Evidence of meeting #4 for Subcommittee of the Standing Committee on Finance on Bill C-38 in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was environmental.

A video is available from Parliament.

On the agenda

MPs speaking

Also speaking

Jacob Irving  President, Canadian Hydropower Association
Eduard Wojczynski  Chair, Board of Directors, Canadian Hydropower Association
Thomas Siddon  As an Individual
Pamela Schwann  Executive Director, Saskatchewan Mining Association
Jean-François Tremblay  Senior Assistant Deputy Minister, Treaties and Aboriginal Government, Department of Indian Affairs and Northern Development
Christian Simard  Executive Director, Nature Québec
Lorne Fisher  Councillor, Corporation of the District of Kent
Stephen Hazell  Senior Counsel, Ecovision Law
Jamie Kneen  Communications Coordinator, MiningWatch Canada
Gregory Thomas  Federal and Ontario Director, Canadian Taxpayers Federation

6:35 p.m.


The Chair Conservative Blaine Calkins

Good evening, ladies and gentlemen.

We are starting a few minutes late already, in a very lengthy committee meeting, so I would like to call witnesses and members of the committee to order right now.

This is meeting number 4 of the Subcommittee on Bill C-38 of the Standing Committee on Finance.

Mr. Anderson has a point of order, but just let me finish introducing the meeting.

This is our fourth meeting, and our witnesses today are Mr. Jake Irving, from the Canadian Hydropower Association; the Honourable Tom Siddon, former Minister of Fisheries and Oceans; and Pam Schwann from the Saskatchewan Mining Association. From Nature Québec, we have Mr. Christian Simard, and we don't know where he is right now. We also have, from the Department of Aboriginal Affairs and Northern Development, Mr. Jean-François Tremblay, senior assistant deputy minister.

Mr. Anderson.

6:35 p.m.


David Anderson Conservative Cypress Hills—Grasslands, SK

Mr. Chair, I would like a bit of clarification from the NDP on one point. When we started having these meetings, we heard from them numerous times that they wanted to make sure we had adequate hearings, and we booked 18 hours of hearings for all of us to get more information about this part of the budget bill. But I notice that Mr. Julian and Ms. Leslie are both gone—the lead critic for Natural Resources and the lead critic for Environment.

We've accommodated them with these hours. I understand the importance of them going to Alberta and trying to limit the political damage out there, but I want to know—I guess I should point out as well that I think the member for Edmonton—Strathcona was supposed to accompany them and chose not to, perhaps out of embarrassment—if the NDP are interested in having these meetings carry through until tomorrow night, or whether they feel we've had adequate hearings and maybe they want to cut back tomorrow night.

Could Mr. Chisholm answer that question?

6:35 p.m.


The Chair Conservative Blaine Calkins

I don't hear a point of order there.

6:35 p.m.


David Anderson Conservative Cypress Hills—Grasslands, SK

It's just a point of clarification.

6:35 p.m.


The Chair Conservative Blaine Calkins

Mr. Anderson, there are four members from the New Democratic Party here, two of whom have substituted in for the regular members of this subcommittee. I don't really see any point of order here.

Mr. Chisholm, did you want to respond to that?

6:35 p.m.


Robert Chisholm NDP Dartmouth—Cole Harbour, NS

Well, I agree, Mr. Chairman. I appreciate the fact that you've acknowledged it wasn't a point of order, and I think Mr. Anderson certainly knew that well. It was an attempt to make mischief; some would call it cheap political points.

Nonetheless, we have four members of our committee here who are ready to go, to make the best use of the limited time we have to deal with a bill that changes 70 pieces of legislation—unprecedented in the history of this Parliament.

We're here to do our jobs, as parliamentarians, and I hope that, at the end of tonight and at the end of this limited period of time, Mr. Anderson will also feel he has been able to make good use of his time.

6:35 p.m.


The Chair Conservative Blaine Calkins

Thank you, Mr. Chisholm. I appreciate that clarification.

My understanding from the clerk is that the proper substitutions have been made. We have a full contingent of committee members here tonight. I see no reason in continuing down this line, when we have witnesses here from across our country bringing testimony to this committee.

The way I've been doing this, for those of you at the witness end of the table...you will find that we have members of the committee. We do everything here in both official languages. You have an earpiece. Is there anybody who is not familiar? I think everybody here is familiar with how this process works. We will proceed in that way.

I've been given to understand that Mr. Simard will be here at approximately 7:30 p.m. At that point in time, we will have to stop, if we're in a round of questioning, and allow Mr. Simard to make his presentation, and then we'll resume with the questioning at that particular point in time. That's the best we can do to accommodate Mr. Simard's schedule.

Without further ado, Mr. Irving, you have up to 10 minutes.

