Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue No. 54 - Evidence - February 6, 2019
OTTAWA, Wednesday, February 6, 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 9:04 a.m. to give consideration to the bill; and, in camera, for the consideration of a draft agenda (future business).
Senator Rosa Galvez (Chair) in the chair.
The Chair: Good morning. Welcome to this meeting of the Standing Senate Committee on Energy, the Environment and Natural Resources.
My name is Rosa Galvez. I am an independent senator representing Quebec, and the chair of this committee.
We will start with introductions. I will ask my colleague senators to introduce themselves.
Senator Seidman: Judith Seidman, Montreal, Quebec.
Senator LaBoucane-Benson: Patti LaBoucane-Benson, Treaty 6 Territory, Alberta.
Senator McCallum: Senator McCallum, Treaty 10, Manitoba region.
Senator Richards: David Richards, New Brunswick.
Senator Massicotte: Paul Massicotte from Quebec.
Senator Simons: Paula Simons, Treaty 6 Territory, Alberta.
Senator Woo: Good morning. Yuen Pau Woo, British Columbia.
Senator Mitchell: Grant Mitchell, Alberta.
Senator Cordy: Jane Cordy from Nova Scotia.
Senator Tkachuk: David Tkachuk, Saskatchewan.
Senator MacDonald: Michael MacDonald, Nova Scotia.
Senator McCoy: Elaine McCoy, Alberta.
Senator Wetston: Howard Wetston, Toronto.
Senator Patterson: Dennis Patterson, Nunavut.
Senator Mockler: Percy Mockler from New Brunswick.
The Chair: This morning we are 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.
Before I introduce our guests, I would like to say that yesterday we had our first meeting. It was a bit of a marathon meeting, but we progressed a lot and had a constructive and positive debate. We are working on the global plan for the study of this bill.
I also want to say that in my role as the chair of this committee, I have to take care of the time available and give equal opportunity for senators to ask their questions, so I am going to put a hard cap of five minutes per senator, per question, and we will see whether we have a second round.
The order in which we will allow these questions is, first, my two deputy chairs, Senator MacDonald and Senator Cordy; then the full members of this committee — we didn’t identify them, but later we will have the sponsor and the critic — and finally, the senators that are here. Thank you very much, colleagues, for coming. I know this bill is of wide interest to the population and many stakeholders.
Senator Patterson: Madam Chair, is that five minutes including answers? Five minutes, questions and answers, per senator?
The Chair: Yes.
Senator Patterson: We should make that clear to the witnesses. They can go on and on, with respect.
The Chair: Yes, absolutely. Please be mindful that we have to keep these things short and moving on so that we can cover as many subjects as possible.
Today we have Stephen Lucas, Deputy Minister from Environment and Climate Change Canada.
We have Ron Hallman, President of the Canadian Environmental Assessment Agency, with Christine Loth-Bown, Vice President, Policy Development Sector.
From Natural Resources Canada, we have Christyne Tremblay, Deputy Minister, and Timothy Gardiner, Acting Director General, Petroleum Resources Branch, Energy Sector.
From Transport Canada, we have Thao Pham, Associate Deputy Minister, and Nancy Harris, Executive Director, Regulatory Stewardship and Aboriginal Affairs.
Thank you very much for joining us in this hearing. I invite each of you to proceed with your opening statements, which will be followed by questions.
Stephen Lucas, Deputy Minister, Environment and Climate Change Canada: Thank you, Madam Chair, and good morning, honourable senators. It is a great pleasure and privilege for me to be here with you today. I’m pleased to speak with you about Bill C-69.
Before I start, I want to acknowledge that we are on the traditional territory of the Algonquin and the Anishnabe peoples.
Honourable senators, my colleagues and I are pleased to be here today as you undertake your study of Bill C-69. This is an important piece of legislation; we believe it is crucial for the Canadian economy, the environment and the well-being of Canadians and their communities.
Today I am going to speak to you about the extensive work that has been done to arrive at Bill C-69, its policy objectives and key features before handing off to my colleagues who will discuss aspects of the bill in greater detail.
Following the government’s commitment in the Speech from the Throne in December 2015, in January 2016, the government put in place interim principles for the review of major projects. It then launched a comprehensive process in June of that year to review existing environmental and regulatory processes, including a review of the Canadian Environmental Assessment Act 2012, the National Energy Board Act, the Navigation Protection Act and the Fisheries Act.
This process included the establishment of two expert panels to develop recommendations on how to improve federal environmental assessment processes and to review the National Energy Board’s structure, role and mandate. The panels engaged broadly with Canadians, Indigenous peoples, provinces and territories, and stakeholders, travelling to all regions of the country, stopping in over 30 cities and hearing from over 2,000 participants. In addition, hundreds of detailed submissions were provided to the panel online.
The work of the expert panels was augmented by additional and extensive engagement by the federal government throughout all regions as well as in-depth studies on the Fisheries Act and the Navigation Protection Act by two parliamentary committees.
The government responded in June 2017 with a discussion paper on its overall approach to the reviews of the environmental assessment and regulatory systems and conducted further consultations across the country to inform the development of the bill.
Through these extensive consultations over two years, the government heard that Canadians want a modern environmental and regulatory system that protects the environment, supports reconciliation with Indigenous peoples, attracts investment and ensures that good projects go ahead in a timely way to create new jobs and economic opportunities.
These expectations provide the foundation for Bill C-69, whose objectives are to restore public trust, protect the environment, ensure good projects go ahead and resources get to market, fostering investment and competitiveness of the industries, introduce modern safeguards and advance reconciliation with Indigenous peoples.
Let me begin by situating Bill C-69 in the larger regulatory landscape. Under the bill, impact assessments would work in a complementary and integrated fashion with other regulatory processes at the federal, provincial and, as relevant, territorial levels respecting jurisdiction, recognizing that the proposed impact assessment system would only apply for designated major projects.
Federal life-cycle regulators — the proposed Canadian energy regulator, the Canadian Nuclear Safety Commission and the offshore petroleum boards — play a key role in assessing potential project impacts, working in an integrated fashion under the proposed system with the impact assessment agency as well as being responsible for authorizing what are referred to as non-designated nuclear offshore oil and gas and energy projects.
The government is currently developing a criteria-based approach for revising project regulations that would define which projects would be designated and, based on the consultations, the approach would be to look at those projects that have the greatest potential for adverse environmental effects in areas of federal jurisdiction. Projects not on the list would continue to be assessed by provinces or by life-cycle regulators as noted.
Now I’d like to highlight some key features of the bill.
Bill C-69 proposes creating a single agency, the impact assessment agency of Canada, to lead all major project reviews. As I noted, where projects link to life-cycle regulators at the federal level, the impact assessment agency would work collaboratively with them throughout the assessment process.
The experience and expertise of these regulatory organizations would guarantee that safety and other key regulatory factors would be taken into account in the context of a single integrated assessment. Entrusting the responsibility of managing all impact assessments to a single organization would give Indigenous groups a specific point of contact to communicate with the Crown.
Under the current legislation, reviews focus on adverse environmental effects. The expert panel for the review of environmental assessment processes recommended a shift to a broader set of factors and a focus on sustainability.
Consequently, under Bill C-69, impact assessments would not only take into account the negative environmental impacts of a project, but also its economic and social health impacts, both positive and negative.
Through the introduction of Bill C-69, the government signalled its commitment to make the impact assessment process more transparent to Canadians. The bill incorporates a number of transparency measures, from making more information available to the public, enabling public participation, to clearly communicating the reasons behind decisions.
Assessments and decisions will be informed by the best available science, evidence and Indigenous knowledge. Government scientists will review studies provided by proponents. An open science platform will provide easy access to scientific information on ecosystems and resources across Canada, including the results of regional assessments and cumulative effects monitoring. The federal government’s chief science officer would regularly review the methods and integrity of the science used in decision-making. This would overall strengthen the rigour of the system.
Project reviews would benefit from shorter timelines compared to the current system, which would be rigorously managed with fewer stops of the legislative clock and clear rules specified through the information and time management regulations for when the clock would stop. The bill provides for a predictable, time-bound process, from early planning through to the decision, to ensure companies know what to expect and when.
Early planning is an essential part of the new system. The new early planning phase will engage proponents, jurisdictions, potentially affected Indigenous peoples and communities to ensure that key issues raised early in the project are brought out, federal authorities assess the proposed outline of the project and proponents know, through tailored guidelines and public participation plans at the outset what will be expected of them for their assessment.
The proposed legislation also provides flexibility to use shorter timelines, depending on the scope and scale of a project, or to adjust timelines to facilitate co-operation with another jurisdiction. Timelines will be set at the end of early planning to ensure clarity and certainty.
With “one project, one assessment” as our objective, we will coordinate with the provinces, territories and Indigenous authorities to reduce red tape for businesses and avoid duplication in the assessments of proposed projects.
We have learned that project assessments need to have a predictable outcome, ensure regulatory certainty, and apply to several provinces and territories. “One project, one assessment” is the guiding principle that will drive cooperative assessments and avoid duplication of efforts.
As proposed in this new legislation, we would work in partnership with Indigenous peoples from the start, through early and inclusive engagement, so we can get to better project decisions, have clarity in outcomes and advance reconciliation. Under the proposed legislation, there would be an increased role for Indigenous peoples, and it would require Indigenous knowledge when made available to be considered in all reviews.
Strategic regional assessments will be carried out so as to better manage cumulative effects, and to see to it that regional issues or broader political issues are dealt with outside of project assessments.
For example, the Government of Canada has consulted on the strategic assessment of climate change and will continue these consultations, which would define how climate change considerations would be considered in individual project assessments, providing clarity to both proponents and to the Impact Assessment Agency of Canada.
The Canadian navigable waters act will provide protections for navigation on all navigable waters in Canada so that Canadians can enjoy the right to navigate through the vast network of rivers, lakes and other waterways.
To support the introduction of the bill, the government also committed $1 billion over five years for the effective implementation of the new regime.
This additional funding would be used to support the proposed impact assessment regime and the Canadian energy regulator, and to increase Indigenous participation.
After extensive consultations across the country, we believe this bill will protect the environment while ensuring that good projects can move forward. Bill C-69 strikes the right balance for Canadians, Indigenous peoples, the provinces and territories, and companies.
As we continue to develop regulations and policies, there will be additional opportunities for Canadians to express their views as we continue to move forward.
Madam Chair, thank you for the opportunity to speak to the committee today.
Senator Tkachuk: Madam Chair, those notes weren’t distributed. I was wondering if you have copies of that. It would have been nice to have it.
The Chair: The second speaker will be?
Ron Hallman, President, Canadian Environmental Assessment Agency: Good morning and thank you, Madam Chair.
I would also like to acknowledge that we are on the traditional territory of the Algonquin and Anishinaabe peoples.
In addition to the overview and policy intent that Deputy Minister Lucas provided, I would like to provide a brief overview of the proposed impact assessment process provided for in Bill C-69, recognizing that there will be an opportunity for greater detail with the officials throughout the day as well.
Impact assessment is a planning tool that, when used effectively, provides several benefits. It assesses the potential positive and negative impacts of major projects, such as the environmental, economic and health and social impacts on our communities. It provides meaningful opportunities to engage the public and to take into account the concerns of communities that may be affected by a project. It provides an opportunity to work in partnership with Indigenous peoples and to respect their rights and interests throughout the process. For project proponents, effective impact assessment provides a predictable process that follows a clear timetable, and it earns and maintains the confidence of Canadians and investors, which is key to the shared success of projects and Canada’s sustainable development.
To support these outcomes, the proposed Impact Assessment Act introduces a new early planning phase. Early planning is intended to bring greater certainty and predictability to the process by establishing, at the outset, those requirements and expectations that will inform and guide a project assessment through to decision and beyond, including monitoring and follow up. Early planning is also intended to lay out how we will engage with Indigenous groups to determine who to consult and how best to collaborate throughout all phases of the assessment. Early planning creates opportunities to engage with other jurisdictions on ways to better cooperate and to reduce duplication, and it entails creating opportunities for the public to meaningfully participate in and be heard in project reviews. Most importantly, perhaps, for project proponents, early planning includes establishing what specifically will be examined during the impact assessment phase and identifying any information and studies that will be required from the proponent.
Many proponents already do exceptional early planning and outreach work.
The new process allows the agency to recognize and build upon that work. And it allows us to provide greater guidance and support to proponents.
For example, early planning will allow the agency to not only provide specific guidance to proponents in engaging Indigenous peoples, but will also ensure that the federal government is out early engaging Indigenous communities.
For each project, we would produce an Indigenous Engagement and Partnership Plan — in collaboration with Indigenous peoples — that sets out who will be consulted and how.
A key support to proponents from early planning is the tailored impact statement guidelines that would lay out the information and studies required from the proponent for the assessment, taking into account any other information that may already be available, such as previously completed regional assessments or cumulative effects monitoring data. Of course, each project is different, so the guidelines would be tailored for each specific project, consistent with its unique scope and complexity, to ensure the appropriate focus and to provide clarity and predictability for subsequent assessment steps.
The proposed legislation broadens the focus of assessment beyond consideration of adverse effects on the environment to that of sustainability, including the economic, social and health impacts. Unlike the current process, both positive and negative impacts on things like jobs and economic development would be considered.
Another major change from the current process is the creation of a single agency to lead all impact assessments. This is intended to make the process clearer and more consistent, and also more predictable for proponents, Indigenous groups and others who may participate.
Effective impact assessment under the proposed legislation will rely heavily on the expertise and the experience of life-cycle regulators, including the proposed Canadian energy regulator, the Canadian Nuclear Safety Commission and the offshore petroleum boards. For this reason, the legislation provides for integrated review panels.
The agency would lead the assessment for projects that will ultimately be regulated by one of these organizations and would work closely and collaboratively with the life-cycle regulator throughout the assessment to draw upon their expertise and to ensure that regulatory factors such as safety are considered as part of a single integrated review process that fulfills the requirements of both the impact assessment act and the relevant regulators’ legislation.
Similarly, life-cycle regulators would participate in engagement and Crown consultation activities in all stages of the regulatory process to encourage and maintain relationship building and to provide a seamless transition as the life-cycle regulator carries out its post-assessment responsibilities for monitoring and compliance for those projects that it regulates.
Throughout the assessment process, the public would have meaningful opportunities to participate. There are many potential ways to ensure that stakeholders and the public have that opportunity to provide feedback and to be heard within timelines specified by the agency, from town halls to workshops to online feedback platforms. These opportunities would be tailored to the circumstances of a particular project. The agency has significant experience in engaging the public on project reviews, and we will be developing further guidance respecting how we will continue to ensure that all views can be expressed and heard as part of a transparent and timely process.
Senators will be aware that timelines and predictability have been key themes that have emerged in the public discourse on Bill C-69. The legislation proposes to achieve shorter timelines than under CEAA 2012. As a result of the time invested during the early planning phase, it is expected that all relevant issues would be identified at the outset, thereby reducing the number and complexity of the information requests during later stages of the process.
Specific timelines for individual assessments will be set at the end of the early planning phase. The bill provides flexibility with respect to setting those timelines in order to allow the agency to align its processes with other jurisdictions and to reduce duplication and keep the process on track and predictable.
The decision at the end of the impact assessment process is whether the adverseeffects of a project — effects within federal jurisdiction — are in the public interest.
In making this decision, the minister — or the Governor-in-Council — would beguided by several factors, including: the project’s contribution to sustainability; impacts on Indigenous peoples and their rights; measures proposed to reduce theproject’s negative impacts; and the project’s impact on Canada’s ability to meet itsenvironmental obligations and climate change commitments. To provide greatertransparency, the government would be required to issue a decision statement witha rationale articulating how those factors were considered.
Finally, I’d like to highlight how the proposed legislation and new impact assessment approach support the government’s stated commitment to Indigenous reconciliation. Provisions in the bill enable greater capacity-building supports and enhanced collaboration on policies relevant to Indigenous groups. They also commit the government to recognizing Indigenous rights and working in partnership with Indigenous peoples earlier and throughout the entire project review process. The legislation also creates the space for expanded impact assessment roles for Indigenous jurisdictions, and Bill C-69 requires that Indigenous knowledge be recognized as a fundamental component of effective impact assessment and, when provided, must be considered alongside science and other evidence. The government’s overall approach is to seek to secure Indigenous consent through processes based on mutual respect and dialogue throughout the impact assessment process to better support decisions being made by the minister or the Governor-in-Council.
Madam Chair, this concludes my opening remarks. Thank you.
The Chair: Thank you very much.
Christyne Tremblay, Deputy Minister, Natural Resources Canada: Madam Chair, I am very pleased to join my colleagues to addressthe Standing Committee on Energy, the Environment and NaturalResources on Bill C-69, particularly on the Canadian energy regulator act which is one of its components.
The proposed Canadian energy regulator, CER, will build on decades of federal life-cycle regulatory expertise at the National Energy Board, ensuring the safe and efficient transportation and trade of energy that meets expectations of industry, government and Canadians, and provides confidence in regulatory oversight and safety.
The CER act will repeal and replace the National Energy Board Act and establish the Canadian energy regulator, a new, independent regulatory body responsible for federally regulated pipelines and power lines, energy development and trade.
The CER act is the product of over 14 months of engagement with Indigenous people, industry, environmental groups, provinces, territories, academics and the public. It was informed by an expert panel, two discussion papers, thousands of written submissions and dozens of meetings across Canada. As Canadians and experts made clear through this extensive consultation, a strong, modern energy regulator is central to integrating Canada’s energy, economic, environmental and climate goals, as well as to renewing Canada’s relationships with Indigenous people.
The new CER act aims to restore investor confidence, rebuild public trust and advance Indigenous reconciliation, while at the same time ensuring that Canada maintains its global competitiveness, attracts investment, and develops and transports its energy responsibly.
The CER act includes changes along five key themes: modern governance and management; enhanced certainty for investors; increased public trust and inclusive engagement; Indigenous knowledge and participation; and safety and environmental protection. I will now take some time to provide more details on each one.
Modern and effective governance mechanisms: Canadians told us that modernizing the NEB must start with updating its structure, role and mandate. Measures are proposed to establish modernand effective governance mechanisms that would strengthen the independence and diversity of the regulator, as well as clarify its mandate and operations.
For example, the CER Act would separate the regulator’s adjudicative function, which demands a high degree of independence, from its daily operations, where a high degree of accountability is required. This would be done by appointing a chief executive officer to see to the operational aspects of the regulator, with a separate role from that of the board of directors.
A board of directors would also be put in place to provide strategic direction and see to the proper governance of the regulator.
A group of independent commissioners would also be appointed for adjudication activities. The new regulator’s board of directors and commissioners would also have greater diversity and expertise.
To achieve this, there would be new emphasis for commissioners to include expertise on a wider range of issues, such as Indigenous knowledge and municipal issues. At least one member of the board of directors and one full-time commissioner would be required to be first nations, Metis or Inuit. In addition, the requirement that adjudicators reside in Calgary would be eliminated. Here we would group best practices in terms of governance with clear obligations regarding diversity.
The second element is enhanced certainty for industry, which is very important. In our consultations across the country, Canadians also told us that Canada’s energy sector is a major source of employment and investment, and produces significant revenues for governments at all levels.
The industry’s success and prosperity demands a greater predictability indecision-making. In the CER Act, several measures are proposed to enhance certainty for industry. I would like to highlight three of them. First, to reduce red tape, more of the more technical decisions would be made by commissioners of the CER orthe minister. In this way, the regulator would have authority to make final decisions on certain variances, transfers, and suspensions of certificates and licences. The Minister of Natural Resources would have the authority to make final decisions on export licences, for example.
Secondly, as stated in subclause 183(2), companies would also have a clearer understanding of what would betaken into account in the review itself, including effects on theenvironment, the economy, health, and communities, inthe context of clear deadlines for decision-making.
Also, to support clear and predictable decision-making where multiple jurisdictions are involved, collaborative arrangements could be developed with interested jurisdictions. This constitutes an interesting collaborative tool that the provinces, territories, and Indigenous groups could benefit from, which would ultimately benefit enterprises.
The third objective is to strengthen public trust and rally all citizens behind this process. The CER Act also proposes a series of new opportunities for Canadians to have their voices heard on a wider range of issues. Proposed measures aimto provide more meaningful opportunities for public engagement by clarifying the factors considered in its public interest determination, ensuring interested Canadians can participate through multiple approaches, and by enhancing the regulator’s public participation program, including the participation of Indigenous peoples, notably by creating a financial assistance program.
