Proceedings of the Standing Senate Committee on
Fisheries and Oceans
Issue 4 - Evidence - Meeting of April 20, 2004
OTTAWA, Tuesday, April 20, 2004
The Standing Senate Committee on Fisheries and Oceans met this day at 7:02 p.m. to study on matters relating to straddling stocks and fish habitat.
Senator Gerald J. Comeau (Chairman) in the Chair.
[English]
The Chairman: I would like to welcome our witness this evening, Mr. Robert Connelly, Acting President of the Canadian Environmental Assessment Agency in Ottawa. Mr. Connelly is a graduate in civil engineering from the University of Waterloo. Prior to joining the agency he worked for the United Nations Economic Commission for Europe; Environment Canada; National Health and Welfare; and Proctor and Redfern Limited, consulting engineers.
I should note that Mr. Connelly was also responsible for the agency's program dealing with the five-year review of the Canadian Environmental Assessment Act and subsequent amendments, so he will be familiar with the current status of the agency.
Mr. Robert Connelly, Acting President, Canadian Environmental Assessment Agency: Thank you, Mr. Chairman, for the introduction, and good evening, honourable senators. I am delighted to have the opportunity to speak to you this evening about our work.
Allow me to introduce Mr. John McCauley, Director of Legislation and Regulatory Affairs at the Canadian Environmental Assessment Agency. He may assist me with your questions later.
My presentation consists of some 12 slides, beginning on slide two with the presentation summary. If this approach is suitable, Mr. Chairman, I would like to provide a general overview of the act and relate its application to projects that could affect fish habitat or oceans. I understand that is the area of particular interest to the committee. I have noted in the interim report that you have a good summary of the Canadian Environmental Assessment Act. I would like to elaborate on the content of the report and give you more information on the process.
Environmental assessment is a process that recognizes the most effective route to environmental protection. Ultimately, sustainable development of that is through prevention.
[Translation]
Slide three illustrates our vision of environmental assessment. It is a process set up at the beginning of a project to determine and evaluate possible environmental effects. The information is then used to deal with and mitigate the effects through changes in the project design. We see this process as an instrument which helps to integrate environmental concerns within the government decision-making process in order to promote sustainable development. Public participation is an essential element to our success.
The environmental assessment reduces the proponent's risks and liabilities through early identification of potential environmental problems.
[English]
Slides four, five and six describe the basics of the Canadian Environmental Assessment Act. The act ensures that environmental factors are considered as part of federal decisions about proposed projects. The requirement for an environmental assessment is triggered when a federal authority has a decision to make.
For example, the proposed Shell Oil's Jack Pine oil sands project in Northern Alberta required an environmental assessment under the EAA because the Department of Fisheries and Oceans had to decide whether to issue an authorization under section 35(2) of the Fisheries Act. That is an example of how that act triggers the Canadian Environmental Assessment Act. The act is based on the principle of self-assessment. In other words, the federal authority that has the decision to make is also responsible for the conduct of the assessment.
The impact of the act is significant in terms of both the environment and the economy. Each year it touches upon roughly 6,500 to 7,000 projects worth billions of dollars. Most significant development proposals, such as the discussions on the proposed pipeline of the Mackenzie Gas Project, are subject to the act because of the potential for affecting fish habitat.
The provinces have their own environmental assessment processes. To prevent duplication, bilateral harmonization agreements and project-specific arrangements are also used so that a project receives a single assessment that meets the requirements of all jurisdictions. Increasingly, land claim agreements have environmental assessment processes built into them as well. It will be important that we work with those to harmonize our processes where appropriate.
Slide five describes the kinds of assessments under the act. These generally correspond to the project size, complexity and potential for adverse affects. Smaller and relatively routine projects such as the reconstruction of the Laurier Avenue Bridge over the Rideau Canal would go through what we call a ``simple screening.'' We have developed a concept of class screenings to streamline the process for smaller projects that are repetitive in nature. We developed a class screening for routine fish habitat restoration and enhancement projects in the Province of British Columbia and Yukon. Projects that have greater potential for adverse affects may require detailed assessments through a comprehensive study, which is a more rigorous assessment. At that level of the process, there is a mandatory public participation.
The Department of Fisheries and Oceans have conducted numerous comprehensive studies under the history of the Environmental Assessment Act. One recent study was on the partial diversion of the Portneuf River in Quebec. Assessments by a mediator or a review panel appointed by the Minister of the Environment occur less frequently, but when warranted by public concerns or when environmental effects are uncertain or more likely to be significant. A panel that we completed a few years ago that may be of interest was the Voisey's Bay mining project in Labrador, involving International Nickel as a proponent.
Slide six outlines the role of the agency for which Mr. McCauley and I work — the role that is in fact created by the legislation, the Canadian Environmental Assessment Act. The agency administers the act, but it does not conduct the assessments. As I noted earlier, federal departments or agencies that have a decision about a specific project are the responsible authorities for the actual environmental assessments. The agency plays an important role in ensuring the process works. We have six offices across Canada devoted to working with provinces, proponents and the public at large. This includes the agency's role as the federal environmental assessment coordinator for assessments that involve other jurisdictions and in all comprehensive studies. This is an important new role that has come about as a result of recent amendments to our act.
We also advise the Minister of the Environment about the adequacy of comprehensive studies, and provide administrative support to mediators and review panels. Review panels consist of members appointed by the minister. As I mentioned, they are all from outside government and are independent of government. They conduct a hearing process and make recommendations to the minister and the government. The agency also leads a quality assurance program, has a legislative duty to promote, monitor and facilitate compliance, and a role in dispute resolution.
