Subcommittee of the Standing Committee on Finance on Bill C-38 Committee on May 31st, 2012

[Warren Everson]

There are two that I mentioned.

The duplication between governments is a necessary change. We look, in my view, ridiculous in this country having duplication in the way that we do.

I think the establishment of timeframes is very critical for all parties. Rachel just said that the proponents also have to adhere to timeframes. I think it's very salutary for all parties to realize that a decision needs to be made promptly, with appropriate information.

We've published editorials in which we've said that this bill will not be any walk in the park for proponents; it's more like a trial than the current more leisurely process, in which you massage your proposal.

[Stella Ambler, Conservative, Mississauga South, ON]

I think there are folks out there who believe that we're reducing timelines with this legislation, when in fact we're implementing timelines where they did not exist before. I'm going to assume that the two-year time limit for major projects is something you think will help Canadian businesses, and your stakeholders in particular.

[Warren Everson]

I think it will help all the parties involved, proponents and opponents.

[The Chair, Conservative, Blaine Calkins]

Thank you, Ms. Ambler.

We now have to move on to Mr. Chisholm, for up to seven minutes, please.

[Robert Chisholm, NDP, Dartmouth—Cole Harbour, NS]

Thank you, Mr. Chairman.

I want to thank the witnesses for coming forward today to share their thoughts and knowledge with us.

I have been sitting here now for 13 hours or so listening to a great deal of very interesting testimony. I don't think I've heard anybody say anything contradictory about the four principles of resource development in terms of streamlining the process, that is, being predictable and timely, reducing duplication and regulatory burden, strengthening environmental protection, and having meaningful consultation with aboriginals. I don't think I've heard anybody say they disagree with those.

Right now, we have a process and we need a process that allows for a debate and discussion of how that development is going to happen. So you have the proponents—that is, Mr. Toner and others—coming forward and presenting what they want to do, and you have the others who are affected and who also have knowledge bringing fact-based science to the table, where you would have a discussion and then a rules-bound process for determining how to move forward. What we need to do is to make sure that is streamlined and that everybody's interests are properly taken into consideration.

There are different interests on how we protect the commons that need to be fully aired, and yet we're engaged in a process here that's based on power, I would humbly submit. The government is unilaterally bringing forward changes to 70 pieces of legislation, some extraordinarily impactful pieces of legislation that we're talking about—the Fisheries Act, the Canadian Environmental Assessment Act, and others. They are bringing them in. They are jamming them through an omnibus bill where we get to talk about it for a full 12 hours. We already had 2 hours, so it's 14 hours altogether.

It's not setting a good example for how we're going to sort out the different interests that come forward in the future, because now, it seems to me, that with the unilateral changes that we're making in this legislation, which are not taking into consideration what we've heard here and are completely one-sided, this is not setting a good example. It means that when we go forward it's very much going to be a power-based system.

Mr. Toner—and I only refer to him because he's Nova Scotian, which I want to point out—and other proponents are going to come forward and propose the development of projects, and others will come in and raise questions about those, but in the final analysis it will be the minister or the cabinet that will decide.

That simply blows me away. In terms of setting an example for how we talk about being cooperative, working together, and making science-based decisions in protecting natural resources and so on, everybody wants to do it in a timely, efficient, and effective way. Why don't we sort those problems out together and achieve it that way, rather than following this power-based process where we'll come out the other end with the same people for and against it?

What do you think is going to happen when the first project comes forward under these changes? Do you think there is going to be any uncertainty? Do you think there are going to be any challenges? Do you think there are going to be any delays? And that is simply based on the process we have gone through here. That is a huge concern of mine.

I'll shut up now and ask a question. I'm sorry.

[A voice]

Can I answer that?

[Robert Chisholm, NDP, Dartmouth—Cole Harbour, NS]

I want to ask Mr. Maas and Ms. Forbes to speak to the frustration with the process. I do that for this reason.

The people—I'm not saying necessarily the folks who are here—who have been for this legislation have had access. The people who are against it have not had access, and there is great frustration, I feel.

I'd like to ask the two of you who are here today, who have raised concerns about this process and this bill, if you would speak for a moment—I hope I've left you with a couple of minutes—to your concerns with the process.

Mr. Maas.

[Tony Maas]

Sure, and I'll happily be brief.

I think the point to be driven home is the process at this stage, the means by which these changes are being brought forward, as I said in my brief. It seems to presume that groups like ours, and others in our sector, if you will, are unable or unwilling somehow to sit down with industry representatives and have a reasoned dialogue and multi-stakeholder, science-based consultation about these issues.

That's simply not the case. I mean, we're in constant contact with many of the industry groups that have been represented here over the last few days in a very, very collaborative manner, including formal partnerships that we've had with organizations in the forest sector. We have ongoing dialogue with hydro power companies across the country.

I think there's certainly, in my view, a different way forward, and one that will result in a much more constructive outcome if we factor in due process.

[Robert Chisholm, NDP, Dartmouth—Cole Harbour, NS]

Ms. Forbes.

[Rachel Forbes]

When you said that the people who are for this proposed legislation have had access and those who are perceived to be against it have not, I think that really hit it on the nail. Who are the groups who have had access? What kind of access have they had? What's the legitimate process by which they've had access and other people have been shut out?

As Tony Maas just said, I do think we have experience in being involved in the process. If you're trying to make things more efficient or make things more productive, nobody is against that, as you said. We've been there. We've seen the inefficiencies. We've seen different ways. We have other ideas about how to do it in a more conciliatory and less full-frontal-assault kind of way.

[The Chair, Conservative, Blaine Calkins]

Thank you, Ms. Forbes.

