Subcommittee of the Standing Committee on Finance on Bill C-38 Committee on May 29th, 2012

[The Chair, Conservative, Blaine Calkins]

We've got plugs all over the place.

Ms. Quach, you have five minutes.

[Anne Minh-Thu Quach, NDP, Beauharnois—Salaberry, QC]

Thank you, Mr. Chair.

I thank the witnesses for being here.

My first questions are addressed to the Commissioner of the Environment and Sustainable Development, Mr. Vaughan.

You stated that your 2009 report pointed to several environmental assessment gaps, especially with regard to screenings. You said on this that in 75% of cases, there was little evidence that recommended mitigation measures for projects were actually completed.

Do you think that Bill C-38, which reduces the number of environmental assessments, will be bridging the gaps pointed out in 2009?

[Scott Vaughan]

No. As you said, we noted in 2009 that there were a lot of gaps, in particular with regard to environmental assessment reviews and mitigation. There are some shortcomings with regard to follow-up. Finally, we don't know what problems were identified by the assessments and whether they have disappeared. In fact, we rather expect that these problems will still be there.

[Anne Minh-Thu Quach, NDP, Beauharnois—Salaberry, QC]

Indeed.

Bill C-38 also indicates that environmental assessments will be reduced because of jurisdictional overlaps that make the process too long. Do you think that is the case?

[Scott Vaughan]

We noted in the chapter on environmental evaluation that there were delays, but that they were due to poor coordination among the various federal departments. For instance, some delays were due to the fact that they do not agree on the type of assessments to be done and their outcomes. In that chapter, we cite a lot of examples of poor coordination, in particular between Fisheries and Oceans Canada, Transport Canada, Industry Canada and Natural Resources Canada. We stated that that was the main cause of the delays.

[Anne Minh-Thu Quach, NDP, Beauharnois—Salaberry, QC]

Do you think that Bill C-38 is going to solve that coordination issue?

[Scott Vaughan]

In the current system, more than 100 agencies and federal departments are involved. Under the new system, there are going to be four. So the cause of that problem will probably be eliminated.

[Anne Minh-Thu Quach, NDP, Beauharnois—Salaberry, QC]

Thank you.

On May 8, 2012, that is to say in the most recent report, you stated that there were several contaminated sites and that this was due to the lack of environmental assessments.

In your opinion, what impact will the reduction in the number of environmental assessments in Bill C-38 have on the issue of contaminated sites?

[Scott Vaughan]

In the report I submitted last May 8, I noted that there was now an important environmental deficit of more than C$7 billion. This is due to projects that antedated environmental assessment, for instance abandoned mines, and industrial sites from the 1950s, 1960s and 1970s. That is the legacy we have to deal with now.

[Anne Minh-Thu Quach, NDP, Beauharnois—Salaberry, QC]

If we eliminate environmental assessments, there may indeed be more contaminated sites in the future. Is that correct?

[Scott Vaughan]

With your permission, I am going to answer in English.

One thing I can say is that without environmental assessments, Canadians are facing billions of dollars in environmental liabilities. The changes will be up to Parliament, and how those changes are made. What is clear is that there will be significantly fewer environmental assessments. The range is from, currently, 4,000 to 6,000 per year to probably 20 to 30 per year, which will be under the federal regime.

[Anne Minh-Thu Quach, NDP, Beauharnois—Salaberry, QC]

Thank you.

My question is for Mr. Amos.

There has been much talk about economic and energy efficiency, and so on. We heard it said that the reduction by the federal government in the number of environmental assessments was not necessarily beneficial for companies economically speaking, and that it could on the contrary prove to have serious adverse consequences.

[The Chair, Conservative, Blaine Calkins]

Mr. Amos, the time has expired, but give a brief answer, please.

[Prof. William Amos]

My comment will be almost the same as the one made by Mr. Vaughan. Indeed, if we do not perform analyses before promoting or going forward with a project, we run the risk of having to foot the bill later. If we do not do rigorous and complete environmental assessments, we are going to have to foot the bill in terms of contamination, or spills, and so forth.

[The Chair, Conservative, Blaine Calkins]

Thank you very much.

Thank you, Madam Quach.

Mr. Sopuck, you have five minutes, please.

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

Thank you.