When you're making your presentations, please keep an eye on the chair. I will be giving you notice of when you have two minutes and one minute remaining. We try to keep a very tight timeline.

Please proceed, sir.

6:35 p.m.

Jacob Irving President, Canadian Hydropower Association

Thank you, Mr. Chair.

My name is Jacob Irving, and I am the President of the Canadian Hydropower Association. Joining me is Ed Wojczynski of Manitoba Hydro, the chair of our association's board of directors.

The CHA is the national voice for hydro power in Canada. We represent generators, manufacturers, engineering firms, consultants, and construction companies.

Sixty per cent of our electricity is hydro power. Canada is the third largest producer in the world. This makes our electricity system one of the cleanest and most renewable anywhere. As big as we are, we could still more than double our current hydro power capacity, and that potential is spread across every region of the country. It is truly a national resource.

Through hydro power, Canadians have an outstanding opportunity to fight air pollution and climate change while securing our sustainable energy future. Today we'll focus on how Bill C-38 can contribute to that future.

Hydro power facilities can be small or large. Many can be very large indeed. For example, the January edition of ReNew magazine reported that four of the five largest infrastructure projects in Canada are hydro power projects.

According to a recent study we conducted with the University of Montreal, hydro power developers are contemplating investing more than $125 billion in Canada over the next 20 years. This new capacity would help satisfy domestic and export demand. The study estimates it would also create over a million new person-years of employment across the country.

To make these investments with confidence, the hydro power industry needs regulatory efficiency and predictability. Unfortunately, the current federal environmental assessment and authorization regime cannot adequately provide this. I believe you'll find that our message to you today is consistent with what we have been saying about regulatory reform for many years.

Our projects undergo federal EAs and must secure authorizations under other federal statutes, while at the same time dealing with provincial EAs. The result is duplication, delay, and uncertainty. This can discourage investors from supporting renewable electricity in Canada.

An important commercial advantage for hydro power is its very low operating cost. However, its upfront capital costs are relatively large. Hydro power investors are especially sensitive to delays and uncertainty because they must commit substantial capital well before revenues can be generated.

Please though, do not misread me or the CHA members. Environmental stewardship is a priority for our industry. We support a strong and robust EA process, and we support the protection of fish and the recovery of species at risk. We are not asking for a weakening of environmental protection. Hydro power has grown up alongside environmental regulation and environmental regulation has grown up alongside hydro power. Our extensive experience and long-term perspective make us want a healthy and effective regulatory process. This is good for the environment, our industry, and Canada.

We strongly believe that we must continuously work toward social acceptability in our activities. Our members strive to earn this acceptance through hard work with aboriginal and other communities. We also reach out to a wider range of stakeholders, including environmental groups. We start consulting long before any formal EA process begins.

We believe all stakeholders would benefit from an efficient, timely, predictable, and consistent federal EA and authorization regime that also works smoothly with provincial EA processes and environmental regulations.

Bill C-38 is helpful in addressing many of these issues.

At this point I would like to call on CHA chair Ed Wojczynski to continue our presentation.

6:40 p.m.

Eduard Wojczynski Chair, Board of Directors, Canadian Hydropower Association

The Canadian Hydropower Association welcomes the new Canadian Environmental Assessment Act. It will reduce federal-provincial overlap and duplication, which costs taxpayers, electricity ratepayers, and project proponents. Bill C-38 reforms will concentrate the federal process on areas of federal jurisdiction. They will put the emphasis on projects that are likely to have significant impacts. The process improvements should allow the system to comfortably accommodate the timelines proposed in CEAA 2012, and provide quality environmental assessments. Proponents will be able to dedicate resources to really solving priority environmental issues without being sidelined by process distractions that do not contribute to actual environmental outcomes.

I’d like to emphasize that predictability and timeliness in project review and authorization are critical to our industry. Currently, the approvals for major projects in Canada take about four years. Developers usually begin environmental studies many years before the official EA starts. This is too long for investments that are sensitive to market timing, especially in comparison to the shorter time to market for competing fossil fuel generation. Delays can have a significant impact on project economics. For example, even just a one-year delay in Manitoba Hydro’s proposed $8 billion Conawapa generating station would result in a half a billion dollars in lost revenue. This represents a loss to Manitobans and a loss of export revenue to Canadians.

But the impacts of a faulty regulatory system can be even broader. They can lead to suboptimal choices both for the environment and the economy. Let me give you an example, again from my own company. Manitoba Hydro recently signed power purchase agreements with Minnesota and Wisconsin for future electricity delivery, and we need to invest over $15 billion to expand hydro facilities to meet the contract requirements, while also meeting Manitoba’s growing domestic requirements.