[Translation]
At slide seven you will see an outline of a legislative review undertaken by the Minister of the Environment in the year 2000. The majority of our partners and stakeholders have welcomed the broad consultations held throughout Canada under this review because of their openness and consultative nature.
In March 2001, the Minister of the Environment presented the review findings before Parliament and proposed amendments to the legislation which, until now, reflect the consensus reached by different interest groups. These amendments are practical solutions to specific problems and focus on three main goals: first, make the process more predictable, certain and timely; second, produce high quality environmental assessments; and third, foster more active public participation.
[English]
The government also committed $51 million over five years to implement the revised process. Bill C-9, as it was called, was reviewed by the Standing Senate Committee on Energy, Environment and Natural Resources and given Royal Assent in June of last year, proclaimed at the end of the October of last year.
Of that $51.2 million, DFO's share was about $7.5 million over the five years. The agency's share was considerably larger. It was the largest of the pot, so to speak, and it was about $17 million over the five years.
Turning to slide eight, you will see that DFO assesses more projects than any other federal authorities. They are without any question one of the most important federal authorities under the act. By far, the authorizations are under subsection 35(2) of the Fisheries Act dealing with harmful alteration, disruption or destruction of fish habitats.
The Navigable Waters Protection Act also triggered some of those assessments. As you may be aware, this responsibility was recently transferred to Transport Canada. I think that took effect April 1, so this will reduce the number of DFO assessments perhaps by as much as 25 per cent. Historically, for a number of years, the Department of Fisheries and Oceans have also conducted them under the authority of the Navigable Waters Protection Act.
Environmental assessments are also required before Environment Canada issues an ocean disposal permit under the Canadian Environmental Protection Act, so that is another act that has some relevance to oceans and protection of oceans. Before a permit for ocean disposal can be granted, our act would be triggered and an environmental assessment is required to be done before that permit would be issued.
All assessments must consider environmental effects of the proposed project. For smaller projects, such as the installation of a culvert, the effects examined may be limited to fish habitat, whereas in larger, more complex projects we may need a broader examination of effects on wildlife, air quality or changes in the environment that might affect Aboriginal people's' traditional use of land.
The act adds transparency by requiring information about those projects to be posted on a new Internet-based registry so that Canadians can see the kinds of projects that may be under review that are in effect in their backyard. The public also has the right to convenient access to all documents associated with an assessment.
Mr. Chairman, slide nine provides some examples of the type of projects that have been assessed, where effects on fish habitat or our oceans have been an important consideration. Of the major projects assessed by comprehensive study or review panel — it is about 93 of those at this point — DFO has been a responsible authority for about 70 per cent of the time. This indicates again the important role they play on larger projects as well.
Slide 10 lists some of the challenges that we faced in implementing the act. One of them involves poor coordination between federal authorities. This was a concern raised by provinces and industry, especially during our five-year review of the act. In retrospect this is not surprising, given the involvement of multiple departments with varied mandates in the environmental assessment process.
One of the changes in the act that I mentioned earlier, or in Bill C-9, was the establishment of a federal environmental assessment coordinator to ensure that the federal ``family,'' so to speak, gets its house in better order so there is greater coordination among departments.
Decisions on the scope of projects and the scope of the assessment have also been controversial and, in some instances, have been the subject of litigation against DFO and some other departments as well.
As I noted earlier, for certain projects, DFO looks primarily at effects on fish and fish habitat as these are most relevant to their regulatory decisions. We have seen that environmental groups have argued that, in some cases, that scope should be broader.
The Federal Court has ruled that the act provides responsible authorities with discretion in determining the scope of the project and its assessment. We have been working with DFO on this to come up with an appropriate exercise of this discretion to ensure that matters of federal interest and public concern are appropriately considered.
Late triggering is another challenge that we have seen as we went through the review of our act. The nature of the regulatory trigger under the Fisheries Act means that DFO is not always certain early in the planning phase of a project if an authorization is actually going to be needed or need to be granted. They try to avoid the destruction of fish habitat to the extent they can; only if they cannot avoid destruction of fish habitat will they actually trigger the act and conduct an assessment. Sometimes that takes a bit of time to determine whether habitat will be destroyed or not.
I might point out that this runs a bit counter to the principle of using environmental assessments as a planning tool, because it is designed as such to look at new projects early in planning before they are built. It is a preventive tool. That has been a challenge to us. To address that challenge, DFO has adopted what is called an ``automatically in'' approach to projects that may have an effect on fish habitat. They can make a quick determination that a project might affect water and hence a good chance of affecting fish habitat. DFO will participate in these assessments until it determines whether fish habitat will or will not be affected. If they determine it will not be affected, then they would stop their assessment at that point.
Slide 11 lays out some of the current initiatives. One of the findings from the five-year review that was led by Minister Anderson was that too many small projects with inconsequential effects were being assessed. For example, environmental assessments for the construction of small buildings or the use of fish counting devices for research purposes take away resources that could be more meaningfully applied to larger projects that have a greater potential for adverse effects. As a result of that, Minister Anderson will soon be proposing additions to what we call the ``exclusion list regulation.'' These are regulations that exclude projects from the requirement for an assessment because their environmental effects are considered to be insignificant.
We also use the tool of class screenings that I mentioned earlier to make the process more efficient. The agency is also working with DFO to develop more class screenings such as water course crossings on forestry roads in British Columbia, the Prairies and Ontario, as well as models for water and waste water infrastructure projects, to make the process more efficient and simpler to use while not, of course, putting at risk the environment in the process.
