Environment Committee on April 26th, 2018

[The Chair (Mrs. Deborah Schulte (King—Vaughan, Lib.)), Liberal, Deb Schulte]

Thank you very much.

I will just remind everyone that we're on television. Welcome, everyone. Today we will be continuing our study on Bill C-69.

I want to welcome our guests today. We have Meinhard Doelle from the Schulich School of Law from Dalhousie University. We have, from the Federation of Canadian Municipalities, Brock Carlton, Chief Executive Officer, and Matt Gemmel, Acting Manager, Policy and Research. We have, from the Ontario Federation of Anglers and Hunters, Matt DeMille, Manager, Fish and Wildlife Services. We have, from the Quebec Environmental Law Centre, Karine Péloffy, Managing Director. We have from Teck Resources Limited, Sheila Risbud, Director, Government Affairs, and Mark Freberg, Director, Permitting and Closure.

Thank you all very much for being here today.

You each have 10 minutes and then we'll move into questioning. We'll hear from all of you and then we'll go to questions. Who would like to start?

Mr. Doelle, go ahead.

[Dr. Meinhard Doelle, Professor, Schulich School of Law, Dalhousie University, As an Individual]

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.

[The Chair, Liberal, Deb Schulte]

Thank you very much.

You did have 30 seconds, so just remember the yellow card is not to stop. It means you only have a minute left.

Who would like to go next?

[Karine Péloffy, Managing Director, Québec Environmental Law Centre]

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?

[The Chair, Liberal, Deb Schulte]

You're almost out of time. If you just want to wrap up, that would be great.

I want to let you know that we got your paper distributed, so everybody has it in front of them, with the points you're making right now.

[Karine Péloffy]

There is a 10-page version but I guess it hasn't been translated yet.

[The Chair, Liberal, Deb Schulte]

When did it get submitted?

[Karine Péloffy]

On April 6.

[The Chair, Liberal, Deb Schulte]

Okay. We're working through the translation.

[Karine Péloffy]

Perhaps I could just make one last point.

We support the amendment proposed by Louis-Gilles Francoeur which consists in translating the word “sustainability” by “viabilité” rather than “durabilité”.

That is the last point I wanted to raise, for my francophone colleagues.

[The Chair, Liberal, Deb Schulte]

Thank you very much. There was a lot in here.

Next up, would you please go right ahead.

[Sheila Risbud, Director, Government Affairs, Teck Resources Limited]

Good morning, Madam Chair, members of the committee, and fellow witnesses.

It is an honour for me today to be here to present Teck's recommendations on Bill C-69.

My name is Sheila Risbud and I'm the Director of Government Affairs for Teck Resources. Previous to Teck, I worked for the Canadian Environmental Assessment Agency and for Environment and Climate Change Canada where I was directly involved in federal impact assessments. I am accompanied here today by my colleague Mark Freberg, who also has extensive environmental assessment experience in both Canada and Chile. We'd be happy to answer your questions after our presentation.

Proudly Canadian, Teck is a diversified natural resource company.

We are proud to employ over 8,000 people in Canada.

In Canada, we have six steelmaking coal operations, the country's largest open-pit copper mine, a zinc and lead smelting complex, and have interests in several mining development and oil sands projects. We also own or have interest in mines in Chile, Peru, and the United States. In all jurisdictions where we operate, we focus on building strong relationships with communities, indigenous people, and other stakeholders.

We have significant business arrangements in place with Chinese customers and investors, and from our headquarters in Vancouver, we compete with many of the world's largest mining companies. Many of our activities require environmental assessments, and as a project proponent in Canada, we believe that the design and implementation of this legislation is critical. It matters to ensuring the ongoing protection of the environment and it matters as well to the long-term competitiveness of our business and the jobs that depend on our success.

We support the government's effort to strengthen public confidence in the environmental assessment processes and to enhance indigenous people's participation and decision-making. For Teck, the intentions in the government's legislation align with core business values. In many instances, they describe our existing approach to managing our relationship with the environment and the community at large.

New rules that result in greater public confidence in environmental protections will help support and attract investment in this country. However, this represents one part of the challenge as we see it. Project proponents need to know that approval processes will not only be rigorous but can be counted on and result in clear, timely decisions. We're encouraged by many elements within Bill C-69, but we would like to see more emphasis on a predictable process that delivers regulatory certainty for all parties.