We are a preferred supplier in the U.S. and elsewhere. Our electricity is clean, renewable, and reliable. We will act as a battery to support wind power in the mid-west of Canada and the U.S. Our hydro would displace thermal generation and reduce greenhouse gases and air pollution in North America. If the EA process runs more slowly than expected and we miss our contract deadlines, the contracts can be cancelled. Manitobans and Canadians would suffer significant economic losses.

Just as important, though, is that our customers would turn to U.S. coal or gas-fired generation to meet their needs. The advantages of reducing greenhouse gases and air pollution by using Canadian hydro power would be lost. The answer is not imposing new timelines on the old system. The current regime has problems of duplication, inefficiency, lack of focus, and lack of coordination. We believe that Bill C-38 addresses these fundamental challenges.

Bill C-38 also addresses other legislation important to us. The Canadian hydro power industry supports the protection of fish and fish habitat, but the Fisheries Act has been a source of frustration, especially regarding its undefined authorization processes and its tendency to overlap with provincial fish protection statutes and regulations.

DFO has imposed mitigation measures on hydro power developers that are sometimes disproportionate to the potential environmental improvements that are being sought. The proposed changes to the Fisheries Act offer better clarity and an ability to reduce duplication with provinces. The ultimate implications for hydro power will strongly depend, however, on regulations that are yet to be written. We believe that if sound regulations are adopted, both fish and the hydro power industry will benefit.

We are keen to be engaged in this important future work, in terms of the regulations. We are particularly encouraged that Bill C-38 addresses some major shortcomings in the third piece of legislation we're going to talk about, the Species at Risk Act. Currently, SARA has a five-year limit for an agreement, and a three-year limit for a permit concerning activities affecting listed species or their critical habitat. These limits are out of step with the needs of the hydro power industry, whose facilities operate for decades. In fact, behind this building, on the Ottawa River, lies the oldest hydro power facility in Canada, the Chaudière Falls generating facility, which is over 130 years old.

Clearly, three-year to five-year SARA authorizations are not workable for facilities that can take longer than five years to build and that can operate for more than a century. Any hydro power developer is going to be leery of proceeding with millions or billions of dollars in investments if the authorization expires before construction is even complete.

Bill C-38 allows for longer-term authorizations under SARA. This will be a big improvement, but more needs to be done to improve the act. For example, there is an opportunity for government to enable industry to focus its efforts on activities that more effectively conserve and enhance the population of species. The current act requires us to focus activities on a few individuals of that species instead. This improvement can be done by linking stewardship and conservation agreements with compliance in the act.

In summary, the Canadian Hydropower Association has pleaded for greater efficiency and predictability in the environmental regulatory process for years. Improvements to the regulatory system are clearly required. We see Bill C-38 positively addressing many of the regulatory problems. The proposed improvements will not adversely affect our industry's environmental performance; instead, they will encourage further investment in clean and renewable hydro power. This will help Canada reduce North American greenhouse gases and air pollution.

Thank you, Mr. Chair and committee members.

6:45 p.m.


The Chair Conservative Blaine Calkins

Thank you, Mr. Wojczynski.

Mr. Siddon, you have up to 10 minutes, please, sir.

6:45 p.m.

Thomas Siddon As an Individual

Thank you, Mr. Chair.

It is a great honour for me to appear before your committee this evening. I have studied Bill C-38, and I have several comments to make.

I want to start by giving you a quick overview. As a young boy living a little south of you, along the Red Deer River, I was able to go, as my grandfather did, to fish in the Red Deer River around Drumheller. Anyone who knows that river nowadays knows that since the building of dams and with the rapid melt rate of the glaciers above Sundre, we are seeing the water quality severely altered, and fish have long since died in that part of the Red Deer River.

I always wondered why sewage plants were built downstream of communities, right up until the late seventies, without adequate sewage treatment. I worked in a chemical plant as a young engineering student and was urged to turn my back one night as the operating superintendent arranged to open some valves and dumped the heel of holding tanks into the North Saskatchewan River.

This is why I have a strong feeling and concern for what Bill C-38 proposes and purports to do to the federal Fisheries Act, which goes back to 1868. It's the oldest piece of federal legislation. It has 144 years of life behind it, and it does not need modernization after all those years. Perhaps its implementation and application could be modified and improved, but the problem is not with the act, as I will attempt to elaborate.

As an engineer, I'm in favour of mining. I was once the mines critic for the Progressive Conservative Party. I have often talked about the virtues of hydro power and pumped storage, which will come into its day in the future. But at the same time, we have lost more than 85% of the natural habitat to support our fish stocks across Canada, in inland waters and coastal waters. We've seen our stocks decline over the past century to historically low values. The reason for that is that we always did things the way we did them in order to get on with business and not worry too much about the downstream consequences. I think this bill, as I will elaborate in a few moments, has many dangerous elements to it from that perspective.