The renewed act also requires follow-up programs after a comprehensive study, mediation or assessment by a review panel. This is a new feature brought about by Bill C-9. Historically, once an assessment was completed, departments went on to the next one without being able to go back and review some of the findings and use them to assist in improving predictions and evaluating mitigation measures on similar projects in the future. Under Bill C-9 the larger projects will now require an automatic follow-up program. We are also encouraging greater information-sharing by the use of the electronic registry for follow-up results so that that information will also be more accessible to practitioners and to the public.
I will turn briefly to the issue of strategic environmental assessment. The act deals with proposed projects but not policies, plans or programs. Projects are considered physical works or activities that are defined through regulation, but the term ``strategic environmental assessment'' is used for policies, plans and programs, and the environmental effects of these initiatives are assessed through a cabinet directive rather than through the Canadian Environmental Assessment Act.
The Minister of the Environment has a multi-stakeholder, regulatory advisory committee examining ways to use regional strategic environmental assessment in the context of the offshore petroleum sector. Some of these approaches have been used in, for example, Norway, the U.K. and the U.S. as a means at arriving at strategic decisions in a timely way. We feel a strategic environmental assessment would provide information on what levels of offshore petroleum activity would be appropriate in an area and where such activities might be prohibited or restricted, and the result of that exercise could be used down the road in the assessment of specific projects and make them more efficient and simpler as a result.
Finally, slide 12 illustrates some of the results of environmental assessments — namely providing Canadians with an opportunity to be involved in decisions, ensuring decision makers have the information they need to prevent environmental harm, and helping deliver on the government's environmental priorities, which include protection of our fisheries and our oceans.
Thank you for the opportunity to make this presentation. I would be pleased to answer any questions that members of the committee might have.
The Chairman: Thank you very much, Mr. Connelly. I am sure there will be a number of questions. We will start with Senator Adams, from Nunavut, Rankin Inlet.
Senator Adams: I am concerned about Nunavut and its 26 communities. Baker Lake is the only one offshore. The other 25 communities are on the coast. Since Bill C-9 was passed, we have had quite a few difficulties between the DFO and the Coast Guard and Transport Canada in the area of the environmental difficulties. We have to deal with about five or six different departments.
I would like to know how much power the Nunavut environmental department has. Is it the size of this room? How big is it, and how are they able to perform their job? I would like to find out from you about the authority. I think you heard about one in Coppermine, and the breakwater, which has been in the process of being installed over the course of the last couple of years. They have to come through the person in Ottawa before they can start anything.
How much authority do the departments have in Nunavut, for example, if a community wants a dock facility? Sometimes we hear that it is not their authority, but they have to go to Ottawa to get an answer. This happens before any project can get started.
Mr. Connelly: Senator Adams, you are right when you say that there is an authority in Nunavut established through the land claim agreement. Through that agreement, a board has been established. It is called the Nunavut Impact Review Board. They review environmental assessments of most projects of the sort that you have mentioned in Nunavut. They are an advisory body in that they report and make recommendations to the Minister of Indian and Northern Affairs, and that is where decisions are made ultimately. My understanding with the process to date is that the minister pays very close attention to the recommendations coming from that board.
The Canadian Environmental Assessment Act still has application in that same territory. In practice, the Minister of Indian and Northern Affairs would use the results coming from the Nunavut Impact Review Board generally to satisfy requirements under the Canadian Environmental Assessment Act.
In the future, there will be federal implementation legislation developed for the Nunavut Impact Review Board process, and down the road the linkage between our act and that future act will probably be made clearer. That is work in progress, and it will be legislation, a bill, that eventually you will undoubtedly see in your future work.
Senator Adams: If people want to build a dock facility in the community, whose authority is first? Does Environment Canada decide what will be built before anything is started in the community? You mentioned about $51 million for another five years of the program. What is the breakdown? I know that Minister Anderson was up there and mentioned it in Iqaluit before Christmas. Is that $51 million for all of Canada or only for Nunavut? I did not really understand. I just heard about it in the newspapers.
We did not receive even a dollar from the DFO for the structure in Nunavut, even to settle a land claim. I am wondering how they are allocating that money for the $51 million?
Mr. Connelly: The $51 million is what I would call the incremental money to implement the changes brought about by Bill C-9. There is, of course, considerably more money there already for environmental assessment among the different departments that are involved in implementing the act. The $51.4 million is additional money to deal with the changes brought about last year.
That money is for the whole of Canada. It is spread out among some 20 or so different departments, so it has been widely dispersed, I assume, throughout the country, to the different departments.
Senator Adams: You mentioned that the pipeline would require a lot of environmental assessment. In the future, if we are looking into Bathurst Inlet, who will put up the money for the environmental assessment? I was there last August, and they were talking about something over 160,000 kilometres — that is a big job for an environmental assessment. Who puts up the money and who does the organization? You have to come up with the money to do the environmental assessment. How does that kind of job work as far as an environmental assessment?
Mr. Connelly: The assessment itself involves a lot of scientific study. It involves a lot of discussion with an affected community. In the area that you are speaking about in Nunavut, in Bathurst Inlet, for example, traditional knowledge would be an important component of such a study.
That information is required to be gathered and put in a document often called an environmental impact study, and it is required to be done by the proponent of the project. If the proponent is a private-sector company, they will hire consultants. If the proponent is the Government of Canada or a provincial government or Nunavut itself, they will have to find the money in their budgets to do those kinds of studies.
Then the studies, in fact, are what are reviewed by those who have to take a decision. It might be DFO or, in your case, it might be the Nunavut Impact Review Board, but the studies are paid for by the person or agency body proposing the project.
Senator Phalen: Last June we had a panel here talking about sea-dump emissions. As a result of that, I did some research on the subject. I would like to read something to you and then ask you a question.