In closing, with respect to enhancing public consultation, the fourth point is enhanced Indigenous participation. As you’ve heard, the government is dedicated to renewing the country’s nation-to-nation relationship with Indigenous peoples based on a recognition of rights, respect, co-operation and partnership. The new energy regulator would support reconciliation with Indigenous peoples by ensuring meaningful engagement throughout the review process. Proposed measures include: enhancing consideration and protection of Indigenous knowledge when it is shared with the regulator; ensuring Indigenous rights are considered in all decision making; providing that the new regulator is an agent of Her Majesty for all purposes, including consultations; and finally, establishing an Indigenous advisory committee made up of at least three members representing the interests of first nations, Métis and Inuit, in order to ensure that their interests are taken into account in nuclear energy projects in Canada.
The final objective is to strengthen safety and environmental protection. Canadians also told us that they want assurance that the regulator will remain solid and have the necessary tools and expertise to protect the environment and ensure that companies comply in every way with regulations.
Proposed measures would strengthen safety andenvironmental protection by updating the powers of the regulator’s inspection officers, in order to ensure the safety of people first, of course, but also the safety of facilities, and the protection of the environment and of assets. They would also enhance cybersecurity protections — an emerging field to which we must pay particular attention — by providing, for instance, the authority to the regulator to abandon pipelines securely. The objective would be to provide close follow-up of the life cycles of all projects.
In addition, the CER Act would address a legislative gap by giving the CER authority to regulate renewable energy projects in offshore areas.
In conclusion, honourable senators, the role, mandate and structure of the National Energy Board have remained unchanged since 1969. I was not even born then. So this proposed creation of the Canada energy regulator act in Bill C-69 is an important and needed modernization that will ensure that this independent federal energy regulator earns and holds the confidence of Canadians, advances the government reconciliation objective, works in lockstep with the new assessment agency and is led by individuals who better reflect the composition of Canadian society today.
Thank you very much. I will be pleased to answer your questions.
The Chair: Thank you, Ms. Tremblay.
We will go to Ms. Pham next.
Thao Pham, Associate Deputy Minister, Transport Canada: Good morning, Madam Chair and honourable senators. I’m extremely pleased to be here this morning to speak about Part 3 of Bill C-69. Part 3 proposes amendments to the Navigation Protect Act and creates the new Canadian navigable waters act, or CNWA.
Canada is very fortunate, as you know, to be surrounded by three oceans, and Canada is home to countless lakes and rivers. In this country, the public has a common law right to travel on navigable waters. This is called the public right of navigation. Protecting the public right of navigation is an important element of the new impact assessment and regulatory system.
The proposed Canadian Navigable Waters Act, or CNWA, is the result of a long consultation process which took into consideration the views of many groups, including Indigenous peoples, other levels of government, Canadians that use navigable waters for travel, transport or recreation, and Canadians that build works on them.
Through our consultations, we heard that Canadians want to be able to continue to rely on Canada’s coasts, lakes, rivers, and other bodies of water for travelling, for shipping goods, and for enjoying recreational activities like canoeing and kayaking. We also heard that Canadians want decision making to be transparent, efficient and predictable.
The proposed Canadian Navigable Waters Act would deliver as follows: introduce new protections on all navigable waters; advance reconciliation and create new opportunities for Indigenous peoples to partner with Canada; create more accessible and transparent processes; and finally, provide new enforcement powers to enforce these new safeguards.
Let me now expand on these points.
The new protections on all navigable waters in Canada: Bill C-69 and its proposed CNWA would provide new protections on all navigable waters, including those of greatest importance to Indigenous peoples and Canadians.
The proposed amendments would introduce a requirement for proponents of major works to apply for approval and the authority for the Minister of Transport to remove obstructions, such as abandoned bridges or piers on any navigable waters.
The current Navigation Protection Act uses a list of waterways known as a schedule, and this schedule identifies navigable waters where project proponents must apply to Transport Canada for approval. The proposed amendments would keep the schedule, and it would expand it. The new and more inclusive schedule would provide an extra level of oversight to waterways where it is needed most. This provides a greater level of oversight to waters we know are vulnerable to significant impacts on navigation from development and those that are most important to Canadians and Indigenous peoples.
The proposed amendments also establish a new resolution process that would give Canadians a better way to raise navigation concerns about projects and have these concerns considered in an early and predictable manner.
Secondly, the proposed amendments also support a strengthened relationship with Indigenous peoples based on recognition of rights, respect, co-operation and partnership that is responsive to Indigenous peoples.
We have heard from Indigenous groups that travelling on navigable waters to exercise their rights is critical to their way of life. This is why the proposed act includes an updated definition of “navigable water,” which explicitly includes transport or travel to exercise Indigenous rights.
The proposed Canadian Navigable Waters Act would also further our goals for reconciliation by requiring decision makers to consider and protect any traditional knowledge that Indigenous groups provide and consider any adverse effects a decision may have on Indigenous rights. The CNWA would also enable partnership agreements for monitoring and enforcement of the law within traditional territories or territories under Indigenous jurisdiction.
The proposed CNWA would also create a more accessible and transparent process, making it easier for Indigenous peoples and the public to engage in projects that affect their communities and to resolve navigation issues of concern to them. We recognize that to participate in decisions, Canadians need to know about the projects before they are built. The proposed CNWA would require that project proponents notify and engage early with potentially affected communities and waterway users before the construction of a project takes place on any of those waters.
The proposed amendments would also require a new public registry to be created. The public registry would provide a venue for proponents to submit applications and make project information public. This would help communities stay informed, participate in decision-making processes and access information about the works.
We recognize that stronger navigation protections are only of value to Canadians if they can be robustly enforced. This is why Bill C-69 would include new authorities to enhance compliance with the act and new modern enforcement powers. These powers would include greater penalties and longer limitation periods for violations and offences. The CNWA would also expand the Minister of Transport’s powers to order remediation or stop a prohibited activity on all navigable waters.
In conclusion, in the context of the new impact assessment and regulatory regime, the CNWA will allow for better protection to navigation in Canada for all navigable waters.
The CNWA would also ensure Indigenous peoples’ views are considered. It would deliver greater transparency and participation in decision-making.
Madam Chair, that concludes my remarks. Thank you very much.
The Chair: Thank you for your presentations. Now we are going to start with our questions, and as agreed we will start with the deputy chairs.
Senator MacDonald: Thank you, panel.
I will direct my questions to Deputy Minister Lucas. The Premier of Alberta, Rachel Notley, has said that Bill C-69 does not work for Alberta. The Saskatchewan Minister of the Environment has said that Saskatchewan believes that the proposed changes to Canada’s environmental regulatory regime will result in more complex costs and time-consuming process, while creating uncertainty that will ultimately erode Canada’s economic competitiveness. Manitoba’s Minister of Sustainable Development says that Manitobans are concerned Bill C-69 will increase regulatory burdens, costs and time lines for projects without meaningfully improving environmental outcomes. You talked about consultation with the provinces. Can you describe the consultation process you undertook with Alberta, Saskatchewan and Manitoba?
Mr. Lucas: Certainly, senator.
Throughout the process of consultation over the past two years, and continuing to today, a number of levels of engagement have been undertaken with the provinces and territories. This includes regular meetings through the environmental administrators for which the Canadian Environmental Assessment Agency chairs the process with the environmental administrators from each of the agencies, work through the Canadian Council of Ministers of the Environment, work through the federal and provincial/territorial Energy and Mines Ministers’ Conference and countless meetings at the deputy minister to working levels with provinces.
My colleague and I have engaged our counterparts in setting up working tables with them to work through processes of concern, both in the legislation itself and its implementation. We have established those, or are in the process of establishing those, with a number of jurisdictions, including the ones that you note. Through these bilateral exchanges we’ve been able to inform ourselves in terms of how best to look at the legislation and regulations, including the ability to help inform senators as they consider the process. Furthermore, we have established a commitment to have a meeting of federal and provincial/territorial deputy ministers within the next month to go through, in particular, detailed discussions and implementation of the bill. We have been, and continue to be, open to engagement with our colleagues in the provinces and territories against the principle that is critical to the bill and that we believe this bill improves the current system, which is “one project, one assessment.”
Senator MacDonald: Those governments would not agree with that assessment. The issues they raised during the consultation process, they believe, were not adequately addressed. I’m curious how you are going to address these concerns going forward.
Mr. Lucas: In commitments made at the Energy and Mines Ministers Conference this past summer in Iqaluit, at the Canadian Council of Ministers of the Environment meeting in November, in correspondence and dialogue Christyne and I have had with our counterparts, both bilaterally and with groups, and with administrators, we have committed to work collaboratively with them on the implementation of the system, respecting jurisdiction, respecting the will of the Senate as it considers the bill, and looking at how to make it most effective in the context of “one project, one assessment.”
We have worked and are working to establish specific bilateral working tables, as I noted, but as well, through Ron, have put out the offer and are working now with a number of jurisdictions in establishing and updating bilateral co-operation agreements with each province as a number of those are moving on. Some colleagues from British Columbia will be here on Tuesday next week for those discussions. As I noted, we are engaging within the next month with a broader form of energy, mining and environment deputy ministers to have in-depth discussions on the proposed system and how to effectively implement it respecting our jurisdictions.
Senator MacDonald: I’m from Nova Scotia. Are the Atlantic provinces happy with the bill?
Mr. Lucas: We have heard feedback from jurisdictions, in particular Newfoundland and Nova Scotia, in regard to the offshore boards and have worked through those concerns. We have had a process where, through our regular and established, where we have heard their comments and work to take them in consideration and are committed to working in partnership with them to have an effective system that avoids unnecessary duplication and achieves the goal that has been established for a time but not realized, “one project, one assessment.”
Senator MacDonald: So they’re not happy with the bill?
Mr. Lucas: I think they view areas of the bill as being positive steps forward and have sought clarification in particular on the role of the offshore boards in the system. We are committed to working within an integrated fashion respecting their role.
Senator Cordy: Thank you very much for being with us this morning and for starting off our consultations on the bill here in the Senate. Does replacing the National Energy Board — which has been around for a while — with the Canadian energy regulator mean that all previous jurisprudence related to the National Energy Board will be lost, or will that continue to be used when making decisions?
Ms. Tremblay: I want to mention that all of the legislation and jurisprudence that exists will remain in place after the new energy regulator is put in place.
Senator Cordy: Mr. Hallman, you spoke about the early planning phase, and I believe Ms. Tremblay did as well. What is the advantage to industry for projects that they want to start? A number of you spoke about how there will be shorter timelines than we had under the CEAA of 2012, but when I spoke to industry in Nova Scotia and when I went to Alberta and in my office here in Ottawa, one of the things people are concerned about is timelines. Will the new process make things more efficient, or will it be a longer, more drawn-out process? Could you comment on that?
Mr. Hallman: Sure. In the five and half years that I’ve been at the agency, industry has said consistently that two things would help them. The first was: Tell us earlier in the process, and stick with it, about what we need to do to answer questions to inform effective decisions by decision makers. The second was: Please help us much earlier with what is expected in terms of Indigenous consultation so that we can do a better job and get better outcomes in a more timely way.
What Bill C-69 does, through early planning, is allow the agency to convene all of the appropriate interests — the proponent, provincial jurisdiction, Indigenous groups, others — to identify very early on what the issues may be with the potential project. That allows a proponent to identify how they will address those issues or whether they want to make a design change that will address a particular issue early on rather than at the eleventh hour when they have invested years and many dollars in a certain design that may be harder to switch away from.
It also allows them, by having that certainty, to start to attract the investment and the support of those who will help them with their project when it moves forward. Perhaps most importantly, it sets the table for the appropriate, early and engaging discussion with Indigenous groups about the potential impacts and the types of mitigation or adjustments that may be made to accommodate Indigenous interests or respond to the concerns that Indigenous groups have raised. That is the real benefit for industry in all of this. If that happens appropriately at the early stage, that should make each successive step in the process go that much more efficiently.
Ms. Tremblay: Maybe I can comment on what Michael just mentioned. Bringing all the players together in the early phase will help a lot, as we can have all the concerns and the right scoping of the project, making sure all the right factors will be part of the scope, and after that the proponent will know what he has to deliver. I think it will bring certainty, and then we will enter into that impact assessment phase where we are going to have a tight timeline.
There is kind of a decrease in the timeline for that phase, between 300 and 600 days, and something that is very important is that we are going to manage the clock in a very different way. It’s not going to enter that phase and the clock stops and starts. No. There are very strict criteria to stop the clock. Most of them are related to the proponent. The proponents asked for it, or changed the design for its project — fair enough — or didn’t pay its bill, so also fair enough. The last one is that really critical information that was asked in the first phase is missing.
So, very strict. The proponent is going to bring a lot of certainty. You make it to that gate, the timelines are tight, the clock will be managed very well, and there is also certainty on the decision and the timeline for that phase. I think it’s going to improve the system, the way it is now.
Senator Massicotte: Thank you very much for being here with us this morning. All of your objectives are commendable. We agree on that. However, the history has to be recognized, in terms of the promotion of projects. Several studies have shown that over the past 25 years, we have not been competitive or profitable. The delays and uncertainty associated with the proposed process are not practical. The industry has been very vocal in saying that despite your worthy objectives, this doesn’t work. We don’t have the confidence of the industry, nor of financial backers. We have a major problem.
Twenty per cent of our GDP is dependent on natural resources. That is an important factor. For some time now, as we have seen before the courts, the system has not been functional. I thank you for your efforts, but as far as the projects are concerned, this is a failure. What do you recommend so that we can get back to a process that works and inspires trust? Despite your fine promises, people are not confident. What should be done?
Ms. Tremblay: I am very happy you asked that question. The system does not work. I think everyone recognizes that the status quo is not an option. What should be done? We just said that we want to put in place a system that will take advantage of all its strengths, not only those of regulatory organizations or the agency, but also all of its expertise. We will build a more robust and rigorous system for major projects, and that system will build on all of its strengths. Moreover, as my colleague Mr. Hallman mentioned, we could have avoided the situation in Cacouna with the belugas had there been a more exhaustive and detailed planning phase. At this time, I’m working on the TMX dossier. With a more detailed planning phase, we probably would have been able to assess the magnitude of the project in a more appropriate way. We wouldn’t have to redo the project today and comply with court requirements. We feel that the system that is being proposed, thanks to the way we will work in the initial phase of the process, will allow proponents, when they begin the assessment phase, to have more certainty and to be able to move their projects forward.
Senator Massicotte: I hope so. It’s not the first time we have heard this sort of thing. In 2013, the Conservative government made the same promises. They asked for timelines in legislation. Until now, this has had no impact. The system hasn’t worked in 25 years. According to an OECD study, out of 35 countries, we rank 34th. Our delays are worse than those of our neighbour to the south. All of the comparisons are negative for us. We need more than beautiful promises and nice words. Perhaps we need to amend the legislation. The federal government needs to shoulder its responsibilities, the preliminary process needs to be more detailed, and all of the proponents need to be aware of the risks and the needs involved; and, if necessary, the approval should be automatic or almost certain, in that we need to eliminate the risk for the other players. Something needs to be reorganized, rather than simply offering hope and promise.
Mr. Hallman: Another item I would like to add to the benefits for proponents, but also for all participants in the process, are the five key outputs of the early planning phase, some of which we’ve spoken about already, including the tailored impact statement guidelines, so that we focus the proponents’ work only on those things that are most relevant to the project. We will have a plan for cooperating with the provincial jurisdiction so that we can align timelines, if need be. That’s another thing proponents have said, that it makes no sense operating in multiple different provinces and at the federal level, to have 13 different timelines that they have to try to respond to, and why, for goodness sake, can we not work together at the beginning to align our timelines? This bill provides that flexibility within the legislation to do that.
The other things are the Indigenous engagement and partnership plan to give certainly about who will be consulted and how, a public participation plan and then a permitting plan, because proponents have said it’s well and good under CEAA 2012 to have the single window of the agency for the review process, but then every regulatory window opens post-decision and they have to deal with multiple departments and start from square one, in some cases, in their mind. With this permitting plan, we’ll be able to lay that work plan out in front and hopefully make the gap between the impact assessment decision and actually getting shovels in the ground much shorter.
Senator McCallum: Thank you for your presentations and for coming here.
As Christyne Tremblay had said, the status quo is no longer an option. It isn’t an option for First Nations and Indigenous communities. My concern here is that when you look at the early planning phase and you look at the potential negative impacts, have you taken anything from the past about the devastation of lands, the devastation of lives and the increase in cancer of Indigenous peoples in Saskatchewan and in Alberta? How do you plan to use that to make a decision about any of the projects that come forward so that it doesn’t continue to happen any more?
Mr. Lucas: Perhaps, senator, I can respond. As has been noted, the early planning phase is really essential to be able to recognize the rights of Indigenous peoples upfront, engage them in the process and enable the definition of working with them on an Indigenous engagement plan to ensure that any impacts are recognized, Indigenous knowledge considered and that the Crown can consider accommodating, where possible, potential infringements on those rights.
As I noted as well, one of the key features of the bill that doesn’t exist in a structured way in the current system is the recognition of the importance of working in parallel but outside of individual project reviews on better understanding the impacts on the environment of existing development through work on cumulative effects, environmental monitoring, providing that information openly to Canadians through an open science platform, and then taking into account that information and regional assessments, where done in partnership with provinces and territories, First Nations and other peoples, in the context of and as relevant to specific project reviews, including in the early planning phase.
We believe, through that, we’ll have a more structured process to look at those issues that are relevant in the project but have a broader review and work on the cumulative effects on the environment outside of the process specifically.
Senator McCallum: Would it be possible for you to give us a list of all the negative effects that happened in Canada, where the sites were and what happened? Because the committee here is looking at travel. If it’s going to be meaningful to Canadians, then it would be appropriate that we go and visit some of those sites so we can hear the people talking, because they don’t have a voice like the Energy Committee, like the CEOs. They’ve been lost. We have a duty and an obligation, as senators, to make sure that we hear all the voices, especially the ones that have been the most devastated and not been included in energy projects.
Mr. Lucas: One of the features, as I noted in the development of the work on the bill, were extensive consultations across the country, including by officials travelling to communities in the North and across the provinces and territories to hear perspectives. That engagement with Indigenous peoples, including regular calls of individual First Nations and regional organizations, continues.
We have, over the course of many years, worked to strengthen water quality, air quality and other key environmental determinants. We are working to provide that information publicly, including on species at risk, which impacts on Indigenous peoples and traditional foods. This information is intended to be looked at in the context of project reviews in the system, as I said, by having an increased capacity and focus on cumulative effects and working in partnership to develop regional assessment considerations that can be taken into account, where they are available, in project reviews.
The Chair: Do you want to finish, Ms. Tremblay?
Ms. Tremblay: Maybe I can add something, senator. In the Trans Mountain project, the court has been very clear that the Crown has to improve the way it’s working with Indigenous groups in consultations and to meet the duty to consult.
“Meaningful consultation” means what we are learning now: to meet the requirement of the court and the expectations of Indigenous groups. With the advice we’re receiving from Justice Iacobucci and others, I’m confident that with this new process, this decision of the court and what we are learning now that, that in the future, for every major project, Indigenous groups will have the confidence that we kind of are listening to their concerns. We have a duty to have a meaningful both-ways dialogue with them. We also have the obligation to address their concerns and, if it’s not possible, to explain exactly why.
So I think it’s going to change the way we worked in the past, and I think it’s going to address some of your concerns as well.
The Chair: I want to say something. Senator McCallum asked a very specific question: Can you provide us with information of places and communities where big infrastructure work has impacted negatively on health? If you cannot give that information, is there any other department in government that can give us this information?
Mr. Lucas: Madam Chair, I think we could provide examples in this regard, both of areas where there have been negative impacts on communities — just on the environment — but, as well, areas where there have been positive benefits and great partnerships established with Indigenous peoples and proponents to contribute to their welfare — and positive impacts on the environment through —
The Chair: We will expect that information to be sent to the clerk.
Mr. Lucas: In terms of, perhaps, a few case studies or information that can just highlight some of these both positive and negative examples.
The Chair: Thank you very much.
