Proceedings of the Standing Senate Committee on
National Finance
Issue 15 - Evidence - July 6, 2010 - Afternoon meeting
OTTAWA, Tuesday, July 6, 2010
The Standing Senate Committee on National Finance, to which was referred Bill C-9, An Act to implement certain provisions of the budget tabled in Parliament on March 4, 2010 and other measures, met this day at 2:01 p.m. to give consideration to the bill (topic: Parts 20 and 21).
Senator Joseph A. Day (Chair) in the chair.
[English]
The Chair: This is the twentieth meeting of the committee in relation to Bill C-9, the budget implementation bill 2010. Over our previous meetings, this committee has heard from the Minister of Finance, departmental officials and outside stakeholders who are interested in or impacted by the legislation.
This afternoon, we will be focusing on Part 20 and Part 21 of the bill, which deal with environmental assessments and the Canada Labour Code, respectively.
In the first panel, we will continue our consideration of Part 20, which we began this morning. We are pleased to welcome Mr. Michael Atkinson, President of the Canadian Construction Association, CCA; Mr. Jeff Barnes, who, in addition to speaking in his own right as Senior Principal, Environmental Management, at Stantec Inc., will also be supporting Mr. Atkinson; and Ms. Justyna Laurie-Lean, Vice-President, Environment and Health, Mining Association of Canada, MAC.
Let us start with Ms. Laurie-Lean, and then we will go to Mr. Atkinson and Mr. Barnes.
Justyna Laurie-Lean, Vice-President, Environment and Health, Mining Association of Canada: I will try to be brief. Thank you very much for this opportunity to talk to you about Part 20.
The Mining Association of Canada is one of the sectors that is most impacted by the Canadian Environmental Assessment Act, CEAA. Approximately half of all comprehensive studies are of mining industry projects under the act.
I have been with the Mining Association of Canada for 19 years, and, throughout that time, I have worked on the CEAA from when the act was first being passed through Parliament. I was a member of the minister's Regulatory Advisory Committee, RAC, on the CEAA. I participated in all the early interpretation work on the act and the development of regulations. I was also very engaged in the review of the CEAA that resulted in the amendments that came into force in 2003.
Through all of that, our objectives at the Mining Association of Canada have been timeliness, predictability and certainty. We have lobbied quite consistently, and, through lobbying, we have supported increased funding for departments to ensure there was the capacity to deliver. We supported increased public participation, greater departmental management priority and attention to the CEAA, and we have supported the creation of the Major Projects Management Office.
In spite of all that, we feel that the results have really disappointed. Industry does not always have credibility, so I will point you to the report of the Commissioner of the Environment and Sustainable Development. He did a chapter on the CEAA in his fall 2009 report, and it very much reflects some of the same views I hear when I talk to my members. The process continues to suffer from delays and lack of coordination, focuses on expensive and frustrating processes and is unable to demonstrate value to the environment or society.
What is the problem, and is there any way to fix it? The fundamental barrier to improving timeliness and coordination has been the delay within the federal process in triggering the act.
The triggering decision, at least for mining projects, can take 18 months. I would contrast that to other countries and some provinces where four weeks is the norm. We are talking about a period of 12 to 18 months, sometimes longer, and that is before the federal process starts. Because the federal process starts long after the provincial process is well under way and sometimes finished, we cannot have coordination or proper consultation. We are really going through the motions and making a mockery of the whole concept of early planning and a thoughtful process.
When we looked at Part 20 of Bill C-9, clause 2154 attracted our attention. I apologize if the numbering has changed in the process; I am not a lawyer. This is the part that would enable the Canadian Environmental Assessment Agency to act as the responsible authority for comprehensive studies and, most important for us, to initiate a CEAA comprehensive study before a triggering decision is made.
There is a subsequent safety provision that says that if it turns out that there is no trigger, the assessment can be stopped. However, it allows the agency to start an assessment. Right from the beginning, when the proponent first approaches both levels of government and says that they have a project, the agency can start.
If the agency does use this — and I emphasize "if" — in such a way as to trigger it early, then there would be hope for coordination with the provincial process, reduce delays and make it a coordinated and potentially useful process.
As I read it, this does not alter the basic structure of the CEAA. There is no fundamental change. It does not address all the practical problems that have been identified with the act. We hope that the upcoming CEAA review will go much more into the structure. However, we hope it will provide immediate relief by removing the triggering delays and the disruption that it causes and that it will provide a chance for more timeliness and better coordination.
The Chair: Thank you. There may well be some questions in relation to that section and others around it in due course. I will call on Mr. Atkinson next, and then I will go to Mr. Barnes.
Michael Atkinson, President, Canadian Construction Association: The Canadian Construction Association, CCA, certainly appreciates the invitation to appear before you today. We represent some 16,000 member firms from coast to coast to coast in Canada that are active in the non-residential construction industry. Our members essentially build everything except single-family dwellings. As an industry, construction accounts for just under 7 per cent of Canada's gross domestic product, GDP, placing construction just slightly behind financial services and manufacturing in the overall contribution to the nation's economy.
The reason I mention this is to show that the construction industry is a true barometer of the total Canadian economy. As we go, so does the economy.
At CCA, we have a keen interest in the Canadian Environmental Assessment Act, its administration and how it both enables and affects the business of our members. Since its inception in 1992, we have demonstrated this interest through our active participation on the Regulatory Advisory Committee to the Minister of the Environment on the Canadian Environmental Assessment Act.
CCA is very supportive of effective and efficient environmental assessment and believes that it is a key contributor to sustainable development in Canada. That said, however, our members are greatly concerned about matters of efficiency and effectiveness that have caused uncertainty and unpredictability in the process, delays that are attributable more to bureaucratic confusion, uncertainty and unpredictability that have nothing whatsoever to do with improving environmental stewardship.
Accompanying me today — and to whom I would like to give the rest of my time — is Mr. Jeff Barnes, who will outline our association's position on the particular amendments before you in Bill C-9.
Mr. Barnes is a senior principal with Stantec Consulting Limited in Fredericton, New Brunswick. Stantec is also a member of our organization. Mr. Barnes is a former member of our board of directors and a current representative, as I mentioned earlier, on the Regulatory Advisory Committee to the Minister of the Environment. At Stantec, he is the national service area leader for assessment, planning and compliance and, in that role, is responsible for Stantec's environmental assessment practice, directing more than a thousand professionals across Canada. His experience as a practitioner extends back more than three decades, well before the establishment of the legislative framework for environmental assessment in Canada.
Believe me when I tell you that Mr. Barnes is one of Canada's leading voices in the area of environmental assessment, and we are pleased that the Canadian Construction Association has him represent us on the Regulatory Advisory Committee and that he is here today. I would like to turn over the rest of my time to Mr. Barnes.
The Chair: I should make a declaration of interest. I know Stantec quite well, and my nephew works for Stantec in Halifax.
Jeff Barnes, Senior Principal, Environmental Management, Environmental Management & CCA: We have 5,000 employees in Canada.
Thank you very much. Mr. Chair, honourable senators, ladies and gentlemen, as Mr. Atkinson indicated, the Canadian Construction Association views the proposed amendments to the CEAA as both helpful and appropriate, and we endorse their inclusion in this bill as proposed.
We believe that the amendments address several key problems with the act, namely, there are too many assessments of inconsequential projects that delay projects unnecessarily and waste valuable resources of proponents, the public and government agencies alike, with little value added from an environmental-protection perspective. The comprehensive study track decision process implemented under section 21 by amendment to the act in 2003 has proven to increase process uncertainty and lengthen comprehensive studies by many months, as Ms. Laurie-Lean mentioned, again with little or no value added from an environmental protection perspective. Furthermore, decision making for comprehensive studies rests with federal authorities that trigger the requirement for an environmental assessment, leading to uneven and inconsistent application of the law and with limited opportunity to build agency knowledge and capacity due to this diffusion of responsibility amongst the various agencies, who must do assessments as is now written.
I will address each of these points in more detail.
The first point about too many assessments of inconsequential projects. Each year, approximately 6,000 environmental assessments occur under the Canadian Environmental Assessment Act. The vast majority are pro forma in nature and do nothing to complement the extensive planning and design processes undertaken by architects, engineers and environmental scientists, including compliance with both local and provincial environmental regulations, as well as, increasingly, design specifications dictated by building-rating systems such as the Leadership in Energy and Environmental Design Green Building Rating System, or LEED.
This fact in itself would suggest to anyone that we are doing too many environmental assessments; the bar of entry is far too low. Amendments to the Law List Regulations and to the temporary exemptions for inconsequential projects under Building Canada: Modern Infrastructure for a Strong Canada fund and other funds have both served to eliminate many unnecessary environmental assessments over the last year or more, without compromising environmental assessment goals and processes designed to mitigate environmental damage through better planning and built-in contingencies.
We believe that the amendments under the proposed new section 7.1 will strengthen environmental assessment across Canada by freeing federal regulators to focus on projects of larger consequence, thereby enabling our members to build the projects of benefit to Canada without unnecessary bureaucratic delay.
I will speak now to the second point, the elimination of the comprehensive study track decision process by these amendments.
The proposed amendments to section 21 will have the effect of eliminating the comprehensive study track decision process that arose from amendments to the legislation aimed at improving process certainty back in 2003, arising from the five-year review of the act in 2000. While intended to improve process certainty and mitigate the risk of late referral to a review panel, the 2003 amendments have resulted in a protracted administrative process that typically takes six to eight months or more, as Ms. Laurie-Lean mentioned, to determine the scope of assessment and whether it will be referred to a review panel, with little real value added, just an administration process. This has proven to be a key area of assessment delay and uncertainty for industry. Its elimination is supported fully by CCA.
The amendment under proposed new section 21.1(1) will see a much speedier determination of the scope of assessment, public interest and whether or not a referral to a review panel is warranted. The agency will be held publicly accountable from an early stage with a requirement for early public notice and engagement.
I will now speak to the third point, centralizing decision-making authority.
The proposed amendments to sections 11, 15 and 21 all serve to concentrate decision making and administrative authority respecting comprehensive studies with the Canadian Environmental Assessment Agency. This amendment affords the opportunity to improve the consistency of decision making, the quality of decisions and to increase agency knowledge, capacity and learning in the administration of environmental assessment.
From a Canadian Construction Association perspective, the proposed changes that allow the National Energy Board, NEB, and the Canadian Nuclear Safety Commission, CNSC, to administer comprehensive studies make sense. Both agencies have formalized project approval processes, including environmental assessment under the CEAA, and have concentrated specialist knowledge in the energy and nuclear industry respectively. Therefore, this amendment helps eliminate unnecessary redundancy and will improve the timeliness of assessments.
In conclusion, the Canadian Construction Association members strongly support the amendments as proposed in Bill C-9 and believe that they will improve process efficiency and timeliness; reduce uncertainty around the comprehensive study track decision process; centralize decision making and improve the quality and consistency of decision making; lessen the number of environmental assessments of inconsequential projects, while affording an opportunity to focus government resources on the management of projects of greater environmental consequence; and, finally, improve the possibility of harmonization with other jurisdictions and facilitate the desirable circumstance where, for one project, there is one assessment.
I will now turn things back to my colleague Mr. Atkinson for our closing thoughts.
Mr. Atkinson: Honourable senators, CCA members strongly support the need for a comprehensive and cohesive set of federal environmental assessment regulations. However, even with these amendments, the act will still create jurisdictional uncertainty for many types of projects. CCA will be bringing forward a more comprehensive list of proposed regulatory amendments as the House of Commons carries out its legislated review of the Canadian Environmental Assessment Act later this year. That said, we believe the amendments contained in Bill C-9 are an important step forward in addressing some of the deficiencies of the current act and strongly support its passage.
The review by Parliament of the act itself will probably take several years. The Canadian Construction Association sees the measures in this bill as a good band-aid solution for some of the deficiencies that are primarily procedural, are not going to impact on environmental stewardship and assessment and should be made as soon as possible.
Again, in closing, we would like to thank you for the opportunity to appear before you today. We look forward to answering your questions and hearing your comments.
The Chair: Thank you, Mr. Atkinson. I will now go to Mr. Barnes and Senator McCoy because, Mr. Barnes, you raised an issue that was raised this morning when Ms. May was here, and that is in relation to proposed new section 21.1(1).
Following our session this morning, Ms. May indicated that she might have over spoken on this particular matter and might have misled the panel. Senator McCoy was involved in that debate. I would like to give the floor to Senator McCoy to help clarify that issue.
Senator McCoy: Thank you, chair. You and I discussed this with Ms. May, the witness from this morning. I think you were involved in this conversation as well, Senator Neufeld.
Ms. May said that she omitted to mention a subclause. In discussing the public consultation changes in connection with section 21 and the comprehensive studies, she said that it had been eliminated. She meant to say that it had been eliminated at the front end of the process but not entirely. She particularly wanted us to ensure that the committee understood that that is what she had meant. She certainly did not want to leave any misapprehensions.
The Chair: The question, Mr. Barnes, is with respect to your comment halfway down page 3, where you say, "The agency will be held publicly accountable from an early stage with a requirement for early public notice and engagement." Is there public engagement at the early stage?
Mr. Barnes: Yes. I would argue that there has been little change in that regard with this amendment. In fact, the amendment affords a similar level of consultation early in the process, and, arguably, it brings the consultation further forward in the process.
In the existing situation, the administrator of the comprehensive study, the Canadian Environmental Assessment Agency with the responsible authorities, will go through a process of developing a draft-scope-of-assessment document, which is their first interpretation of how the act is triggered and what they would like to see assessed. They put that out for consultation, and they are mandated to do that under the existing legislation.
With this amendment under proposed section 21.1(1), within 10 days of the notice of commencement that an assessment has started, this new section obliges the agency or the responsible authority, which would be the agency or NEB or CNSC, to give notice. The proposed new section reads as follows:
Within 10 days after the inclusion of the Internet site of a notice of commencement of the comprehensive study, the responsible authority shall give a notice, in any manner that it considers appropriate, providing the public with an opportunity to comment on the project and the conduct of the comprehensive study.
That to me is an early input to guide the public's view of the project and how to do the scoping associated with the assessment. It calls for a much earlier involvement than at present. It is a slight change, but if anything, it is an improvement in that regard.
