Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue No. 58 - Evidence - April 1, 2019
OTTAWA, Monday, April 1, 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 6:30 p.m. to give consideration to the bill.
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, a senator from Quebec, and I am the chair of this committee.
I will now ask senators around the table to introduce themselves, please.
Senator Woo: Yuen Pau Woo from British Columbia.
Senator McCallum: Mary Jane McCallum, Treaty 10 territory, Manitoba region.
Senator Oh: Victor Oh, Ontario.
Senator Seidman: Judith Seidman from Montreal, Quebec.
Senator Eaton: Nicky Eaton, Toronto, Ontario.
Senator Neufeld: Richard Neufeld, British Columbia.
[Translation]
Senator Mockler: Senator Percy Mockler from New Brunswick.
[English]
Senator LaBoucane-Benson: Patti LaBoucane-Benson, Treaty 6 territory, Alberta.
Senator Patterson: Dennis Patterson, Nunavut.
Senator Pratte: André Pratte, Quebec.
Senator Mitchell: Grant Mitchell, Alberta, Treaty 6 territory.
The Chair: Thank you. To my right are the two library analysts and to my left is the clerk of the committee.
Tonight we are continuing our study on 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.
We welcome, from the International Union of Operating Engineers, Mr. Lionel Railton, Canadian Director; and Mr. Steven Schumann, Director, Canadian Government Affairs. From the University of Waterloo, we welcome Professor Robert Gibson.
Thank you all for joining us. I invite each of you to proceed with your opening statements, after which we will proceed with a question and answer period. I think you are first, Mr. Railton.
Lionel Railton, Canadian Director, International Union of Operating Engineers: Thank you very much. Good evening, senators. I am honoured to be with you today to extend greetings on behalf of the 55,000 men and women who make up the membership of the International Union of Operating Engineers in Canada.
Our members are hard-working, highly skilled tradespeople who go to work every day to build and maintain Canada’s infrastructure. We help to construct our nation’s hospitals, hydro dams, mines, nuclear plants, pipelines, roads, schools, solar farms, wind turbines and electrical grids, to name a few. In short, we build it all. We take particular pride that, with our industry partners, we have constructed over 90 per cent of Canada’s NEB-regulated pipelines.
Our members’ livelihoods are reliant on a vibrant economy with a steady stream of infrastructure projects. Government regulation directly impacts the ability of our men and women to provide for their families. The uncertainty of the current regulatory system and the proposed Bill C-69 are prime examples of government regulation impacting the approval of new projects and the employment opportunities that are available to Canada’s workforce.
Labour is a crucial component of major infrastructure development, and the lack of labour provisions in Bill C-69 not only does a disservice to Canadian workers, but it impacts the growth of Canada’s middle class and undermines the effectiveness of the legislation.
One of the greatest risks to major projects is the requirement of a highly skilled, well-trained workforce. Projects are subject to cost overruns, delays, safety inefficiencies and poor workmanship where the supply of labour is not well managed. We believe a labour component within Bill C-69 will help to strengthen the legislation and will assist in mitigating future protests. Additionally, it will stabilize the regulatory system by ensuring communities will be consulted and considered as part of the workforce development.
This can be achieved with the inclusion, in our opinion, of a community benefits agreement, CBA, or project labour agreements, PLAs, as an explicit requirement of proponents seeking to have their projects approved. We suggest amending the legislation’s sections on “project description” and “factors to be considered” to include a labour requirement by way of these types of agreements. We have provided you with some wording for your consideration that was sent earlier today.
These types of agreements are legally binding and enforceable contracts that include provisions for the hiring and training of local workers and under-represented groups, including women and Indigenous peoples. The agreements establish wage levels, enable apprenticeships, and provide funding and economic support for impacted communities. We believe these types of agreements will enhance certainty by ensuring a work-ready labour pool for the project and that the project will be built safely and on time, with little risk of delay due to labour-related issues. These objectives align with the overall goals of Bill C-69.
Examples of major infrastructure projects built under PLAs include British Columbia’s and Manitoba’s hydroelectric generation and transmission networks; Ontario’s nuclear energy generation; Newfoundland’s offshore oil and iron ore production; Saskatchewan’s potash mines; Alberta’s oil sands and refinery capacity; and the newest one, Coastal GasLink pipeline — and we would hope at some point the proposed Energy East pipeline.
It should be noted that this is not a new concept, as a joint review panel recommended PLAs to the NEB for the Mackenzie gas pipeline back in the 1970s.
When the Government of Canada approved the Line 3 pipeline replacement project, Enbridge wisely decided to consult with local communities and labour groups in implementing a PLA. As a result, that project has come in ahead of schedule, under budget and has faced little resistance from local communities along the pipeline right of way.
CBAs and PLAs are valuable for building Canada’s infrastructure. Challenges with projects can be avoided if labour is included in the approval process and considered a forethought and not an afterthought.
Let me dispel one misconception quickly. Those opposed argue that these agreements favour unionized contractors. This couldn’t be further from the truth. All these agreements require is that contractors pay their employees an industry standard wage and benefits, and ensure employees have the necessary training and skills to actually perform the work safely. They are open to union and non-union alike.
Finally, let me turn the focus of the government review approval falling within the new legislation. As currently drafted, Bill C-69, in our opinion, does not clarify the process to ensure projects are assessed in a timely manner. Reforming the way projects are reviewed and approved will only be subject to further uncertainty if the current system’s most glaring problems are not fixed.
If Bill C-69 fails to clearly set out the timelines and ensure that the approval process meets its goals prudently and judiciously, it will be guaranteed that some of the issues that plague today’s approval process will continue. This is not acceptable to Canadians and the workers who rely on these projects for their livelihoods.
To ensure our country and our industry remain vibrant and prosperous, we need to have an approval process that is timely and inclusive of local, skilled workers and local communities. The current legislation does not guarantee that. We look to the Senate to provide guidance and recommendations to address the issues raised. Thank you. I look forward to your questions.
The Chair: Thank you. Professor Gibson, please go ahead.
Robert Gibson, Professor, University of Waterloo, as an individual: Thank you, Madam Chair and committee, for the opportunity to speak. My name is Robert Gibson, and I am from the University of Waterloo. I had an ever-so-attractive slide deck with puffins on it. I hope you have that because I am going to go through that as quickly as I can.
I work on sustainability and complexity matters. One of them is clearly this legislation and its predecessors for the last five decades, I guess.
I am not representing the university. I deal with sustainability matters and that means I get to look out for the interests of future generations — my grandchildren, yours and theirs — which is a bit of a luxury that I think the Senate also enjoys.
If we turn to the main substance of this on the second slide, I’m looking at three major criticisms that have been made of Bill C-69, particularly the impact assessment aspects. We’ll go through them one at a time.
The next slide is about giving too little attention to the economic benefits of projects. I think what I have to say is fairly obvious to you, that the current legislation, the Canadian Environmental Assessment Act of 2012, does not have an entry for direct economic benefits except insofar as they come indirectly and invisibly through the decisions made on “justification in the circumstances,” justification of significant adverse effects in the circumstances made, by cabinet in controversial cases.
If we look at the next slide, number 2, we get this question of political discretion that many people have raised, and which is clearly an important consideration. There is a difference between what we have currently and what is proposed. The current act has controversial cases being decided by cabinet as does the one that’s proposed. The difference is that in the case of the current act, the decision about “justified in the circumstances” is made secretly with cabinet confidence. It is made without criteria. It is made without reasons for decision.
Consequently, it is better at least that the new legislation is proposing that there be criteria for these decisions and that these decisions are accountable in the sense that there are published reasons for those decisions tied to the criteria.
I don’t think that’s sufficient. Lots of other people don’t think that’s sufficient. I’ve proposed a variety of amendments that would address that. I don’t have time to go through them now, but we can come back to that if you’re curious.
The third area is this question of delay, the risk of delay.
As you know, the current law was passed as a streamlining measure. It had some success in that. The problems in the most controversial cases, Northern Gateway and Trans Mountain, were that the decision was timely, or at least it came through in the way that the act anticipated, but it didn’t withstand the court challenge. So the delay in that case was the failure of the process to be sufficiently comprehensive and credible.
The impact assessment act, as proposed, at least provides some increases in comprehensiveness and potential credibility. I don’t think it guarantees that everything is going to be sliding through the possible problems with court challenge, but it certainly increases the odds of success.
Again, I think there are other things that can be done to reduce the problem of undue delay. I’ve listed a bunch of them that are too numerous to go through right now, but I’d be happy to talk about them.
The second part of this delay question is a concern about new requirements. It is certainly the case that the new legislation would bring additional explicit requirements, one of which is explicit attention to the benefits economically, socially, for health, and for ecological matters. The proposed new law has the advantage of being comprehensive, covering positive and adverse effects, long-term and short-term effects, et cetera.
