Evidence of meeting #3 for Environment and Sustainable Development in the 43rd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was process.
A recording is available from Parliament.
9:50 a.m.
Vice-President, Operations Sector, Impact Assessment Agency of Canada
It certainly could facilitate and reduce the amount of new information that any proponent would need to collect.
9:50 a.m.
Conservative
9:50 a.m.
Liberal
9:50 a.m.
Conservative
Scott Aitchison Conservative Parry Sound—Muskoka, ON
I'm happy to share it with somebody else, if somebody has more they'd like to ask about it.
9:50 a.m.
Conservative
Kerry-Lynne Findlay Conservative South Surrey—White Rock, BC
Thank you.
You were talking about sometimes using external technical reviews and expertise—particularly, you mentioned, when there was uncertainty on scientific grounds.
Can you give me an example of a project in which you felt there was uncertainty about the science and you therefore went to expert third parties? And who would those experts be?
9:50 a.m.
Acting Vice-President, Strategic Policy, Impact Assessment Agency of Canada
In most cases, we have in-house expertise within the federal public service, just because of all the various departments we're able to rely upon. As I mentioned, however, there are cases in which we might have uncertainty or conflicting views around science. That typically happens when there's emerging science either within the field or within the process itself, as when information is brought into the process late.
One example in recent history is that of the Pacific Northwest LNG facility, on which a lot of conflicting scientific views and material came in around fish spawning beds. This was a key issue in that review and was of critical importance to local communities and indigenous communities.
In that case, many different science avenues were pursued, both within government and also by external technical experts. We try to bring the best science to bear in the process.
9:50 a.m.
Conservative
Kerry-Lynne Findlay Conservative South Surrey—White Rock, BC
In the example you've given, to whom would you have reached out?
9:50 a.m.
Acting Vice-President, Strategic Policy, Impact Assessment Agency of Canada
I'd have to check, as to the actual individuals, but it would have been to academics who were—
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Conservative
Kerry-Lynne Findlay Conservative South Surrey—White Rock, BC
Could you provide that information to us, then? We're out of time here.
9:50 a.m.
Acting Vice-President, Strategic Policy, Impact Assessment Agency of Canada
Yes, certainly.
9:50 a.m.
Conservative
Kerry-Lynne Findlay Conservative South Surrey—White Rock, BC
I'd be interested in that specific example.
Thank you.
9:50 a.m.
Liberal
Lloyd Longfield Liberal Guelph, ON
Thank you for the detailed discussion we're having; I really appreciate it. My constituents have been asking questions about Teck. That project seems to be a theme today. The proponent pulled out of it.
One issue regarding the predictability of projects is that this project was being reviewed under the previous legislation from 2012. The fact that when we change legislation you don't have to go back to the start for every project that's in the hopper gives some consistency and predictability to the process.
How many projects are in the hopper? Are there other projects that could be affected by the new legislation which were being reviewed under the previous legislation?
9:50 a.m.
Vice-President, Operations Sector, Impact Assessment Agency of Canada
Currently, the lion's share of the agency's activities relates to reviews that are currently under way under the Canadian Environmental Assessment Act, 2012. We have about 68 projects that are still active, moving their way through the previous legislative process, and we have five new projects that have come into the new framework under the Impact Assessment Act.
In each of the 68 projects that are under the current framework, the proponents have had an opportunity, if they wished, to opt into the new framework, but all chose to continue with the process they were under way with. They will continue throughout with the previous legislative framework.
9:55 a.m.
Liberal
Lloyd Longfield Liberal Guelph, ON
Thank you.
As we look at new legislation coming into effect, my question is this. If there is a Supreme Court challenge on a project, the Supreme Court would be evaluating it based on current legislation. Some of the terms of the new legislation might not have been considered under the previous legislation.
We saw with the TMX that we hadn't done enough consultation with indigenous peoples and had to go back and redo it. The redoing part of it adds some uncertainty to the process.
When we're doing the project evaluation, anticipating that there could be a Supreme Court challenge, would this be a risk that could be negotiated with the proponent of the project, allowing you to say, “You don't need to follow this, but in the case of a court challenge, you're probably going to need to do it anyway”?
9:55 a.m.
Vice-President, Operations Sector, Impact Assessment Agency of Canada
There are a couple of different factors there. They must comply with the requirements under the framework they're being evaluated under. A court would need to look at the criteria under that framework; they wouldn't be able to utilize a new, different test.
9:55 a.m.
Vice-President, Operations Sector, Impact Assessment Agency of Canada
Often, the litigation we see relates to our duty to consult. It has been an evolving area of jurisprudence. While we have taken significant new steps within the new framework to integrate new activities within the legislative framework, even with projects currently undergoing the requirements of the existing framework we have been adaptive and learning as we go.
As we've learned from previous experiences, we integrate the lessons learned in each individual assessment so that we don't run into the same issues and challenges that we've experienced in previous cases.
9:55 a.m.
Liberal
Lloyd Longfield Liberal Guelph, ON
Thank you.
This looks like the flare-up we've seen in the last few weeks—on the duty to consult with all hereditary chiefs. Some chiefs might agree with the process; some might disagree with it. They don't have a mechanism to come to a consensus amongst themselves at this point. We're hoping there will be more discussion among hereditary chiefs to see whether consensus could be built.
Going forward, you can't consult 37 million people in Canada on every project, but we need to have some mechanism to know at what point we have enough agreement to go forward.
Is that fair?
9:55 a.m.
Vice-President, Operations Sector, Impact Assessment Agency of Canada
It's not necessarily reaching agreement to move forward. We strive and aim to achieve consent, but it's not a prerequisite for moving forward. We don't have a predefined notion of how we're going to consult with any individual community. Each community is different. We start out our consultations with those communities with an open mind and open perspective, wanting to learn from them how they wish to be consulted and what their governance mechanisms are. When there are clear splits, as in that example, we would want to hear various perspectives so that they can be considered.
It's not a rights recognition process that we're doing. We want to hear what the issues and concerns and perspectives are, even if they vary across the membership of the community, so that we can consider them and, if reasonable, work with the proponent and our regulators and through our enforceable conditions to address those impacts.
9:55 a.m.
Conservative
Kerry-Lynne Findlay Conservative South Surrey—White Rock, BC
In looking at the new process, from what I can see, there are at least three occasions when the minister can extend the timeline by up to 90 days: in the planning phase, in the preparation of the final report, and when referring it or not to cabinet.
It seems that on each of these occasions, the minister can seek cabinet approval to extend further, but I don't see any time limit to these extensions.
The minister may also extend the time it takes to refer a project to a panel. I don't know whether there's a specified time limit on that.
I have several questions coming out of this analysis. What ability does the minister have to extend timelines in the new process? Are there limitations on his or her power to extend them? What is the maximum time that the assessment process can be extended as a result of ministerial discretion? Then ultimately, when does cabinet have the power to extend timelines, and what is the maximum length by which cabinet can extend the time to complete the assessment process?
I think you get my meaning here. I'm trying to understand how timelines can be extended, either by the minister or by cabinet, at what stages, and what that situation looks like.