The Chair: Am I reading correctly that the engagement is correspondence as opposed to a physical appearance?
Mr. Barnes: Yes, but that is the way it is presently. It is published on an Internet site now, and that is what they are saying in the bill as well. However, this wording allows great latitude for early engagement. It is good for the environmental assessment to find out what people think. The thought behind this being a good thing is that one of the key decisions faced by the minister is whether to refer the project to a review panel. This early notice will cause early consideration of the public's view of the project and enable the minister to make an early call for a review panel, if the minister so chooses. That is positive because the study track decision process amendment in 2003 was aimed at dealing with the uncertainty that you could go through a comprehensive study and have a panel called on you at the end. It was thought to be a good idea, but it turned out to be a bureaucratic delay. This will bring it right up front with the public's immediate engagement, at least early in the process, and what the public thinks about the project can influence the minister.
Senator McCoy: You, Elizabeth May and I agree on so much. I suppose it comes to interpretation because we are predicting what the officials will do. There is absolutely no doubt that it used to drive us crazy when we were doing environmental assessments in Alberta when the federal government would do things sequentially: They would screen and then do a comprehensive study followed by a panel. The process would go on and on, and they never made up their minds. It was dithering at its worst.
Therefore, steps have been taken to try to make the process more effective. However, at no place were the participation and the time-honoured way of doing full-blown assessments, in particular a comprehensive study, dropped. It seems they have eliminated the old calling for comments on terms of reference for an environmental assessment, which is what used to be required. Now, they put the notice up and then let people talk or send in their comments.
You are saying that agency will use that in the time-honoured way, while others are asking whether they will do that. It is hard to predict.
Mr. Barnes: You make a very good and valid point that this legislation affords the opportunity to act in an efficient and effective way. It remains to be seen whether the agencies are able to do that. This bill does not impede their doing that and, in fact, forces them early on to make this public notice and seek the public's input. That creates accountability because they have to make it known to the public that they are interested in understanding the public's view about the proposed project before the scoping decision is made. It affords the public an opportunity to express concern about the project and request that certain elements be addressed in the assessment. That enables assimilation and incorporation of the public's concerns in the scoping decisions that follow by the agencies.
Currently, the agencies perform the preliminary draft scope and release it to the public. They have already thought a good deal about it without actually consulting the public first.
Senator McCoy: It is always easier to throw darts at a bull's eye than it is to design the bull's eye. Therefore, that will actually help.
I would like to talk about the scoping. We use that term in two ways in the context of the Canadian environmental assessment process. One is to determine which track it goes on. I thought the Supreme Court of Canada did a good job of making the distinction. Once you are on the comprehensive study track, you can become very effective and adopt other environmental assessments, cooperate with the provinces and do many other things.
However, you have no choice if it entails a big mine, with which you would be familiar, I presume. It requires a comprehensive study because it is thought to be a consequential project. These amendments have nothing to do with the 5,000 or 8,000 screenings that might be inconsequential, apart from the infrastructure stimulus package projects. It all has to do with these consequential projects. I do not have a question because I see you nodding that you agree with me.
Mr. Barnes: We make good points.
Senator McCoy: I cannot remember which one of you said that you would like to see a larger discussion around continuing to massage this process until it becomes truly effective. In our Standing Senate Committee on Energy, the Environment and Natural Resources, we had the pleasure of meeting with Gaétan Caron, the chair and CEO of the National Energy Board, two or three times. Mr. Caron described how great strides had been made in project management, in particular through the Major Projects Management Office, MPMO. Therefore, much of it seems to depend on the ability to manage projects. I think that we are all hoping that the agency and the board will be able to finance this.
What has been left out of the bill that would make it effective? In some way, perhaps, it has been a rush job. I have put my views on the table, and I am interested in hearing your views on that. What has been left out?
Mr. Barnes: We came here today to talk about Part 20. Certainly, as Mr. Atkinson mentioned in his comments, a number of issues are associated with the Canadian Environmental Assessment Act and its administration. I alluded to some of them — too many assessments, the bar being too low, et cetera. Those areas may require further work, maybe through the parliamentary review and further amendment. We are here today to speak to these particular amendments, evaluate them and see the opportunity they present. The slow bureaucratic process associated with the comprehensive study track, which Ms. Laurie-Lean mentioned, has proven to be a bureaucratic delay of 6 months to 18 months just to start the assessment. That is a real impediment to investment, projects and our economy. This concern is dealt with in the amendments that I referenced. We would probably speak to many other things in the parliamentary review around the fundamental aspects of the Canadian Environmental Assessment Act, how it is structured, who does what and who is responsible. There are many good aspects in the amendments in that regard.
Senator McCoy: That is what you hope. I think we are all putting great faith in the agency, members of whom are here. Thank you.
Senator Baker: Senator McCoy gave the example of the case involving the mining industry in British Columbia. Her last question concerned that, and your response was that you hope this bill would quicken the process at the front end. However, the provincial assessment process in that case, which was determined this year by the Supreme Court of Canada, started on October 27, 2003, and went on until July 22, 2005; and the federal process started in May 2004 and went on until April 2006, so there is not much of a difference in the start time.
It is the amount of duplication that shocks the ordinary person when examining those cases. I would have thought that may have been your major concern. The substance of gravamen of the mining industry in that circumstance was that under both the provincial and the federal rules, there had to be a public hearing, and the question was whether the public hearings had to be held in duplicate fashion. Of course, the trial judge said, yes, and the Supreme Court of Canada agreed.
In your start date, we are still not considering the fact that you will have to go through the same procedure with the province and that you will still have the existing duplication.
Ms. Laurie-Lean: The length of time between does vary quite a bit, so it depends. British Columbia is particularly proactive in hurrying the federal government along. They actually go out of their way to do so. The pilot MPMO initiative was there as well. A number of cases have taken 18 months and so on.
Even the six or seven months in this case is too long to have a coordinated process. For 19 years, we were promised one project, one assessment. If we start six months later, we can never marry them up. If it was duplication, we would say that it is a waste of taxpayers' money. From a proponent's standpoint, if it is at least being done in a coordinated way, it is not a huge increase in effort for the proponent. Where you are not only duplicating but are also on a separate time track, the same community is consulted twice in a short period of time. There is always the argument that if it is done twice, it will be done well. However, the reality is that when the process is duplicated, each party thinks the other will look after things, which results in finger pointing and lack of accountability.
In going to the CEAA review, our initial argument will be that we think we need to eliminate the duplication at the source. Therefore, we would go much further than this and say that a federal assessment should not be triggered unless there is no provincial assessment; rather, ensure federal participation in the provincial assessment. That is at least for our industry, which is, from a constitutional perspective, provincially regulated.
The B.C. government is pushing strongly and has been lobbying for equivalency provisions in the CEAA— and we agree with that — going beyond a coordinated process to saying, "Your process will meet our needs, so we will not do one."
That still raises some questions because you have to make the decision to trigger your process to say that they can do it and that you will not do anything about it. Therefore, equivalency does not go quite far enough.
Senator McCoy mentioned that I said, "if the agency" uses these powers in the appropriate way. Yes, I did say "if" in my remarks. It has been 19 years. We have been promised much. We have been promised one project, one assessment; and early triggering — "in unless out" is what the agency called it.
The 2003 amendments contained so many promises that did not come to fruition, so I will not bet the barn that these will deliver. However, we at least have hope that it will be used in the right way and provide some relief.
Senator Baker: Mr. Barnes mentioned — I think on three occasions — one project, one assessment. He has really hammered that home. When one thinks about it, many federal-provincial agreements talk about and mandate the coordination that you are talking about, and it still does not seem to have much effect. Do you have any suggestions on how to force the issue, Mr. Barnes?
Mr. Barnes: Yes. I will give you an illustration, from New Brunswick, of a hypothetical project that requires both a federal comprehensive study and a provincial comprehensive environmental review. New Brunswick has regulated timelines around the development of draft and final guidelines, guidelines being the scoping decision of government about what has to be assessed. The regulated timelines say that it can be no longer than 120 days after the decision that a comprehensive review is required by the province. The Canadian Environmental Assessment Agency says that, in an ideal circumstance, the comprehensive study track decision process takes about five and a half or six months. In practice, it is from eight to eighteen months.
In a case such as this in New Brunswick, the province is ready to start the assessment with the final guidelines ready to go, and the comprehensive study track decision is still not made. We do not know yet whether it is a federal review panel or a comprehensive study, and we do not know yet what the scope of the assessment is, so the two are out of sync.
The amendments before us on the comprehensive study track will centralize the decision making around comprehensive study scope with the agency, which affords the opportunity to get on with the business, perhaps in better sync with what the other jurisdictions are doing. The opportunity for harmonization would be facilitated. It would not necessarily always happen in this new regime, but it could not happen in New Brunswick before. This scenario exists in other provinces as well. The same situation exists in B.C. The provinces are always waiting for the feds to catch up in comprehensive studies.
Senator Baker: We all recognize that each jurisdiction has different responsibilities. The provinces' responsibilities differ greatly from those of the federal jurisdiction. The result of the Supreme Court of Canada decision was that public hearings had to be held all over again on the same issues in the same manner. Where there are different jurisdictions with different issues at stake, how do you see this coming together? You keep repeating, "one project, one assessment." How are we to marry the two so that you get one project, one assessment?
Mr. Barnes: It must be done in small steps, unfortunately, because it is a complicated process where we have devolved responsibility to the provinces from the federal level. Our Constitution creates this conundrum.
There is an opportunity to harmonize if the agencies are willing to cooperate and if the laws do not prevent it. The MiningWatch Canada v. Canada (Fisheries and Oceans) decision — sometimes referred to as the Red Chris case — basically said that you cannot be cute and avoid a comprehensive study by limiting your project or doing clever scoping. The court also recognized that what it ordered may lead to duplication in the process, but it said that it could not be helped because the law is that way.
The court did point to the importance for harmonization, and I think the gauntlet is dropped by that Supreme Court of Canada decision. Facilitated by these comprehensive study changes, the feds now have an opportunity to be in sync with the province. The two levels can better harmonize and rely upon each other's hearings and documents. They can move toward one project, one assessment by agreement.
Senator Neufeld: This is music to my ears. For years, British Columbia has fought to at least become better harmonized than we are now. I have never said that we should not have good environmental assessments. We should have good environmental assessments, but we need to work together.
Ms. Laurie-Lean, you commented on many of the things that you had been promised. This morning, we heard some testimony saying that if, in fact, we adopt this terrible thing, if we do not pull it out of this budget and study it for another 20 years, then we will be taking environmental assessment back to 1979. You said that you have been working with the Mining Association of Canada for 19 years, so that date is even a little before that. Could you tell me what you think of that statement? That is basically the statement we were given. We would be going backwards to before 1979.
Ms. Laurie-Lean: I will point to the commissioner's report. If you read it, that would not be a bad thing. The commissioner found a lot of expense and a lot of process but could not find any documentation of any benefit to the environment or society from all these environmental assessments. That is the sad part. I am not arguing for none, but it is a sad part.
Senator McCoy: Who said that?
Ms. Laurie-Lean: There are examples in other countries and other jurisdictions where one environmental assessment, done fairly quickly, will accommodate a whole range of interests. They do it by asking questions and responding, but they have a fairly defined and disciplined process, which we do not have. Honestly, I do not think these amendments could make matters any worse than they are now.
The Chair: We were hoping for something better, presumably.
Ms. Laurie-Lean: It depends; the amendments can be implemented. Basically, they do not change what is in the act or the nature of the process. They move the decision making, in essence, from a certain department to the agency, relying on the agency being able to discharge the duties in a way that the department was not able or not willing to do. They remove some of the constraints. They do not remove the requirement to consult, but they remove the prescriptiveness of that consultation and the prescriptiveness of the process and leave a little more discretion. If that discretion is used well, if that discretion is used flexibly to respond to the needs and to coordinate better with provinces, it will be a well-functioning act. If that discretion is used in the way that it has been in the past, foot-dragged, going through the process to meet the letter but not the spirit of the law and so on, then, yes, we will not be any better off.
Senator Neufeld: You would agree with me that making the decision up front, earlier, will put the federal process more in sync with the provinces' process. I am not commenting about any other province. I know British Columbia, and I know that we have a time frame. We have 180 days. No is an answer. Get on with making a decision. This process of actually making the decision ahead of time instead of all the departments fighting for 18 months, on average, to decide who will take it will actually get us a little closer to the dates that Senator Baker talked about so that we can actually be doing one project and one assessment. Would you agree with that, if it is used correctly?
Ms. Laurie-Lean: Yes.
Senator Neufeld: We were also led to believe that if you had a big oil sands project, a minister — not pointing at any ministers, but a minister, regardless of what party — could make a decision to actually not even have an environmental assessment on the project but to just have an environmental assessment on a small bridge that is crossing a small river to reach that oil sands project. Help me through that process a little, please. Does anyone want to speak to this?
The Chair: This is the minister's right to scope.
Mr. Barnes: A clause in this amendment affords an opportunity for scoping by the minister. I read that as an opportunity to take advantage of minimizing duplication where the opportunity presents itself. In other words, the minister has the authority to declare, "I have looked at the B.C. process on this project. I agree with the guidelines that they have produced, and we will rely upon all or some aspects of their process in leading to our decision." That could include perhaps a more limited scope or fewer steps, for example, around that. I read it that way and not necessarily as an opportunity to do clever scoping, as I mentioned to Senator Baker, to avoid doing assessment. It is actually to avoid doing duplication. It affords that opportunity.
Ms. Laurie-Lean: I would add that you would not really gain much out of gaming the system that way because the requirement of whatever triggered the environmental assessment still remains. If it were a Fisheries Act — I will say the word — authorization, all the issues that would have to be considered in that would still have to be covered. If the key parts were scoped out of the assessment, the project would not be further ahead.
Senator Neufeld: British Columbia would love the equivalency — we have lobbied for that for a long time — to accept our assessment as good enough to actually satisfy the federal one. We could probably easily do that. It is still up to the central agency, the federal government, to make that decision. They have the decision whether to do it or not.
We have it in our act in British Columbia. We can actually go to the federal government and say, "You do it, and we are good with that." All we are asking is the federal government to actually come back and do the same thing, and you can get to one project, one review, and satisfy all the needs that need to be satisfied.
