Debates of Dec. 5th, 1994

Canadian Environmental Assessment Act

[The Acting Speaker (Mrs. Maheu)]

In my opinion the nays have it.

And more than five members having risen:

[The Acting Speaker (Mrs. Maheu)]

Pursuant to Standing Order 76.1(8) a recorded division on the motion stands deferred.

[Len Taylor, NDP, The Battlefords—Meadow Lake, SK]

moved:

Motion No. 4

That Bill C-56 be amended by adding after new subclause 5(2), the following new Clause:

"5.1 The Act is amended by adding the following after section 59:

"59.1 (1) Every regulation that is proposed to be made under section 59 shall be laid before each House of Parliament at least twenty sitting days before the proposed effective date thereof.

(2) Where, within fifteen sitting days after a proposed regulation is laid before either House of Parliament under subsection (1), a motion for the consideration of that House to the effect that the proposed regulation not be approved, signed by no fewer than fifteen Senators or twenty Members of the House of Commons, as the case may be, is filed with the Speaker of the Senate or the House of Commons, as the case may be, the Speaker shall, within five sitting days of the filing of the motion, without debate or amendment put every question necessary for the disposition of the motion.

(3) Where a motion referred to in subsection (2) is adopted by both Houses of Parliament, the proposed regulations to which the motion relates may not be made, and the proposed regulation shall be referred to the committee of the House of Commons that normally considers environmental affairs for further consideration.

(4) Where Parliament dissolves or prorogues earlier than fifteen sitting days after a proposed regulation is laid before both Houses of Parliament under subsection (1) and a motion has not been disposed of under subsection (2) in relation to the proposed regulation in both Houses of Parliament, the proposed regulation may not be made.

(5) For the purposes of this section, "sitting day" means, in respect of either House of Parliament, a day on which the House sits."."

Madam Speaker, I am pleased to rise to speak to my motion in front of the House today. This is a motion that I have raised in this Chamber on one previous occasion. I am very pleased to have an opportunity to again try to convince the members of this House of the importance of dealing with public involvement in the regulatory process.

I should indicate to members and to those who are watching today from outside this Chamber that public involvement in decision making is something that I have always taken very seriously.

Although Bill C-56 in front of us deals to a certain extent with participant funding and individual participation within the process of environmental assessment, I was very anxious to include amendments as well dealing with participant funding, define more readily participant funding and also ensure that the agency in the legislation take more responsibility for participant funding programs.

I found that the amendments I submitted for inclusion on the Order Paper for today were ruled out of order before they were printed, again because they did not deal specifically with the intent of the legislation before the House.

While we are dealing with the importance of public participation in the environmental assessment process I want to urge the government to do more to ensure a public participation funding program or an intervener funding program than has been done in the legislation in front of us.

The government responded in committee to the question of greater definition of public participation funding programs by stating that it will include guidelines and rules within the regulations that make the act operable. That and other reasons is what prompts the amendment on the table now.

What I am saying by moving the amendment is that the current regulatory process is inadequate, troublesome and lacking in public scrutiny. Members of the public and in fact the members of the House do not have the ability to examine in public, debate in public, discuss in public with a view to change, regulations once they have been dealt with, generally behind closed doors.

As witness after witness before the committee in the previous Parliament and before the committee in this Parliament indicated, it is the regulations which run the act and therefore the process, not the act itself. The regulations are as important as the act.

We have spent on environmental assessment legislation hundreds if not thousands of hours putting in place the proper wording for the legislation but we have not dealt at all with the regulatory process.

One of the witnesses before the committee, a man by the name of Brian Pannell from Winnipeg had some comments in this regard that I want to bring to the attention of the House before I proceed with my arguments. Mr. Pannell said: "On the law list, the law list remains substantially deficient. I can tell you that this law list has been worked on for years and it has always been a struggle to be relatively inclusive of the real substantial decisions that should be on there and there are still many decisions that should be on there that aren't because there are many departmental interests that are served by not having them there and I don't see an early resolution to this process".

The regulatory process takes place behind closed doors. Decisions are made about how the act will be run by people who study this very closely. To a certain extent the people in this regulatory process are doing a great job. The regulations are put in place and go before cabinet. Before those regulations can be published the cabinet makes decisions, makes deletions, makes additions, does whatever it wants to, not referring anything back to the regulatory development committee or whatever it is called, and the regulations are published. That is it. Everything is done and the operations of the act proceed.