That scope is beyond what the current federal law has done. But it is not far beyond what law in Canada has done. The three territories all have assessment processes that cover socio-economic, cultural and biophysical matters, and they do so in a more or less integrated way. They could do better in various ways, but nonetheless there’s quite a bit of experience. The federal government itself has been involved in sustainability-based assessments in at least five joint review panel hearings and knows how to do it; at least there are people who know how to do it. There is lots of international experience as well. This is not something that is coming from the sky and mysterious.
I think there is serious work that needs to be done on policy guidance in these areas, but that’s not something that can be solved through what we do in this legislation itself, except for requiring regulatory process review, transparency and so forth. There are some things we can do about that.
I’ll leave it at that. We can go back to the other questions. I’ve left you with a final bonus point about trade-offs. One of the things I would be very keen to see is explicit trade-off rules in sustainability-based assessment. I’ve written a couple of books about sustainability assessment. I know something about it, and I think that that would be key. I’ll stop now. Thank you.
The Chair: Thank you very much. None of the deputy chairs are here. We will proceed with Senator Oh.
Senator Oh: Thank you, witnesses, for being here. My question is this. We often hear from the industry that the greatest concern is the combined effect of Bill C-48, Bill C-68 and Bill C-69. Industry leaders have said that this package of legislation will damage Canada’s economic and global reputation. Will members of the union work on any proposed major project, for example, the Eagle Spirit pipeline, if all the three bills passed without these major amendments? Could that prevent major projects like Eagle Spirit from getting built in Canada?
Mr. Gibson: That is a difficult question requiring knowledge of the interaction of three bits of legislation, not all of which I’ve studied. So, first of all, a caveat that I’m not smart enough to answer it.
Second, insofar as I can answer the question from the perspective of the impact assessment act, I think that the kinds of changes that are intended in the proposed law to make the assessment more comprehensive, more open and more credible will make things easier in the end for justification of projects, for planning of projects, and for broad acceptance from the various parties that are concerned currently about such projects. In general, I think that is something that will be improved.
The particular problems that arise include some matters that are essentially constitutional. We have resistance to projects because of inadequate recognition of Aboriginal rights that are constitutionally entrenched. We have opposition to projects because of perceived inequity in the distribution of benefits and burdens, particularly spill risks in the case of the diluted bitumen pipelines. Provincial powers are constitutionally entrenched.
No matter what you do with any of these laws, there is not a magic solution in assessment law. I think the current approach is at least correct, which is to have the most comprehensive — and therefore addressing all the major issues — open and credible process that can you design. I think you can improve that, but I think that the essential approach is correct.
Senator Oh: Professor, is this bill good for our Canadian economy? Is it good for job creation? Is it good for investors coming in for investment?
Mr. Railton: I’m happy to respond. We have executed a MOU with Eagle Spirit to build the energy corridor when and if it gets approval. The answer is these legislations are going to challenge the ability for these types of projects to move forward in an efficient and effective way.
We’re going to speak to Bill C-48 here on Wednesday, and we clearly think that the bill was ill-conceived, to be honest, and I think it’s important that the ability for our product to get to market is critical. I think you can do it in a safe and efficient way. Bill C-48 contemplates shipping traffic of bitumen-type of products or any other products, and I think First Nations have been very clear that they don’t feel it’s appropriate that the Government of Canada not consult with them prior to bringing such legislation in. I’ll let them speak for themselves.
At the end of the day, product is going up and down the West Coast of British Columbia every day from Alaska to Cherry Point. It’s done in a safe and efficient manner. The case of the Exxon Valdez, which everybody likes to throw out there because you had a drunk captain who ran an oil tanker aground that leaked out a bunch of product and damaged the environment, probably forever, is unacceptable in anybody’s mind. However, since that time, a lot of product has moved up and down the West Coast without issue.
We have the technology. We have the ability to do it. The Eagle Spirit Energy Corridor is a very good project. We clearly support it. I think we’ll be talking to the attributes of that particular project and why that tanker ban under Bill C-48 is, frankly, not required at this point in time.
The Chair: As we are studying Bill C-69, I would appreciate if we concentrate on Bill C-69.
Mr. Railton, I have a question. You talked about labour agreements. I would like to you compare the situations with CEAA, 2012 and Bill C-69. Were they there in CEAA?
Mr. Railton: No. We had a labour agreement with Northern Gateway. We have one right now with Eagle Spirit. We have a labour agreement with Coastal GasLink.
Most of the owners will come and approach us early in the process. As you can appreciate, these are very large projects. They are very expensive. The regulatory hurdle is just one major hurdle to get through, but if you don’t have a trained workforce available to do the work when you decide to go and break ground — all of that work is done ahead of time with our industry partners, our contractors and the labour unions that work within the industry.
These projects are such an order of magnitude when it comes to the building of these projects, years of planning is done in advance. We’re part of those discussions all the way through. I don’t know if that answers the question.
The Chair: Yes. Thank you very much.
Senator Woo: Thank you for your appearance today. I would like to ask questions of both of you. I’ll try to go as quickly as I can.
First, Mr. Railton, if CBAs and PLAs are so demonstrably good for the project, for the proponents and the communities, why do we need to legislate it? Why is it not self-evidence?
Mr. Railton: It’s a very good question, and I’m glad you brought it up. The challenge you have is that the enlightened owners who are building these energy projects and bringing these new projects to bear, in most cases, will come to us and talk to us ahead of time. We’re finding challenges now around available workforces, so owners are trying to keep all of their options open.
We think that for most of these projects, the labour component is anywhere from 30 to 40 per cent of the cost of a project. We play an integral part. The challenge you have is when these projects get disrupted in the regulatory review process, a lot of that labour pool gets disbursed off to other industries and is not available to build the projects.
Our thinking is that if it’s legislated and this has to be part of the contemplation of the approval process, then at the end of the day, all of the money invested in the development of that workforce doesn’t get lost.
Senator Woo: Thank you for your answer.
Professor Gibson, there are two items in your 3a slide “Amendments to avoid undue delay” that I’d like some clarification on. The first one is the point to limit screening to ruling on jurisdiction. It’s a bit cryptic. Could you explain that, please? You didn’t have a lot of time to explain, so I’m giving you the chance now.
The penultimate bullet states, “Apply s.63 requirements to regulation and policy making.” Clause 63 is the public interest test. Are you saying that the public interest test should also be the criteria for the regional and strategic assessments?
Mr. Gibson: Yes.
Before I forget the first question, let’s start there. Among the most important innovations in the new legislation is early planning. Early planning means starting the process by which we consider what the effects are and providing guidance much earlier. As we’ve heard quite correctly, responsible proponents are starting way before any of this happens, and much of the decision making is done way before they have guidelines for the impact assessment, which has always been an irrational approach.
We would like to have all of that discussion and guidance begin a lot earlier so that people know what the expectations are; so the conversations about arranging for the host of other factors that have to be considered before project planning — what programs of government are needed, for example — all get on the table earlier.
Insofar as we can do that, we would like to have the focus of early planning on that. But what they have done in the proposed law is to retain the old screening process by which you also determine whether you really need to have an assessment. I think that is inappropriate for the kinds of projects that are automatically on the project list. Consequently, I would say let’s take that screening element out, have concentration on the earlier conversations, and have screening only in the sense that if you find the federal jurisdiction is not involved because the project is evolving in a way that doesn’t —
Senator Woo: So you predetermine that a project will have to go through an impact assessment; is that what you’re saying?
Mr. Gibson: Yes.
Senator Woo: So all projects have to go through —
Mr. Gibson: Unless there’s no federal jurisdiction. That’s only one concern. That’s the first thing.
Regarding the question about clause 63 — the other big thing that is really quite hopeful, although far from assured from the current legislation, is the introduction of law-based strategic and regional assessment. The idea is to address big expectations for dealing with new development in an area — I’ve spent much of the last decade in the Ring of Fire, for example, where the provincial government has refused to have a regional approach to what are multiple projects and all the effects are going to be multiple project effects. They’re doing it one by one.
It would be far wiser and way more efficient for all parties to have a regional approach as to how best to develop this area. Have that regional conversation and have guidance from it. If the guidance from strategic and regional assessments is to be authoritative and credible, it has to have the same scope as what happens at the project level.
Senator LaBoucane-Benson: My question is for Professor Gibson. Certainly political discretion and delays have been identified by many Albertans as something that increases uncertainty in their minds about the bill. In two of your slides, you say that you would limit grounds for cabinet decision extensions, as well as cabinet decision time extensions.
How would you do this? How would you recommend that this is done in this bill?