The Chair: Thank you, Senator Neufeld. I will take that as a comment since you had already asked your last question earlier. Senator Runciman is waiting to ask his question.
Senator Neufeld: Thank you. I would like that on the record.
Senator McCoy: I want to break processes here. There is one little factoid I want to put on the table, with your indulgence, please.
The Chair: Senator Runciman.
Senator McCoy: In the timelines, in that case that you read out, the proponent took six months after the application provincially to apply to the federal government, so it is not always the difference in processes.
Senator Neufeld: They were waiting for the feds.
Senator Runciman: Anyway, you two can debate it.
Senator McCoy: Thank you.
Senator Runciman: You are welcome. it is great to see the witnesses here today. We appreciate your expertise in this area. Most of us around this table do not have that level of understanding of the challenges. We also appreciate the fact that you do not have any political axe to grind.
Mr. Barnes, you have written extensively on this. I have an article here wherein you described the process in a little stronger language than you used today. You describe the environmental assessment system in Canada as being in crisis. You reference, in that article, one specific area that I would like you to talk about, namely, the complexity of the system and the overlapping jurisdictions being an impediment to investment in Canada.
I am tying this into something that Ms. May said this morning. The chair said that she over spoke on one issue, but I think she over spoke on a number of issues. In any event, she said that environmental assessments have not deterred projects. You are talking about what is happening with respect to impediment to investment in Canada. Could you expand on that concern and perhaps in some way tie it into jobs and implications for this country? Is that possible?
Mr. Barnes: How much time do we have? Environmental assessment is not intended to deter projects. In fact, if you read the purpose of the Canadian Environmental Assessment Act, it is actually to make better planning decisions leading toward sustainable development. I am paraphrasing, but basically it is intended to plan better projects, not stop projects. I think that is a mis-characterization of the intent of the CEAA.
I have written some papers that are critical of the Canadian Environmental Assessment Act, and Mr. Atkinson alluded to the fact that when the parliamentary review goes forward, I will be advocating — and I believe we will advocate through CCA, also — the view that one of the fundamental problems with the act as it is now is this duplication that we have been talking about, the lack of reciprocity, the ability to substitute, and so on. That is really central to the notion of one project, one assessment.
I presented my most recent paper to the International Association for Impact Assessment in Geneva in April of this year, which was a follow-up paper to a previous paper where I spoke to the same subject in 2005. In the most recent paper, I basically argued that I think the federal government needs to take on a position of leadership on these issues with respect to environmental assessment in Canada. To do that, we need the development of a national framework for environmental assessment. We do have such frameworks in other areas where provinces and the federal government cooperate, such as in health and so on, to achieve national objectives and provincial objectives collectively. This national framework for environmental assessment would outline the basic elements of an environmental assessment process that are necessary to have a good environmental assessment. These basic elements would include scoping, public consultation, review of the environmental assessment, transparency in process, publicly available information on a website, et cetera.
In that case, that national framework would be agreed to by all provinces, territories and boards. They would not necessarily need to have exactly the same environmental assessment process, but the same elements and basic characteristics would be required. In doing that, it would enable what Senator Neufeld was referring to, namely, that if someone brings forward a project in a province or another jurisdiction, it allows everyone else to say that that project is in New Brunswick or B.C., so they will do the assessment following the national framework. Then everyone else can stand down.
Folks with expert knowledge in Fisheries and Oceans Canada or Environment Canada, for example, can participate in that process as experts in what they are experts in. With respect, they are not experts in the administration of environmental assessment; they are fisheries experts or transportation experts. Therefore, they can stay within their jurisdiction and their mandate.
If we had a framework that allowed reciprocity between the processes, then there would be much more standing down. That means the federal government can get out of the business of the provinces — we have devolved many of these matters to the provinces. It will allow the opportunity for provinces, territories and boards to get on with assessments within their mandate to a national framework standard, which would have a similar process, a basic standard with one set of documents, one process and one person or agency to go to.
I do not think it is all that difficult. I recognize that some challenges exist. We have not spoken about the protection of Aboriginal rights and interests and how that can have an effect. However, certainly one agency can have that discussion instead of multiple agencies. Therefore, this may be the way for us to go in the long term. In the parliamentary review, we should be looking at what the impediments are to the one assessment and reciprocity between jurisdictions. I think it just means cooperation, and we have done it in other areas of government and society in Canada already.
Senator Marshall: I would like your opinion on one of the sections in the legislation that exempts projects funded under many federal agreements from the environmental assessment process, unless the minister determines otherwise. Many of those federal funding programs are quite old. There is a reference to one back in 2003.
Would you have any comments on that section? Is it trying to close the barn door after the horse has gone, or are there still many projects to be funded?
Also, I am sure there will be other federal agreements in the future, so where do you see that coming from, bearing in mind this amendment is there?
Mr. Barnes: This particular amendment is aimed at facilitating the continued avoidance of wasting resources on projects that have no consequence to the environment but are captured by the assessment process. Safeguards are in the amendments that came through with respect to the Building Canada Plan and other amendments last year, and this extends those. There are protections that if it is in or near a watercourse or near a sensitive area, the exemption does not exist.
Senator Marshall: That is right.
Mr. Barnes: This is trying to expand and extend the success of this initial short-term measure that we had last year to a longer term for these inconsequential projects. That will have the effect of freeing up our membership in the Canadian Construction Association to get on with building these projects that do not really require an environmental assessment. However, it will also free up resources to administer the assessments of big projects more effectively and efficiently.
Senator Marshall: Would not most of those projects already have been completed? Some of these funds were announced years ago; the Municipal Rural Infrastructure Fund was announced in the 2003 budget. I would think that most of those projects are completed now.
Will that amendment pick up many projects or a few leftover projects? What is its magnitude?
Mr. Atkinson: My understanding is that these amendments extend exemptions to projects under the Building Canada Fund, which would run to 2013-14. There may well be projects still under that fund that have not commenced yet or have not been given all the approvals, vis-à-vis funding.
My understanding was that these amendments extend those exemptions that were given to the stimulus programs out of the 2009 budget, I guess it would be, to include projects funded under the Building Canada Fund, which goes out to 2013-14, if my memory is correct.
Senator Marshall: Was the experience that a large amount of money or time was wasted doing environmental assessments on some projects that have been completed?
Mr. Atkinson: As Mr. Barnes has said, the problem was that, if you did not put that into the legislation, certain triggers would require assessments to be done of projects that common sense would determine would not have a consequence for the environment. It was a means to ensure that that trigger would not be pulled for those projects.
Most of the stimulus projects were supposed to be ready for construction to begin with, so one would have assumed that the environmental assessments would have been out of the way by the time they came out for our people to get involved in bidding on those projects. As Mr. Barnes has said, my understanding was that if you did not do that, the hands of the administrators of the act would be tied because of those triggers being activated.
Senator Marshall: Assuming there will be future federal funding programs for infrastructure, I do not think the legislation is extended to programs yet to be announced. Would you expect to see that?
Mr. Atkinson: I think much of that depends on the parliamentary review of the act.
The Chair: You are anticipating that that will take several years.
Mr. Atkinson: How long that process will be depends on whether you see the glass as half full or half empty. If it is a thorough, comprehensive review of the legislation, one would think it would not be as quick as one might like.
The Chair: Was the seven years half full or half empty?
Mr. Atkinson: I will leave that to you to decide.
The Chair: Thank you very much. I understand the minister has arrived, and our time has just concluded with this particular session. I am left with Senator Runciman on my list for round two, which we will try to make up to him somewhere along the way.
On behalf of the Standing Senate Committee on National Finance, Ms. Laurie-Lean, thank you very much for being here. Ms. Laurie-Lean is with the Mining Association of Canada; Mr. Jeff Barnes is with Stantec; and Mr. Michael Atkinson is with the Canadian Construction Association. Thank you for bringing before us your daily experiences with environmental assessments.
We are very pleased that we have with us this afternoon, for a one-hour session, the Honourable Jim Prentice, P.C., M.P., Minister of the Environment. As we studied the bill, minister, a number of policy questions were raised, and departmental officials referred those on to the political side. We are pleased that you are able to be here to help us with questions on portions of Bill C-9 that undoubtedly honourable senators will want to raise.
You have the floor if you would like to make some introductory remarks; then we will go to a question and answer period.
The Hon. Jim Prentice, P.C., M.P., Minister of the Environment: Thank you, I will do that. Ladies and gentlemen, senators, thank you for inviting me here today as the minister responsibility for the Canadian Environmental Assessment Act and the Canadian Environmental Assessment Agency. I have some officials from the agency here with me.
I appreciate your efforts over the course of these hot summer days to give these proposed amendments a thorough review. I have been quite involved in the development of these amendments, so I welcome your questions.
I am a strong believer in the environmental assessment process. Improving a project's design to prevent environmental harm before construction is both prudent and obviously cost-effective.
[Translation]
Unfortunately, some problems inherent in the federal environmental assessment process need to be fixed. It is prone to delay, which causes a lack of harmonization with the provinces. It does not benefit the environment and it harms the economy. In recent years, almost all informed observers have pointed out the urgent need for reform. Notable among them is the External Advisory Committee on Smart Regulation, which submitted its report in 2004 or 2005 to the previous government and to provincial premiers and ministers.
[English]
Unfortunately, the federal environmental assessment process has not worked as well as it needs to and requires fixing. It is prone to delay. These delays have caused difficulties in harmonization with the provinces. It has not benefited the environment, and it has also harmed the economy.
Mr. Chair, I will briefly provide three examples from different parts of Canada that reinforce this process and these concerns. The federal environmental assessment decisions, for example, on the Ruby Creek mine in British Columbia, were indeed completed. They were completed 18 months after the provincial process terminated, not because of environmental concerns or technical issues, but because of a 16-month internal delay in the federal government in the commencement of the process. I leave to your imagination the effects of having a federal process conclude a year and a half after the provincial process has concluded.
Moving to Manitoba, the federal decision on the Wuskwatim dam occurred close to two years after the province issued its report — a 21-month delay in that case. In Nova Scotia, two federal authorities conducted two separate comprehensive studies of the Keltic Petrochemicals Ltd. and the LNG facility. In this case, the federal process and decision lagged a full year behind the province. In this case, not only did we not achieve one project, one assessment, but we also had two levels of government involved and three assessments taking place simultaneously.
These three projects, a mere illustration of the problem, represent $6.7 billion and thousands of jobs for Canadians. There was duplication between governments, and duplication diverts taxpayers' dollars away from concrete actions that protect the environment. I think it is fair to say that we would all rather see the money spent on mitigation, monitoring, research and setting aside protected areas, actions that would yield positive environmental results.
The proposed amendments that are the subject of our discussions today will address the source of these problems that delay these and other projects.
[Translation]
First of all, moving forward with projects on a timely basis is an important part of the economic action plan. In March 2009, the government made use of regulations in order to temporarily exclude current public infrastructure projects with negligible environmental impact from the requirement to be subject to an environmental assessment. The proposed amendments would make these exclusions permanent and would include them in the schedule attached to the act. The main difference would be the addition of a protection provision that would allow the Minister of the Environment to require an environmental assessment for a project when one is justified.
[English]
This is essentially a saving provision.
Scoping is the second issue covered by these amendments. In setting the boundaries for the environmental assessment, scoping is and always has been a crucial step that has been a significant source of delay. The landscape of scoping changed in January of this year, with the Supreme Court's decision in MiningWatch Canada v. Canada — a decision that ruled that the act does not provide authority to scope projects down. I know that we will discuss that.
The proposed amendments are a response to that decision. They are not, I would emphasize, an attempt to overturn the ruling of the Supreme Court of Canada. They are not a return to the past, where any official in any department could scope down or narrow the scope of a project. Instead, the bill proposes that authority to properly scope a project would flow through the Minister of the Environment. To ensure transparency, the minister is required to set public conditions on the use of this authority. I do not intend to use these provisions to weaken the environmental assessment process.
Furthermore, the scoping decision cannot alter the assessment track. In other words, projects that are on the comprehensive study list regulations will receive a comprehensive study. This means a thorough assessment with opportunities for public participation backed by participation funding.
Mr. Chair, I want to share a quote in support of a reasonable scoping from the factum prepared for the Supreme Court of Canada. This is a quote from Ecojustice and MiningWatch Canada, and it states:
While there is an ordinary meaning to "project," there is still room for some discretion by responsible authorities and the application of judgment under section 15 in defining reasonable boundaries through a scoping decision. However, that judgment must be reasonable and must be consistent with the act.
Mr. Chair, I agree with this statement, except I believe that accountability on the use of the authority is important enough to reside with the Minister of the Environment, not with a number of federal authorities.
A third problem relates to a diffusion of authority that has been a real problem on major projects. In effect, under the federal system, no one has been in charge of the process.
An environmental assessment may be in equal measure the responsibility of the Fisheries and Oceans Canada, Environment Canada, Transport Canada and so on, each with different mandates and views. In fact, that has been, for the most part, the source of the delays within the federal system. Bureaucratic gridlock has often been the result. The proposed amendments will break this gridlock by making a single agency — which I submit is the agency that should be responsible, namely, the Canadian Environmental Assessment Agency — responsible for most comprehensive studies, and I will be coming forward with mandatory timelines to complement this change.
In short, in getting the federal house in order, we will be in a much better position to cooperate with the provinces so that a single environmental assessment meets the legal requirements of both the provincial and federal jurisdictions. We will achieve that goal, which is sometimes stated as one project, one assessment.
We can also expect environmental gains. Mr. Stephen Hazell, a respected leader in the environmental community, has recommended this very change. In his 1998 book, Canada v. The Environment: Federal Environmental Assessment, he says, "The conduct of comprehensive studies could be transferred from federal authorities to the Canadian Environmental Assessment Agency."
That is exactly what these changes do in part, Mr. Chair.
Why proceed with these amendments at this time? Frankly, there is no time to wait. We know what the problems are. The Commissioner of the Environment and Sustainable Development recommended that the changes be undertaken. The Canadian Environmental Assessment Agency, he said, should propose to the Minister of the Environment options for resolving serious long-standing federal coordination problems, including the scoping of projects and other related issues. This was the recommendation of the Commissioner of the Environment and Sustainable Development, as I recall, only two years ago.