In an attempt to bring focus to the problem, the NATO scientific community sponsored a workshop on sea-dump chemical munitions, held in Bellagio, Italy in April 1996. This conference provided the opportunity to draft an action plan to prevent inertia of this potential ecological time bomb. A post-conference bulletin issued by the conference organizers stated:
Although the risk of sea-dump munitions does not meet the eye, the corrosion of the shells and the rounds which were dumped five decades ago is progressing fast now. It is feared that major quantities of chemical agents will leak into the sea by the year 2005. Beyond the immediate impact of a further depletion of the world's endangered fish stocks, poisonous agents will enter the food chain via plankton. Toxic effects with possible genetic consequences would not be confined to countries of the regions, but might become a world-wide problem.
That is just a bit of background. What has happened in Atlantic Canada is that it is very difficult to find where these munitions have been dumped. We have a record of 2,500 metric tons of deadly mustard blister agent being dumped 300 kilometres off Sable Island. That is in the Sydney Bight. We have a record of ships leaving Argentia, Newfoundland every two days for a period of five months dumping munitions as far away as the Sydney Bight. We know the munitions are out there, but no one knows exactly where they are.
The Government of Canada has allowed $10 million to research the archives to find out where these munitions are. Is your department aware of this? Has your department researched this or done anything about it? If not, what would trigger that? How would we be able to trigger your department or some department to act?
I have made a speech on this in the Senate. Since then, I have met with the Minister of Fisheries, and someone from DND was in on the meeting. It seems that DND, from my perspective at least, were in denial. They were suggesting that there is no problem with this. However, I have word from the scientific community that there is a problem — that the fish are thin and, in some areas, not growing at all. So there is a problem.
Would your group look at this area?
Mr. Connelly: Thank you, Senator Phalen. I am aware of the issue from having read about it — probably in newspapers and that kind of thing — but we have not had any involvement in that. Under our act, if there were a proposal to remove or clean up those old munitions, then an environmental assessment would have to be conducted. One would have to look carefully at what to do with the materials and whether, in fact, removal would create more harm than leaving them there. I do not have an answer to that, but that would be an example of how our act would apply to that sort of thing if there were an attempt to clean it up.
You would be well aware of the Sydney Tar Ponds, which would be a similar project. That area needs cleaning up and there has been a commitment to do that, as you are aware. That clean-up involves a number of potential options that would have to be examined through an environmental assessment. It is when someone would start to get involved in taking action to do something about that that our act would be triggered.
Senator Phalen: That does not really answer my question. Is there no way to trigger this? The governments of other countries have shut down fisheries in certain areas. Four areas of the Red Sea have been shut down. They are not allowed to fish in those areas because this material is leaching. It is going into the water and causing little shells that have a hard crust on the outside and are floating to the surface. If somebody inadvertently touches that, they will be burned by it. The fear is that it is beginning to happen in Canada. Their claim is that by 2005, it will happen in Canada because that is the period of time it takes for this material to rust out and leach into the water. Is there any way that your agency or another department can get out there and do some testing to find out what is happening?
Mr. Connelly: I have explained the role of the Canadian Environmental Assessment Agency in the event of any potential cleanup. Perhaps some monitoring is being done but I cannot honestly tell you by whom because I do not know. I do not know whether DFO, under their responsibility for oceans, is monitoring or testing, or whether national defence has taken that on. I do not have an answer for that.
The Chairman: I have a follow-up question to Senator Phalen's question. I heard you say that you could not become involved unless there were something to trigger that involvement, which led me to wonder about the draggers in that area that haul their drag nets across the ocean bottom for miles and miles. In effect, would it not trigger your involvement if the net were dragged along the bottom of the ocean? These fishers have to pay for a licence each year and pay their fees to the federal government. Would that not trigger some kind of environmental assessment, other than an outside force?
Mr. Connelly: Thank you, senator, that is a very good question. A trigger under the Environmental Assessment Act involves two things: First, there must be a decision by some federal entity, and the permit that you suggest could be such a trigger; second, there must be a project as defined under the EAA. The project would entail physical work, construction, for example, or some kind of activity not related to physical work listed in a regulation called an ``inclusion list regulation,'' which lists all things deemed activities. One example is the low-level military flying in Labrador that was reviewed a few years ago. Low-level flying is not physical work but is an activity on the inclusion list under the EAA.
The Chairman: It is similar to fishing, which is not under the regulations.
Mr. Connelly: That is correct, and that is my answer. Dragging or fishing is not listed in that regulation. While we have a decision required for the permitting, we do not have a project defined under our act. Hence, the act would not apply to the activity.
The Chairman: That is interesting.
[Translation]
Senator Robichaud: I am from southeastern New Brunswick. In several communities in my region there are wharfs for fishers. This at times may mean repairs, additions or dredging. If I am not mistaken, these projects are subject to an environmental impact assessment. The sites are usually along the coastline. You have to dig up the seabed and dispose of this material.
Mr. Connelly: The examples you raised are not subject to our act nor our process.
Senator Robichaud: What process are they subject to? In your presentation you say ``The environmental assessment required before DFO;'' I do not understand what that means.
Mr. Connelly: I will try to explain this in more detail. The examples you have raised are not projects considered under our act. It is perhaps the Department of Fisheries and Oceans' responsibility to make a decision on that type of project, but it is not defined under our act. For that reason, the legislation does not apply in this case, and for these types of activities there is no need for an environmental assessment.
Senator Robichaud: With respect to aquaculture, there are many operations which may be considered small rather than large. Take for instance a person who hires a few individuals to farm mussels or oysters in cages. Does this type of operation require an environmental assessment?
Mr. Connelly: Yes.
Senator Robichaud: Do you find that people are cooperating willingly? Because these types of assessments could mean considerable expenses, especially for a smaller operation.