Some time ago in dealing with the previous government's gun control legislation the government set a precedent by establishing a process by which regulations could be reviewed by members of Parliament. The government conceded, because the regulations concerned the addition of firearms that could be prohibited by order in council, not by debate, not by public discussion but simply by cabinet deciding that this or that firearm could be put on a prohibited list.

In this case we have regulations that can decide the future of environmental assessment, the process, how the participant funding program is going to operate, who is going to get funding under participant funding processes, which projects will be reviewed, which projects will not be reviewed, who can appear before panel decisions, who can sit on panels and where they are going to operate. All of these details about the decision-making process that will eventually lead to recommendations on projects are dealt with under regulations. As members of Parliament we and the public have no participation in that process before, in the middle of or after it is completed.

The point I am making is fairly simple. We are asking that when the regulation process is complete and the regulations are on the table that we set aside a period of time when members of Parliament or members of the Senate can respond to those regulations. We can say to the country that we do not want these regulations to pass until such time as we have had a chance to look at them. These matters can then be brought before committees or dealt with in any way that the government wishes to have them dealt with. Should public scrutiny allow those regulations to go forward, they can.

The government loses nothing in this process other than the fact that some of the regulations and some of the regulatory process is under the scrutiny of members of Parliament, the Senate and therefore the people of Canada, if we are paying attention to the needs and the interests of the Canadians who are concerned about these matters.

I do not consider this to be a significant amendment in terms of what it means to the government achieving its ends. I do see it as a significant amendment in terms of allowing for greater public participation on the side of the question that really matters: the operational and administrative side, the regulatory side.

I urge the government to carefully consider its concern and its stated support for public participation in the process. By supporting this amendment it will bring greater clarity to the whole regulatory decision-making process.

[Bill Gilmour, Reform, Comox—Alberni, BC]

Madam Speaker, I am pleased to speak to Motion No. 4, the third amendment proposed by the member for The Battlefords-Meadow Lake. The proposed amendment relates to section 59 of the act which grants the governor in council authority to make regulations relating to environmental assessment and follow-up programs set up in the Canadian Environmental Assessment Act.

These regulations are an essential part of the act. They are the guiding principles which shape the environmental assessment process. Once again there is some merit to the proposed amendment but there are also many concerns which arise with this proposal.

Presently under the act, the regulations which guide the environmental assessment process are determined by governor in council which basically means the cabinet. Cabinet decides what the regulations will include. Members of Parliament

outside of the inner circle of government are excluded from the process.

The amendment to the bill proposes to address this concern so that the regulation proposed under section 59 would be laid before the House of Parliament. This would allow for a more democratic process in the development of these regulations and would allow members of the House to participate in the decision-making process as regulations are proposed.

The hon. member also proposes that regulations are presented to the House at least 20 sitting days before the proposed effective date. The time line of 20 days would ensure that members have adequate time to comment on regulations and proposed meaningful amendments where necessary.

My concern with this proposal is that it would slow down the process. I have concerns that if every regulation were brought forward, the process would be far too time consuming and would in fact be unworkable. Members need to participate in decision making but this suggested amendment would grind the House to a halt.

For these reasons I cannot support and therefore oppose the motion.

[Monique Guay, Bloc, Laurentides, QC]

Madam Speaker, we recognize that Motion No. 4 put forward by the hon. member for The Battlefords-Meadow Lake definitely has some merit. While it will not gain our full support, it is far from worthless. It has the advantage of applying the concept of transparency to one of the most fundamental aspects of the Canadian Environmental Assessment Act, the regulations made under the Act.

I would like to remind my colleagues that on October 6, the Minister of the Environment announced in this House that the Act would be proclaimed and that its regulations would soon be published in the Canada Gazette . These regulations are actually one of the many shortcomings of this federal legislation. They confer great power and allow the federal government to give a wide application to its environmental assessment process, without any regard for assessment processes already established by the provinces.

The federal regulations have a major impact in Quebec. In view of the great power the federal government has seized to initiate federal assessments, as provided under the regulations, most projects covered by Quebec regulations are likely to be subject to the federal regulations also. Clearly, two processes could be undertaken for the same project, unless, of course, there was a bilateral agreement between the province and the federal government. So far, I think that only one province has signed such an agreement with the federal minister.