With the Supreme Court of Canada MiningWatch Canada v. Canada (Fisheries and Oceans) decision, the number of projects that will undergo a more thorough comprehensive study will likely double. This is good from an environmental perspective, as long as we can avoid the current mess of delays and duplications.
If these amendments were to come into force next week, the Canadian Environmental Assessment Agency would be responsible for 22 projects already in the system worth over $15 billion of investment. Over time, this figure will increase. Certainty is also needed for the thousands of infrastructure projects that are part of the Canada's Economic Action Plan, and our economic recovery cannot wait.
In conclusion, Mr. Chair, a more efficient and timely process will be good for the economy. Strengthening the role of the Minister of the Environment and the Canadian Environmental Assessment Agency will be good for the environment. It is with those multiple objectives in mind that these amendments have been brought forward. I am pleased to respond to your questions.
The Chair: Thank you very much, minister. Many senators are interested in participating. I commence with Senator Ringuette.
Senator Ringuette: You just said in your statement that it is not your intention to reduce the scope of environmental assessment. Our job is not to look into your intentions. Our job is to look into the increase in authority that you are receiving in this budget bill.
In last year's omnibus budget bill, there were environmental issues in regard to waterways. This year in the omnibus budget bill, there are changes again — I would dare say, important changes — to environmental processes. We have learned this morning that, in the fall, the House of Commons will be reviewing the seven-year review.
If these issues are so important and if you have received input about their necessity, why have you not asked in a stand-alone bill, at least, in the House of Commons, or asked the House of Commons committee last fall to give an early start to the review process?
Mr. Prentice: Clearly, a review of the environmental assessment process will be in legislation that is statutorily mandated. That will take place according to the timetable that is set out in the statute. The provisions that are before you do not in any way impede that statutory review. They will be part of the legislative framework that is reviewed by the committee in due course. I support that statutory review. It is important; it will result in significant discussion and some important changes, I assume, to the legislation.
In the meantime, given the economic circumstances of this country, it is important that we ensure that the environmental assessment process is working. The changes that have been put forward in Bill C-9 are important; I agree with you in that respect. They accomplish four significant things, which I have referred to in my opening statement, that will ensure that the assessment process is operating efficiently and thereby assist us in our economic recovery.
First, they effect a statutory implementation of the exclusion regulation, which was put in place a year ago and which we have found to be very successful. They essentially incorporate that exclusion regulation into statutory form to ensure, out of an abundance of caution, that the environment is protected. A safety provision has been included that allows the Minister of the Environment to refer any project for an environmental assessment.
Second, they assign responsibility for the comprehensive study process to a federal agency, which I submit needs to happen and that it should be assigned to the Canadian Environmental Assessment Agency.
Third, they deal with the MiningWatch Canada v. Canada (Fisheries and Oceans) decision, and ensure that there is, within the federal government, some authority to deal with the issue of the proper scoping of a project.
Fourth, they deal with some of the systemic problems that we have had with the tracking process.
Those four changes are important. They are critical in making the assessment process function in a satisfactory way to eliminate delays and duplication and to ensure harmonization with the provinces.
Senator Ringuette: I believe that they did not suddenly become major issues in March. They have been issues earlier because you put forth regulations — never mind legislation — last year changing these issues, and here we are looking at taking regulations and putting them into legislation. I will ask my question again. If this is so important, why did you not ask the House of Commons last fall — I am sure they would have agreed with you — to take an early start in the mandatory review of the environmental assessment?
Mr. Prentice: The mandatory review will carry out on the timetable, which has been set for it, and it will be a comprehensive review.
The changes being made, to respond to your question, in Bill C-9 are, in general terms, changes that have been called for by the Commissioner of the Environment and Sustainable Development in Canada over the last several years. They have been called for by the smart regulator in 2005. They have been called for repeatedly on almost every occasion by the premiers and the Council of the Federation for the past 10 years.
These changes are necessary, and, in our current economic circumstance, they are certainly necessary.
Senator Neufeld: Thank you, minister, for coming today. We heard earlier testimony that these changes would remove issues from environmental assessment projects and give them to the Canadian Nuclear Safety Commission or the National Energy Board to deal with. I am not as familiar with the Canadian Nuclear Safety Commission as I am with the National Energy Board, but maybe you could explain it to us. We have tried to reinforce that the same rules will still apply; maybe you can help us a little with that. The environmental assessment will still apply, but you will use a different process or a process that has been ongoing for a long time. Maybe you could expand on that, please.
Mr. Prentice: Certainly. I will come back to the subject of the National Energy Board and the Nuclear Safety Commission. What is taking place there is simply that there is no change to the legislation or to the regulations. It is simply an exercise of the delegation authority that exists under section 43 of the CEAA. That is not being changed; that authority is present and is simply being exercised in the case of two respected agencies. We will come back to that.
What I understand the committee has heard about the removal of public consultation rights is untrue. That is not happening with these amendments. The amendments maintain the same number of public consultation opportunities as currently exists in the statute.
If I might just walk you through those opportunities for public consultation, the first opportunity is right at the beginning of the environmental assessment process. If you look at clause 2156, or proposed new section 21.1 of the legislation that is before you, you will see that that legislative provision is maintained as a first opportunity for public participation.
Second, there is an opportunity for public participation during the conduct of the comprehensive study itself. That exists in the legislation. It is not being changed by this process. In fact, if you look at proposed new section 21.2 as referenced in this provision, there is an added reference to that right of public consultation. That does not change.
The third opportunity that remains in the act allows the public to comment on the comprehensive study once the report is completed. Once again, this exists in the statute; it is not being changed in any way.
Essentially, the ability of the public to participate in the comprehensive study process and in the environmental assessment process has been maintained. It is a right to an ability to participate initially on how the comprehensive study is to be done; second, to participate in the study itself; and, third, an opportunity to participate once the study has been completed. Therefore, there is a very broad and comprehensive ability to publicly participate.
Senator Neufeld: I want to put a quick question on the record.
Steve Kallick from Pew Environmental Group did an interview with the Canadian Press this last Saturday talking about the great things that the Ministry of the Environment and the Canadian government have been doing for the environment. He was saying that the efforts to preserve the Canadian boreal forest were amazing and extraordinary, adding that scientists hope that Canada can inspire other countries.
Peter Lee from Global Forest Watch Canada agreed with the findings of Pew Environmental Group, calling the government's action on conservation staggering. He added that he had never seen anything like it in his lifetime.
Not all news is bad news. Some is good news, and I wanted to leave you with that instead of another question. You have answered my first question very well. Thank you.
The Chair: We will be voting in one hour in the Senate Chamber. I will let you know when we get closer to that time. It will be around 4:20. We are okay as far as this particular witness is concerned.
Senator Banks: Minister, so that you know, I am opposed to some of these provisions and to the inclusion of these measures in this act for reasons that I am sure you have heard about.
You have referred and we have heard others refer to the question of scoping. Scoping has been, I think you will agree, the main problem with respect to the length of time to which you were referring because, previously, various government departments had to somehow get together and agree on what the scope of an environmental assessment would be. The Fisheries and Oceans Canada might have one view, you might have another view and Natural Resources Canada might have yet another view. It was that process, generally speaking, to which can be ascribed, generally speaking, the length of time that federal participation in environmental processes took. Have I got that right?
Mr. Prentice: I think, in sum, that has been a big part of the problem, yes.
Senator Banks: My question boils down to whether this legislation is the way to solve that problem as opposed to other means that are administrative and that do not require legislation to put into place a concentration of power in one office. I know what your commitment is to the environment, but I do not know what your successors or his or her successors might be 10 years hence or 20 years hence.
There is a certain amount of rigour, a certain amount of inclusiveness that is and has been contained in the act since CEAA was invented and that is being watered down a little by this, in the view of some, and that is my view.
In 2001, the scoping issue was addressed and the then Minister of the Environment said that something had to be done about it. Then in 2003, a coordinator was established to try to fix this problem. Then again in 2003, a cabinet directive was made to fix this problem, and then your government made another cabinet directive in 2007, I think it was, to fix this problem.
I gather that the problem is being fixed by legislation rather than fixing the bureaucratic spaghetti bowl that kept getting in the way of applying the act efficiently. Have I got that about right?
Mr. Prentice: Essentially, I think you do. Let me just emphasize, I have put a great deal of work into these provisions myself to try to solve the problem that we are facing. You are right in that this legislation has been around for a lengthy period of time. These problems have bedevilled successive governments. Issues were raised in 2001, as you say. In 2002- 03, there was a cabinet directive. In 2004-05, a series of legislative changes were brought forward that did not end up fixing the problem; they arguably made it worse. There was another cabinet directive in 2007. The essence of the problem is that a project comes in the front door of the federal government, and no single agency has been responsible for the environmental process. In the meantime, a provincial process is invoked and starts down the road of carrying out a fulsome environmental assessment. In the meantime, within the federal government, Fisheries and Oceans Canada, Environment Canada, Transport Canada, perhaps National Defence and others are wrestling with the project individually in their own ways, subject to their own interpretation of what needs to be done.
In some cases, it has absurdly resulted in different departments invoking different environmental reviews, not only parallel reviews but different types of reviews. Therefore, clearly, what has to happen is that someone needs to be responsible. I would submit that logic says that it should be an environmental agency that is responsible for the environmental process; hence, the Canadian Environmental Assessment Agency and the Minister of the Environment.
These changes have attempted to ensure that those agencies and that minister is responsible for the process and that they become the trustees of the process to move things along and ultimately make decisions.
I am convinced, having put the work that I have into this, that this will solve many of the problems that we are facing in the federal system at this point.
Senator Banks: I understand that. If we could rely on someone such as you being in that chair all the time, that might be fine, but we are fixing a policy and management problem with a law. It is a law that confers upon the chair in which you sit extraordinary authority. I appreciate your answers.
Mr. Prentice: I would not say that it is extraordinary authority. It is a focused authority in the hands of the responsible party, namely, the Minister of the Environment. I would say that logic dictates that it should be in the hands of whoever the Minister of the Environment is and whoever is at the Canadian Environmental Assessment Agency as opposed to Transport Canada, Fisheries and Oceans Canada or somewhere else.
Senator Banks: I am sorry, chair, but I want to make a point that will take 10 seconds.
I agree, but people correctly called for the placing of the authority in one place, as was referred to earlier, a securities commission, for example, or emergency response. It used to be the same thing. It was willy-nilly. No one knew who was in charge. Now we know who is in charge. It needs to be in one place.
However, the people who called for that did not call for a reduction in what I will loosely refer to as rigour. That is to say, they did not say that certain aspects of the law, the CEAA as it existed, could be excused from being applied in certain circumstances. That is my point. However, I appreciate your answer, minister. Thank you.
Senator Marshall: Thank you, minister, for being here today.
We have heard from a number of witnesses about Part 20 of Bill C-9. Just preceding your arrival, we heard from representatives of the Canadian Construction Association and the Mining Association of Canada. Based on their testimony, it appears that the amendments were well received. They cited some of the same problems that you mentioned in your introductory remarks about delaying the assessments, assessments of inconsequential projects and things of that nature.
One of the issues that came up a number of times during the previous testimony is the idea of one assessment process instead of a federal process and a provincial process. Is there some way to harmonize this or to have one process that would be federal-provincial?
What are your views on that? Would you be able to give us any insight as to whether there has been discussion with any of the provinces on that issue?
Mr. Prentice: The legislative changes before you are intended to get the federal house in order. By doing that, it will position the federal government to be able to coordinate with the provinces. These changes should effectively eliminate the circumstances I have described, where a provincial process is started and finished before the federal process has even reached a consensus on how to proceed. By solving that problem, we will be able to harmonize, for the most part, on most projects with the provinces and avoid unnecessary duplication and delays.
These legislative changes do not create a system of provincial substitution for a federal environmental process. Public discussion has taken place about that. The premiers have pushed for those changes. I have had extensive discussions with a number of the premiers — in particular, Premier Campbell and Premier Williams — about those changes, and they may be the subject of later discussion in terms of the parliamentary review. However, I would emphasize that these changes do not effect a process of substitution of provincial decision making for federal decision making; they simply ensure that the federal house is in order. I am convinced that, in large measure, that will solve the problem.
Senator Marshall: I realize that these amendments will not do anything to the provincial requirements. However, based on the testimony we have heard, some organizations feel that it would be a big plus to have greater harmonization or one process.
Mr. Prentice: As a general rule, we should aspire to one project, one assessment, providing that that assessment meets the legal requirements of both the provincial and federal governments, and providing it is robust, protects the environment and is done expeditiously. I think the consensus is that having duplicative processes is not in anyone's interest.
Senator Marshall: Do you feel that the comprehensive review of the legislation that is getting under way now will consider that?
Mr. Prentice: I am quite sure that that is an area that will be the subject of examination in the comprehensive review, yes.
Senator Angus: Welcome, minister. I understand you are just back from China, so we are privileged that you should appear before us on your first day back.
I am one who, unlike Senator Banks, is favourable to these provisions that you have brought forward, and I want to compliment you on the work you say that you have done personally, using your vast experience as a lawyer in the environmental field, to sort of strain that spaghetti that my friend Senator Banks has talked about and to bring clarity to this important field of our legislative system.
However, a number of new duties and more work have been ascribed to the agency as a result, I believe, of these amendments. Can you assure us that the agency has enough financial and human resources to adequately and efficiently make use of these new provisions?
Mr. Prentice: That is a fair question. If the Canadian Environmental Assessment Agency will be the keeper of the process here, then they presumably will have to be resourced to do that. I meant to offer this point previously in response to a question by Senator Banks.
In a significant way, the agency has already been doing, over the last two years, what this legislation sets out. We identified that this was a problem in terms of the way in which the system was functioning, and so based on a cabinet directive in 2007, we began to focus authorities on the part of the agency. They lacked the legal authority to make binding decisions, but they did have the capacity and were given the direction by cabinet to become the shepherds of the process, if not the trustees of the process. We know that this will work.
As part of that, in Budget 2007, an additional $11 million per year was allocated to the Canadian Environmental Assessment Agency as part of this process so that they would have the capacity to be on top of these files. That was about a 60 per cent increase in their budget. They have taken on those functions, and they are well positioned to be able to carry on and do this work.
Senator Angus: Do you know, offhand, what is the total budget of the agency?
