In this country we have established independent quasi-judicial panels and agencies to make decisions about land use. This bill deals with intervenor funding in that land use process. For instance, if a large oil company wants to work on a pipeline that runs through miles and miles of farmland, the company must first make an application to the National Energy Board. The board will consider the effects of the pipeline on other people and on the environment before allowing the company to do the work.

This bill attempts to deal with a problem that occurs when a project has the capacity to hurt people or their assets. A large company can afford to hire all sorts of lawyers to make its case and minimize the effects of its agenda so the full truth may not come out at the hearings. The board members may make a decision based on incomplete information at the board hearings which is certainly detrimental to the public interest.

There is a policy interest here. I acknowledge this problem exists. Bill C-339 seeks to correct this imbalance by requiring a large company, such as an oil company, that brings an application before a quasi-judicial agency to pay for certain other groups to oppose its own application. This is one way to provide intervenor funding.

Provincial acts exist in several provincial jurisdictions, two of which are Ontario and Alberta. Ontario's act requires the company making the application to fund its opponent. The member mentioned this is the act that he modelled his private member's bill on.

I want to applaud the intentions of the member for Oxford in putting together this bill because the proposal arises out of a difficult experience of a number of his constituents. The bill speaks to a situation in the member's riding in May 1994 in which 130 farm families had to get together to oppose an application to the National Energy Board made by Interprovincial Pipe Line Inc. to convert pipelines running through their properties.

The farmers were able to fight the action but not before it had cost them $365,000 plus interest. To oppose the pipeline they had to form a coalition across a wide geographic area and put up a lot of personal cash to get the job done. In strict economic terms, without dealing with the human side of the equation, no intervenor funding was necessary in this case. The company that brought forward the application and another body, in this case a group of farmers, had the resources and were able to marshal them together to oppose the application.

In other words, because the farmers were able to put together the money and win the case, it proved no intervenor funding was required. However, strict economic theory would say that the greater the number of people the decision might affect, the greater the pool of money that would be available to oppose it. The number of people increases as more and more people realize the decision will negatively affect their interests. This would be the case if we were talking strict economic theory.

Unfortunately, the pure world of the economist is not the real world we must live in. Many of these applications do not get a lot of coverage in the news so the people that should be concerned do not hear about it until the problems confront them personally, sometimes years later.

A large company like an oil company also has the advantage of superior information. It has been around for a long time. It has had time to develop a lot of expertise and information to present to the panel. Most big companies also have a lot of money to finance research, pay a slew of lawyers to do their work and make slick presentations before boards. They can afford to drag out the hearings over a long period of time. All the advantages are in their ball park.

This subject is very appropriate but I also have questions about this bill. For instance, I question whether it is fair for a private company to be required to finance the very group that may kill its

application. This part of the bill would almost certainly be challenged in court by the companies that stand to suffer from it.

There is also an unfortunate, perhaps inadvertent, assumption made by the bill that all companies that appear before boards and agencies are large ones which can afford to fund their opponents. The bill makes no provision for the small business that has to get federal approval for some small development and would therefore find itself subject to all provisions of the bill.

For example, in my riding a very small outfit wanted to put together a silicate sand mine. It was called a mine but it was really a travel pit. It was a mine because it involved silicate sand. The company jumped through all the hoops and did all the things it could think of to receive provincial approvals, but then it was told that it had to go through the federal approvals because it was a mine. The people finally gave up. They said: "This will cost us another $100,000 and we cannot afford it".

Imagine if a neighbour was worried about sand blowing off the silicate sand pit and wanted intervenor funding. There would be only a couple of people involved but there was no way they could ever afford to pay for the intervenor status.

Clause 4(7) of the bill states that the level of intervenor funding would not be set according to the company's ability to pay, it would be set according to the going rates of the lawyers. That would be enough to kill some companies in a matter of hours.

My second major concern is the scope of the bill, which is very broad. It applies to any project on any land, public or private, that needs approval by any federal authority, including a board or agency, or even a civil servant, where the approval process requires or even permits public input. Can you think of any project of any size at all which is started today without a raft of federal government approvals? I cannot. If intervenor funding was available for all government approvals the program might quickly become unmanageable.