Having sat on the Okanagan Basin Water Board and chaired the stewardship council for seven years, I have learned that for every watershed, there is one water. So when we hear farmers or cottagers or others talking about doing whatever they wish with their drainage ditches or on their beachfronts, I say no, that's not the case. The riparian shoreline belongs to every British Columbian and every Canadian and has to be protected and preserved.

In 1976, the habitat provisions were introduced in the Fisheries Act in what were called sections 31 and 33, but it wasn't until 1986 that we brought in a policy that led to the regulatory regime under which those habitat provisions were administered. I have here the policy, the document I took to the Parliament of Canada on October 7, 1986, after extensive consultation with all of the interest groups across Canada—in Ontario, in Ottawa, in British Columbia, and in Atlantic Canada—both the proponents of major projects and the conservationists, wildlife authorities, and others.

This policy embodies three major principles. If you think about the decline and demise of our fish stocks, the first principle should strike you as being important: to provide a net gain of Canada's habitat for fish.

The second is that there should be no net loss of habitat arising from specific fish-related projects, which might in fact have consequences otherwise of killing fish—which, by the way, these new provisions of Bill C-38 permit, in the case of certain species.

The third and most important principle was that people should get together in an integrated co-management fashion. That, I would remind you, in 1986—25 years ago—was most uncommon. Governments did what governments wanted to do, and of course, they were often subjected to the influence and the power of money and jobs.

In 1986 we adopted this policy, the first in the world, and it's still significant and it still stands today. But with the passage of this bill, its impact and its import will be significantly reduced and diminished.

Experience taught me some hard-won lessons as Minister of Fisheries for Canada between 1985 and 1990. I had to preside over the demise of the Atlantic groundfish fishery, because the Kirby royal commission recommended a corporate fishery, which had no provision to prevent the destruction of the fish-bearing seabed off the coast of Newfoundland, and the scientists were wrong in suggesting that there were more fish when in fact there were declining stocks. Small cod stocks were being thrown over the side and high-graded, without regard for the fact that they took seven years to come to maturity and to reproduce.

In Prince Edward Island, we had a serious issue with contaminated shellfish in which people died because we didn't administer the shellfish aquaculture industry effectively when it came to the brackish lagoons around the coastline of Prince Edward Island. We created something called dinoflagellate populations, which essentially killed people.

We had the pulp mills of Canada all across Canada pouring the products of the kraft bleaching process, dioxins and furans, into waters throughout our interior and around our coasts, with the result that carcinogenic levels of dioxins and furans were found in the bottom-feeding fish, which were part of the overall food chain. That wasn't found out until Greenpeace sent water samples to Sweden, because Canada didn't have the capacity to discover those realities.

I had to deal with the fact of the populations of beluga whales in the St. Lawrence, which were once 20,000 when they met at the mouth of the Saguenay downstream from the Alcan smelter, dwindled to a few hundred because the females, who needed to be about 14 years of age to reproduce, had their ovaries destroyed by chemicals in the St. Lawrence River.

The consequence of intense fish farming...? After 25 years, the jury is still out on that one.

And the decline of Pacific salmon and steelhead stocks is always at the forefront of the concerns of British Columbians. Mudslides caused by indiscriminate logging practices and sometimes mining operations have to be considered. In a moment I'll tell you why I think this bill is not going to provide adequate protection for that.

You can't always put fisheries science into a neat little box or a straitjacket of time limitation, as in part of this bill—proposed sections 52 to, I think, 131 or 129. With the new CEAA provision, you're going to fast-track everything, put it in a neat little time-limited box, but this has no regard for some of the complexities that as fisheries minister I had to deal with. I had to deal with hundreds of angry fishermen who had their fisheries closed. The Atlantic cod stock collapse led to an industry being virtually closed for now more than a quarter of a century, because we didn't have the foresight or the knowledge at that time to do it right.

When we were a Conservative government, we brought in the first and only green plan for Canada's environment. We brought in an environmental protection strategy—the Canadian Environmental Assessment Act, which is now being totally replaced; the Canadian Environmental Protection Act; and the Arctic environmental protection strategy.

Did you know that the breast milk of Inuit women in the Arctic is loaded with industrial chemicals from the south because we have not learned that it goes through the atmosphere into the Arctic food chain, into the fatty tissue of marine animals, and Inuit women drink it, and their health is impaired as a result of it?

This is why we have a Fisheries Act with teeth in it. I am very alarmed by the provisions of Bill C-38, which will erode all of the provisions of 144 years of history.