Senator Carignan: You said earlier that the legislation applied to the major projects. You both used those words. I don’t see the words “major project” in the legislation. Instead, I see “designated project” or “physical activity.” When I look at the definition, the projects can be very minor, in my opinion. Where does the idea of using only major projects come from? Do the minister and legislator plan to include only major projects?
Mr. Lucas: I’ve noted, in the regulatory framework, which projects are affected by the impact assessment system for designated projects. The government has proposed that two main criteria be used. These criteria are the potential adverse effects of projects and the adverse effects and impacts in areas of federal jurisdiction. With these two criteria and a development approach that uses the criteria in the regulatory framework for designated projects, we can see, in principle, that this includes major projects.
Senator Carignan: Shouldn’t the notion of major project be included in the legislation rather than in a statutory instrument?
Mr. Lucas: The current structure dates back to 2012, and we proposed to continue with the structure in Bill C-69 when it comes to the definition of designated projects in the regulatory framework.
Senator Carignan: When the projects are carried out by a federal authority, we’re told that there must also be a process. Clause 82 indicates that the authority mustn’t carry out a project on lands or exercise any power, and so on, before determining whether the project has a negative effect. Will subsidized projects or projects owned by the Canada Infrastructure Bank be automatically subject to environmental studies?
Mr. Hallman: Madam Chair, I believe the senator is referring, through clause 82, to projects carried out on federal lands. This clause requires an assessment of the environmental effects for projects on federal lands even if they are not designated on the project list. So if that type of project is on the project list, it will undergo the impact assessment. If they’re not, because they are on federal lands, they will still require the federal authority to conduct consideration of the types of effects the project may have. For example, decisions about undertaking a project as the proponent, providing financial assistance, providing land through sale or lease, providing a permit, et cetera —
Senator Carignan: I’ve read the legislation and I’m referring to that clause. It isn’t necessary to reread it. That’s precisely the point of my question. Does the clause cover all the funded projects? Will the Canada Infrastructure Bank be involved in these projects?
Ms. Tremblay: The answer is yes. If the projects qualify as designated projects on the project list, the answer is yes.
Senator Carignan: If they aren’t considered designated projects and they fall under this definition in clause 82?
Ms. Tremblay: I gather that if it’s a major project designated on the project list, the answer is yes. Otherwise, they’re not concerned. That’s my understanding at this time, but we can verify the information.
Senator Carignan: I’m surprised to see that the possibility of conducting foreign environmental assessments even exists. Will the notion of substitution also apply to foreign jurisdictions? How will you handle this aspect of enforcing the legislation in foreign countries?
Mr. Hallman: No, it’s not anticipated that substitution would be extended to foreign governments or jurisdictions.
Senator Carignan: Okay. It isn’t specified.
Mr. Hallman: The bill specifies the types of jurisdictions that could have substitution, and foreign ones are not listed.
Senator Richards: Thank you for being here. My question, in a way, was already asked. I get the feeling that there are so many cogs in the wheel here with this legislation. I’m worried that almost every project can be open to litigation and that the timeline is so long and there are so many factors involved that nothing will go forward. Certainly, in Alberta, we’re losing $80 to $100 million a day and nothing seems to be going forward. I’d like some kind of assurance that things can get done with this legislation. I don’t see where it can get done.
Mr. Lucas: Perhaps I’ll address that first, senator. My colleague, Ron, may complement it.
One of the challenges we face now in the current system is that there’s not a single holistic approach. By that, the system does not have the integration through a proposed Impact Assessment Agency where they work with other key federal authorities or life-cycle regulators in an integrated way. What happens as a consequence is that leads to the clock continually stopping and starting. Although the timelines and statutes for the current Environmental Assessment Act are 365 days, for example, for a study, the actual time elapsed to get that completed could be two or three years. That’s because there is not an integrated system where upfront federal authorities and experts are asked: What are your views on this proposed project and studies and what is expected of the proponent? That clarity is not provided in tailored guidelines. There’s not a consultation plan set out with specifications for how the public will be engaged. I think, importantly, as colleagues have noted, Indigenous peoples are not engaged from the outset. It’s something the proponents are doing it, but it’s not built into the system.
So we’re taking a more holistic view, having a more integrated project, increased transparency and, associated with that, increased accountability through providing reasons every time a clock is stopped, providing reasons any time an extension is asked for and to provide reasons for decisions. We believe the system will be more timely in the actual time it takes to undertake the reviews and more judicially resilient through that increased transparency, including specifying what factors the government must consider in rendering a decision and providing a public explanation for those.
Mr. Hallman: Madam Chair, I would just add, part of the benefit of moving to a single agency responsible for leading impact assessment in Canada in the future is to ensure that we have certainty of a more consistent approach across the federal family, across industries and in how we engage Indigenous peoples.
The agency has a very strong record of conducting environmental assessments, including under CEAA 2012, across a whole host of industries and working hand-in-hand with the current National Energy Board, the Canadian Nuclear Safety Commission and the offshore boards, and the agency’s record of judicial resilience is very strong. In fact, a lot of the key principles that underpin Bill C-69 build upon current approaches that have evolved within the agency’s approach over the years and take into account lessons that we’ve learned as practitioners and lessons that we have heard from proponents and Indigenous groups about how we can do better.
That’s why we’re seeing some of the outputs of the early planning that we spoke about already, like the tailored plans, the consultation plans, et cetera. I won’t repeat them all here. But those help to build that incremental certainty throughout the process so that anyone who is interested in a particular project knows, right from the beginning, here is what the project is; here is what the issues are; here is how we’re going to be engaged and when we’re going to be engaged, et cetera, and what the factors are and how they are being scoped. So bit by bit, we are building that confidence and that trust and, our hope would be, that judicial resilience.
Senator Richards: Very shortly, that would all be fine if we didn’t have the fear that the people who have been consulting can stop a project so that, after 200 or 300 days, all of a sudden the money put into it is no longer going to be used because the people you are consulting have decided it’s not going to go.
This is also another worry about the consultation. Is there an end date to the consultation where a person can say, “Well, that’s enough, and whatever decision we’ve made, we’ve made?”
Mr. Hallman: Madam Chair, indeed, the current practice of the agency under CEAA 2012, and what is articulated in the legislation, is that the public — and the agency doesn’t have a standing test. We have always allowed anyone who had an interest to be heard. What we do, though, is we use a range of tools for engaging, because different people have different kinds of interests and some are more implicated than others.
What we do, though, is we have specified timelines for a consultation period and we take all the input that we can in that. When that time period is done, we move on. That is what is envisioned for carrying on in the future. The one exception I will say to that is when we get something from an Indigenous group, at whatever point in the process, we, of course, consider it and see how it may be relevant and how we ought to respond in light of our constitutional responsibilities to Indigenous groups. Even then, the timeline keeps moving because, at the end of the process, decision makers, the minister or the Governor-in-Council, have to make a decision, and that’s clear in the legislation.
I would say that in terms of the time accorded to the agency — 365 days for an agency-led environmental assessment under CEAA 2012 — we meet or exceed that timeline all the time. There have been a few cases where we’ve asked for an extension, but by and large we meet that legal timeline. Where we sometimes get delays, if we can call them that, in terms of calendar days per proponent is in how much time it takes them to do that work. We are hoping that, through early planning, they will be able to compress the amount of time they need to do their work as well.
Senator Woo: Thank you very much for your testimony.
At the heart of the problem of the status quo, which lots of people have said is not working and some of you have articulated, is the lack of public trust, this generic term. I would like you to talk a little bit more about what you mean by the lack of public trust and how you are able to measure that there was no public trust and if, in fact, this is in some way tied to the litigation problems that we’ve seen on a number of projects, particularly the oil and gas sector. I think it’s also connected, perhaps, to this concept of judicial resilience that Mr. Hallman brought up. It would be very helpful for us to get some idea of how the early consultations on the development of the bill came to the conclusion that there was a failure of public trust, particularly in the NEB, how you were able to measure it, and why this bill then can restore the public trust so that projects can have a greater certainty of being completed on time and perhaps being implemented. Thank you.
Mr. Lucas: Perhaps I’ll start, senator. My colleague, Christyne, can speak as well to the National Energy Board.
I think one of the challenges that was noted in the discussions and engagement with the expert panel that the government heard through its own consultations was that, notwithstanding extensive and time-consuming reviews, there was inadequate explanation of why decisions were taken, that there was not broader public explanation of how diversion perspectives, which existed and were discussed in the reviews, are — reconciled, and that, in particular for Indigenous peoples, they didn’t believe there was an adequate and fulsome engagement. Indeed, some court decisions have noted that and set projects back as a consequence.
In that regard, the new system has built in, in a sense, the safeguards of increased transparency, and not just through public participation, which, as Ron Hallman noted, will be done within specified time limits and that is explicitly noted in the legislation, following the guidance of the regulator in terms of how that participation would occur — which courts have deferred to using the reasonableness standard — but accountability by virtue of providing reasons for decisions that expressly must consider the factors that were considered in the public interest and the report as a whole, and that require explanations for why a clock has stopped; or, as Christyne noted in the context of discussion with Indigenous peoples, in fulfilling the duty of the Crown, why certain infringements have been accommodated or, in some cases, not, or not as requested. We believe this increased transparency will improve the public trust and resiliency of the system.
It is something that stakeholders, including industry — and we’ve certainly heard from a number of industries, but one we have not touched on at this table is the mining industry, which supported the bill — believe is important, because the proponents are engaging with those communities, and they want to see that engagement of the regulator earlier and more transparently to enable the decisions to be taken more efficiently, but have the outcome, and that is judicial resiliency.
Ms. Tremblay: I believe it is a very good question. Trust is not an easy concept to put in a box. So what brings trust into a system? I think there are many levels. The first one is to be involved, to be listened to and to make sure that concerns of Canadians are addressed. In the early planning, like Steve and Ron mentioned, it’s what we are going to try to do, from the early planning through the decision phase.
The second one is transparency. People want to know. They don’t want a black box; they want something that is transparent. I think the system will help with that — with more clarity on the role, the decisions and all the phases of the process.
There is also, in the system, people who believe that maybe the life-cycle regulator has a bias in favour of the industry, so building a system where we put for major projects all the expertise and the strength of the system together, we believe that will bring some trust and avoid this.
Also, bring the provinces on board — and the diversity. I mentioned in my speaking points to bring Indigenous peoples on the board as commissioners. All this will help trust.
The Chair: Senators always want to have the time to ask supplementary questions, so if you can make shorter answers, that will help.
Senator LaBoucane-Benson: Good morning. I see a bit of a conflict that might arise in this act in that, on one hand, we are considering the duty to consult under principles — and I can see that, and it’s long overdue that the assessment act would have these principles embedded in it. However, by removing the standing test for participation, I wonder if the Indigenous voice for projects and against projects might be drowned out. By the lack of a standing test, anybody can participate. I wonder if the ability for resources, money, to be put into the environmental side might drown out the Indigenous nations that are for projects, and oil and gas money might drown out the voice of the people who might be opposed to projects.
Because there is no standing test, the people with the most skin in the game, that have the most to gain or lose, do not necessarily have the strongest voice if we don’t have a criterion to determine whose voice should be loudest in the consultation. Has there been thought about how that might be remediated?
Mr. Lucas: I will address it briefly, and colleagues may succinctly complement my comments.
As I believe Ron noted, the standing test exists only in the National Energy Board Act; it’s not in CEEA 2012. And as Ron had noted, in the current system, the agency has undertaken through structured processes a variety of ways that the public voice can be heard as well as specific processes to engage Indigenous peoples.
With respect to the new act, these are being made more visible features, with greater transparency, as I have noted, including explicitly requiring that an Indigenous engagement plan be developed as a separate output of early planning, separate and distinct from the public participation plan, to ensure that the constitutionally derived duty to consult is indeed undertaken. We believe that will lead to better outcomes for Indigenous peoples, proponents and provinces as partners.
Furthermore, I would add that the specification in the bill — and this was an amendment that was made in the house — is that meaningful participation will occur within the time limit specified by the agency. Indeed, the modalities of public participation would be based on guidelines developed, consulted on but affirmed by the agency, and courts have recognized and deferred to guidance of the agency, assuming it has been undertaken and accessed using a reasonableness standard.
We believe that builds in an ability to differentiate how best to hear the voices and ensure that Indigenous perspectives are heard and explicitly considered by virtue of factoring in clause 63 in the public interest determination.
Mr. Hallman: I would just add to Deputy Minister Lucas’s comments a reflection on the question. It’s a great question and one that is part of our day for every project, so I appreciate the question.
As I noted earlier, we have and will continue to have a variety of means of engaging stakeholders and the public, depending on the nature of their interest. It could be through email, online feedback portal, town halls, round tables, et cetera. That’s important, and it needs to be meaningful and we take that very seriously.
Quite apart from that is our relationship with the Indigenous groups that have an interest in a particular project and may be potentially impacted by it. The legislation still allows the agency the flexibility to tailor those engagements in a way that is consistent with how the community wants to be engaged. We have boots on the ground, often, in Indigenous communities so that we can sit with the elders and hear what they have to tell us. We have Indigenous leadership on the working groups for a particular project, rolling up their sleeves together with the proponent and federal officials to actually go through the crunchy parts of an environmental assessment right now.
That will continue, and not only will it continue but the bill enables, and Budget 2018 supports, capacity-building for Indigenous groups so that we can build a sense of community readiness to engage rather than just dumping a big project description or technical document on their table. It provides additional money for capacity so that Indigenous groups can build their own technical ability rather than just hiring consultants, if they wish to have their own technical ability. It provides much more — substantially more — resources to engage Indigenous groups at a higher level and a deeper level, not only on policy development in areas that might interest them but also on individual project reviews.
We believe we will be able to do proud by the public but still do an excellent job with Indigenous groups in ensuring their voices get the attention and consideration they deserve.
Senator Seidman: Thank you all very much for being with us this morning.
There has been a lot of reference in discussion about this legislation, and even in the legislation, to evidence and science. I would like to try to explore this a little around the impact assessment act, and specifically criteria factors for review. It seems there are concepts that will be rather challenging to define in a precise way, let alone to find measurements for these factors for designated criteria.
If I look just at the very factors to be considered in an impact assessment, it says changes to the environment or to health, social, economic conditions — and I look specifically at the health and social ones — and then it goes on to talk about any cumulative effects that are likely to result and the result of any interaction between those effects. I know those are statistical terms, cumulative effects and interaction effects, but I don’t really know how you are going to define and measure those when you are looking at the factors to be taken into account.
Then I go a step further and look at the ministerial right for suspension and review authorities, and it says the minister can refuse to conduct an impact assessment if he or she is of the opinion that it’s clear that the designated project would cause unacceptable environmental effects.
There is a lot of language here where I don’t really understand, from a science point of view, how you are going to find ways to measure these designated criteria.
Mr. Lucas: Perhaps I will respond briefly to this. My Department of Environment and Climate Change will be one of the federal authorities consulted in the new system integrated in from early planning.
Specifically to your point on cumulative effects, this reflects the state of the air, water, ecosystems, biodiversity, specific species, and we work with other federal experts, such as fisheries and oceans, but as well as the provinces and territories to define these. There are established standards for water quality and air quality that we work and develop with the provinces, so those are known elements.
In the area of biodiversity, there are metrics, and certainly there are robust scientific processes informing the state of species at risk. We develop recovery strategies and define critical habitat, and this is information that we are committed to making more broadly available to advance the science in parallel to the specific consideration on the project assessment system so we can consider, as relevant, the incremental impact of a project given the state of the environment in an area. In some areas, it will be directly measurable, as I have noted. In other areas, scientific judgment will be required, be it impacts on migratory birds or other species.
As well, we view that scientific assessment as one where, if there are disputes, the system calls for an ability to look at an independent peer review to make sure the science clearly defines the state of the environment. There are very measurable effects. We will increase the transparency of those. Then there are areas where scientific judgment gets applied, and we will increase the transparency of that in terms of describing that in the reasons for the decision.
Senator Seidman: If I might, I understand you’re talking about very specific metrics measuring air quality and things of that sort, and you say you are going to increase the transparency. Does that mean proponents will know what is in the list of requirements? You are dealing with those types of very concrete metrics, but what about things like health and social conditions? What kinds of measures are you going to use in a transparent way so proponents will also know what they are dealing with?
Mr. Lucas: In terms of the commitment to increase knowledge available independent of project reviews on the state of the environment, on regional assessments undertaken with provinces, so the proponents know in advance areas of perhaps increased sensitivity and can consider that in their project design. For example, you raise clause 17 where the minister does not have a decision to stop a project but rather an obligation to inform a proponent if there are areas where it would be impossible to permit a project, for example, as a consequence of an impact on a critical habitat in a defined protected area.
In terms of other areas of health or social impact, it would use social science to define health, again looking at potential impacts in federal jurisdiction. The specific studies or requirements for a proponent would be based on the work done in earlier planning to tailor the requirements to the nature of the project and the specific areas of federal jurisdiction that would be considered to properly circumscribe it to the scope and scale of the project and our jurisdiction. Of course, if it is done jointly with the province, it would be looking at those elements in the context of their jurisdiction.
Senator Simons: I want to start by addressing a question to Mr. Lucas. In your opening comments, you discussed designated major projects, as Senator Carignan noted, and you said you would have a criteria-based approach to decide what projects go on the project list. Could you tell us what those criteria are, when you will be making them public and when we will be able to see the project list?
Mr. Lucas: In regard to the proposed criterion and approach, the government did release, when it tabled the bill a year ago, the proposed criteria. As I said, they are anchored on two primary ones: first, the potential for adverse effects on the environment, and second, federal jurisdiction. As I noted, in particular, the focus is on the most significant potential for adverse effects on the environment in federal jurisdiction. We heard from Canadians through that, and that is informing refinement of those criteria and utilization of that to develop the project list.
I don’t have a specific date when the project list —
Senator Simons: Do you have a window?
Mr. Lucas: I would say I think it’s the government’s intent to release it for discussion and consultation in the coming months.
Senator Simons: Will that be before the committee has to decide on amendments and take a report to the Senate? Because I feel like we’re working in the dark. Without a sense of what projects will be on the project list, it’s difficult for us to know how this bill will function in real life.
Mr. Lucas: I can appreciate that point. The same broad criteria have informed the current project list. That said, your point is noted in terms of consideration for when that discussion paper on the project list will be released.
Senator Simons: Then I want to come to clause 9 of the act. In 9(1), we learn the minister may, on request of his or her own initiative, designate anything as something that might require impact assessment. On what criteria would the minister’s power to designate function?
Mr. Hallman: I think the first point I would make is that the project list makes a best effort to describe those projects that have the greatest potential for significant effects in areas of federal jurisdiction, but it’s not possible to know and see all.
What the legislation allows is, even for a project that is on the list, if it comes into early planning and we identify and we know what the effects are, they are easily mitigable or they are being managed by another jurisdiction, et cetera, it provides the flexibility to off-ramp that project and say you don’t have to have an environmental assess.
Conversely, there may be a type of project activity that is not described on the list because, normally it’s okay, but in a particular circumstance, either because of geographic location, sensitive species at risk, Indigenous concerns or whatever, it might make sense to have an assessment done on a project like that. The legislation builds in that flexibility rather than trying to have a perfect project list that can cover everything.
The approach is consistent with the approach that is in CEEA 2012 right now. It’s rarely used. In fact, there have been times when proponents have asked us to designate their project, and I’m thinking of a port in Beauport, Quebec, where the proponent said, “Please, would you do it so that we can have a clear and transparent process?”
Senator Simons: I want to turn to the scope of factors at the end of clause 22. This is another area where I’ve been told that we’ll get more clarity on how the factors will be scoped. My concern is that when people see that long list, they assume that every project will have to meet every single one of those factors. Are we going to get any more clarity on 22(2) and how the factors will be scoped so that proponents have a sense of what will be in and what will be out and how much flexibility there will be per project?
Mr. Hallman: The factors that are there now in the main are already in CEEA 2012, with a couple of additions. Rather than say everybody has to do the same amount of work on every factor, which is prohibitive and not helpful, we are going to go through the early planning phase and talk to the proponent, the province, Indigenous groups and expert federal departments and say. “Based on this description of the project, what are the issues that are likely to be problematic?” And whereas the act requires that we at least turn our mind to all of those considerations, if there are some that are irrelevant or where we already have information, we will simply document: “We have this information. Proponent, you don’t have to do anything on it. We’ve got it. It will be in our report and before decision makers but you don’t have to do that.”