Mr. Gibson: I think there are specific amendments in the submission. Basically, what would be ideal is that most of the analysis and most of the decision specifics, at least recommendation specifics, come from arm’s-length, independent, non-political, as unbiased as possible experts who have heard the evidence.
I like the expert panel’s suggestion that it be an arm’s-length commission, as opposed to a body of governments reporting through the minister, more subject to political direction. That’s the first thing.
Second, once it gets to cabinet, what you have then, from that early process, is a report that clearly requires the evidence and the recommendations, including whatever conditions of approval are recommended, with the proposed decision based on the clause 63 requirements.
The full proposal — this is what we think you should say as your decision — goes to cabinet. Cabinet is accountable, so they are the ones that properly would make that decision, but I don’t think it should be then another opportunity for lobbying by various interests going to cabinet to say, “This is what we think.” Then we don’t get to see what happens. I don’t think that’s appropriate. I don’t think that’s accountable.
To limit that, at least, you can deal with that infinite extension of the period for decision making by cabinet. I can imagine cases where extension of cabinet time is sensible. You may have to negotiate with provinces about conditions of approval and so forth. Probably, that will happen on occasion. Certainly, it’s happened in the past.
That’s a condition that you can put in. There have to be grounds for the cabinet to seek and give itself an extension. Those can be limited grounds. At the moment, you have no constraint whatsoever on what the cabinet can use as a ground for declaring that it needs more time. Not only does it give cabinet the incentive — or at least the temptation — to go on and debate things they didn’t hear the evidence for, it also provides for more lobbying and less accountability.
I don’t see the justification.
Senator Mitchell: Thank you to all of you for being here.
My first question is to Mr. Railton. You have laid out that the project labour agreement process is very good for assessing labour requirements and labour availability. You explicitly mentioned Indigenous labour availability. It seems that process would also be entirely consistent with gender-based analysis, equality for women and involvement of women in the process.
Many critics of the bill see that as an unfortunate addition to the list of elements to be considered; I don’t. It seems to me that your proposal also would not anticipate a criticism of that. Are you saying that GBA should be part of this process?
Mr. Railton: I believe so and we firmly support it. You can’t ignore 52 per cent of the population. It’s plain and simple. If you do, you do it at your peril.
Currently, women make up 4 per cent of our membership and that number is growing quickly. Boomers are about to exit the workforce. Old, fat people like me are going to step out and young people are needed to step in. The demands for the workforce of the future will be great because their numbers are limited.
I don’t believe at all that any of these measures would impact the ability and the cost of these particular projects going forward in the process because you need these people, plain and simple. You must take the time to understand what’s available to you and, more importantly, what you need for training in the two- or three-year run-up to any major project. We are one of the leading trainers for the industry in Canada. When we meet with the ownership group and they say, “Look, we’re three years out,” we’ll ramp up our training capacity to ensure there is a sufficient skilled workforce available for when the project goes forward.
To answer your question, yes, we think this is a good component. I don’t think it’s broad enough, frankly, on the diversification piece.
Senator Mitchell: You may find me quoting you in my speech at third reading.
Mr. Railton: That’s fine. Please feel free.
Senator Mitchell: My second question is similar, in the same category. In addition to the addition of CBA, climate change consideration and those elements, there is also sustainability. Professor Gibson, it’s clear that you’re an expert on that. I don’t know if you have actually written a book on that, but it seems you’ve been awfully close to it.
Mr. Gibson: A couple.
Senator Mitchell: I know you’ve written a couple of books but, on this specifically, could you elaborate on why sustainability would not be something to evaluate in the assessment of projects like these? There are those who criticize the inclusion of sustainability in this process. It just seems like an obvious thing to include. Could you give us some idea of what it adds and what it offers by doing that?
Mr. Gibson: There are a variety of grounds for resistance. Some of them are, essentially: It’s new and we don’t do it that way. We’ve all heard people resisting things on the grounds of history. So there’s that.
Sustainability is essentially about recognizing the interconnections among things. We say we will look at environment and social and health and economic things, but the genius of sustainability is not the breadth; it’s the interactions among those things. The old Brundtland Commission from back in the 1980s said that you can’t protect the environment without dealing with poverty, and you can’t deal with poverty without protecting the environment; so let’s think of them together. It’s not an either/or; it’s not a trade-off; it’s both together. That’s something that is not commonly done.
I work in an institution where we have specialized disciplines. Crossing the disciplinary boundaries is still difficult after all these years. We run up against government, academic and other kinds of training boundaries that we don’t look across, so it’s just difficult for people to think across those things.
I would argue that we’ve been doing this kind of sustainability-like discussion for three decades. Again, the farther away you get from Toronto, Ottawa and Vancouver, the more likely you have people who aren’t really disturbed by that. In my experience, if you want to have a good discussion about sustainability without having to use the word, go north. All of the territorial processes are way better on that than any of the ones in Toronto; I guarantee it.
Senator Patterson: Hear, hear.
Senator Neufeld: Mr. Railton, I have a question for you. Unless I misunderstood you, you said your agency participated in 90 per cent of the NEB pipelines in Canada?
Mr. Railton: Yes.
Senator Neufeld: That is impressive and it doesn’t surprise me. During that time, we all know there needed to be updates and changes to the legislation. This is a complete rewrite of everything. I think you said it slows everything down and we need the economy and the jobs.
The present government said they had to do this because all Canadians had lost faith in the NEB process. Was that a big issue with your organization? Did you hear it from all your workers? I mean, if you participated in 90 per cent of NEB-regulated pipelines, you obviously did a whole bunch. Was that common? Did those people say, hey, we don’t trust the system anymore?
Mr. Railton: The challenge is the current system has enough flaws and challenges within it that it stalled a number of major projects and has killed a couple. We worked with TransCanada on the Energy East project. When they hit roughly $1 billion-plus on the regulatory review system, another opportunity became available through Keystone XL and, frankly, they decided to shelve that particular project, frankly.
Senator Neufeld: [Inaudible]
Mr. Railton: I don’t know, but I would suggest to you that the current system in which we find ourselves is flawed and it obviously has some issues.
Senator Neufeld: I don’t dispute that. I’m asking did you —
Mr. Railton: You want my view of Bill C-69 and whether or not it would speed it up? Clearly we’re on record saying there needs to be more definitive timelines so that when proponents move forward with a project, they will understand that the project will be reviewed and either green-lighted or stopped at an early stage.
Senator Neufeld: Okay. I guess I can take from that answer that you probably didn’t hear much about not trusting the NEB anymore? I appreciate that. You didn’t really answer, so I’m putting words in your mouth.
Mr. Railton: Let me clarify, because I think it’s a good point. We’re hearing a lot more of the NEB today than we probably have in the last decade. Why?
Senator Neufeld: I could tell you, but my time is running out.
Mr. Railton: I appreciate that, but I want to finish on this note. Pipelines were underground and off the radar screen until roughly a decade ago when everybody became experts in pipelines, including our membership. My answer to you — is it a challenge? Yes, it is.
Senator Neufeld: You mention community benefits and project labour agreements. I’m not having a lot of trouble with that, but tell me: The province I come from is B.C. and I have been involved in a lot of pipelines. Communities and regional governments receive benefits through taxation. That’s been true for as long as I can remember and for as long as I’ve been in politics, and sometimes it’s too long.
Maybe I misunderstood you about community benefits. Could you maybe enlighten me a little bit on that?
Mr. Railton: Our view of community benefits is focused on the development of the workforce and the ability for local communities to find employment on these projects when they go through. That’s not always the case. I live in British Columbia, born and raised. It’s a great province. I love it.
Senator Neufeld: Thank you. I keep telling everybody here, especially people from Toronto. Mr. Gibson cleared that up for us.
Mr. Railton: Especially when it was 20 degrees on Sunday and we had the barbecue started up.
Senator Eaton: Professor Gibson, in your deck where you talk about the benefits, “direct economic benefits enter only through the back door in cabinet discussion.” What weight should we put? I think there should be a huge weight on economic benefits. I would like to think of what we could do if we built those pipelines anyway. Could you talk a little bit more about that?
Mr. Gibson: I’m not aware of any serious sustainability discussions that don’t accept that. I have a set of sustainability criteria that I cobbled from the literature a decade or more ago, and one of the key elements is livelihoods, which is essentially jobs but more broadly defined. The key thing in that from a sustainability perspective, insofar as there is any difference, is what are the lasting jobs?
My colleague here is talking about people who are in it for a generation. The boomers are leaving and they’re going to be replaced. We’re talking about people looking for a livelihood and not just for a period of time but for a longer period.
So, insofar as there is something new in this, it’s not that we’re emphasizing or de-emphasizing economic benefits. The new part is looking more into the longer term about how long this will last and what will happen.