Federal regulations on environmental assessment reinforce and give further extension to the Act. That will lead to a duplication of assessment processes, an inability to meet deadlines under provincial processes, the possibility that provincial decisions could be challenged, some uncertainty and hesitation by developers in submitting projects owing to the dual assessment process and the subsequent decisions, a waste of time and money, the possibility of legal challenges for the results and decisions, if the two assessments reach different conclusions. These are serious consequences of regulations made under the Act.

Since the minister refused to amend her legislation to specify that provincial procedures, and more specifically those in Quebec, are comparable to the federal process and equally valid, so that projects subject to Quebec regulations would be subject only to provincial procedures, we now have two sets of procedures, which is very costly and very confusing for all concerned.

The federal legislative process is opaque to the point of being secretive. Regulations are churned out without any genuine debate by members. They are published and easily pass consideration by the Committee on Scrutiny of Regulations, without anyone being able to challenge the basis for certain regulations. The process makes absolutely no sense at all and is also dangerous because these regulations are often vitally important.

In this particular case, the regulations of the Canadian Environmental Assessment Act mostly duplicate Quebec's regulations. It is most unfortunate that no Quebec members had a chance to look at these regulations before they came into force. It is also unfortunate that members have had absolutely no say in this respect. We find the same situation-not a very democratic one, in my opinion-with all other bills debated and voted on in this House. We can see the bills and study them clause by clause, but we never have that opportunity with the regulations.

If the NDP motion is adopted, it would have to be part of the general procedure for proposed legislation, so that at least elected members would be able to discuss draft regulations before they become official.

We support the main purpose behind this motion. However, we object to including the senators in a process to prevent the approval of draft regulations. The Senate consists of non-elected individuals, appointed strictly on a partisan basis. These are patronage appointments, and these friends of the government cost us $53 million.

As I said before, the motion's purpose, which is to give us a chance to examine the regulations and to amend or reject them,

is entirely valid. The legislative system should make it possible for members to intervene in this area.

Therefore, I move, seconded by my colleague the hon. member for Terrebonne:

That Motion No. 4 be amended: a ) in sub-clause (1), by replacing the words ``each House of Parliament'', with the following:

"the House of Commons"; b ) in sub-clause (2),

(i) by replacing the words "either House of Parliament under subsection (1), a motion for the consideration of that House", with the following:

"the House of Commons under subsection (1), a motion for the consideration of the House"; and

(ii) by striking out the words "fifteen Senators or", "the Senate or" and ", as the case may be,"; c ) in sub-clause (3), by replacing the words ``both Houses of Parliament'', with the following:

"the House of Commons"; d ) in sub-clause (4), by replacing each instance of the words ``both Houses of Parliament'', with the following:

"the House of Commons"; and e ) in sub-clause (5), by replacing the words ``either House of Parliament'', with the following:

"the House of Commons".

[Benoît Sauvageau, Bloc, Terrebonne, QC]

Madam Speaker, I rise to further explain why I will have the pleasure to support the sub-amendment presented by my colleague from Laurentides.

To clarify where we are coming from with this sub-amendment to Motion No. 4 presented by the NDP member, I will say that the only thing we agree with is that we would be ready to support the motion presented by the member for Battlefords-Meadow Lake. Therefore, we would be pleased to support it. However, to be consistent with the positions we have taken since the opening of this Parliament, we cannot accept that non-elected individuals might take the place, even occasionally, of elected representatives.

We must point out that the Senate is composed of appointed members who are, as my colleague so skilfully demonstrated, appointed in a partisan way; they are government cronies. These appointees, who cost taxpayers $53 million a year, and who are supposed to be wise, have shown that this is seldom the case.

Therefore, according to the 1848 principle of responsible government which I explained earlier, decisions made here by democratically elected representatives of the people should only and always be discussed in this House. I should point out, for the benefit of all those present, that each one of them represents a federal riding, but that they also represent their provincial legislature, and that there is only one House in each province because their provincial legislature recognizes the authority of democratically elected representatives.