What we will ask proponents to do is put their time, energy and money, frankly, into working with Indigenous groups and expert federal departments to drill down on the issues most relevant to the project, get at those issues and come up with the mitigations that would alleviate those concerns. The reason for that is then we can translate those into enforceable conditions that inform the decision by the government about whether the project can proceed to the permitting stage.
Mr. Lucas: There is an important linkage between clause 18, which specifies the outputs of early planning and, particularly, the tailored guidelines in 22(2). The whole intent of early planning is that ability to tailor the guidelines to the nature of the project, some of the concerns and not ask the proponent to address things already provided at that stage or that are not relevant to the project.
Senator Tkachuk: I assume that Bill C-69 fits into the government’s overall strategy for reducing emissions in line with their 2030 targets, which they are currently far from meeting. The committee, I think, would like some detail on how this bill fits into the larger strategy. Is the primary objective of Bill C-69 to mitigate or reverse climate change?
Mr. Lucas: The answer is no. Bill C-69, I think as Ron explained, is based on impact assessment as a fundamental planning process to enable decisions to be taken for those projects that are designated in terms of the consideration of impacts from environmental and economic, social and health factors, both positive and negative. In that context, one the environmental factors noted explicitly in clause 22 pertains to climate change. So it’s not a primary purpose of the bill; it’s one the elements of environmental factors considered.
As I noted, to provide clarity to both proponents and the impact assessment agency and federal authorities on how that would be looked at in the context of an impact assessment, the government has committed to do a strategic assessment of climate change, which would effectively design what type of information the proponent would need to provide on its emissions and, in that context, the discussion paper released in the summer did clearly specify that the government did not intend to look at downstream emissions, and also the parameters that the Impact Assessment Agency of Canada and federal authorities would look at in considering that information provided by the proponent within the context of the country’s climate change plan, so there is clarity on that process and broader discussions on climate policy are not part of project assessments but are undertaken in the policy fora outside the project review system.
Senator Tkachuk: I’m even more confused than I was before. I think it will be very difficult just from your explanation to figure out is required by someone making a proposal. Do you believe that, under Bill C-69, large oil sands projects will be viewed as compatible with the government’s climate targets?
Mr. Lucas: As I noted, senator, should a project be considered in the review, a number of factors are looked at, including environmental variables. Greenhouse gas emissions would be one. The nature of how they are looked at — the rules of the road, if you will — would be defined through the strategic assessment. For example, absolute emissions would be considered, and perhaps emissions avoided by use of technology would be considered.
Senator Tkachuk: Emissions from what?
Mr. Lucas: Well, in the case of oil sands, from the energy used to extract the oil, or, in the case of a mining project, the energy used to extract the ore. Those would be looked at along with other environmental factors, but with specified rules so that only those emissions and the mitigations that the company has proposed through technology and process to mitigate them would be considered.
Senator Tkachuk: Is there a drop-dead emission table where a company will know that if they meet this target, that will be fine, but if they are slightly below that target, they will not be fine? Have you done specific analysis on this issue? If you have, I’d like to see it. Can you table any of the analysis you have done on emissions from either large oil sands projects or other projects that the board may be considering?
Mr. Lucas: I’ll note two things. One of the purposes of the discussion paper that was released in the summer, and for which input was derived, was to look at some of these questions in terms of levels of emissions. That will be considered in the next phase of the strategic assessment of climate change, which will be launched shortly.
The government has published its assessment of direct and upstream emissions for a number of projects since that principle of looking at those was articulated in January 2016. Those are publicly available, as are, more broadly, emissions across the country from different sectors and in different regions as part of our transparent annual reporting.
Senator Mockler: I want to join the honourable senators in thanking the witnesses for being here.
I have a few questions that I hope you can elaborate on or provide information on.
We have been told during debates in the Senate on Bill C-69 and information sessions that the bill won’t mandate an upstream and downstream test for pipeline projects. My question is: Is that the case?
Mr. Lucas: As I just noted, in the context of the discussion paper on the strategic assessment of climate change released this past summer, the government did note that it does not intend to look at downstream emissions.
With regard to upstream emissions, which pertain in the context of pipeline projects, the government did indicate in January 2016 that it would consider those, as well as direct emissions associated with it. And the purpose of our consulting on the strategic assessment of climate change is to better understand the perspectives of business and other stakeholders around those.
Again, just to be clear, the purpose of the process is to find out what information needs to be looked at, to provide clarity to the proponent on how it will be considered, to provide clarity to the regulator on looking at it so broader policy questions are not looked at, and to help support innovation and the use of technology, which is the principal mitigation that companies across this country are using. This will help support and recognize that, and that was explicitly noted in the discussion paper and in the proposed approach around the project list criteria.
Senator Mockler: My next little question on this is: Coming from Atlantic Canada and being mindful about what happened to Energy East, would what you just shared with the committee have had a better, positive impact on Energy East?
Mr. Lucas: I think, as we’ve noted more broadly, we believe the new system, by virtue of considering a number of elements in this system, providing greater clarity on how specific environmental and other factors will be considered, by virtue of looking at regional assessments and broader cumulative effects, and by having an early planning phase to bring these issues out, it will enable a more effective process and a greater likelihood that good projects get approved and, as noted, resources get to market.
I use the example of the beluga in the St. Lawrence River, which was a concern on that project. We believe, in the new system, it would have been on the table early and addressed early.
Senator Mockler: Thank you.
When you look within the context of Bill C-69, (b) says it:
provides for a process for assessing the environmental, health, social and economic effects of designated projects with a view to preventing certain adverse effects and fostering sustainability;
I agree that we can improve on that. My question to the officials is, please tell the committee which certain adverse effects you mean.
Mr. Hallman: Madam Chair, I have a very brief example. One of the things we spend a lot of time on with proponents, and which Indigenous groups and communities are very interested in, is accidents and malfunctions. What are the steps in place to avoid malfunctions and accidents, and what are the steps to address them if they occur? I’ll pause there.
Senator Mockler: My next question is, please tell the committee which certain adverse effects are of no concern to you.
Mr. Lucas: I’ll just give an example. The release of a substance that’s a defined toxic substance into the environment could be one of those certain adverse effects. Through work with provincial and territorial officials, we’ve defined specific standards — as well, we’ve worked with Health Canada — in defining those standards that define the limits. Those are known. A good proponent will develop a project with the appropriate use of technology and mitigation measures to be within those standards and not exceed them. That provides for that threshold for certain adverse effects.
The Chair: I am looking at the time. Next to speak will be the sponsor of the bill, Senator Mitchell. He has the last five minutes.
Senator Mitchell: Thanks to each of you. This has been very informative and good. I’m going to be as quick as I can.
It’s very clear that the pre-planning process, as it’s called, is critical to this bill, and it offers a great deal of efficiency and effectiveness, I believe. As you’ve said, it will lead to shortened timelines. Every timeline in this bill is shorter than what’s in CEAA 2012 right now, but it’s critical that that’s managed effectively.
Could you just outline the 180 days, which is construed as being a new additional timeline? But it’s not as though industry doesn’t now spend pre-planning time. This will just make it formal, more efficient and more effective, as well as lead to a reduction, ultimately, one would argue, in the extent of the review process.
Mr. Lucas: Briefly, that is indeed the case. The intent is to effectively start the process earlier. That is something we heard from industry, including, for example, mining companies that are working in the communities and with First Nations and having that early engagement. They said they’d like to see the government involved earlier so that work can be recognized, issues brought out, and to provide the clarity and certainty that will allow for shorter timelines and a more efficient process when they make the larger investments in doing the studies and the work to support the impact assessment itself.
Senator Mitchell: Thank you.
Senator Richards raised a very important question, which is the question of de-risking legal action. The reason we know it’s a risk is because it’s occurred under CEAA 2012. CEAA 2012 isn’t working. Let me ask this question in a slightly different way: Could you give us some indication of how the TMX court case outcome might have been different, avoided or averted had we had Bill C-69 in place before?
Ms. Tremblay: Thank you. I think if we take the decision of the court, they didn’t say that we had everything wrong. They mentioned that we didn’t scope marine, so we had to redo that review with the NEB. The early phase and all will help with this, to properly scope the projects so we don’t have that type of surprise at the end.
The second mention of the court was that we didn’t have meaningful consultation. They didn’t say that the frame of the consultation was not right but the way we engaged with Indigenous peoples was not adequate. That’s also something that we’re going to fix now. The way that we are going to do the phase 3 consultation, that new process will bring all this learning we’re doing now from the TMX project so that, in the future, we are confident we will meet the requirement of the courts. We’re going to be more legally robust but also meet the expectations of the Indigenous groups.
Senator Mitchell: Industry is asking — some of them — for a drop-dead date after 730 days — in some cases, after 550 — where it’s done and the decision has to be made. That’s not the case in Bill C-69. Why would a drop-dead date not appear in Bill C-69? Why would it not be effective? Why would you argue against it?
Mr. Hallman: Great question. I’ve had that question from industry as well, and when I gave them the following answer, some said, “Oh, maybe we don’t want that.” Some may still want what the senator described.
The challenge with a drop-dead date is that proponents work on their assessment, in contemplating their project, ebbs and flows with the economic cycles, with their ability to attract investment, with their own priorities around the globe and moving resources from one project to another in different geographic locations.
CEAA 2012 and Bill C-69 put limits on the amount of time that federal officials have to do our work and holds us accountable in the name of the government. Where it might be a bridge too far is putting that accountability on proponents who know best what their work is. If they want to do a design change or if they want to say, “We’re putting this on a shelf. We’ll be back in a year when commodity prices are better,” that’s great. But if we had the perverse outcome of us saying, “Time’s up. We’re killing your EA. Start again when you’re ready,” I think there would be a strong reaction to that.
The Chair: I know you have to go and that we have gone past the time. However, we have two questions from senators who are not members of this committee. Would you mind if we take three minutes more?
Senator McCoy: Thank you for your courtesy. There’s so much to say and so little time to say it in. I’ll be very brief.
I remember that 20 years ago, many people in Alberta who are familiar with this process were asking that there be a firm commitment on the scope of assessment at the beginning, so I’m pleased to hear that you have adopted that view.
However, it is not immutable. Could you explain subclause 52(2) and clause 56? The first one allows a review panel, at any time, to request more information. The second one allows the minister, at any time before submitting a report to cabinet, to ask for additional information and studies. That would say to me that there is not a hard stop on the scoping document.
Mr. Hallman: Madam Chair, my expectation of that would be — and the senator is correct in terms of how she characterized the language in the bill — but that would still be additional information or greater granularity or understanding about a particular factor that was already in. It wouldn’t be about new factors that suddenly popped up. If there was something about water quality and it wasn’t clear to the panel or it wasn’t clear to the minister, they would have the ability to say, “I don’t understand this; I need more information.”
Senator McCoy: That’s your intention. So many good intentions. I’m very pleased to hear of your good intentions not to include downstream emissions. Would you be prepared to say to us today that you will not — not that you don’t intend to but will not — include downstream emissions on an energy project in an environmental assessment?
Mr. Lucas: The government has clearly articulated its view on that in the discussion paper released this summer, that it does not intend to look at downstream emissions. That engagement process to define and complete the strategic assessment essential so that climate change as a broader policy issue is not considered in project assessments is not yet completed. We’d be happy to update the committee as that work continues. But the government has clearly signalled that it does not want to include downstream emissions in individual project assessments.
The other thing —
The Chair: Sorry.
Senator McCoy: Thank you so much for that clarity.
Senator Miville-Dechêne: I have a quick question. Quebec and a number of other provinces have serious concerns about Bill C-69. I first want to address the issue of jurisdictions. Quebec wants interprovincial projects — or projects that fall under provincial jurisdiction with incidental effects on federal jurisdictions — entrusted solely to Quebec, with the necessary discussions to take into account your concerns. It’s obviously not written that way in the bill. I want to know whether there are any safeguards. How do you plan to ensure that we come up with one assessment per project, and not a duplication?
Mr. Lucas: I’ll start by answering your question, Senator Miville-Dechêne. Christine can then add a few comments.
The “one project, one assessment” goal is set out in the bill, as part of the early planning, with the need to foster full collaboration with other jurisdictions, such as the province of Quebec. In addition, this bill is the system that recognizes the vital need to enter into bilateral agreements as in the past with Quebec, so that the system can operate effectively. Regarding the public servants, Quebec has already informed us that it wants to renew this cooperation agreement to achieve the “one project, one assessment” goal.
Ms. Tremblay: I’ll refer to your comment, Senator Massicotte, with regard to competitiveness. When we meet with the proponents, they talk about the difficulty of having to deal with a number of environmental impact assessments. The “one project, one assessment” goal is crucial. The bill contains new tools to establish different types of collaboration. It may involve substitution. Even for a project on the list of projects assessed at the federal level, the province could carry out “one project, one assessment” in full. The door is open. As Mr. Lucas said, some provinces have already expressed interest in working this way. It’s not the only tool. Cooperation agreements can be established, which would enable two jurisdictions to work together simultaneously with the proponent to align the projects, the impact assessments or the alignment assessments. This would ensure that the time frame is the same. Through the agreements, we can ensure that the proponent will provide the same documents to both jurisdictions, provided that the documents meet the needs of the jurisdictions. This type of tool is extremely useful. It will help achieve the “one project, one assessment” goal and improve competitiveness. When proponents talk about the regulatory challenge, they bring up the complexity and overlap issue. The tool helps address this issue.
The Chair: Thank you.
We are going to let these officials go. Our next group of officials will come and we can keep asking the same type of questions.
Thank you very much for your availability and your answers to our questions.
In the second panel, we welcome Ms. Christine Loth-Bown, Vice President, Policy Development Sector, Canadian Environmental Assessment Agency; Brent Parker, Director, Legislative and Regulatory Affairs; Timothy Gardiner, Acting Director General, Petroleum Resources Branch, Energy Sector, Natural Resources Canada; Nancy Harris, Executive Director, Regulatory Stewardship and Aboriginal Affairs, Transport Canada; and Jean-Sébastien Rochon, Senior Counsel, Resource Development Coordination Unit, Department of Justice Canada.
This panel doesn’t have a statement, so we can start directly with our questions which are on the same subject as the first panel.
Senator Cordy: I wasn’t expecting to be first, and I was expecting some notes.
In the last panel, we had someone from the Navigation Protection Act here, and no questions were asked. One of our colleagues told us yesterday that, sure, that it’s not a huge part of the bill, but it is part of the bill. I was reading about that particular part of the bill, and it talks about Bill C-69 seeking to restore lost protections and to provide greater oversight of the navigational waters in Canada. Can you explain how this is going to change and what changes there are from the previous legislation to the new legislation?
Nancy Harris, Executive Director, Regulatory Stewardship and Aboriginal Affairs, Transport Canada: Certainly. Thank you for the question.
There will be a number of changes that will fit into that category of restoring lost protections. First of all, the schedule of waters under the legislation, the criteria for adding waters would be updated. There would be an expansion of that schedule. Any works that would be built on scheduled waters would continue to require an approval under the Canadian navigable waters act. There would also be an introduction of a new category of works called major works. Any major works built on any navigable waters in Canada, either scheduled or not scheduled, would also require approval. So there would be those two aspects of the act that would be under that category of restoring lost protections.
Any works that do not require an approval because they’re not a major work or they’re on a non-scheduled water would be subject to a brand new resolution process, which is outlined in the legislation. That new resolution process would require anybody building a work on any navigable water to undertake a resolution process, which would mean that they would have to notify the public of what their plans are with respect to building that work. There would be a comment period, and they would have to resolve any concerns before they would proceed with the construction of the work.
Those are the main elements of the restoring lost protections.
Senator Cordy: We have minor works, and I think they said boat ramps and above ground cables, underground cables. Major works, though — in the briefing notes that I have, the only example was of a large dam. What would be another example of a major work as defined by this act?
Ms. Harris: Certainly. The major works order is a new concept under the legislation. That is still under development and being defined.
In November, a discussion paper was released to set out some of the preliminary thinking around what a major works order could potentially include. There were several categories of works that were set out. One was ferry cables, another one was the dams, as you have mentioned, another area was aquaculture sites and the last area outlined in that discussion paper were certain bridges and causeways that would have a particularly significant impact on navigation. Major works are generally defined as those works that have a significant interference to navigation.
Senator Cordy: Again, it goes back to other parts of the bill. People who are reading the changes are really concerned about timeliness and ensuring that the approval process is done in a timely way so that if somebody is planning on building a dam or a bridge, which you explained, it would be done in a timely way so that projects can either proceed or they know that they’re not going to proceed.
There are factors that the minister must consider. There would be a consultation process, Indigenous knowledge that’s been provided to the minister, the impact of the work on navigation and the owners’ record of compliance. Is there a timeline set out in the bill? I’ve read all of the summary of the bill. I haven’t been specific in terms of the changes to the Navigation Protection Act.
Ms. Harris: There are no timelines for the regulatory approval set out in the legislation. The intention would be to put in place cost recovery regulations over the coming years. As part of the development of those cost recovery regulations, there would be the establishment of service standards for the issuance of the regulatory approval. That’s where we would start to see the timelines for issuing the regulatory approvals.
Where a Canadian navigable waters act approval would follow an impact assessment, there would be some opportunities to build on and use the early consultations and early planning in the impact assessment in order to streamline some of the processes at the regulatory phase.
Senator Cordy: Will these changes make the approval process more transparent?
Ms. Harris: That’s another key theme of the Canadian navigable waters act, the transparency. One of the key features that has been introduced into the legislation is the establishment of a public registry. That is a new feature for the legislation. We don’t currently have a public registry under the Navigation Protection Act. This would be the place where you would see applications for works. They would be put onto the public registry, and it would be an opportunity for people to see what is being proposed to be built and to get the information they need in order to provide comments on the different works that might be built in their neighbourhoods.
Senator MacDonald: I guess I will direct my questions to the Canadian Environmental Assessment Agency. Clause 9 of the act allows the Minister of the Environment and Climate Change to designate any activity if “public concerns . . . warrant the designation.” That seems quite vague and broad. Will the government consider the concerns of foreign-funded activist groups as a public concern? Do we have guidelines on how these concerns will be specifically weighted? And do you agree that stakeholders with a direct stake and investment in a potential project should be weighted higher than foreign-founded activist groups?
Christine Loth-Bown, Vice President, Policy Development Sector, Canadian Environmental Assessment Agency: I can start with that, and my colleague might want to follow up with some additional information.
As was articulated earlier, the means by which to establish whether a project will undergo an impact assessment is to determine whether it’s a designated project. We will have a regulation defining that.
Clause 9, consistent with what happens under CEEA 2012 now, allows for the ability for projects not on the project list to be considered for designation by the minister. This currently happens now. To answer the senator’s specific question, yes, we do have guidelines in place used to assess how we go about determining whether a project should be designated. We have those now, and we will have those in the future.
The issue is really that we want to have as much certainty with the project list, because we take very seriously the fact that people are asking for certainty on which projects will be considered so that they know up front. Clause 9 is intended to allow some space for projects that we may not be aware of currently — project types — as new technologies come online; new types of projects that wouldn’t currently show up on the list; if there is a project where concerns are raised; or, as the president spoke to earlier, where a proponent actually asks us to designate a project and consider the designation of such.
Currently, we very rarely use this clause. We often get requests, and we go through a process of reviewing those and then document why the decision is being taken, but it’s a rarely used clause.
Senator MacDonald: But you didn’t answer my specific question, which was, will foreign and foreign-funded activist groups be considered as somebody who can bring forward a public concern? Can they make a presentation under these regulations?
Ms. Loth-Bown: It’s not so much a presentation; we receive letters. We will receive a correspondence addressed to the minister, the minister will then review the issue that’s being raised and then document back the response to that. It is all very transparent and guided by guidelines and procedures, which are consistent with the same framework we use for designating the projects on the project list regulation as well.
Senator MacDonald: I want to ask the question again. You didn’t answer the question. I asked you whether foreign-funded activist groups will have a place at the table. Will they be able to intervene?
Ms. Loth-Bown: With respect, if we receive a letter, we need to respond. In terms of where the letter will come from, if the minister receives a letter, then she responds backs to that letter.
Senator MacDonald: So the answer is “yes,” right?
Ms. Loth-Bown: If the minister receives a letter, then we have to transparently respond back to that letter and who is it is received from.