When we’ve had sustainability based assessments in Canada, the first one from a joint review panel was Voisey’s Bay and the key thing in that case was to extend the life of the mine by reducing the size of the concentrator so that, instead of seven years of production guaranteed, perhaps we get 20. That was a condition of approval, which was accepted eventually and the mine is still in operation.
So you have that concern — lasting livelihoods — which you would not have had in the absence of the sustainability consideration. I think that is an important innovation. I think it will make some changes to business as usual, but, as we’ve heard from industry people, that’s nothing new, thinking about long-term employment.
Senator Eaton: No, and Senator Patterson and I heard a lot about that in the Arctic Committee this morning. I couldn’t agree with you more.
What we don’t hear about so much though in bills like this is when I see “direct economic benefits,” yes, it creates jobs but the wealth it would bring into Canada which would benefit our health system, our education system, so much so that I sometimes feel we’re cutting our nose off to spite our face.
Mr. Gibson: There are case-by-case differences in all that and I don’t have a broad answer, but by and large, if we have a sustainability-based approach that is comprehensive of positive and adverse effects across the range, then we should be looking at not just the immediate job effects but the secondary effects, the effects on the broader provincial and national economy, but also the negative effects.
When we get all enthusiastic about the job implications and the anticipated revenue possibilities, we get the Lower Churchill Project. You have to look at the positives, the negatives and the long term. The panel recommended long-term examination of the net revenue effects of this project and the province refused to do it.
Senator Eaton: Don’t you think we’ve learned a lot in the last 10 years, ever since that terrible oil spill in northern B.C. and Alaska?
Mr. Gibson: Yes, we have, but Lower Churchill is a project in Newfoundland and Labrador. If there is any place that ought to have learned from the enthusiasm about development projects crashing and burning it’s the Province of Newfoundland and Labrador, and yet we still have this.
So, yes, we’ve learned a lot, and yes, we’re getting better at these things, but I don’t have a problem with the legislation.
Senator Eaton: Are you talking about Muskrat Falls?
Mr. Gibson: Yes.
Senator Patterson: Professor Gibson, thank you for your compliments about the superior processes in northern Canada under the land claims agreement. And by the way we do have impact benefit agreements that look after employment as required for every project.
Under our land claims made-in-Nunavut process, the same agency does impact assessment licensing and life-cycle monitoring. Now, Bill C-69 potentially sets up three different processes with different players and it takes over 400 pages to do that.
Would you comment on the differences in those approaches?
Mr. Gibson: To add to your compliments to Nunavut, you also do strategic level assessment and that guides project level work, or it will increasingly do so.
It’s useful to look at this on three levels. We’ve had regulators for a long time. The NEB is from the mid-1950s, roughly. A regulatory body typically does a job requiring considerable technical expertise to deal with specific regulatory considerations.
Environmental assessment came out of that tradition insofar as it evolved out of environmental pollution law, but it pushed it also up to the planning level. Through the whole history of assessment legislation, it has been planning legislation as opposed to regulatory legislation. It gets in earlier and deals with bigger stuff. It needs to be integrated with the regulatory licensing thing, but it’s a different process.
Should it be done by somebody other than the life-cycle regulators, as they’re called? Well, in Nunavut it probably makes a lot of sense to do it exactly as you’re doing it. For all of Canada, when you have different regulatory specialties that are required for different kinds of projects, having one omnibus assessor/regulator for everything, I think that’s probably too demanding. I don’t think it’s in the cards. I haven’t been able to think through a way you could integrate all that together.
Even with the strategic and project level stuff, there tends to be some kind of separation there. I’ve been advocating a process that is clear at the strategic and regional level, so you get more confidence in the kind of process and the kind of product. The current law doesn’t say anything much about what kind of report comes out of strategic and regional assessments. What happens out of that report? Can you take that report and turn that into authoritative guidance? That’s a weakness. There are lots of other jurisdictions, especially in Europe, that have a much clearer way as to how that works, so I can see much improvement there.
I don’t think an omnibus approach would work here, but I can’t say that I’ve tried to find out how it could work. It sounds too demanding to me.
Senator Patterson: Is the International Union of Operating Engineers affiliated with Canada’s Building Trades Unions? You say many of your workers work on pipelines. Do you agree with what the Canadian pipeline industry has said: It is difficult to imagine a new major pipeline being built in Canada if Bill C-69 passes?
Mr. Railton: Yes, we’re part of the building trades. We’re one of the affiliates.
I can’t see a pipeline moving forward under the current regime. Obviously there are lots of questions that need to be sorted under Bill C-69.
In addition to building the pipelines, we manage very large workers’ pension plans that flow through these community benefits and PLAs, and we actually look to invest in these things. I can tell you right now, we would not be looking. We believe fossil fuels have lots of legs and lots of opportunities as far as an investment tool. We would not be looking at investing in a pipeline right now. We couldn’t do it.
Senator McCoy: As labour minister, I saw some of the PLAs at home and they worked very well. They brought projects in on time and on budget, so I am pleased you brought them forward to the table.
I think we should acknowledge, since we’re talking about Nunavut, that today is the twentieth anniversary of it becoming a territory, and this gentleman here was probably pivotal in making that happen.
Hon. Senators: Hear, hear!
Senator Patterson: Thank you very much.
Senator McCoy: It’s one of the significant dates in Canadian history.
Senator Patterson: Thank you.
Senator McCoy: Let me turn to Professor Gibson, if I may. The more I listen, the more I think we should have just left our environmental legislation the way it was before anyone got their hands on it in 2010 and 2012. If we go back to the original acts, they were far better. Much of what we’re talking about now is really just trying to codify what we did well in the past. Much of it also depends on decisions and management decisions. Unfortunately, you just cannot legislate wisdom. What 2012 and 2019 are doing, I think, is trying to legislate wisdom or management expertise, which isn’t easy to do.
Let’s take the timeline question. I think I have time to ask this and maybe a supplemental.
You think cabinet should only be able to extend a final decision once, or at least in very limited circumstances. There is a five-year timeline set out in Bill C-69. If you add everything up, from planning through to final decision, it could even be five and a quarter years. If you say it goes to the minister and then the minister refers it to the cabinet, that’s five and a quarter years that’s allowed for this process. Yet you say the only thing we should do is not let cabinet extend it. Why would you not just eliminate the cabinet decision?
Mr. Gibson: My quick answer is that I would recommend that Ontario’s old approach would work, which was that the independent body recommending to the provincial cabinet had that recommendation stand unless it was reversed by a cabinet within a limited period of time. That’s the old Ontario environmental assessment legislation.
I quite like that. I think it was very sensible. I just didn’t think it was going to fly, so I didn’t try to get shot down.
Senator McCallum: Thank you for your presentations and for being here today. My question is for Mr. Gibson.
You said that ecological and social factors don’t get the attention of immediate economic concerns. They are, nonetheless, the foundation for economic viability and lasting well-being. I agree with that.
I don’t think I can say enough that there has been devastation caused to Indigenous lives and on Indigenous lands. I understand the relationship is changing between industry and Indigenous representatives, but it hasn’t reached its full potential yet.
My question is: Despite all the existing scientific knowledge of industry in their narrow field of specializations, for example, hydro dams, Indigenous communities and some municipalities still continue to have ongoing devastation by ongoing projects. The one I was looking at was Muskrat Falls. It has had many problems; being built on a clay bed, the collapse of the cement, the lowest bidder and the forensic audit. Would problems like Muskrat Falls continue to occur with this new law?
Mr. Gibson: I’m not in a position to offer any guarantees on that. I just think the odds of that happening are lower. The comprehensive approach would mean that the panel’s recommendations on the economic elements would be more likely to be taken seriously and applied.
I think the act makes a small step towards better recognition of Aboriginal and Indigenous rights, so not just the constitutional ones. But my Indigenous colleagues say that they would like to go a good deal further and, by all means, listen to them.
Senator Mockler: Thank you for being here. I want to talk about Energy East. The Council of Atlantic Premiers wrote a letter to the Prime Minister, and they brought to his attention major concerns. I’ll just give you a few quotes, and then I’ll give you the question.
The four premiers say they have concerns. This letter is dated February 27, 2019. It says that we are concerned that:
Nevertheless, we are concerned collectively . . . ensure that key items in an assessment are well defined at early stages . . . ensure that the assessment process is calibrated to exclude short-term projects and activities with proven mitigation strategies such as offshore exploration wells; ensure that the nature and scope of public participation can be clearly established in the assessment process and not left ambiguous and open to challenge.
I believe as a parliamentarian, First Nations have to be part of that process. I’ve heard you on this.