What we are opposing mainly is the fact that non-elected individuals could make decisions. We must therefore support the amendment to the amendment submitted by my colleague from Laurentides and make sure that we remove from the motion of our NDP colleague anything that could be interpreted as meaning that both Houses must be involved in the decision-making. Democratic decisions are made here, in this House, and anything not democratic, like the present proposal, must be rejected.

[Clifford Lincoln, Liberal, Parliamentary Secretary to Deputy Prime Minister and Minister of the Environment]

Madam Speaker, I would like to say first of all that I am a bit surprised at the Bloc Quebecois position. Despite explanations by the hon. member for Terrebonne, one cannot help wondering how the Bloc Quebecois can move an amendment to an amendment to a bill over which it is in total disagreement. It is a bit surprising.

Similarly, I would like to refer to remarks by the hon. member for Laurentides who keeps harping on the same old theme that the Canadian Environmental Assessment Act is some kind of absolute intrusion in prerogatives of provinces and more particularly Quebec.

I want to point out to the hon. member that the federal government has not only the right but the responsibility, as stated by the Supreme Court, to deal with environmental assessment, if only in such areas of exclusive jurisdiction as coastal zones, navigable waters, fisheries, national harbours, airports, the St. Lawrence Seaway, Crown lands, native lands, defence facilities, not to mention the shared jurisdiction on environment itself.

Indeed, I would point out to the hon. member for Laurentides, if she is interested in getting information, that joint assessments have been made for a very long time in Quebec concerning, for example, Cacouna Harbour, the St. Marguerite River more recently and the Lachine Canal very recently. There are instances of several projects assessed either by BAPE or, on rare occasions, by the federal government, when the project was essentially under federal jurisdiction.

As for the motion by the hon. member for The Battlefords-Meadow Lake, we are quite aware that under several acts of Parliament, regulatory systems are established independently of Parliament.

In the case of the Canadian Environmental Assessment Act, the regulations were subjected to one of the most rigorous and progressive procedures established by the Government of Canada. During the last election, we on this side of the House promised an in-depth review of the existing regulations-

[The Acting Speaker (Mrs. Maheu)]

I am sorry to interrupt the parliamentary secretary. We are debating the amendment to Motion No. 4.

[Clifford Lincoln, Liberal, Lachine—Lac-Saint-Louis, QC]

May I speak to both at the same time? It is the same subject anyway.

[The Acting Speaker (Mrs. Maheu)]

Does the member have agreement?

[Some hon. members]

Agreed.

[Clifford Lincoln, Liberal, Lachine—Lac-Saint-Louis, QC]

During the last election, we on this side of the House promised an in-depth review of existing regulations as well as ongoing consultation on the others. Some existing regulations have been reviewed thoroughly and substantially improved as many witnesses have recognized, in fact.

All the other regulations are subjected to the same in-depth analysis by all the interested parties.

I am very sympathetic to the member's suggestion, but the suggestion does not seem to recognize that extensive consultation has taken place, nor does it reflect the fact that the development of regulations is a much larger question than that contained in the regulations under the Canadian Environmental Assessment Act.

If the member for The Battlefords-Meadow Lake wishes to change the federal regulatory development process, the Canadian Environmental Assessment Act is certainly not the place to do it. For this reason the government will not accept this motion, nor the amendment to the motion.

[The Acting Speaker (Mrs. Maheu)]

Is the House ready for the question?

[Some hon. members]

Question.

[The Acting Speaker (Mrs. Maheu)]

Is it the pleasure of the House to adopt the amendment?

[Some hon. members]

Agreed.

[Some hon. members]

No.

[The Acting Speaker (Mrs. Maheu)]

All those in favour of the amendment will please say yea.

[Some hon. members]

Yea.

[The Acting Speaker (Mrs. Maheu)]

All those opposed will please say nay.

[Some hon. members]

Nay.

[The Acting Speaker (Mrs. Maheu)]

In my opinion the nays have it.

And more than five members having risen:

[The Acting Speaker (Mrs. Maheu)]

Is there unanimous consent to defer the vote to tomorrow at 5.30 p.m.?

[Some hon. members]

Agreed.

[Don Boudria, Liberal, Glengarry—Prescott—Russell, ON]

Madam Speaker, a point of order. I wonder if you could seek unanimous consent to adjourn the House, having completed the legislation before us for today.