Senator Carignan: My question is for Ms. Loth-Bown. When we implement a regulatory legislation and enforcement process, normally, at least in my previous life, we conduct experiments and try to see whether it can work in practice. We test our model by saying the following: “If I have a specific concrete case and I take the enforcement of the regulation or legislation that I want to implement, will it work? Will we have an authorization or rejection?”
Do you conduct that type of test? Have you tested the enforcement of the legislation for specific projects?
Ms. Loth-Bown: Yes. We’ll test the process. We’re carrying out the process, and we’ve created the legislation and regulations based on our experience. As the chair explained earlier, the things that we’re seeing now in the legislation come from our experience with the existing legislation and the good practices implemented with the stakeholders from Indigenous groups.
Senator Carignan: In your department or agency, have you taken certain projects and said, “If I start the project on day 1 and go through the process, how long will it take for my project to be approved or rejected, and does the process work?”
Ms. Loth-Bown: The process must work. Let’s work with other departments and their experts, such as Fisheries and Oceans Canada, Transport Canada and Natural Resources Canada to ensure that we work well together. We’re working together on assessments of previous projects, and we’re looking at how these projects will continue under the proposed legislation. So yes, we’re doing it at this time. We’re also reviewing our guidelines to see what changes must be made when it comes to the interpretation and implementation of the proposed legislation.
Senator Carignan: Have you tested certain activities and certain works? For example, have you tested the construction of an oil pipeline from Alberta to New Brunswick? If so, at the end of the test, was it authorized or rejected? Or was it so long that it was impossible?
Ms. Loth-Bown: To date, we haven’t conducted a test such as the one that you mentioned. However, we’re working with the National Energy Board to review the legislation, especially the parts of the legislation that concern integrated projects, to see how everything will work, how information will be collected, and what we’ll ask the proponents. Yes, we’re working with the NEB to see how the legislation can be implemented.
Senator Tkachuk: With previous witnesses, we had a little discussion on downstream emissions. I believe they told us that will no longer be a consideration, although they weren’t quite as clear as we would have liked, as Senator McCoy got to, and I still don’t think it was clear as we would like, but it did impose one on Energy East. So is the government admitting they made a mistake by doing that, and why did they change their minds?
Timothy Gardiner, Acting Director General, Petroleum Resources Branch, Energy Sector, Natural Resources Canada: Senator, you are correct that on Energy East, the panel established to review that project considered input on a list of factors they would consider and determined that they would consider downstream emissions. I think what you heard from Deputy Lucas earlier today is, as part of the implementation of this bill, strategic assessments are part of the implementation plan, and there is one under way right now in relation to how climate change emissions considerations would be factored into project level decisions. That discussion paper is out for comment now, and the government has clearly communicated in that discussion paper that downstream emissions would not be taken into account as part of project level decisions.
Senator Tkachuk: So they made an error? Or what factor made them change their minds?
Mr. Gardiner: I was not part of that panel. They are an independent panel, and they exercised their discretion as an independent panel in determining the scope of the review.
Senator Tkachuk: I want to change the line of questioning for a bit. Your office for the impact assessment board is in Ottawa now, is it not?
Ms. Loth-Bown: Our national headquarters is located in Ottawa, and we have offices in six provinces across the country.
Senator Tkachuk: How many people work here in Ottawa?
Ms. Loth-Bown: Half of our workforce are here in Ottawa and the rest is spread out across the country.
Senator Tkachuk: How many people work here in Ottawa?
Ms. Loth-Bown: A little over 100 work in Ottawa and we have about 257 staff.
Senator Tkachuk: With the new responsibilities under this act, will there be more people needed?
Ms. Loth-Bown: Yes. Under the new responsibilities of the act, the government, through Budget 2018, identified about $259 million for the Canadian Environmental Assessment Agency to increase its workforce as well as to increase its funding program, as the president indicated earlier, for the public and Indigenous groups to participate and to undertake further studies and research.
Senator Tkachuk: By how many? How many more people will be needed?
Ms. Loth-Bown: It’s estimated the staff complement to the agency will go from approximately 275 people to approximately 450 people.
Senator Tkachuk: Will that include people in the outlying areas as well, in the other provinces, or is that in addition to the ones you already have?
Ms. Loth-Bown: Yes. The staff complement will increase in each of our regional offices in particular in order to be able to undertake the early planning processes and to work directly with communities on the ground.
Senator Tkachuk: How many in total? The 400, is that the total number for the whole country or just for Ottawa?
Ms. Loth-Bown: No, it’s the total number for the whole country. The figures I cited are the total number of agency staff across the country.
Senator Tkachuk: We have experienced how long it took to get the infrastructure bank. I don’t know if it’s still operating, do you? The infrastructure bank? Or if it just has a phone number. It’s been years. How long do you think before you are up and ready to be in business after this act is — I hope it’s never passed, but just in case it is passed — how long before you are up and ready to go?
Ms. Loth-Bown: We would be ready to go as soon as it was passed. Already, under the budget, the government took a decision to allocate resources this year to the agency to be able to increase staff, so we have already been doing proactive staffing of positions across the country. As I indicated, we are only moving from 275 to 450 and that —
Senator Tkachuk: You are hiring staff in anticipation of the bill being passed? The bill isn’t passed yet, so what are you hiring staff for?
Ms. Loth-Bown: Recognizing that the bill has not yet passed and it is subject to the parliamentary process, the government took a decision to identify staff to be staffed, and identified and approved, through the budget in the supplementary estimates process, resources for the agency to be able to prepare. Those resources through the supplementary estimates process are not permanent resources to the agency. They need to be looked at and reviewed again, but it enables us to do the necessary policy work and get things ready so, if the law were passed, we will be able to implement effectively and efficiently.
Senator Patterson: I want to ask a question about litigation risk. I think this would be to Mr. Rochon, perhaps. There is a great deal of concern about the rapidly deteriorating confidence of investors in resource development projects in Canada, and I hope the committee will get evidence on where we stand in the world on that. I believe that the detail, the complexity and the long prescriptive lists in this voluminous act leaves the process even more ripe for legal challenges than in our present regime. My question is, does Bill C-69 create new opportunities for legal challenges, and have you done any analysis of the litigation risks?
Jean-Sébastien Rochon, Senior Counsel, Resource Development Coordination Unit, Department of Justice Canada: Thank you. The additional factors for consideration and the new scheme do indeed have or present potential litigants with more opportunities to challenge a decision made under the act. The risk of litigation will really hinge on the work being done on a case-by-case basis by the agency review panel and the decision maker. Those risks, as is currently the case, will in all likelihood be reviewed on the reasonableness standard by the court which is, at this time, the standard applied by the court that shows the greatest deference to the decision maker. Yes, the more factors we have, the more steps in the process, it does open the door to potential recourse to the courts.
Senator Patterson: My second question was, have you done an analysis of the litigation risk? We all know projects have been paralyzed by the court. There is a big one in the Trans Mountain project. Have you done an analysis of those risks, and can that be shared with the committee?
Mr. Rochon: In terms of the likelihood of being brought to court, it’s a given that someone will bring the government to court. The risk of a particular challenge being successful will need to be assessed, unfortunately, on a case-by-case basis.
Senator Patterson: Have you done an analysis of litigation risk, is my question, for the third time.
Mr. Rochon: We have considered the risk of litigation, but, in the absence of facts, this risk is highly theoretical at this time. To answer your further question, the legal risk analysis is a solicitor client privilege information of government.
Senator Patterson: There has been one done, but you are not willing to share it with the committee?
Mr. Rochon: As I have explained, we have looked into the possibility of being brought to court and we looked at the possible risk of one of those challenges being successful, but in the absence of facts on any given matter, there is no risk to be assessed at this time. All we can say is that, having considered the cases that have been filed against government so far under the current legislation and the one before it, the position of the government is that it’s most likely that any of those decisions will be assessed on a reasonableness standard, and so a court should show a degree of deference to the decision maker as to the decisions that are considered.
Senator Patterson: Now, it would be possible to insert a prohibitive clause in this legislation to exclude judicial review of acts and decisions of the executive and eliminate the supervisory judicial function of the courts. Was that considered in this legislation?
Mr. Rochon: A prohibitive clause has been considered for this legislation. I should point out that no prohibitive clause can be so airtight as to remove the possibility of a superior court to review the legality of a government decision. A prohibitive clause in the statute would be sternly worded and indicate that no decision shall be reviewed by a court, but the courts always retain a residual capacity to verify that decisions made are legal and follow the process.
The prohibitive clause’s main use is to signal to a court that the intention of Parliament is that the decisions made under the act be assessed and reviewed by a court with the most deferential standard, which is the one currently being applied to most decisions made under the Canadian Environmental Assessment Act 2012, which is the reasonableness standard. The current CEAA 2012 does not have a prohibitive clause, except for one coordinating provision that concerns pipelines, but otherwise the rest of the act does not have a prohibitive clause.
Senator Simons: I wanted to follow up on Senator Patterson’s question with Mr. Rochon. When you and I chatted on the phone, we talked about a prohibitive clause, and we also talked about an eventuality where you could structure the bill so that appeals would go straight to the Federal Court of Appeal without the Federal Court step. Can you walk me through what the pros and cons of that kind of situation might be?
Mr. Rochon: It would be possible to insert a recourse into the statute for some other types of review, mainly judicial review, which, right now, would have to be done by the Federal Court. If we are contemplating, for instance, a right of appeal to the Federal Court of Appeal, the consequences of that would be as follows: We would skip a level of judicial scrutiny, so the Federal Court, going straight to the Federal Court of Appeal, which usually sits on appeal from administrative tribunals or the other courts, such as the Federal Court. From a timeline perspective, that allows you to avoid one entire process before the Federal Court, so one, two or three years.
There is also consideration that we are skipping a level of judicial scrutiny, which means that if we are not satisfied, or if a proponent is not satisfied with a decision of the Federal Court, there is only one more possibility of appeal, and that’s to the Supreme Court of Canada. At that point, it’s an appeal with leave, and the Supreme Court will have to decide that it’s of significant importance that it would contemplate hearing the appeal. Effectively, for most appeals, it’s quite possible there would not be any further appeals, so you would be looking at one step — the Federal Court of Appeal — and depending on the decision of the court, you may or may not be able to bring the matter up to the Supreme Court if we are not satisfied with the results of Federal Court.
Senator Simons: If you went to the straight to the Federal Court of Appeal, you would get a final decision, hypothetically, because you would skip over the whole Federal Court issue. There wouldn’t be the issue of retrying the facts because the Federal Court of Appeal would look just at the narrower legal issues. But for either people opposed or proponents of the project, they might not like the answer they get and they might not have much recourse, so those would be the pros and cons, I guess, you are saying, right?
Mr. Rochon: That’s right.
Senator Simons: Clause 63 is the public interest factors. I don’t know if this is for Mr. Gardiner or Ms. Loth-Bown. The public interest factors don’t specifically enumerate economic or social benefits of a project. Some people have told me they feel that’s captured in the word “sustainability” in 63(a). But I’m concerned that because the public interest factors don’t enumerate the economic or social benefits of a project, that we are missing a balance, because any project will have to balance the positive and negative consequences. Can you explain why those words are left out of the public interest test?
Senator Patterson: Good question.
Senator Simons: I try to make them all good questions.
Ms. Loth-Bown: Thank you for the question. With respect to the clause 63 public interest test, as the senator noted, there are a number of different factors that need to be considered in the public interest test.
I’d like to note that, first and foremost, we have to consider the full report. As the president, Ron Hallman, noted earlier, the agency is required to consider all factors and document that in a report and consider what attention had been given to them. They are not all necessarily weighted equally, that’s for sure, but we do have to document how they were considered. In looking at all the factors, we are looking at both the positive and negative of all of these factors, including the health, social and economic factors.
Then, specifically on the public interest test, as the senator noted, one key area is to look at the overall contribution to sustainability. “Sustainability” is a defined term within the legislation, and in the definitions section of the proposed legislation it defines sustainability as the ability to protect the environment, contribute to the social and economic well-being of the people of Canada, preserve their health and manner of benefits for present and future generations. Sustainability is defined to include economic benefits.
Senator Simons: I worry that by the time people get to clause 63, they will have forgotten the definition of “sustainability”, which in common parlance would in no way be defined in the way the bill sets out, yet the bill talks about environmental consequences and other sociological consequences. Is it not possible to re-stipulate the unique way in which the government has chosen to define sustainability for the purposes of this bill? The word “economic” rarely appears past the preamble.
Ms. Loth-Bown: With respect to the focus in clause 63, as well, on effects on the environment in an area of federal jurisdiction, that has been explicitly done because we need to ensure a decision being made on a project is in an area of federal jurisdiction and that there is an environmental effect there. That is the rationale for why that is explicitly mentioned.
With respect to sustainability, of course, there are always opportunities to redefine definitions, but the way the drafters draft is that once a term is defined once, it carries through and you refer back to it, so just encouraging, in the reading of legislation, always referring back to those defined terms. That’s a legislative drafting convention.
Senator Woo: Thank you, witnesses.
I want to follow up on Senator Simons’ question, starting with the observation that the deputy mentioned that the previous regime looked only at adverse effects, whereas the current bill looks at sustainability, which includes positive effects, as we have just heard from you. You can confirm that to be the case. Under the previous regime, there was no requirement to look at the positive side and the economic benefits, so to speak, so even on that count, it would seem the new bill has an improvement to allow that possibility.
What I’m interested in, though, in addition to this, whether we cover the positive side of a project, is the connection between clause 22 and clause 63. There doesn’t seem to be a full correspondence, or there seems to be the possibility that 63 could override 22, even though 63 is, of course, based on the report of the agency coming out of the factors in 22, the long list of factors. I would point out that the very first factor is, in fact, positive and negative consequences to the economic conditions. Can you tell us more about how you think 63 will be applied vis-à-vis 22 and why we should have some confidence that there wouldn’t be some dissonance between these two sections?
Ms. Loth-Bown: Thank you, senator, for the question.
With respect to clause 22, that outlines all the factors that the agency is obligated to consider in an impact assessment. Different from CEAA 2012, this adds a few additional factors, but I do want to note that these are some factors that have also existed in previous pieces of environmental assessment legislation, dating back to 1992. So none of these factors, in and of themselves, are new factors; they’re new in Bill C-69.
First and foremost, the agency is obligated to look at all of those factors. I do want to flag that we are not obligated to ask the proponent to look at all of those factors. There was a considerable amount of discussion earlier about the early planning process — the benefit of that and the outputs of that. One of the key outputs of the early planning is the tailored impact statement guidelines. Through the development of those guidelines, that’s where we, as the agency, will identify what we require the proponent to look at.
Linking this to clause 63, the agency will document a full report of how all of the factors in clause 22 are considered — either by the proponent, by the agency, by one of the federal expert departments, or maybe even a province or territory in a report that they have done. We’ll just document how it was considered or why it was not particularly relevant to this project so that it’s very open and transparent about how it was all considered.
Then, in taking a public interest decision, if it’s the agency taking it for agency-led or if it is the Governor-in-Council taking it for panel assessments, they are required to look at the entire report. In addition to that, they are required to look at the factors laid out in clause 63: sustainability, environmental effects, whether they are adverse in nature, and how they have been mitigated or managed down, the impacts on Indigenous rights, and also how the project will inhibit or promote Canada’s ability to meet its environmental commitments.
So there is a strong correlation between clauses 22 and 63 in terms of the decision-making process.
Senator Woo: Would not the report by the agency — the review panel — already have answered those questions that are in the public interest test? Would the government not already know what conclusions were reached by the work of the agency through the input of the proponent and other agencies, and would it not, therefore, be able to draw almost exclusively from the report, which is based on the factors in 22, rather than have to look at a new cross-cutting set of considerations?
Ms. Loth-Bown: The policy intention of the design behind clause 63 is really to give clear line of sight to a decision and the factors that went into the decision-making process. As was noted earlier, the proposed act is based on the number of years of consultation on many levels and a considerable amount of feedback. The feedback that we hear time and time again is that there’s a real difficulty for the Canadian population to see a clear line between the review of a project, a panel’s report or an agency’s report, and the decision that’s made at the end.
The design of clause 63, and also the transparency features that exist throughout the legislation, is that at each turn, when a decision is made, being very documented and transparent about that, and posting it publicly on the registry, those are all intended to address this issue so that at the end of the day there’s a clear line to the assessment that was done and the decision that was taken at the end.
Senator Massicotte: My question is for Mr. Rochon. I’m looking at Part 1 of the bill, line 35. It says that the government is committed to “implementing the United Nations Declaration on the Rights of Indigenous Peoples.”
When we look at the past 20 or 30 years and all the court interpretations, we can quite clearly define the duty to consult. The term “consultation” is used in Canada. However, in the United Nations declaration, the term “consent” is used instead. It means “approval,” according to the dictionary. The preamble may indicate that we’ll change our definition and that we’ll need to seek the approval or consent of Indigenous peoples. The term “approval” is much clearer than the term “consultation.” Can you provide any clarifications? How can we handle these two interpretations, one of which means “consent” and the other “consultation”? Will these two interpretations lead to complexities in the future, with one term taking precedence over the other?
Mr. Rochon: Thank you. First, the reference to the United Nations declaration is found in the preamble of the legislation. It’s an interpretation tool that doesn’t impose any specific obligation. The concept of consent in the declaration isn’t defined and is the subject of a number of discussions between governments and Indigenous peoples within the academic community. James Anaya, the former United Nations rapporteur on Indigenous issues, described the concept as a mutually acceptable effort to establish an agreement that would enable Indigenous peoples to influence the decision-making process, reach a consensus and work together in good faith. This goal will be achieved through separate projects with the First Nations concerned. The bill provides a number of ways to accomplish this.
Senator Massicotte: There was a delay of several months at the United Nations with respect to this term. I’m well aware of the rapporteur’s opinion. Nevertheless, many legal experts say that a significant conflict exists. The term “consent” is much broader and more engaging than the term “consultation.” Don’t you think that this will be one of our next issues, which will result in the delay of a project for several more years? Why mix things up like this?
Mr. Rochon: The addition of the reference to the United Nations Declaration on the Rights of Indigenous peoples shows the government’s interest or intention with regard to implementing the various components of the declaration. The mere fact that the declaration is mentioned in the preamble doesn’t result in any legal obligation. Will there be an issue with the other provisions of the legislation in light of the reference in the preamble? Maybe. Probably. At that time, we’ll need to debate the matter before the courts. In terms of specific projects, we hope that there will be a greater understanding on the part of both the government and the First Nations involved in a given project.
Senator Massicotte: Ms. Loth-Bown, you said earlier that efforts have been made to improve the bill. In British Columbia and Quebec, the environmental approvals for projects are more efficient and take less time than at the federal level. Compared to the rest of the world, our time frames are terrible. Have you looked at what’s being done in Quebec and British Columbia in order to learn from their practices and ensure that things will move more quickly at the federal level?
Ms. Loth-Bown: Yes. While carrying out research and analyzing the legislation, we conducted many consultations and we looked at other systems. You mentioned British Columbia, which has just passed legislation along the exact same lines as Bill C-69 regarding impact assessments. We reviewed the system in Quebec, particularly the consultation methods concerning the BAPE and the hiring of the workforce. We didn’t implement the exact same system, but we made efforts to increase involvement, engage earlier and use other tools for consultations and participation. In principle, we’re also drawing inspiration from the Quebec system.
The Chair: Thank you very much.
Senator Richards: Thank you for being here. This question has been asked. I asked it earlier to the other panel, and Senator Patterson and others have asked it.
I’m a little worried that if consultation doesn’t go the way the consultants want, this bill will be open to litigation at every level. There will be constant hold-ups or stalling tactics by all kinds of different groups through the courts — not only protesting pipelines but through the courts themselves. I can’t see where you can guarantee that this won’t happen. If you can’t guarantee this won’t happen, then I can’t see how we’re going to be very productive in Alberta or anywhere else.
Ms. Loth-Bown: Let’s talk to the principles and design of the legislation and how, throughout the entire design, we’re trying to ensure meaningful public participation and Indigenous consultation. I know it was spoken about earlier today, but with the advent of early planning, good proponents do start early but not all proponents start early, so this is bringing consistency across projects to make it consistent that there will always be an earlier start and that the federal government will engage earlier than it has in the past. We clearly heard that the federal government needs to engage earlier, get out on the ground, meet with communities, meet with Indigenous groups, understand the issues and document those to the proponent so that everyone clearly understands the issues.