Mr. Connelly: You are right, Senator Robichaud. Aquaculture and related projects are subject to our legislation, as you have stated.
When it comes to cooperation, it all depends on the circumstances. Some people are more willing to participate in the process, others are more reluctant. So depending on the company or the group people will have a different approach. Indeed, several aquaculture industry projects are subject to the process. For instance, you have to carry out an environmental assessment before you operate a new site.
Senator Robichaud: The proponent of the project is therefore responsible for bearing the costs of this type of assessment?
Mr. Connelly: Indeed. However, for some of these small projects, there is the possibility of financial support from bodies such as the Atlantic Canada Opportunities Agency.
Senator Robichaud: You talked about large-scale projects. What distinction do you make between the large projects and the small ones?
Mr. Connelly: There are the Comprehensive Study List Regulations. These regulations list projects that could be considered as having a significant effect on the environment. For instance, on the list there is a mine which produces 2,000 tonnes on a daily basis. Large-scale projects are defined under these regulations.
[English]
Senator Cochrane: At page 6 of your slides it says that the Canadian Environmental Assessment Agency administers the Canadian Environmental Assessment Act. That means that you train the people how to conduct this assessment, you guide them through it, you do your research and development and you put forth regulations. Somebody else conducts the environmental assessment. You train them, am I right?
Mr. Connelly: The conduct of the actual scientific study — the environmental assessment document — is usually done by professional consultants on behalf of the proponent for the project. Departments that make the decision review that study. I will use DFO as an example again, because of your interest in habitat and oceans.
DFO would review the assessment conducted by the proponent before it made a decision to grant authorization to destroy fish habitat, for example. What is important is that it is not just DFO. There are many other expert departments that provide good advice in a review. Good examples would be Health Canada, Natural Resources or Environment Canada who also contribute technical and professional advice to that. The public has an important role as well to give input to some of these reviews.
We are more involved in the bigger projects. When there is something at the comprehensive study level, we are the agency that advises the Ministry of the Environment on the outcome of that review. If a project is big and important enough to warrant a review by an environmental assessment panel, the members are chosen from outside government. We provide all of the administrative, managerial and technical support to that panel to conduct its hearing process. There are many more things we do than are listed on the slide.
Senator Cochrane: How do you know about a project? When do you become involved?
Mr. Connelly: Every project must now be placed on our electronic registry. There is a notification immediately when an environmental assessment is starting. Many of the small projects we are not involved in at all. They are completely managed by the department that has a decision to take. They will be in our electronic registry and we will know about them, but we will not have any direct involvement with them.
If it is a project that requires a comprehensive study, for example, then we will actually have to receive that study and make it available to the public, receive comments on it, and advise the minister on the results of that review. It depends on the nature of the project, its size, its potential for environmental impact, and also public concern associated with the project as to whether or not we get actively involved.
Senator Cochrane: The project to which Senator Phalen referred is a major project. Would you not get involved in that?
Mr. Connelly: I appreciate the concern about that. However, at this time it would not be considered a project under our act. We would have no responsibility associated with the munitions that were dumped offshore near Cape Breton. That is not something that we would have a responsibility for in any legal manner at this point.
Senator Cochrane: Would that be a provincial responsibility?
Mr. Connelly: No, it would not, given its location, it sounds as if it is well beyond the provincial waters. I presume that there is some federal responsibility there, but I must admit that I do not know where that would lie.
Senator Cochrane: Would you give us a department that we might go to, to do some more research?
Mr. Connelly: I know that Senator Phalen has indicated that he has spoken to the Department of National Defence. One might wish to go back to the source of the dumping and the department involved in the first place to ask them some questions.
Senator Cochrane: It is not just Senator Phalen. I have a problem with that as well. Back in the late 1940s, 1950s and 1960s, there was an American base in an area close to where I lived. There was a significant amount of dumping. They moved out in the 1960s. It was said that there was dumping of PCBs. Some went into the water and some went underground. We do not know. This is an area about which everyone is concerned. As a result of recent illnesses in that area, everyone is asking questions. Where do we go for answers? Where do we go for some investigation?
Mr. Connelly: If I could get clarification, are you talking about a different area than offshore?
Senator Cochrane: Yes, I am. I am talking about the Earnest Harmon Air Force Base, in Stephenville, Newfoundland. There was an American base there and it closed out in the 1960s.
Mr. Connelly: I must admit that I am not familiar with that base. Again, in terms of where to go, it would be important to understand who has taken over the responsibility of that land. Is that now the responsibility of the federal government, do you know?
Senator Cochrane: I believe it is provincial.
Mr. Connelly: If so, you would have to bring your concerns to the attention of the provincial government in that instance.
Senator Cochrane: The Americans sold the land back to the federal government for $1. The federal government bought it for $1, is my understanding. It is a federal responsibility, yes.
In January, the media reported that an early-stage environmental assessment of the Laurentian sub-basin, which is south of Newfoundland, for oil and gas had been completed.
Jointly conducted by the Canada-Newfoundland Offshore Petroleum Board, CNOPB and the Canada-Nova Scotia Offshore Petroleum Board, CNSOPB, this strategic environmental assessment was reported to have highlighted information gaps to be addressed in a future assessment. One such gap was said to be the contents of a munitions dump in that region.
An environmental assessment officer of the CNOPB said that the munitions dump was indicated by the Department of National defence but they could not give us any more information.
Are you familiar with the munitions dump off the East Coast of Canada, and what are the strategic environmental assessments?
Mr. Connelly: I am not familiar with that particular dump to which you refer, but I do have some familiarity with the strategic environmental assessment.
