Natural Resources Committee on Nov. 18th, 2013

[Mike Allen, Conservative, Tobique—Mactaquac, NB]

That's helpful.

This is the last question I have.

I have been to a few of the open houses both during the data gathering exercise that one of the proponents had, but maybe as importantly, the open house after the EIA was filed. That proponent conducted an open house and brought in a tremendous number of resources to talk about all the different aspects of the project. They had the expertise there, all the engineering people who had done the assessments.

Who judges the adequacy of that consultation process? Is it part of your role to do that and to determine whether the proponents have done enough to seek input with respect to the reports? Who ultimately makes the call on that?

[Jim Clarke]

I assume you're talking about a CEAA-led assessment, an assessment led by the Canadian Environmental Assessment Agency federally. In such a case, with their new authorities under the Environmental Assessment Act of 2012, it would be the CEAA leading the consultations and actually determining the adequacy at the end of the day of what they have done.

[Mike Allen, Conservative, Tobique—Mactaquac, NB]

How do you interface with that role to share best practices, or is there any role for your major projects management office?

[Jim Clarke]

For a CEAA-led assessment, we will have a project agreement. As Terry mentioned earlier, there is the environmental assessment, but there's also regulatory permitting and the aboriginal consultation element. We'll want to document how that is going to unfold over the course of the 12 months if it's a standard EA, or the two years if it's a panel review, and publish that publicly so that people can follow the course of the review. We set out clearly what the process will be in advance, and then we are there to facilitate issues resolution, if there are problems along the way.

[Mike Allen, Conservative, Tobique—Mactaquac, NB]

Okay, thank you.

[The Chair, Conservative, Leon Benoit]

Thank you, Mr. Allen.

We have Mr. Gravelle with the final round of questions, and then I'll make a couple of comments on the next meeting.

[Claude Gravelle, NDP, Nickel Belt, ON]

Thank you, Mr. Chair.

I have one question, and then I'm going to share my time with Ms. Duncan.

With regard to all the lobbyists the chair was talking about not being on the list, why aren't they on the list?

[Terence Hubbard]

Again, I'm not an expert on the Lobbying Act and the rules and requirements under it, but my understanding is there are specific requirements to report specific meetings with designated office holders. Not all staff within the MPMO would be a designated office holder, so those meetings would not—

[Claude Gravelle, NDP, Nickel Belt, ON]

In other words, they're not lobbyists.

Thank you.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

I have one quick follow-up question about your meetings of the deputy ministers of all the related departments. It goes to the issue of where you're claiming equivalency. That, of course, first came up under CEPA. The original rule was that you had to have identical regulations and identical enforcement compliance policies.

Does the Department of Justice sit on that committee?

[Terence Hubbard]

Yes, it does.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

It does.

Has it been briefing the other deputies about the issue of illegal subdelegation?

[Terence Hubbard]

I can't precisely remember a specific conversation at the deputy table about that, but I do remember a number of conversations with Justice colleagues, and other federal departments and agencies in the course of the development of the proposals and the legislation, about rules and requirements and what could and couldn't be done.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Okay.

So you understand there are certain federal powers that cannot be transferred to the provinces. One that Alberta has fought for 40 years is control over fisheries. It cannot be transferred to the provinces because that would be illegal subdelegation. Is that correct?

[Terence Hubbard]

I'm not a justice expert, so I would hate to answer on this.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Can you think of other areas of federal jurisdiction where the federal government could not simply say it's okay, the province can review and make a determination?

[Terence Hubbard]

I can say in terms of developing the new tools and approaches that were introduced as part of the legislative package that we were confident, and our justice lawyers were confident, that we were within our rights in what we could do under federal law and legislation.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

If, for example, with B.C., Ontario, or Alberta, there were an agreement that there would only be provincial EIAs and provincial reviews, you don't have a concern with the constitutional obligation to first nations.

[Terence Hubbard]

In terms of consultation responsibilities, we aren't talking about delegating our duty to consult to provinces. Our duty to consult aboriginal groups isn't entrenched within those individual pieces of legislation and regulation. It's a constitutional regulation.

Despite the changes we've made to the environmental assessment and regulatory processes, our legal duty to consult aboriginal groups remains.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

The MPMO has been following all of the court cases out of Alberta about when the Alberta energy board can make determinations on first nation rights in title, and when the federal government can make those determinations.

[Terence Hubbard]

We continue to work with our Justice colleagues and colleagues at Aboriginal Affairs on developments and any new jurisprudence in terms of court cases, what it may mean to our federal approach for aboriginal consultations, and whether or not we need to adjust our process going forward to ensure we fully meet and satisfy our obligations.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

For the British Columbia agreement, is that going to exclude an open federal hearing on those matters?

[Terence Hubbard]

The memorandum of understanding that we've developed with British Columbia for substitution is pretty explicit in terms of our roles and responsibilities, the provincial role, and helping us to meet our consultation obligations going forward.

There is a public MOU outlining our commitments with the Government of B.C. and how we will implement those provisions, and it specifically gets into details in terms of aboriginal consultations.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

My question isn't about consultation; it's about a panel review.

Could you make available to us a copy of the agreement between the federal government and British Columbia?

[Terence Hubbard]

Yes, it's public.