives them the rights. Municipal law derives from the provinces. In Quebec, we recognize the principle of subsidiarity and the role of municipalities, but that principle could be much more present in the environmental area.
Québec debout
Monique Pauzé Québec debout Repentigny, QC
You also spoke about Louis-Gilles Francoeur, an exceptional environmental journalist who also was a commissioner of the Bureau d'audiences publiques sur l'environnement. Among other things, you said that he suggested that we translate “sustainability” by “durabilité”. There must be reasons for that but you did not have time to explain. I'd like to hear you do so.
Managing Director, Québec Environmental Law Centre
In fact, he suggested we use the word “viabilité” rather than “durabilité”. I don't think I could do justice to his eloquence since he is after all a journalist and an author. In short, the French word “durabilité” is ugly, it doesn't sound right and it gives the impression that something will endure and develop in an inherent way, whereas the notion of viability suggests instead a concept of inherent limits, the limits of the ecosystems within which we must stay.
I have four paragraphs in hand that I could read to you. It is a term which, in my opinion, would advance the debate a great deal. Moreover, it would be a better translation of what was really meant by “sustainability”, from the days of the Brundtland report, which goes back a long way.
NDP
Linda Duncan NDP Edmonton Strathcona, AB
I know this is an ongoing debate and there's a Bloc bill to do with this, but surely we can't go beyond the constitutional rule that the federal government has paramountcy over the provincial. Maybe, in your proposed section 63...and this is why I'm saying that the factors throughout should be the same. I don't understand why they should be reduced down by the time you get to the public interest determination. They should take into consideration any matters raised, including by-products of the municipality.
Managing Director, Québec Environmental Law Centre
I'll be real quick.
One other thing having that amendment on respect for provincial law would do is stop the arguments about the frustration of purpose of federal law. There's a court of appeal. There's a court being heard in Quebec where basically the previous government, who shall not be named, created a legal vacuum. The courts are using this legal vacuum as a reason to say that this space is occupied by the federal government, and that displaces provincial law. This is extremely problematic for us, and not the state of the constitutional law. That's why we're at the court of appeal on it. That idea of frustration of purpose should be out. We should just look for objective conflicts of law.