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.
12:45 p.m.
Liberal
The Chair Liberal Deb Schulte
Thank you for that. I'm sorry to rush you. We're just in a time crunch now.
Mr. Fast.
12:45 p.m.
Conservative
Ed Fast Conservative Abbotsford, BC
Thank you, Madam Chair.
My question is directed to you, Mr. Doelle. You mentioned that specialized expertise should be present in an appeal mechanism. You also said that Canada should be developing an environmental “core”. I believe that's the term you used.
12:45 p.m.
Professor, Schulich School of Law, Dalhousie University, As an Individual
I said “court”.
12:45 p.m.
Conservative
Ed Fast Conservative Abbotsford, BC
You said “court”.
I want to refer you to the testimony of Ms. Péloffy. She said she would prefer generalists making these decisions, at least in the first instance.
Do you agree with that assessment?
12:45 p.m.
Professor, Schulich School of Law, Dalhousie University, As an Individual
Yes.
I think my co-panellist was speaking about the panel decisions—
12:45 p.m.
Professor, Schulich School of Law, Dalhousie University, As an Individual
—whereas my comment was about the more specialized function of the tribunal to review the decisions that are being made. I think you need specialized legal expertise and EA expertise to determine whether the determination that is made is appropriate.
I wouldn't want the appeals tribunal to second-guess the decisions that are being made. That's not their job. I want the panel to make the determination about what the impacts are, and so on.
I would advocate for an appeals tribunal that has the expertise to determine whether the criteria and direction that are being given in the act and the regulations are being properly applied by the decision-makers. Beyond that, decision-makers should be free to exercise the discretion they've been given. That requires the broader, general expertise that my co-panellist, I think, was talking about.
12:45 p.m.
Conservative
Ed Fast Conservative Abbotsford, BC
Okay.
Do you believe the expertise that's required in the appeal process is missing in Canada right now?
12:45 p.m.
Professor, Schulich School of Law, Dalhousie University, As an Individual
I don't think we're missing the expertise. We're just missing the institution to apply it.
12:45 p.m.
Conservative
Ed Fast Conservative Abbotsford, BC
Okay.
Let me talk to you a little about the intersection of the science and the political reality, which is where the decision-makers are making political decisions. Even though they should be basing it on science, a political consideration always comes into play.
At the end of the day, are you still comfortable with having politicians make the final decision on any particular project?
12:45 p.m.
Professor, Schulich School of Law, Dalhousie University, As an Individual
I am.
I have no difficulty with that. I think what you want...and there are different ways to do this. We can also have an independent body that makes decisions, similar to what the offshore boards and the NEB, and so on, do. But I'm completely comfortable with the idea of having a political decision made, as long as we have the proper connection between the assessment process, the conclusions and recommendations, and the determination made, so that we're transparent about the outcome of the assessment and how that relates to the political decision that is being made.
12:50 p.m.
Conservative
Ed Fast Conservative Abbotsford, BC
Obviously, this bill continues to keep the final decision—which is a political one at the cabinet level—a ministerial decision.
Do you believe there's an opportunity, perhaps, to move at least a preliminary political decision further forward in the process so that project applicants wouldn't have to expend a lot of money before being told they're sorry but politically they can't support this project?
12:50 p.m.
Professor, Schulich School of Law, Dalhousie University, As an Individual
I think the opportunity to say no is there. Would it be helpful to develop some criteria around how to apply that? I would go back to my original comments. I think whenever there is discretion, it's useful to provide direction about how that discretion is to be exercised. But I think we have to be more careful about the idea of saying yes without going through the process.
12:50 p.m.
Professor, Schulich School of Law, Dalhousie University, As an Individual
I think it's fair to say the political support to approve this project isn't there, but I think we need the information to determine whether it's a good project. To get that information, we need to go through the process.
12:50 p.m.
Liberal
William Amos Liberal Pontiac, QC
Thank you, Madam Chair.
Mr. Carlton, your colleague Ray Orb has worked for many years on rural municipal issues in Saskatchewan and nationally. I have a great deal of respect for the leadership he's brought.
I know that small municipalities have complained in the past about the sheer burden of permit seeking, and that drove some of the reform made by the previous administration.
However, I'd like to get your sense of the appropriate approach to defining these middle-ground clashes of works between minor and major works in the context of navigable waters, because the context is a bit different from an impact assessment. In the context of navigation, we're dealing solely with federal regulatory power. There's no overlap here. If a project is subject to a different degree of scrutiny, there's not going to be some backup.