This is specially important now, at a time when Canada has seen its share of global mining investments decrease significantly in recent years.

Getting this right can help turn the situation around.

Teck supports the amendments that the Mining Association of Canada highlighted in its presentation to this committee on March 29. Today, we'd like to briefly highlight areas of the legislation that we believe could benefit from additional clarity. I'll focus my remarks on the proposed early planning phase, enhanced indigenous peoples' participation and decision-making, and competitiveness in cost-recovery restructures.

First, let me say that we support the inclusion of an early planning phase. This reflect's Teck's existing approach to engaging early with stakeholders and indigenous peoples, and we believe it should be considered a best practice internationally. However, we're concerned that as currently written, the proposed early planning phase does not identify clear milestones within the 180-day period.

Defining milestones with clear timelines for the various steps would provide certainty and transparency for all parties involved in the assessment. Proponents need to understand what is expected of them in order to adequately meet early planning requirements. Without this clarity, the early planning phase could continue indefinitely.

For example, we recommend that the agency be given set times to deliver the summary of issues document. This is the document that describes the issues that the agency has heard to date and the decision on whether an impact assessment is required. We also recommend that the early planning phase contain a mechanism to incorporate information already collected by a proponent or another jurisdiction prior to the 180-day period.

Incorporating existing information could significantly streamline the process and incent proponents to conduct even earlier positive engagement with potentially impacted communities and indigenous peoples.

I also recommend that sufficient resources be allocated to the new impact assessment agency to manage this early planning phase well, ensuring it has the capacity to meet its expanded consultation obligations as well as to review scientific data and indigenous knowledge.

So, to summarize, while Teck supports early planning, clear and predictable milestones and sufficient resources are required in order to successfully meat this phase's intent of greater transparency and predictability.

Another aspect of this bill that we support is the early and inclusive engagement and participation of indigenous peoples at every stage of the impact assessment process. Teck has very positive experiences from early engagement with indigenous peoples, and we have formalized early, inclusive dialogue into our corporate-wide indigenous peoples policy. We believe this approach contributes to reconciliation while supporting the shared benefits of resource development.

However, this legislation needs to result in clear, consistent practices that governments, indigenous peoples, and proponents can rely on. We hope you will agree that for too long, there has been a positive discussion about the need to do better, but perhaps too little by way of clearly defining how we can make this work.

Teck supports the government's commitment to the adoption and implementation of the UN Declaration on Indigenous Peoples. Currently, however, it is not clear how Bill C-69 will be coordinated with the government's plans to implement the UN declaration, particularly with regard to free, prior, and informed consent. We recommend that the government engage with industry, provinces, territories, and indigenous governments to develop a process for the implementation of the UN declaration, with a focus on achieving complete clarity around what is expected when it comes to the terms “free, prior, and informed consent”.

Teck is also pleased to see crown consultation begin earlier in the impact assessment process. For this process to be successful, however, we recommend that there be clarity on the scope of consultation and the division or coordination of consultation efforts between the crown and the proponent.

Once again, we support the government's intent to meaningfully involve indigenous peoples in impact assessment but seek clarity on how this will be carried out.

We recommend that clear criteria be established that outline when and how the minister will delegate impact assessment responsibilities.

The last aspect of Bill C-69 we would like to comment on is the structure of cost recovery under proposed sections 76 through 80 of the legislation. We recognize that reasonable cost recovery is a standard practice in regulatory and permitting processes, and we have experience with cost recovery regimes. We believe that federal cost calculations must consider integration with provincial fees related to the same project. This would be consistent with the federal government's commitment to coordination with provinces to support the one project, one assessment principle.

We also believe that federal cost recovery should consider any other fees for mining projects under other federal legislation such as the Fisheries Act. Doing so would remove costly duplication and support greater cost competitiveness in Canada. One place to coordinate this would be in the proposed impact assessment coordination plan.

We therefore recommend that the agency should be mandated to coordinate cost recovery with other jurisdictions and other federal departments when costs are included under other legislation.

In conclusion, we want to reiterate Teck's overall support for this government's intent to improve environmental and regulatory processes.

We support the government's efforts in this regard. We are pleased to see that some of our recommendations are being considered in this bill.