We are concerned. This morning in the little border town where I live, Saint-Leonard, with the increase of carbon tax, for every car filling up in Saint-Léonard, there are 10 cars filling up in Van Buren, Maine. There is a 33-cents-per-litre difference. I know how pipelines should be important for us and how economic activity should be important for us.
With that said, what failed TransCanada Energy East was not the NEB. What failed Energy East is when you look at the $1 billion plus that was spent by TransCanada. What failed Energy East as a nation-building project was when we had the Government of Quebec under Premier Couillard who said, “No pipelines in my backyard.”
Can you expand on that? How can we help Canadians understand the economic impacts, Professor Gibson and also to Mr. Railton?
Mr. Gibson: I’m the opening act for this then. Well, the process being more comprehensive should give more direct attention to the full range of things that people are concerned about. But the constitutional allocation of power to the provinces is something that is beyond the legislation. We can debate whether the provinces should have the ability to resist Energy East or to resist carbon pricing. You take one side or the other. However, there’s a solid question that doesn’t get answered by this legislation and won’t. It’s not going to address Indigenous rights either. It’s going to recognize them, but it’s because it’s based on the constitution. So you can have whatever legislation you want, it’s not going to happen. The assessment law is not where the problems lie and not where the solutions lie.
One of the other things you mentioned was clarifying the expectations. If the early phase of assessment works properly — which is not guaranteed, but it’s hopeful — then it should be identifying case-specific timelines. It should be identifying case-specific requirements, expectations, scoping and a variety of other early recognition of what kinds of things are expected of proponents and other players, who is involved in the process, including the participation arrangements. All that should be clear.
I think that’s going to require a good deal of work and a good deal of scrutiny by all considered to make that work well, but it’s a crucial part of making this a better process. I think virtually everybody agrees that that’s going to be central.
There are some other areas where I think we can do a better job through policy, but I have to stop.
Mr. Railton: Energy East is a crucial nation-building project that we support totally. Frankly, it’s one of the only projects in Canada that should be prioritized to come forward and be in the nation’s interest or the national interest.
The simple fact is it’s not only the pipeline. The pipeline is just a delivery mechanism. It’s all the upstream capacity that will flow and all the jobs that flow across Canada, starting in Alberta and moving across, and the ability to expand our refining capacity on the East Coast and diminish our reliance on oil from elsewhere.
If we are one of the richest and wealthiest countries in the world when it comes to energy and we’re not self-sufficient, that makes no sense to me. I don’t have the degree that my friend next to me has, but common sense would prevail. The simple fact is if there’s any country in the world that should be self-sufficient when it comes to energy, Canada should be it.
The Chair: Thank you very much for your testimony and the answers you have provided. It is very much appreciated.
For the second portion of this meeting we welcome, from MiningWatch Canada, Mr. Jamie Kneen, Communications and Outreach Coordinator; and from the Federation of Canadian Municipalities, Mr. Brock Carlton, Chief Executive Officer, and Mr. Matt Gemmel, Manager, Policy and Research.
Thank you for joining us. I invite you to proceed with your opening statements.
Jamie Kneen, Communications and Outreach Coordinator, MiningWatch Canada: Thank you for the opportunity to be with you today. I would like to begin by acknowledging that we are on the unceded territory of the Algonquin nation. This fact needs to shape our discussions here.
In the interests of time, I’ll jump right in. My focus today is on Part 1 of Bill C-69, the impact assessment act. Frankly, we find it to be a disappointment. It replicates the failed CEAA 2012 too closely, with a designated project list, a proponent-driven process and artificial time limitations.
At the same time, it is important that this bill becomes law. It brings important innovations and takes at least first steps toward an impact assessment process to meet the 21st century. Among other things, it recognizes Indigenous authorities, it makes sustainability a core element in decision making, and it recognizes gender-based analysis and related social factors as critical components of assessment.
Regarding public participation, there is concern that open public participation will lead to thousands of interventions, derailing and delaying the process. But if an environmental assessment, an inherently boring process, is attracting that much public attention, it is a clear indication of failure. Often projects fall into a policy void, where questions that go well beyond the scope of a project assessment become central issues because they’re not being addressed anywhere else.
The way out of this is to ensure that there is active public engagement and solid evidence-based policy development on those issues, as well as effective long-range planning and evaluation of different development scenarios and pathways through regional strategic assessment.
Bill C-69 has at least basic provisions for such processes. It also includes an early planning phase, an important innovation, and improved public access to information, as well as stronger use of science and traditional knowledge.
The very purpose of modern impact assessment is to integrate public and community concern, knowledge and priorities with technical and scientific considerations in order to make better decisions. Failing to make public involvement meaningful, or worse, curtailing it, puts at risk the integrity and the legitimacy of the whole process. There should be no standing test and the bill should be amended to recast arbitrary, legislated timelines as performance objectives established by regulation, along with specific criteria to govern their application.
Regarding what gets assessed, Canadians and Indigenous peoples were shocked when Bill C-38, CEAA 2012, did away with assessments of thousands of smaller projects, narrowing the process to a few dozen major projects a year. Bill C-69 continues this retrograde approach.
The government has not revealed its designated project list regulation, but indications are that it will not include triggers that would ensure the projects that would, for example, infringe on critical habitat for endangered species or contemplate destroying significant natural waterbodies are subject to assessment and required to undergo panel reviews. At minimum, clause 9 should be amended to specify that anyone may request the minister to designate an activity for review.
Regarding a single assessment authority, one of the most glaring failings of CEAA 2012 has been having regulatory agencies, the NEB and CNSC, run environmental assessments. The public clearly is not comfortable with either the way the processes are run, or the close relationship between the agencies and their client industries.
Regulatory agencies have important expertise to bring to impact assessment processes. They are not equipped, or competent, to actually run them. Unfortunately, this bill gives not only the NEB and CNSC exaggerated roles, but also the offshore petroleum boards. It should be amended to correct this error.
Regarding discretion, the bill’s undefined public interest test leaves the door open for decisions to be made on the basis of political convenience. Government discretion must have clear legal constraints and it must be made as transparent and accountable as possible.
The bill should be amended to tie the clause 63 decision-making factors more closely to clause 22 factors to include an assessment, including a requirement for regulations, setting out decision-making principles in each area, and creating a requirement for specific criteria to be established in individual assessments.
Impacts on treaty and Indigenous rights and the outcomes of nation-to-nation processes should also be made determinative and not just considerations.
Finally, regarding the review of the act itself, we are greatly concerned that there needs to be a thorough evaluation of critical structural aspects of the impact assessment act. We recommend that the minister, through the impact assessment agency, undertake a short-term review of the new act and bring a package of housekeeping and substantive amendments before Parliament within a couple of years.
The proposed 10-year parliamentary review will come much too late. Indeed, it should be changed to a five-year review cycle and it should be ministerial, not parliamentary, in order to allow it more independence.
Thank you for your time.
The Chair: Thank you very much.
[Translation]
Brock Carlton, Chief Executive Officer, Federation of Canadian Municipalities: Thank you very much for having us today.
[English]
The FCM welcomes this opportunity to bring the municipal voice to the Senate’s review of Bill C-69. With responsibility for 60 per cent of the country’s public infrastructure, municipalities help drive Canada’s economic prosperity, environmental sustainability and quality of life.
As environmental and economic leaders, municipalities understand and support federal efforts to improve environmental assessment processes. Municipalities are uniquely impacted by these processes — sometimes as proponents, sometimes as interested participants, but always as an order of government protecting the interests of our citizens.
Municipalities are regular participants in environmental assessments where outcomes have a local impact on areas of municipal responsibility — for example, environmental sustainability, public health and safety, emergency response planning, land use planning, and construction and maintenance of municipal infrastructure. At the same time, many projects, including those within the resource development sector, are important to economic prosperity and quality of life in local communities.
I would like to start by highlighting that each of the expert panel and house standing committee reports that informed the changes proposed in Bill C-69 noted the unique and growing role of municipalities within environmental assessment processes.
With regard to Bill C-69 specifically, FCM supports many of the changes proposed in the bill. FCM supports the proposed approach of having designated projects jointly reviewed by the proposed impact assessment agency and the relevant federal life-cycle regulators.
We support the establishment of an early engagement phase. We also support broadening the scope of assessments to include economic, social and health impacts.
Still, we believe that Bill C-69 does not go far enough in recognizing the critical role municipalities play during impact assessment processes. For that reason, when we appeared before the House of Commons committee studying the bill, FCM asked for the following amendments to the bill:
First, that clause 11 of the impact assessment act be expanded to expressly include consultation with municipal governments.
Second, that “comments from a municipal government impacted by the designated project” is added as one of the factors that must be considered by the impact assessment agency of Canada under subclause 22(1) of the impact assessment act.
Third, that as a result of the above amendments, consultation with municipalities is added to the preamble of the impact assessment act, making it clear that this is an objective of the legislation.