I'm interested to hear if you have a set of criteria that you think would be best used.
12:50 p.m.
Acting Manager, Policy and Research, Federation of Canadian Municipalities
I'd be happy to take that.
The short answer is no, we haven't developed a set of criteria, but in making the recommendation to review the minor works order, I think that's exactly what we intend to do. It's not for Brock and me to say. It's the engineers and the lawyers who are building and approving these projects who really can provide better advice on what would be appropriate to include under the minor works order.
I would just emphasize, and to tie into your earlier comments, why we think that's important is that, previous to 2009 and 2012, there were many water bodies that were on the schedule. That was reduced, and now there's a new process to add waters to the schedule. That's there and we support that. Now you have the application in the act for all navigable waters. It's a great expansion of the act. Works and undertakings on those waters don't have to receive the same authorization—we support that—but now there's a new process of notification, public consultation, and a dispute resolution mechanism that the minister is responsible for. That's a brand new process and it's going to take time for all of us, I think, consistent with the comments that Mr. Fisher made, for the public to understand what that process is, for the municipalities and their proponents to understand what that process is.
I think our three recommendations around the Navigation Protection Act are really to say let's pause here and recognize this broader application of the act, and have the experts, the engineers, municipalities, etc., be able to say there are some other types of works and activities that really would be more appropriately placed under minor work orders in this context for non-scheduled water bodies. Then ensure that the process, as Mr. Fisher was saying, for notifying the public is as clear as possible to follow and doesn't create new administrative burdens or complexities, especially for smaller communities. Finally, the timeline that's in place for that public consultation period and for the dispute resolution process should be adhered to and reviewed in the future if it's not appropriate.
April 26th, 2018 / 12:55 p.m.
Liberal
William Amos Liberal Pontiac, QC
I understand. I appreciate that response.
I do hope that the FCM will be able to bring advice to the government on how best also to engage in a cumulative effects study, and also on managing flows. These are all issues.... I appreciate that sometimes it's the delays around permitting that frustrate municipalities, but I think municipalities also have a strong interest in ensuring that they're not affected by reduction in flows from projects. It kind of goes both ways. Municipalities have an interest in this being done well and water flows being protected.
I'd like to direct my last question to Mr. Doelle to expand on the issue of a specialized tribunal.
You've gone in some direction here on what kind of criteria, what kind of decisions they could be involved in. I wonder if you have advice on what kind of simple enabling provision might best be framed for legislation of this sort. Perhaps it could be developed later on in a regulation. What kinds of core aspects do you think would need to be brought into legislation so that the concept could be more fully consulted upon?
If you want to submit that in writing after, I'd be very interested to hear your or any other witness's thoughts on that.
12:55 p.m.
Professor, Schulich School of Law, Dalhousie University, As an Individual
The short answer is that I'd be happy to provide some thoughts on that in writing, if you'd like.
I don't think you need a whole lot in the act. I recognize that it's late in the game here to provide detail, but you do want to establish it in the act. I think you want to be clear in the legislation what decisions are subject to the oversight from this tribunal. If you could then provide clarity around who can appeal, that would be wonderful. I think a lot of the rest of it you could probably set out in regulations.
I'm happy to give that some further thought and make a submission on that.
12:55 p.m.
Green
Elizabeth May Green Saanich—Gulf Islands, BC
Thank you very much, Mr. Amos.
In your list of discretionary pieces that you found through the act, I think there are examples. I have a subjective question. Have you ever seen an act with this much discretion without guidance for a minister?
12:55 p.m.
Professor, Schulich School of Law, Dalhousie University, As an Individual
In my experience in environmental law, there's long been a tendency to be very empowering and discretionary. When I look, for example, at Nova Scotia's Environment Act, it's largely enabling legislation. I think part of the challenge is, with the early environmental laws, they had to be enabling. My basic point is that we have 25 years of experience, so it's time to direct that discretion better.
12:55 p.m.
Liberal
The Chair Liberal Deb Schulte
Thank you.
Thank you very much to all of our panellists. We know you have busy lives, and we appreciate the time you've taken to come and share your testimony. As you can see, we were very focused on what you had to say and there were good questions that delved down into some of it.
I want to remind the committee before we end the meeting that we have the commissioner coming in on Tuesday. She'll be presenting for an hour. The second hour will be the department.
I want to make sure that members have on the panels who they want, so if members have some suggestions, please let the clerk and me know who they would be.
