Environment Committee on Nov. 29th, 2016

[The Chair, Liberal, Deb Schulte]

Okay, thank you so much.

Looking at the clock, I'm mindful that we have votes. We also have a subcommittee.

If the committee agrees, we're going to try to go to a quarter after with more questioning. I think we can do that by giving everybody an additional four minutes. We'll then clear the room and start our subcommittee at a quarter after, go to a quarter to, and be able to be in the House for votes. That's the thought that I have.

If everybody's okay with that, we'll add the extra four minutes and we'll work that way.

Are there any issues or objections to that?

[Linda Duncan, NDP, Edmonton Strathcona, AB]

We have half an hour for the subcommittee.

[The Chair, Liberal, Deb Schulte]

We're going to have half an hour.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Do we need that?

[The Chair, Liberal, Deb Schulte]

Oh, yes. If it goes faster, great; we'll get out faster. I think we're going to need the half-hour because we have the schedule and witnesses to discuss.

Okay, we'll start with Linda Duncan.

We'll add the extra time, the four minutes, to your three minutes.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Thanks.

I'm curious about what's happening with equivalency on the ground, and the reasons.

I also have to say that I am disappointed. I requested that there be a regional officer here. It's good to hear that headquarters thinks that everything is okay. Perhaps that wasn't passed on to you, but it was my specific request, and it was specifically for that reason. It would have been good to get the assurance. Often, officers on the ground have very different kinds of interests than headquarters types do. I'm hoping at some future time that we can talk to them.

I'm curious to know about what the relationships are now with the provincial enforcement officers, and what role equivalency is playing in that. Recently, there was a co-operative prosecution in the oil sands, and that was pretty unique. Most of the time, what I have witnessed is that the federal government has backed off and the province has proceeded.

Can you tell me a bit about what is happening on the ground now with actual enforcement for violations found under CEPA?

[Heather McCready]

Generally you're going to see that it's pretty co-operative. It varies by province, of course, with different relationships in different parts of the country. Some of our laws are more similar to those of some provinces than to those of others. By and large, our regional staff work very closely with the provincial officers.

When you mention that sometimes it looks as though the federal government backs off and the province proceeds, that's not always our choice. There's something called the Kienapple principle, which Linda can probably explain better than I can, but I'll take a stab at it. It basically means that you can't be charged twice for the same offence.

Often what happens is that we work collaboratively with our provincial colleagues. We may actually bring forward charges together. Then, either the prosecutors get together and decide which one goes forward, or, in the end if both go forward, a judge will only find them guilty on one thing. The province gets the news release and we don't, but we were very involved.

I've been quite impressed with how collaborative it's been and how close we are with our provincial counterparts. We are providing training next week for a number of our regional enforcement officers, and we have representatives from the provinces coming there with us, so it's quite close.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

What has happened with equivalency? We have a lot of substances that are scheduled and not very many regulations on those. In the cases where we do have those scheduled, my particular interest is in industrial emissions, and less so in the products.

What is happening with equivalency? Are provinces pursuing equivalency agreements, or are they just as happy that both of those laws sit in place at the same time? What is the perspective now with equivalency?

[Margaret Meroni]

We don't get involved in the discussions on equivalency. Those are within the regulatory group of the department, so the protection branch or the—

[Linda Duncan, NDP, Edmonton Strathcona, AB]

I'm not suggesting that you would.

[Margaret Meroni]

Right.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

I'm asking, if there can be claims of equivalency, how much of your ability to actually enforce the few regulations and standards you have in place would be impacted by that? Or, by and large, do most of the federal regulations and standards stand on their own?

[Heather McCready]

I don't think equivalency has had much impact. You say we have few laws, but we have two major acts and more than 60 regulations. There's actually quite a lot that we're enforcing.

I haven't seen equivalency happen—

[Linda Duncan, NDP, Edmonton Strathcona, AB]

We're just talking about pollution here.

[Heather McCready]

Just for CEPA there are more than 60 regulations.

I haven't seen equivalency have much of an impact on this at all. I'm seeing equivalency discussions happening right now more on the Fisheries Act side, with the wastewater regulation, but not so much on the CEPA side.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

That's interesting.

I was disappointed to hear that the administrative penalties have taken so long. When I was chief of enforcement, I worked with Treasury Board and the justice department. We actually went to the United States and were proposing this. Environment Canada was the only department interested at all in pursuing it.

I thought that was a good thing that Jim Prentice did, and I'm surprised at how long this has taken. What has been the problem with bringing forward those measures? There have been many complaints from the public because you keep issuing all these warnings.

Then of course the next step was simply to prosecute. The AMPs provide a good middle ground if you just have a one-off—if you haven't labelled your facility for waste storage properly, and so forth. What have really been the problems with delivering on this, which is a good on-the-ground mechanism?

[Margaret Meroni]

Unfortunately, we don't control the regulatory process. We are engaged and will provide input to it from an enforcement perspective, but I would definitely have to defer to program colleagues to provide some insight into any challenges or impediments they may have faced. We're really not aware or equipped to respond.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

I have one final question, if I have a little time.

[The Chair, Liberal, Deb Schulte]

You have time.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

One controversy for quite some time was that the department wouldn't release information on warnings. The violators complained that this was violating their charter rights, because they couldn't contest a warning.

Are the warnings now fully publicly available?

[Heather McCready]

Statistics on them are; we can tell you about numbers. Individual warning letters are not, unless someone goes through the access to information process.

There's a privacy right involved there: the person who was subject to the warning letter has a privacy right. There's no finding of guilt with a warning; there's no admission of guilt; and there's no particular standard of proof, if an officer has noticed something and is bringing it to the attention of a violator. It is still subject to privacy laws.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

You mentioned that you have a suite of policies and protocols. When CEPA was first enacted, then minister Tom McMillan made a profound statement, which I'm sure you're aware of, that a law is hollow unless it's effectively enforced. Of course, under the North American Agreement on Environmental Cooperation, we as a country commit that we will effectively enforce.

Do you now have in place a formal enforcement and compliance policy, and is it public?

[Margaret Meroni]

Yes. We have three enforcement and compliance policies specifically: one under CEPA, one for the Fisheries Act, and one for wildlife as well. We can certainly provide the web links. These policies are publicly available; in fact, we refer to them frequently when we respond to correspondence that we receive.

We also have a suite of internal policies that cover everything from administration to officer conduct to the wearing of the uniform, the use of the fleet, and so forth, and a whole series of internal administrative policies as well to assist officers.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Here is one last quick question. Mr. Eglinski will appreciate this one.

In my time, the enforcement officers were reaching MOUs with the RCMP to help to deliver search and seizure orders and so forth.

Do you still proceed that way, or do you do all of that work on your own now?

[Heather McCready]

We have many agreements with many partners for exactly that reason. We're specialists in environmental enforcement. We look to partners for help with such things as computer forensics and also to provide security backup when necessary. The pollution enforcement officers don't have sidearms, so if we're going into a dangerous situation, frequently the RCMP will assist us.

We work with lots of different agencies, the provinces, and Canada Border Services Agency. The Competition Bureau has provided computer forensics support in the past. It's a real team effort, for lack of a better expression.