Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue No. 57 - Evidence - March 19, 2019
OTTAWA, Tuesday, March 19, 2019
The Standing Senate Committee on Energy, the Environment and Natural Resources, to which was referred Bill C-69, An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts, met this day at 5 p.m. to give consideration to the bill; and for the consideration of a draft budget.
Senator Rosa Galvez (Chair) in the chair.
[English]
The Chair: Good evening and welcome to this meeting of the Standing Senate Committee on Energy, the Environment and Natural Resources.
My name is Rosa Galvez, I’m a senator from Quebec and I am the chair of this committee.
I will now ask senators around the table to introduce themselves.
Senator MacDonald: Michael MacDonald from Nova Scotia.
Senator Mockler: Percy Mockler from New Brunswick.
Senator Patterson: Dennis Patterson, Nunavut.
Senator Neufeld: Richard Neufeld from British Columbia.
[Translation]
Senator Seidman: Judith Seidman from Quebec.
[English]
Senator Woo: Yuen Pau Woo from British Columbia.
Senator Simons: Paula Simons from Alberta, Treaty 6 territory.
Senator Mitchell: Grant Mitchell from Alberta, Treaty 6 territory.
Senator McCallum: Mary Jane McCallum from Treaty 10, Manitoba region.
[Translation]
Senator Pratte: André Pratte from Quebec.
[English]
Senator D. Black: Doug Black from Alberta.
[Translation]
Senator Massicotte: Paul Massicotte from Quebec.
[English]
The Chair: I also want to take the opportunity to thank Maxime Fortin, the clerk of the committee, and the analysts from the Library of Parliament, Jesse Good and Sam Banks.
Colleagues, tonight we’re continuing our study of Bill C-69, An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts.
Today we welcome, by video conference, from Iqaluit and representing the Government of Nunavut, the Honourable David Akeeagok, M.L.A., Deputy Premier of Nunavut; and Bernard MacIsaac, Assistant Deputy Minister, Economic Development.
Thank you very much. Thank you for joining us. I invite you to proceed with your opening statement, after which we will go to a question and answer period.
Hon. David Akeeagok, M.L.A., Deputy Premier, Government of Nunavut:
[Editor’s Note: The witness spoke in Inuktitut.]
Thank you for this opportunity to address the Standing Senate Committee on Energy, the Environment and Natural Resources regarding Nunavut’s analysis of Bill C-69.
Our government has closely tracked the contents of this bill since 2017. The Government of Nunavut notes that under this bill, Canada proposes to replace the current Canadian Environmental Assessment Act with the proposed impact assessment act; replace the current National Energy Board Act with the proposed Canadian energy regulator act; and amend the Navigation Protection Act and among other changes, rename it the navigable waters protection act.
First, the Government of Nunavut notes that the territory including the entire onshore is covered by a separate impact assessment legislation, the Nunavut Planning and Project Assessment Act. Section 7 of the federal act states that:
The Canadian Environmental Assessment Act, 2012 does not apply in respect of the designated area.
As Bill C-69 proposes to repeal the Canadian Environmental Protection Act, 2012 and replace it with the impact assessment act, the Government of Nunavut maintains that the Nunavut Planning and Project Assessment Act continues to supersede any other federal impact assessment legislation within the Nunavut Settlement Area.
Similarly, the Government of Nunavut understands that the proposed Canadian energy regulator act will not supersede our territory’s current environmental assessment legislation within the Nunavut Settlement Area.
Any potential interactions between the impact assessment act and the Canadian energy regulator act and Nunavut will be limited to assessments within the federal offshore, which are adjacent but wholly outside the Nunavut Settlement Area.
However, the Government of Nunavut notes that offshore oil and gas resources are of current interest in negotiations surrounding the devolution of the lands and resources from the Government of Canada to the Government of Nunavut. Despite jurisdictional lines, Nunavummiut are impacted by the development or lack of development of the adjacent offshore area.
For the committee’s consideration, the Government of Nunavut provides the following comments regarding the offshore assessment regime proposed under the bill.
One: The Government of Nunavut supports the intention to improve consultation for critical resource development, infrastructure and energy projects. The full involvement of potentially impacted communities helps ensure that the rights of Canadians are upheld at all stages of the development process. Having this involvement occur within the regulatory process could also help improve investor confidence in Canada and Nunavut by contributing to a more predictable process.
Two: The removal of the “directly affected” standing test implemented under the Canadian Environmental Assessment Act, 2012 is a meaningful step towards reducing barriers to participation in the impact assessment process. This is particularly important for regional and community-level organizations. The Government of Nunavut will seek standing in federal assessments of projects adjacent to the Nunavut Settlement Area and will support Nunavut regional and community organizations within the territory to do the same where relevant and necessary.
The Government of Nunavut supports the requirements for any existing strategic and regional environmental assessments to be factored into the decision-making for project-specific impact assessments. The Government of Nunavut applauds the new requirements to include Indigenous traditional and local knowledge in the decision-making process.
The Government of Nunavut notes that considerable uncertainty exists with the proposed acts. In particular, we note the proposed impact assessment act and the Canadian energy regulator act include three complicating factors: additional consultation requirements, the requirement to factor in gender issues and the requirement to factor climate change into impact predictions. These additional requirements may muddy or lengthen the processes, potentially leading to a reduction in investor confidence in Canada and Nunavut. If this potential uncertainty is felt, this reduction will be most apparent in the early days of the new regime before precedents make it clear how these factors are intended to be applied.
For these reasons, the Government of Nunavut will continue to closely monitor the progress of Bill C-69, and the successes and challenges of the proposed acts.
Finally, the Government of Nunavut will identify itself as a key stakeholder in all impact assessments that take place in the offshore adjacent to the Nunavut Settlement Area to ensure that the rights and interests of Nunavummiut are heard in federal assessment processes.
Qujannamiik. Thank you. Quana.
The Chair: Thank you very much, sir. We will go to questions, but we will keep them to three minutes. I will ask senators to keep their preambles short.
Senator MacDonald has asked me to give his turn to Senator Patterson.
Senator Patterson: I’d like to thank Deputy Premier Akeeagok and Deputy Minister MacIsaac for being here today. I would also like to thank you for having input into Bill C-55 before another committee. Your support for the Senate’s work is appreciated.
We have a made-in-Nunavut regulatory regime. In my opinion, I’m grateful that we don’t have to deal with Bill C-69 or CEAA, for that matter. We have 85 per cent Indigenous people in Nunavut. They are active participants in our regulatory process. There’s a co-management process, involving the three levels of government. The regulatory bodies in Nunavut are chaired by Inuit, and no one would say that Inuit don’t have good input into the regulatory and licensing process in Nunavut.
First, I’d like to ask you this: You have four mines running now in Nunavut, and a fifth is soon on the way. These are complex operations in a very fragile, sensitive environment. How is the regulatory process working in Nunavut now that it’s some 20 years in the process? What’s your government’s view of how the regulatory process is working?
Mr. Akeeagok: Thank you, Senator Patterson. Thank you for your ongoing engagement with our government when it comes to these certain bills, Bill C-55 and Bill C-69. You and I had personal discussions on this, and I thank you for your continued engagement and for looking after Nunavut’s interest, too. I want to acknowledge that.
This is our 20-year anniversary as our territory. As part of the land claims, there’s the creation of our environmental assessments that took place well before Nunavut Planning and Project Assessment Act. Long before that came into place, we had existing co-management bodies, particularly the Nunavut Impact Review Board and the Nunavut Water Board. Both are appointed jointly by the government and Inuit, and those two independent organizations have been reviewing and assessing these very complex projects that are brought before them.
Through that, that’s been a good working relationship and something we’re proud of. I could see a bit of Bill C-69 incorporated in that. In my opening comments, I did mention and acknowledged some of that. I would say we’re doing very well when it comes to that. Basically, with those two boards, they go from A to Z, and nothing gets left out; all the input gets in, and decisions get rendered by the federal minister.
Senator Patterson: Thank you for that. The regulatory process in Nunavut is something we can be very proud of.
The difference between the Nunavut regulatory process and Bill C-69 is that the Nunavut regulatory process — and by the way, the committee did hear from the Nunavut Impact Review Board — the Nunavut regulatory process actually epitomizes the mantra “one project, one review.” Unlike Bill C-69, the Nunavut process is one project, one review. It’s the same regulator that does impact assessment, licensing and life cycle monitoring. There’s great merit in that, and it’s obviously working in Nunavut.
Do you believe that having the same regulatory body doing impact assessment, licensing and setting up the conditions — there are over 200 conditions for the Baffinland Iron Mines Corporation in the High Arctic — and then monitor the respect for those conditions; that having one regulator do the three — impact assessment, licensing and life cycle monitoring — is a good way to go and is working well?
Mr. Akeeagok: Yes, I do. I agree that it is working well and is something we take pride in when it comes to what has been developed here in the territory.
Could it work in other parts of the country? I would think so. For our processes, the land claim allowed the Inuit and government to take ownership of both of those organizations, and through that, there’s a strong confidence in their independence. So when it comes to this, the one we’re watching for Bill C-69 is if there’s going to be any adjacency projects that are happening. That is the same type of model we would like to see take place if it’s outside of the Nunavut Settlement Area.
Senator Patterson: In closing, Madam Chair, unfortunately, Bill C-69 splits impact assessment, licensing and life cycle monitoring. It’s not as effective and efficient a model and it’s not one project, one review. Nunavut has shown the way. I wish the federal government had followed. Thank you.
Senator Mitchell: Thank you very much. It’s nice to have you here by video. It would have been nice to have you here in person as well, but it’s great that you’re here.
I’m very interested in your opening remarks that you see Bill C-69 as supporting your efforts to improve consultation for major projects in the offshore area. You noted that:
Having this involvement occur within the regulatory process could also help improve investor confidence in Canada and Nunavut by contributing to a more predictable process.
I wonder whether you could elaborate to some extent on why you believe that this involvement of potentially impacted communities would actually improve investor confidence and increase predictability. That’s an important thing.
Mr. Akeeagok: Thank you for the question. From our perspective, what we’ve been delivering for the last 20 years and now have four major projects on the go, it has given the public process the confidence and the certainty. What we’re also hearing is that we need to make sure our assessments are defined in order to have that certainty.
Through my comments, what I was trying to relay is that we are inclusive going from the communities right to the industry. If there are going to be any changes and if there’s going to be any development adjacent to the territory, we need that level of certainty.
Thank you.
Senator Mitchell: Thank you very much. Senator Patterson pursued this idea that somehow the most efficient way is to have — I don’t know what words he actually used, but the same people.
Senator Patterson: One project, one review.
Senator Mitchell: It was before that, because this was one project, one review, but the same people who review the project in the first case set the conditions and then regulate it for the next 50 or 60 years. That’s more efficient, but there’s another way of doing this and, in fact, Alberta’s energy regulator splits the two functions. The review and the adjudication, as it were, and the setting up of conditions is the first function, and the second function is the policing of it. There are those who would argue there’s a direct conflict to have the people who are judging it to then be the people who police it. It’s almost a component now more and more of the rule of law, if you were not to put too fine a point on it.
Would you see that there is something to that, in fact, there is an inherent conflict if you have the same people saying this is the way we approve the process and these are the conditions, even if, maybe, especially if they made a mistake in the first case, they’re not going to be as quick in regulating it to say, “We made a mistake, we had better do something about that?”