Mr. Prentice: The total budget of the agency is $16 million, as I recall.
Senator Angus: I suppose we can do the math, if $11 million a year is a 60 per cent increase. In any event, we do hear from environmental groups that are trying to suggest that this streamlining of the environmental assessment process will have the unintended consequence of diminishing the review because instead of having a variety of jurisdictional influence in that regard, there will now be just the one; we could be throwing the baby out with the bathwater because there is simply not enough money and people. I think you are assuring us that subsequent budgets, as well, will supplement this.
Mr. Prentice: I will provide the figures on the aggregate budget of the agency and the public participation funding envelopes and so on, but suffice to say that we have very good people in the Canadian Environmental Assessment Agency. However, they have been functioning with a system and a process that does not work, and it does not work for a number of reasons. First, no one has been in charge of the process; no one has been responsible for ensuring that the process works. This will change that. There have been fragmented and multiple authorities across the federal government, where individual departments can do different things, at a different time pace, according to a different interpretation of the legislation. That will change.
We know that if the agency has good people and has the authority, and if we provide the legal certainty, the process will work much better.
Senator Mitchell: Minister, in your opening comments you mentioned that with the Ruby Creek mine, the Wuskwatim dam and the Nova Scotia LNG projects, in each case the federal work or environmental assessment lagged the province by about 18 months, two years, and one year, respectively. You can say, on the one hand, that that perhaps indicates not your conclusion that something is wrong with the federal process but that something is wrong with the provincial process — it is very light — and we certainly would not want to diminish the federal process down to that level; or, on the other hand, the provincial process is much more efficient, and the people there manage it much better and seem to work with it much more effectively.
We need to be looking at the problem that you have as a management problem because you are not managing these processes. These people work for you. You can tell them to start earlier. You can tell them to move more quickly. You can give them better resources so that they can do that. Why is it that you jump to the conclusion that something is inherently wrong with the environmental assessment process? Why is that the nut of the delay when it could simply be that you are not managing it properly?
Mr. Prentice: I think I am managing it properly. I reached the conclusion — I did not jump to the conclusion — after spending a great deal of time studying the problems with the environmental assessment process, frankly, that have bedevilled successive governments and ministers. I was concerned from the outset as to why it was not working. I was concerned that virtually every respected commentator in our country who has looked at the process has commented that it was not working. I was determined to find out why and to fix the problem.
With respect, I do not have the capacity to give instructions to someone at Fisheries and Oceans Canada or Transportation Canada or National Defence. The problem lies therein, namely, in diffused authorities across the federal government. As I said, a project comes in the front door and no one is responsible for the environmental assessment process; everyone is responsible for the environmental assessment process. It is not that the federal process has been more rigorous. Frankly, it has not been. It has been almost entirely duplicative of what the provinces are doing. It simply is invoked anywhere from a year to two years later and results in a process that is entirely duplicative. That is not in anyone's interest. It is not in the interest of the environment. It is a misallocation of resources, and I am of the view that these changes will fix that problem.
Senator Mitchell: If these changes can fix that problem by giving you more managerial authority, then why do you also need the power to scope projects — that is, to limit the range over which you will review a project? You cannot have it both ways, but you are arguing to make that case.
Mr. Prentice: I think you must have it both ways. If an agency in the federal government will be responsible for the assessment process, presumably it follows that they would have the responsibility of scoping what that process should be; otherwise, it is a non sequitur.
Frankly, that is the problem we had before. Across the federal government, multiple agencies had the authority to scope down a project. A project would come in the front door of the Government of Canada. The Minister of the Environment might have felt that that project required a comprehensive study; someone at Fisheries and Oceans Canada, DFO, at an official level, may have felt differently and could make a different scoping decision. We could have conflicting scoping decisions. Frankly, the biggest part of the delay within the federal system — at least a year of the delay — involved discussions by multiple departments on what the scope should be.
With these changes, that authority now resides with the Minister of the Environment to make an appropriate and a reasonable choice on scoping that would protect the environment. That decision needs to be made quickly when the project comes in at the front end so that we can begin the process of a proper, robust, science-based environmental assessment.
Senator Mitchell: Of course, you do not need that scoping power to make the scope bigger.
Mr. Prentice: That authority exists.
Senator Mitchell: Clearly, you are getting the scoping authority to make the scope smaller. However, we do not see the criteria under which you would determine how small.
My final question with respect to scoping will be quick. Climate change is huge. It is becoming increasingly important — not quite quickly enough in the minds of some, but it is getting there. With the emergence of huge projects again such as oil sands projects and power projects across the country, you would want to think that climate change effects, emissions, will be part of the environmental assessment process and not scoped out, if I can use that term.
Now that you will have all this authority over environmental assessments, can you give us your commitment that you will ensure that major projects of that nature will be assessed for their greenhouse gas emissions in a rigorous, comprehensive, effective way that will allow you to make good policy decisions about climate change initiative?
Mr. Prentice: I can assure you that the scoping provision will not be used to weaken the environmental assessment process. That is not the nature of this. The proper scope of an environmental assessment will always be an issue in any process. It is a central feature in any environmental assessment process because we have to decide how broadly based the study should be. It is a central feature, for example, in all American legislation dealing with environmental assessments. The provisions that are before you simply ensure that they are in the hands of a responsible party, namely, the Minister of the Environment, as a single source of decision making. The minister will have the responsibility to put guidelines in place as to how and when the scoping authority will be exercised.
I wish to emphasize something that has not been raised yet. These scoping authorities have been the largest source of litigation between Canadians and their government relative to the environmental assessment process. There have been criticisms of a lack of transparency in particular. These provisions are very transparent. It is built into the legislation that when a scoping decision is made, there is an obligation to make that decision public. If someone disagrees with it, they have their remedies at that point. Much of the criticism in the past has been that scoping was taking place behind closed doors with the public not necessarily even knowing what the scoping choice had been. These are responsible changes.
The Chair: Thank you, Mr. Minister.
Senator Baker: Minister, I hate to keep going on about scoping because I can imagine that people listening to us and watching us are now saying, "What in goodness name are they talking about, this scoping business?"
Senator Angus: It the same as a submarine.
Senator Baker: Yes, just the same as a submarine.
However, minister, therein lies the problem: scoping. It is not so much the scoping that is done after the procedures mandated by law are carried out, but it is the scoping that was done previously to scope the authority down — that is, to scope it so that you would not be required to do certain things that would be required if a comprehensive study was being carried out.
You say, minister, that you will not be scoping down an application so that the requirements of a comprehensive study will not have to be met. Surely that was the main question in the case that you cited of MiningWatch Canada. Surely that was the main issue being addressed by the court.
Was the responsible authority — namely, DFO in that case — lawful in determining that although the project was on the list, there need not be public hearings? By stating, in your conclusion, that you will not scope the authority down — that is, you will not scope down the projects on the list — are we not ending up with the same problem as before? That is, under federal law, you will be required to have public hearings similar to those required by provincial law, and you will have a duplicate of public hearings, the very thing that the Supreme Court of Canada, in an offhanded way, suggested was improper?
Mr. Prentice: First, it sounds as though you have also read the MiningWatch Canada v. Canada (Fisheries and Oceans) decision. I read it with some care. It was not a prescription of how the environmental assessment process should work. It has been interpreted as such by some people, but it was a more narrow assessment of the environmental legislation and the decision that had been made by an official at DFO and whether or not that individual had the authority to make the choice to scope down that they did. The Supreme Court of Canada simply said that they did not and that that authority did not exist in law.
It does not obviate the fact that someone has to be responsible for determining the proper scope of an environmental assessment, whether it will be narrow, broad or in-between. That choice has to be made by someone. Realistically, we cannot have an assessment process that does not have a scoping decision. These proposed changes ensure that a responsible person, namely, the Minister of the Environment, has the range of opportunity to fully scope a project and make a proper scoping decision, and to do so with public consultation and a non-duplicative process that will allow a full, robust environmental assessment process in a consistent and transparent way.
Senator Callbeck: This has come up before, and I want to ensure that my understanding is correct. On public consultation, I was concerned that if Bill C-9 passes, Canadians will have less opportunity to publicly indicate their opinions about any project that will be assessed. After listening to you, Mr. Prentice, my understanding is that this will not affect it at all.
Mr. Prentice: My point is that you have heard from witnesses who have said, in the context of comprehensive studies, that this will reduce significantly the ability for public consultation. That is not the case. I have been quite attentive to that in the bill before you to ensure that we have the same degree of opportunities for public consultation that we had before. The bill is quite clear in that respect.
Senator Callbeck: You said, "comprehensive studies." Is that the case in everything?
Mr. Prentice: The comprehensive studies I refer to are the projects that require environmental assessment. The bill before you also deals with what I would refer to as routine public infrastructure projects that have been expedited.
One year ago, we put in place a regulation that identified certain categories of routine public infrastructure projects that, based on our historical experience, did not involve negative environmental consequences. They might be projects for the betterment of the environment. We put in place a regulatory process that expedited those projects and did not slow them down with an environmental assessment. It worked successfully. We were able to construct public infrastructure projects quickly without any environmental issues or complaints. It has been so successful that we have built it into the proposed legislation. If there is a case where the environment is at risk, although it is a routine public infrastructure project, there needs to be an assessment. Out of an abundance of caution, we have built a safety net provision into the bill at clause 2153, proposed new section 7.1(3). It says that the minister, on any occasion, may designate a project as requiring an assessment even though it is on the exemption list. That is sound public policy.
Senator Callbeck: Is there anywhere, in any of these processes whether a comprehensive study, a joint review or other, that the opportunity for public consultation will be less?
Mr. Prentice: With the exception of the routine public infrastructure projects, which I have just described, the provisions in the bill do not reduce the opportunity for public consultation. They expedite the process, focus the decision-making authority and vest it where it properly should be with the environmental minister and the environmental agency. They do not reduce the opportunity for public input.
Senator Callbeck: My other question is on scoping, which has been talked about a great deal. You said that you can assure us that scoping will not weaken the environmental assessment process. That is fine while you are the minister. You have said that you care about the environment. However, how can you assure us that, 20 years from now, we will not have a minister who does not care for the environment as you care and determines in one project that scoping will be next to nothing?
Mr. Prentice: The assessment you need to make is whether the environment is better protected in the long term, irrespective of who holds the office of Minister of the Environment, by a scoping authority that is vested in the hands of that minister as opposed to a scoping authority in the hands of an official at another government department.
I would submit to you that the scoping authority is being placed where it should be and where it probably should have been all along: in the hands of the Minister of the Environment, whose responsibility is to protect the environment. He or she should be in a position to make the right choice, and there will be choices. With respect to how this will work over the long term, scoping will always involve a decision on someone's part of how narrowly or broadly scoped the project should be; and that is unavoidable.
Senator Murray: My first question is an interpretive problem that will betray my lack of understanding. Does the scoping authority provided to the minister extend to projects for which the Nuclear Safety Commission or the National Energy Board is the responsible authority?
Second, I noticed that the scoping authority of the minister may be delegated to a responsible authority. I know that there is widespread expectation that the present incumbent will do just that. You may want to comment on that. I believe you said that you are coming forward with a set of criteria or guidelines with respect to delegation. If I heard you right, what do you have in mind?
Mr. Prentice: You are talking about the confluence of the scoping decision and the delegation of authority. If I may provide a fairly circuitous response, the delegation of authority exists under section 43 of the CEAA. This provision was misinterpreted by some people following the announcement of the budget. There is no intent in the bill to broaden the jurisdiction of the National Energy Board or that of the Canadian Nuclear Safety Commission. Rather, the intent is to avoid duplication on the part of the agency over projects already within jurisdiction of the National Energy Board. Neither the National Energy Board's jurisdiction nor that of the Canadian Nuclear Safety Commission will change. Each has a jurisdiction expressed in their respective statutes that stays the same. We are trying to avoid a duplicative process.
The authority to scope rests with the minister, who prescribes the parameters, regulations and guidelines on that authority. That will apply to any delegation of the authority, including the delegation under section 43, which would be to the Nuclear Safety Commission or to the National Energy Board. They would not exercise their jurisdiction independent of the overall rules for scoping, if you will. That is how we would put the guidelines in place, but ultimately they will have to make the decision on scoping.
Senator Murray: However, you could do it for them.
Mr. Prentice: We could prescribe guidelines that they would be required to follow.
Senator Murray: That is with respect to the Canadian Nuclear Safety Commission and the National Energy Board.
Senator McCoy: Minister Prentice, I had to speak in the Senate, so I apologize for missing some of your comments.
My question for you is about the Canadian Environmental Assessment Agency and the resources it will have in order to undertake these expanded roles. I have a copy of your 2010-2011 Report on Plans and Priorities, section 1.2, "Planning Summary," "Financial Resources," which I took from the Internet, that shows what you are projecting for fiscal years 2010-11, 2011-12 and 2012-13.
It shows you are planning to go from a total of almost $30 million this and next fiscal year, and then I see a precipitous drop of $11 million to $17 million in fiscal year 2012-13, which is about one third less. In full-time equivalents, FTEs, in human resources you are projecting a similar drop.
If you are predicting that there will be fewer resources two or three years out, it is more difficult to accept an assurance that the agency will indeed have the clout now that it is the environmental czar.
Mr. Prentice: That is a fair question. Before you arrived, I made the point that if this authority is vested in the hands of the Canadian Environmental Assessment Agency, the agency must be properly resourced for this purpose. The budget of the Canadian Environmental Assessment Agency prior to 2007 was $16 million to $17 million. In 2007, an additional $11 million per year was allocated, bringing the budget of the agency up to approximately $29 million, which has been adequate to carry out its functions and to take on, in a preliminary or pilot way, the responsibilities that are at the heart of this legislation. We found that it has worked quite well. We did need to augment the agency's budget by $11 million to do that. It was part of a broader $20-million initiative in the government, of which $11 million went to the Canadian Environmental Assessment Agency. That $11 million was approved as a budgetary allocation for a certain number of years. The document to which you are referring simply recognizes the reality of allocated budgeted resources at this time.
I do not anticipate a precipitous drop in funding. The document reflects a drop three years from now, as you said, because we have not yet allocated the additional resources going beyond the three-year pilot project.
