Mr. Speaker, I thank the House. I am pleased to have the opportunity to speak on this bill today.
Bill C-56 proposes amendments to three sections of the Canadian Environmental Assessment Act. The basic principle behind environmental assessment is addressing concerns in the early stages of development in order that action can be taken before the project is too far along. This is a relatively new process at the federal level.
A number of years ago EARP, the environmental assessment and review process, was introduced with guidelines. Not until CEAA was passed by Parliament in June 1992 did we have any meaningful legislation at the federal level. The Canadian Environmental Assessment Act replaces the EARP guidelines and provides for a new process of federal environmental assessment.
It has taken two years for this bill to be proclaimed into law. Although the bill was tabled two years ago the regulations were only published two months ago.
The minister has stated that the amended act will be proclaimed into law by January 1995. Once CEAA is proclaimed federal environmental assessment will be legislatively entrenched.
As this process is still quite new at the federal level, there are still many bumps to be ironed out. The amendments to the act contained in Bill C-56 attempt to address some of the problems already encountered with federal environmental assessment.
Bill C-56 proposes to amend the act in three ways. First it requires participant funding be established by the Minister of the Environment. Second, it encourages, where possible, that one federal environmental assessment be carried out per project. Third, it requires cabinet approval instead of ministerial approval of responses to panel recommendations.
At first sight these three recommendations appear quite positive. However a closer look at these amendments reveals that they represent few initiatives on the part of the government. These three amendments do little to change the status quo. Further, they are inadequate in living up to what they attempt to accomplish.
During the course of the subcommittee hearings we heard from several environmental experts regarding this bill. Many of these presentations expressed a common concern that Bill C-56 does not live up to its expectations. Amendments to the act to guarantee intervener funding, to broaden the scope of decision making authority and to reduce timely and costly duplication, to guarantee one assessment per project have been requested since consultations on reforming the act began seven years ago. These are worthy goals that need to be addressed but the goals are simply not realized in this bill.
I would like to address each of these three amendments in turn. The first clause amends section 4 of the act and adds a clause which emphasizes the need for responsible authorities to carry out their actions in a co-ordinated and efficient manner with a view to eliminating unnecessary duplication in the environmental assessment process. This clause has been referred to as the one project, one assessment clause.
As I mentioned during second reading of this bill, the harmonization process simply does not go far enough. Although the possibility for more than one federal assessment is reduced, the fact remains there is still duplication of the federal and provincial assessments as well as the possibility for federal duplication between various departments.
Theoretically the amendment for one assessment per project minimizes the potential for duplication of federal activities. Where more than one department is involved, federal authorities are to attempt to co-ordinate environmental assessment activity. However I want to make it clear that this legislation does not mandate one assessment per project. This amendment merely makes it mandatory to take into account existing assessments.
The bill changes the assessment process so that departmental assessments should occur simultaneously rather than sequentially. In other words, there could be simultaneous co-ordinated effort but there will still not necessarily be one assessment.
If decision making triggers occur at different points in time, a single project may still endure more than one assessment. Therefore multiple federal assessments are still possible under the act as long as there are different federal triggers for any project.
It is well understood that the single most critical issue to industry is the length and the uncertainty of the assessment process.
Although I am pleased that this government is taking into account the need to co-ordinate the efforts, this bill lacks teeth. It lacks the teeth it needs to give it some meaning. We simply must stop duplicating our efforts and this bill does not decisively address that concern.
As it stands the bill still fails to live up to Canadian expectations for one assessment per project. The process needs to be co-ordinated to ensure there is no duplication between federal departments. This legislation would be improved if a lead responsible authority could assist in ensuring that one federal assessment is carried out. This would be a particularly good role for the agency. Such a responsibility would give the agency a greater role in the assessment process and would assist government in streamlining its functions and ensuring that one assessment per project becomes a reality, not just a consideration.
The agency could be given the responsibility to notify departments of their potential involvement in an upcoming environmental assessment, thus streamlining and co-ordinating the process. The agency could be the most effective body to ensure that the principle of one assessment per project truly becomes a reality.
We must not only deal with duplication between federal departments but also address the duplication between federal and provincial governments. At present we currently have two federal-provincial harmonization agreements in place, one with Alberta and one with Manitoba. Bilateral agreements as the minister mentioned between federal and provincial governments are being negotiated at other levels and they are intended to reduce duplication by allowing for a co-ordinated process.
We should be working toward a common set of environmental standards and goals for both federal and provincial levels of government. Federal-provincial harmonization agreements need to be worked out and signed by the provinces and the federal government to ensure that we truly have one joint assessment per project.
