Environment Committee on May 3rd, 2018

[Linda Duncan, NDP, Edmonton Strathcona, AB]

You're not answering my question. I'm talking about specific rights. The reason why there was such a hue and cry about the Harper evisceration of this bill was that people were being denied the right to participate effectively in the reviews, and what they had been looking for in this legislation was that they would be specifically guaranteed the right they previously had, to table evidence, to cross-examine. I'm not worried about each part. Yes, the right should be in every part of the process, but why is there no specific right and do you think that there is some opening in the ministry that they will, in fact, strengthen this bill to actually guaranty specific rights to participate?

[Christine Loth-Bown]

I can't answer as to why specifically something's not in there, but I can indicate what is in there. What is in there is no longer the interested party test. Right there, that has been removed so there's no longer—

[Linda Duncan, NDP, Edmonton Strathcona, AB]

True.

[Christine Loth-Bown]

—a requirement for individuals to be identified as interested parties, thereby opening up the level of participation. Also, within the purpose statement of the act, there is a clear statement there—

[Linda Duncan, NDP, Edmonton Strathcona, AB]

The purpose statement is not really binding.

[Christine Loth-Bown]

—with respect to meaningful participation within the process, as well as the development of a public participation plan in the early planning process.

There are a number of points with respect to public participation.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Okay, I'm not getting an answer to my question. I have very little time left and I have some specific questions for the Department of Transport officials.

There has been deep concern expressed that there is no linkage between part 1 and part 3 of the bill and that there is no requirement to consider navigation in these environmental assessments. That concern was also expressed by indigenous intervenors who said that in many cases they need access to marshes and so forth that could be dewatered by projects, and there's no requirement to consider those.

Is there a reason why there is no linkage between the two parts or the bill?

[Catherine Higgens, Assistant Deputy Minister, Programs, Department of Transport]

Perhaps I could spend a moment to talk about the linkages that do exist within the bill, the first one being that in the early planning stages the regulatory experts from the Department of Transport will form part of that phase and will be informing the regulatory plan and informing the early planning discussions on the projects that come through. Navigation will very much be part of the expertise that's provided. We will be doing that expertise throughout the impact assessment process. There was clearly a link from the very beginning.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

You still have an obligation to consider navigation—

[The Chair, Liberal, Deb Schulte]

Hang on. Sorry, we're out of time, so I'm just going to give her a little bit of time to finish what she was saying.

[Catherine Higgens]

I would just conclude by saying that at the back end of the process, there would not, for example, be an approval issued under the navigation legislation for a project that was on the project list and was requiring an impact assessment. That impact assessment would need to be completed before any approvals could be issued under the navigation legislation.

[The Chair, Liberal, Deb Schulte]

Thank you very much for that detail.

Mr. Amos.

[William Amos, Liberal, Pontiac, QC]

Thank you, Chair, and my thanks to our hard-working civil servants. I appreciate that this is a challenging session.

I wanted to give Mr. Labonté the opportunity to respond to the last question that Ms. May asked. I thought, with respect, Ms. May, that it was an unfair criticism. I do think there is value in having offshore petroleum boards, or the Canadian Nuclear Safety Commission, or any other such regulatory body involved in these assessments.

My critique of the bill as proposed is that it potentially overweights their participation, and I think it should be dialed back a little. I don't think they should be in a chair position, and I think we should be certain that there's no majority membership on a panel.

I'd like to give Mr. Labonté the opportunity to address the question of what a regulatory body such as an offshore petroleum board, or the Canadian Nuclear Safety Commission, actually brings to an environmental assessment panel process.

[Jeff Labonté, Assistant Deputy Minister, Major Projects Management Office, Department of Natural Resources]

That's certainly a good question to explore a bit further. My colleague Terry Hubbard can join me in filling in the answer.