There is no intent on the part of the government to leave the agency in a position of taking on additional responsibilities without the resources to do so. We will ensure that it has the necessary resources. It does now, and it will in three years.
The Chair: Will we be getting figures from your officials that will help sort these numbers out for us?
Mr. Prentice: I think I just gave them to you.
The Chair: They did not sound the same as the numbers we heard earlier.
Senator Moore: We heard $60 million earlier.
Mr. Prentice: Let me give you the exact numbers. The budget of the Canadian Environmental Assessment Agency prior to 2007 was $17.5 million. It was augmented by $11 million, taking it to $28 million. That is the current budget of the agency. Pursuant to a cabinet directive that reaches its close in fiscal year 2013 —
The Chair: Unfortunately, we cannot chase down these numbers any further at this time.
Mr. Prentice: My officials will ensure that you receive all the figures.
The Chair: That will be very helpful. We must go to the Senate for a vote.
On behalf of the Standing Senate Committee on National Finance, I thank you, Minister, for taking the time to be with us.
(The committee suspended.)
(The committee resumed.)
The Chair: I welcome our next panel of witnesses. I apologize for the delay this afternoon; we had an unexpected vote in the chamber.
The focus of this meeting is Part 21 of Bill C-9 but we understand that there might also be some comments on Part 15. We have held extensive hearings on Part 15, but additional comments will be welcomed. Part 15 is on Canada Post and Part 21 is on occupational health and safety. Bill C-9 has 24 parts, so if you want to address other areas, I am sure honourable senators would be interested in listening.
Our first witnesses are Hassan Yussuff, Secretary-Treasurer, and Adam Hodgins, National Representative, from the Canadian Labour Congress, CLC. We will also hear from John Gordon, President of the Public Service Alliance of Canada, PSAC.
Mr. Yussuff, please proceed.
Hassan Yussuff, Secretary-Treasurer, Canadian Labour Congress: I believe you said that the committee has held extensive discussions on Part 15 prior to our appearance today. We are in your hands. We testified before the house on the same issue, and we are here to reiterate the points we made on Part 15. We could go through the testimony again, or we could submit the brief for your indulgence.
The Chair: Your brief has been submitted, so a summary would be fine. Are you familiar with Part 21 of the bill?
Mr. Yussuff: I am somewhat familiar, but my colleague may have more extensive comments to make on Part 21.
On Part 15, this budget bill seems to encompass everything but the kitchen sink. Canada Post is an important Crown corporation that provides essential services across the country in every community. Given what the government proposes in this bill, we believe that the proposed changes to Canada Post should have been severed from the bill and dealt with separately. The remail business is an important revenue generator for Canada Post. The changes proposed in the budget bill will affect Canada Post's ability to meet its obligations.
We recognize the importance of this institution with respect to the service it provides to Canadians, the cost and the use of the mail system across this country. Obviously, this will be challenged because of proposals in the bill. We recognize that the argument has been made to the government that this will not cause harm to Canada Post in meeting its obligations. We differ in that regard. We would simply say to honourable senators that this is an important matter. We value Canada Post and the essential service it provides to Canadians from coast to coast. Of course, we would like Canada Post to continue its exclusive jurisdiction over international mail. The courts finally passed judgment on the mandate of Canada Post and confirmed that this was an exclusive right of Canada Post.
The argument has been made by the remailers that the bill will have an impact on their business and might cost them jobs. That may be true, but, again, we believe that most of what has been done to date has been illegal under the current Canada Post mandate. Canada Post provides employment for many Canadians. Many of our affiliates are represented in this area. Canadians enjoy the benefit of Canada Post's service from coast to coast regardless of community size and business size. Canada Post is an important asset that we need to maintain.
This portion of Bill C-9 should be severed and dealt with separately. If the government chooses to change the mandate of Canada Post, we should have broad public hearings so that Canadians can appreciate what the government proposes. We would be more than happy to participate in such a process.
The Chair: Mr. Gordon, please proceed.
John Gordon, President, Public Service Alliance of Canada: Thank you, Mr. Chair and senators, for allowing us to come before you. I also apologize because, the same as my colleague, I was under the impression that we would be talking about Bill C-9. However, in our presentation, we do go into Part 21. I will go ahead with our short statement from the perspective of the Public Service Alliance of Canada, the union we represent, which has 172,000 thousand members, primarily in the federal public sector.
We believe that Bill C-9 is flawed in two fundamental ways. Bill C-9 continues the pattern of budget bills that are introduced as omnibus legislation covering many aspects of governance that have little or nothing to do with the budget per se. The position held by PSAC is that legislation that has little if anything to do with the budget should be subject to rigorous scrutiny by Parliament and not bundled together in omnibus budget legislation and subject to a confidence vote. In this short statement, I will highlight two specific parts of the legislative changes proposed in Bill C-9 that are critically important to our members.
Amendments to the Canada Labour Code outlined in Part 21 of Bill C-9 will, if adopted, eliminate any semblance of an independent and impartial appeal system when a safety officer determines that there is no danger in a work refusal case or in those cases where the safety officer has issued a direction to an employer to correct a dangerous condition.
I cannot express this point strongly enough. Workers are being injured and dying on the job all too frequently, and government owes it to all of us to legislate strong and effective health and safety legislation. Part 21 of Bill C-9 goes in the other direction and undermines workers' rights to refuse unsafe work. As a result, it should, at a minimum, be subject to more extensive scrutiny than it has received to date.
I would also like to add my voice to those who have appeared before your committee on Part 15 of Bill C-9 that will, if adopted, result in a partial deregulation of Canada Post. Bill C-9 marks the third time that the government has attempted to remove international letter mail from Canada Post's exclusive privilege. Should this provision be adopted, it will weaken Canada Post and undermine its ability to continue to provide services to Canadians. As a result, it, too, should be withdrawn from Bill C-9.
From our perspective, the second fundamental flaw in the Budget 2010 is the government's conclusion that the time is right to start the transition from economic stimulus announced in the 2009 federal budget to measures designed to pay down the debt that flowed and continues to flow from the stimulus package. We believe that restraining government spending at this time puts the economic recovery at risk. That being the case, we believe that modest tax increases are the more palatable option than expenditure restraint measures designed to pay down the debt. We take this position because expenditure restraint equals a reduction in services provided to Canadians by the federal government. Moreover, the federal public sector workers expenditure restraint equates to job loss, income restraint or a combination of the two.
Budget 2010 announced a number of expenditure restraint initiatives that will make it impossible for federal departments and agencies to provide the same level of service to Canadians that they have provided in the past. The 1.5 per cent wage increases in 2010 that federal public sector workers are to receive must now be funded out of departmental operating budgets. While the full impact of this measure has yet to be felt, jobs have already been eliminated in a number of federal departments and agencies. More job loss and program cuts are anticipated in the coming weeks and months.
In addition, the departmental operating budgets are to be frozen for two years beginning in fiscal year 2011-12. Over those two years, departments will experience a further decline in their operating budgets of approximately $900 million. Finally, the government has embarked upon an accelerated strategic review process that mandates at the outset of the review a 5 per cent expenditure reduction, no matter how efficient the department is or how important the service is that they provide to Canadians.
From our perspective, the three expenditure restraint measures that I have outlined are decidedly the wrong way to bring the federal budget back into balance. In total, over the course of the 2010 to 2015 period, more than $15 billion will have been cut from departmental operating budgets, which will result in real pain to Canadians who need and require services from the federal government.
That being the case, we believe that a modest tax increase is a more palatable solution. Most economists hold the view that the government's decision to reduce the Goods and Services Tax, GST, to 5 percent from 7 percent made little economic sense at the time the reduction was implemented. It is also noteworthy that had the GST cut not been implemented in 2009-10, the deficit would have been considerably smaller. As a result, we believe that the 200 basis points reduction in GST should be reversed or at least partially reversed to reduce the federal deficit over the next years.
As significant as the debt-inducing burden of the GST cut has become in the context of recession, it pales in comparison to the cuts in the corporate tax rate in Canada. We agree with those in Parliament who believe that curtailing these cuts is the right thing to do. At a minimum, the government should acknowledge that, in the current context, staying the course with corporate tax cuts is the wrong approach.
In closing, I would thank the committee for inviting me to appear before you to outline some of the concerns that the Public Service Alliance of Canada has with respect to Bill C-9.
The Chair: Thank you, Mr. Gordon. We appreciate your comments. They are wide-ranging and should give food for discussion.
Senator Gerstein: Thank you, witnesses. I thought I had finished speaking on Part 15. This morning I made reference to the fact that Part 15 has 20 words, and I believe that more attention has been paid to those 20 words in this lengthy bill than has been paid to any other section. I have to say, in the 20 words, there is absolutely no reference to privatization, restructuring, discontinuance of rural delivery, the thin edge of the wedge, slippery slopes or a secret agenda. As a matter of fact, there is no reference to any change from what is taking place at the present time, or what has taken place over, in fact, the last 25 years. There is absolutely no change, it is business as usual, continue the status quo. Mr. Yussuff, why are you so concerned about this? What do you think has changed?
Mr. Yussuff: We do not think it is anything other than the question I asked you, senator, about why it is in the budget. If it is the status quo, why is it in the budget? It is a fundamental change to the mandate of Canada Post with respect to the remailing business internationally. It is critical that we acknowledge that. Should the government chose to do that, they are entitled to do so, but they should have wide public hearings for Canadians to participate in the process to understand that it will have implications for Canada Post. That is our belief. You may have a different opinion, and I respect that.
Senator Gerstein: I respect yours.
Mr. Yussuff: If you want to hear my opinion, that is my opinion.
Senator Gerstein: You do recognize that there is no change, do you not?
Mr. Yussuff: There is a fundamental change. That is why it is now enshrined in the law of the budget. If there were no change, it would not need to be in the budget.
Senator Gerstein: You agree there is no change from what has been taking place in Canada Post for the last 25 years.
Mr. Yussuff: What has been going on is illegal under the law. The courts have clarified that it has been illegal under the law.
Senator Gerstein: They have stated it is not illegal. No one is performing an illegal act at the present time.
Mr. Yussuff: Again, we have a difference of opinion.
The Chair: That is a good way to start, with a difference of opinion.
Senator Baker: Mr. Chair, I will move to Part 21.
I am interested in your comments concerning this part. I do not know if you want to elaborate on them. You take offence to the clause saying that the minister will appoint the appeals person. Under the existing act, the minister designates someone. However, I do agree with you that this clause introduces a whole new Governor-in-Council regulatory process.
Would you agree with me that all of these clauses and changes point toward a basic change in that previously, under the existing law, a person need only appeal; but now, under this proposed new section, you give a notice of appeal. The word "notice" is inserted. Then, under proposed new section 146.2(2), an amendment says that the Governor-in- Council may make regulations, pointing out a number of things.
Do you agree that the basic change is a notice of appeal and then a whole new section on regulations to be made by the government?
Mr. Gordon: Proposed new section 146.1 also points out the powers of the appeal officer during the hearings. We are taking exception to shifting from the appointment process to giving the minister the responsibility to appoint. We think that will impede the impartiality of any tribunal that looks at any appeals.
Senator Baker: I notice the only reference in case law to this section concerns the inability of the unions and employees to seek a judicial review of a decision of an appeals officer. Did you consider that at all, or is it extraneous to the subject matter of the amendments here?
Mr. Gordon: Our folks have reviewed the entire bill, and we were troubled by a number of things. Another concern is that the new amendments require decision makers to issue a decision within 90 days of the hearing. Some of those are very complex, and some of those situations have to be investigated and require bringing in witnesses so that people can actually have some expert testimony. Ninety days may not necessarily give people the appropriate time to do that.
Senator, we had a very serious situation. One of our members was killed in a boiler explosion here just down the road. These are the types of things that happen.
I am using that as something that is in our face and is immediate. When people notice something is wrong, they must have an ability to say, "We cannot go in there because of these reasons. We want to investigate, and we want it done in a timely way." We think this may hamper that from happening.
Senator Baker: Mr. Gordon, I have one final question. In the last part of clause 2177, as you have pointed out, it says, "Section 146.2 of the Act is amended by adding the following after subsection (1)." Then it says, "The Governor in Council may make regulations, for the purpose of proceedings under subsection 146.1(1), respecting," and then it says, "the rules of practice and procedure."
To us, looking at the rules of practice and procedure is a very complicated matter. That is almost the same as a court proceeding when you have rules of procedure and so on that you are entering into it. Were you consulted? Do you know if the unions were consulted as to the intent of the government in allowing the making of new rules of practice and procedure for purposes of an appeal that will obviously affect the unions directly?
Mr. Gordon: I can say that, if we were consulted, I was certainly not made aware of any consultation process that took place with respect to this change.
I have to assume that, if there was any, it might have been an innocuous consultation, but it certainly was not a formal one that came across my desk.
Senator Tkachuk: I am looking for you to help me out with this remail issue. It is my first time at this meeting, and this is a very interesting topic.
Six years ago, could I have taken a truckload of mail from Regina, Saskatchewan to Minot, North Dakota and have sent it via the U.S. post office to clients in the United States?
Mr. Yussuff: You could certainly take it.
Senator Tkachuk: Could I have done it 10 years ago?
Mr. Yussuff: You could have done it, but again, it is our belief that, under the mandate of Canada Post, it is not legal.
Senator Tkachuk: I could have done it, and it was totally legal to do. I could have done it 15 years ago.
Mr. Yussuff: We do not believe it was legal, but you could certainly do it.
Senator Tkachuk: People were doing it. No one stopped anyone.
Mr. Yussuff: You are asking me a question.
The Chair: We are not picking up the translation because both of you are speaking at the same time.
Why do you not pose a question, and then we will get the answer?
Senator Tkachuk: Could I have done it six years ago, then?
Mr. Yussuff: You can certainly do anything you want in this country. As far as enforcing the law, it is a government responsibility to enforce the law.
Senator Tkachuk: When did the post office put a halt to remailers?
Mr. Yussuff: The issue was before the courts. I do not have the date here, but if my memory serves me right, it has been perhaps in the last four or five years before it ended up in the courts. The courts were obviously dealing with the matter.
Senator Tkachuk: Six years ago a person or a client could have gone to a mail prep house and dropped mail off in Minot from Regina. How much would he or she have paid per piece?
Mr. Yussuff: It is cheaper than what Canada Post would charge.