Mr. Akeeagok: From our perspective and from what I’m used to is having our impact review bringing conditions and bringing it to the federal minister for approval, and then regulating it. I think how and why it really works is that it begins right at the start of the board making sure there are sufficient resources and that the right board is in that place.
I don’t see an issue on the splitting of the assessments. I’m not too familiar with the southern way. But from Nunavut, I think it’s a testament, that for the last 20 years Inuit and government working together and identifying that that’s the body which is going to do this. Having that level of agreement and incorporating it in the federal legislation and territorial, I think that has worked.
Thank you.
The Chair: Could you please turn down your cellphones? Thank you.
Senator Neufeld: Thank you for being here today.
In your impact review process, how do you include people in that process? Would it be all Inuit in your settled area, or would it go further afield?
Mr. Akeeagok: Thank you. All the processes are public. Whenever there is a project that’s being proposed, whether it’s the water board or the Impact Review Board, does a public call out. Then any public body can present and propose while the board is reviewing the project.
Senator Neufeld: So a public body from anywhere, let’s say from British Columbia, could come and present? Is that what you’re saying? Or is it more within your territory or those people that are affected?
Mr. Akeeagok: One of our major contributors during these public processes have been organizations like the World Wildlife Fund, which operates throughout the world. They have a spot in there. The Inuit have their own spots. Our government goes through that with any of the individuals. Typically, it’s organizations and bodies such as our hunters and trappers organizations that come out and speak, especially where the communities are close, and our municipalities and individuals. There are a number of presenters.
When it comes to federal departments, their major works projects come together and make their presentations, regardless of which federal departments will be impacted. Within our government, we do that too. We bring in our teams and make those presentations.
Thank you.
Senator Neufeld: Thank you.
The Chair: Minister, you have mentioned that you are going to follow how Bill C-69 performs. You have mentioned that you appreciate some of the new features, such as the gender analysis, the climate change, probably the cumulative effects and also the removal of the “directly affected” standing test.
Do you think that in the future you could add these features to your own legislation?
Mr. Akeeagok: As I noted, we’re going to pay close attention to this. Currently, as we’re in the middle of devolution negotiations, the federal legislation does apply. The Nunavut planning and project assessment is federal legislation that applies to our assessments. It is through that lens that we will continue to monitor.
As you know, we’re a brand new territory and we always look for best practices, so if there are practices that we need to improve, we try to apply that.
Thank you.
Senator Mitchell: You said in your presentation that uncertainty will exist within proposed acts to some extent. But at the same time you’ve said that there are some advantages in this act for creating greater certainty, so it seems to me at least there’s a saw-off.
I’d like to address one of the elements that you point out, the requirement to factor climate change into impact predictions. It’s true that climate change impacts are most pronounced in the North where you live and they’re already affecting the culture, livelihood, economics and livability of much of your region. At least it is becoming more significant.
Are you aware that this bill would require no assessment of downstream greenhouse gas emission assessment? And to the extent it would require assessment of the impact on climate change, it’s really just saying upstream and that would largely be for pipelines? Have you given some consideration as to what exactly that means and how that would actually delay a review of a project?
Mr. Akeeagok: Thank you. I haven’t reviewed it in that context. It’s one that, as I mentioned, we will monitor, especially in areas of climate change. It’s not in our legislation, but it’s one that we continue to monitor and I thank you for acknowledging that we are impacted as a result of climate change. We live and breathe it right now. What I mentioned is that we definitely are going to be monitoring this legislation if it goes through. If there are certain things that are working, then I think this might warrant looking at our own legislation and the federal legislation that impacts us.
At this point, I have not gone into that level of review for our impacts. Thank you.
Senator Mitchell: Thank you very much. Another element is the requirement to factor in gender issues. This is a requirement that’s undertaken proactively and voluntarily by many proponents. We wouldn’t be surprised to know that they do. They’re good companies, good people, they have concerns about gender equality and so on.
Would it be your concern that gender issues and what that requirement means just hasn’t been defined clearly enough yet? Would it be that it could be defined through regulations or strategic assessments, that kind of process, that might relieve your concerns in that regard?
Mr. Akeeagok: Yes, we have a strategic environmental assessment taking place right now. My assistant deputy minister made a presentation to the Nunavut Impact Review Board this morning on it. Through those strategic environmental assessments, we can start defining those and give certainty. One of the things that I noted is that when there is a lack of investor confidence, we are impacted the fastest because our projects are high cost and in an environment that is much different from the South. Whenever there is an impact in the South on investor confidence, it has a huge impact on us. That is one of the things I always try to relay.
Uncertainty creates lack of certainty. That was my message for this committee. Thank you.
Senator McCoy: I apologize to our witnesses. Sorry for being late. I got captured in the Chamber.
I have a question or comment for clarification and a question for our witnesses. Thank you very much for being here.
First of all, a clarification. Senator Mitchell, you just said that this legislation stipulates that only upstream emissions, GHG emissions, will be considered. Could you please identify the section of the bill where it is stated that clearly?
Senator Mitchell: You’re asking me?
Senator McCoy: Yes. You stated that this legislation applies only to upstream GHG —
Senator Mitchell: I don’t know that I’m a witness, but I’m happy to answer. In the legislation nowhere does it mention upstream or downstream emissions.
Senator McCoy: Thank you very much. You didn’t say it that way. That’s the clarification needed.
Senator Mitchell: The only place it’s mentioned at all is in the regional assessment booklet —
Senator McCoy: I just wanted to make sure —
The Chair: Senator McCoy, could you ask your questions to the witness, please?
Senator McCoy: We had the benefit of listening to the Nunavut Impact Review Board some weeks ago and we’re very impressed with their accomplishments and their handling of various approvals with many major projects. One of the things that emerged in our conversation with them is that in Nunavut you have managed to develop a consensus among all of your people, young and old, in all of your communities, as to building a sustainable future which includes development, on the one hand, and preserving culture, religion and tradition on the other.
I wonder if you would care to expand on that for our benefit.
Mr. Akeeagok: Thank you, senator, and thank you for allowing me to say a few words. On both the Nunavut Impact Review Board and the Nunavut Water Board I think the people who negotiated the Nunavut land claims had the foresight in trying to balance, knowing that the government shall exist and the Inuits shall be here. I think through that collective negotiation they opted to create boards that are equal. Half appointed by Inuit, half-appointed by the government, and “government” is defined as federal or territorial. Through that, the boards are born and are given the level of autonomy as an institution of public government. Through that and through their rigour and review, and allowing for the public process to be open to anybody that wants to make any comments. Other reviews are public and they weigh in on a lot of things and they try to find the balance, as you mentioned. Myself, as a fellow Inuk, we strongly believe that we need to protect our environment and have development. We try and balance that. I think through having input from community levels, from individual levels to the territorial government level, a good balance has been struck. I applaud the Nunavut Impact Review Board and I’m glad that, as senators, you were able to hear from them. Thank you.
Senator Patterson: The Nunavut Land Claims Agreement Act establishes the Nunavut Impact Review Board with a very clear, simple and comprehensive mandate. Unlike Bill C-69, which sets up 20-plus criteria for reviewing projects, most of which have yet to be defined and are ripe for litigation risk.
You’ve said in your submission that you’re concerned about what you call considerable uncertainty that exists within the proposed bill. And you mention three complicating factors: The additional consultation requirements, the requirement to factor in gender issues, and the requirement to factor climate change into impact predictions, and this could muddy or lengthen the process.
What we have in Nunavut under article 12.2.2 of the Land Claims Agreement is a simple mandate for the Nunavut Impact Review Board to review the ecosystemic and socioeconomic impacts of project proposals. Now, that’s under 10 words instead of 400-plus pages and 20-plus prescriptive conditions.
I’m just wondering: Do you think that investor confidence and — first of all, do you think that ecosystemic and socioeconomic impacts of project proposals would cover all the factors that a board might want to consider in reviewing a project, including gender and including climate change? And secondly, would your concern about investor uncertainty be diminished if we had a simple definition of the criteria like it is set out in the Nunavut Land Claims Agreement Act, reviewing the ecosystemic and socioeconomic impacts of project proposals?
Mr. Akeeagok: Qujannamiik, Senator Patterson — and thank you for this. For the socioeconomic part of the Nunavut Agreement, which has worked for us and that’s something that has been worked and been discussed through their processes and having been able to get a buy-in from the public and from government and from industry. It is through that that I think it is a testament that we do have projects. I also want to state that some projects did not proceed because there were community concerns. It is through that socioeconomic side that the communities look at it and review it and make strong suggestions and recommendations to the board, which often the board listens and puts it as part of their conditions for that.
For the industry confidence, what I want to stress is that there are, as I mentioned, those three that we highlighted. If there is any uncertainty — and I’ve heard this from our industry — if there’s any uncertainty in terms of the assessment, then it becomes harder for them to invest. They’re going to go somewhere else and that’s our worry. What we are trying to produce through that socioeconomic is a good corporate citizen that would come and help develop our territory and allow Canadians from this fine territory to start contributing to the rest of Canada. Thank you.
Senator Patterson: Hear, hear. Well said.
The Chair: I have a question. I wanted to ask you if you can walk me through a typical mining project in the North, in Nunavut. I am sure there are some gold mines. I know that the production of residues from mining projects, it’s enormous. For example, in the case of gold you have to use cyanides, but to treat those cyanides in the South you need extraordinary amounts of peroxide. I’m wondering in the North how you deal with attenuating these real impacts that come with the metallurgical process and the production of residues and if you have enough people to go and check on the impacts and the attenuation, what the company said they were going to do?
Mr. Akeeagok: Yes, thank you very much. It takes a long time from exploration to a mine. I think one of the things that we’re seeing as one of our very own people that lives in Nunavut has started staking and is now in full discussions with one of the gold mines to start developing the land that he staked. So we’re starting to see that. It used to be we got everything — somebody from the South would come in and start exploring and start — I think a lot of that does take place, but once you start getting into the regulatory side, I think a lot of them is through our public process is allowing every department, regardless if it’s federal or territorial, that opportunity. And also from the community sense, to start identifying the concerns.
I think there are very good rigorous environmental assessments that get done by the person or the company that wants to develop that land. Through that, there’s already identified basis. So if there’s a big caribou herd that comes in that area, then that starts getting flagged. Rest assured, through this process if there is a lot of caribou in that area you’re going to hear a lot from the hunters’ and trappers’ organizations from our communities and from our Inuit in terms of the need to make sure there is a certain level of protection in that area.
What comes out, as Senator Patterson mentioned, for Baffinland, which is an iron ore mine, there are currently 200 terms of conditions that the company has to adhere to. And it is through those that the company agrees and the Inuit agrees. If it’s on Inuit-owned lands, there’s an Inuit Impact and Benefits Agreement that states, yes, we will be monitoring this. If it’s on Crown land, which we would get involved, we would also have our own terms of conditions and monitor jointly.
I think there’s a lot of bilateral monitoring that does take place and a lot of acceptance from the industry and acceptance from the Inuit and our communities. It’s a web of having to collaborate with each other. It is a lengthy process. The industry knows it’s a lengthy process, but it’s one that once they commit, they start building.
One of our gold mines that just opened up, I think they’ve invested over $1 billion on their infrastructure. That includes their monitoring and their commitment to training. So you see once there is confidence, then you can start seeing the industry come, and everybody respects this and respects the process. Thank you for allowing me to elaborate on this, Madam Chair.