Finally, the bill tends to invite litigation from all manners of groups which would demand funding through the courts if rejected by the funding panel created by the bill. Indeed, the bill tends to create groups which might not otherwise exist because of the promise of either federal funding through court challenges or funding through the intervenor act. We know that the federal bureaucracy has in this way created a demand for its own services for decades and I am sure that some government departments would love the extra work.

These are difficult problems. While I agree with the member's intentions, I have not been able to think of a way to change the bill to minimize the abuses about which I have spoken. I fear that if the proponent funding measures did not fly, that is, if private companies successfully challenged the fairness of having to fund their own opponents, or if they were unable to provide the funding in some way, that government, as usual, would have to take up the slack. It would become a typical government cash cow, milked by many different interest groups with varying degrees of responsibility and various political agendas. As we know, this particular cow at the federal level is a dry cow and there will not be any milk in it for a long time to come.

As I said before, if the panel did not like the group's agenda and refused to support it, perhaps the courts, which have become very sympathetic with intervenor groups in recent years, might force them to do so.

I wonder if the problem could be addressed, at least in part, by having intervenor groups respond to the concerns of their particular constituencies by the government allowing them to have the equivalency of charitable status with Revenue Canada. Therefore, they could receive partial assistance from the federal government. This would require a measure of financial commitment and responsibility by the intervenors and it would not require any panels or acts of Parliament to make those decisions.

I am concerned that the intervenor funding act, if it develops as I fear, may make it very difficult for companies to push forward with new projects in Canada.

Recently we met with the mining companies during the "Keep Mining in Canada" week. They told us that it takes up to three years to get all the approvals from the provincial governments and then the federal government to do the initial environmental assessments and so on to start up a mine.

The industry minister has also mentioned the problems of overlapping of jurisdictions, provincial and federal, that make it very difficult for mines to open. The industry minister is attempting to bring together some co-ordination to reduce the red tape for companies. I fear that the intervenor act may add another level of problems for companies which are trying to create jobs, wealth and opportunity within Canada. Something which we do not need at this time is another layer of problems.

I would like to talk about the basic principle of the bill. We have recently put forward a 20-point proposal on how we can realign federal-provincial obligations in this country. The very first point in our 20-point proposal is that natural resources and the care of natural resources is constitutionally a provincial jurisdiction and whenever possible should be left in the provincial realm.

I mentioned earlier that two provinces already have addressed the problem in their own realm by allowing intervenor funding through provincial legislation. I believe it may be best to leave that natural resource issue with the provinces and allow the other

provinces to bring forward similar legislation to address it at the provincial level.

I recognize that the member for Oxford has brought to light an existing imbalance in the system. However, I am not convinced that the bill he has proposed would deal with the problem without creating new problems in itself. I would be pleased, however, to suggest to the Standing Committee on Natural Resources, on which I sit as a member, that the committee invite the member who has brought this bill forward and other witnesses and try to suggest ways of either altering, improving or finding ways to accomplish the purpose behind the bill.

While I would like to thank the member for his effort, I am hesitant to give my support for this bill for the reasons I have stated. I will be listening to the other speeches to see if I can approve it.

Intervenor Funding ActPrivate Members' Business

6:50 p.m.

NDP

Len Taylor NDP The Battlefords—Meadow Lake, SK

Madam Speaker, I am pleased to rise today to second Bill C-339, a private member's bill dealing with the subject of intervenor funding. This is certainly a subject that deserves the attention of members of this House and of the government. I thank the member for Oxford for bringing it forward.

Intervenor funding is, as he has indicated, not a new concept for governments or for this House. It was last dealt with seriously when we debated the merits of including an intervenor funding program within the Environmental Assessment Act legislation in the previous Parliament. At that time, members will remember that I was a strong advocate of a comprehensive intervenor funding program.

Today, Bill C-339 asks us to approve the principle that a proponent of a project that requires approval by a federal board or agency should financially assist those who are intervening in the public interest before the board and it sets out a few guidelines about how this funding program would work.

Specifically, Bill C-339 states that before receiving funding, intervenors need to meet a number of very specific criteria: that the intervenor represents a clearly ascertainable interest that is relevant to the issue; that the intervenor does not have sufficient financial resources; that the intervenor has made reasonable efforts to obtain funding from other sources; that the intervenor has established a record of concern; that the intervenor has made reasonable efforts to co-operate with other intervenors; and that the absence of funding would adversely affect the representation of the interest.