Mr. Amos, I take very strong exception to your conclusion that there's no habitat protection under the Fisheries Act. Proposed subsection 35(1) says:

no person shall carry on any work, undertaking or activity that results in serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery

That is a very clear statement of strong habitat protections for key fisheries. How do you square your conclusion with what the bill actually says?

[Prof. William Amos]

Thank you for the question, Mr. Sopuck.

I believe that once our legal memoranda have been circulated, you'll have a more nuanced understanding of the position we're taking.

I haven't suggested that habitat protection is going to be eliminated in any respect. What I've suggested is that it's going to be greatly weakened, and that it's going to be narrowed, and that there is potential for exemptions for particular waterways and for particular activities in works and undertakings.

What we're seeing here is a shift away from a broad regime of habitat protection that protects against the harmful alteration, disruption, or destruction of fish habitat. That definition is proposed to be changed such that the protection to habitat would be limited to serious harm and only for fish that are considered part of or related to aboriginal, recreational, or commercial fisheries. Already what we're dealing with here is a reduction in the fish that are protected by subsection 35(1), and after that we're dealing with a situation where, instead of it being a harmful alteration, that whole protection around alteration is going to be changed, because now it's only going to be for where there is serious harm. So that is entirely different.

I can cite some examples for you.

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

Thanks. I think short answers are the best because we don't have much time here.

I think a focus on key fisheries that people are actually interested in is a good thing, and habitat protection will actually be strengthened for fisheries that people actually care about.

You made the astonishing statement, and I wrote it down: “That environmental process will no longer be conducted”, and I wrote that; you said that, verbatim. You said as well that there is an exemption of pipelines from the Fisheries Act. I find that astonishing, because with the current definition, subsection 35(1) is very clear on the protection of habitat for significant fisheries.

How do you square what you said with what the bill actually says?

[Prof. William Amos]

The proposed amendments provide for—and this would be at the proposed subsection 35(4)—ministerial exemptions to certain classes of works, undertakings, or activities, or to specified waters. Pursuant to the enactment of Bill C-38, what would be provided for would be a regime of exemptions that wouldn't be subject to the Statutory Instruments Act; it would go directly to Canada Gazette II.

There would be no requirement for notice, no requirement for public consultation pursuant to such ministerial exemptions—for example, for certain activities such as pipeline crossings—if the model that has been used in the Navigable Waters Protection Act is followed. They have provided for the exact same type of exemptions under that act in the last two years, so there is precedent established for exemptions. In this case, under the NWPA, by ministerial order they've exempted certain classes of works and undertakings, and in the case of the Navigable Waters Protection Act, they have gone and exempted pipeline crossings.

What I'm suggesting is that there is no reason to believe that this government would not choose, pursuant to the enactment of Bill C-38, that an activity such as a pipeline crossing would not also be subject to the written exemptions to the protections of section 35.

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

By focusing on key fisheries, we will be strengthening habitat protection for fisheries that people actually care about.

My recommendation, Mr. Amos, is that you talk to Ron Bonnett, who has a very common sense approach to the effect the old Fisheries Act had on agriculture.

[The Chair, Conservative, Blaine Calkins]

Mr. Sopuck, we'll have to finish with that comment. Your time is up.

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

Thank you.

[The Chair, Conservative, Blaine Calkins]

Mr. Julian.

[Peter Julian, NDP, Burnaby—New Westminster, BC]

Thank you very much, Mr. Chair.

Mr. Vaughan, I want to get back to the stunning statement that I think we all heard only a few moments ago. You were saying—I hope I'm getting this accurately—that what this legislation does is reduce the number of environmental assessments at the federal level from 4,000 to 6,000 annually down to 20 to 30. Did I hear you correctly?

[Scott Vaughan]

Yes.

That's why in the opening statement...in the development of the regulations to figure out exactly where the scope is going to be.... Right now, how I understand it is there are currently three different categories. There's screenings, comprehensive studies, and panel reviews. Under the amendment to CEAA, that category of screenings that represents 99.9% of environmental assessments will no longer exist. Therefore, what's left are comprehensive studies; those are about 10 to 12 a year, and panel reviews are about 4 to 5 a year. So right now there are I think currently 38 comprehensive studies that are ongoing, multi-year, and there are 4 to 5 review panels.