Senator Mitchell: You mentioned in your presentation that your support — and actually you say you applaud the new requirement to include additional traditional and local knowledge in the decision-making process. I’ve heard from many Aboriginal-Indigenous groups and others that this is a very powerful and important part of this bill. So I’m very interested that you support it in the way that you do.
Could you give us some further insight into why you feel this is so important, how it’s integrated successfully along with a parallel scientific knowledge regime, perhaps in your own review structure, so that we can get some insights into how it works or how you feel it could work?
Mr. Akeeagok: Thank you. It is important and an integral part of our assessments and review when it comes to any of our projects within Nunavut. We recognize and accept that Inuit have been here and do hold the knowledge. Through these processes and through our land claims there has been a huge step in terms of accepting Indigenous knowledge and balancing that with science. It is through these co-management regimes that both are allowed to make those presentations and they merge and are given that opportunity. That fills both of the gaps. Once you start leaning on one way too much, then you don’t have that equal balance. With our assessments it’s balanced and this allows us to fill the gaps, so everybody understands that there will be an impact. Any development will have an impact, so we need to ensure those are looked into and we listen to Inuit, or Indigenous people in the case of the South, and that strikes a nice balance. I think having seen it here has been a good step forward. Thank you.
Senator Mitchell: Senator Patterson asked you an interesting question and he identified that it seemed the criteria that are considered under your process are defined as eco-systemic and socioeconomic. That seems to me to be infinitely broad. Compare that to section 22 of Bill C-69, which has 20 specified criteria, and they can be further clarified and they will be in the tailored guidelines and so on under the Bill C-69 process.
In your process, do you follow steps wherein this infinitely broad spectrum of possible potential — who knows it, let’s guess — elements might be considered, where those are refined further for the proponent before they approach their impact assessment process?
Mr. Akeeagok: Yes, and thank you for that question. We do. When there is a project we do some scoping and guidelines when it comes to certain areas and certain projects, depending on what the project is. We start mapping that out so everybody can be focused when it comes to those projects. That helps with our timelines and it becomes more relevant. Each project and each development may have different consequences. So we think through our processes, and although it’s broad, we’re able to narrow it down by collaborating with each other. Thank you.
Senator Mitchell: So that kind of scoping actually doesn’t increase uncertainty, it actually defines certainty and that’s exactly what will happen in Bill C-69.
The Chair: Thank you very much, minister, for your testimony and answering our questions. And thank you very much, colleagues, for your questions.
We now welcome, from Stantec, Ward Prystay, Senior Vice President, Environmental Services; and from Golder, Wayne Speller, Principal, Senior Regulatory and Impact Assessment Specialist; and Jill Baker, Senior Environmental and Social Assessment Specialist.
Thank you for joining us. I invite Mr. Prystay to start with your opening statement.
Ward Prystay, Senior Vice President, Environmental Services, Stantec: Thank you. Before I start I would like to acknowledge that we are on the traditional territory of the Algonquin Anishinabeg people. Our environmental services practice in Canada includes approximately 1,400 staff. We undertake environmental assessments in every province and territory across the country for both government and private sector clients.
I’ve been working in the environmental field for 24 years. The majority of my career has been focused on federal and environmental assessments. Stantec is a multidisciplinary firm that provides planning, environmental, engineering and architectural services globally.
In the past seven years, Stantec has been involved with more than a quarter of the projects that have been subject to the Canadian Environmental Assessment Act, 2012. This work has ranged from the management and preparation of complete environmental impact statements to providing peer review of work completed by others.
Our practitioners have also developed training material and guidance documents on behalf of governmental organizations, including the Canadian Environmental Assessment Agency, and one of my colleagues is currently a member of the multi-interest advisory committee on the environmental assessment modernization process.
In this role as professional assessment practitioners, we provide independent, third party consulting services to collect, analyze and present environmental and socioeconomic information that government agencies need to make balanced decisions. Much of this work is completed by colleagues working under ethical guidelines of professional organizations. Personally, I am a registered professional biologist with the College of Applied Biology in British Columbia.
We have been following the public discourse on large environmental assessments across Canada and tracking the proposed changes to the federal environmental assessment processes. In 2016 and 2017, we provided formal submissions to the Canadian Environmental Assessment Agency, NRCan and the Expert Panel for the Review of Environmental Assessment Processes. The comments we provide today reflect our opinions as professional assessment practitioners.
With respect to Bill C-69, I’d like to start with some of the positive changes we see. First, there will be more time at the start of the assessment process to thoughtfully establish the scope of the assessment and content of a proponent’s environmental impact statement. This should benefit all participants as it will provide greater certainty in the assessment requirements and, hopefully, the timelines.
Second, there will be greater opportunities for Indigenous participation. This should provide improved transparency and confidence in the assessment decisions if the affected Indigenous communities participate in the scoping and the review process.
With respect to areas of improvement for Bill C-69, Stantec’s practitioners have identified both general and specific concerns regarding the proposed legislation. Some of these include an increased duration and uncertainty of regulatory schedule given the addition of the discretionary timeline extensions and expanded factors for government to consider; increased uncertainty associated with the interpretation and methods for defensible assessments for certain effects, primarily sustainability, climate change and the interaction of sex and gender; increased costs for all participants in the assessment process due to longer timelines and additional factors to consider in the assessment; and the need for additional clarity in some definitions of the impact assessment act.
I have a few specific recommendations for the committee’s consideration. With respect to the impact assessment act, details are important. Proposed section 7 of the act prohibits a proponent from undertaking work or activities that may result in environmental effects on federal lands or within areas of federal jurisdiction prior to a decision. This language can be interpreted in a manner that would prevent activities necessary during the early planning of a project, for example, development of access roads to greenfield sites, undertaking investigative engineering studies such as geo-technical drilling or test pile programs, or even conducting baseline fish habitat surveys using equipment such as tangle nets or electrofishers. Any one of these, or similar activities, could result in a prohibited effect.
Stantec recommends that proposed section 7 be revised in a manner that clearly focuses the prohibition on construction activities, not planning or investigative studies and activities needed to advance the design or regulatory processes.
The act also sets out timelines for various stages of the assessment process. For proponent timelines, the act allows for a one-time extension; however, for government timelines there are provisions for any number of extensions, making the legislated timelines questionable regarding improved certainty and efficiency.
The Canada West Foundation published a study that showed the average environmental assessment took three and a half years, with some processes extending to more than ten years. If the impact assessment timelines are fully used without an extension, the government aspects of the process will increase about two and a half months. While this is a modest increase, the opportunities for multiple timeline extensions do not support the objective of an effective or efficient regulatory process.
Stantec recommends that the number of potential extensions for government-specific tasks be limited, similar to the limit placed on extensions for proponent responsibilities; or have rigorous senior management approval processes attached to each extension. This will provide participants with greater certainty in the process.
With respect to the environmental assessments within the Canadian energy regulator act, the act sets out provisions that could result in three levels of assessment: those completed in support of section 215 orders and section 183 certificates, and review panels for projects meeting the thresholds of the impact assessment act.
The requirement for every CERA-regulated project that is also subject to the impact assessment act to be considered by a review panel results in two classes of industry in Canada: the energy industry and all other industries. For most current CEAA 2012 triggers, it is Stantec’s experience that a review panel would constitute an undue level of cost and effort for all participants in the process. Stantec recommends that proposed section 185 of the act be revised such that a project is only referred to a panel where there is a material risk of meaningful or significant adverse environmental or socioeconomic effects.
In closing, we would like to thank you for the opportunity to provide our testimony today. We take pride in our contributions to advancing the environmental assessment practice in Canada and hope that the evidence we provide here will be of assistance. While today is about providing input on the legislation affecting environmental assessments in Canada, it is Stantec’s experience that the associated policies and guidance documents being developed will be of equal importance in achieving a defensible and efficient process. It is hoped that these will be available before promulgation of the act to provide clarity for all participants. Thank you.
Wayne Speller, Principal, Senior Regulatory and Impact Assessment Specialist, Golder: Thank you, Madam Chair and honourable senators. It’s a privilege to be here with you today to share our thoughts as impact assessment practitioners on Bill C-69 and specifically related to the proposed impact assessment act.
Before I start, I want to acknowledge that we are on the traditional territory of the Algonquin and the Anishnabe peoples.
Jill and I represent a large community of scientists, planners and engineers within Golder, an environmental consulting company with over 2,700 Canadian employees, and 6,500 worldwide. Golder has a long history of conducting impact assessments across Canada and internationally for projects in the oil and gas, mining, infrastructure and power sectors. We are here today to share our thoughts on Bill C-69 as independent professionals and not to speak to the views of our clients or their projects.
Overall, we see Bill C-69 as an improved impact assessment process over CEAA 2012, but with some of the same challenges with certainty and predictability that exist in CEAA 2012.
We would like to highlight two positive aspects of the bill and close by highlighting two areas for improvement.
First, the early planning phase has the potential to create an environment that is more transparent and engaging. The inclusion of early planning is aligned with best practice in impact assessment, and three key benefits are: One, early involvement of all interested parties will increase credibility and trust in the process, and also increases the potential to establish a detailed scope for an assessment that will not require future modification; two, early engagement with Indigenous groups may allow for enhanced opportunities to integrate Indigenous knowledge into an assessment; and, three, the five deliverables from early planning can increase certainty and predictability by laying out a clear road map for everyone involved.
Effective and efficient implementation will be the key. If implemented well, with everyone participating in good faith, the benefits I mentioned can be realized. If not implemented well, the result could be it is just an additional step adding more time. For the proposed impact assessment agency, strong facilitation of differing views during this process will be critical, and this strength will need to be maintained throughout the entire impact assessment process.
Second, the explicit inclusion of social, health and economic factors is another improvement and aligns with what northern territories and some provinces already consider. Many federal impact assessments have included these factors to some degree for years. Essentially, the federal government is explicitly aligning with well-known international environmental and social standards from financial institutions around the world. As practitioners who go into the communities talking with those who may be affected by development, we feel this change facilitates more open and transparent dialogue.
Now we would like to highlight two areas for improvement.
The first is how to determine the sustainability of a project. Assessing environmental, social, health and economic factors, and how these interrelate, is something we do on projects all over the world. Distilling these factors down to a single conclusion on a project’s sustainability may be a difficult challenge, as is understanding what level of impact would lead to a decision maker deciding that a project is “not sustainable.” If we practitioners are to inform decision makers on project sustainability, clarity and guidance will be needed on how this should best be done. We understand regulations and guidance will be forthcoming, and there may be opportunities to comment on these.
Second, timeline certainty and predictability remain challenges. Under CEAA 2012, timeline issues are numerous: assessment scope creep, years of supplemental information requests, the stop-start approach to the federal clock, project design updates and the discretion to pause or extend the federal timeline. Some of these issues are addressed in the early planning phase, if implemented well; however, these are the issues that need to be addressed to achieve timeline certainty and predictability, recognizing they are more likely to be addressed in regulations and guidance documents. As already mentioned, strong facilitation of differing views by the proposed agency will be critical.
In closing, we would like to reiterate our sincere thanks for this opportunity to appear before you today and we welcome your questions. We had been planning to provide written feedback on regulations and guidance documents when they become available and have not prepared a written submission for this committee. Madam Chair, if that is something that this committee thinks would be of benefit, we would be happy to do so.
The Chair: Please do. Thank you.
