Thank you, members of the committee. On behalf of the Mining Association of Canada, Justyna and I thank you for this opportunity to appear before you today.
As some of you may know, when I spoke to your colleagues on the environment committee about Bill C-69, I said I was mad, mad because in the same bill, the transition provisions for mining projects under CEAA were not the same as those for NEB projects.
In the latter, the government ensured that all projects undergoing an assessment begun by the NEB under CEAA 2012 would remain under the NEB, but not so for mining, which faces the uncertainty of switching acts midstream.
Guess what. I'm mad about Bill C-68 for a very similar reason. In our appearance before this committee on November 14, 2016, we stressed the importance of adequate departmental capacity for implementing the act and managing transition. We described the significant challenges we encountered with the transition resulting from the amendments introduced in 2012. Over and over we emphasized to the department that they had to do a better job of managing the transition this time around.
We appreciated your recommendations, particularly 21, 22, and 25, that advocated for investments in hiring field personnel and meaningfully resourcing the monitoring, compliance, and enforcement components of the department. We are pleased that the government has materially increased funding for DFO.
However, here with Bill C-68, we find once again a failure to address the problem of transition. While the provisions proposed in subclause 53(1) provide an orderly transition for authorization applications that have been deemed complete, they do not recognize directions given to proponents by DFO in response to a request for review or to guide an application for authorization.
What does this mean exactly? I'll explain.
Determining whether a large and complex mining project will impact fish habitat, gathering information on potentially impacted fish habitat, and examining mitigation or avoidance options takes time. Field studies take time, and must account for seasonal constraints. If an authorization under the Fisheries Act is required, additional time is needed to gather all necessary information, assess offset options, seek input from affected communities, particularly indigenous communities, and otherwise conform to the applications for authorization under paragraph 35(2)(b) of the Fisheries Act regulations. The cost of the complete authorization application package can range from hundreds of thousands of dollars for small projects to millions of dollars in the case of large projects, and can take several years.
Thus, requesting a review and preparing an application is not a trivial or a quick undertaking. Mining projects are also subject to federal and provincial environmental assessment processes. These can take three or more years, and application for an authorization under the Fisheries Act cannot be submitted until these assessments are completed. The case of one MAC member is particularly troubling, and exemplifies the importance of our request for amendment.
The project entered federal environment assessment in 2012, and the proponent had to completely revise its original Fisheries Act-related plans when the new Fisheries Act amendments came into force in late 2013. In the case of this project, it is unlikely that the environmental assessment will be completed in time to allow an application for authorization to be submitted before this bill, Bill C-68, and its amendments, come into force. This proponent would then be required to revise its application all over again, because the extensive direction given by departmental officials over the past six years would suddenly be deemed invalid.
I'm sorry, but we find this simply unacceptable. We therefore urge you to amend subclause 53(1) as suggested in our brief to you, to prevent responsible proponents from being forced to redo field studies, project design, offset design, and application development.
I should emphasize we have met with the department on this matter, and we believe we've been heard, but again, we strongly encourage this committee to consider our proposed amendment seriously, because, members of the committee, our sector has practised due diligence. Unlike other sectors that believe their activities were no longer regulated by the Fisheries Act, over the past six years we have fully complied and engaged with departmental officials to understand the requirements of the 2012 amendments to the Fisheries Act.
Indeed, officials, by their own admission, confirm that most authorizations today are for only the mining sector. Few others, removed from the scrutiny of the Canadian Environmental Assessment Act and, thus, removed from the scrutiny of DFO, have bothered to seek authorizations even though their activities can, and do, harm fish.
Yet we find it is the mining sector that, by following the directions received, now may be penalized for our due diligence and engagement with the department if the directions received are invalidated through inadequate transition provisions, and duplication of effort is required to re-engage following the coming into force of new amendments.
The change we are requesting is not wholesale grandfathering. In fact, we believe the number of projects that would be affected by the proposed change is small. Morever, the requested change to the transition provisions would not affect the health of Canada's fish habitat. We do not believe there has been a deterioration in the protection from inadequate stringency of reviews and authorization applications for mining projects—and I believe the department could confirm that, as well. If there has been a deterioration, it is due to the lack of scrutiny of the activities of others. We are asking for relief from unnecessary administrative burdens on responsible project proponents and DFO regional staff.
Let me now turn to a second issue, which relates to cumulative effects.
When addressing the environment committee on Bill C-69, I spoke about how CEAA 2012 has penalized the mining sector by making us responsible for the cumulative effects of others not subject to CEAA. With Bill C-68 we face a similar situation with the requirement in proposed paragraph 34.1(1)(d) that the minister consider cumulative effects before recommending regulations or exercising any power.
Consideration of cumulative effects is necessary in making decisions that may impact aquatic ecosystem health. Fisheries are under federal jurisdiction, and the Fisheries Act contains a comprehensive range of regulatory tools for the discharge of that jurisdiction. DFO, thus, has the tools for monitoring, assessing, and managing cumulative effects.
However, based on our experience with CEAA 2012, the department may default to erroneously and unfairly place the burden of managing cumulative effects on a few mining projects rather than taking the steps necessary to address the root causes of cumulative fish habitat deterioration.
You recently heard from Margot Venton of Ecojustice Canada, who said:
...fish habitat is degraded not only by major projects, but also through the impact of smaller-scale works, undertakings, and activities. To stem the tide of incremental loss of habitat, DFO needs to do a better job of considering and addressing this cumulative loss of habitat....
Yes—guess what—I'm agreeing with Ecojustice, and not just with them.
The recently published “Watershed Reports: A national assessment of Canada's freshwater”, by the World Wildlife Fund, highlights the complexity and diversity of stresses on Canada's watersheds. It supports our concern that these stresses cannot be addressed by focusing the department's attention on a few mining projects. Activities affecting fish and fish habitat must be fully assessed by the party that caused the effect. Mining projects should be responsible only for project-related effects, as our industry has no control over effects related to non-mining activities, such as forestry, agriculture, hydro, and municipal works. In short, the act must be applied consistently for all works, undertakings, or activities.
Project proponents should not be held accountable for the cumulative effects of non-regulated activities, as contemplated in proposed subsection 34.1(1). As the legislation is drafted, a project proponent could be required to avoid, mitigate, or create offsets for fish habitat to compensate for the harm to fish habitat caused by other industries.
These concerns could be partly addressed by amending proposed paragraph 34.1(1)(d) as spelled out in our brief.
To conclude, if the transition provisions in subclause 53(1) are amended as requested, and if you help balance the responsibility for cumulative effects, the impacts of the revised Fisheries Act proposed by Bill C-68 on the mining sector are expected to be manageable. Of course this is contingent on how these are interpreted and implemented by DFO.
Thank you very much. I look forward to your questions.