The criteria also requires the intervenor to have a proposal that specifies the use to which funding would be put, has the ability to record the expenditure of the funding, and has agreed to submit an accounting to the panel for the expenditure and follow and allow that panel to examine its records and verify its accounting.

According to the mover of the motion, the primary objective of the legislation is to give all those who speak in the public interest the opportunity to be heard before federal boards and agencies. The goal is admirable and the criteria is strict, perhaps too restrictive, but there are a few things that I think should be said in the debate before us today.

First, I want to ensure that there is no misunderstanding. I and my New Democrat colleagues are strong believers in the principle of intervenor funding. We are well aware that when the proponent of a project wants to obtain a permit or a licence to construct something that proponent generally has the funding in place to make the necessary application which may require the inclusion of an environmental assessment.

Obviously the proponent wants that project approved and the information they bring forward will undoubtedly portray that project in a positive light.

On the other hand, there may be others acting in the public interest who want other information considered prior to the proponent's application being approved by the respective board or agency. These others may not have the resources to adequately research, prepare, or deliver this alternative presentation. Therefore, without an adequate intervenor funding program there is no guarantee that the alternative view will ever make it in front of the group considering the licence or the permit that would finally approve the proponent's project.

When Parliament was examining the Canadian Environmental Assessment Act a few years ago, the Canadian Bar Association supported the inclusion of intervenor funding. I quote from the Canadian Bar Association presentation: "Interim funding should be provided to groups or individuals who wish to participate in public hearings and who have demonstrated a sufficient interest in the process and the ability to make a contribution to it. It is a fair and efficient mechanism to level the playing field between parties."

The Canadian Bar Association also said that intervenor costs should be paid. They suggested that a process be established to review and possibly order one party at a hearing to pay the costs of any other party to the same hearing.

Another witness at the same time, the law firm of McJannet Rich, a well-known environmental law firm, argued firmly for an intervenor funding process and set out some rules they thought were important. In their presentation to the parliamentary committee the law firm said: "Intervenor funding is extremely important and should be made available for participants in public reviews in accordance with the following principles: (1) the government has the responsibility for assuring the availability of funding and for its

allocation; (2) whatever the source of funds, the proponent must not exercise any control over the allocation; (3) eligibility criteria for intervenor funding must be developed and made known early; (4) a funding allocation committee independent of the panel should be established; and (5) funding should be made early enough to allow receiving groups sufficient time to organize themselves, prepare submissions, and where appropriate to undertake necessary investigations."

Presentations by two environmental lawyers, Mr. Steven Hazell and Mr. Brian Pannell, also stressed the need for intervenor funding. Again I quote from their presentation to the parliamentary committee: "Public participation in environmental decision-making is essential. A community has a right to participate in decisions affecting its interests. Public involvement is the best way to introduce into the process relevant information and values that would otherwise be excluded. Moreover, the public can provide independent scrutiny of the basis for a proponent's actions. This allows for a full exploration of all alternatives and makes the decision and process better and more credible and ensures greater accountability of decision-makers."

Pannell and Hazell go on to say that the effective participation by the public requires funding. They say: "The disproportion of resources between proponents and the public necessitates the establishment of an independent funding body to provide adequate amounts of funding to allow full and meaningful participation at all steps to committed members of the public." They say intervenor funding should be levied from the proponent and allocated and administered by an independent body.

I cannot stress enough that an adequately funded clear and agreeable participant funding or intervenor funding program must be put in place as soon as possible. With an ever-increasing emphasis being put on resource development, with an ever-increasing number of projects being proposed, and with an ever-increasing lack of public confidence in government programs dealing with environmental issues, this has never been more important. We must be very careful though in what we do.

I do not think we should let the government off too easily. There is a need to establish an adequately funded program that has some certainty to it. Although Bill C-339 requires virtually nothing from the federal government and puts too much onus on the proponents, we should be looking at a program that has a little more onus on the federal government.

Second, we have to be careful that the specific rules about funding the program not totally focus on the proponent. I am concerned, as the previous speaker was, that community and co-operative proponents of smaller more locally based projects may be unable to complete their project applications and otherwise community friendly proposals may never become a reality if in fact the bill goes through as is.