Senator MacDonald: I thank the witnesses for being here.
Mr. Prystay, I’ll direct my questions to you initially. We all have the understanding that legislative timelines for certain portions of the impact assessment process are short compared to the act of 2012. However, dozens of companies are telling us that overall the process will be much longer under Bill C-69. Can you explain to us why companies are telling us the timelines will actually be longer?
Mr. Prystay: When we look at the individual legislated timelines that are identified in the impact assessment act and compare those to the defined legislated timelines that are in the current legislation, it’s just simple math of adding up the pieces of what’s in the federal jurisdiction and where the responsibilities are.
Senator MacDonald: With respect to short pipeline extensions, is it possible that Bill C-69 could mandate panel reviews for short pipeline extensions? If a pipeline extension application is referred to by the panel, approximately how long would that take to review under Bill C-69?
Mr. Prystay: I’m going to confirm the sections here. The section 215 orders are for pipelines that are 40 kilometres or less, and the section 183 certificates are for pipeline sections that are longer than 40 kilometres. The current threshold right now for the CEAA 2012 is 40 kilometres. So it would really depend on how the impact assessment regulations define a reviewable project to determine when a short pipeline becomes a panel-level assessment.
Senator MacDonald: Do you think those proposals are reasonable, workable?
Mr. Prystay: I think an assessment that goes to panel needs to be based not on an arbitrary length of pipeline or arbitrary size of pipeline, but the risk the project poses for substantive environmental or socioeconomic effects.
Senator Woo: Can I, first of all, get clarification on one of the data points that Mr. Prystay shared with us? This is the study from Canada West Foundation about the average length of environmental assessments. Presumably you’ve taken it directly from the report.
Mr. Prystay: Yes, that’s correct.
Senator Woo: And you’ve done a comparison with Bill C-69 to suggest that it may be a couple of months longer. You don’t have to answer this question, because you don’t have the data in front of you, but the C.D. Howe study in fact tells us that the average duration is closer to four years, with major projects extending as long as six years. So there’s a discrepancy between the Canada West Foundation data on what the average length of an assessment of a project has been and the other studies.
If you have a comment on that, I’d be happy to get that, but it’s more for the record to understand that there are discrepancies in the data.
I want to ask both of you about early planning, which I think both of you are supportive of. We’ve heard mixed comments from other witnesses. Setting aside the witnesses who are totally against early planning, the ones who accept that it has some value are mostly concerned with what happens at the end of the early planning process. In other words, what kinds of instructions are given at the end of early planning in the so-called tailored guidelines and whether they provide sufficient information for the proponent to then do a study that is in fact tailored.
Do you have concerns about the way the legislation is currently written? Does it provide sufficient clarity to the proponent, having gone through this early planning process, to then conduct the work that needs to be done in a way that they feel they are covering the bases that need to be covered? Do you understand my question? Perhaps both of you would like to comment.
Mr. Speller: Thank you for the question. My read of the legislation is there’s not a lot of detail there about what will be in the tailored impact statement guidelines. My view is that the more detailed those are, the better. They should be 30-, 40-, 50-page documents with fine detail about what should be included in the assessment.
You can imagine the difference between a direction that says do an air quality assessment versus one that says look at SO2, look at nitrogen dioxide, look at all these pieces, use this model, include these communities. The more detail at that front piece, or it’s more unlikely that there will have to be additions later in the process of an expanded scope or more factors to consider if those details are hammered out at the beginning. That is my view.
Senator Woo: In the legislation or when the guidelines come out?
Mr. Speller: In the actual process, at the end of the early planning process, the tailored guidelines should be very tailored and detailed. Right now, I’d say the legislation says there should be guidelines and that’s all it says right now. So I don’t have a feel without the regulations of what it will look like.
Mr. Prystay: I agree with Wayne. I practise most of my work in British Columbia, where we have detailed terms of reference process. We call it “application information requirements,” and it’s a negotiated scope of the assessment. It involves all of the interested federal and provincial regulatory agencies, the local municipalities and potentially affected First Nations at the table. We have found that where everybody participates in the development of the guidelines, we do have much more clarity and fewer delays in the process. But it really is subject to all of the participating agencies actively being involved in development of those guidelines.
Senator Mitchell: Thanks very much. Good to have you here and to be so explicit about what’s positive about this bill because I happen to be the sponsor, so I’m glad to see that.
Both of you have alluded to — and you’re so right about those things — the concern that you would have with discretionary perhaps some would argue arbitrary extensions, delays. But none of you are disputing the fact that almost to a day, every single timeline that’s legislated in here is shorter or significantly shorter than everyone we have now. So the start is pretty good.
I’d like to get down to where you think there will be sustained arbitrary delays. I look at the discussion paper that was released by the government on information requirements and time management, and they list explicitly four bullets, reasons, the justification for the agency, the government, whomever, delaying a project. One would be the proponent requests it. Two, the design change by the proponent is sufficiently significant. That would be reasonable. Three, critical information is missing. So they go to the proponent to get it. It’s in their hands to have dealt with that. And four, the proponent didn’t pay its costs recoverable. All four of those things are proponent-driven.
Why wouldn’t that be a significant improvement over what we’ve got and certainly arbitrary or discretionary reason? It’s pretty well specified there. Clarification?
Mr. Speller: The concern is with, as I would call them, the number of off-ramps to stop the federal clock. I understand there are those four items. Our experience is those sorts of phrases can be used to stop the clock when needed. I’ll use the critical information request example.
Through the impact assessment process, after it has been submitted and reviewed, there’s an information request process, supplemental information process. The supplemental information request process currently is set up as a chess clock or a stop-start clock. When the federal agency asks the questions to the proponent, the clock stops. The bullet you described about critical information needs may be something different. We’re not sure. But if it is the same, that’s one of the critical areas where the 365 days shrunk to 300 days ends up ballooning to be two or three years because depending on the breadth of questions received, it could take nine months to a year to answer them. That’s where the early planning process can help because detailed guidelines and that clarity at the front end hopefully means all the information that’s required is in the impact statement, and that cuts down on the supplemental information request later. That’s a positive. That’s one example where there could be — I don’t know if I would say arbitrary — clock stoppages that cause these projects to take a longer time.
Senator Simons: I have to say, because I’m from Edmonton, that Stantec is from Edmonton. A global company based in Edmonton. Golder is also a global company. We’ve heard a lot from people who have stressed to us that one of the dangers of Bill C-69 is that it will make Canada not competitive, not competitive for projects, not competitive for capital investment. And I think as Canadians we often wonder: Are other people doing it right in a way that we aren’t?
I’m just wondering, given your global expertise, are there things about this legislation that put us in a non-competitive situation with people who are doing projects of a parallel nature in their own country or are there things that give us a competitive advantage?
Mr. Prystay: In our experience working globally, we’ve found that the fundamental basis of environmental assessment practices generally are the same everywhere around the world. Major international companies commonly have standards that bring them, in all assessments they do, no matter what country they’re in, up to that international standard, very similar to Canada’s standard.
I think what concerns most industry is the certainty of the process and the timelines. None of our clients have ever said that they don’t want to undertake an appropriate and thorough environmental assessment. When we hear feedback, it’s typically around the uncertainty in the process and the uncertainty in the timelines to do a proper environmental assessment.
Senator Simons: Would they say there’s more uncertainty here than, say, in the United States or in Australia or a similar jurisdiction?
Mr. Prystay: Unfortunately, I haven’t asked clients specifically that question.
Senator Simons: Mr. Speller, Ms. Baker, can you speak to that?
Jill Baker, Senior Environmental and Social Assessment Specialist, Golder: I can take a stab at it. I haven’t done an analysis of comparable countries. I can generalize, though, in terms of building on what was just said, that there are standards that are well known by practitioners as to what is good and what isn’t. I think the intent of this legislation that is before you, like we said, if implemented well, makes for a good planning process.
I don’t think it should be lost that the environmental impact assessment is a planning process in a continuum of a broader project development process. It’s not just a bureaucratic step on the way to a project being approved.
In other countries — and I can’t pick one out for you — but that are known to do it well recognize that it’s a planning process. What makes a good planning process? We can talk for days about that, but I think being inclusive, engaging, open, transparent, many of which I think the intent of the bill before you is trying to do through various means. So all that is to say I think with global standards, Canada is probably up there. I think there are papers out there where people have done analysis that demonstrates that Canada’s processes are some of the best ones. But I would have to go do that analysis. I think some have.
The challenge is that you can’t say globally because you can’t compare developing countries that don’t have very strong regulatory regimes with Canada, which has a strong regulatory regime.
Senator Simons: I would like to say that I share your frustration at the lack of a project list or any kind of regulatory framework. We have indeed asked for a project list. We’ve formally asked, but it is not here yet.
Senator Tkachuk: Welcome, and thank you.
Who are your clients? This is for both of you. Who are they? Are they oil companies, government? Who are your clients?
Mr. Speller: Quite often we work on large impact assessments, they’re oil and gas clients, pipeline clients, infrastructure clients, mining clients. We do some work for regulatory bodies, in some jurisdictions in Canada, we work for Indigenous groups. But for the majority, we tend to have large project impact assessors, so we tend to represent the proponent on large projects.
Mr. Prystay: For Stantec, our client base ranges from federal, provincial governments and agencies, private corporations —
Senator Tkachuk: Like oil and gas?
Mr. Prystay: Yes, oil and gas, mining, power, pretty much any industry that could trigger an environmental assessment, we’re there to support that.
Senator Tkachuk: Why is there such a divergence of opinion between your clients and yourselves on Bill C-69? The pipeline industry says they don’t think they can get a project, they don’t think they could build a project. The petroleum producers are totally opposed to Bill C-69. They want major amendments. With the uranium companies, Cameco wants two or three significant amendments. They all seem to have a problem. I know you want changes too, but there seems to be less urgency to your assessments than everybody else.
Mr. Prystay: We’re an independent company. We provide a third-party perspective on the potential environmental, social, health, economic effects of a project. We’re not advocates for a project. We’re there to provide the information that the government agencies need to be able to make an informed decision.
Senator Tkachuk: The government agencies, but not your private clients? What about your private clients?
Mr. Prystay: I believe that our private clients utilize the information that we bring forward to them to help refine and make their projects more environmentally and socially sustainable. So it does advance the definition and engineering of a project. We’re not there as a proponent, we’re there as an independent company to support the process.
Senator Tkachuk: Mr. Speller?
Mr. Speller: Similar views. As independent practitioners, our views here today are based on what we think is a good impact assessment process. We’ve identified the challenges with the certainty and predictability of this process, which I think a very common theme of concern with the current act and the proposed act.
Senator Tkachuk: With your experience in this business, how many people do you think the impact assessment board is going to need to manage this process and how long do you think it will take the government to put it all together?
Mr. Speller: They will need hundreds of people to do this.
Senator Tkachuk: A thousand? Five hundred?
Mr. Speller: I couldn’t give you an exact number. To facilitate this well, I understand CEAA has between 200 and 300 people. My guess is they’re going to need between 400 and 500. That’s my feeling. I run a lot of large projects and look at resourcing. That’s my feel for it.
Senator Tkachuk: Knowing the government well, how long do you think it will take us?
Mr. Speller: I don’t claim to know the government well.
The Chair: I want to jump into this subject. You mentioned that you will need a lot of detail in the regulations. You even mentioned we need 30-something pages of detail. Myself, coming from the practitioner side, I remember 30 years ago there was nothing and we had to develop the methods. We developed methods to evaluate, initially, safety, in the safety area. Now we are more into health and the ecosystem. So it is evolving.
