Thank you.
Madam Chair, members of the committee, thank you for the invitation to speak to you about the impact assessment portion of Bill C-69. To ensure efficient use of my time, I will read from a prepared statement.
Very briefly, my background in EA goes back to work on CEAA in 1992 as a policy adviser to the Canadian Environmental Assessment Agency. Since then, I've offered legal advice to proponents, panel members, and intervenors involved in EAs. I served as a panel member on the Lower Churchill joint review panel, and have designed and shared strategic assessments on tidal energy and aquaculture in Nova Scotia.
Of course, I cannot cover the range of issues that arise from the proposed impact assessment act in 10 minutes. Impact assessment legislation is by its nature complex, and Bill C-69 is no exception. In the interest of time, I therefore refer you to my written submission and to a number of blog posts that I have published with colleagues, some before and some after the release of Bill C-69. I have recently added some specific proposals for amendments to my blog. You will find a link in my written submission. In the time remaining, I'd like to highlight a few key issues and invite members of the committee to follow up during Q and A.
When CEAA was drafted in the 1990s, we had limited experience to draw on. As a result, it's not surprising that the original act was largely enabling, with broad discretion to make decisions on the key aspects of the process, from the scope of the project, the scope of assessment, public engagement, process options, and the final project decision up to follow-up. We now have 25 years of experience with a legislated federal EA process to draw on, and we need to implement lessons from that experience in the new act.
What have we learned? First, we have learned that broad discretion without direction in law over time leads to bad decisions. This is the case in spite of good intentions at the time that legislation is passed, and is at least partly a reflection of the fact that the purpose of the assessment process is to push decision-makers out of their comfort zone to look beyond the obvious short-term benefits of proposed projects to the full range of often less obvious longer-term impacts, benefits, risks, and uncertainties. This is hard, and the more discretion is built into the process, the greater the risk that the more obvious short-term benefits will win out over the long-term impacts.
The second thing that we've learned is that we can now offer strong statutory and regulatory direction to those tasked with making key decisions in the assessment process to better guide those decisions. If we draw properly on the experience, we can establish an appropriate mix of statutory and regulatory criteria to properly guide the exercise of discretion while leaving appropriate discretion where it is needed.
We also have to make good choices about when decisions should be made by ministers, when they should be made by cabinet, by the agency, and when by an independent tribunal or the courts. We need to build into the process opportunities for refining the statutory direction, and particularly regulatory direction over time. An appeal process to a specialized tribunal tasked with reviewing key decisions throughout the assessment process could ensure the quality of those decisions. Such a tribunal, by the way, could also serve to recommend improvements to regulatory direction over time.
Let me start with a general observation about Bill C-69. My overall reaction is that the bill generally provides the powers needed to implement a good assessment process, but too much of that power is left to the discretion of decision-makers—discretion without adequate direction. What Bill C-69 needs is a general rethink, away from merely empowering decision-makers, to instead properly directing decision-makers toward an effective, efficient, and fair process, and a good outcome. We need the process to demonstrably and adequately inform decisions, not justify decisions already made.
To achieve this, broad criteria for decision-making should be set out in the statute itself. Proposed sections 22 and 63 are a step in the right direction in this regard, but they need to be strengthened, in two ways, in particular by replacing considering with “based on”, and by requiring them to be refined through regulations. The criteria need to be refined through the regulations.
Similar statutory criteria are warranted in other areas, such as triggering, key process decisions, and follow-up. Beyond those broad criteria that should be in the statute, there needs to be more detailed principles, criteria, and guidance set out in regulations. That will require adjustment over time, which is why they should be in regulations.
Such criteria should be mandated in the statute but set out in regulations. This guarantees that we will have the benefit of the criteria while allowing the flexibility that regulations provide in making adjustments over time. Key steps in the assessment process that are largely discretionary and need this kind of direction include the following: when federal project assessments, strategic assessments, or regional assessments are to be carried out; determining the scope of the project or proposal to be assessed; determining the scope of the assessment; process decisions; project decisions; and follow-up decisions.
To be very clear, it is not enough to have the power to pass regulations in these areas. These regulations must be required in the statute. My plea to you during the clause-by-clause review is to do three things. Number one, identify these discretionary provisions throughout the bill and add general statutory criteria where possible. Number two, include clear language wherever there is discretion in the statute to require the discretion to be exercised in line with direction to be set out in regulations. Number three, include mandatory language—I would suggest in proposed section 112—to develop regulations to guide the exercise of discretion in each of these areas.
Finally, in the time remaining, let me briefly highlight three of the more specific topics I addressed in my written submission, starting with panel reviews. I think when we design the panel review process under this new act, we have to keep in mind that this is the highest level of assessment and is preserved for major projects. Projects assessed by panel review tend to involve billions of dollars in investments, and Canadians will be stuck with the consequences of the outcomes for decades. I'd be happy to talk about the Lower Churchill assessment as an example of that. Whatever compromises we make to other process options, we cannot compromise on the quality of the assessment for panel reviews. I would suggest five specific things in that regard.
First, we should replace the generic 600-day timeline with a requirement to set project-specific timelines at the conclusion of the planning phase. In some cases, that may be shorter. In other cases, it may be longer. Second, we need to ensure that panels get appointed earlier and are involved in the scope determinations and information-gathering decisions. Third, we need to ensure that panels have the budget and the power to hire experts and analysts. That is particularly important now with a broader scope. Fourth, we need to ensure that panel reports include conclusions and recommendations that properly inform determinations under proposed section 63 and the public interest finding. They can't just summarize the findings on the factors in proposed section 22. Finally, we need to ensure that transparency and accountability for decisions that do not follow the recommendations of review panels. The discretion should be there in my view, but there needs to be transparency and accountability when recommendations are not followed.
The second area is follow-up. In the interest of time, I will just say that this has been one of the most neglected parts of the assessment process over the last 25 years, and I think we're paying the price for this. We need a process that is transparent at the follow-up stage, and we need to make sure that we gather the information necessary to learn from follow-up in terms of ensuring compliance, adapting conditions for approval, and learning for future assessment. Again, I'm happy to talk more about that.
The final point I will make is with respect to strategic and regional assessments. There's been agreement among all major non-governmental stakeholders for at least 15 years now—since the 2003 review—that strategic and regional assessments are critical to improving the effectiveness, efficiency, and fairness of federal project assessments, but we can't seem to make meaningful steps forward in spite of this consensus. I think the act as currently proposed needs more clarity on when these higher level assessments will be required, on the process, and on how the results will be used.
I will end here. I thank you very much and look forward to your questions.