Environment Committee on April 26th, 2018

[Joël Godin, Conservative, Portneuf—Jacques-Cartier, QC]

Thank you, Madam Chair.

I'd like to thank all of the witnesses for being here this morning. There is good representation from all over Canada. First, we have a representative from Nova Scotia. We also have the Federation of Canadian Municipalities which represents the entire country. Ontario is represented by the Ontario Federation of Anglers and Hunters. Quebec is represented by the Quebec Environmental Law Centre. And finally, we have people from Teck Resources in British Columbia.

I'll start with Mr. Doelle.

The project and comments you presented were interesting, but I'd like to go a bit further on the topic of the appeal process before a specialized tribunal. That is an interesting point, but it is at the end of the process.

Would it not be better to put clearer rules and guidelines in place to accelerate the process and lighten the administrative aspect, so that we don't have to get to that stage of the procedure?

[Dr. Meinhard Doelle]

If I understand your question correctly, I'm advocating for an appeals body that would potentially review decisions throughout the process, starting potentially from triggering decisions and then determinations on the scope, the information that is needed, and process options—all along the way. To me, the basic concept is that you want appropriate statutory direction, and you want appropriate regulatory direction. There will still be discretion. We need discretion to make good decisions.

Also, then, you have the opportunity to appeal the decision, if you're unhappy with it, to this independent tribunal. That independent tribunal, throughout the process, then can ensure consistent application and the responsible application of the guidance that is provided in the statute and regulations.

I'm actually not at all focused on the ultimate decision. The ultimate decision, in my view, should be a political decision. Even there, there can be aspects that can be reviewable. For example, whether or not the decision-maker has applied the factors in proposed section 63 should be reviewable, but the decision itself, in my view, shouldn't be.

I do see the appeals body as an efficient way of developing a consistent application of the statutory and regulatory criteria that are established for all the critical decisions in the process.

[Joël Godin, Conservative, Portneuf—Jacques-Cartier, QC]

Thank you.

If we create an act, we may as well define things as clearly as we can. The appeal tribunal — let's call it that — is indeed an option, but we try to use that as little as possible. The rules and laws should be very clear.

I will now address Ms. Péloffy.

I don't have a question for you, Ms. Péloffy, but I have to admit that I was very disappointed by one of your comments. Your are the only one to have spoken about the Harper government. Everyone who is here, around the table, is here to build the future. We are looking forward. I feel I must tell you that certain things were achieved in the past. I liked Mr. Doelle's comment that the act that was brought in 25 years ago was a step forward. The time has come for us to take other steps. I thank all of the parliamentarians who are working to do that. I didn't like your comment. I simply want to say, concerning Mr. Harper's record, that it is not a blank page; in fact, we would need more than a page to list all of the actions taken. I'd like you to hear this message.

As for representation, please know that the people gathered here represent all of Canada. I am very proud to be a Quebecker and a Canadian. The Federation of Canadian Municipalities represents some of the municipalities in Quebec. Other associations did so as well all throughout the hearings.

In addition, I must remind you that it was the Harper government — which you like to refer to — which, with scientists, did the research that led to the GHG targets the current government is applying. The work must have been well done, since the Liberals are using it.

Thank you very much, Ms. Péloffy. I am pleased to have been able to share that comment with you.

My third question is for Ms. Risbud.

Does the current process respect the principles and objectives of the law?

[Sheila Risbud]

I'm not sure I understood your question properly.

Are your referring to the current law?

[Joël Godin, Conservative, Portneuf—Jacques-Cartier, QC]

No. In fact, I'm talking about the bill we are studying today. Does it really meet the principles and objectives that have been set out?

The government claims that it will accelerate the process and will be attractive in the context of economic development. Do you think the bill meets those objectives?

[Sheila Risbud]

Yes. Overall, we support the intent of the bill. We think it reflects best practices in environmental assessment.

We presented a few suggestions today. Among other things, there should be more clarifications on the first phase, that is to say the planning phase, as well as on the role of indigenous people in the consultation. Once those details have been clarified, the bill will be going in the proper direction, we believe.

[Joël Godin, Conservative, Portneuf—Jacques-Cartier, QC]

In light of the experience and knowledge you have...