There will be times when the proposal put forward today by my friend from Oxford will actually threaten to increase proponent costs in cases like this one to such a degree that community proponents, especially in rural and northern Canada and perhaps on First Nations communities, will simply give up. I would hate to see that happen.

However I stress to the House that I will support the bill before us today. The member for Oxford has done us a great service in bringing the issue forward and bringing it to the attention of the government. We need a clearer and more defined intervenor funding process that perhaps has more independence to it. I look forward to the opportunity to address the issue more fully in committee.

I commend the member for Oxford for his initiative in this regard. If he is successful in achieving full parliamentary review of the legislation, I urge him to look more carefully at the process and perhaps conclude that the next step would be an amendment to establish an independent funding agency rather than leave the decisions to the boards and agencies that actually have to hear the applications.

Intervenor Funding ActPrivate Members' Business

7 p.m.

Liberal

Rose-Marie Ur Liberal Lambton—Middlesex, ON

Mr. Speaker, I welcome the opportunity to speak on private member's Bill C-339, the intervenor funding act, sponsored by my hon. colleague, the member for Oxford.

The purpose of the bill is to require any person proposing a project that would affect the public interest or the environment, and that is required by law to be reviewed by a public process before being approved by government or an agency of the government, to provide funding to assist organizations that represent a relevant public interest and that wish to intervene in the review process to represent that interest.

Intervenor funding is certainly not a new concept in our country. The province of Ontario currently has the intervenor funding project act and serves as a model for Bill C-339. The Ontario act was in turn modelled upon the funding provided for intervenors before the Mackenzie Valley pipeline inquiry known as the Berger commission in the mid-1970s.

The commission charged with the duty of investigating the appropriateness of a pipeline through the Mackenzie Valley in the Northwest Territories determined that the many diverse interests in the region should be represented in the hearings. In order to level the playing field to compete with the finances available to the proponents of the pipeline, it was deemed necessary to provide money for citizens' groups so that they could properly research their intervention.

While funding for the Berger commission was provided by the federal government, Bill C-339 does not call upon the Canadian

taxpayer to provide funding for intervenors. Instead the proponent of the project would have to provide the funding.

This is an interesting and unique proposal. It is based upon the contention that if the proponent is required to bear the cost of intervention, it would motivate the sponsor of the project to work with the potential intervenors in finding solutions before submitting the proposal before the relevant board or agency. The Ontario experience has already shown the effectiveness of the funding.

After witnessing the recent proceedings of the National Energy Board hearing that involved a bid to convert an unused oil pipeline running from Sarnia through my riding of Lambton-Middlesex to Milton, Ontario, I am more convinced than ever that a system of intervenor funding should also be available when federal boards or agencies are involved.

Since this converted pipeline would have run through prime agricultural land in southwestern Ontario the landowners of the region were understandably concerned with the proposal. After several months of hearings the National Energy Board sided with the landowners, clearly taking the interest of the public safety to heart. While happy with the decision, the landowners also spent over $300,000 of their own money participating in the hearings process which had come under the jurisdiction of the National Energy Board.

Had the companies involved in the proposal been registered as Ontario businesses, the hearings would have fallen under the provincial jurisdiction of the Ontario Energy Board and the legal costs associated with participating in the hearings would have been covered by the applicant company. Unfortunately for the intervening land owners the applicant company was from Alberta. Therefore the intervenors did not qualify under the Ontario act.

I certainly agree with the landowners' spokesman who correctly stated that the state of affairs was prohibitive for landowners or anyone else to defend their rights and interests in an application that falls under federal jurisdiction.

On a number of occasions over the past year my southwestern Ontario colleagues and I have been in touch with the particular landowners association. Collectively we have searched for solutions and we have all come to the same conclusion, that there must be changes to the National Energy Board Act whereby landowners or other parties intervening in NEB hearings and acting in the public interest should be granted intervenor funding prior to NEB hearings.

We have also concluded that the granting by the proponents of intervenor funding at the federal level would yield at least three favourable results. Intervenor funding would, first, allow for equal treatment of all interested parties; second, ensure greater public safety by opening up the process to the public; and, third, save public money in the long run.