Mr. Chisholm—

[Robert Chisholm, NDP, Dartmouth—Cole Harbour, NS]

That's it?

[The Chair, Conservative, Blaine Calkins]

—that was a little over seven minutes.

Ms. Duncan.

[Kirsty Duncan, Liberal, Etobicoke North, ON]

Thank you, Mr. Chair.

I'd like to thank all the witnesses for coming.

To Ms. Forbes, when one considers that the Supreme Court of Canada ruled that transferring authority for aquaculture from DFO to the B.C. government was not acceptable under the Constitution, do the provisions to transfer fisheries management to the provinces appear sound to you?

[Rachel Forbes]

I think you're referring to the Alexandra Morton and B.C. court case. The company involved in that was Marine Harvest.

In B.C., if you're not familiar with this, the aquaculture fish farms were for awhile a little bit like a child of divorced parents who were fighting: nobody knew who was doing what with the fish. Sometimes they were on land and under the B.C. Ministry of Agriculture, and sometimes they were in the ocean, obviously, and then under federal authority.

Alexandra Morton, a scientist with decades of experience in this area, brought a challenge. The court decided that it was not constitutional for the province to deal with aquaculture, that it was exclusively a federal head of power, and that it was ultra vires subsection 91(12) of the Constitution for the province to attempt to regulate that.

I do know that there are potentially other issues with delegating authority over fisheries to the provinces—among them, that different provinces have different ways of dealing with fisheries right now. We have a lot of different types of water bodies in Canada, a lot of different species of fish, and a lot of different types of development that happen in those water bodies. If we're trying to actually make a consistent, predictable process across Canada, I don't understand how delegating it to different authorities under different provinces and territories actually accomplishes that.

Moreover, there are potentially constitutional problems with it.

[Kirsty Duncan, Liberal, Etobicoke North, ON]

Thank you, Ms. Forbes.

As well, how does the repeal of CEAA and the focus on commercial, recreational, and aboriginal fisheries align with assessing biodiversity and ecosystems?

[Rachel Forbes]

I think I suggested in my main presentation that one of the themes we see in part 3 of Bill C-38 is a lack of respect for, or appreciation of, or knowledge of the fact that we live in an ecosystem. Labelling different types of fish, the ones that are commercially or culturally valuable, really ignores that those fish also rely on other fish and other aquatic species and plant species and a healthy ecosystem to live in.

Taken together, all of the amendments in part 3, particularly the ones with the new CEAA and Fisheries amendments, as well as the Species at Risk ones, culminate in this very closed perspective, as though each project happens in its own little room and doesn't impact anything outside of it. We don't look at cumulative effects properly. We don't look at biodiversity. We don't look at ecosystems.

This actually could help industry in the longer term. We need to take proper care of our resources if we want to use them for a longer term. We need to keep proper care of our water if we want people in agriculture or in the extractive industries to use water. We need it to be available.

We need to look at the bigger picture and how things actually influence one another.

[Kirsty Duncan, Liberal, Etobicoke North, ON]

I'm going to ask Dr. Steedman three very brief questions. I'm looking for yes or no answers for each one.

For the NEB, is the legislation being backdated to July 2010, yes or no?

[Dr. Robert Steedman]

No.

[Kirsty Duncan, Liberal, Etobicoke North, ON]

It's not. When is it—

[Dr. Robert Steedman]

The legislation would come into effect when it comes into effect.

[Kirsty Duncan, Liberal, Etobicoke North, ON]

It's been a concern that it was being backdated. Thank you for that.

I'll go back to Ms. Forbes. Grand Chief Atleo has said that non-recognition of treaty rights is a deep concern. Bill C-38 puts our first nations in a deeply reactive position. Two days ago, we heard directly from Grand Chief Atleo that he does not know what, beyond $1.5 million, the government will do to improve aboriginal consultations.

The Union of B.C. Indian Chiefs has written an open letter saying that they do not accept requests for comments on proposed regulations to implement CEAA 2012. They say that they strongly contest “the federal government's current request for comments on the proposed regulations...based on the lack of consultation with First Nations”, and they will not participate in this flawed process because they do not want to legitimize it in any way.

That continues.

They strongly urge the government “to engage in regulatory overhaul for environmental laws that respect constitutionally protected Aboriginal Title, Rights and Treaty Rights, with appropriate engagement across the country”.

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

[Rachel Forbes]

I think first nations consultation is one of the aspects where the timelines really don't make sense.

I appreciate that in your average environmental assessment, things can probably happen within a certain timeframe. What we're looking at here are the unknowns and the variables. Science can be an unknown and a variable.

With aboriginal consultation, every aboriginal group will have different interests that have to be known and examined. I think it's fair to say that probably most aboriginal groups, at least it's the case in B.C., are bombarded, constantly, with multiple, different requests for comment on different projects that are crossing their territories every which way, whether that's for environmental assessment or for people who want to do a partnership deal with them. They don't have the capacity to deal with them. To tell communities that they need to respond to a process, and one in which their government will have no ability to participate in the decision-making, and they have to respond within 30-day timelines for 10 different projects at once, does not make sense. A municipality wouldn't do it, and we're asking first nations governments to do it. I agree with Chief Atleo's and the Union of B.C. Indian Chiefs' submissions on that. If I were them, I wouldn't be supporting it either.

[The Chair, Conservative, Blaine Calkins]

Thank you very much, Ms. Duncan, and Ms. Forbes. Your time has expired.

We now move on to our five-minute round.

We have Ms. Rempel. I think you're going to share your time.

[Michelle Rempel, Conservative, Calgary Centre-North, AB]

I'm not!