From a regulatory point of view, whether it's the CNSC or the offshore boards, there are a significant number of safety, technical, engineering, design, construction, and operational components that are material to the assessment of a project. This is why the integrated nature of the assessments allows these things to be part of the equation. At the same time, in doing one project, one review, there are in many instances legal requirements that must be met in order for the regulatory decision to happen. We need to ensure that we have the ability as a government to set the policy direction needed to ensure that those things get looked at.

For example, the offshore boards look at things like occupational health and safety. They look at technical standards for the engineering of drilling equipment, the certification of the equipment that's done globally, the ties to international commitments, the things related to the particular handling of the materials, and how the technical equipment is used and managed on site. There are a number of safety-related components, and there are significant safety regulations that the offshore boards are responsible for on the operational side of a project, should it ever get to that point. If it's a project that's looking at the exploratory side, similarly there are safety requirements there.

These are typically things that happen in the regulatory capacity. They are not things that the impact assessment agency is looking at, when it's looking at the project. Bringing these things together allows for a better decision on the particular project.

Terry can fill in a bit more.

[Terence Hubbard]

The only thing I'd add to Jeff's response is that we're talking about major projects. When we're talking about major projects, it's important that we're able to bring together all of the capacity and expertise that we have, to be able to review these projects and move them forward in the most responsible way possible. That means bringing forward the expertise that we have, whether it's with the regulator, the impact assessment agency, or any of our other federal regulators that have an interest or a role in these projects. It's important to be able to access all of that information when we're making our decisions on these projects.

[William Amos, Liberal, Pontiac, QC]

I think you've answered this question already, but I want to get clarification. Would you say that a review panel without the relevant regulator would be an incomplete panel that would not serve the public interest? In other words, would such a panel be a disservice to the public interest? I ask this because we've had witnesses suggest that they should not be involved at all, that there should be a black-and-white separation.

[Jeff Labonté]

That's a tough question, but let me give you a quick answer. An impact assessment with an integrated review with a life-cycle regulator ensures a consistency for both the public and those participating in the process, whether it's a mining project, an offshore project, or a nuclear project. It provides clarity in the roles of the different participants.

Regulatory decisions still need to be made. They are legally required under the Canadian Nuclear Safety and Control Act. The nuclear regulator is independent of the government and has to make a decision about the safety of the project. That decision is best made when it's informed by an integrated assessment rather than by a separate decision that might follow and might require that there be duplicative processes or processes that go on beyond and might ask for repeat testimony or repeat information requirements, when all of it could occur through the integrated assessment and then allow the regulator to make the decision it needs to make.

In nuclear, for example, there are international protocols that would require us to behave that way. In the offshore, there are relationships with two other governments that have to be managed because of the joint management we have with Nova Scotia and with Newfoundland and Labrador. In the case of the energy regulator, recommendations are made at the same time to the GIC to make the determination.

I think it's fair to say that if they were separate you would not be able to make all of the required decisions on a project.

[William Amos, Liberal, Pontiac, QC]

No significant reforms have been suggested for the Canadian energy regulator, the Nuclear Safety Commission. Why?

[Jeff Labonté]

When the government launched its regulatory review, it looked at reviewing the impact assessment agency, the Environmental Assessment Agency, and the energy regulator. It certainly looked at the components around the environmental assessment and its move to move it to one agency, which would then remove the Nuclear Safety Commission as the agency that makes the environmental assessment determination.

[William Amos, Liberal, Pontiac, QC]

Thank you.

[The Chair, Liberal, Deb Schulte]

Mr. Sopuck.

[Robert Sopuck, Conservative, Dauphin—Swan River—Neepawa, MB]

I'm going to focus on jobs and competitiveness. I want to quote the Canadian building trades union regarding this bill, when they say that:

...Bill C-69 misses the mark in many material aspects. This piece of legislation has an enormous impact on our 500,000 members, as well as an enormous spectrum of Canadians who are engaged in natural resource extraction, processing, distribution, and consumptive industries. It is too important to be left to chance or to uncertain and unpredictable results.