Senator Tkachuk: It was about 30 cents, if I am not mistaken. What would it have cost through Canada Post?
Mr. Yussuff: I am not sure what the costs of international mail are.
Senator Tkachuk: At that time, it was about a dollar.
The Chair: Senator Tkachuk, please let the witness finish.
Mr. Yussuff: It is fine.
The Chair: It is not fine for the rest of us because we are translating this.
Senator Tkachuk: Sorry; I apologize. Would it have cost about a dollar?
Mr. Yussuff: Let us assume that is what it was, yes.
Senator Tkachuk: The business person who is involved in marketing into the United States is sending out information about products, tourism or information that would bring jobs to Canada. Obviously, there is a reason to send the mail, and the reason to send the mail is to inform people in America about products that we produce here.
Mr. Yussuff: It is in Canada Post's mandate right now to do international mailing. It is very clear that is its mandate and responsibility. If the government wants to change that, we should talk about the implications for the broader service that Canada Post is mandated to provide. We believe it will have an effect because Canada Post has generated an enormous amount of revenue from this international mailing business. It is not its entire business, but it is a significant part.
We believe nothing is wrong with wanting to change the mandate of Canada Post. However, wide, public hearings should take place so that, at least, people could understand what the implications might be. We believe there will be implications if this mandate is taken away, if it is subverted or if it is broadened for others to participate.
It will have an implication for the profitability of the corporation to keep its other mandate to provide service right across this country.
Senator Tkachuk: If I have a fishing lodge in Saskatchewan or a chain of hotels in Canada and I am marketing in the United States, should I pay one dollar a piece? Would that not put me at a competitive disadvantage rather than paying 30 cents per piece if I can haul it down to Minot, North Dakota, or take it across from Windsor, Ontario to Detroit, Michigan so I could market Canadian goods and services? Would that not give me a competitive advantage? Is this not what we are trying to achieve here so that Canadian businesses can market into the United States and create many jobs by the people in the United States responding to the mail that we are sending out there?
Mr. Yussuff: You are asking me if you are running a business, what is the cheapest way you can operate your business. That is the question, and that is for you to decide. My response to you is that Canada Post has an exclusive privilege. We are arguing that it should maintain that exclusive privilege. Ordinary Canadians have to mail their international mail through Canada Post. I do not see why a company who chooses to promote their businesses and to profit from it should not be obliged to do the same.
Senator Tkachuk: Therefore, it is not for me to decide. I have to do it through Canada Post?
Mr. Yussuff: Yes, through Canada Post. That is the exclusive privilege Canada Post has been granted.
Senator Tkachuk: At a dollar a piece.
Mr. Yussuff: In doing that, it also has to provide services to all Canadians in every community across this country. That is part of its mandate. Whatever money is made from this part of the operation is used to provide the mandate of Canada Post through the entire country for every Canadian to have the same level of service.
Senator Tkachuk: We have a different point of view, chair.
The Chair: I can see that, Senator Tkachuk. Thank you.
Senator Ringuette: I certainly have a different point of view from my colleagues across because Senator Gerstein has said "secret agenda" and "privatization" and so forth. Actually, it is deregulation. An Ipsos Reid poll showed that 79 per cent of Canadians are against the deregulation of Canada Post. If you look at the mandate review that followed the first bill to remove the exclusive privilege of Canada Post, you can look at all the submissions — it is close to 1,200 — and every one of them said that they were against deregulation. Never mind; we see that to force this through Parliament, to have the minimum public input, it is in a budget bill.
I will move on to other issues in this 900-page document. My question is about to Part 21, the safety officer. When the officials of the department were in front of us, they indicated that they were changing the legislation because it seems that some colleagues were safety officers and some were doing the review. The officials of the department said that they did not want that. I specifically remember asking where they are located and whether they are in the same office, the same building and so forth. The answer we received from the officials was that they were not even in the same building.
From your perspective, is this a valid reason to change the legislation of the labour code and of safety, to remove a conflict situations between colleagues?
Mr. Gordon: Our concerns are that presently the Canada Labour Code has protections to allow workers to have situations addressed where they have safety concerns. The changes to the legislation will impact their ability to have that done, and that, for us, is a law.
The number of people who are officers looking at safety situations has already decreased over the past five to ten years by about 20 per cent; and the delays that are occurring in examining safety issues are on the increase. All of this will change the way that work is done.
We view the safety of our workers and our employees as important. I keep hearing from senior officials across government that they believe that too, yet here we have a piece of legislation that has come in a budget bill and will not get the scrutiny and the review that I think it warrants.
If there is to be changes to these laws to better help safety, let us have a full discussion about it and not put it through in a budget bill so that to vote against it is a non-confidence motion and the budget is affected by it. That, to me, is wrong. We have some serious concerns about it.
Senator Ringuette: Were you consulted about these changes to the Canada Labour Code?
Mr. Gordon: I was not consulted.
Senator Ringuette: Was your organization consulted?
Mr. Gordon: As I said previously, normally if anything happens where we have full consultation, I would be briefed on that, and I have not been briefed on any discussions that took place with respect to this. Sometimes a discussion takes place in a coffee shop or something similar. However, to me, that is not really a consultation that is there to ask our input into something that they want to put into legislation.
Senator Ringuette: On Part 9, concerning pensions, Mr. Yussuff, have you looked at the implication of Part 9 and the pension issues with respect to Crown corporation employees and to federally incorporated businesses? Have you had the opportunity to look into that?
Mr. Yussuff: To be honest, no, I do not think we did that in the congress. I think we were asked that question, but I do not believe we reviewed it in that context to make any comment on the bill.
The government had previously introduced changes with respect to protection around private plans and a number of regulatory changes, which we did support because broad public consultation took place with the Minister of Finance, and we were very much engaged in those. We supported almost all the regulation that he brought in with those particular changes.
Senator Ringuette: Okay, but what about these particular changes?
Mr. Yussuff: No, we did not review that part thoroughly.
Senator Ringuette: You did not review it. I guess you were not consulted either, is that right?
Mr. Yussuff: We have no comments on that, thank you.
Senator Neufeld: I will read a short excerpt from Moya Greene, the CEO of Canada Post. This was in response to a question:
For us it is a revenue risk of $40 million to $80 million of a total revenue stream of $7.3 billion. We will vigorously compete for that business. Just because a market is competitive does not mean that Canada Post is out of the game. Look at what we have managed to do in the parcel business. It is the most fiercely competitive business in the country, and we are by no means out of the game. We are in there ensuring that our share of the market stays with us. . . .
Mr. Yussuff, the president and CEO of Canada Post seemed to think that Canada Post would be very competitive and be able to keep a good part of the business, if not all of it. In fact, she had faith in Canada Post and the people that work at Canada Post. I said earlier today that I appreciate Canada Post very much. When I go for mail in Fort St. John, British Columbia the people are friendly; they do a great job, and we get our mail on time. I do not have any problem with it.
If the CEO is happy that people are very competitive at Canada Post, why are you not? Why do you need the shield of government to say that it is exclusively yours?
Mr. Yussuff: We value the broad service, as you do, that Canada Post provides from coast to coast across this country. We think it is an integrated part of the total corporation. You cannot look at one part without looking at the other parts. The exclusive privilege allows it to generate revenue. It is estimated to be about $80 billion. We do not know whether it will grow from anywhere in that range to triple that amount or even more than that.
I have no doubt about what Ms. Greene is saying. I think she honestly believes it. I do not expect her to say that this will fundamentally affect the corporation. I do not believe she would say that. We happen to believe it will have an impact over time on the mandate of the corporation. That is why we are here.
I am not prophesying. I am simply giving my opinion.
Senator Neufeld: If it does grow, the opportunity is greater for Canada Post to capture more of that market. Would you not say so? I think it is half of 1 per cent of the total revenue that we are talking about here, at the low end, when you think about the $7.3 billion.
Canada Post is a huge corporation that has been delivering mail for a long time. They have it down pat. They should have the market on that without a shield from government saying that it is exclusively Canada Post's without being competitive. I have no problem with competitiveness.
Mr. Yussuff: We take many services for granted in this country.
Senator Neufeld: I think we do, yes.
Mr. Yussuff: This is one of those. We appreciate it enormously regardless of where we live in this country, and your example is one that most Canadians would say that we value enormously.
Our concern is, over time as it loses the exclusive privilege, whether it would affect the mandate of the corporation to provide the service it currently provides. We have a concern that it will.
We believe, as stated by one of your colleagues previously, that there was a previous look at the corporation and its mandate. Without a doubt, Canadians said without any hesitation that they support the mandate of the corporation to keep its exclusive privilege and to keep delivering the mail from coast to coast. It is one of the things we take for granted. Some people do not believe this will have an impact. However, we happen to believe it might, and I guess time will tell.
Senator Neufeld: Well, polls are polls. I am sure that if you asked Canadians whether they appreciate Canada Post and want to see it remain, they might say, yes. However, as to whether Canada Post should be competitive for one half per cent of its total gross revenues, you might receive some different answers.
I want to leave that and go on to Mr. Gordon. We had government officials here, as Senator Ringuette said, explaining some of these changes. I am certainly not an expert on the labour code, such as you are.
As I understand it, this standardizes a small portion of what happens in the rest of the labour code, in a broad sense. Would that be correct?
Mr. Gordon: There may be, in a broad sense, some standardization, but the fact of the matter is in doing so, you are taking away some of the strength of a court. Instead of building on the strengths, they are weakening them.
I will give you one example of the bill. The new amendments obligate appeal officers to, in a summary way, without delay, inquire into the circumstances of the decision. The existing legislation requires that they also look at the reasons for their decision. They are weakening what the officers have to do. When you do that and when you are dealing with health and safety, there is no turning back when someone dies on the job or is maimed on the job; there is no turning back. We are saying to strengthen it, not weaken it.
Senator Neufeld: As I understand it, it is a rather common practice to have outside experts consider some of these appeals. I certainly do not want to talk about the death of someone because that is very unfortunate. I am talking about general appeals that take place and this standardizing. Were there five positions that were affected? If I remember correctly, when we had testimony from government officials, I think there were five or maybe six at the most.
Mr. Yussuff: Seven positions were affected.
Senator Neufeld: Those positions became redundant, but those people moved into other positions within, so there was no job loss for that. It was a standardization that is common and takes place in other parts of the labour code.
I appreciate your answer to that. Maybe you have something else you want to add to that.
Mr. Yussuff: To add a quick point to what Mr. Gordon is saying, currently, we have a tribunal process that hears the appeal. The amendments will shift that to individuals hearing the appeal. The process is yet to be determined. The minister will obviously provide some guidance and regulatory changes to encompass this new process. However, for all intents and purposes right now, a tribunal process deals with the appeal in its current context.
The point made by the department officials that came before you is that there is a perceived conflict of interest because the workers who are the inspectors and the workers who are dealing with the appeals are part of the bureaucracy. There are ample ways for dealing with those matters if there is a conflict. However, the point Mr. Gordon is making is that our paramount concern is that health and safety appeals are serious in nature, and it is about upholding the safety in the workplace when there is an appeal. For someone to make a decision, we are assuming the minister's guidance will be dealt with concerning how she accomplishes her task in appointing people with the required expertise and skills. However, we do not know what that process will evolve to become. The minister will obviously have to outline that.
Senator Neufeld: Thank you. I will put on the record that I believe government, myself. I am concerned about health and safety, too, very much so, with everyone that works for government or anyone. I do not think that is so much the issue as it is actually standardizing of process.
Senator Mitchell: In your written presentation, Mr. Gordon, you make reference to the Canada Grain Act. I was quite intrigued by that because we know that this government wants to do away with the Canadian Wheat Board. It was certainly in legislation that the government presented in 2009 but did not pass, and it raised some initiatives that many of us would consider to be a threat to the grain commission.
In your presentation, you point out that that piece of legislation could have resulted in the government firing many of its assistant grain commissioners. Do you see this bill, specifically clause 1662, as resurrecting that? Do we need to be concerned at this particular moment, in this particular bill, that they are trying to pull something that would weaken the grain commission and the great work it does for Canadian farmers?
Mr. Gordon: We believe they could not get the legislation through as just a straight up piece of legislation, so they have thrown it into an omnibus bill on the budget. Some senators have said that the amount of detail that is in this budget and the parts of the bill that you are dealing with are immense. This is one, we think, that they have tried through legislation and failed, and this is one way of getting it through without any further delay. We do believe that it is a sleight of hand.
Senator Mitchell: Mr. Yussuff, I am very sympathetic about a couple of concerns that have been raised. We are not supposed to use the words "slippery slope," but let me put it another way. Any argument that they have used to justify cutting this particular international remailing business out could be an argument to begin to erode other forms of business that they have. I mean, they can talk competitiveness there. What they continually forget is that, of course, where they make money in one area, they subsidize rural post boxes in places such as Saskatchewan where Senator Tkachuk comes from. I believe this government has closed 42 rural post offices since it has been in power, and it says that it has a moratorium on closing rural post offices. You have to watch them all the time. You cannot get up early enough to be able to watch what they might be doing there.
Are you aware of how much business there is in this international mail business? It is very hard to determine. The department did not know. Do you have an idea of what portion of that business the post office is currently doing?
Mr. Yussuff: No, I do not, to be factual. I do not have the numbers. If the CEO could not provide you with the numbers, I will be in a much more difficult position to answer that question. We do think, again, this is an important part of it. Granted that international mail has changed significantly over time because of other forms of communication, but the reality is that it still remains a significant part of the business and earns a great deal of revenue for Canada Post.
Senator Runciman: I just want to say, with respect to Senator Mitchell's allegation about closure of rural post offices by the current government, when I referenced a matter yesterday — I believe it was — about 50 rural post offices closed under the Liberal government, he asked me to provide the source of that, which I did. I provided the name of the individual and the organization, which is the Canadian Union of Postal Workers, CUPW. I would think that if Senator Mitchell is going to make those allegations, he should also be required to back it up with the rest of the committee.
With respect to the post office, I think we are all a little exhausted by this conversation. However, I am somewhat surprised to see the CLC taking the position it is taking on this, given the testimony that we have heard. You talked about impact. The impact on the post office by maintaining the status quo or the recognition of reality is really nil because that is the way they have been operating for 25 or 30 years, with no job losses.