We appreciate this opportunity to appear before you today and to highlight further recommendations that we believe provide clarity in Bill C-69. We want to see Canada succeed, becoming a greater destination for global mining investment and a leader in responsible project development, while protecting the environment, advancing reconciliation with indigenous peoples, and creating economic opportunities for all Canadians.

Thank you. I will be pleased to answer your questions.

[The Chair, Liberal, Deb Schulte]

Thank you, Ms. Risbud. We really appreciate that.

Next up is Mr. Carlton.

[Brock Carlton, Chief Executive Officer, Federation of Canadian Municipalities]

Thank you very much, Madam Chair.

Thank you for receiving us today.

I look around the room and I see friends and colleagues whom I've worked with over many years. It's nice to see you, nice to engage in this conversation. It's so important.

FCM certainly welcomes this opportunity to bring Canada's municipal voice to your review of Bill C-69. As environmental and economic leaders, municipalities understand and support federal efforts to improve environmental assessment processes. Municipalities are uniquely impacted by these processes, sometime as proponents, sometimes as interested participants, but always as a level of government protecting the interests of our communities.

Municipalities are regular participants in environmental assessment where outcomes have a local impact on areas of municipal responsibility, such as environmental sustainability, emergency response planning, land use planning, and the construction and maintenance of municipal infrastructure.

At the same time, many projects, including those within the resource development sector, are important to economic prosperity and the quality of life in local communities. In addition to these, as participants, municipal governments are also project proponents directly affected by federal environmental assessments when municipal infrastructure projects are subject to federal approval.

Each of the expert panel and House standing committee reports, which inform the changes proposed in Bill C-69, noted the unique and growing role of municipalities within environmental assessment processes.

FCM has filed nine submissions over the last year with recommendations to improve environmental and regulatory review processes. Our recommendations reflect the views of the diverse membership of more than 2,000 municipalities representing over 90% of the Canadian population. With responsibility for 60% of the country's public infrastructure, municipalities help drive Canada's economic prosperity, environmental sustainability, and quality of life.

To address Bill C-69 I would like to walk the committee through each of the acts that are being changed, starting with the Navigation Protection Act. FCM has consistently recommended aligning the legislation with current transportation demands, which depend more on the construction of bridges and roads than expanding water navigation. In 2009, the former Navigable Waters Protection Act's scope was refined with input from municipalities to include an exemption for minor works and waters with little impact on navigation. Several amendments in 2012 brought aspects of the legislation closer to Canada's modern realities. These changes addressed municipal concerns about project delays and expenses caused by federal reviews triggered by small-scale projects.

FCM recognizes and shares concerns about the large number of lakes and rivers that no longer have oversight under the Navigation Protection Act. However, the proposed Canadian navigable waters act includes changes that FCM did not call for and will have significant impacts on municipalities. These include a new requirement that project proponents notify and consult on proposed works on all navigable waters, including both scheduled and non-scheduled water bodies, and a new resolution process that would allow the Minister of Transport to review navigation concerns on non-scheduled water bodies.

FCM expects these changes will result in significantly more municipal infrastructure projects falling under federal review, and we are concerned about the expansion of the scope of the legislation to include, effectively, a new class of works that will fall outside of the existing minor works and existing major works categories. These in-between works are likely to include municipal infrastructure projects that are critical to public safety, transportation, and commerce—for example, bridges, water control structures, and flood mitigation structures. We're not advocating that all bridges, water control structures, etc., be exempt, but we believe there is a consideration for the scale of a project and scale of the waterway that needs to be taken into account.

To address these, we recommend, first, that Transport Canada conduct a review of the existing minor works order, to assess whether more types of works need to be added. Second, we recommend that Transport Canada create a standardized mechanism for project proponents who notify the public in order to meet new requirements under the act. Third, we highlight the importance of enforcing the timelines for public notification and consultation outlined in proposed subsections 10(3), 10.1(1), and 10.1(3) as a means of reducing untimely delays. We recommend that these timelines are reviewed and amended as provided for in regulation, if they are deemed ineffective.

The second part of Bill C-69 that FCM is focused on is changes to the Canadian Environmental Assessment Act. FCM supports the proposed approach of having designated projects jointly reviewed by the proposed impact assessment agency of Canada and the relevant federal life-cycle regulators. We also support broadening the scope of assessments to include economic, social, and health impacts, and the “one project, one review” objective that Bill C-69 strives to achieve.