In questioning, I will tell you specifically—clause by clause, if you ask me—what I feel is defective in this bill. But I'm here to express my concern that Bill C-38 makes a Swiss cheese out of the federal Fisheries Act.

My concerns are shared by numerous other former ministers of fisheries, including the three others who, with me, signed a letter to the Prime Minister two days ago. It's shared by hundreds of fisheries scientists and biologists and thousands of conservation-minded Canadians.

I think government members and this committee should give careful and thorough consideration to that, and I'll deal with specifics later if we have an opportunity, Mr. Chairman.

Merci beaucoup.

6:55 p.m.


The Chair Conservative Blaine Calkins

Thank you very much, Mr. Siddon.

Ms. Schwann, you have up to 10 minutes, please.

6:55 p.m.

Pamela Schwann Executive Director, Saskatchewan Mining Association

Bonjour, Mr. Chairman, members of the public and committee members.

I'm here today to speak on behalf of the Saskatchewan Mining Association.

First, thank you very much for the opportunity to appear before the committee in consideration of part 3, “Responsible Resource Development”, in Bill C-38.

I understand the focus tonight will be on reducing duplication of jurisdictions and timelines.

I'd like to start by emphasizing that our comments tonight are based on a preliminary analysis of the legislation. Further, from our experience we know that the effect of the proposed changes will depend not only on the details of the regulations and policies that we have not yet seen, but also on the implementation of those changes across Canada. We welcome the opportunity to fully participate in the development of these regulations and to have an ongoing open dialogue to ensure that the comprehensive reform required to achieve the government's goal of “one project, one review” in a clearly defined time period is realized in the implementation stages.

EAs are planning tools for projects that, if approved, will have other provincial and federal oversight as they go into operation, as has already been mentioned. With respect to the new Canadian Environmental Assessment Act, we were before the House of Commons committee late last year as part of the review of the current act, advocating for common-sense reform.

In particular, we advanced a number of different concepts embodied by this legislation. These include rationalizing project triggers so that administrative or routine decisions do not require an EA; respecting the principle of “one project, one process”, with a view to better use of equivalency between federal and provincial EA processes, thereby eliminating multiple EAs; and establishing timelines for EAs. In these three respects, we are of the view that the new CEAA holds a promise of additional improvements and clarity and predictability, as well as the promise of reducing duplication of process while not weakening the overall protection of the environment afforded by the current paradigm.

More specifically, we see the designated projects approach as a means to ensure that EAs are required where appropriate. The role of equivalency has been enhanced and provides the potential for provinces' EA processes to lead and reduce the duplication of federal and provincial reviews.

To facilitate the use of the equivalency provisions, it is critical that the mechanics of the process be certain and clear. Certainly, Saskatchewan's environmental regulatory regime is robust and mature, and on an outcome basis could be fully substituted for the federal EA process, particularly in sectors where the provincial government has recognized expertise.

Lastly—establish cycle times for EAs to improve the predictability and timeliness of the review—the SMA is optimistic that the proposed amendments could increase the efficiency and the effectiveness of Canada's regulatory system. We are very eager to work with the federal government to realize the potential benefits as they move forward in implementing the many amendments across all industries. Again, as already mentioned, the test will be in the details of the regulations that we haven't seen yet and how the legislation is interpreted and applied in practice.

For example, the development of a designated projects list is key to how efficient and predictable the new CEAA will be. We had previously submitted that only those activities or undertakings that would trigger a federal permit and that are not bounded by a current licence should be subject to an EA. We want to ensure that the scope of the new CEAA process does not expand so as to have unintended consequences, such that new projects or modifications to existing projects that previously would not have been subject to a federal EA end up being included in the designated project list.

I would like to speak to one comment we had provided that was included within our previous submission, but was not enacted upon within the positive reforms that we've seen to date—the extension of the positive reforms to projects primarily regulated by the CNSC.

For example, we were disappointed to learn that the federal-provincial equivalency and full substitution will not be made available to uranium mining projects under the new Canadian Environmental Assessment Act. Further, as currently drafted, the timelines specified in the act do not apply to the projects that have federal EAs led by the CNSC, although we were very pleased to read the comments provided by the CNSC yesterday to this committee about introducing new regulations with defined timelines for rendering a decision for a licence to prepare a site and construct a uranium mine.

Last year, the Australian government reviewed and approved the coordinated federal- and state-level EA for what will be the world's largest uranium-producing mine, the expanded Olympic Dam deposit, in less than one year.

When you compare that to the more than seven years required in the latest EA to bring a new uranium mine into production in Saskatchewan, it's obvious that it is far more attractive for companies to invest in uranium projects outside of Canada that have similar environment and safety standards, but where there is a more timely return on investments. In the interest of fairness, we hope that our uranium mining members will see the same benefits that have been afforded to other mining sectors.