Let me remind the House of the horrendous cost for duplication. Forty-five per cent of federal programs representing expenditures of $40 billion overlap and compete to varying degrees with provincial programs. That comes straight out of the Treasury Board. Canadians simply cannot afford this costly duplication of services.
The second amendment to the act seeks to ensure that responses to public panel recommendations are decided by cabinet. This means that the decision to act or to reject on a panel recommendation is not made solely by the Minister of the Environment but by the cabinet. This amendment broadens the decision making authority to include more members in the decision. However, it simply does not go far enough.
As I mentioned earlier, the spirit of this clause is to ensure that responses to public panel recommendations are decided by cabinet, but cabinet remains undefined. Cabinet could be a few ministers or it could refer to the full cabinet. The term cabinet is very loose. Cabinet has many versions and it can be many things. There are inner cabinets, outer cabinets and committees of cabinet. The term cabinet is simply too loose. As it stands, important environmental decisions can still be controlled by two or three ministers with their own agendas.
Current government amendments represent only a small step forward and they change very little. If we are to ensure that the assessment process is fair and democratic this clause must be amended to replace cabinet or governor in council by order in council.
Not all responses by governor in council are orders in council. Order in council responses are more formalized and must be published in the Canada Gazette and tabled in Parliament. This amendment, which would have improved the procedure, I proposed during report stage and was unfortunately rejected by the government.
Another problem with this bill is that there are no guidelines on how or when cabinet review will be undertaken. There are no guidelines which spell out which projects will be assessed or which assessments, once completed, will be forwarded to cabinet for review. I would hope guidelines for environmental assessment procedures would make it very clear to all participants exactly what the rules are.
As it stands, there is nothing to prevent cabinet from reading the report and ignoring important recommendations. There is nothing to prevent a few members of the cabinet from rejecting panel recommendations purely on a political basis.
In addition, it is not clear whether the cabinet would be able to change either a panel's recommendations or a mediator's report. There is no clear definition of what the cabinet can or cannot do. This must be clarified in the regulations that guide the assessment process, otherwise we are no farther ahead than we were before.
Bill C-56 is yet another example of this government's failure to live up to its red book promises. Bill C-56 effectively takes decision making authority from the minister and gives it to an undefined cabinet. What it does not do is give authority to the agency or panels as promised in the red book.
The Liberal red book promises to amend the act to shift decision making powers to an independent Canadian environmental assessment agency subject to an appeal to the cabinet. The agency's relationship to government would be roughly similar to that between the CRTC and the cabinet.
This agency simply has none of the powers of the CRTC as promised in the red book. For example, this bill does not entrust decision making powers to an independent Canadian environmental assessment agency subject to an appeal to cabinet.
The head of the agency is not independent from the minister. The minister appoints this person to the position, which again makes it more of a patronage appointment than an independent agency. In no way is this agency at arm's length from the government.
Section 7 of the CRTC legislation gives the commission licensing powers which are essentially final decision making powers. There is clearly no similar commission being proposed in this act. The panel or the CEAA is not given decision making powers or powers as responsible authority.
In addition, the CRTC under the Broadcasting Act has all the powers of the superior court. This is not the case with the assessment agency.
The CRTC is a quasi-judicial commission. This is also not the case with any of the decision making powers under the Canadian Environmental Assessment Act.
The principles of fairness of decision making which are required for the CRTC are not required for the process of decision making under the Canadian Environmental Assessment Act.
During the hearings on this bill several witnesses presented concerns that Bill C-56 does not give the agency or the panels the power to make decisions with an appeal to cabinet. This bill as presently drafted fails to address these concerns.
Clearly responsibility for environmental assessments are not in this act vested in an independent agency as promised in the red book and the relationship of the CRTC to government bears little relation to that between the agency and government.
Yet when a motion was put forward during report stage amendments to recognize the agency as an independent body, the Liberals voted it down and in doing so voted against their own red book promise. We hear so much about the red book, yet here we have the government not only ignoring a promise, but actually voting it down in the House.
There appears to be a great discrepancy between government promises in the red book and government actions in the form of legislation.
In Ontario the assessment process has been amended to make all decision making by an environmental board binding unless appealed to cabinet. In practice most decisions are final. This process works, plus it saves time and money.
I would now like to move on to the third and final amendment of this bill dealing with participant funding. Section 58(1)(i) of the act currently enables the minister to establish a funding program to facilitate public participation in mediation and assessment by review panels. Bill C-56 proposes to repeal this measure and replace it with a new section that requires the minister to establish a participant funding program rather than leaving it up to the minister's discretion as is currently the case.