[The Chair, Liberal, Deb Schulte]

Make it very short.

[Joël Godin, Conservative, Portneuf—Jacques-Cartier, QC]

Fine.

What is Canada's ranking among countries that are making positive efforts to establish rules to protect the environment?

[Sheila Risbud]

I don't have a list in front of me. However, based on our mining company's international experience, I would say that Canada has a very high ranking.

[Joël Godin, Conservative, Portneuf—Jacques-Cartier, QC]

Thank you very much.

[The Chair, Liberal, Deb Schulte]

Thank you very much.

Ms. Duncan.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Most of my questions are going to be to Professor Doelle, but to Mr. Carlton, if I can offer a better suggestion to you, considering that you want municipalities recognized.... Although I have to share with you that my experience with municipalities involved in hearings and major projects is usually that they're supporting it exactly as it goes forward and rarely support more conditions on the project. That's my experience in Alberta.

It doesn't appear obvious in the definitions of “jurisdiction” that this includes municipalities. I think it would be a good idea for us to refer to the legal people, the legislative drafters, and ask them whether municipalities are included. If they're not, then I think it'd be a good idea to add them in. I fully agree with you that I don't think municipalities come under “public”. I have much bigger questions about the definition of “public”, because I don't think that indigenous peoples think they're “public”. There are even bigger problems with this bill than what you're identifying. I think you're raising a genuine point, and I think it'll be up to us to look at it if we want to make sure that the municipalities' issues are heard, and that we find the best ways to do that in the bill. I think this might be the best place to put it.

Professor Doelle, thank you very much for your papers, your blogs, and your submission. I am absolutely delighted that in your submission one of the areas you focus on is the panel. I'm deeply troubled by this bill because there's absolutely no clarity on when a review is going to be by the agency, when it's going to be by a panel, or when a panel is appointed. You're making some very good suggestions. We're challenged for time. We have to have all our amendments in by next Tuesday. I would welcome any suggestions that you recommend.

You're also recommending that a panel should provide in its decision a summary of the evidence in each of the factors and the recommendations for a response. Professor, what troubles me deeply is that whether the agency is going to review the matter, whether or not the matter should even be reviewed and assessed by the agency, whether it's reviewed by a panel, and whether it's in the public interest, they're all different factors. Do you think that's a problem? Do you think there should be consistency throughout on what the factors are that are taken into account and not just “considered”?

[Dr. Meinhard Doelle]

I'm not sure whether your question is specific to the choice about panel review, agency review, or something more general, but the approach I would recommend is that the broad criteria should be set out in the statute. You want to put in the statute the kinds of things that you know you're not going to have to change. Then you want to require regulations to provide the detail, and you want the detail to be adjustable. I would advocate having ministerial regulations provide the detail. That's a general recommendation, but it would apply to the choice of going to the agency or panel review, because, as you point out, it currently says “consider”. These are very broad criteria. They're not inappropriate, but they do not properly direct decision-making.

We have 25 years of experience. We can give better direction to decision-makers than that. We can avoid bad decisions. As I said, I don't think this is the intent, but what happens over time is that there is pressure to approve projects. There is pressure to streamline because of financial constraints. There are all kinds of pressures on decision-makers that make it hard to make good decisions. Having proper direction in regulations is a good safeguard against that. I think the criteria are appropriate, but they're inadequate. That's what I meant when I said “early on”. I think the act generally gives the powers that are needed to make good decisions, but it doesn't give proper direction.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Another aspect of the bill that you point out is that it's basically vacuous on the procedures of the panel. For example, there's no power in the panel to scope the review. Do you agree that there needs to be some kind of bringing together of the agency planning process? Normally my experience before review panels is that they sit down with all the parties and they say, “Okay, how are we going to scope this review?” That helps to reduce time.

[Dr. Meinhard Doelle]

In fairness, we've never been clear about that. CEAA 1992 wasn't clear on that. I do think, however, that it's time to provide some clarity on this, and I think there's more uncertainty now as a result of the planning phase. The planning phase talks about asking for information, which is a good idea, but it raises certain questions. Is that a scoping decision, or is it just inviting some information? It is less clear now when the scoping decisions are made and what the role of the panel is. I think one of the most troubling effects of practice over time has been that the role of the panel in scoping has been reduced.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

It looks like we're almost finished. I also like your ideas about the bill prescribing a baseline for the time for the review. The actual time would be assessed when you know what kind of a project you're dealing with. You added that there should be expertise and assistance in the budget for the agency to work as a secretariat for the panel.