Do you think you play a role on exactly these issues that seem to be vague right now? The cumulative effects, climate change and sustainability. You’re saying this, but based on your own experience and from the histories of your own companies, wouldn’t you say that you’re confident that you will come to know and acquire these methods and knowledge to develop your tools?
Mr. Speller: Thank you for the question. Yes, I think we will. The key importance of that detailed impact statement guideline is that, later on in the process, if someone was to raise a new issue detailed guidelines, in theory, should be the referee’s book.
The Chair: Okay.
Mr. Speller: If someone raises, two years or three years into a project, a brand new issue, ideally you could go back to those guidelines and say, “Is this something that should have been included or not?” If it’s something new, one way to bring certainty to this process is if someone brings a brand new issue that’s not covered in the guidelines, the proposed agency would say that’s not something they’re going to consider.
That would be a very helpful step. The reason I suggested they should be detailed, that they should be many pages, was that the more detail, the less uncertainty there will be later in the process of whether a new issue that comes up should be included or not. I think it’s important that we cover all of the important issues when we do this.
One of the things that gets us in trouble for timing and predictability later on, are issues that come in late and open up an entirely new area of inquiry that takes six months to figure out. Then if that happens again. That expanding scope — as I called it, scope creep — over time is actually a large part of why some of these projects go on for a long time.
The Chair: Okay. I understand.
Mr. Prystay: Canada has exceptional experience in the environmental assessment field. We, as a global body, have looked at potential effects of mining, oil and gas, transportation, power, pretty much any type of project. We’ve considered those through our past and current environmental assessment processes. I think there would be very few projects that would come forward that staff from the Canadian Environmental Assessment Agency, with support of the consulting industry, would not be able to identify the major environmental issues, the pathways that effects could occur by, and what effects needed to be studied to be able to understand if there’s going to be a material or a significant effect, be it economic, social, environmental or health-related.
We have the skills to be able to define clear terms of reference, or detailed impact statements, guidelines for these projects. If we can develop those early, it will provide ability to manage the process in a much clearer way.
We recognize that some issues arise that people didn’t think about earlier and there needs to be the opportunity to amend or address that through the process. The guidelines and the timeline guidelines do allow for that, but those need to be used very judiciously.
[Translation]
Senator Carignan: My question is for the people representing Golder. I was looking at your projects, and I came across the trans-Anatolian natural gas pipeline in Europe, which crosses four countries, 20 or so provinces, and a sea. The pipeline will be 1,800 kilometres long and crosses the Mediterranean to Italy. It looks like you did the project in two and a half or three years. What’s the recipe for completing such a big project so quickly while respecting the environment? Can Canada learn from how Europe handled that project? I want to hear from Golder representatives because they are the ones showcasing the project on their website.
[English]
Mr. Speller: I don’t have direct experience with that pipeline, but I know we have worked on it. I’ve done some work in Africa and Europe. The regulatory process there is more efficient. The time in between passing information back and forth between the proponent and the regulator is shorter. On the other hand, the opportunities for stakeholders to participate are also lower. There’s a trade-off of time and participation in that way.
Ms. Baker: I have no knowledge of that project, so I’m sorry, I can’t comment.
Senator Pratte: We have a bill in front of us and we don’t know what all the regulations or guidelines will be. I hear you say that it’s a matter of how it’s implemented. Is there something in this legislation that you would like to see that would reassure you that there is no excessive use of either stopping the clock or extensions? Is there something you would have expected or liked to see in the legislation that you didn’t see, compared to what exists in CEAA 2012?
Mr. Speller: Thank you for the question. The one thing I have always thought to be a strong process is what the Mackenzie Valley Environmental Impact Review Board does. It’s something that could potentially be added into this legislation in some way. The Mackenzie Valley review board, when they start the equivalent of the impact assessment process here, they provide a schedule out to the hearings and beyond. That doesn’t necessarily deal with the issue of extensions or pauses, but it manages the expectations of the entire group of stakeholders participating; “what we think this process is going to look like,” and “these are the steps when we’re going to need your participation.”
I think the federal clock is a very good idea and metric. The challenge is that it’s not a plan. A 300-day clock doesn’t say when you’re going to do which piece of this process in which 300 days. So if it could be legislated that when, at the notice of commencement, one of the pieces that comes out is a schedule for supplemental information requests, when proponents should provide them back, a rough idea of rounds and when the hearing could be, that is potentially useful. It’s an administrative detail, but I think it would be very helpful.
Senator Pratte: Just to be clear, could that be, for instance, part of the tailored guidelines or something — the requirement to have a schedule or?
Mr. Speller: I would think it could be.
Senator Pratte: Mr. Prystay, would you comment?
Mr. Prystay: I think it’s difficult to legislate at a level greater than setting a framework for how the process could be suspended or the framework for the process to be suspended. From our work in British Columbia where they have a 180-day legislated review period, we’ve found that strong policy and a strong commitment to the policy allows many projects to achieve the review in the 180 days. But it does take a lot of dedication and work to meet that schedule, by all parties.
Senator Pratte: In the B.C. legislation, are there provisions for extensions or clock stoppages?
Mr. Prystay: Yes, there are.
Senator Pratte: There are, okay.
Senator Massicotte: Thank you very much for being with us.
I think I share your comments — and maybe further to the discussion you had a Senator Woo — is the pre-planning in any business transaction, it’s like when you define a non-binding letter you define what the objectives are. That is extremely good, and I think you agree with that. The issue all the time is actually doing it.
You probably didn’t look at the minutes. In one of our first sessions, we had all the deputy ministers up here, including their legal counsel, and they made it very clear also that it is their intent that this process — the pre-planning — they would use it to define and scope very precisely what is necessary, which is a big problem as it currently exists.
A question like Senator Tkachuk gave — should we trust — it’s clear what they intend to do, but with your experience with Environment and Climate Change Canada and so on, are you comfortable, in spite of their intent, that they will perform and get to where they want to get as expressed verbally in our own discussions with them?
Mr. Prystay: It depends on how they approach that. Again, from British Columbia, the environmental assessment office takes advantage of the proponent’s consulting team to help with some of that heavy lifting. The first draft of the application information requirements is delegated to the proponent team to draft in accordance with a very clear set of guidelines in terms of the structure and what goes into it. Then it goes through revisions until the environmental assessment office is happy with it. Then it gets published as a provincial public document.
So it takes some of that labour off the Environmental Assessment Office and delegates that to the proponent team.
Senator Massicotte: Does anybody want to add something to that? That’s a key part. If it’s done right, we have made an immense improvement.
The second thing I observed off was that when delays occur, when you deal with government departments, anybody can ask a proponent a question at any point in time — it can be anything. A new hire has a question, it automatically stops the process, and you’ve got questions coming at you all the time.
What is being proposed under this legislation is that you’ve now got one department responsible, and you’ve got one person who filters the questions before they come to you, so you’re not going to have another one-year delay when a year has gone by. Is that a significant improvement and important to the process?
Ms. Baker: I think it can be done. Having someone who has that comprehension of the process is able to understand the knowledge and the questions that are being asked, and can do that filtering effectively — it can be done, because it has been done informally within the departments. So, yes, I think it can be done.
Senator Massicotte: Now it’s the law; if Bill C-69 gets passed, it’s an obligation and a structure.
Ms. Baker: I would think it would get done if it were law.
Senator Massicotte: Mr. Speller, any comments?
Mr. Speller: I have no comments.
Senator Massicotte: I don’t have any conflict, but Golder was a tenant of ours for many years. I consider there’s no conflict because the rent was so cheap it didn’t qualify, but I sold that interest 10 years ago, so I have no conflict.
Senator Neufeld: Thank you for being here. We’ve heard from industry a lot that they would like to see what projects are actually doable — what size? What are you talking about; are you talking about everything from a small plant to huge dams? Would all of you say that would help make a difference and maybe have the industry not so fearful of what might happen and what might not happen?
Mr. Speller: I can’t speak on behalf of industry, but I do know it’s the question I get most often in my office, either via emails or phone calls: Has there been any word on the street about when the project list will be out? That’s where the rubber hits the road for a lot of this. That’s an important piece.
Mr. Prystay: We get very similar questions on a regular basis. Knowing if a potential project is in or out is important to our clients, but I think understanding the process, and having some confidence and surety in the timelines is equally important.
Senator Neufeld: Also, there’s lots of chatter that they’d like to see the regulations prior to the bill being passed. I don’t know where the regulations are at. We don’t know. The government says, “Trust me. We’re going to take care of all this in regulations.” People are a little nervous about that.
Reviewable projects — should that be in regulations, or should that be in the legislation — whatever you’re going to actually put through the process? Where would it best be?
Mr. Speller: I’m concerned you’re asking three scientists or engineers a question about the legislation.
Senator Neufeld: I am.
Mr. Speller: I personally don’t have a feel for what’s better in the legislation or regulation, unfortunately.
Senator Neufeld: Do you, sir?
Mr. Prystay: My experience is it’s been in regulations to date, but I haven’t. I’m not a legislator. I don’t have an opinion on that.
Ms. Baker: I would follow suit.
Senator Neufeld: Okay.
So you all agree that reviewable projects — that’s a big thing that’s come into your office — a big issue — but you’re not really sure, or you’re not comfortable saying where you think that should be — should it be up front in the legislation or the regulations. So I get that. It’s interesting for me to hear that.
Second is the timelines. You have all talked about timelines. I was in British Columbia when we put the 180 days in.Can you tell us how the timelines in this Bill C-69 could be fixed so that you don’t have those fears that you brought forward in regards to the timelines? Is it, okay, you only have so many days to figure this out? What is it?
If you want to think about it and write us back a letter, I’m fine with that too, but I’d like to hear from you as engineers. We hear from our chair who is an engineer, so I’m asking engineers.
The Chair: Do you want to answer?
Mr. Speller: We have offered to provide in writing some of our thoughts on this. We’d be happy to add that to our list.
Senator Neufeld: That would be fine with me. You need to do it through the clerk.
Senator McCallum: Thank you. I’m sorry I arrived late, but I had a speech to make.
I’m from the health field, so I’ve been really concerned about the health and social impacts about resource extraction in First Nation areas. It’s good to see that you’re looking at a more balanced approach that’s with an ethics basis to it.
I was reading the social and health determinants of resource extraction study that was done by B.C. in Northern Canada and the results they had with all the resource extraction that’s been done to try to find a balance.
When you plan like that, it’s like the health environment. I understand health impact assessments when you’re working with patients. When you have that under your belt, you see projects from a different perspective and you try to mitigate the negative effect before they happen.
Could you explain the increased uncertainty associated with the interpretation and methods for defensible assessment of certain effects, primarily sustainability, climate change and the intersection of sex and gender with other identity factors? Where does the uncertainty lie?
Mr. Prystay: There are strong methods that are well defined for looking at socioeconomic changes on different areas of society, including gender-based analysis. In addition, there is a growing understanding of how health effects differ between men and women which is becoming well-defined. The field of assessing environmental effects on a disaggregated population is a new area of academic study.
Clear guidance is needed to help understand the scope of this factor and the methods available. The legislation doesn’t say that the gender-based assessment is to be focused on socioeconomic issues. If it is to be assessed with respect to environmental effect as well, there’s not good guidance on how to do that currently.