At this point, we are not advanced in our comments with changes to the Fisheries Act. The incorporation of means for better federal and provincial cooperation is valuable, as is the incorporation of a larger tool box for dealing with the act's absolute prohibitions, such as the possibility of regulations for proposed section 35. However, at this time, we are not clear how certain provisions of the act will work together in practice. In particular, we are concerned with the differences in wording between proposed sections 35 and 36, and the challenges this will present. We support the definition of fishery as applying to commercial, subsistence for aboriginals, and recreational fisheries. However, this is not carried through into proposed section 36. We hope to work with officials to develop greater clarity through regulations and guidance. We are hopeful that habitat banking can be part of the approach to conserve Canada's fisheries, while allowing sustainable development to continue.

With respect to SARA, the proposed changes are positive, but certainly more work needs to be done to have effective and realistic legislation. We commend the government for moving forward in recognizing that changes to SARA are required.

To summarize, I want to thank the federal government for recognizing that the existing federal environmental assessment system needed comprehensive reform, and for bringing forward legislation to implement system-wide improvements to achieve the goal of “one project, one review”, in a clearly defined time period, while upholding the pillar of environmental protection.

In closing, we are advocates for a regulatory system that reduces overlap and duplication, establishes clear timelines, and concentrates on areas where potential environmental impacts are the greatest, while ensuring that the environment is protected. My colleagues and I would welcome any questions that you have.

Thank you.

7:05 p.m.


The Chair Conservative Blaine Calkins

Thank you very much, Ms. Schwann.

Now we have Mr. Tremblay for five minutes, please.

7:05 p.m.

Jean-François Tremblay Senior Assistant Deputy Minister, Treaties and Aboriginal Government, Department of Indian Affairs and Northern Development

Mr. Chair, distinguished members of the subcommittee,

I would like to thank the committee for giving me this opportunity to provide you with opening remarks on aboriginal consultation and accommodation.

The Government of Canada consults Canadians on issues of interest and concern for them. Consultation is an important part of good governance, relevant policy development and informed decision-making.

In addition to those good governance objectives, the government also has an obligation to consult aboriginal groups when it comes to its common law obligations.

As stated by the Supreme Court of Canada in the Haida Taku River decisions in 2004, the Crown has a legal duty to consult, and if appropriate, accommodate, when contemplating conduct that might adversely impact potential or established section 35 or treaty rights. It's important also to take into account that this duty to consult applied to the Crown, which in this case means that it applies to the federal, provincial, and territorial governments.

In this context, individual government departments have to assess how their contemplated activities may adversely impact potential or established aboriginal or treaty rights, and who should be participating in the consultation. Government departments can, where appropriate, use and rely on existing mechanisms, such as environmental assessments or regulatory approval processes to gather relevant information and address aboriginal issues.

At Aboriginal Affairs and Northern Development Canada, our role is to provide support and tools to government departments and agencies to assist them in fulfilling their consultation obligation. For this purpose, the department established a consultation and accommodation unit and has undertaken the following activities.

We have engaged with aboriginal groups—more than 65 aboriginal groups in provinces, industries, and companies. We launched an aboriginal treaty rights information system for federal officials to better identify the location of aboriginal and treaty rights. We released guidelines, interim guidelines, in 2008, and new interim guidelines in 2011. We trained over and above around 2,000 federal officials. We took steps to better integrate consultation into government day-to-day activities.

Building on these achievements, the responsible resource development is further enhancing the consultation activities with aboriginal groups through different elements. First, we are integrating aboriginal consultation into the new environmental assessment and regulatory process. This will be supported for each major project review by designating a lead department or agency, and a single Crown consultation coordinator to facilitate the relationship with first nations.

Second, we are providing funding specifically to support consultations with aboriginal groups to ensure their rights and interests are respected, as indicated in budget 2012.

Third, we are negotiating consultation protocols and agreements with aboriginal groups to establish, more clearly, the expectations and level of consultation that should be established. This will help to address the concerns of aboriginal groups about duplication of processes resulting in consultation fatigue.

Fourth, we are negotiating a memorandum of understanding with the provinces and territories to align federal and provincial territorial processes to improve involvement of aboriginal people.

In closing, I believe that these measures will ensure that aboriginal groups participate—from beginning to end—in environmental assessment and regulatory licence issuance processes, and that their potential or established ancestral rights from treaties are taken into consideration more when decisions are being made.

Thank you.

7:05 p.m.


The Chair Conservative Blaine Calkins

Thank you very much, Mr. Tremblay.

Mr. Simard, you have just arrived. Thank you so much for making a great effort to come here. Are you prepared, sir, to give your opening remarks? You just arrived.

7:05 p.m.