Still, we believe that Bill C-69 does not go far enough in recognizing the important role municipalities play in relation to designated projects. For that reason, we are proposing the following amendments: that proposed section 11 of the impact assessment act be expanded to expressly include consultation with municipal governments; that this phrase, “comments from a municipal government impacted by the designated project”, be added to the factors that must be considered by the impact assessment agency of Canada under proposed subsection 22(1) of the impact assessment act; and that, as a result of the above amendments, “consultation with municipalities” be added to the preamble of the impact assessment act, making it clear that this is an objective of the legislation.

FCM strongly believes that early engagement with municipalities leads to better outcomes. Therefore, we are also calling for consultation with municipalities to be a required component of the initial project description, which proponents must file with the impact assessment agency of Canada.

Finally, I'd like to turn to the National Energy Board Act. Municipalities interact daily with the existing network of NEB-regulated pipelines and power transmission lines. Communities of all sizes benefit from economic activity associated with resource development and energy transportation infrastructure. Municipal governments are directly impacted by pipelines through emergency response planning, land use planning, and construction. There are several changes the government is proposing that are in line with FCM's recommendations, but I'd like to address a few of the recommendations made by FCM that are not clearly addressed. Notably, FCM called for the NEB Act to be amended to recognize municipal bylaws and require pipeline companies and the NEB to abide by them, within the limits of the Constitution. We also said that the NEB Act should be amended to provide municipalities with a direct role in deciding the local route that proposed pipeline projects take.

While the proposed changes go a long way to improving the public consultation process, they do not go far enough. Codifying the requirement to consult with municipalities in the legislation will go further to address municipal concerns that have arisen during recent NEB hearings.

In addition, FCM is recommending that the impact assessment agency of Canada and the Canadian energy regulator be granted greater flexibility in determining the maximum time limits for conducting an impact assessment of a proposed pipeline. While FCM supports timelines for environmental and regulatory reviews, we recommend that these be determined on a project-by-project basis.

In conclusion, we want to stress that it will be necessary for the federal government to actively engage and consult municipal governments as regulations for these acts are created. As environmental and economic leaders, municipalities understand the need to balance economic activity and environmental protection as complementary priorities. We believe our recommendations help to achieve this balance.

We thank you again, and we look forward to your questions when they arise.

[The Chair, Liberal, Deb Schulte]

Thank you very much. We appreciate that.

Now we'll go to Mr. DeMille.

[Matt DeMille, Manager, Fish and Wildlife Services, Ontario Federation of Anglers and Hunters]

Thank you.

Good morning, Madam Chair and members of the committee.

On behalf of the Ontario Federation of Anglers and Hunters, our 100,000 members, supporters, and subscribers, and our 740 clubs across Ontario, thank you for inviting us here today to talk about elements of Bill C-69 that are critically important to our organization.

Our primary interest in the bill is the Canadian navigable waters act. Although our organization has a very keen interest in the environmental considerations for projects that occur in and around water, our knowledge and experience in Ontario are related mostly to the Fisheries Act and provincial statutes and regulatory processes, such as Ontario's Environmental Assessment Act. Therefore, we will focus our comments today on the angler, hunter, and trapper perspectives on navigation protection.

From the time of the fur trade, and well before for indigenous peoples, navigable waters have been critical for accessing resources in Canada. Water-based navigation remains woven into the cultural fabric and social identity of many indigenous and non-indigenous Canadians. Approximately one-quarter of Canadians fish, hunt, and trap, and they contribute $15.2 billion to the Canadian economy every year. Fishing, hunting, and trapping are very relevant in Canada today, and the right to navigation is important to the Canadians who enjoy those activities.

The idea of a public right to navigation is almost as old as the country itself, with navigation legislation having origins dating back to the late 1800s. Although societal demand for water-based transportation has changed dramatically over time, there remains a demand for safe and accessible navigable waters. To achieve this requires strong legislative oversight by the federal government.

First, we must know what navigability means to Canadians—what are we trying to protect? The most obvious connection to navigability for some Canadians will be lake freighters on the Great Lakes or cabin cruisers on the Rideau Canal or the Trent-Severn Waterway—big waters and big boats.

