Good morning, Madam Chair.
I want to thank the committee for the invitation. It is an honour for me to testify on behalf of the Quebec Environment Law Centre, the QELC.
This bill will apply to an enormous territory and three oceans. This is an extremely important moment in our history. As regards climate and biodiversity, it has never been as urgent to act as it is at this time.
The QELC is the only independent organization that provides expertise in environmental law in Quebec, and it has done so since 1989. Over the past years, we have been involved in several legal cases regarding the now-dismantled Stephen Harper era legal regime, particularly cases related to the Energy East pipeline project, the protection of the beluga in Cacouna, the protection of the rights of francophones in the National Energy Board assessment process, as well as the application of provincial law to projects, and more specifically, to its public participation processes. These cases reflect the tenor of our recommendations.
In addition, since 2016, I have been a member of the multilateral advisory committee of the Minister of Environment and Climate Change, entrusted, among other things, with studying the reform of environmental assessment. I am actively involved in that process. I listened to most of the testimony from the English Canada environmental groups, as well as from indigenous groups. The QELC supports their proposals overall, including those made by Mr. Doelle.
I will focus my remarks on aspects specific to Quebec, for several reasons.
First, Quebec has had a unique experience. It began to hold public consultations to assess three dimensions of environmental projects—ecological, social and economic—in 1978, that is to say a good 10 years or so before the federal government introduced an environmental assessment act.
Second, the general framework of Quebec's environmental protection was greatly modernized in the past year, and there were breakthroughs on several fundamental issues discussed in Bill C-69; it could be useful to examine that in the course of your study.
Third, the structure of Bill C-69 is very similar to the structure of the Quebec regime; however, we have some major concerns. The document I provided to you summarizes the basic features that have allowed the Quebec regime to have some success. If some of those basic elements are absent from its federal counterpart, it may not work. I am referring particularly to public participation and the independence of the committees that will examine the projects.
I often refer to the model of the Bureau d'audiences publiques sur l'environnement du Québec, the BAPE, which will be 40 years old this year. It provides basic guarantees on public participation, and the public trusts it and has participated actively over those 40 years in the study of close to 350 projects.
I seem to be the only Quebec representative to testify before this federal committee, with the exception of a few Cree, Algonquin and Inuit representatives, although Quebec represents 22% of the Canadian population, and Quebeckers were very involved in the assessment of controversial projects under the dismantled 2012 federal regime. Moreover, in our area, we have a multitude of experts who could have come to inform the committee on some fundamental issues, and more importantly, suggest concrete solutions on the basis of what works in Quebec. I deplore the absence of those experts at the committee, and I invite you once again to invite them to appear before you.
I am going to present the QELC position. We have provided a bilingual summary in case our more complete brief has not yet been translated. Some detailed amendments will follow by next Monday. I will also refer to the brief submitted to the committee by Louis-Gilles Francoeur, the former vice-president of BAPE, particularly with regard to the BAPE procedure.
I will then briefly present collective recommendations of lawyers and scholars on considerations of climate in the two acts. Also, it will be my pleasure to take questions in English.
First, it's very important to respect the rights and laws of provinces and indigenous jurisdictions, including the right to assess and approve projects on their territory. When those projects must also be assessed by the federal government, the favoured process should be collaborative. Subsection 39(2) of the Impact Assessment Act forbidding this collaboration for pipelines, nuclear energy and offshore oil and gas must be removed. The second process to be favoured after collaboration would be duplication. That is constitutionally valid, but it is ineffective and does not lead to the best decisions. Finally, you could resort to substitution, but if it comes to that, it should be done according to the highest standards, in keeping with the expert committee's recommendations in that respect, and especially according to objective criteria. I am going to anticipate a question here and specify that the existence of an emissions limit in a province is not an objective criteria that justifies exemption from federal assessment.
The second important point is full participation in assessments. That is really at the heart of the success of the Quebec regime. The organization that performs the assessments in Quebec is called the Bureau d'audiences publiques sur l'environnement; the public's participation is thus the foundation of the exercise, rather than a public opinion survey to attempt to obtain so-called social licence.
According to Louis-Gilles Francoeur, public hearings result from the evolution of civilization. The BAPE model is inspired from direct participation mechanisms that were created after the American Revolution. The idea was that by forcing economic and technocratic elites to come and explain themselves before these direct democracy institutions, the public hearings would, according to Alexis de Tocqueville, neutralize the social forces that have the same frames of reference, the same cultures and sometimes similar interests, but rarely have to be accountable.
The real strength of the BAPE process is its first part, which is collecting information. I will describe it briefly. It is based on an investigative model where the commission and citizens play the role of attorneys, rather than the quasi-judicial adversarial model which seems to be in effect in the rest of Canada.
In the first phase, the public addresses its questions directly to the promoter. The public literally acts as counsel of the review commission. The commission then repeats the public's questions and puts them to the promoter. Afterwards, those questions have all of the weight of the commission's questions, and the promoter is obliged to answer them. It's a type of symbiosis between the work of the commission and the public's participation.
In addition to its active participation, the public sees the dossier being substantiated before it. It is a collective method of getting to know and owning the file that guarantees the briefs, that in turn guarantee the quality, the political power and the credibility of the report that will be issued at the end. In Quebec, we humbly believe that this type of public participation should be the preferred mode, because it is a better way of informing the public without the rigid constraints of a quasi-judicial process.
This power to compel all of the key actors to provide answers and documents, including the promoter and other parties, is really central to the BAPE commission hearings in Quebec. I have some concerns about the current bill, more precisely regarding subsection 53(6), where the power to compel is not strong enough. We will see this in the detailed amendments, but generally speaking, if you must go before a court in order to have one of the commission's orders applied, you have just basically completely abolished its power.
Another important point is that assessment commissions and the energy board should really be independent from the industry and the government. The bill maintains minimal numbers of appointees on review panels from the pipelines, nuclear energy and offshore oil and gas regulators, which in our opinion is unacceptable. In order to restore public trust, there has to be a new independent assessment institution for all of projects from all of the industries.
Personally, I have absolutely nothing against regulatory organizations, but they are not institutionally impartial, because their work depends on their being able to continue to regulate an industry. This implies that they will always agree to have projects going forward. It's one of the reasons why we can't trust them. Those individuals have no place being on a commission, but they can play a role as experts.
Since I have very little time left, I will quickly speak to the method of appointing commissioners. That process absolutely has to be depoliticized, either by creating a list of commissioners who are capable of acting as such, or by designating specific commissioners for a review commission. The minister is not the one who should do that. There should be a more independent process. It could be a committee made up of two-thirds of parliamentarians, a multipartite committee with the Auditor General or the Commissioner of the Environment.
Do I still have some time?