Christian Simard Executive Director, Nature Québec

Yes, Mr. Chair, I am ready.

7:05 p.m.


The Chair Conservative Blaine Calkins

Thank you, Mr. Simard. You have 10 minutes.

7:10 p.m.

Executive Director, Nature Québec

Christian Simard

On behalf of Nature Québec, I want to thank the members of the Subcommittee on Bill C-38 for having me this evening. I will make my presentation in French.

Nature Québec is a non-profit organization that brings together individuals and 120 conservation organizations from across Quebec. So we have several thousand members and supporters who work on protecting the environment and promoting sustainable development.

Nature Québec works on maintaining species and ecosystem diversity. Since 1981, our organization has been committed to the objectives of the World Conservation Strategy of the International Union for Conservation of Nature, or IUCN. Our objectives are to maintain essential ecological processes and life support systems, to preserve genetic diversity and to ensure the sustainable development and utilization of resources and ecosystems.

Nature Québec is an active member of several coalitions, including the St. Lawrence Coalition, an interprovincial coalition that was created to convince government institutions to urgently put a moratorium on gas and oil exploration and development in the Gulf of St. Lawrence, until such a time as a full environmental assessment is conducted on the impacts of that industry.

Like others before us, we want to reiterate that the use of a budget implementation bill that amends 69 pieces of legislation and transforms Canada's environmental protection economy—including 19 pieces of legislation or areas of activity that are affected at that level alone—is a perversion of democracy, and at the very least a lack of respect for parliamentary institutions.

It is totally unacceptable that the Standing Committee on Environment and Sustainable Development—on which I sat between 2004 and 2006 as a member for Beauport—Limoilou—was not asked to hold a thorough debate and broad consultations on the legislative provisions that are directly related to and will directly affect environmental protection in Canada. I must admit that we fully agreed with the recommendation made by Ecojustice, which appeared yesterday or the day before, asking that the bill be divided, so that at least part 3 would be subject to a specific piece of legislation that could be thoroughly debated. The bill was drafted quickly, with provisions that apply both retroactively and immediately, and some provisions we are not familiar with that will apply pending a cabinet decision later on. Part 3 of the bill is worthy of special treatment and should be debated thoroughly.

When I was an MP, I remember having agreements with the Conservative Party, more specifically regarding Bill C-15, An Act to amend the Migratory Birds Convention Act, 1994 and the Canadian Environmental Protection Act, 1999. We obtained a fairly special amendment that helped protect migratory birds from oil spills. I would like to see that Conservative Party again. By passing that bill, they made some progress in terms of the environment in Canada.

Through various measures, Bill C-38 directly violates the principle of non-regression in environmental law, a principle that will be debated and perhaps adopted in Rio. That principle was adopted at the third international meeting of environmental law experts and associations in Limoges, in 2011. It says the following:

To prevent any regression in environmental protection, the states must, in the common interest of humanity, recognize and establish the non-regression principle. To do so, the states must take the necessary steps to guarantee that no measures shall reduce the level of environmental protection achieved thus far.

I will talk about hydrocarbon development and the concrete impact Bill C-38 will have in terms of that. Pursuant to provisions retroactive to July 1, 2010, Bill C-38 sows confusion in the ongoing assessment process in the Gulf of St. Lawrence and opens the door to oil development without proper environmental assessment. The Canada-Newfoundland and Labrador Offshore Petroleum Our understanding is that the board's role as the responsible authority for environmental assessment was taken away, retroactive to July 1, 2010.

What is happening with the ongoing screening process? Who will take over? Will it be the National Energy Board, which is one of the three recognized authorities, along with the Canadian Environmental Assessment Agency and the Canadian Nuclear Safety Commission? The board will have 45 days to determine whether a more in-depth environmental assessment is necessary.

I want to remind you that only three responsible authorities will now be recognized—the Canadian Environmental Assessment Agency, the National Energy Board and the Canadian Nuclear Safety Commission. However, two of the biggest recent environmental disasters—the Gulf of Mexico oil spill and the Fukushima nuclear disaster—tell us that there must be independent alternatives to such regulatory agencies as the NEB and the Canadian Nuclear Safety Commission, which are often too close to industry interests to do credible work in terms of environmental protection.

I want to remind you that the value of fish landings in the Gulf of St. Lawrence is $500 million a year, and the total value amounts to $1.5 billion if we take processing into account. That is a real treasure trove, which is already available, while the hope in hydrocarbons is still only potential.

Allowing oil exploration without a full environmental assessment guarantee would be totally irresponsible. You will recall that recent disasters in the Gulf of Mexico and the North Sea happened during the exploration stage.

How much time do I have left, Mr. Chair?

7:15 p.m.