The design, the early planning and the threads that are woven throughout the rest of the legislation are to bring certainty of process, certainty to the scoping of the issues that need to be looked at in the assessment, certainty as to who needs to be consulted with, who wants to be consulted with, how they want to be consulted with and the issues upon which there is an interest. The outputs in the early planning give a public participation plan and an Indigenous consultation plan that lay that out, the communities that need to be consulted and how they want to be consulted. Carrying that through the process, we want to work through mutual understanding, that people understand all the issues and have the opportunity to contribute.
In terms of the actual consultation periods itself, they will be very specifically defined in terms of a time frame. When an agency posts something on the public registry for consultation or engages in a consultative period, we will define at that point the time frame so it’s very clear to everyone. Then, at the end of that time frame, we move to the next step.
Deputy Tremblay spoke about the Trans Mountain and what they’re looking at now with respect to consultation, and the issue there that the courts found was not that people weren’t consulted but that their perspectives weren’t listened to and then addressed through potential mitigation measures or other measures to address those comments. That’s also a really important part of it. It’s hearing what people say and then trying to find ways, through tools across the federal government or through decision statements and mitigation measures, to be able to address the issues that are heard. Through hearing the concerns, documenting them and then finding ways to manage them, address them and accommodate them, as we are required to under the constitution, we are working to have that thread that people feel consulted and see how their inputs have been addressed.
Senator Richards: So you can’t really disagree with the people you’re consulting with because, if you do, and they disagree with you that you’ve disagreed with them, they can start litigation. That’s the concern. The concern is consulting with people who find your final reports lacking in some way and decide, since it’s lacking, we’re going to go to litigation. It’s not going to be one consulting group. It could be many that you have to consult with. That’s the elephant in the room that I don’t think is being addressed here.
Ms. Loth-Bown: As was said earlier by the president and the agency, the process itself is designed to be a planning process. It’s designed to take in the maximum amount of information, and what’s proposed in this bill is to take in more information than in the current system so that we have a full suite of issues that are being looked at and examined and so that participants in the process have a good understanding of all the impacts and implications. We document those in a report so that there’s a clear line of sight in the decision, but also so that with the views and perspectives of those who participated, they have an opportunity to see how those are being heard and how they are being addressed. I think that’s an extremely important part of any engagement and consultation process, to hear the views and perspectives and to try to find ways and means to address the concerns that are being raised.
As the president also noted earlier this morning, the agency itself has a very good track record in terms of processes and our ability to be able to take in views and to find ways, through decision statements or potential mitigation measures, to address the views that have been expressed.
Senator Mitchell: Thanks to all of you. Great panel again.
I’m going to focus a bit on the NEB. There’s concern about transitioning to the CER from the NEB. One was jurisprudence, which was asked this morning by my colleague. The other one is expertise. Is there any reason to expect that when the CER goes out looking for expertise, that they’re not going to look at the NEB and pick people and knowledge from there and bring it over, quite effectively?
Mr. Gardiner: The legislation includes a number of transition measures, including carrying forward all staff that are currently part of the NEB. At that level, expertise is built up.
Senator Mitchell: All the staff are carried forward?
Mr. Gardiner: Yes.
Senator Mitchell: Great. Excellent. That’s it. Sorry, I didn’t mean to cut you off.
I have another question. The NEB has been independent. Now, the NEB/CER will be part of the impact assessment agency. Could you give us the reason for that and the advantages for that, or the disadvantages, for that matter?
Mr. Gardiner: I’m not sure if we understand the question. Could you restate it?
Senator Mitchell: The NEB was stand-alone. Now, for designated projects, it’s new iteration, the CER, will be under the supervision of the IAA, and before it was separate from the CEA. What’s the reasoning behind that? What’s the justification for that?
Mr. Gardiner: That change is found in the impact assessment act. My colleague is probably best placed to answer that.
Ms. Loth-Bown: Thank you for the question. One of the important things is, under CEAA 2012, we currently have three responsible authorities, one of them being the National Energy Board, as you’ve noted, the Canadian Environmental Assessment Agency and the other being the Canadian Nuclear Safety Commission. What we’ve heard clearly in our consultations is that that results in an inconsistency of process when we’re looking at designated projects. Each system is slightly different in terms of how they review the projects, the factors that they look at and the decision-making process. In the proposed impact assessment act, we move to one responsible authority, which is the impact assessment agency of Canada, so you get consistency of processes and decision-making.
That being said, we’re talking only about designated projects, and the National Energy Board and the Canadian Nuclear Safety Commission play very important roles as life-cycle regulators for the industries that they regulate. They will continue to make assessments on projects that are not on the designated project list, so not the major projects that we spoke of earlier with the significant impacts in an area of federal jurisdiction. They have a very important role and they maintain that role. They are the life-cycle regulators, and they will continue to regulate those projects, which is very important for both domestic and international obligations.
They will work closely with the agency, and we will have integrated reviews on projects for the impact assessment. We do get more consistency of process, which is very good, but we also get to leverage the very excellent experience and expertise of those regulators, and they will carry on regulating those projects and providing the enforcement for them.
Mr. Gardiner: Including for designated projects, the CER, under the new legislation, will participate in an integrated assessment. They will also make a decision under the CER act. A regulatory decision will be advanced by the CER and brought to the Governor-in-Council for decision. It continues to be a public interest test at that level under that act.
Senator Mitchell: Clause 22 lists a series of things that need to be considered, one way or another, by government, by your agency or by the proponent. It’s true that very few of these are actually new considerations. Companies tell me that they do gender-based analysis right now. Could you comment on what the overlap is, what the situation is now versus what this clause is saying it will be?
Ms. Loth-Bown: As you know, they are not new factors. They exist currently in the CEAA 2012 legislation, or they’ve previously existed in CEAA 1992. With the exception of the one about climate, none of them are new factors.
With respect to factors such as gender-based analysis, as you mentioned, or health and social-economic impact, proponents are often looking at these things as well. They work within communities. They want to understand their communities. They want to understand how projects are interplaying with members of those communities. They are already doing that.
With respect to social and economic factors, we do currently look at those. The real issue is that they’re not transparently looked at. Under the new frame, all the impacts that are assessed will be documented in the public-facing report so that people, as I noted earlier, can have a better line of sight, because when a decision is being made by the Governor-in-Council, they are, of course, looking at social and economic factors. The issue is that those are not transparent in terms of public documentation. So this proposes to make the entire assessment, evaluation and decision-making frame very public and very transparent.
Senator Patterson: Can I ask a supplementary on Senator Mitchell’s question?
The Chair: A very short one.
Senator Patterson: Senator Mitchell talked about the NEB and the Nuclear Safety Commission. Ms. Loth-Bown, you said they’ve got a lesser role. They will not regulate major projects but will continue as life-cycle regulators, but you said they have played important roles and will continue to.
We’ve heard proponents of this bill, including federal ministers and even our chairperson in the last session of Parliament, say that the NEB had been discredited. Despite your expression of the ongoing importance of the role of the NEB and the Nuclear Safety Commission, would you say they have been discredited?
Ms. Loth-Bown: I would speak to the process. In terms of overall, as was discussed this morning, there are changes being made to the process in order to restore the public’s trust in the system, so they can completely understand all the factors that go into a decision-making process and the transparency of those decisions. That’s an overriding premise of the entire review of the system, and that is consistent with the government’s commitment and the mandate letters that were received by our ministers: to look at restoring the trust, the openness and the transparency of the system across the board.
To make a point of clarification, because I recognize that it is complex, the NEB, as the CER or the CNSC, will continue to regulate the projects as the regulator; it’s just that they will work collaboratively with the impact assessment agency in the actual assessment process.
Senator Patterson: The answer is “distrusted but not discredited.”
Senator Seidman: Thank you very much for your presentations. You didn’t really present, but you’re answering a lot of questions, so I appreciate that a lot.
My question probably would go to you, Ms. Loth-Bown, but we can figure that out. It’s about clauses 104 to 116, the Canadian impact assessment registry. It’s been said several times that this is a so-called insurance of transparency. I think we all know that registries are only as good as the information that’s in them. We have examples of registries that don’t work the way they were intended. Specifically in the health field, there certainly are registries that do not supply the information they’re intended to supply, and there are a lot of disputes over that information. First of all, I know this registry replaces the existing registry. I’d like to know who is going to administer the registry and who will have authority over top-end decision-making if there are disputes.
Ms. Loth-Bown: Thank you for the question. The impact assessment agency of Canada, which would be the new agency that will replace the Canadian Environmental Assessment Agency, will be responsible for the registry. You are correct in that it replaces our current, existing registry. The most significant issues or changes are that, throughout the legislation — and I’ve touched earlier on this — is the importance of transparency and people having access to clear documentation so that not just decision-makers but the public also have access to the information that goes into the decision.
There are approximately an additional 80-some-odd requirements in this piece of legislation over what we currently have in CEAA 2012 from a transparency standpoint and requirements to publicly post things. We will be publicly posting documentation received from the proponent but also documentation that we receive from federal expert departments so that everyone in the process has a good understanding of all the information that goes into it. Once again, this is to be able to understand how a decision gets arrived at.
We’re currently working on the development of that system, and we’re employing a user-centric approach, recognizing that there are many people who have to use this system. In order to do that, in the spirit of the question asked earlier by the senator about testing and engaging others, we’ve been engaging our provincial and territorial colleagues to learn from their systems and also how they might use the system. We’re also discussing with members of our multi-interest advisory committee in terms of how they might use the systems. We have an understanding that different people have different needs and use the system in a different way. That way, we can design it as such.
Senator Seidman: You have more questions to be answered and more items to go on the registry, but in past experiences, there are disputes on the part of those who are supposed to reveal or divulge information. Who will have the ultimate authority to say, “No, sorry, that isn’t proprietary information; that has to be revealed and has to go on the registry”? You often hear that it’s a trade secret. You hear that all the time in the pharmaceutical industry. They refuse to post things on registries because they say it will have a negative impact on their business. Who will make the decisions about what is a real danger to industry, what isn’t and what will go on the registry?
Ms. Loth-Bown: At the end of the day, it is the impact assessment agency of Canada that would make those decisions. However, they would not do that without having consultations, dialogues and discussions. I might take the example of Indigenous knowledge and the importance of protecting Indigenous knowledge. Clause 119 of the bill does add to the protection of Indigenous knowledge and information.
We also hear the counter, that the proponent needs to have information. We have situations now where we have Indigenous knowledge that we want to protect; for example, there are sacred sites, areas around hunting and gathering, primary sites that people don’t want publicly available. However, the proponent may need to have some of that information in order to be able to conduct their project.
We sit down and we have a conversation. We have a conversation with the individual or the community that’s providing the information, and we have a conversation with the proponent to determine how that information can be shared in a way that’s useful for the proponent and, at the same time, protects the information from the individual’s and community’s perspective. So we would continue in the frame of having those conversations.
Senator McCallum: The elephant in the room is not respecting Indigenous rights, which are entrenched in the Constitution. We speak of Indigenous groups, but we forget that these groups also have rights protected in the Constitution — inherent rights and treaty rights. How will an Indigenous group be able to assert these rights in this process, and how will these assertions be dealt with?
Ms. Loth-Bown: Thank you for the question.
As was noted, starting at the preamble with the recognition of the UN Declaration on the Rights of Indigenous People, and throughout bill right up front, there’s a recognition of Indigenous rights and the impacts on those rights.
I’ll just talk about a few things that are in this bill. As I said, first and foremost, right at the early planning phase, one of the first key things we need to look at is the potential impacts on Indigenous rights and work with involved communities to understand the impacts on those rights. Then, we need to understand what information, documentation, research studies and things need to be done to better understand those rights and to be able to find ways, if possible, to be able to manage down and mitigate the impact on those rights.
Also, there is the consultation plan at the beginning. It’s also a really important tool to be able to respect our duty to consult through the Constitution, section 35, but it’s not just on the duty to consult; it’s about having a relationship. It’s about understanding the relationship with the communities that will be affected and having a conversation and dialogue around the key issues they would like to discuss, how they would like to be consulted and when they would like to be consulted in the process.
We all know of examples of finding out at the eleventh hour that there is a community that has a particular interest and they didn’t get an opportunity to give their perspectives. We want to avoid that by having a very clear, upfront understanding of how communities may be impacted and how they want to participate in the process.
The other thing that’s really important in this bill is that, with respect to looking at Indigenous jurisdictions and providing Indigenous jurisdictions with the ability to play a greater role in the impact assessment process, now, under CEAA 2012 the definition of jurisdiction is very limiting, so it only allows Indigenous governments with self-government agreements to be able to take a lead role in conducting an impact assessment. What this legislation offers is an expanded role of jurisdiction so Indigenous communities can take a broader role in impact assessment, and we are going to be working on a regulation, and consulting and engaging on that, to determine the roles that communities want to take. Some may just want to undertake some studies and some may want to undertake the full process. We do have examples now, particularly in British Columbia, of communities that have conducted impact assessments, but under the rigidity of CEAA 2012 we didn’t have the ability to be able to draw upon that. The agency did take that and put it into its report, but this legislation offers the ability to substitute Indigenous jurisdiction, which is an important step in moving forward on a relationship between Canada and Indigenous jurisdictions.
Finally, another key feature is the actual decision-making process. We talked earlier about clause 63 and the public interest decision-making frame. One of the things that needs to be looked at and clearly articulated in the decision-making frame is the impact on Indigenous rights.
Starting from the beginning and running through to the end, we tried to weave through many different ways to try and improve the relationship with Indigenous people.
Senator McCallum: You have talked about Indigenous knowledge, and I’m very glad that it’s in there. That’s what has kept us surviving for centuries. That survival and resilience are testament to that.
In the Indigenous teachings, there is the seven-generation rule, which means we need to consider seven generations down and that we are keeping the land and the environment for them. What we are talking about today is an epic conflict of values: gaining economic benefits today versus long-term effects on future generations. Who will be the witnesses speaking for them? And how do we achieve a balanced, future-oriented view as Canadians, taking into account that, yes, we need employment, but we need to have a well-balanced view?
Ms. Loth-Bown: In terms of Indigenous knowledge, as you indicated, one of the key changes from CEAA 2012 to the proposed legislation is that Indigenous knowledge must be taken into consideration, whereas under CEAA 2012 now it is may, or optional. That’s a really important point and, as you noted, a fundamental piece of this proposed bill.
In terms of Indigenous knowledge and the interpretation of that, we are currently working on defining the policy and guidelines and hosting workshops across the country with Indigenous communities to seek the perspective of Indigenous communities on how this policy should be developed and how it should be framed in the legislation. Those workshops are actually starting later this month, and I think that’s a really important opportunity to define that interpretation.
We will also be drawing upon other experiences across the federal government, for example, with Parks Canada. They have done a lot of work with Indigenous communities on how to interpret information, plants, how to respect the park, how to respect communities, and we will be working with Parks Canada to draw upon that knowledge and experience they have gained in interpreting how to best set that frame and how to involve communities in establishing that framework.
The Chair: Thank you very much. Before we go to the second round, we have two non-members who want to ask questions.
Senator Wetston: I have been comparing CEAA 2012 with the current bill. I have been examining the way in which independent administrative tribunals have been reorganized around a landscape in which there is more political involvement. That’s clearly the case in CEAA 2012 and clearly the case at present. If you look at this combination, do you view this bill as in any way creating the opportunity to reduce political risk in the decision-making process?
Ms. Loth-Bown: With respect to the design of the bill, I think, as I’ve noted earlier, with the early engagement, with the public participation plans, the co-operation plans and then with the decision-making frame, particularly around clause 63 and the public interest test and the fact that decisions will be documented and publicly posted, I think those are important elements for ensuring that the decisions are made in a way that people can see a line of sight from the actual project to the outcome. We have heard a considerable amount of feedback that people are often challenged with seeing how a decision was made. I think those elements will go a long way to making that clearer.
Senator Wetston: But does it reduce political risks? You are talking about clarity, and I’m talking about risk. We are talking about two different things. What is your view on that?
Ms. Loth-Bown: Information, openness of the process, transparency, ability to participate and to understand how the issues were raised and the participation provided and how that’s responded to, those all go a long way to managing risk in any situation.
Senator Wetston: Second question, if I may. Can you explain the rationale for moving away from the original standard that was in CEAA 2012 on adverse impact to a public interest test, and can you explain the rationale between that? I think there was a question on clause 63, clause 22 earlier and those factors that need to be considered, and the newest factor that you have described being climate change. How would you expect any proponent to address climate change as opposed to addressing an issue associated with the certain level of greenhouse gas reduction, and how do you compare that and contrast that when you think about a public interest standard and non-public interest standard, which would be the consideration by the impact agency?
Senator Patterson: Good question.
Ms. Loth-Bown: With respect to clause 22 versus 63, the climate — senator, you had an element right at the beginning that I admit — the first element, there was one other thing that you wanted me to cover?
Senator Wetston: My memory is not that good. Must not have been very important.
Ms. Loth-Bown: With respect to clause 22 and the link to clause 63, under CEAA 2012 now, as you indicated, we only look at environmental effects, whether they are significant or not. Then, if it is deemed that they are significant, are they justified? That’s the frame for the decision. It’s a very narrow frame right now. With the proposed legislation, the proposal is to widen that frame to go beyond looking at just environmental effects and just their adversity, just their negative elements ,to look at a broader suite of factors and look at both the positive and negative of those. That’s a really important change in the frame. When you take that and go from clause 22 to clause 63, it’s not that environmental effects and whether they are adverse or not isn’t important, because that’s also found in the public interest test. We still need to look at that, because that’s really the area of federal jurisdiction upon which we can take a decision. But in order to make that decision, we also need to, as I said, also look at all the positives and negatives and provide opportunity for dialogue and discussion on that.
With respect to the climate specifically, I have indicated on a number of occasions that we work closely with federal expert departments. Your question is, how can you ask proponents to be responsible for climate and the Government of Canada’s perspective on climate? We will be working closely with our colleagues at Environment and Climate Change Canada to assess different things with respect to climate. Mr. Lucas spoke earlier about the department’s strategic assessment on climate. On a project-by-project basis, we would turn to those climate experts at the department and ask for any research, studies or analyses they could bring to bear on the situation.
With respect to the proponents, it’s not that they don’t have a role, because many may choose to employ different technologies that make a better contribution to a climate agenda. That would be assessed and weighed in terms of the positive and negative effects of various, different project choices.
Senator McCoy: Welcome to the committee, and thank you for your endurance with all these questions.
I have in front of me a copy of your discussion paper on the strategic assessment of climate change. On page 3, it says that you are going to do the strategic assessment of climate change with respect to how to quantify direct upstream GHG emissions. Downstream emissions would not be assessed. At the back, you have “next steps,” and you have invited written comments up to and including August 31 last year, and then you indicated that you would be writing draft terms of reference. Then you would have a draft strategic assessment report published last fall. Was that done?
Ms. Loth-Bown: Senator, thank you for the question. Deputy Minister Lucas is the deputy minister for Environment and Climate Change Canada, and he spoke a bit about this study. It’s actually his department that’s responsible for the study itself, so my knowledge of it is cursory in nature. I believe he indicated this morning that the next report you are referring to would come out shortly. I believe that’s what he said.
Senator McCoy: I haven’t had a chance to research whether the comments have been published on the website. I will do that overnight, but in the interests of transparency, my question to you is, are you aware if the comments have been posted on the website?
Ms. Loth-Bown: Yes, I believe they have been, senator.
Senator McCoy: Are you aware of what they say?
Ms. Loth-Bown: I am not, as I’m not responsible for that file.
Senator McCoy: Then I have one other short question. In following up on a question that Senator Tkachuk asked earlier with respect to Energy East pipeline — and this is for clarification — the panel that included downstream emissions in their assessment was not the NEB, as I understand it; it was a panel that was hand-picked by the minister. Is that true?
Mr. Gardiner: I’m trying to remember. I’m not 100 per cent sure. I could verify.
Senator McCoy: Perhaps you could email your office and get verification and clarify that before the afternoon is out.
Mr. Gardiner: The reason I hesitate is that you mentioned a second panel. There were two separate panels identified for that project. One was charged with engaging the public, which is outside of the adjudicated process that panels normally perform under the NEB. There were two panels there, and I guess that’s what is creating a bit of memory lapse.