Senator McCallum: You said there are greater opportunities for Indigenous participation. What is the level of participation now with Indigenous communities?
Mr. Prystay: I think it’s highly variable across the country, and that is one of the benefits that this legislative change provides. I’ve practised in British Columbia where, under B.C.’s Environmental Assessment Act, Indigenous groups are invited to the table with all the other government agencies to help define the scope of the assessment, define what studies need to be completed, and then they also participate through the review process. We believe that is good practice and we think that’s good for all Indigenous communities across Canada.
Senator McCallum: I agree with you. I was at a high school last week talking about my background. There were about 300 to 400 students at Sisler High School. They raised the concerns they have for the environment and they said it’s across the city. It includes universities and it’s going across Canada now. On April 22, there’s a big Canadian gathering about it. They fear for their future. It’s good that they are speaking out to try to strike that balance between that development of resources and the negative impacts that have occurred but have not been addressed and still exist in First Nation areas. I’m glad to hear that.
Senator Mockler: Stantec was responsible or engineered one of the greatest bridges in North America, between New Brunswick and Prince Edward Island. You were involved in that?
Mr. Prystay: I am aware that we were involved in the environmental assessment of it. I’m not sure about the engineering side.
Senator Massicotte: Is it still standing?
Senator Mockler: It is standing.
Mr. Speller: I do want to highlight that I think Golder was involved in that as well.
Senator Mockler: That’s good. This is going to help my question. Unlike the National Energy Board that it would replace under the proposed Canadian energy regulator act, the Canadian energy regulator would not be responsible for conducting reviews of designated projects. That’s factual. While the Canadian energy regulator will have some input into the proposed impact assessment process for designated projects, its primary role in Bill C-69 is the regulation of projects throughout their life cycle rather than the assessment of new ones. We agree on that.
The Canadian energy regulator will continue to conduct assessments for non-designated projects. A question to both of you is: Do you support this division of responsibilities? Why or why not?
Mr. Prystay: I think it’s important that all large capital projects that have potential for adverse effects go through an environmental assessment process. I think it’s good public policy. Regarding who manages the regulatory process, as a practitioner, I don’t know I have opinion on that. It’s more about is the assessment process robust, defensible and based on good practice. That’s our primary concern.
Senator Mockler: Philosophy.
Mr. Speller: Our view would be similar. We are arms length from the regulators and the decision makers in that regard. Our focus is on a strong impact assessment process.
The Chair: Thank you very much for this interesting conversation.
We will now proceed with the third portion of this meeting of the Standing Senate Committee on Energy, the Environment and Natural Resources as we continue our study of Bill C-69. We now welcome by video conference from Victoria, British Columbia, representing the Government of British Columbia, Mr. Kevin Jardine, Associate Deputy Minister, Environmental Assessment Office.
Thank you very much, Mr. Jardine, for being with us. I invite you to proceed with your opening statement, after which we will go to a period of questions and answers.
Kevin Jardine, Associate Deputy Minister, Environmental Assessment Office, Government of British Columbia: Let me start by thanking the committee for inviting me here today and for the opportunity to speak to Bill C-69.
British Columbia is broadly supportive of the proposed environmental impact assessment act and its objectives. In fact, there’s significant alignment in principle and process between the proposed impact assessment act and British Columbia’s new Environmental Assessment Act, which just received Royal Assent in November 2018. They reflect common objectives of Canada and B.C. with respect to conducting environmental assessments, and they present the opportunity for Canada and B.C. to more easily and effectively cooperate on the conduct of environmental assessments.
Of particular importance to B.C. is the retention of the option to have the federal process substituted for provincial process while retaining the separate decision-making processes.
As you may be aware, B.C. currently has an existing agreement with the Canadian Environmental Assessment Agency, which was signed in 2013, which allows for the implementation of substituted environmental assessments. To date, three project environmental assessments in B.C. have been completed by way of substitution. B.C. remains the first and, to my knowledge, the only jurisdiction in Canada to have such an agreement.
We have common objectives. B.C.’s new Environmental Assessment Act was developed based on three principles: Firstly, advancing reconciliation with Indigenous peoples; secondly, enhancing the public confidence in the assessment process; and lastly, ensuring that good projects move forward in a timely way while protecting the environment.
So we’re pleased to see these principles largely reflected in the impact assessment act, as well as through the mandatory consideration of Indigenous rights and knowledge, through increased opportunities for meaningful public consultation and participation and greater transparency in the process and in expanded scope, which mirrors British Columbia’s criteria both under our new act and under our former act.
This increased alignment between provincial and federal legislation has the potential to enhance the implementation of the one project-one assessment principle and, therefore, more streamlined, substituted, coordinated or, in fact, panel EAs.
In our experience, the benefits of one project one assessment have included reduced duplication for all parties, including government agencies, proponents, Indigenous nations, stakeholders, communities and the public; a clearer and more predictable process; a generally timelier process; and a more common transparent body of evidence and understanding of the potential project impacts. It allows for meaningful, deep and more agile Indigenous engagement through a single combined Crown and also allows for a single channel for public engagement which affords the opportunity for more responsive, ongoing engagements.
An EA process with an early planning phase as contemplated by both the new environmental assessment act here in British Columbia and the proposed impact assessment act has the potential to result in better assessments with fewer delays, chiefly through the early identification of issues and Indigenous engagement that happens proactively rather than reactively.
But there are some challenges, particularly with timelines. Without harmonized timelines throughout the entire process, cooperation and the achievement of the one project one assessment principle will be a challenge. Flexibility in planning phase time limits is a prerequisite for effective cooperation.
Timelines between the new B.C. Environmental Assessment Act and the proposed impact assessment act are overall well aligned. There is one notable exception, and that is in the critical early planning phase.
There is an opportunity to address this time limit inconsistency with a minor IAA amendment, enabling the agency to establish a different deadline for submission of notice of assessment for the sole purpose of allowing the agency to cooperate with another jurisdiction.
This proposed approach mirrors existing authorities in the proposed IAA to establish different timelines to support cooperation during the impact assessment phase. Extension of this power to the entire EA process completes a timeline adjustment scheme that supports cooperation between Canada, B.C. and indeed any other jurisdiction that might be interested in coordination or substitution in the future.
Furthermore, B.C. would encourage Canada to allow for delegation of these timeline adjustment decisions to the agency, both during the planning and impact assessment phases. Moving these decisions away from the minister to the agency emphasizes the procedural nature of these decisions and, in recognition of the stated objectives of increasing process predictability for project proponents, also has the effect of limiting ministerial discretion.
Support for the one project one assessment under the new impact assessment act creates several opportunities for Canada and the provinces to work together, and conversations with Canada here in British Columbia are under way to develop a new cooperation agreement to replace our 2013 agreement. The new agreement is intended to allow for a common approach to early engagement, which would lead to reduced duplication through the establishment of common requirements for initial proponent documentation; a joint early public comment period; coordinated early decision on whether to proceed with an EA; and a principled basis for determining the best assessment approach, whether that’s substituted, coordinated or perhaps even a panel.
It’s also intended to improve the quality of Indigenous engagement through better coordination and to advance reconciliation with Indigenous peoples through more meaningful engagement; enabling a focus on reaching consensus; and establishing a joint commitment to pursue trilateral agreements with Indigenous nations where they are interested and have the capacity.
Lastly, we are also focused on collaboration to improve the connection between assessments and the subsequent regulatory and permitting processes, something we refer to as the regulatory continuum. Specifically, we want to reduce duplication and improve timelines by aligning reporting requirements, notification requirements, terminology and definitions, and the various deadlines that are inherent in the regulatory processes and regimes, as well as looking at data and information requirements so they can, as they are developed through the environmental assessment, flow into subsequent permitting processes.
With that, that concludes my prepared remarks, Madam Chair, and I’m pleased now to take any questions that the committee might have.
The Chair: Thank you very much.
Senator MacDonald: Thank you, sir, for your testimony here today. The independent contractors and business association of British Columbia wrote that the aim of the crafters of this legislation must have been to make it more difficult to invest in Canada and confine bold visionary and nation-building construction and infrastructure projects to the Canadian history textbooks. This group represents over 2,000 companies and over 50,000 workers in British Columbia. Should they be concerned that the government is so opposed to this bill, that they are so opposed to this bill? What is the government’s response to these 50,000 workers in British Columbia?
Mr. Jardine: In terms of Bill C-69?
Senator MacDonald: They are opposed to the bill and very concerned about their jobs.
Mr. Jardine: A couple of things. In terms of Bill C-69, as it relates to projects here in British Columbia, our view is that British Columbia is in a different circumstance than many other jurisdictions, for several reasons. One is that we have a stand-alone environmental assessment office, stand-alone legislation that sits arm’s length from government and is administered independently. That has allowed us to be able to enter into agreements with Canada under the current CEAA 2012 act for things like substitution. We have 13 projects that are currently under substitution in British Columbia.
For British Columbia, because of our unique geography, our unique number of Indigenous nations and our history in that regard, our processes are well advanced in terms of meeting many of the obligations, constitutional and otherwise, for environmental assessment. So we don’t see in Bill C-69 very much that is different from what we undertake in British Columbia today.
It does, however, articulate in more detail some of the requirements of the process, which has the potential of looking daunting. But from our perspective and as I stated at the outset, I think it actually provides some real opportunity for us to achieve some of the common outcomes that we have set here in British Columbia for a new environmental assessment act and I understand the federal government has set for the new impact assessment act.
So while I understand the concerns, I think we’ll find that many of the very specific concerns, we’ll be able to work out through the implementation phase and the relation development phase.
Senator MacDonald: I’m not sure that answered my question, but thank you. I have a quick follow-up. On the East Coast of Canada, we manage over 288 million metric tonnes of heavy petroleum every year. You’re dealing with 6 million metric tonnes. Do you think it’s fair that one coast of this country has to carry all this risk and all this management of all this petroleum, particularly when this petroleum is brought into the country and paid for by Canadians, where on the West Coast we’re trying to export petroleum that is Canadian to produce revenue for Canada? Do you think it’s fair that Nova Scotia and New Brunswick and Quebec and Newfoundland have to carry all this risk for Canada, while B.C. does very little?
Mr. Jardine: I’m afraid that’s not something I can comment on. I’m the senior official in charge of the environmental assessment office, and my focus is on the environmental assessment.
Senator MacDonald: So you have no opinion on this stuff.
Mr. Jardine: I have no professional opinion, no.
Senator Woo: Thank you for your testimony. I wanted to get right to your suggestion for some potential changes, and understand a little better what the discrepancy is in the early planning phase and what specific intervention you’re looking for. Is it that once the early planning has started, the substitution cannot be effected?
You talk about alignment of the timelines in the early planning phase. Could you elaborate to help us think about whether this might be a potential small tweak in the legislation?
Mr. Jardine: Thank you, senator. I’d be happy to. The first thing I’ll do is set out the difference between what I was referring to as coordination and substitution. Coordination is a process by which we are maintaining two parallel processes for environmental assessment on one project. So the federal government, through the new agency, or currently through CEAA, would be proceeding with their environmental assessment, pursuant to their act and their requirements, where at the same time on the same project, the province is proceeding as well.
Because we have a shared interest in one project, one assessment principle and all the benefits that accrue to that, we want to be able to, in those circumstances, under coordination, ensure that our timelines are well aligned and our processes are well aligned, and ideally our requirements are well aligned, so that, for all intents and purposes for those people engaging in the process — Indigenous people, the public, the proponent — it appears as one single process.