I mentioned earlier, that this is an emerging tool that is being used. We see some very positive applications of this, and potential applications in the East Coast. A strategic environmental assessment would try to find out, through a type of broad study that is not related to a particular project, if there are any areas, for example, where petroleum exploration development perhaps should not occur. That may be one that they have identified. That is one of the values of that kind of study. Similarly, such a study might find that there are some sensitive environmental areas that should not be touched or harmed as well. That information then becomes very useful if a developer wants to drill in the area and explore for oil or gas. That information can then be used to assist in the conduct of a specific assessment for that proposed project.
Senator Cochrane: Can you help us in regard to finding out what information gap they were talking about? Could you get us that information? I would be interested in finding that out, especially since it is on the coastline with which I am affiliated.
Mr. Connelly: I can get the information that is in the study that you talked about because that would be available. If that is your question, I can certainly get that for you. I would not be able to perhaps get more than what is in the study.
Senator Cochrane: Could anyone else get more? Who would that be?
Mr. Connelly: Possibly. I do not know the details of what would be needed or who would have that information. If DND, for example, has said that that information is not available, then I would not have access to it either.
Senator Cochrane: DND would?
Mr. Connelly: Presumably.
The Chairman: Could you make the study available to us and tell us who wrote it?
Mr. Connelly: I would be pleased to indicate to you who did the strategic environmental assessment. I know the two boards, and I know, in general terms, the study that was done. We can provide you with contacts that you could follow up within those two boards.
The Chairman: That would be a good start.
Senator Watt: I will try to follow up on Senator Phalen's question about the military leftovers, as I call them. No one wants to have any responsibility for those. Sooner or later, we will have to try to get to the bottom of it.
I believe you report to the Minister of the Environment, do you?
Mr. Connelly: Yes, I report to the Minister of the Environment. However, our agency is separate from Environment Canada. We are a small agency of about 130 people and have responsibility for environmental assessment only.
Senator Watt: When you say ``environmental assessment only,'' you are talking about the period before the project is undertaken. You make an assessment of the possible impact. At times, you must also work out some arrangements with provincial governments, I believe. At times, you have to resolve that one regime, rather than two, conducts business in the same area. I have been involved in that over the course of time.
I will return to the point raised about the health of Canadians and, in fact, the health of the international community. We are taking such a large risk by not being willing to move in the direction to find the solution of to how to deal with those munitions. We have heard through the grapevine that the year 2005, that these munitions will start leaking all over the place. Some were discovered on the beach after that big storm we had in the Maritimes. This is already happening and affecting the health of the people. There must be a way for the Department of Environment to try to find the solution and meet with the health department in that area.
Let us say that if the private sector can harness a technology, a proposal is made to Environment Canada. They require funds to carry out their responsibilities. Would you be prepared to entertain that? Would your department entertain that or would you say it is still not within the parameters of your responsibilities?
Mr. Connelly: Our responsibilities are defined in the legislation. As I indicated earlier, if there is a request or a proposal to clean up those munitions, then our act would apply to that initiative — whatever that might be. They would have to follow the act and do an environmental assessment. That would be our role at that point.
Senator Watt: There is some hope; is that what you are telling me?
Mr. Connelly: I do not know enough about the problem, Senator Watt, to know if there is any initiative underway to clean it up. If there were, the Canadian Environmental Assessment Act would apply to that.
Senator Watt: My next question deals with the tailings of mining companies that are going into the ocean and have a potential impact on the fish habitat. Do you have a role in that? After the assessment has taken place, you find out that the tailings are affecting the ocean. Can you act if a complaint is made?
Mr. Connelly: One of the changes that was brought about by Bill C-9 last year was a requirement for follow-up to be done after an assessment is completed and the project is built. That is a new requirement. It is a very positive one under our act.
If we were to assess a large-scale mine listed on the comprehensive study list — for example, Voisey's Bay — there would be an automatic requirement for follow-up to be undertaken for a number of years after the project came on- line. The purpose of that would be to gather information to determine if the original prediction of impacts was in fact correct. If it were found that the original predictions were not accurate and there were problems, then action could be taken to fix those problems.
Having said that, in terms of environmental assessment, historically mines are licensed by provinces depending on the nature of the mine. There are requirements generally in those licences for monitoring of the effluent discharge from the tailings ponds.
Senator Watt: On the same subject, let us say there is a complaint made to Environment Canada but not necessarily a complaint made to the province. Let us say that the project was assessed jointly at the beginning. The complaint is made directly to the federal government. The provincial government might want to provide a waiver for the economic reasons for the need for environmental assessment. How do you deal with that?
Mr. Connelly: If I understand your question, if there is a requirement to conduct an environmental assessment, then it must be done under the act. There is no ability to say no if there is a new mining proposal. Most mines do trigger the Canadian Environmental Assessment Act because it is pretty hard to build a mine in our country, especially in our northern ecosystem, that does not have an impact on fish habitat. That is often one of the main triggers for an environmental assessment under our act.
If there were a mine subject to the act, an assessment will be done. That is a legal requirement. It must be done federally, with or without a provincial assessment. Obviously, if a province is conducting an assessment of that mine, then we would do it in a cooperative, harmonized manner so that we have one assessment conducted jointly on that project.
I might add that environmental assessment regimes are different from province to province. For example, in the province of Ontario — and this is by no means any criticism but merely to illustrate a difference — the act generally applies to municipal and government undertakings and not to private sector undertakings. In Ontario, it really would be unusual to see the Ontario Environmental Assessment Act being triggered for a mining project, but it would be subject in most instances to the Canadian Environmental Assessment Act.
Senator Watt: Would that also apply to navigable waters? I imagine so, because navigable waters fall under federal jurisdiction.