However, if this legislation were not to pass, the impact on the private sector is job losses in the thousands. We have heard that testimony here. Many of those jobs would be in the print sector, also given the testimony we heard, and I would suspect that some of those jobs would be in unionized environments. I find it somewhat surprising for you to be taking this position. With PSAC, it is understandable. We are talking about the growth of the public sector by failure of this legislation to go through. From the CLC's perspective, I find it perplexing.
The Chair: Do you wish to comment on that?
Mr. Yussuff: If the senator asks me a question, I will respond.
The Chair: He is making a comment, and you may comment in return.
Senator Runciman: I have finished with that particular issue, so if you want to comment, feel free.
Mr. Yussuff: About job losses, let us be specific. I was before the House of Commons when the remailers appeared before the committee. When they were asked about the specific amount of business that will be lost if they did not get the proposed changes in the legislation, they could not point to it. They do recognize that they receive some business from the remailers, in envelopes, and the list goes on and on. We take all job losses seriously, but the reality is that Canada Post is also a corporation that provides an enormous number of jobs for people in rural communities, as it does in urban centres.
Senator Runciman: They are not in jeopardy.
Mr. Yussuff: To be fair, the question was asked of those who came before the House of Commons to give specific numbers on job losses as a result of this legislation, and they did not give specific numbers. They said that they employ many people.
Senator Runciman: I agree with you that they could not be specific. They said that it would be in the thousands. Canada Post was specific. They said that no jobs were threatened.
With respect to the Canada Labour Code, I am curious about some aspects of this. If someone is in a workplace situation where they are operating a valve, for example, and they feel it is a dangerous situation, they can walk away from it and an officer will come in to assess the situation and make a decision. Then there is a 30-day period within which the employee or the employee's representative has an opportunity, if they disagree with the decision, to appeal it.
What happens during that 30-day period? Does the individual still maintain the right to refuse to work in that environment?
Mr. Gordon: The right to refuse to work is up until the time the officer comes in and makes the assessment and says that by doing this, we can eliminate the safety issue if they find something. That is taken away. If the representative wants to appeal, then it takes a little longer to go through that process. As long as the workers themselves feel that they are threatened by that situation, they can refuse. There may be consequences to that, and they will have a redress mechanism.
When we think of these situations, sometimes it is in a heating plant or some other building. However, oftentimes people drive vehicles and feel the vehicles are not being maintained. It is the responsibility of the driver to say that it is not safe. If they are pulled over by a law enforcement officer who cites Ontario transport regulations and says that it is unsafe and that they should not be driving, then the driver is at fault.
I should not be specific because so many issues could arise.
Senator Runciman: If an appeal is launched after an officer makes a decision, does the worker continue to have the right to refuse to work during that period of time?
Mr. Gordon: It would be difficult for me to answer that question with a "yes" or a "no" because it depends on what actions had taken place and what the decision was. Was the decision to take a particular piece of machinery out of the way so that they do not have to do that and carry on? I do not know. To give a definitive answer to your question would be difficult unless you have a specific circumstance you want to put forward to me, then I will answer that.
Senator Runciman: The other side of this coin is that I suppose if you had an operation where the workplace itself is being affected by the decision of an employee, which could be perfectly correct to make, and the opportunity exists to resolve that situation in a timely way, that also has to be taken into consideration. If you consider an assessment being made by an appeal officer and then that appeal officer having three months to write a decision, in the interim period, the workplace could be in some jeopardy with respect to performing if there is a continuation of a right to refuse. That is what I am trying to get my head around.
The other issue is how provincial labour laws match up with what the federal government is suggesting here. I think Ontario has something comparable to what is proposed in this legislation. What is happening in the provincial theatre with respect to labour laws related to this right to refuse?
Mr. Gordon: I must say that I am not an expert, and I do not know what is taking place. I did not review the various provincial laws. We are dealing specifically with the Canada Labour Code. I can obtain the information for you about the nuances and differences between the various codes. Our technical experts have probably looked at that, but I have not.
Senator Mitchell: I have a quick point of order and clarification in response to Senator Runciman's aggressive allegations and his invitation to come back on it. It is much worse than even I thought, colleagues and chair. It is actually 55,000 post office boxes that have been closed under this government's regime. I am not sure that I could say that all of those were rural, but I bet a large part of them were.
Because, of course, the post office does not advertise in some discreet list which post offices it is closing, the fact is that our researchers conducted extensive research through a variety of sources and found 42. I could name some of them, if you like: Verwood, Rapid View, Main Centre, Liebenthal, Kelso, Kelfield. I could certainly name all 42 of them, if you would like. My point is that there is lots of evidence and it is certainly readily backed up.
The Chair: We will see that a copy of the list of all the post offices that have been closed is made available.
Senator Tkachuk: Will you table that? I am asking.
The Chair: I have five minutes left. We have three people who have not had a chance to pose a question, so I would ask you to try to keep your questions tight and we will proceed rapidly.
Senator Finley: One of my questions has been covered. I would like to say that anyone — including the CUPW, the NDP and Canada Post — who attempts to link remailing services to the protection of rural mail delivery or to privatization or deregulation is simply not stating the facts and is trying to fear monger. That is not from me; that is from Senator Ringuette's caucus colleague and fellow post office worker, Marlene Jennings, from, I believe, Hansard, May 6, 2008.
There is much controversy on this remailing issue. The fact is that the industry has said that it would lose several thousand jobs as a consequence. CUPW thinks they would lose a couple of hundred jobs, but they admit that they do not know anything about the business per se.
Does it not bother you that several thousand unionized employees or just regular human beings could lose jobs?
Mr. Yussuff: We have no doubt that there will be some job losses. The industry cannot state specifically what the number will be, and our opinion is that it will be in the hundreds rather than the thousands.
Of course it bothers me that people would lose their jobs, and that is something we should address. However, we believe that the jobs Canada Post provides through its mandate are equally important to defend and protect because we believe that Canada Post gives this country a unique feature. Canadians can enjoy the same service from coast to coast because of Canada Post's international mailing business.
Senator Finley: In 2007, the former president of the CUPW, Deborah Bourque, said that there was no decrease in their membership because of this competition. Earlier you said that you had no idea what size the business was, but you are saying that, in your opinion, the number would be more in the hundreds than in the thousands.
How do you come to that opinion if you do not know what the size of the market is, what Canada Post's part of the market is or anything else?
Mr. Yussuff: The business is currently guesstimated to represent between $40 million and $70 million. No one knows whether it would increase significantly with the proposed legislative changes. We assume it will increase. Otherwise, the push for legislative changes would not be as intense. I have to believe that they will generate more business than they are currently generating, and of course that will have an impact on Canada Post.
Senator Finley: Mr. Gordon, I believe it was you who said a couple of times that you were not involved, from a union point of view, in the remailing. You are aware that Canada Post Corporation, CPC, did an independent Canada Post strategic review, which they completed and published last year, I believe. Were you part of that? Did any of your unions participate in the consultations? We know that CUPW did, because they encouraged 23,500 postcards to be sent to the review panel.
Mr. Gordon: My understanding is that the component of PSAC that represents the workers at Canada Post was involved in that review. By extension, PSAC would have been involved.
Senator Finley: Are you aware that one of the very clear recommendations was that, from the legal perspective, this remailing issue be overturned and the independent remailers be allowed to continue fully in business?
Mr. Gordon: Are you asking about one of recommendations from the strategic review presented by the unions?
Senator Finley: It was in the final set of recommendations from the independent strategic review committee.
Mr. Gordon: I am going out on a limb here. They may have recommended it, but I assume that that would not have been part of the submissions put forward by the unions. We often make recommendations on matters ourselves, and they are not picked up. We hope they are, but oftentimes they are not.
Senator Finley: I am in the same position myself.
Senator Dickson: Thank you for appearing today and for your excellent presentations.
By way of background, I am from Nova Scotia, and I have deep roots in the union movement, particularly the United Mine Workers of America, UMW.
I will direct my questions to Mr. Gordon, and they will relate to paragraphs 47, 49 and 50 on page 10 of your brief. I have Part II of the Canada Labour Code, "Occupational Health and Safety" in front of me. Proposed new section 122(1) of the bill says:
"appeals officer" means a person who is appointed as an appeals officer under section 145.1;
Section 145(1) of the Canada Labour Code says:
The minister may designate as an appeals officer for the purpose of this Part any person who is qualified to perform the duties of such an officer.
The minister presently has the authority, so what is the problem with the clarification in the process? I want to be upfront. To me, as simply a senator, it seems that the amendments add greater specificity to the process and make it more favourable to the employee. There is power in here for an inquiry of unlimited length. The decision maker has 90 days after the inquiry to make the decision.
In Cape Breton, where I come from, a particular lawyer did many inquiries under the Canada Labour Code. I will not use his name because he is in the other place now making inquiries there. He was noted for never making up his mind. Is it not better to have someone who makes up his mind in 90 days after a just inquiry?
I think it is fairer — and I will probably be in trouble with my colleagues for saying this — I think it is in your favour.
Mr. Gordon: The whole change in process is that the minister will appoint. Appeals officers are already in place working for the government who are experts in the field, and they do the work. This change could very well, in certain circumstances, take the jobs away from them. People from outside of the public service could be appointed directly by the minister and given the responsibility to do this examination. We believe that that examination will not be as strong as that done by the officers who we believe should be doing the job.
Senator Dickson: I do not want to be argumentative, but on the other hand, the person who is chosen must be well qualified. The rules of natural justice say that court remedies are available to you to challenge if a person is not well qualified. I give due weight to your arguments, but I give due weight to my own as well.
This operates in your favour, so I would not be so strongly against it if I were in your shoes.
Senator Angus: I have the impression from listening to you gentlemen that you felt you were not consulted broadly enough on this legislation. Were you consulted, Mr. Yussuff?
Mr. Yussuff: No.
Senator Angus: I have here a copy of a press release from the Canadian Labour Congress, of which you are the Secretary-Treasurer?
Mr. Yussuff: That is right.
Senator Angus: It is dated October 27, 2009. It is titled, "CLC responds to Flaherty pensions announcement," and reads as follows:
An announcement by Finance Minister Jim Flaherty on regulations dealing with federally-regulated pensions is welcome. . .
Ken Georgetti, President of the Canadian Labour Congress said:
These changes result from consultations the government has held over the past year and some of them look good . . . .
I believe these are provisions in Bill C-9. Did they consult on only one part of the bill?
Mr. Yussuff: The senator asked me if I looked at the proposed legislation in the bill. With respect to the changes that Minister Flaherty proposed, we were fully in agreement with him.
Senator Angus: The point I am trying to make is not complicated. I am a great believer that, before governments propose legislation, full and frank discussion and consultation should take place with the stakeholders. It is usually done by way of white or coloured papers. I have been here for 18 years, and it always seems to happen. This would suggest that extensive consultations took place over a year between your union and the government.
Mr. Yussuff: On the broad private pension regulations, there were extensive consultations. We were highly involved from coast to coast and in direct dialogue with the minister. On almost everything he tabled, with the exception of one minor concern that we raised with him, we were in full agreement with him.
The Chair: Are you trying to make a large leap over 23 other parts?
Senator Angus: Not at all. I indicated that it was part of Bill C-9. Any credible person would find it hard to believe that they consulted on only one part of the bill.
The Chair: Do you think that Bill C-9 was a cohesive unit for the last year and a half?
Senator Angus: It was a joint venture between your folks and my folks.
The Chair: You have not been sitting here for the last three weeks. Senator Callbeck, take us home, will you?
Senator Callbeck: Mr. Gordon, at page 5, you raise the issues of strategic reviews. You say that there have been cuts to government spending in the amount of $1 million over the last two years and that we will have an additional $287 million based on the 2009 strategic review. I have asked several times in this committee for a list of those strategic reviews and the amounts that they entail. If the government saved $1 billion, could I see a list of those savings? I have never been able to get any information. Do you have any information on that?
Mr. Gordon: I do not have a list of where the money was saved. We have the dollar figure that they announced in the estimates on what they made in the first cut at the strategic review, but I do not have an extensive list of the various areas.
Senator Callbeck: You said that you have the first cut at the strategic review.
Mr. Gordon: It is in the estimates. I forget the total amount. I would have to go back to the estimates tabled last year after the strategic review that showed how much money was involved. Every year they come up with a list of departments. You have to go each department to see what and where they reduced as a result of the strategic review. I do not have that information.
Senator Callbeck: It is difficult to find, even when looking at the budget figures.
You also have expressed concern about the Canada Labour Code, the Canada Grain Act, the Canada Post Corporation Act, the Canadian Environmental Assessment Act and Atomic Energy of Canada Limited. You think that those aspects should have separate stand-alone bills and not be lumped in with the budget bill.
Mr. Gordon: That is correct. We believe that those elements have nothing to do with a budget bill and should be brought to the house separately so that scrutiny can be done independently of a large omnibus bill such as this one.
Senator Callbeck: I agree. At page 13, your brief says, "The public can comment on the project and the content, but the degree of consultation and what can be consulted about is substantially weakened." We heard from Minister Prentice this afternoon who said that the minister will have the authority to determine the scope. I asked him about public consultations and public involvement if Bill C-9 were to pass. I asked whether the public would have any less opportunity to voice their views on whatever project an environmental assessment was on, and his answer was no. You said that given the degree of consultation, Bill C-9 will change that.
Mr. Gordon: We believe that Bill C-9 will change fundamentally the way in which they do environmental assessments. That is why we believe it should be scrutinized in its own right rather than put in this bill. This budget bill has to pass, and these elements should not be in here. They should be delinked and discussed in a separate way.
These types of detailed issues could then be put under the microscope and fleshed out. Two years from now, long after the bill is passed, I do not want to find some details that we missed and should have picked up and challenged. That is what it is all about.
Senator Callbeck: I agree with you 100 per cent.
The Chair: Honourable senators, I have a number of names on the list for round two, but we will leave it at one round only. I thank our guests, Mr. Gordon, Mr. Yussuff and Mr. Hodgins, for appearing and sharing their views on Bill C-9. Thank you as well for staying beyond the agreed upon expiry time so that we could finish this session.
Mr. Gordon: We appreciate the opportunity to be heard. We understand that your first responsibility is in the Senate chamber.
(The committee adjourned.)