The Chair Conservative Blaine Calkins

You have three minutes.

7:15 p.m.

Executive Director, Nature Québec

Christian Simard

Under the new environmental assessment provisions, environmental impacts will be limited to the impacts on fish, aquatic species protected by the legislation, and migratory birds—with the exception of federal land. That scope is extremely limited and will allow for a laisser-faire approach and a lack of assessment, which may have a major impact on future projects and environmental protection.

Much has been said about the Fisheries Act. Provisions on fish habitat will be amended so as to protect only fish that is important to trade, aboriginals or recreational fishing. The provisions of Bill C-38 radically reduce the notion of habitat protection.

Nature Québec fully agrees with the letter 650 Canadian scientists sent to Prime Minister Harper to complain about the amendments to the Fisheries Act. They define habitat as "the aquatic and/or terrestrial environment necessary to the survival of all species, including fish. All species, including humans, depend on healthy habitats".

Therefore, protection cannot be limited to certain habitats or certain types of fish. Doing that would distort everything we refer to as ecosystems and the protection of the environment. Wildlife habitats, already poorly protected, will lose virtually all protection. The focus will be placed on certain species that are dependent on a quality habitat.

I would like to conclude my remarks by saying that our ecological footprint on the planet is already very large. Development can no longer be done like it used to. We must absolutely ensure the durability of ecosystems and cannot pit economic development against environmental protection, as this bill seems to be doing. It provides for many systems that function by exception, geographic exceptions. Certain zones, certain activities, such as road and mine construction, could be removed from the Fisheries Act.

As you know, there is already an exception in the Metal Mining Liquid Effluent Regulations that makes it possible to not comply with the Fisheries Act. That led to the transformation of natural lakes into tailing ponds. That's one small exception whose meaning was corrupted in reality. With the way things stand, how many natural lakes or rivers will be used for roads, without assessment, without examination, without protection, to eventually be made into tailing ponds?

There are bogs in northern Quebec and Canada, and some wetlands are not necessarily suitable for fishing but are essential for ecosystems. So it is extremely important to not create this type of discretionary exception system. That is why Nature Québec is in favour of major change and the removal of those bill provisions on budget application.

Thank you.

7:15 p.m.


The Chair Conservative Blaine Calkins

Thank you very much, Mr. Simard.

Ladies and gentlemen, we will now proceed with our first round of questioning. These are seven-minute questions and answers. We will start with Mr. Kamp.

7:20 p.m.


Randy Kamp Conservative Pitt Meadows—Maple Ridge—Mission, BC

Thank you, Mr. Chair, and thank you to the witnesses for taking the time to come here. I know some of you have come from a long way, and it's always good to welcome a fellow British Columbian in the case of Mr. Siddon.

I want to begin with asking you a few questions. I have been around the Fisheries Department for several years now as parliamentary secretary. I am aware of the work you did in 1985 to 1990 and have considerable appreciation for that work, so I do need to understand better your position on this.

To frame my question, I think it's clear to us part of the changes we're introducing here is changing section 35 of the Fisheries Act. The current act says:35. (1) No person shall carry on any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat.

We're proposing changing that to:35. (1) 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.

Is it fair to say, Mr. Siddon, you would prefer us to stay with the old section 35 rather than this proposed version?

7:20 p.m.

As an Individual

Thomas Siddon

Thank you, Mr. Kamp.

Yes it is, because I feel the fisheries officers and the minister already have substantial latitude to define what constitutes a harm, alteration, or a destruction or disturbance to habitat—the HADD clause.

7:20 p.m.


Randy Kamp Conservative Pitt Meadows—Maple Ridge—Mission, BC

Thank you for that. At least we know where we stand on that.

You said in your comments, and I think you said to the media as well, that section 35 actually came into force in 1977. There was some work done since then that culminated in the habitat policy of 1986, which of course has your name on it. I've had the opportunity many times over the years to read through it, and I agree with much that's in there.

What puzzles me is where the policy, early on in the national application section, says: The policy applies to those habitats directly or indirectly supporting those fish stocks or populations that sustain commercial, recreational or Native fishing activities of benefit to Canadians. In addition, Fisheries and Oceans recognizes its responsibility to protect and increase fish stocks and their habitats that have either a demonstrated potential themselves to sustain fishing activities, or a demonstrated ecological support function for the fisheries resources.

Just note this final sentence in that paragraph:In accordance with this philosophy, the policy will not necessarily be applied to all places where fish are found in Canada, but it will be applied as required in support of fisheries resource conservation.

Then in the glossary, fisheries resources basically is defined precisely in the way we're introducing in Bill C-38, to focus, it appears to me, Mr. Siddon, exactly in the way you agreed with in 1986.

Am I misunderstanding this?