Mr. Connelly: Yes, that would be a trigger as well, if you had a mining proposal that included some component that would intrude in a waterway and require a permit under the Navigable Waters Protection Act. By the way, one example I can give to you is a proposal in Ontario to build a diamond mine called the Victor Diamond mine by De Beers. That project is undergoing an environmental assessment review under our act federally. It is not subject to the Ontario Environmental Assessment Act. We have close cooperation with the province inputting into that process; however, the legal requirements of their act would not apply in that instance.
Senator Hubley: I am not sure how much I have understood about this. I would like to go back to the different levels and types of environmental assessments. I would like you to think of the building of the Confederation Bridge. You may have alluded to the fact that at some point in time the federal government's initiatives override the provincial government's initiatives. In that instance, I would think you would have both a provincial environmental concern and certainly an environmental concern that the DFO would be interested in. Can you comment on that for me?
Mr. Connelly: The Confederation Bridge is a good example of a very important project that was subject to environmental assessment federally and, I believe, also provincially. That was reviewed before the introduction of the Canadian Environmental Assessment Act, which came into force in 1995. It was reviewed under the regime that existed before 1995. In that instance, an environmental assessment panel was formed to conduct public hearings on that proposal before it was completed.
In fact, I would say the environmental assessment had a very significant effect on the ultimate design of that bridge. Because of the concern about the bridge causing a delay in the ice break-up in the springtime, as a result of the environmental assessment it was determined that the bridge piers should be placed further apart. They were also designed with sharp points on them to easier cause the ice to break up in the springtime. All kinds of sophisticated modelling was done to predict whether in fact that would occur or not. It is a good example of a very rigorous environmental assessment with lots of public input in the process.
Senator Hubley: In the case of such a large project, are there firms that do environmental assessments that you would hire to do part of your work, or do you do it all yourselves? Do you have that large a department that you can handle all of that investigation yourself, or are private firms involved?
Mr. Connelly: The assessments themselves, the studies, are usually done by private firms. There are many very good Canadian firms that do a lot of work offshore in other countries as well. They are all private sector companies and consultants. The departments do the review of those studies. We do not conduct them ourselves in that sense.
Senator Hubley: You do have the final word. You can review that. I think government should review.
Mr. Connelly: Yes, they are all reviewed by government. When the act is triggered, often the proponent will do the study, but it is reviewed by government. That will not necessarily be the agency but in most instances it is done by the responsible authority — the department that has to take a decision. In some cases there is more than one department because often multiple departments have to take decisions with respect to the project under review.
Senator Hubley: You become involved after a project is at least visualized. You do not necessarily go into an environmental situation to correct it. You would not become involved in the clean up of the Halifax Harbour unless a company decided to do that, or the government decided to do that, and that would then trigger your involvement; is that correct? Is that how you become involved?
Mr. Connelly: Your understanding is quite correct. For example, a project that I am familiar with that — not quite Halifax Harbour — involved a concern a number of years ago about decontaminating the Lachine Canal in Montreal, which is now a Parks Canada facility. That was a heavy industrial area at one time, which became quite contaminated. There was a proposal to clean that up so that it could be used again for the public. Before that happened, an environmental assessment was done that looked into the most appropriate way of cleaning up the problem. That is another example of a proposal coming forward and then the environmental assessment being done on that proposal.
Senator Mahovlich: How many projects have been reviewed under the CEAA since 1995, and how many involved DFO? Of those fisheries-related projects, how many were subsequently approved?
Mr. Connelly: We are doing some quick math here, Senator Mahovlich. I will give you a rough idea. This is a very rough, back-of-the-envelope calculation here, but we would say roughly 45,000 projects.
Senator Mahovlich: Since 1995?
Mr. Connelly: Yes.
Senator Mahovlich: You are quite active.
Mr. Connelly: The government is active, as is DFO. Out of that total, about 9,000 would have involved the fisheries department. I could not tell you how many were approved, but in general, the majority of projects are approved after an environmental assessment because its objective is not necessarily to stop projects from proceeding but to ensure that they proceed in an environmentally safe manner. Often, through the assessment, changes are made in the design to minimize the effects on the environment.
We have found that some projects come enter into the process and then do not go any further because they are seen to be a real problem. However, we do not have a lot of good data on that.
Senator Mahovlich: A few years ago, a group from the Caledon Hills northwest of Toronto appeared before the committee. Has the CEAA prepared an environmental assessment in that area? If I recall, the group wished to build a quarry or a sand pit. It would have effected the environment because the Credit River forks in that same area and flows into lake Ontario. Did the agency prepare an assessment in that area? Is that project on the way?
Mr. Connelly: Are you referring to the Rockport Quarry project?
The Chairman: That is the one.
Mr. Connelly: I am familiar with the controversy.
Senator Mahovlich: Did you stop the project?
Mr. Connelly: No, I do not think so. I have to be honest and say that I am not sure what the status of it is. I could provide you with more information on it but our agency was not involved.
Senator Mahovlich: You were not involved?
Mr. Connelly: No. The Department of Fisheries and Oceans was looking at it because of the potential effects on fish habitat. I am not certain whether the design of the project was able to avoid fish habitat, hence, avoid a federal assessment. I am not sure of the details. I could certainly look into it and provide the committee with the information on its status.
The Chairman: I might be able to clarify this for you. The status, I believe, is such that the minister refused to remit a Harmful Alteration, Disruption or Destruction, HADD, of fish habitat. Essentially, an environmental assessment has not been triggered because of the refusal to remit a HADD. My understanding is that DFO's preference is to work with the proponents of such projects. There has been no HADD remitted and that is why the CEAA was not made aware of, or brought into, the process. If my understanding is correct, no trigger mechanism has yet to be made on it.