Substitution is one step further. It’s one where the entire process is undertaken, in this case by British Columbia’s environmental assessment office, of course, and then the two decision-making authorities, the federal government and the provincial government are maintained as well, one process, two decisions.
My suggestion refers very specifically to coordination and it pertains to proposed section 18(3) of the impact assessment act, which is the 180-day requirement.
Our new provincial process is a little bit different, and our timelines and the process timelines don’t meet up well. So in the current circumstance, it would see the federal government move much more quickly to developing what we call the project plan. Under our new act, because we’re trying to achieve all those values from early engagement, which I’m sure you’ve heard about and which I’ve spoken to and have heard others speak to, we need quite a bit more time for public engagement, engagement of Indigenous nations, and give more time to the proponent, as much as they want — in fact, there is no timeline — to reflect that in a more detailed project plan.
So if we’re going to achieve, in British Columbia at least, the value of that early engagement, we need some greater flexibility in that early stage from the federal government; 18(3) that I referred to allows the minister to provide a one-time extension of that timeline up to 90 days, but after that it has to go to the GIC, to the cabinet, which it seems to me politicizes what is really the administration of the EA process.
Senator Simons: Thank you very much. I’m delighted to hear you speaking about substitution, because it’s something that I think is a bit murky in the text of the act. I know we’ve met previously with the premiers of Newfoundland and Labrador and Alberta, both of whom expressed great concern that this bill would allow the federal government to assert jurisdiction in areas that are traditionally provincial.
The Premier of Newfoundland is particularly concerned because substitution doesn’t even seem to be allowed for the Newfoundland offshore board. In proposed section 31, it’s specifically excluded. The Prime Minister of Alberta has presented us now with a list of proposed amendments which are meant to scope out all kinds of things specifically, solar, wind, natural gas, natural gas liquification, all of which the province of Alberta is asking us to specifically scope out of the legislation.
I’m curious to know why you’re so bullish on substitution when the other provinces see the flip side of this, that Bill C-69 could enable the minister to designate things that have traditionally been under provincial jurisdiction to now have to require a federal impact assessment.
Mr. Jardine: In British Columbia —
Senator Simons: What do you make of Premier Notley’s suggestion that we should scope out wind, solar and natural gas specifically?
Mr. Jardine: Of course, I can’t speak for Premier Notley. What I can say, though, is here in British Columbia about two thirds of our environmental assessment projects — and they are generally or almost exclusively very large projects in B.C. — that require environmental assessment under our act also require a federal assessment under the current act.
From our perspective, we’ve seen some very significant benefits in terms of time lines, process and clarity of the process for proponents and others in those projects that we’ve been able to undertake in substitution.
The three projects we’ve been able to undertake through substitution were LNG Canada, the largest single investment in Canadian history, which was our first substitution project and one whereby we went through substitution and the provincial government in British Columbia and the federal government announced their decisions on the same day.
The most recent one was Kemess Underground, which is a mine in northwestern British Columbia. That’s one where we too were able to announce our decisions on the same day, where we achieved the consent of Indigenous nations that were involved and we were able to do it within our 180-day application review timelines.
So we’ve seen in British Columbia the process of substitution really work for us in terms of achieving all of our goals, not just the timeliness.
Senator Simons: What if you made two different decisions?
The Chair: I’m sorry, we will let the witness finish. Continue, please, Mr. Jardine.
Mr. Jardine: Sure. I will answer your question, of course. So we’ve seen it really work for us in terms of not only from the process perspective — and this perhaps goes to your second question — but allowing us to coordinate the information requirements, ensuring we’re working from the same base around the information and the list of concerns and issues, how we’re going to undertake those issues and engaging Indigenous people in a consistent way through the process.
That’s allowed us to ensure that all of the questions are answered to the same degree to allow for robust decision-making.
That is two things. The first thing is it allows us to land in the same place in terms of likely recommendations to our respective decision makers. We have had circumstances, more recently in the last couple of years, where both of the federal and provincial decision makers declined to provide a certificate for a project here in British Columbia.
We’ve also had, a bit less than a decade ago, where we did have different decisions from the provincial government and then later from the federal government. That was a rather decoupled process, though, where the coordination wasn’t happening, certainly not to the extent that I’ve been proposing and not to the extent that we’ve been working together over the last many years.
One of the advantages of this coordination and substitution is the likelihood of landing in two different places has reduced significantly as well.
Senator Tkachuk: My understanding is that you can’t speak for the government but you can speak for what is. I understand that the British Columbia government is in support of Bill C-48, the tanker ban.
Mr. Jardine: That’s my understanding as well.
Senator Tkachuk: And they’re opposed to the Kinder Morgan pipeline?
Mr. Jardine: I understand that also.
Senator Tkachuk: The projects you’d be talking about wouldn’t be oil projects.
Mr. Jardine: It would depend.
Senator Tkachuk: How does Alberta get the oil out of the country?
Mr. Jardine: Projects could quite possibly be oil projects.
Senator Tkachuk: What would they do with it?
Mr. Jardine: We have a requirement in British Columbia to take environmental assessments on projects in British Columbia. Some of those projects may be inter-jurisdictional projects in which we do have to undertake an environmental assessment. So, as an example, the Trans Mountain project was a project in which we did undertake an environmental assessment which was, to a degree, coordinated. It was almost like a kind of reverse substitution whereby we used the NEB report as the assessment report and then independently undertook, although actually coordinated with Natural Resources Canada, consultations with the 90 Indigenous nations in British Columbia along the pipeline route.
That then went to provincial decision makers who, at that time, decided to issue a provincial environmental assessment certificate with several conditions.
Senator Tkachuk: So your environmental impact group would be looking at hydro, natural gas and those kinds of projects?
Mr. Jardine: Yes, those are also included in projects as well, that’s right. Pipelines and large linear features like hydro are examples, as are mines and LNG facilities.
Senator Tkachuk: Right. So do you know if the provincial government is in favour of Bill C-68, I think it is?
Mr. Jardine: No, I’m sorry; I don’t.
Senator Tkachuk: That’s fine. Thank you.
Senator Massicotte: Thank you for being with us. Just to make sure I have the right understanding, what the current Bill C-69 provides is substitution only. We’re dropping off the other mechanisms that were used. To make further comments to Senator Simons’, B.C. is the only province that currently has substitution with the federal government and no other province undertook that mechanism, if I’m correct. Is that right?
Mr. Jardine: Yes, senator, you are correct. We are the only one doing substitution. The other one I was speaking to, coordination, is not something that has to be prescribed in the legislation or even in regulation. It’s more a policy we’re working on with the federal government, and with CEAA. The amendment that I’ve been referring to is one that would help to continue to enable that policy, which would allow for the one project, one assessment approach.
Senator Massicotte: The question has been asked. You give all kinds of reasons why you’re so special and why you’re able to reach the substitution agreement with the federal government. But is there something more magical about it? Why did no one else go in the same direction? It seems to be working so well. Is there something we’re missing?
Mr. Jardine: Of course, I can’t speak for many other jurisdictions, and I can assure you that it’s not magic, probably. It is, instead, a consequence of the statutory nature of our office and also, I think, the cost-benefit associated with the bureaucratic effort to undertake this work because British Columbia has a disproportionate number of projects that trigger federal assessments as compared to other jurisdictions.
Senator Massicotte: Am I correct in saying that under substitution, you agree with the federal government in this case to do the empirical work and the assessment, but each party maintains total discretion on its decision to accept or not accept the project? Am I correct in saying that?
Mr. Jardine: Indeed, you are. That’s right. And they can still apply, and do apply, their own legally binding conditions as well.
Senator Massicotte: Is it possible the reason was not that more provinces chose the coordination aspect because to do so requires a lot of planning between both governments and the limitation under the current legislation of 2012 is such that that period is very tight, so most provinces probably did not have enough time to come to an agreement with the federal government to do the coordination aspect? Would that be possible?
Mr. Jardine: I think most governments, and certainly the ones I’m aware of, actually do work very cooperatively with the Canadian Environmental Assessment Agency and do coordinate aspects of their environmental assessment. I think we just happen to be the only one that has gone so far as to take advantage of the statutory possibility under the current CEAA 2012 and we moved on it quickly. We signed our MOU with CEAA in 2013.
Senator Massicotte: Having said that, a quick question: You obviously — this legislation you passed last month or the month before, mirrors quite significantly Bill C-69. In a perfect world, is there something we should learn from your own experience to make it even better?
Mr. Jardine: Beyond the one that I’ve suggested already? I hesitate to intrude on the legislative discretion of my federal colleagues, certainly. We are pleased to see that many of the general aspects related to the objectives of the new federal act mirror what we, too, in British Columbia are trying to do. So while I think it’s perhaps not surprising that we may have chosen — in fact, look at our new legislation, did choose — a different avenue to get to some of the same outcomes, the opportunity that exists with substitution and coordination is the means by which we are able to tie our joint objectives to a process that works best here in British Columbia, which is our provincial process.
Senator Massicotte: Thank you.
Senator Mitchell: Mr. Jardine, clearly you’re not particularly concerned about federal encroachment on provincial jurisdiction. It seems you’re working quite well together, and it’s not causing you a problem.
Mr. Jardine: In the specific context of environmental assessment, yes, I think that’s right.
Senator Mitchell: I’d like to pursue the parallels between your legislation and Bill C-69, because you’ve been through some of the debate and thought about the questions that Bill C-69 is being confronted by. Were you criticized for the potential of serial delays, and how did you deal with that?
Mr. Jardine: Yes, we were. One of the process features of our current act are some well-set timelines in regulation. That’s provided proponents and investors with some security, at least, that there are bounds to the process. We worked very hard to ensure that, in our new act, we retained many of those, while providing the proponent with the flexibility they require, where they require in the process, to take as much time as they want or need.
That’s particularly true at the early part of the assessment, because our experience has been that the more time spent in the early part of the assessment where the temperature is generally low and the spending is low, the better the benefits at the back end, both in terms of timeliness and financial.
That did not stop us getting some criticism and continued pressure to ensure that we have well-articulated timelines.
Senator Mitchell: Thank you. I understand that you’ve been pursued — your relationship with the Indigenous peoples in this process — extensively and that you have dealt with, considered and confronted the issue of consent. Could you give us some indication of how you’ve squared that circle, as it were?
Mr. Jardine: Certainly. The provincial government here in British Columbia, as you’re likely well aware, has made a commitment to reconciliation. They’ve defined that as including the adoption of the United Nations Declaration on the Rights of Indigenous People, as well as embracing the calls to action of the Truth and Reconciliation Commission and recognizing jurisprudence, in particular the most recent Tsilhqot’in case. Those all suggest, I think it’s fair to say, that controversial aspects of UNDRIP, like free and prior consent, have to find their way into legislation.
There are two different ways we’ve done that. We’ve seen in our legislation our requirement to ensure that Indigenous engagement is free, prior and informed. We have built in many areas, probably about a dozen, where there is an obligation on the environmental assessment office — my position — to seek to achieve consensus with participating Indigenous nations on decisions through the process. That’s the first component.
There are two very specific decision points in our process where we provide the opportunity for participating Indigenous nations to offer their consent, or not, specifically. The first one is early in the process, which we call our readiness gate. That’s the stage at which we determine whether a project would proceed to environmental assessment, be terminated or be exempted from the process.
