Thank you, Mr. Chair, and thank you for the invitation.
I am here today as a representative of MiningWatch Canada, a national non-governmental organization—not a charity—and as co-chair of the environmental planning and assessment caucus of the Canadian Environmental Network, which brings together some 60 groups and environmental assessment experts from across the country.
I'm here to urge you to ensure that the environmental provisions of Bill C-38 are given proper consultation and debate.
Part 3 of C-38, with which we are concerned today, is seriously flawed, and in our view, to allow it to proceed without very major amendment would be irresponsible. With all due respect to the experience and knowledge of this committee, there is simply no way of adequately addressing part 3 as part of C-38. These provisions must be separated and debated on their own, and if need be, removed and resubmitted to a new legislative process.
The government is arguing that the new Canadian Environmental Assessment Act, CEAA 2012, and related measures must be passed as part of the budget process, because they are urgently required to protect and promote investment and development.
The urgency is clearly manufactured. The existing Canadian Environmental Assessment Act was referred for review by Parliament two years ago. The government did nothing for 16 months, and it had actually dropped efforts by the minister's own regulatory advisory committee, as well as the caucus, to prepare for the review going back several years before that.
Just as importantly, these measures are more likely to exacerbate uncertainty and delay, which will ultimately put development projects at risk and drive away investment.
I would like to focus on three key problems in the new act: the abdication of federal responsibility over the environment; the abandonment of the principles of sustainable development and the integration of those principles into decision-making; and the serious diminution of public participation and the opportunity to fulfill government's obligations towards aboriginal peoples. I am not here to speak for aboriginal peoples, and I will not focus extensively on those issues, but both MiningWatch and the caucus have serious concerns in this area.
In place of a positive assertion of a federal role in EA, the act explicitly limits federal authority to specific regulatory jurisdiction, as in proposed paragraph 5(1)(a). This flies in the face of the Supreme Court's rulings in Oldman and MiningWatch, and ensures that federal environmental assessment will have no meaningful relation to ecological or social reality. This will make it all but impossible to establish any kind of consistent national practice.
The substitution and equivalency provisions do precisely what the caucus and others have studied and warned against. It will create a patchwork of inconsistent EA application, both within the federal government and between federal and provincial processes. Rather than seeking to use the federal regime as a backstop for coordinated and harmonized processes, it is to be broken up among agencies with different mandates, structures, and capacities—the Canadian Environmental Assessment Agency, the NEB, and the Canadian Nuclear Safety Commission—and will be further devolved to provincial and land claims mandated processes that have little in common with each other. The contrast between the federal and the B.C. assessments of the Prosperity mine project, which should have undergone a joint review, provides an excellent case study.
By weakening the federal role and splitting up federal assessments among several federal agencies and provincial and territorial EA processes, CEAA 2012 actually balkanizes EA across about 19 very different processes. It's certainly no longer a one-window approach. And given the weakness of its transboundary and regional assessment provisions, it's also doubtful that it will result in having “one project, one assessment”.
In terms of integrated decision-making, while the designated project list approach to triggering an environmental assessment is not necessarily a bad thing, the way it is used in this act is problematic. It's one thing to focus assessment efforts on larger projects with potentially more significant impacts, but in our view, it is a mistake to do so without making any effort to ensure that there are mechanisms to ensure that smaller projects are tracked, monitored, and, as necessary, assessed. At the same time, rather than integrating sustainable development, the screening process and the layers of discretion on whether an assessment will actually be undertaken and what its scope will be will tend to relegate environmental assessment to the margins of decision-making, both for projects and for regulators.
In addition, any mention of strategic environmental assessment—the assessment of policies, plans, and programs—has disappeared completely.
With regard to public participation, that is a key element in environmental assessment. Here, it is curtailed by the restricted number of projects being assessed, diminished opportunities for public participation, and artificially imposed timelines. If you recall, the Supreme Court did back MiningWatch in its decision on the Red Chris mine review, which was based on the guarantee of public participation in comprehensive studies under the 2003 CEAA amendments.
The new act promises public participation, but it provides no criteria and no guarantee that this promise will be carried into substitute processes. It contemplates participant funding only for panel reviews. Regardless, the arbitrarily compressed timeframes imposed under the new act will make meaningful public participation almost impossible. It's important to note that while the act imposes strict limits on the time available for public involvement and specifies only limited options for federal agencies to extend their time, it places no restriction whatsoever on the time a proponent may take in responding to information requests, or to change and resubmit project plans, which they do quite regularly.
In addition, and in combination with the inconsistency created by substitution and equivalency provisions, artificial timelines will make it very difficult for aboriginal communities to fully participate in environmental assessments, in recognition of their constitutionally protected rights. In short, even giving the most generous benefit of the doubt to both the formulation of the act's absent schedules and regulations, and the application of ministerial and bureaucratic discretion—in the general absence of useful criteria, I might add—the key features of this act cannot produce robust, effective, and efficient environmental assessment.
In its key aspects, it makes the process significantly less predictable and consistent. It limits its utility as a forum for establishing a social licence to operate and for fulfilling the Crown's obligation to obtain the free, prior-informed consent of aboriginal peoples for development projects affecting their lands and livelihoods.
The public has an expectation of fair treatment before the law. I would not be the first to note that in the absence of a public process that is perceived to be fair and that allows for the fulfilment of aboriginal peoples' rights, people will tend to take matters into their own hands. Lawsuits and direct action will also create greater uncertainty and unpredictability, and can reasonably be expected to more than counter any anticipated efficiency gains.
It's hard to avoid the conclusion that faced with complex legal and jurisdictional questions, and under pressure from the provinces and some industry sectors, the government has chosen to basically throw up its hands and walk away from all but its essential legal obligations. That is simply not acceptable.
Thank you.