The more than $300,000 spent by the landowners' association would be minimal compared to the current practice of maintaining a much larger government agency to scrutinize pipeline proposals.

While the National Energy Board Act presently allows for limited intervenor funding for detailed route hearings, certain technicalities in the act preclude intervenors from receiving funding for natural gas pipeline matters. Unfortunately for the landowners in southwestern Ontario, the Alberta company had proposed a conversion of the unused oil pipeline to natural gas. Therefore the landowners were out of luck under the terms of the NEB act.

In communications with the Minister of Natural Resources I have been informed that the department is currently engaged in an exercise with the NEB to review a variety of NEB functions and to address a number of deficiencies in the NEB act. I have been assured by the minister that the issue of intervenor funding has been included in the exercise. At the same time I have been informed by the Minister of Natural Resources that the government's fiscal situation strongly suggests that any intervenor funding would likely be on a proponent pay system.

This is precisely where Bill C-330 could fill a void in federal policy. It would dovetail nicely with the current review of the National Energy Board.

The bill is designed to assist those with bona fide concerns. It is certainly not meant to provide funding for special interest groups. The bottom line is that it would improve the way in which the federal government and its agencies and boards make decisions that affect all of us. Perhaps best of all, by calling for the proponent of a particular project to provide funding for the intervenor it would take the onus off the government to empty its pockets every time there is a hearing. Instead the government board or agency would devote 100 per cent of its efforts into judging the soundness of the proposal at hand.

Bill C-339 calls for the relevant authority to appoint a funding panel to determine who will benefit from the project. It would hear applications for funding from intervenors and the panel would determine who should be funded. Before receiving funding the intervenor would have to satisfy a number of important criteria.

The intervenor would have to represent a clearly ascertainable interest that is relevant to the issue before the review authority and that should be represented at the hearing. It would have to be established that the intervenor does not have sufficient financial resources to make the representation without funding. There would have to be reasonable efforts to obtain funding from other sources. The intervenor would have an established record of concern for and commitment to the interest in question. Reasonable efforts would have to be made to co-operate with other intervenors that represent similar interests. It would be incumbent upon the intervenor to demonstrate the existence of a proposal that specifies the use to which funding would be put and to submit to an examination of all records by the panel to verify the intervenor's accounting.

These are more than ample safeguards to ensure that no application for intervenor status would be made on frivolous grounds.

I am deeply impressed with the bill. Not only would it allow for a responsible means by which intervenors could put forward their perspective in a way that would allow the board or agency to make a decision with the best information available, but it would do so without making onerous financial claims on the government.

I can certainly understand why the Standing Committee on Procedure and House Affairs decided to make this private member's bill a votable item. It is because it fills a void in federal government policy and offers a unique means to address a pressing public interest issue without extending a hand for more government dollars.

I urge all members of this House to give this bill the support it deserves.

Intervenor Funding ActPrivate Members' Business

7:05 p.m.

Liberal

Larry McCormick Liberal Hastings—Frontenac—Lennox And Addington, ON

Madam Speaker, it is my privilege to rise and speak on Bill C-339, as introduced by my colleague representing the riding of Oxford.

I wish to take this opportunity to congratulate and thank my colleague from the great riding of Oxford for the impressive amount of work and research he has put into this bill.

The primary objective of this legislation is to give all of those people who speak in the public interest the opportunity to be heard before federal boards and agencies. With this bill, federal boards and agencies will make better decisions with a higher level of public input, consultation and participation.

Bill C-339 is designed to assist those with bona fide concerns. It is not meant to provide funding for special interest groups. It is in the interest of each of us for the public interest to be heard. This bill will ensure that the public interest is heard.

Intervenor Funding ActPrivate Members' Business

7:05 p.m.

The Acting Speaker (Mrs. Maheu)

Order, please. The hon. member will be able to resume his remarks the next time the matter is debated.

It being 7.13 p.m., the time provided for consideration of private members' business has now expired. Pursuant to Standing Order 93, the order is dropped to the bottom of the order of precedence on the Order Paper.

The House stands adjourned until tomorrow at 10 a.m. pursuant to Standing Order 24(1).

(The House adjourned at 7.13 p.m.)