Senator McCoy: Could your staff provide you the answer so you could give us the feedback this afternoon?
Mr. Gardiner: Yes, sure. Absolutely. In the time I have available, I’ll make sure we get an answer.
Senator Mockler: I’d like to thank the witnesses for answering our questions.
I have had the opportunity to look at the history of New Brunswick, and I want to touch a bit on nuclear. My questions will be oriented to the nuclear side for my four and some minutes. In doing a round table in the province of New Brunswick — and I have people from across Atlantic Canada — we talked about nuclear. I would like you to state the facts on the following question, but we are especially concerned about the transfer of the responsibility for assessment of nuclear projects from the expertise — world-renown expertise of the Canadian Nuclear Safety Commission — to the impact assessment agency of any project. As a matter of fact, Canada is being hunted by world leaders, because we are the leaders in nuclear. Can you officials provide us with documentation outlining the government’s rationale for removing the Canadian Nuclear Safety Commission power to solely conduct assessment for nuclear facilities?
Second, give us the consultation, with prime examples, that you undertook with the Canadian Nuclear Safety Commission on this issue. What evidence can you give Canadians that is leading you to believe that the Canadian Nuclear Safety Commission was not performing assessments to a worldwide satisfactory safety standard, including Canada’s? Those are my questions.
Ms. Loth-Bown: Thank you, senator, for the questions.
With respect to the process — and here, I’ll step back and explain. As was discussed earlier, under the current environmental assessment legislation, there are three responsible authorities looking at designated projects. The Canadian Nuclear Safety Commission looks at designated projects for nuclear, the NEB for those projects that fall under their purview and the agency does the rest. The issue is that there are differences of process across the three, so we wanted to bring it to one responsible authority and consistency of process.
But when looking at projects currently, I do want to note that the Canadian Nuclear Safety Commission is actually doing it under the environmental assessment legislation. In the future, we will still be doing it under the same current piece of legislative framework for the actual assessment part, but instead of the Canadian Nuclear Safety Commission doing it on their own, they will do it jointly with the Impact Assessment Agency of Canada.
That being said, as the senator noted, there is a significant amount of expertise at the Canadian Nuclear Safety Commission. They also have obligations under international agreements for their decision-making. They will participate jointly with the impact assessment agency of Canada in the review of the project, and the panel itself will be an integrated panel. A member will come from that panel from the roster appointed by the president of the CNSC; they will participate there. Then the regulatory decision made by the Canadian Nuclear Safety Commission will continue to be made by them.
So it is only the impact assessment process that they will participate in jointly with the impact assessment agency of Canada, but they will retain the decision-making power under their legislation, because they have requirements in international agreements to be that decision maker. That will stay; that’s maintained.
We have been working very closely with the Canadian Nuclear Safety Commission throughout the entire process.
Senator Mockler: Can you be more specific? What consultations did you undertake with the CNSC? Can you give us a snapshot, if you have the time, or provide the committee with the information?
Ms. Loth-Bown: I will start and then Mr. Parker, who is the Director of Legislative and Regulatory Affairs, will add further consultations that we have done.
Across the federal family, we have an interdepartmental community called the major projects department. It’s a committee both at the director general level, assistant deputy minister level and deputy minister level that looks at the implementation of environmental assessment legislation and reviews projects as they’re going forward. The Canadian Nuclear Safety Commission is a member of that committee. At all levels — director general, assistant deputy minister and deputy minister — that committee has been reviewing the various policy, research and legislative work that has been going on that has led to the development of this piece of legislation, so they have been involved throughout the process.
In addition to that, since the legislation was proposed, we have had a more concrete working group that involves staff from the National Energy Board and the nuclear safety commission to unpack what the integrated panels need to look like. How do we make sure staff are working together? How do we make sure that information requirements that they need under the nuclear safety act and that we need under the impact assessment act would work in tandem? They have been heavily involved.
Brent Parker, Director, Legislative and Regulatory Affairs, Canadian Environmental Assessment Agency: Maybe I can respond directly to the question about the consultations with the public. I think you’ve heard a lot about the extensive consultation that has happened over the last two years on this particular piece of legislation. In terms of the nuclear sector in particular, they fed in through those public consultations, but then we also have a multi-interested advisory committee established by Minister McKenna. That particular committee has representation from industry, Indigenous groups and environmental groups. The Canadian Nuclear Association is a member of that committee. They have met with us on almost a monthly basis through that committee. We have also reached out more fully to that association, both in bilaterals and through the workshops. Later this month, we will be having an in-depth meeting directly with them again.
The Chair: Can I jump in on that? It’s on the same subject. I have done studies on the impacts of radiation following Chernobyl and following the Japanese reactor. Many of the plants are close to water because they need water for cooling the system. We talked about climate change before, and now we know that climate change is bringing bigger waves and more erosion. I want to know if you are really considering climate change when you analyze big projects, and especially those that are very close to the water. Ports, bridges, nuclear plants, methane, petroleum ports. I think it’s important, so you could you please explain how close the environment climate change will work with the proponents of the big projects?
Mr. Parker: Thanks for that question. The answer, simply, is yes. We do look at the impacts of climate change now on the project. A lot of discussion here so far has been the impact of a project on climate, but we also look at the reverse. Now, partly because of the geography of Canada, when we look at projects in the North and there are permafrost issues, that’s often a challenge brought forward by stakeholders and proponents themselves, and that will continue on. In clause 22, there are factors with explicit mention of that. That would entail the factor around accidents and malfunctions, which I think is partly what your question touches on. Going forward, that would be explicitly captured in clause 22 and would be dealt with in our report, which would go to the decision maker to inform their decision.
The Chair: Thank you.
Mr. Gardiner: I have a couple of things to add. One is that decisions will continue to be made by the CNSC for non-designated projects. That doesn’t change. Another thing that doesn’t change is for designated projects. Right now, decisions are made pursuant to two acts, the Canadian Environmental Assessment Act 2012 and the Nuclear Safety and Control Act, and the successor to the Canadian Environmental Assessment Act 2012, the impact assessment act, will be operative in this new regime, as will continue to be the Nuclear Safety and Control Act. Decisions will be made pursuant to both acts, as was the case before and will continue to be the case going forward, including for designated projects.
The other piece I wanted to add is in relation to the question from Senator McCoy that I stumbled over before. I have an answer for you. I guess the complicating factor was that pursuant to interim measures announced by the government in January 2016 for the Energy East project, a separate panel was established to carry out public engagement activities. That just kind of confused me a bit. A further complication in relation to that project specifically was a number of members recused themselves because of a perceived conflict of interest, and so a second panel was established, and it was that second panel carrying out the adjudicative function that determined that downstream emissions should be part of — under the NEB act, yes.
The Chair: Thank you very much. Now we are going into the second round and the deputy chairs.
Senator McCoy: Congratulations to the flexibility and nimbleness of your staff.
Mr. Gardiner: It helps greatly that my predecessor in my position is sitting right behind me now.
Senator MacDonald: I want to speak to you about timelines and ministerial suspensions when it comes to projects. You will be aware that stakeholders are concerned that these provisions will cause major delays for project reviews. The Canadian Energy Pipeline Association said Bill C-69 references the potential for time extensions at least 40 times, significantly reducing the probability that many projects will meet the legislated time lines. Is there any merit to the concerns of the Canadian Energy Pipeline Association and others on that point? What would you tell these groups to allay concerns, and under what circumstances does your department anticipate the minister would use her powers to suspend project reviews?
Ms. Loth-Bown: With respect to the time lines, time lines are far more strictly managed within the proposed piece of legislation than under the current regime. The overall timeline for any process has been significantly reduced in this proposed bill: an agency-led assessment going from 365 days to 300, a panel assessment going from a minimum of 300 to a maximum of 600, and setting that at the end of early planning so everyone is clear on the time frame. Currently, now they are 24 months. So it will be a lot less than that if that’s 720 days currently and they are being reduced from 300 to a maximum of 600. Right across the board, the timelines are being reduced.
The other important thing about timelines with respect to decision-making is that in the current legislation, the time frame for decision-making it is not legislated, whereas in the proposed legislation, the time frame for the minister to make a decision is 30 days and for the Governor-in-Council to make a decision is 90 days. Those are legislated timelines that do not currently exist in CEAA 2012. Already, there are stricter timelines.
Then there is also the addition of a new regulation that is proposed to support the proposed legislation, which is an information and time management regulation. We went out and consulted on a discussion paper. It went out at the same time that the bill was proposed to talk about the criteria that would be used if there were to be a suspension of a time frame. It was discussed earlier this morning. I believe it was Deputy Tremblay that spoke to it. There are very strict criteria to be able to suspend a time frame: if the proponent requests it, has a design change, if they haven’t paid a bill, and the only other one is if there is a very significant piece of information that needs to be gathered in order to make a decision, but it does have to be very significant.
There is a much stricter management of timelines and suspensions in the proposed bill.
Senator MacDonald: I asked as well about the minister. How do you anticipate the minister will use her powers to suspend project reviews? Under what circumstances?
Mr. Parker: I’ll speak to that, because I’ve been working on the regulation.
The minister’s ability to suspend the timelines is actually regulated by the criteria that Christine just mentioned. In going forward, if one is to suspend the timeline for review of a project, it has to be according to one of those regulated criteria. The minister would have to invoke the fact that the proponent has requested it, there is an outstanding payment that we expected from the proponent or there is a major design change with the resulting impacts being different than what was potentially anticipated in the process. We’ve had a lot of discussion already about the early planning and how we would scope out what that project looked like. If that project were to change, there’s the possibility that the minister could, under that criterion, then, pause the timeline in order to give the proponent the opportunity to go away and do the work on the project that’s needed in order to bring that information forward to continue the review.
Senator MacDonald: To follow up, in reference to that, if the 90-day limit of certain timeline suspension — if they’re referenced — the Governor-in-Council may extend the 90-day limit an infinite number of times. That’s also in there. What assurances can you give the committee that these extensions won’t or cannot be used indefinitely?
Ms. Loth-Bown: The design and the intent is to be very strict on the use of the suspension criteria. The other important fact, as well, that’s quite different from today is that’s there’s also a requirement to document, to add a transparency element and documentation element to outline the reasons something is being done. That doesn’t currently exist now.
Senator Cordy: It’s been a long day. I’m sure it’s much easier when you’re in your office than taking questions for hours on end. Thank you for your openness.
I’ve read concerns from provinces that they are a bit concerned about overlap or intrusion, depending on who is asking it, between federal and provincial jurisdictions. Can you explain whether the proposed impact assessment would indeed intrude on provincial jurisdiction?
Ms. Loth-Bown: There is no intent to intrude on provincial jurisdiction, and the design of the legislation is such that any decision being made needs to be made in an area of federal jurisdiction.
There are many things that we will look at in conducting an impact assessment — many different factors, many different things that will go into the report — but the actual decision that gets taken at the end of the day does need to be in an area of federal jurisdiction related to the environment. That is a very important component that my Justice colleagues will ensure; namely, that we are always taking decisions within our jurisdiction. The legislation is designed as such.
The legislation is also designed to promote cooperation with other jurisdictions and to move toward “one project, one assessment” and reduce duplication for everyone in terms of the information collected and the process that’s used, because it is inefficient to have different processes going on on the same project. So we really want to move to “one project, one assessment.”
Senator Cordy: I’m from Nova Scotia, so the Atlantic accord will not be affected by this bill?
Ms. Loth-Bown: No.
Senator Cordy: Thank you.
When I’ve been reading articles and listening to some discussions on radio or TV about Bill C-69, I’ve heard that if Bill C-69 is passed, there will be no pipelines ever built again in Canada. Can you comment on that?
Ms. Loth-Bown: The intent behind Bill C-69 is to look at major projects, including pipelines, mines and nuclear projects, as we were talking about, to look at those projects that are the most significant projects with the most significant impacts, and to have the best process possible for decision-making. The government and Minister McKenna have been quite clear in the desire to promote the economy. You’ve heard comments by Minister McKenna, the economy and the environment go hand in hand, and the intent is to support a competitiveness agenda and to ensure that there is certainty of process so that good projects can continue to move forward.
Senator Cordy: Thank you. That clarifies it.
Senator Carignan: My question has to do with the process. As I understand it, the minister may request a panel assessment, and, as you said, the time frame for that impact assessment is between 300 and 600 days.
Ms. Loth-Bown: Yes.
Senator Carignan: I also see that, when the time frame is too lengthy, the minister has the option to suspend the request, or panel review, and ask the agency to conduct the review for the purposes of making her decision. Is that correct?
Ms. Loth-Bown: Yes.
Senator Carignan: If the time frame is too long, say 600 days, does that mean the suspension happens after 600 days?
Ms. Loth-Bown: It depends on the time limit set for the project in question. The time limit for every project subject to a panel review has to be between a minimum of 300 days and a maximum of 600 days.
Senator Carignan: Therefore, if the minister has set a time limit of 400 days for the panel assessment and, after 405 days, nothing is done, the minister can decide to pull the file and ask the agency to produce the report. At that point, then, the agency’s authority comes into play. Is that correct?
Ms. Loth-Bown: At that point, the agency will use all the information that’s already been provided to the panel.
Senator Carignan: But the agency has 300 days too, doesn’t it?
Ms. Loth-Bown: Yes, if such a situation were ever to occur, but, in my view, it’s very unlikely.
Senator Carignan: If it were to occur, after 405 days, the panel would lose the file and it would be transferred to the agency.
The agency has 300 days to submit its report, and from what I see, the minister doesn’t have the power to extend or shorten the 300-day time limit. What happens in that case?
Ms. Loth-Bown: Three hundred days is the maximum time frame the agency has to conduct an assessment. If it doesn’t need 300 days, it can complete the assessment sooner. Three hundred days is the maximum, but it doesn’t have to take that long.
Senator Carignan: If it takes the panel 405 days, isn’t it safe to assume the agency will take 100 days or 200 days to submit its report to the minister?
Ms. Loth-Bown: You’re talking about a hypothetical situation.
Senator Carignan: But that’s what will happen. I’m going to switch gears and talk about public participation. The agency, the committee and the panel must provide opportunities for meaningful public participation. What does that mean? Does an environmental NGO count as part of the public?
Ms. Loth-Bown: Yes, it’s part of the public.
Senator Carignan: What does providing opportunities “for meaningful public participation” mean? Do rules of procedural fairness apply? Is the public entitled to all of the evidence held by the committee or panel so it can provide informed comments and feedback?
Ms. Loth-Bown: We are going to post the public participation policy and guidelines on our website, where the process will be explained. As the president said this morning, different methods will be used depending upon the participants. It could be through emails, meetings —
Senator Carignan: You must endeavour to apply procedural fairness and natural justice, mustn’t you? There are procedural rules that go hand in hand with natural justice and fairness.
Ms. Loth-Bown: Since the agency isn’t a quasi-judicial body, it doesn’t have that obligation.
Senator Carignan: What’s the point of section 54, then? The panel does it, but not the agency.
Ms. Loth-Bown: The panel works with the National Energy Board or the Canadian Nuclear Safety Commission, both of which are quasi-judicial bodies. I’m going to ask my colleague from the Department of Justice to provide further details.
Senator Carignan: This matters. If the minister transfers the file from the panel to the agency, the agency has a duty to act fairly when it comes to procedure and the rules of natural justice. The bottom line is that the agency has no obligation to apply the rules of natural justice.
Ms. Loth-Bown: I want to be clear, senator. Assessments can be done in one of three ways. First, the agency can conduct the assessment. Second, the assessment can be conducted by a panel that —
Senator Carignan: I realize there are three ways to conduct assessments, but the person affected remains unchanged. Whether the agency, a panel or the minister is involved, people have rights and they are entitled to have their say.
Ms. Loth-Bown: I’m going to ask my colleague from the Department of Justice to explain it to you.
Mr. Rochon: Under the legislation, members of the public have the opportunity to express their point of view. Not every member of the public has the same level of interest in the project. The procedural component isn’t necessarily the same as it would be for the project proponent or an Indigenous group living on the land where the project is located. The process had been entrusted to a panel, which completed a certain amount of work. The evidence gathered in that context will be available to the public, which will continue to participate in the process carried out by the agency. The public will have access to that information. The work that was done before the minister transferred the process to the agency isn’t lost. It remains available to those who continue to participate in the process.
Senator Carignan: For the panel —
The Chair: Sorry —
Senator Carignan: We’re talking about something important. It’s fundamental.
The Chair: It’s been six minutes already.
Senator Carignan: Yes, but we’re going to take another two minutes because I’m sure the environmental groups would like an answer to the question.
The Chair: Go ahead and ask the question, then.
Senator Carignan: Section 54 of the Impact Assessment Act, or IAA, sets out a procedural fairness requirement for panels. You said that the agency doesn’t have the same obligation to apply procedural fairness and that the information will be accessible to all members of the public. How is it that both bodies aren’t subject to the same obligation?
Mr. Rochon: Section 54 refers specifically to the review conducted by the panel. The provision was drafted with the work of the panel in mind, not that of the agency. When the matter is referred back to the agency, it’s the rules applicable to the agency that come into play at that point.
Senator Carignan: Would you agree with me that there aren’t any rules on procedural fairness for the agency?
Mr. Rochon: Yes.
The Chair: Thank you very much.
Ms. Loth-Bown: I’d like to clarify something, if I may. The legislation has three components and three components in relation to the sections setting out the agency’s roles and responsibilities. One component addresses a panel alone and the third component addresses a panel with the National Energy Board or the Canadian Nuclear Safety Commission. Their roles and responsibilities are very different. It’s set out in the legislation.
Senator Carignan: There’s also the regional committee.
The Chair: Thank you very much.
Senator Simons: I have three unrelated questions, so I will ask them quickly.
First, to follow up on Senator MacDonald’s point, it is true that if the minister calls a timeout on the preliminary part of the assessment, the minister has to post reasons, but the Governor-in-Council can suspend an infinite number of times without posting reasons. Is there any reason in parliamentary tradition that would stop a requirement to have the Governor-in-Council also present reasons, in the interests of transparency?
Ms. Loth-Bown: If the Governor-in-Council were to post the reasons for a decision, they would be precedent-setting. I don’t know that there is a specific legal requirement that says they wouldn’t. That being said, the legislation itself does also say that the Governor-in-Council will be posting its rationale for its decision, so that is also very precedent-setting and very important.
Senator Simons: My second question may sound like a small thing, but I know some Indigenous leaders in Alberta are concerned about it. It’s in paragraph 7(1)(d), the prohibitions before a project review begins. Paragraph (d) says they’re prohibited from making any change “to the health, social or economic conditions of the Indigenous peoples of Canada.” Some Indigenous leaders I’ve spoken with at the Indian Resource Council are concerned that this would preclude them from working on a project themselves or from cooperating with another larger industry player in doing preliminary work, whether that is something as beneficent and public relations oriented as opening a health clinic or something as proactive as offering training to young Indigenous peoples from the community in how to work in construction. Would it be in any way antithetical to the view of the government to change that section to read “any negative change” or “adverse change”? Presumably, we don’t actually want to trap people like flies in amber.
Ms. Loth-Bown: The policy intent behind that provision is to cover things that are adverse or negative. It is not intended to capture things that are positive in nature, as you have indicated. That is the intent.
Senator Simons: An amendment there might be seen as friendly, or do you feel an amendment there is not necessary? The way it is now, it says you can’t change anything.
Ms. Loth-Bown: I can tell you our intent was to have something positive; it is not to inhibit positive impacts or things from taking place. It is to inhibit negative things from taking place. That is our intent.
Senator Simons: I have a question for Ms. Harris, so she doesn’t feel lonely.
Because I’m from Alberta, I had been focusing in lots of my discussions with people in the oil and gas sector. When I sat down with people from ATCO, they raised some concerns about hydro. They are concerned with the navigable waterways section that if you’re precluded from making any changes to the level or flow of water, that that might inhibit the development of new hydroelectric projects or the upgrading of current ones. Can you speak to us about what the intention is with the third part of this bill? Presumably, as we move toward a lower-carbon economy, we might want to incentivize the development of hydro. Are there any concerns that being so specific about the flow and the level of water could inhibit new hydro development?
