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

[Scott Vaughan]

Again, and I wouldn't say “red flags”, but I would say—

[Brian Storseth, Conservative, Westlock—St. Paul, AB]

Chair, a point of order.

[The Chair, Conservative, Blaine Calkins]

Mr. Storseth, a point of order.

[Brian Storseth, Conservative, Westlock—St. Paul, AB]

Thank you, Mr. Chair.

It's my understanding that Mr. Vaughan is a public servant. I would like to make sure to remind the committee of page 1068 of O'Brien and Bosc, which says:

Particular attention is paid to the questioning of public servants. The obligation of a witness to answer all questions put by the committee must be balanced against the role that public servants play in providing confidential advice to their Ministers. The role of the public servant has traditionally been viewed in relation to the implementation and administration of government policy, rather than the determination of what that policy should be. Consequently, public servants have been excused from commenting on the policy decisions made by the government.

Including what those policies should be.

[The Chair, Conservative, Blaine Calkins]

Did you want to respond to that, Ms. Leslie?

[Megan Leslie, NDP, Halifax, NS]

I would like to respond to that.

Thank you to Mr. Storseth. I am well aware of what's in that section. I'm not asking for a policy decision. I am merely questioning Mr. Vaughan.

[The Chair, Conservative, Blaine Calkins]

Colleagues, I appreciate your interventions.

My understanding, Mr. Storseth, and I stand to be corrected here, is that Mr. Vaughan is part of the Auditor General's office, which is an office that reports to Parliament and is not ministerial staff or a deputy minister of government staff.

Ms. Leslie, your questions, though, must stick to what is in the purview of Mr. Vaughan's ability to answer. Mr. Vaughan was quite clear in his opening remarks that he will not be addressing policy issues. His role, if my understanding is correct, is to discuss what his department under his supervision has done insofar as auditing the various aspects that fall under the environment commissioner's purview.

Mr. Vaughan, your answers would have to stick to the mandate, of which I am confident that you are fully aware.

[Megan Leslie, NDP, Halifax, NS]

Thank you.

My question is, is this something you think the subcommittee should focus on or should be questioning? What exactly should we be looking at here?

[Scott Vaughan]

Let me just say that it would be very similar to what both Mr. Bonnett and Dr. Schindler said. It's not a concern, but it is an area of clarification that will need to be sorted out during the development of the regulations. The proposed changes to the fish habitat policy make reference to habitat, as well as to individual fisheries, as well as to an ecosystem approach. They can be seen as distinct approaches between a fishery-specific approach and how they fit within a broader ecosystem. It's as simple as that. How is this going to fit together in the changes to the fish habitat policy?

[Megan Leslie, NDP, Halifax, NS]

Thanks very much.

My next question is for Mr. Amos.

Section 35 of the Fisheries Act has had some successes in that it has empowered DFO to monitor or to retain regulatory oversight over some key habitats. Could you describe some of these successes—situations where we have seen section 35 work? What do you think would happen to those examples if these proposed changes go through?

[Prof. William Amos]

Certainly. Thanks for the question, Ms. Leslie.

As I mentioned, back in 1977 an important decision was made to amend the Fisheries Act to allow for habitat protection. That has enabled the Department of Fisheries and Oceans to engage in protection of potentially harmful activities such as gravel mining in the Fraser River—that kind of activity can pose grave threats to pink salmon and sturgeon populations at risk—to oil sands mining and pipeline development in Alberta. This can destroy fish-bearing creeks. It can render fish inedible, and it can create significant risks to water resources generally.

Then, obviously there are matters of large-scale hydro development habitat impacts on local fish and benthic species in relation to finfish aquaculture in B.C. These are examples of activities that, pursuant to section 35 as it currently exists, as it is broadly construed, fall within the purview of the subsection 35(1) protections of fish habitat. These are examples of where it is working.

The concern is that by narrowing the habitat protected, and by providing for ministerial regulations that allow for the exemption of certain activities in certain waterways, which won't even be subject to those proposed narrowed habitat protections, what we will end up seeing is a series of activities in water bodies that get less or no oversight. For those activities where there is oversight, it would be reduced.

Specifically, one can imagine that there would be types of activities that would no longer get that habitat protection. That can only be for the worse, from a planning perspective and from a perspective of ensuring sustainable development. It's not a question of saying no to projects; it's a matter of saying that this is how they ought to be done. These are the best practices.

[Megan Leslie, NDP, Halifax, NS]

Would you say that's your legal opinion or the legal opinion of Ecojustice?

[Prof. William Amos]

Yes, certainly Ecojustice will be advising anyone who is seeking our services that if this legislation is passed there will be increased risks to fish habitat and the potential for harm to fish habitat pursuant to any number of activities in specific waterways.

[Megan Leslie, NDP, Halifax, NS]

In the time I have left, Mr. Vaughan, back to you. I'm wondering if, in any of your analysis of these aspects of the budget bill, there are things you don't understand, if there are gaps you are still trying to work through and figure out what it means.