When our members think about navigability, however, a high volume of traffic is the last thing they want to see. They are more interested in the navigable backwaters of Canada. Small rivers, streams, creeks, marshes, and other smaller watercourses are important gateways to fishing, hunting, and trapping opportunities. The definition of “navigable waters” in the proposed Canadian navigable waters act has been enhanced and now provides more detail, with specific recognition for recreational use. This is a positive amendment that better reflects our idea of navigability.

It is our position that navigation legislation is not intended to be environmental legislation. Are there opportunities for navigation protection to provide a checkpoint to ensure that environmental legislation and regulatory processes are happening as they should? Definitely. The projects occurring in and around water should be considered from both a navigation and an environmental perspective. But if we are relying on this act—past, present, or future forms of it—to be a significant line of defence for environmental protection, then we have to question the effectiveness of our primary environmental statutes, such as the Fisheries Act and the impact assessment act.

From our perspective, protecting navigability is not about adding red tape for proponents or slowing down development. Large-scale proponent-driven projects are already scrutinized under other legislation and often across multiple jurisdictions. These projects should absolutely be subject to navigability legislation, but the regulatory process must be done in conjunction with other federal approval processes to make it as efficient as possible for the proponent's and the agency's benefit. The proposed amendments to have the prohibition apply to major works in any navigable water is a step in the right direction, but more about that later.

We are concerned that regulatory processes tend to focus on these proponent-driven medium- and large-scale projects, for which prohibitions as well as permitting and approval requirements are well established in the development cycle. It is the smaller-scale obstructions that do not have the same proponent-agency relationship, because the responsible party is more likely to be a private landowner who won't be disclosing their intent to erect a fence, a wire, a rope, or other obstruction across a navigable water. In most cases, the individual is unaware that they are breaking the law or even that navigation legislation exists. These obstructions won't be flagged, but they will impede public navigation and create significant safety concerns.

For obstructions—and it is important to differentiate obstructions from works or projects—the presence of a legal deterrent and subsequent government recourse to address contraventions can be as important for protecting navigability as the regulatory and permitting process is for traditional proponent-led projects. We want to prevent obstructions to navigability to the greatest degree possible, because the average Canadian can't and won't fight these issues in the courts. When navigability concerns do arise, Canadians expect and rely on the federal government to protect navigability. For this reason, we are pleased to see that the amended act proposes to prohibit obstructions in any navigable water. In our minds, this is a very important change.

In addition to the legislative measures, navigation protection requires strong education and outreach to increase awareness among Canadians. This should accompany the implementation of the Canadian navigable waters act, particularly as it relates to obstructions that cause serious navigability and public safety concerns.

To maintain safe and accessible waters in Canada, we need strong legislation with clear and comprehensive provisions that outline where, when, and how the government will protect navigation. The following are a few more specific comments on the amended navigation legislation proposed in Bill C-69.

There has been much discussion about the 2009 and 2012 amendments to the navigation legislation. Much of what I have read so far has been negative, but that isn't entirely fair. The limitation of the legislation to a scheduled list of water bodies was considered a major setback for navigation protection; however, the 2009 amendments established a foundation for classifying different works or projects. This has been maintained in the Canadian navigable waters act and expanded with the inclusion of major works.

We believe a classification system that enables prioritization of projects being reviewed for navigation protection is necessary. First, there are differences in the level of scrutiny required for different types of projects. Think of the differences between a dock and a dam. In a perfect world, we would want all works, regardless of type, to be assessed and authorized by a regulatory agency. This may have been possible under the broad nature of the Navigable Waters Protection Act prior to 2009. However, we must acknowledge the fiscal realities of the navigation protection program and the fact that the administrative burden in reviewing all minor works may not be worth the added value to navigation protection. A regulatory triage is now commonly used by agencies to implement regulatory programs.

As always, the devil is in the details, and the amended legislation only tells part of the story. We can likely make relatively safe assumptions about what will be defined as minor works because of the existing minor works order under the Navigation Protection Act, but we do not know what types of projects will be included as major works. To achieve a complete and effective major works order, the minister will need to establish a transparent public consultation process. Only when we know what types of projects are classified as minor and major will we know what is left in between, in other words, what projects won't be subject to navigation protection in unlisted, or 99%, of Canadian waters.