FCM strongly believes that early engagement with municipalities leads to better outcomes. We are also calling for consultation with municipalities to be included as a required component of the initial project description that proponents must file with the impact assessment agency.
As you may know, your colleague Senator Forest will be proposing amendments to Bill C-69, and it is our view that these changes will achieve FCM’s goal of ensuring that municipal views are considered in these processes. Our recommendations and the amendments proposed by Senator Forest are two paths towards the same end.
I would also like to touch on the changes proposed in the Navigation Protection Act. FCM has consistently recommended aligning the legislation with current transportation demands, which depend more on the construction of bridges and roads than expanding water navigation.
In 2009, the scope of the act was refined with input from municipalities to include an exemption for minor works and waters with little impact on navigation.
Several amendments in 2012 brought aspects of the legislation closer to Canada’s modern realities. These changes address municipal concerns about project delays and expenses caused by federal reviews triggered by small-scale projects.
The proposed Canadian navigable waters act includes changes that FCM did not call for and that will have significant impacts on municipalities. These include a new requirement that project proponents notify and consult on proposed works on all navigable waters, including both scheduled and non-scheduled water bodies, and a new resolution process that would allow the Minister of Transport to review navigation concerns on non-scheduled water bodies.
FCM expects these changes will result in significantly more municipal infrastructure projects falling under federal review. We are concerned about the expansion of the scope of the legislation to include effectively a new class of works that fall outside of the existing minor works and major works categories. These in-between works are likely to include municipal infrastructure projects that are critical to public safety, transportation and commerce — for example, bridges, water-control structures and flood-mitigation structures.
To address this issue, we’ve recommended three ways that Transport Canada can help to ensure these changes don’t result in undue administrative burdens. You can find these three recommendations outlined in our submission.
Recently, Transport Canada informed us that the new act would also apply to existing works requiring application for approval or notification on consultation whenever any work, other than minor work, is required on an existing structure.
As a result of this new information, FCM is joining other industry associations in calling for two specific amendments to Bill C-69. The first one is to amend the Canadian navigable waters act to explicitly state that the prohibition in clause 3 and the obligations in clause 5 and clause 10 do not apply if there would be no interference with navigation; and, second, to broaden the list of criteria in clause 10.4 to include social disruption or a breakdown in the flow of essential goods, services or resources in order to adequately acknowledge the hardship and complexity created by damaged infrastructure in an emergency.
In conclusion, I would emphasize that municipalities understand the need to balance economic activity and environmental protection as complementary priorities. We believe our recommendations help achieve this balance, and we look forward to being able to support Bill C-69 with these amendments. Thank you very much.
The Chair: Thank you. I remind senators that they have three minutes. If you keep your preambles short, there will be more opportunity to hear answers and for a second round.
Senator Seidman: Thank you very much for your presentations.
I’d like to address my question to you, Mr. Carlton. The committee received a brief from the Union of Quebec Municipalities. They said the Canadian navigable waters act could create “more red tape for municipal projects, and possibly resulting in increased costs and delays.”
Are you concerned that Bill C-69 will create costs and red tape for municipalities, which would, of course, ultimately raise costs for municipal taxpayers?
Mr. Carlton: I think we’re particularly concerned about this “in-between works” category that has emerged in the legislation as it currently is. It does, as I said, affect many of the municipal systems and would increase costs and cause delays.
Senator Seidman: That’s basically what you’re saying in terms of costs and red tape for municipalities: It is that in-between category?
Mr. Carlton: Yes.
Senator Seidman: Is that the only provision in the bill that would need to be amended in order to prevent additional red tape for municipalities?
Mr. Carlton: I think that’s the most obvious one.
Matt Gemmel, Manager, Policy and Research, Federation of Canadian Municipalities: Following on Brock’s comments, in regard to the Navigation Protection Act, in particular, we are making six recommendations. The first four are not specific amendments to the bill, but more subsequent direction to Transport Canada — which we’re hoping the committee would include in your recommendations — that address some of the concerns around red tape and the increase in administrative costs resulting from the changes to the bill.
We recognize that navigable waters are federal jurisdiction. We’re not challenging that. That oversight is going to lead to some additional costs when planning projects, but it needs to be reasonable and it needs to be balanced with what the impact is on navigation.
We think that reviewing the minor works regulation that exists now and assessing whether some additional types of works, activities or undertakings could be added to that regulation would be one way to do that.
We think that sticking to the timelines that are in the bill would help reduce untimely delays to projects, so that projects aren’t missing construction seasons and that sort of thing.
Especially for smaller municipalities, the process of notifying the public, which is a new part of this bill, needs to be as streamlined and administratively easy as possible. We understand from speaking with Transport Canada that they intend to have an online process where it’s easy to post a work for consultation. I think that’s the right kind of approach.
The two additional changes to Bill C-69 that we’re proposing today are around existing works and making sure the bill doesn’t add costs for existing works.
Senator Woo: First of all, Mr. Kneen, the one area where your comments are in sync with industry interventions is in the link between clause 22 and clause 63. You seem to be saying almost exactly the same thing, but I want to clarify.
Are you saying that there shouldn’t be a public interest test, or that there has to be an explicit linkage between the clause 22 factors and clause 63? If it is the latter, how would you do that? The public interest test is very broad, whereas the clause 22 factors are quite specific.
Mr. Kneen: It is the latter. The point is to try to put specific constraints on that determination so that there is some relationship between the investigation, the assessment process, the work that goes into that and the decisions that are made at the end.
I think that’s actually a core objection to making that determination as open-ended as it is with the public interest test. Part of what we’ve been pushing for is, as Professor Gibson was saying, to draw a clear line between the arguments that are being made examined in the assessment process and the decisions that are being made so that there is accountability, so that there is — from the public perspective — an ability to see how those considerations are turning into decisions.
Senator Woo: Thank you.
For Mr. Carlton, if I may. If the municipalities were in fact codified in the legislation as being partners that have to be consulted and so on, would municipalities expect to receive funding for their participation in the consultation process?
Mr. Carlton: I don’t think so. I think it’s part of their expectation as an order of government that they would be consulted as part of the process of planning.
Senator Woo: That’s very good. Thanks.
Senator Patterson: I’d like to ask Mr. Kneen about his statement in the context of describing CEAA 2012 as flawed. Your organization is concerned about the close relationship between agencies and their client industries. Are you questioning the independence of the National Energy Board and the Canadian Nuclear Safety Commission?
Mr. Kneen: We don’t have direct experience with the National Energy Board. There’s certainly been a lot of public discussion and documentation of that relationship. But I can speak —
Senator Patterson: Which agencies were you talking about then?
Mr. Kneen: I’m referring, on the one hand, to the public discussion around the National Energy Board and to our experience with the Canadian Nuclear Safety Commission.
If you look at the movement of individuals between the industry and the regulators, if you look at the way that the regulators operate and the way they undertake their assessment process essentially as regulatory hearings, it’s clearly designed to suit the needs of the industry and not of the public.
Senator Patterson: You’d rather have panellists that have no connections with the industries they are regulating?
Mr. Kneen: I wouldn’t say no connections. I would say, clearly, there is a need for experience and I think the recommendation that we’ll be making is for one representative of a regulatory agency to be part of a review panel — no more than one, and not the chair — and that those assessments themselves have to be run by the impact assessment agency.
Senator Patterson: Your organization is, I understand, partially funded by the Ford Foundation and the Tides Foundation. Is that correct? And are your organization’s foreign donors supportive of Bill C-69?
Mr. Kneen: Yes, our funding is on the public record. Those donors are not engaged in Canadian political activity. The work that I am paid to do sitting here today is from other funders who are Canadian and quite happy to support political activity.
Senator Patterson: You talk about, on your website, and I quote:
Canadian mining companies operate around the world and dominate the sector in number and the amount of capital raised for exploration. But there are no regulations or controls on their activities to prevent them from profiting from weak protection for the environment, workers, indigenous peoples and human rights in host countries.
None of the top-10 mining companies in the world by revenue are Canadian. Could you clarify what you meant by Canadian companies dominate the sector, and do you believe Canadian mining companies don’t comply with regulations when they operate in foreign countries?
Mr. Kneen: The figures are from Natural Resources Canada and from the Toronto Stock Exchange, indicating that the largest number of mining companies in the world are Canadian and the vast majority of the financing is also through Toronto. The total fluctuates between 30 and 40 per cent of all of the mining financing in the world is also through Canada. Again, over and above Australia, England, et cetera.
Senator Mitchell: Mr. Kneen, my first question concerns your point about political discretion and the assessment of public interest. You’re not suggesting for a minute that, it would seem to me, the technical people who would be on the CER, the CNSC or an offshore board — or even for that matter an agency or a panel review of any kind — would be the people who would be best suited to assess public interest or public good. An engineer, an environmental scientist — I don’t mean to be rude about Professor Gibson.