Thank you.

[Dr. Meinhard Doelle]

Thank you.

[The Chair, Liberal, Deb Schulte]

Before I move to the next questioner, I just want to welcome Elizabeth May and Madam Pauzé to the table. Thank you very much for joining us today.

Mr. Amos.

[William Amos, Liberal, Pontiac, QC]

Thank you, Madam Chair.

I want to thank all of the witnesses.

I'm very pleased that that we have representatives from Quebec organizations. That is very important, and I agree with Mr. Godin on that aspect.

I have a comment to make. I know it's very possible to take inspiration from other processes that are used in the country including the BAPE process. We have been working on environmental impact assessment for a long time. The BAPE model in Quebec has also been criticized.

I'm wondering if we should not draw some lessons from the shortcomings of the BAPE model. For instance, the BAPE mandates may be too restricted or too controlled by the administration. There is also a lack of power regarding follow-up. In fact, any response is political and is not based on what is in the law. These are very important issues we are facing currently.

Could we hear your comments please?

[Karine Péloffy]

Some of these limits were addressed in the modernization of the Quebec Environment Quality Act. I would draw a parallel with the preamble of Bill C-69 which indicates that the public will now be consulted on the content of the impact study guideline, at the very beginning of the process, which should be useful once the project is before the BAPE.

The appointment process has also been changed. The BAPE has more mechanisms at its disposal. There are now targeted consultations, although mediation is still possible. There are several public participation mechanisms that are possible.

Indeed, in Quebec, the decision remains political. Apparently, what justified the use of that model in the beginning was the idea that the Quebec nation is so small that a rigorous, credible report that had the public's trust could have enough influence and create sufficient political pressure that the proper decision would be made.

Canada's case is different and it is important that decisions be surrounded by a much stronger framework. We must not only consider certain factors or reports; the decisions really have to be based on that. We must also have the opportunity of appealing those decisions. I think that that is the great weakness of the Quebec system, which we would not like to see repeated here.

[William Amos, Liberal, Pontiac, QC]

Thank you for those comments.

I am going to include that point in my question for Mr. Doelle.

I would simply comment that I think what we have right now is a proposal for a series of five criteria for cabinet decision-making, so we have at least the makings of bound decision-making, or framed decision-making. The challenge is, how does that get tightened up appropriately so that the clearly political discretion is appropriately anchored?

Mr. Doelle, I wonder if you could comment on how those specific criteria that have been identified could be even more tightly constraining. When cabinet is faced with a challenging question—they have a report in their hands—they need clear guidance, and they also need to provide guidance to the courts when the judiciary are engaged in those matters that become litigious.

[Dr. Meinhard Doelle]

Thanks.

I assume you're referring to proposed section 63. Yes.

I actually think that, other than changing the language from “consideration” to “based on”, proposed section 63 is fine. What is needed in addition to this, as with other discretionary decisions, is regulations to provide the detail. I don't think it would be appropriate to provide more of the detail in the statute. This is going to be a learning process. We're moving from a focus on biophysical to sustainability to broader consideration of effects. We're not going to get this perfect the first time around. I think it's critical to provide the further guidance in the regulations so that we can adjust with experience.

The other piece that's critical, though, for the final decision is that it's not just a matter of providing the direction. We need to track the relationship between the agency or panel report and the decision by the minister or cabinet. The way to do that is to make it clear that the assessment report itself is framed around the proposed section 63 factors and the conclusion about public interest. Then I think what we should add is what we had in CEAA in 1992, which was the requirement for the decision-maker to justify when they choose not to follow the recommendations, which they should be free to.

So it's clear recommendations, clear analysis in the report on proposed section 63, and public interest, and then a requirement to justify not following.

[William Amos, Liberal, Pontiac, QC]

Thank you for that. Would you have any recommendations in relation to how the federal court system will or will not be able to succeed in dealing with disputes that arise pursuant to cabinet decisions?

[The Chair, Liberal, Deb Schulte]

Please be very quick.