We are still not convinced that special classification of waters in a schedule is necessary or appropriate. If the government can get the classes of works right, then classes of waters shouldn't be necessary.

I hope we have been able to illustrate a different perspective on the proposals to amend navigation legislation and have offered the committee value-added feedback that will contribute to your study and ultimately bring meaningful change to the bill and its implementation.

Thank you again, Madam Chair and members of the committee, for the invitation and for your attention today. I look forward to the questions.

[The Chair, Liberal, Deb Schulte]

Thank you very much for your thoughtful presentation.

We will start with Mr. Bossio with questioning.

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

Thank you, Madam Chair.

Thank you, guests, for being here today. We really appreciate the testimony you have brought to this committee and the huge efforts you have put forward in trying to address some of the concerns around this bill.

I want to address public participation, and I'm going to direct my question to Mr. Doelle.

Once again, thank you very much for being here today.

The act talks about public participation, but it doesn't really delve much beyond that. Do you feel there should be a definition for meaningful public participation, and do you feel there need to be parameters that are defined around meaningful public participation in different sections of the act, for example, a definition within proposed section 2 and parameters within proposed sections 6, 11, 22, 27, 31, or 51?

Could you provide some details there?

[Dr. Meinhard Doelle]

I think public participation is a good example of the kinds of issues I was talking about more generically, this question of how you move from empowering decision-makers to do the right thing to properly guiding the decision-making. The short answer is I think a definition for meaningful public participation would be a helpful first step, but I think then you need to work through the act and identify appropriate direction, statutory and regulatory, to ensure that good decisions will be made in the future about public participation.

For me, a good starting point for that would be to think about setting up an advisory committee for the planning phase and start to think about, and probably in regulation, who should be on those kinds of advisory committees. If you get it right early in the planning phase, and you get all the key interests involved in designing the process, designing the scope, determining what information you need to make good decisions at the end of the day, then I think a lot of the challenges can be overcome early.

But I think you want to also think about how you make good decisions as you go along. For example, as I said in my presentation, we often think and rightly so, of the panel review as being the ultimate and the highest level of assessment, but even in that context different mechanisms sometimes are most effective. It's not always most effective to have a traditional-style hearing. We've had provision for mediation, ADR, for a long time, and we've never used it. So thinking carefully about how we ensure the broad range of tools are used effectively to achieve good outcomes is critical, because often bringing people together.... I can talk at length about what we did with strategic assessments in Nova Scotia on very controversial issues, like aquaculture, where we brought people with opposing views together. At the starting point, people were saying a moratorium or nothing, and we came up with a design, with a solution, that everyone applauded.

Having good and effective public participation processes that work for the context is critical. Depending on what first nations or indigenous communities are involved, having public participation processes that work for them is critical to properly engaging them. If you want to avoid opposition and bring along those who are affected and have a process that results in a common vision at the end, public participation is critical, and providing the proper guidance in the statute and through regulations.

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

Ms. Péloffy, would you like to add to that?

[Karine Péloffy]

Yes.

To the extent the agency would act as a secretariat to the commission in all contexts, maybe you could add as a purpose of the agency significant, meaningful public participation. A definition could be helpful also, as well as insisting on public hearings, not just submitting comments online. Getting people in the room together is a great way to learn, much better than it being just based on paper, at least that's been one key success in Quebec.

To be fair, I've looked for a legal component that showed why the BAPE worked so well in Quebec. It's a question of institutional culture, so the first people who will be named as commissioners and will do reviews will set the culture of the new institution. That's not a legal requirement. It's the importance of the first people who will be there.

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

Thank you so much.

I was going to give Mr. Carlton an opportunity.

I know you had raised participation in your submission as well, in particular with municipalities. Meaningful public participation, would you agree, would capture that notion?

[Brock Carlton]

No, I wouldn't agree with that, not that I disagree with meaningful public consultation. I agree with meaningful public consultation. What I don't agree with is lumping municipal government into something as generic as public participation. Municipal governments are governments and thus our comments are to single out municipalities as unique creatures or features of any kind of consultation process.

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

Thank you.

[The Chair, Liberal, Deb Schulte]

Thank you very much.

Monsieur Godin.