The final decision, in our case by two ministers, as whether or not to issue an environmental assessment certificate. That, then, too is a potential consent decision. In our case, where there is a view of consent that’s provided, the ministers must take it into consideration within the statute and, upon making their decision, have to address in their reasons, which we made public, how they took that into consideration.
Where they are going to make or are preparing to make a decision that’s contrary to the consent view of Indigenous nations, they also have to provide an opportunity to meet with that participating Indigenous nation with a view to seeking consensus.
Senator Mitchell: Thank you.
Senator Neufeld: Thank you for making yourself available for us to ask you some questions.
I’d like to ask just a little bit clarification. I’ll go back more than a decade, because it’s been a decade since I’ve left. You’ll know that. But it was a lot of work with the federal government to try and coordinate environmental assessment processes in the province of British Columbia because of, as was said, the cost of doing two of them. It was just ridiculous what was going on, so it didn’t happen overnight. That wasn’t something that was thought of on a Friday, and on the Monday, you signed a deal. That probably took a decade of time and hard work between the province and the federal government to get those kinds of coordination agreements and now the other agreement. So that’s just maybe a bit of clarification.
I want to ask you in the changes that you’ve made — public engagement. How do you deal with public engagement? Is it worldwide, or is it those that are affected, and then if there are other things, you’ll deal with those issues also?
Mr. Jardine: Yes, we have sort of three mechanisms. The first is that we have it required in the act the posting for public review and comment at various stages, information or decisions of the office. So there is an online aspect, which is what we currently have, that allows for public review and comment.
Typically, in those situations, we also require proponents to respond directly to the comments that are received at those various stages.
Also, in those particular online ones, we don’t have a geographic restriction. Typically, the large percentage comes from people affected, or people in British Columbia, but it’s not impossible for people from elsewhere to participate in that, although we are able to see that, generally.
The second way is through direct face-to-face or open houses. We have those that occur in the project regions. Those occur at several places in the environmental assessment process. We’ve added at least an additional mandatory one through our new act.
Those are the primary ways in which we engage.
Senator Neufeld: Thank you. One last one. Reviewable projects — do you have something written that says this is reviewable but another is not, or do they go through a quick environmental review process? I know that was possible when I was there. Anything, for instance, in electricity under 50 megawatts didn’t have to go through a full environmental assessment process but could go through an enhanced one. Is that still there, and was that there before?
Mr. Jardine: We do have a regulation called the reviewable project regulation, which, for various sectors, sets out the threshold criteria above which projects require environmental assessment.
But, as I know, you’re well aware, senator, we still have a fairly robust regulatory permitting regime, so all of those other projects, it’s not as though they don’t have to go through some form, as you say, type of environmental assessment.
Senator Neufeld: Thank you.
Senator Seidman: Thank you very much for your testimony this evening. It’s much appreciated. I’d just like to go back to the issue you brought forward on the regulatory continuum. You cited four factors that, according to you, need to be aligned in order to reduce duplication and improve timelines. One of those factors is terminology and definitions.
I was wondering what exactly you’re referring to there. I know we talk about clause 22 in Bill C-69 and the various criteria for assessment. I am wondering if that is what you’re referring to and if you could explain.
Mr. Jardine: We find that through our permitting regimes and occasionally through environmental assessment that we do use different terms or different processes. So for proponents, they may have, I’ll give you an example, a provincial environmental assessment certificate and in a federal decision statement that has conditions attached to it, one may ask for a construction management plan requirement with several different other requirements. Another one may ask for something that is called something else that, frankly, is intended to serve the same function.
The intent is to ensure that we’re not only asking for the same thing, but we’re talking about the same thing. So again, it’s a bit like taking those same advantages, that same value that I was referring to in substitution or in coordination and extending that into the permitting process.
Senator Seidman: Are you having any success in your attempts to align the terminology and definitions?
Mr. Jardine: I’m sorry, I missed the first half of your question.
Senator Seidman: I was just saying, are you having success in your attempts to align the terminology and definitions?
Mr. Jardine: We’ve just started our discussing with the federal government and the various agencies. I think what’s very encouraging is that we both, as jurisdictions, are of the view that there is a significant amount of potential value to be achieved in terms of competitiveness and in terms of costs and reducing the effectiveness and efficiency and timeliness of the subsequent processes if we can get this right, especially on the information and the data side as well.
I’m certainly very pleased and encouraged that this is an area where we both seem to have an interest, and I can say that business, industry and proponents see this also as an area of real potential value for them.
Senator Seidman: Thank you.
Senator McCallum: Thank you for your presentation. I wanted to go back to your trilateral agreements that you have, which is a very unique arrangement to have. I know that there is a health trilateral agreement with the B.C. First Nation, which means that you would have common obligations and responsibilities that go with it.
Was it difficult to get to that state because it would mean that there was a concerted effort to give up some provincial power and funding? Would this decrease litigation risks if you’re that connected with the Indigenous community?
Mr. Jardine: In the context of environmental assessment, we’ve had a very modest experience in undertaking trilateral agreements in a formal way. Informally, we have worked on several projects between ourselves, Indigenous nations, and the federal agency in a way that is consistent with what we would imagine would be the content of a trilateral agreement.
What we see in both of our acts, both the provincial act and the new impact assessment act, is the ability for us to actually enter into formal agreements. So we have started discussions about what that means in the context of working with Indigenous nations in a formalized agreement that would potentially extend beyond one project and, in fact, perhaps even be undertaken in the absence of any specific project. So unfortunately it’s not something I can speak to in terms of our experience in a formalized way, but what I can say is that we have seen benefits to date and it’s consequently one of the areas which we would like to continue pursuing.
Senator McCallum: Thank you.
The Chair: We’re going to allow Senator Carignan to do a last question and you need to stay because we have two points to deal with. Thank you.
[Translation]
Senator Carignan: Just briefly, I saw.... Is translation working properly?
Mr. Jardine: Yes.
Senator Carignan: I saw an open letter from 180 scientists written in November 2018 that criticized your bill, especially with respect to the information-gathering process. They seemed to be saying that the method used in your bill was not independent, transparent or scientifically rigorous. Can you comment on the 180 scientists’ criticism, and how do you respond to that criticism?
[English]
Mr. Jardine: Certainly, senator, thank you.
The Chair: Just before you answer, I want to tell the senators that there will be a vote, probably in one hour.
Senator McCallum: I have to go and finish my speech because I didn’t finish it.
The Chair: Mr. Jardine, sorry, you can continue with your answer.
Mr. Jardine: That’s okay. Thank you for raising that. So the central criticism is that the information that’s provided as part of the application and that’s collected for an environmental assessment application is collected by and paid for by the proponent, by the company. There was a concern that as a consequence of that, and despite many of the professionals that would have been undertaking that work being part of regulated professions, the data may be biased and the findings may be biased. It’s often wrapped up in the phrase that he who pays the piper calls the tune.
There are three ways in which we are addressing that. The first one is that where previously we required in the environmental application that the company takes a first attempt at determining significance — in other words, the potential for a significant adverse effect associated with any aspect of the project — we’ll no longer be doing that. That will be undertaken independently.
The second way in which we’re addressing that is through the mandatory requirement for a technical advisory committee or a technical review committee. This would be the committee itself would likely be populated by professionals from the various agencies in the provincial government, where federal agencies are implicated like Department of Fisheries and Oceans, they would be on there as well. And there’s a potential as well for independent scientists, so that whatever information and data are collected and whatever models are used will have to undergo scrutiny by this technical advisory committee to ensure its validity.
Then the last way is actually on the front end. Our early planning process is one of the areas I was speaking about before in which we have to seek consensus with Indigenous nations with whom we will be in that early planning process working together to determine not only what information was required to be collected for the application, but how it’s going to be required and potentially who’s going to be acquiring that data and information as well. So the conversations about the validity of any particular model, for example, or the methodology that might be used, is happening at the front end, before the data collection is occurring so that each party — Indigenous nations, the public, the company and the regulator — can have confidence in the credibility of the data as it’s being developed.
The Chair: Thank you very much, Mr. Jardine. We are going to continue with our meeting. It’s going to be just ten minutes because we have to be in the Senate at 8:00. Thank you very much.
I just have two points, colleagues.
Senator Massicotte: Is it closed?
The Chair: No, it’s public. We can just continue. No problem?
Senator Neufeld: Are we still connected?
The Chair: No.
Okay. So just two points.
Maxime Fortin, Clerk of the Committee: It’s disconnected.
The Chair: Two points. First, we have to adopt the budget. You received yesterday the budget for the two legs of travel, so we need to adopt it.
Senator MacDonald: I move.
The Chair: You move. Unanimous? Is anyone opposed?
Senator Mitchell: Can you say how big it is? It’s $492,000 dollars and eight people will be going for the whole trip. Not even seven senators will be going on the whole trip for $492,000. And we’re going into Alberta five and six days before an election, just saying.
Senator Tkachuk: That’s about 25 per cent of what the new independent Senate is costing us in extra money. It’s not a bad investment. We get to see Canadians.
Senator Mitchell: Just so we know.
Senator Neufeld: It’s only eight senators going. It’s not going to be that much. They have the budget for the full 14.
Senator Mitchell: Eight senators going both ways, so it’ll be up to 11, but it’s also staff.
The Chair: Let’s put names down. You want me to mention the cost? It is $492,092. So I have a motion to move.
Senator Massicotte: Could I make a proposed amendment to the motion? If you’re actually going to adopt the budget, does it have specific dates of where we’re going on each trip?
The Chair: No.
Senator Massicotte: All right. I move the point.
The Chair: You move?
Senator Massicotte: I second the motion.
The Chair: Do we need to go to a vote, or is it unanimous? Thank you.
We approved in steering that we are going to sit on Mondays. So I’m going to ask for permission to sit on April 1, April 29 and May 6, okay? You can put it in your agendas.
Senator Neufeld: What time?
The Chair: From 6:30 to 8:30. Thank you very much.
Senator Massicotte: I have a question. On our trip, I’m concerned about us going to Alberta during the time of an election campaign. It has normally been our practice to avoid that. Have you considered switching the two weeks around from the west to the east and the east to the west so we avoid that issue?
The Chair: We discussed it. After much discussion, we said we will still go because we are not necessarily going to the big cities. We are going to small communities.
Senator MacDonald: One of the issues was the east trip follows after the Easter Sunday and Monday weekend. We need five days out west. We would have to be travelling Easter Sunday out west and work on Easter Monday, and a lot of people thought that wasn’t the appropriate thing to do.
Senator Woo: I share Senator Massicotte’s concern. I would just ask that we make it a strict policy that we don’t invite politicians to testify or even be in the room as far as possible for our hearings.
The Chair: Okay.
Senator Woo: Thank you. I’m sure you’ve thought about that already.
Senator Simons: When can we make the dates and the locations fully public? Many people are asking me when.
Senator MacDonald: Once the budget is approved tomorrow.
The Chair: Tomorrow we will discuss it again and very soon —
Senator Tkachuk: It goes to Internal Economy and then into the Senate. It will be tabled Thursday afternoon in the Senate, so that’s when you can make it public.
Senator McCoy: I’m sorry, but could you repeat the three Monday meetings at 6:30 p.m?
The Chair: April 1, April 29 and May 6, but you’re going to receive an email.
Thank you very much.
(The committee adjourned.)