The conclusion of a legal opinion by Osler and company is that:

...the proposed legislation suffers from the same problem that we have been observing in project regulatory processes for some time. These reviews are becoming forums where all manner of social and environmental issues are expected to be addressed, even when they are beyond the ability of any single project proponent to mitigate.

When you were drafting this legislation, did you for a minute think about the effect on workers, working families, the employment sector?

I'm going to stop referring to it as “industry”. I'm going to call it the employment sector.

Did you ever stop to think about the effect on those sectors of our society?

[Christine Loth-Bown]

As the minister noted in her opening remarks, one of the goals is to ensure that we are getting good projects to market. The process that has been designed through the proposed legislation aims to ensure this by bringing regulatory certainty to the process through assessments by one agency, but working in close collaboration with regulators, whether they be regulators such as Transport Canada or a life-cycle regulator, so that you can have that certainty of process in assessment.

We've also looked at the reduction of the timelines in order to ensure.... We heard a considerable amount of feedback throughout the last 14 months that the process takes too long and that we need to reduce the time. We have reduced the timeline, as was noted, from 365 days to 300 days and from 720 days for panels down to 600, to ensure that we can do these in a more efficient, effective way. It is important to note as well that the decision-making process needs to be done in a timely fashion. This proposed legislation also puts in a legislated time frame for the decision process.

Throughout the proposed legislation there are a number of points at which we are trying to ensure regulatory certainty so that Canada can continue to be competitive.

[Robert Sopuck, Conservative, Dauphin—Swan River—Neepawa, MB]

All I heard there were aspirations. There's an old saying that starts, “If wishes were horses”. You said, this is where we want to be and where we want to go.

That's all well and good, but the project proponents and organizations who came before us strongly disagree with that assertion. I go back to the Canadian Energy Pipeline Association, which said that Canada has a toxic regulatory environment and that they do not view this particular bill as having fixed it. The evidence is very clear in terms of investments, which are leading Canada from $71 billion under the Harper government to $31 billion under the Trudeau government. Clearly, things have changed.

I'd like to talk now about the Navigable Waters Protection Act. Specifically, the issue is the definition of what a navigable water is. You can say what you want about the act and write about it, but the nub of the issue is what is a navigable water.

When we changed the Navigable Waters Protection Act to the Navigation Protection Act, it was because there were too many egregious examples of waterways that were clearly navigable for perhaps a day a year but considered navigable waters.

A specific example that I mentioned in testimony earlier was about a little municipality of mine. A culvert blew out because of a spring freshet. This little gully flowed for maybe two weeks a year, but of course the Canadian Coast Guard came in and said to my little municipality, you have to replace the culvert with a bridge.

Of course, there were houses on the other side, so there are public safety and first responder issues that the Coast Guard was completely oblivious to. The cost for the bridge was $750,000, and the total budget of the small municipality was $1 million. It was clearly ridiculous.

I read the definition of what a navigable water is. It is water, it says, “that is used or where there is a reasonable likelihood that it will be used by vessels, in full or in part, for any part of the year as a means of transport or travel for commercial or recreational purposes”.

This means that you've gone back to the old definition, whereby if it can float a canoe for three or four days, all of a sudden it becomes a navigable water. Of course, under the old act, the effect on municipalities, both in terms of public safety and of cost, was extremely significant.

Do those of you from Department of Transport share my concerns?

Ms. Higgens.

[Catherine Higgens]

This is a really important element of the new Canadian navigable waters legislation. I'm happy to explain.

There are two components to the new definition. One, as you've mentioned, is the use for travel or transportation, including for the exercise of indigenous rights, but also for recreational as well as commercial purposes.

The second element is that there be public access, so it protects the public right to navigation where there is public access to a waterway. That would mean there is public access, there's more than one shore owner or riparian owner, or the crown is the sole owner of the shore.