Natural Resources Committee on Nov. 18th, 2013

[Linda Duncan, NDP, Edmonton Strathcona, AB]

I won't belabour it. You are quite right that the review occurs, but once the environmental impact assessment is filed, there is no public consultation on the environmental impact assessment.

I note, and thank you, that in your presentation you mentioned, specifically for the Enbridge northern gateway project, the government decided to create a second body, and they appointed a special federal representative in west coast energy infrastructure. I note that in their terms, they report directly to the Prime Minister.

What's the role of your entity in the review of the northern gateway project with regard to aboriginal interests versus the role of the west coast energy infrastructure representative?

[Terence Hubbard]

Thank you for the question.

First off, I'd just like to clarify that the appointment of Douglas Eyford, the special federal representative, isn't directly linked to any individual project. His mandate is to explore the issues and opportunities related to all of the west coast energy infrastructure. There are a number of proposed projects already being examined as well as a number of other future projects, such as oil pipelines, LNG, and much broader projects. He's looking at the issues and opportunities, such as opportunities to better engage first nations communities both in the review of projects and in the opportunities and benefits that these projects present.

He has a mandate to report to the Prime Minister by the end of November. Obviously, his report and recommendations will influence the policy work of the major projects management office and the work that we do with our federal regulatory departments and agencies to identify further opportunities to enhance our engagement with aboriginal communities going forward. We're looking forward to the recommendations of his report to inform further policy work at the office.

[The Chair, Conservative, Leon Benoit]

Thank you, Ms. Duncan.

Mr. Regan, for up to seven minutes.

[Geoff Regan, Liberal, Halifax West, NS]

Thank you very much, Mr. Chairman. I'm happy to hand it over to you.

Welcome to the meeting, gentlemen. Thank you very much for coming today.

Can you tell me, since the creation of the MPMO how many major projects have begun construction?

[Jim Clarke]

I can indicate that there have been 17 projects that have been completed or reviewed under the MPMO initiative. They're all well under the two-year timeline.

In terms of actual completion of construction, I will have to get back to you on that. It's a subset of that.

[Geoff Regan, Liberal, Halifax West, NS]

I was asking about commencement of construction but it's somewhere in that range.

[Jim Clarke]

Yes.

It's a subset of the 17. It's probably half or more.

[Geoff Regan, Liberal, Halifax West, NS]

Can you give us a list?

I mean not today, obviously.

[Jim Clarke]

I can provide you with a list.

[Geoff Regan, Liberal, Halifax West, NS]

Thank you very much.

Do you have a definition in your organization of what constitutes a consultation?

[Terence Hubbard]

There are two elements to that question.

There's our public consultation process, and then there's our legal duty to consult, which is defined in the Constitution Act. Our legal duty to consult is related primarily to Canada's first nations.

In terms of what constitutes a duty, or when we need to consult, or the adequacy of—

[Geoff Regan, Liberal, Halifax West, NS]

No, what constitutes a consultation?

[Terence Hubbard]

It's a pretty difficult question to precisely define.

We've developed through the major projects management office what we call a whole-of-government approach to carrying out our aboriginal consultations. That approach is defined in these project agreements that Jim has identified. That is where the federal government relies, to the extent possible, on the regulatory and environmental assessment processes established for these projects.

We have an early engagement process where prior to entering the environmental assessment process we notify potentially affected aboriginal communities of the proposed development. We also identify opportunities of how they can participate in these environmental assessment regulatory processes. We use the robust public hearing processes that we have before us to manage, to the extent possible, our consultation obligations, given that these processes provide the best mechanism we have in terms of mitigating any potential impacts on aboriginal communities.

[Geoff Regan, Liberal, Halifax West, NS]

Sorry, a moment ago you said you have two different streams, the public consultations and the aboriginal consultations. Is that right?

[Terence Hubbard]

That's right.

[Geoff Regan, Liberal, Halifax West, NS]

Are you saying that the public consultations fulfill some of the responsibilities in terms of the aboriginal consultations? Is that what you said?

[Terence Hubbard]

That is correct.

We do use those public consultation processes, those public hearing processes, that we have well established. That is either through review panel processes or other public consultation processes that we've set up for environmental assessment. We use those processes to ensure that any impacts on first nations communities are well understood by the regulatory bodies making their decisions. We can use those processes and the terms and conditions that are implemented at the end of those processes to mitigate any potential impacts on first nations communities arising from these projects.

[Geoff Regan, Liberal, Halifax West, NS]

Where is the threshold? It relates to my question about what constitutes a consultation. You haven't avoided answering it. It's complicated, and I think you're saying it's a process.

I'm trying to get at what a consultation is and what doesn't qualify. Where is that threshold? What is the difference?

[Terence Hubbard]

We have a specific obligation to consult when we're making regulatory and environmental decisions that could potentially impact aboriginal rights or title. We have an obligation to carry out a specific consultation process in those circumstances. Where we're not making a specific decision, we do also engage aboriginal communities on those broader policy discussions and issues.

It's similar to the work that Doug Eyford is currently doing with first nations communities to solicit input and feedback. There's not necessarily a duty to consult in those circumstances. There's a difference between our legal obligations versus the engagement and input that we seek from aboriginal communities through other processes.

[Geoff Regan, Liberal, Halifax West, NS]

How many major projects are currently before MPMO, and what would their total value be?

[Jim Clarke]

There are 75 projects worth $228 billion.

[Geoff Regan, Liberal, Halifax West, NS]

Can you talk a bit more about the key recommendations that came out of the most recent evaluation of the MPMO initiative?

Also, there's a question of the radically reduced federal role in environmental assessment after the omnibus budget bill and whether there's much of a need for the MPMO today.

What are your comments on that?

[Terence Hubbard]

Fundamental changes were made through the recent legislative changes that were introduced as part of Bill C-38, as part of the government's plan for responsible resource development.

That said, there are still a number of important issues that these projects bring forward that require a concerted whole-of-government approach to address. Many of the projects we are looking at and dealing with are multi-billion dollar projects that have important socio-economic and environmental impacts. These are complex issues and they require a whole-of-government approach to examining and exploring these issues. That's the role the major projects management office brings to these issues, to these projects, in pulling together the federal regulatory departments and agencies to have these conversations and develop a broader perspective on these issues.

[Geoff Regan, Liberal, Halifax West, NS]

How does the role of CEAA now compare to your role?

[Terence Hubbard]

Through these legislative changes, the Canadian Environmental Assessment Agency has developed a much more enhanced role than it ever had before.

Prior to 2010 and the first set of legislative changes that consolidated responsibility for comprehensive studies, which are the bigger environmental assessments that we carry out, and now through Bill C-38 and the new Canadian Environmental Assessment Act that's in place, we have consolidated responsibility from as many as 40 different federal departments and agencies that could have had environmental assessment responsibilities to three departments and agencies that are now responsible for these projects going forward.

CEAA being one of those agencies, the National Energy Board and the Nuclear Safety Commission being the other two, now plays a much more enhanced role than it ever did before. Prior to these changes that we put in place in 2010 and now through 2012, the Canadian Environmental Assessment Agency didn't have responsibility for carrying out any environmental assessments. Those responsibilities rested with different regulatory departments and agencies. Now we have an expert agency developing consolidated expertise to move forward on these reviews. Again, its role is limited to the environmental assessment process whereas the major projects management office is looking holistically at the system, whereby we have the environmental assessment process, the regulatory permitting processes at the back end of that process, such as the Fisheries Act and the Navigable Waters Protection Act, as well as all the related aboriginal consultation responsibilities. We pull that together to take a government-wide approach and perspective on these issues.