Mr. Kneen: I won’t comment on Dr. Gibson’s qualifications.
Senator Mitchell: We’re talking perspective here.
Mr. Kneen: You’re talking about staff members of agencies?
Senator Mitchell: What I’m saying is: Isn’t there a role for a political, elected person with a broader scope of the nation and of the impact of these kinds of processes to assess public interest and the public good in these projects that goes beyond the technical review of a pipeline, for example?
Mr. Kneen: That is a long-standing debate even among environmental groups. The model that the expert panel proposed was more of a tribunal, so that there could be, perhaps, a political decision at the end of the day, but it would be made on the basis of the technical assessment being as robust and thorough as possible. There would actually be not just recommendations, but there would be a decision that cabinet would have to overturn at the end of the day, if it felt that there were reasons to do so.
I think that is not a bad model. The reason is, simply, that it’s not a matter of technical agency staff doing assessments, it’s a matter of — and especially when you get to a panel review — people who do have broad expertise but who have taken the time and subjected themselves to an in-depth process of examining the ins and outs of various aspects of the proposal. They should have had the benefit of input from the same parties and the same experts, but they will have had much more opportunity to look at it in-depth.
The political considerations, and I think in our parliamentary system that’s unavoidable, but I don’t like it.
Senator Mitchell: I kind of hope so.
Mr. Kneen: I think there is an active debate in this country at the moment about how much political decision making should be.
[Translation]
Senator Mockler: As for the comments about Senator Forest, I have to tell you that you are lucky to have someone like him speaking for you on amendments affecting municipalities. No one knows the network as well as he does.
I would now like to bring up the issue of the Association francophone des municipalités du Nouveau-Brunswick —
[English]
— the Cities of New Brunswick Association, and the Union of Municipalities of New Brunswick. I think those three acronyms put into perspective we’re touching all the municipalities or municipal leaders in New Brunswick.
Also, I want to touch on Atlantic Canada. Do you feel that you have consulted enough in working with Atlantic Canada? When I see your statement that our diverse 2,000 municipalities represent more than 90 per cent of Canadians, do you feel that you have consulted and you have the support of Atlantic Canada and many from New Brunswick like the Association francophone des municipalités du Nouveau-Brunswick.
Mr. Carlton: All of those provincial associations, including the Association francophone des municipalités du Nouveau-Brunswick, are members of our board of directors. They are part of our decision-making mechanism. We have the lucky pleasure of a board of 75 people. So we get lots of input from different places across the country, including Atlantic Canada. So our positions are taken by the board as a voice of the sector.
Senator Mockler: Mr. Kneen, can you expand when you say about politicians’ political convenience? What do you mean by that? It’s the people that elect their representatives. It’s not you and I. We’re just one of them. What do you mean by that?
Mr. Kneen: What we’re advocating is a decision-making process that is as thoroughly informed as possible on the technical implications of the project, the environmental and other considerations. This is where Bill C-69 expands those criteria, specifically to include social and economic impacts, and to try to place those discussions in a public forum where they can be explored, interrogated and evaluated in a way that will allow for more fully informed decision making.
I think it’s not really controversial to say that there are political interests that go beyond those considerations, and the point of trying to remove the impact assessment process from those considerations is precisely to allow the public to see directly what those criteria are. The decisions are not being made in a cabinet black box. They are not being made by a minister based on I don’t know what criteria. It is that opacity that creates distrust.
The point is to make it as transparent and accountable as possible by having all of those discussions out in the open. What are the economic impacts? What are the benefits? What are the displacements? What are the costs? And to have those actually investigated and discussed, because we have found often that proponents for the sake of attracting investment may make rosy claims about the prospects of their success and decision makers and the public deserve to know how reliable those are.
We don’t want to be in the position of approving a project on the assumption it will run for 20 years and provide all of these benefits when, in fact, it’s barely viable and, if market conditions are a little bit unstable, it might last five or seven years and leave everyone high and dry.
Senator Eaton: Mr. Kneen, I’m kind of simple and I need a little more explanation. MiningWatch Canada is partially funded by the Ford Foundation and the Tides Foundation. My understanding — and I did a Senate study on this — is that Tides takes in money anonymously and Tides U.S. funnels money to Tides Canada. We don’t necessarily know who it is. It’s anonymous, and that’s very nice for a lot of donors.
I was just wondering, because your answer to Senator Patterson was that you don’t use U.S. money for activities, do you have several lines? This is for Canada; the Ford Foundation money goes to what, for instance? I mean, how do you know where the money goes, how do you divide it up, and how would you know? Then I’ll let you answer the question, how do you know that Tides Foundation money is not American?
Mr. Kneen: We have financial systems in place. We have annual audits. We’ve been audited by Revenue Canada and I’m —
Senator Eaton: I’m sure you’re very exact, but how do you know that you’re not being funded largely by U.S. donors coming through Tides?
Mr. Kneen: I’m sorry, do you have a question related to Bill C-69?
Senator Eaton: Yes, it is, because I don’t want other countries influencing legislation we pass in this country dealing with our natural resources or to deal with any legislation. So, when I see something like MiningWatch Canada being funded by the Ford Foundation and Tides and you can’t say, “No, we absolutely segregate our American money and that none of it goes towards anything to do with Canada,” it makes me suspicious.
Mr. Kneen: If it will make you happy, they also insist on that.
Senator Eaton: Who does?
Mr. Kneen: The funders insist on knowing what their money is spent on.
Senator Eaton: Yes, but that’s not telling me — so what is their money spent on?
Mr. Kneen: It is spent on research. It is spent on public education outside of the political process —
Senator Eaton: And none of it has to do with any Canadian legislation?
Mr. Kneen: No. They insist on that. You should know that. It would be illegal.
Senator Eaton: No, it’s not illegal. Not if it’s Tides Canada —
Mr. Kneen: It would be illegal under their governing laws in the United States.
Senator Eaton: I’m sorry, I don’t want to fight with you.
Mr. Kneen: I’m sorry. You asked the question.
Senator Eaton: If they give money to Tides U.S., it is anonymous. Tides U.S. has every right to give money to Tides Canada. We did a study on this in the Senate. It can be U.S. money. You can be funded right now by the Tides Foundation —
The Chair: Do you want specific information? Maybe he can send it to us.
Senator Eaton: He can’t give it to me, or he won’t give it to me. Thank you, senator, I’m fine. Thank you.
Senator Neufeld: Thank you, gentlemen, for being here and bringing your ideas forward.
Mr. Kneen, the first question I have is about designated project lists. I’m a firm believer in a designated project list of size, however they determine it to be. Did I understand you to say that every project should actually have an environmental assessment through something similar to Bill C-69, or did I misunderstand you?
Mr. Kneen: No. What I was pointing to is the shortcomings of the project list in that those categories of projects are potentially inaccurate and potentially inadequate to deal with new technologies and new proposals, and what we’re missing is the ability to easily incorporate additional projects. So, considerations that are not on the list, for instance. We need to be able to have the flexibility to designate projects into the list. It’s not clear in the legislation how that happens. The minister makes a determination. We want to be sure that it’s possible for anybody to say, “Look, this project is coming and should be considered.”
Senator Neufeld: There is no project list now. Have you seen a project list?
Mr. Kneen: No. That’s my point. We don’t know what it looks like.
Senator Neufeld: You would like to see a project list.
Mr. Kneen: We understand that it will have an uncanny resemblance to the existing one.
Senator Neufeld: That’s good to know, because the original one for me works.
In your determination, how would you determine what other projects would be reviewable? Give me an idea of how you would do that. I mean, there are so many things going on in such a big country, and ones that should be going through environmental assessments, as far as I know, at least in the province I come from, are going through environmental assessments.
When you start talking about provincial jurisdiction, do you think that Bill C-69 should usurp provincial jurisdiction? Coastal GasLink, for example, or any other project that goes on in British Columbia, because someone decides, hey, this project, we should review it.
Mr. Kneen: For one thing, I don’t think that we should be looking at supplanting or usurping jurisdictions. We should be looking at cooperative and collaborative approaches between jurisdictions. We’ve been trying to get some attention —
Senator Neufeld: That happens with B.C. and the federal government today, so —
Mr. Kneen: Under the previous act there were harmonization agreements, joint processes and so on. There is no reason that that approach can’t continue or be reinitiated.
In terms of how projects are brought into an assessment process, the bill does provide for a technical advisory committee. We have said that would be the group that should assess those proposals. So if I think there’s a problem with a new project, I would submit it and that would be the group that would then make a recommendation to the minister. I think that would apply to other things as well. That should be the body that looks at the need for regional assessments, for instance, and set priorities based on —
Senator Neufeld: I have one more question —
The Chair: Sorry, Senator Neufeld.