[Scott Vaughan]

In my opening statement in paragraph 13, where departmental officials are still looking for clarity, this again will be in the regulations, so what is the project list going to be?

My understanding right now is that the comprehensive studies project list will essentially be the basis for the projects eligible for assessments under the revised CEAA. The critical issue is that for those screenings for which mitigation measures are required, under the plan, as far as I can understand it, those screenings would be dropped.

There's a list of them. Where the threshold is under 3,000 tonnes for metal mines, that would not be subject to a federal EA, or for oil sands under 10,000 cubic metres a day, or for any offshore exploratory wells or seismic.... Those are specific areas where I think probably the agency would be better at answering this.

I'll wind up, Mr. Chair, simply by saying the upper threshold screenings, as far as we understand, will be dropped entirely. Where the screenings are close to comprehensive studies I think is an important area to be elaborated in the regulations.

[The Chair, Conservative, Blaine Calkins]

Thank you, Ms. Leslie.

Ms. Duncan.

[Kirsty Duncan, Liberal, Etobicoke North, ON]

Thank you, Mr. Chair, and thank you to all our witnesses.

I'll begin with Mr. Amos. According to the environment minister, and I quote, “The new environmental assessment process is no different from the old environmental assessment process, except for the improvements that all three of us”—and he's referring to the three ministers—“here today have listed for you”.

I'm wondering if you could comment on that statement, please.

[Prof. William Amos]

Ecojustice's legal opinion is that the Canadian Environmental Assessment Act is going to be significantly weakened if these proposed amendments are approved. Ultimately—

[Kirsty Duncan, Liberal, Etobicoke North, ON]

That's in direct conflict with what the ministers have said.

[Prof. William Amos]

Clearly, the legal opinion of lawyers at Ecojustice is at odds with the opinion of the minister, but at the end of the day this isn't about a matter of law; this is about a matter of philosophical and policy direction for the environmental governance regime Canada has. This is about the federal role in relation to environmental assessment.

Clearly, by shifting away from a trigger-based environmental assessment regime toward a project list environmental assessment regime, the ultimate result is that far fewer federal assessments will be done. As Commissioner Vaughan has pointed out, there are significant uncertainties going forward. It is only going to be pursuant to a project list regulation that we're going to discover the activities subject to federal environmental assessments. Right now we don't know. Will an environmental assessment be required for offshore exploratory drilling?

I suggest that this is a matter of significance, because if there is ever to be industrial activity that is socially and environmentally controversial, if we're going to move forward with proposals, we need to know there's a robust system that allows for consultation, that allows for opinions to be aired so we can achieve some form of consensus, or if there is no consensus, then at least achieve that level of understanding of the disagreement. If there's no assessment, if there's no process by which those disagreements can be aired and by which a degree of consensus can be reached, then I don't see where that's going to be achieved. I don't think that's for the better on the economic development side or on the environmental protection side.

[Kirsty Duncan, Liberal, Etobicoke North, ON]

Thank you.

Are you aware of whether there's been any assessment of the adequacy of the environmental assessment process in each province and territory?

[Prof. William Amos]

The simple answer is that environmental assessment is patchy across this country. Some provinces do it reasonably well; other provinces do it relatively poorly. It would require a province-by-province and territory-by-territory analysis of the various laws in question. But it's clear to us that one has to understand environmental assessment in this country.

It's not a matter of whether it is a provincial responsibility or a federal responsibility. What we have generated over the past 30 years is an interconnected web of environmental assessment processes that have developed over time so that there can be as little duplication as possible. Indeed, the Supreme Court of Canada noted in 2010, in the MiningWatch case, that there are already provisions in the Canadian Environmental Assessment Act to ensure that duplication and overlap don't occur.

We've been around this mulberry bush, and we know there is a need to reduce overlap and duplication. This kind of work can always be improved. At the end of the day, there is a role for federal environmental assessment, an important role, particularly in regard to its constitutional jurisdiction over different aspects of the environment. But we need to ensure that we have both levels working together, because the entirety of Canada's environment is not protected when one level of government is doing the environmental assessment. We need both levels of government doing it, and we need them to do it efficiently.

[Kirsty Duncan, Liberal, Etobicoke North, ON]

Thank you, Mr. Amos.

Commissioner Vaughan, do you think the provinces are ready to take on the larger role in environmental oversight that has been handed to them by Ottawa?

[Scott Vaughan]

You would have to ask the provinces.

What I would say in answer to your previous question to Mr. Amos is that I know that our provincial counterparts in British Columbia, Ontario, and New Brunswick have looked at the provincial environmental assessments and have said there have been challenges in their implementation of the provincial requirements. So there are already challenges they are facing.

I think one of the other areas the committee may want to look at, in the clarification of the regulations, is substitution and equivalency. Those, again, will be critical areas.

[Kirsty Duncan, Liberal, Etobicoke North, ON]

How can that be done? If the government hasn't done an assessment of adequacy, how is it going to determine equivalency?