Of all the stakeholders in the environmental decision making process, ordinary Canadians are those most directly affected by the environmental impact of projects. Participant funding is an important tool as it enables stakeholders to participate in the decision making process.
As I mentioned in the House on second reading, regulations are needed to guide the amount and distribution of participant funding. I recommend that the government broaden the scope when developing these regulations. The participant funding program will not be up and running until criteria are set up. Regulations could take as long as a year before they are brought into force which means that it will be some time before the participant funding program becomes a reality.
Participant funding regulations should ensure that those people directly affected by a project have an opportunity to participate. However, there must be guidelines to ensure it does not become a growth industry, funding courtesy of the taxpayer.
We do not want to start an intervener industry. Funding would be at a level to allow effective participation by those who can demonstrate they will be affected by a project. Guidelines for participation should consider whether the applicant represents a clearly ascertainable interest that should be heard at the hearing and whether separate representation of the interest would assist the panel and contribute to the hearing.
Guidelines should also take into consideration whether the applicant has attempted to bring other related interests under an umbrella group that would facilitate the retention of common experts and council and whether direction is included that only those costs that are directly related to the preparation and presentation of a submission are recoverable.
Regard should be given to whether there is a requirement for submissions and presentations to be conducted economically and last, whether a special power is required to deny costs in cases in which a submission or presentation is unnecessary, irrelevant, improper or the cost claim is excessive.
Alberta currently has established criteria in place for participant funding and could serve as a guide when regulations are drafted. According to Environment Canada sources the amount of participant funding is limited to $1.2 million per year and comes from the green plan. Although funds are currently limited by the budget, the number of dollars is open ended as the government can decide to increase or decrease these funds in future years.
One proposed amendment which I brought up in committee and which I feel still merits consideration for this act is that of proponents paying a portion of the intervener funding. How much the proponent would pay could be at the discretion of the minister or included in the regulations.
Some of the witnesses on C-56 raised concerns that intervener funding tends to be quite small, sometimes to the point of undermining the usefulness of having any critique whatsoever. As long as the funding comes only from taxpayers, funding will be less than if the proponent paid for a portion of the fund.
Let me make it clear, however, that I am not suggesting proponents should be forced to pay for every interested critic of a project. Guidelines would need to be quite specific in this area to protect from abuse. Several of the witnesses also suggested the agency be granted the authority to award participant funding under ministerial guidelines rather than vesting the authority solely with the minister.
This suggestion should be looked into either as an amendment to the act or as a regulation guiding the participant funding regulations. This amendment to the act would allow the agency to be empowered with some decision making powers, decision making powers that the agency is sorely lacking at present.
Participant funding regulations need to identify what the money can be used for and accountability must be assured. This amendment as it stands does not ensure that all Canadians and interest groups can participate equally in a full and meaningful way in all phases of various environmental assessment processes. This is beyond the scope of the bill. However, some choices must be made in the regulations which will ensure there is a selection process to ensure those parties that play a significant role have adequate funding.
In addition, attention must be paid to the fact that funds are not endless, nor are the timeframes for the assessment process without some constraints. It is not fair to subject one project to an endless tirade of inquiries. There must be a balance in the process to ensure a fair and reasonable assessment takes place.
In concluding I wish to take the opportunity to highlight another problem with this bill. During second reading I raised concerns regarding the amount of ministerial discretion allowed in the act. I noted the minister may or may not call for a review, and the fact that the minister appoints the mediator or panel members. These concerns were also raised by a number of witnesses.
Panel members are appointed by the minister. Therefore there is no permanent body that one could refer to as an agency that decides who will staff a particular hearing. The panel approach is hardly an independent agency, as members can be appointed at the whim of the minister to suit particular cases as the minister sees fit. This has direct influence on the outcome of any panel decision.
As well, during second reading I addressed concerns about the exclusion and inclusion list that makes up the regulations guiding what is and is not to be included in the assessment process. In addition, the fact that there are no regulations regarding the transport of hazardous waste still concerns me.
It is with regret I note the government has shown little initiative with the bill. The act as it stands remains virtually unchanged. We desperately need to move forward on environmental issues. There is little point in spinning our wheels for the sake of appearances. The bill requires reworking before it will begin to live up to the spirit that was intended. I have suggested some improvements for the bill, including my motion to change the final decision making authority from cabinet to order in council.
In conclusion, the government had the opportunity to move legislation that would have had a substantial impact on how environmental assessment is carried out in Canada. Unfortunately it failed in the attempt.