Senator McCoy. I’m sorry.
Senator McCoy: Sorry, Senator Neufeld. We’ve got a tough chair here keeping us in line.
I will address my questions to MiningWatch. Mr. Kneen, I’m interested in your comment around political convenience as well. It harkens back to my earlier comment that if we go back to original legislation, we might be better off.
In 1932, we introduced the oil conservation board in Alberta and it was tasked with finding in the public interest. Then 1959, I think, is when the NEB came into being, and the NEB was asked to find in the public interest. So there’s no doubt that — and neither one of them had political decision makers in them. Recently, Alberta went back to that model for a while. For maybe 15 years, they had politicians making decisions instead of the board, but recently, they got back out of that corner.
I’m going to ask this question, because I happen to agree with you about politicians. I’ve sat at cabinet tables and watched them make short-term decisions not based on evidence. Would you recommend that we take the cabinet and ministers out of final decision making in the impact assessment process?
Mr. Kneen: I’m going to give you two different answers.
Senator McCoy: Sure.
Mr. Kneen: One is, “Yes, I think so,” based on my experience. But, given the task at hand, what we’re proposing is something different. We’re proposing to ensure that ministers are given clear direction and criteria for decision making, and that the public in turn gets an answer we can understand. Those are the two.
Ultimately, it would be preferable to have an independent decision making — a tribunal model, if you will. That’s not what we have in this legislation. It’s a little late to start that kind of structural change. That’s one of the issues, actually, that you can consider for medium-term revision, but between now and next month, that’s not going to happen.
Senator McCoy: You want to see what goes in and what goes out. You don’t want someone to shrug and say, “I don’t want it in the forest after all.”
Mr. Kneen: I don’t want to see the kind of decision making that we’ve had that justified under the circumstances that has said, “Sure, there are environmental impacts, there are unreliable predictions of economic impacts, but my constituency wants this, so I’m going to approve it.”
Senator McCoy: It can go both ways. Thank you.
Senator McCallum: Thank you for your presentations. My question is for Mr. Carlton. In your recommendation to the Senate, you said that the Canadian Navigable Waters Act be amended to explicitly state that the prohibition in section 3 and obligations do not apply if there would be no interference with navigation. Is that to do with that in between category with the bridges and water control structures?
Mr. Carlton: I’ll let Matt add to that, but it is to do with existing structures.
Senator McCallum: Existing structures. So who would determine the noninterference?
Mr. Carlton: If the structure exists and it’s not interfering with the navigation of the waterway in its current existence, then it would be exempt from any further assessment, because it already exists in a water that is navigable.
Senator McCallum: If the structure already exists but the people have a problem, and they want their lakes to be navigable because they’re not right now — one is used as a watershed and another is below the dam — and they’re looking at that, would this interfere with that?
Mr. Carlton: No. We’re talking about an existing structure that has an existing function. We’re talking about not expanding a function or expanding an existing structure; we’re talking about renovating an existing structure that has a certain place in the environment.
Senator McCallum: Thank you.
Senator Oh: My question is for Mr. Kneen. I’m following up the question of Senators Patterson and Eaton. Has anyone in your organization had discussions with any of your foreign donors about Bill C-69 specifically?
Mr. Kneen: No.
Senator Oh: This question — just give me a short answer: Are your foreign donors supportive of the bill, yes or no?
Mr. Kneen: I don’t know.
Senator Oh: You don’t know?
Mr. Kneen: I don’t know. We haven’t discussed it.
Senator Oh: Thank you.
Senator Neufeld: Mr. Carlton, after you heard Mr. Kneen comment about how you decide what is reviewable and what isn’t reviewable, would that make the FCM and all your members across Canada happy, that some board would decide whether you had to go through a full environmental process?
I want to bring one thing also to the discussion. This is going back a ways. We had a gentleman here who is in charge of ferries. I can’t remember the designation, but he said that ferries — cable ferries, and I’m sure you’re aware of what a cable ferry is — even to change the cable would be a full environmental assessment. Would that be something that FCM would support?
Mr. Carlton: No. I’ll ask Matt to comment in more detail, but our thing is that we accept there are minor works and there are major works. That’s an acceptable scenario.
Our concern is that the way things are defined right now, there is all of a sudden this fuzzy in-the-middle set of works, too. We’re saying that is a problem. We need to reassess the minor works category to make sure it is expansive enough to capture minor works and not impede municipal work. There are major works, and there is no middle fuzzy ground.
Senator Neufeld: And they should be defined.
Mr. Carlton: Yes.
Senator Neufeld: Thank you.
Senator LaBoucane-Benson: My question is for Mr. Carlton. First, thank you very much for being here. I’m really pleased that FCM has provided this information.
One of the recommendations that you’ve made on page 9 calls for greater flexibility in determining the maximum time limits for conducting impact assessments. That seems to go a little contradictory to clarity and certainty, because by saying that we need more flexibility, it gives less certainty on time limits. Maybe you or Matt can explain that.
Mr. Gemmel: I’ll try to respond. Thank you for the question, senator.
As Brock said in his opening remarks, municipalities play a unique role with respect to impact assessments because we’re both proponents of projects of things we’re trying to build. We’re also participating on behalf the public in projects that have an impact on the community. So we see it both ways and we’re certainly sensitive to the need for a certainty around project timelines as we experience when we’re putting forward our own projects.
Our nuanced position is that there isn’t a one-size-fits-all timeline that can be appropriately applied to the diversity of projects that this legislation will apply to. It’s such a wide range of different types of projects and different contexts with different impacts that we feel the ideal balance would be to determine the timeline through that early engagement assessment, what really is the full suite of the impacts, and then set a timeline and stick to that timeline, because that certainty is important.
Senator LaBoucane-Benson: I think that’s what preplanning is all about, figuring out the projects, setting reasonable timelines and what should be done. Thank you.
Senator Patterson: To the Federation of Canadian Municipalities, we’ve heard from the rail and hydropower sectors that they have serious concerns with the provisions respecting the Canadian Navigable Waters Protection Act in the bill, and I understand that your organization would like to see changes.
Could you explain how the approval process will change for major works in unscheduled navigable waters in the bill as now written, how that change will impact municipalities, and how that could be fixed?
Mr. Gemmel: I’m not sure that I can in its entirety. It’s a bit complex. What I will say is that we’re less concerned with the major works category. I understand that the hydropower association and some of the other industry associations feel similarly. These are projects that so clearly have an impact on navigation, like a hydro dam as Senator McCallum mentioned earlier, that there clearly needs to be a review.
I think we’re more concerned about the minor works and this new category of in-between works, as Brock mentioned earlier, and a new process that now municipalities will need to follow, particularly around bridges. I think this is probably where the railway association has some concern around the footing for bridges on nonscheduled waters. This now opens up many bridge crossings across the country that are on nonscheduled waters and fall into this in-between category.
We’re not opposed to these projects being subject to review, but as I mentioned in an earlier response, we want to make sure that the administrative requirements are kept as streamlined and reasonable as possible.
Senator Patterson: Will that require amendments?
Mr. Gemmel: We are asking for amendments related to existing works and related to works that are done in an emergency situation. If you look in the submissions, those are the last two bullets on the Navigation Protection Act.
Senator Mitchell: Just a quick one for Mr. Carlton. On your recommendation for wording in section 10.4 of the Canadian Navigable Waters Protection Act which refers to the parameters of what would be required in a emergency, are you essentially asking that we just revert to the language that’s already in the navigable waters act, which seems to have been removed from Bill C-69, section 3?
Mr. Gemmel: We would have to go back and review. We didn’t choose that language consciously pulling it from the existing act, but the intention of the recommendation is that there is a broader definition essentially of what an emergency is.
Senator Mitchell: Not just terrorism or something. Okay. Thanks.
Senator Woo: Mr. Kneen, could you clarify again your position on the composition of the review panel, particularly the representation from the regulators, who gets to chair and the possibility of a majority, and how your recommendation is different from the bill as it stands?
Mr. Kneen: Sure. Our position is that there should be no more than one agency regulatory representative on a panel and that they should not be the chair. I think it’s really important as well to include the administration of the process by people who know how to do it, and this is where we’ve seen a marked difference between the Nuclear Safety Commission and the Environmental Assessment Agency.
The recommendation is twofold. It’s to make that link to the regulator, but to keep it within the assessment agency’s purview.
The Chair: Gentlemen, thank you very much for your testimony and your answers.
Colleagues, do you agree to adjourn the meeting?
Hon. Senators: Agreed.
(The committee adjourned.)