Before we proceed, I want to come back to a point raised earlier for some clarification on the underwater munitions. There is nothing in the regulations of the EAA that would permit the CEAA to conduct an environmental assessment of those munitions lying in either Senator Cochrane's or Senator Phalen's areas. There is nothing in the regulations that permits the agency to do that. I brought up the question of draggers and even that would not trigger an assessment.
What would the process involve to have the legislation include such a trigger so that the agency would be authorized to do such an environmental assessment? I do not think the current legislation precludes you because if your regulations include elements that would trigger your involvement, it would not be that complicated to add an additional trigger for these munitions, or for PCBs or other material. I do not know if I am making myself clear but the regulations authorize the assessment, do they not?
Mr. Connelly: Yes, senator, I can see that you have a good understanding of how the act works.
The Chairman: We know it is not under the regulations and we appreciate that. Under the existing regulations you cannot touch the munitions area.
Mr. Connelly: As I said earlier, if a department or an agency of the federal government decided to remove those munitions for the purpose of cleaning up the area, then that would likely trigger the provisions of the EAA.
If you are wondering whether we would have authority to do an investigative study of the problem, the answer would be no.
The Chairman: Correct. Your current regulations do not provide you with such authority. However, there is nothing in the act that prevents you from amending the regulations such that a new regulation would give you authority to do something about those munitions. I think the act authorizes you to do that.
Mr. Connelly: If I understand you correctly, this is obviously a concern of this committee, so it is important that I be clear.
The Chairman: Absolutely.
Mr. Connelly: There is no authority under the legislation to allow the agency to conduct simply an investigation of a problem. We have no such authority under the act. If, however, somebody else did that study or investigation and decided that they were to undertake an activity to remove those munitions, then our act would be triggered.
The Chairman: I wanted to be certain that I framed my question in that way. As parliamentarians, people frequently bring problems to our attention. Generally speaking, we are able to find an agency, a government department or some body — federal, provincial or municipal — that has some kind of responsibility for a problem or issue.
In this case, we seem to have a problem of munitions or chemicals lying at the bottom of the ocean. Those areas are being dragged, fished or used as a playground. There is a potential for disaster and as parliamentarians, we are faced with the response that no one is responsible for this situation. Nothing can be done; we cannot even warn the public that there is a problem. There is nothing to trigger any action from the government. I guess that is what we are getting at. We seem to have identified a problem that is not resolvable under any legislation or regulation across the three levels of government.
Mr. Connelly: Allow me to make a general statement. If there were a problem, or potential problem, in the environment, some departments would have a broad mandate to have concern about such munitions or chemicals affecting the quality of fish. DFO would have an obvious concern. They have a mandate to deal with oceans and they would have a concern. Environment Canada would also have a concern. I do not know to what extent the Department of National Defence would have responsibility for those areas. It is a question that you might want to ask of them.
The Chairman: We will ask them.
Mr. Connelly: In respect of environmental problems within Canada's territorial waters, there are departments with broad mandates to determine if there is a problem.
The Chairman: We had assumed this would fall within the purview of your agency because it is responsible for the implementation of the Environmental Act. That is not the case. We have that fairly well battened down tonight. We will go elsewhere for answers.
Mr. Connelly: Thank you, Mr. Chairman. I appreciate the problem you are raising. I wish I could say that we could assist in doing something about it. I think it is clear that we do not have the legislative mandate to do that.
The Chairman: As legislators, we know we cannot get that out of you if it is not a part of the legislation. We sympathize.
Senator Adams: You mentioned that there would be $7.5 million going to DFO from the budget before Christmas. We want to find something in Nunavut. There has been turbot and shrimp fishing there for about 20 years, but the amount of stock has never really been studied.
Is the DFO responsible for studying the stocks? I have concerns about turbot and commercial fishing in Nunavut and I want to know more. We heard from the fisheries minister a couple of years ago who said that they usually have a certain amount to study mammals and fish across Canada, but they have never studied anything in regard to the future of the stocks in Nunavut.
Are you familiar with the 0A area, close to the Grise Fjord, up to Pond Inlet and down to Broughton Island, and the 0B area, which extends from Broughton Island up to Hudson Strait? Those two areas have never been studied. I want to know how DFO will spend that $7 million of the $51 million budget?
Mr. Connelly: Senator Adams, I have had the pleasure of being in Grise Fjord and Pond Inlet over the years, but I think you would have to direct that question to DFO.
In respect of the $7.5 million that has been earmarked for implementation of the Canadian Environment Assessment Act changes, I do not think that they would use that money for the purpose of doing the kind of studies that you have mentioned.
Senator Phalen: Mr. Connelly, you mentioned in one of your answers that I had met with the Department of National Defence. I did not. I met with the Department of Fisheries and someone — not by my request — from the Department of National Defence was at that meeting. The suggestion at that meeting was that I meet with the Minister of National Defence. I have not done that as yet, nor did I request that at that meeting.
Senator Cochrane: I wish to ask Mr. Connelly to comment on the statement that was made by Dr. Derek Davis, chairman of the Marine Invertebrate Diversity Initiative, who appeared before this committee. He said that you need to do an environmental assessment to put in a kilometre of highway, but you do not need one to drag a net a kilometre along the bottom of the sea. Would you comment on that?
Mr. Connelly: Senator Cochrane, I will say that is a correct statement.
Senator Cochrane: Do you have something else to say?
Mr. Connelly: I do not have any additional comment to make other than he is correct in making that statement. Under the Canadian Environmental Assessment Act, that is an accurate statement.
The Chairman: Mr. Connelly and Mr. McCauley, thank you for appearing this evening. It was enjoyable having you. Thank you for the interesting discussion.
The committee adjourned.