Ms. Harris: Thank you for that question. The issue of navigation is under federal jurisdiction. When we look at the approval of works such as hydroelectric projects or dams, we would look at the interference to navigation that is caused by that project. The consideration of those interferences to navigation would include the changes in the water levels or water flows to the navigable water. That is part of the consideration that is done. That’s part of the consideration that has been done for dam projects in the past, and there have been certain project approvals that have been issued that have included terms and conditions related to water levels and water flows. In the context of approvals for dams, although it’s made explicit in the amendments to the Navigation Protection Act that changing water levels and water flows in navigable waters would be considered, it is something that would be expected to be done as the department looks at impacts to navigation.
Senator Simons: That part of the act seems to place a lot of discretion in the hands of the minister. This is a really stupid question, but is the minister in question the Minister of Transportation or the Minister of the Environment?
Ms. Harris: In Part 3 of the act, the minister refers to the Minister of Transportation.
Senator Woo: A lot of questions in the hearing have to do with trying to reduce the risk of litigation on projects. Basically, there are two ways to do it. One is to deny the right for some kind of judicial review, which as we’ve heard could be problematic. The other way is to improve the process, improve the resilience of the process.
One of the points that was made by the president of the agency earlier on was that the agency has a good track record of having — maybe not bulletproof — but a pretty well-armoured process that has withstood the test of legislative legal challenges. Could you tell us a bit about the track record of the CEAA in terms of its resilience and robustness in fending off legal challenges of projects that you have reviewed and approved?
Ms. Loth-Bown: Thank you for the question. In terms of some of the key principles that have led to the resilience of the agency’s process, first and foremost, as the president noted, it’s our openness to public participation, the fact that we allow those that want to participate in the process the ability to participate in the process. It doesn’t mean to say we don’t use different tools for that participation, but we offer an openness for participation of parties through either meetings, written comments, through the panel hearings or through participation in town halls. Open participation is extremely important.
Documentation of views that are expressed in the agency’s report is also another key tool. The fact that we go out and post those reports for a public comment period is also another key factor.
An additional key factor is the decision statements that come as a result of a decision. A decision statement offers an opportunity to take those things that you’ve heard in the process and find ways and means to address any concerns or issues that have been raised and make those a legally binding factor of the decision. The agency has a good track record of consulting and engaging on the creation of those decision statements. We create those, and we do that in consultation and engagement with the proponent, with affected communities and in particular with affected Indigenous communities. There is an opportunity to participate in how those decision statements are created, developed, and then we actually post them as well for more public comment period so that the conditions of a decision that are made are things that are practical and implementable and they also respond to the issues that have been raised throughout the process.
Those elements, and in particular the transparency and posting things on the registry, are key things that the agency does and that we have carried forward as best practices in the proposed legislation.
Senator Woo: Can you give us a track record, some statistics on how many of your projects have been subject to legal challenges and which have been successful and which have failed? Just to demonstrate empirically that you have some resilience in the agency in your process to provide that reduction in litigation risk that everybody is so concerned about.
Ms. Loth-Bown: We could do that as a follow up. I don’t have that off the top of my head.
The Chair: We will expect that.
Senator Massicotte: As you can tell, we have concerns about the time limits. We’re all a bit wary. It doesn’t have anything to do with your agency. It’s more about the nature of politics and policies. It’s tough because every major project involving the environment becomes a hot-button issue, with many people in favour of the project and just as many against. It turns into a political debate. In my experience, politicians delay the project when they can. Earlier, you discussed the criteria governing the minister’s decision to suspend a time limit. Could you now explain to me the criteria the Prime Minister’s Office or Governor-in-Council uses when deciding to delay a project, as well as the consequences of that delay? We heard earlier that they can explain their rationale, but my sense is that it’s more of a discretionary decision. What can we do to tighten the regulations to make sure the issue is taken seriously?
Mr. Parker: I might start by laying out the timelines that currently exist in the various, different phases. Some of the other questions link both to the timelines and then the discretion associated with each of those timelines, and part of the reason that one sees a number of different timelines and, therefore, a number of different points of suspension of the timelines in the act is simply a matter of drafting convention. Where those come up, there’s a notation in the legislation for a suspension associated with those.
As you move through the beginning of the process, there’s that 180 days in the early planning phase. That is a set timeline established in the legislation. Part of the certainty that comes out of such a timeline is that, because it’s legislated, the government is obligated to meet that timeline, otherwise a proponent or another stakeholder in the process could bring a mandamus to court, which then would provide them with the ability to compel the government to continue on with the process —
Senator Massicotte: Or seek damages.
Mr. Parker: Or seek damages, depending on the specifics of the case. There are those two measures. Maybe Mr. Rochon could go into detail on that.
As you move through the 180 days, at the end of that stage, we’re setting the timeline at the outset to be specific to the nature of that project. It could be from 300 days up to 600, depending on the project itself. That then provides the certainty.
In addition, although the suspension of the timeline is there to provide flexibility in order to address some of the circumstances that might come up with a project that I referred to earlier in the regulatory criteria — by the minister, only by the minister — that timeline enables us to be able to deliver the process, but also deal with, inevitably, on every project there are things that come up. In the new system, the majority of those things should come up in the first 180 days, when we set the timeline and know the issues.
Senator Massicotte: The second 360 days, the minister gets set criteria. How about the Prime Minister, after you submit your report?
Mr. Parker: After you submit the report, there is no provision for suspension of the timeline. There is a provision for an extension. The minister can extend that time period once by up to 90 days. Cabinet has a decision that must be taken within 90 days, which is not a time period that exists currently under CEAA 2012, but they also have the ability to extend that time period if they so choose.
Senator Massicotte: As many times as they wish?
Mr. Parker: There’s not a limit on the extension for cabinet.
Senator Massicotte: I’m sure you can understand. The proponents are going to spend millions of dollars getting to that point. They’re uncomfortable with the fact that, at the very end, you have this highly political, highly sensitive approval, which most politicians will punt until after an election or whatever. It’s disturbing. I’m sure you recognize that. I guess whoever drafted the legislation had no choice but to include that provision. I appreciate your response. Let the record show that he smiled.
Can I ask another question?
Mr. Parker: I’ve been smiling the whole time.
Senator Massicotte: That’s not the case. Are you laughing at us or what?
Let me ask a question. I think it’s clause 11. It basically says you have to provide meaningful discussion or meaningful participation from the public. For a lot of us, if you look at comments and what the experts are saying and industry is saying, how do you control that? The issue of standing disappears and anybody who has an opinion about anybody can come and provide his opinion and you must provide a focus or a process to allow that to occur. How do you manage that and how do you make sure it doesn’t go out of control? That doesn’t mean you have to give everyone a public audience? Tell us how you plan to manage that, to make sure we’re not stuck with immense delays or surprises.
Ms. Loth-Bown: The agency will manage that through the development of a policy and a technical operating guidance document on public participation. In that guidance and policy document, we will outline what meaningful public participation looks like.
We also turn to different court decisions, different documentation, on defining “meaningful.” Elements that are necessary from our perspective for meaningful consultation is that it’s documented, the people are aware that there is an opportunity, that there is funding provided to be able to participate, and that there are different mechanisms, tools or venues, as you indicated, that can be used that meet different needs. In some cases it might be town halls, written correspondence, panels or different meetings, but we have to have different tools at disposal. It can’t just be one size fits all. We need to look at both the process and the participants and have an understanding of what that is.
Another key principle is that it is defined early in the process. Through these public participation plans and the Indigenous consultation plans, we will have conversations with these communities about how they would like to be engaged. There will be a plan laid out so that everybody knows it. People need time to be able to participate in a process, and they need to know how much time they are going to have, so that will be publicly documented. If it’s going to be a 30-day period, everybody will know it is a 30-day period.
Senator Tkachuk: The word “sustainability” comes up a lot in this bill, and I want to follow up on Senator Simons’ question that notes that economic considerations are under the section on definition. It is defined as the ability to protect the environment, contribute to the social well-being of the people of Canada and preserve their health in a manner that benefits present and future generations. Can you elaborate on what this definition means to project proponents? What does it mean to protect the environment, and what does it mean to preserve the health of Canadians in a manner that benefits present and future generations? These are pretty active verbs when it would seem to me that the onus, the only onus borne by project proponents, is either to do no harm or to mitigate the harm that might be done by a project.
Ms. Loth-Bown: Every project will be very different because the impacts on that project will be different. Just generically, in terms of a proponents role or choices with respect to sustainability, there are things around the technology that’s employed in a particular project. There are often different choices to make in terms of what you use. That’s an opportunity for them to look at promoting sustainability. As well, you can look at the length or tenure of how long a project is supposed to endure, both in its construction and its implementation, and there are different choices that can be made around the length of time of a particular project and its potential decommissioning. Those can have different effects with regard to sustainability.
Senator Tkachuk: You talked about sustainability and you mentioned that you define it in the act, so the proponents will have to address the issue — address the issues that protect the environment and preserve the health of Canadians. What will they have to do to prove that?
Ms. Loth-Bown: We will have to look at it on a project-by-project basis. We will have to look at each project and determine what the various, different studies are that need to be done for a particular project with respect to health, social and cultural impacts, and they will be project-dependent. In some cases, there may be more extensive studies that need to be done. We may ask the proponent to do them or not. The agency is obligated to look at the factors; we are not obligated to ask the proponent to undertake this research. We may turn to other expert federal departments or other studies that have been done and bring those to bear.
The Chair: I want to ask you about the role of the life-cycle regulator. They don’t have a role to do that, too?
Ms. Loth-Bown: They have that role in their non-designated projects to look at those impacts as well, yes, and they have a role to bring forward any studies. Right in the beginning the act, we as the agency have the obligation under any proposed impact assessment to look and access any studies that we are aware of that are already out there. We are not obligated to have the proponent undertake that research, but we as the agency are obligated to assess those issues.
Senator Tkachuk: Just to follow up on that, if you are building a pipeline, they last a long time. Kinder Morgan was 53, so it was over 50 years old. How would they have addressed those issues of sustainability and protecting the environment by looking into the future 50 years over a long period of time, plus a long distance travelled?
Ms. Loth-Bown: My colleague Mr. Parker has an example of a project where they actually looked at the time frame for the project development and impact on sustainability for a community.
Mr. Parker: It’s not exactly a pipeline, but one the examples often used as a reference case is the Voisey’s Bay mine example. When it comes to impact assessment and we are talking about the shift from the environment to looking at projects more holistically, although there is a whole field of environmental assessment, there is also a parallel field of health assessment and social impact assessment, all recognized fields out there currently being used in terms of methodologies. Those methodologies have been applied in different projects. In Canada, Voisey’s Bay was a project that was done in 1997, and they employed a lot of those methodologies.
Some of the examples out of that were — and this might relate to the gender-based analysis or the health and social impacts — when the proponent was asked for their information, they had to stratify that information by gender, by Indigenous groups, by age, so they understood the community and how the impacts of that project, and the benefits of that project in that particular case, would be stratified across the community. Based on that analysis, they actually decided in the end that one of the major impacts of that project was the potential for boom and bust, and they worked with the community to extend the life of the mine and set up a reserve fund that was about training and supporting individuals in the community to transition into other fields with the skill set that they had developed at the mine. That’s an example of one of the things that some proponents have taken on board.
Senator Tkachuk: Under the impact assessment act, it says that one the purposes of the act is to ensure that an impact assessment takes into account alternative means of carrying out a designated project, including through the use of best available technologies. Can you explain that? What does it mean and when does it come into play?
Mr. Gardiner: In relation to the previous question, your question was about TMX, and the list of factors under the old NEB act was more limited than the list of factors that will be considered under the Canadian energy regulator act, including for designated projects. But as a practical matter, the board did assess health, social and economic effects, including in relation to TMX. That was part of the review. There is an established practice and an established jurisprudence around reviews that capture those effects, including for pipelines and TMX.
Ms. Loth-Bown: With respect to the alternative means, they are always on a case-by-case basis, but just for some examples, as the senators asked for, of alternative means, on each project, a proponent has the opportunity to use the best available technologies and has some choices about how they go about implementing a project. As an example, where a work site is going to require a power source, are they going to create a new power source to be able to electrify the site or will they tap into an already existing power source? That is an alternative means that they can employ.
I would say, in the example of pipelines, there are long established practices in terms of laying pipe and water course crossings, and using advanced technologies and best practices on water course crossings can minimize the impacts to fish and fish habitat. Other examples of alternative means are just as basic as, do they need to create a work camp? Does a camp have to be a created? Does it have to be a permanent structure? There have been examples of projects in northern B.C. where, instead of creating a permanent workforce camp, you bring in an old ship and place the ship there so it’s a temporary means of a work camp, and then it moves off site. So there are different things a proponent can do to minimize the impacts on a community and the environment.
The Chair: We are running out of time, and the list is very long, so we’re going to continue.
Senator Mitchell: In clause 15, there is some concern among certain elements of the energy industry that clause 15 requires, for all intents and purposes, a second project description 180 days, give or take, after the initial project description. There are those in the industry who see that as duplication, unnecessary, more red tape, et cetera. Could you describe what it is that would be provided — and I think there are guidelines for it — in the second tranche of description versus the first?
Ms. Loth-Bown: We did a consultation paper to talk about our information and time-management regulation. We’re working on the analysis and will come out with a second paper. But in that discussion paper, we asked of the public that exact question you’re asking, senator, in terms of what information should be required at the initial project description versus what information should be provided at the second project description.
Depending on the proponents, some of them may have more information they are willing to give and provide at the beginning of the project, whereas others may want to use the opportunity of early planning to be able to refine their project description.
We will have some basic requirements in the legislation that say, “Here is the information we need up front at the first project description in order to kick-start the engagement project so that everybody is aware.” Throughout the process of early planning, that will provide, once issues get identified and concerns are raised, or if concerns are mitigated, an opportunity that, as the proponent has gained more information, they can further refine their project description so that the final project description that gets used to do the tailored impact statement guidelines is one that fully defines the proponent’s project.
Also, with respect to the impact statement and the tailored guidelines, we’ve also heard a lot of comments that while people want them to be tailored specifically to their project, they need some baseline information upon which to start, so we will also be preparing baseline information on type of project. For basic mine projects, pipeline projects or liquefied natural gas projects, here are the types of information we will need in our project assessment.
Senator Mitchell: It is additional information, or it’s refinement, you might say —
Ms. Loth-Bown: It’s more detailed.
Senator Mitchell: The proponent is given the chance to do it sooner or later, at their discretion.
Ms. Loth-Bown: Yes.
Senator Mitchell: Thank you.
Clause 9 addresses the minister’s power to designate a project that would have been non-designated. This morning, it was said that this is very rare. But I think there are specific restrictions in the bill that would refine further — to use that word again — exactly the conditions under which the minister probably would not be able to do it; that is to say that once, for example, the project has started, the minister can’t then — could you elaborate on that? It’s clause 9(7) I think.
Mr. Parker: I will start by answering the question in reverse in that in order for a project to even be considered for designation, there are some factors the minister would have to consider. Those are in clause 9 directly that are about federal jurisdiction, then whether there is impact on Indigenous rights and whether there has already been regional assessment done in that area.
Then, specifically to the limitations, you are right. There is a subclause there in (7) that, if the project has already substantially begun, then it can’t be designated. That particular provision also exists for any current projects right now that would be going through an assessment. When the impact assessment act would come into force, if they were already substantially begun, they would continue and not be brought under the act. There is a parallel in terms of the designation and transition provisions.
Also, in a case where a federal authority that has the powers to license or regulate a project has already taken a decision on that project, the minister would not be able to bring it into the impact assessment act.
Senator Mitchell: So it limits the possibilities of surprises.
Mr. Parker: That’s right.
Senator Mitchell: There is some misunderstanding, I have noticed, in the industry — I don’t know if it still exists, but in certain elements — that somehow the Minister of Environment will have absolute authority over all of this, certainly over the approval and rejection of projects. But that’s not the case in energy projects, as I understand it. In fact, any project that involves more than just Environment and Climate Change Canada must involve even the cabinet and, by definition, an energy project will always, without fail, involve more than just the Environment and Climate Change Canada, because there is also Natural Resources, a province, an Aboriginal jurisdiction or something else.
Ms. Loth-Bown: That’s correct. Projects that involve the National Energy Board or the Canadian energy regulator and the Canadian Nuclear Safety Commission automatically go to panel and automatically go to cabinet for decision-making.
Senator Patterson: I would like to ask about the navigable waters amendments. The definition of “navigable waters” has been changed and broadened, I would say. The department says it’s a more comprehensive definition, but it states that a body of water is navigable if it is used or likely to be used for transport or travel, either for commercial or recreational purposes, or to exercise Indigenous rights.
We’ve heard from railway companies, farmers, the Railway Association of Canada, et cetera, that urgent situations such as eroding banks or slumping shorelines are reported by train crews in the middle of the night. Resources must be mobilized immediately to shore up the area, including the placement of rock into the waterway. “Any delay in the situations, including waiting for a reply from the minister or the minister’s representation, is viewed by our members as unacceptable.” Farmers have been concerned about this definition now covering extremely shallow water courses that swell once per year or for a single day, which could be described as for possible recreational use.
What assurances can you provide that the new definition of “navigable waters” will not cover drainage ditches and cause undue interference in such minor matters?
Ms. Harris: Thank you for that question. As you have described the definition, it is how it’s laid out in the legislation. I would just flag that the use part of the definition includes use by vessels for transport or travel, as you have described. There is no intention for it to include ditches or the irrigation canals that would be used by farmers. I’d also like to flag that there is a provision for emergency situations in the legislation as well.
Senator Patterson: What about the definition including the exercise of Indigenous rights? Give me an example of that, will you, please?
Ms. Harris: Certainly. That is as a means of transport or travel for Indigenous peoples to exercise their rights. That might be for the Indigenous peoples, for example, to traverse a waterway in a canoe to access a fishing site, hunting grounds or specific sacred sites for cultural purposes.
Senator Patterson: Thank you.
If I may, the Hydro Power Association of Canada has written:
We are deeply concerned that some of the amendments proposed in the Navigation Protection Act can result in a heavy and unjustified burden on owners of dams and other works, and in extreme cases, can even delay work, including maintenance or repair work essential to electrical generation.
Can you describe your consultation process with the hydroelectric and railway industries? Were you aware of these concerns? Do you agree that any delay to repair work on critical infrastructure can pose risk to public safety? Did you do an analysis of risks to public safety arising from the Navigation Protection Act, and if so, can you table that analysis with the committee? There are a few questions there.
Ms. Harris: Yes, there are a few questions there. I hope I remember them all.
Senator Patterson: You could provide the answer later.
Ms. Harris: I could provide a more detailed answer subsequently, related to the consultations that we’ve undertaken.
I would like to flag one thing that was related to your question, and that is in the Navigation Protection Act, the prohibition for work. This is section 3 of the act. The prohibition previously included repairs, and, under the Canadian navigable waters act, the prohibition would no longer include repairs. So the prohibition now reads that it is prohibited, except in accordance with this act, to construct, place, alter, rebuild, remove or decommission a work in, on, over, under, through or across any navigable water. Previously, that list also included repairs, and repairs would no longer be included there. Works that are constructed in order to do a repair would be captured by the act, but this change was made specifically to address concerns that had been raised around repairs to works such as bridges or dams that may have no impact on navigation.
Senator McCallum: There has been a lot of concern about the consent. People say it’s a veto. I just would like to say that First Nations want to get on with this as well. It’s not about a veto; it’s about being taken seriously and in a meaningful way.
Why is it so important that Indigenous peoples be taken into account? Is it just reconciliation, or is it a question of fundamental rights, which must be respected — rights, which, until now, have been denied and ignored? The Supreme Court of Canada in Chilcotin warns of this. The court asks, “What would happen if you ignore Aboriginal title and proceed with the project without consent, and subsequently, title is proven?” The answer of the court: “You would have to pack up, get out, lose investment and pay for damage.” There are title issues, not just environmental issues.
And when we look at consultation, it’s about what has happened to us. We can’t just sit on the land and slowly die. We have to speak up.
Where there are multiple jurisdictions involved, there are collaborative arrangements that could be developed with interested jurisdictions. Indigenous peoples are under federal jurisdiction, but they live in provinces. For the Prairie provinces, it has been very difficult to move ahead in our issues. You said that it could be developed with interested jurisdictions, and the interest isn’t there. Is there a process in place to have this addressed?
Ms. Loth-Bown: The Canadian Environmental Assessment Agency posted on its website in December funding to be made available to Indigenous communities and organizations to be able to participate in some policy dialogues and funding to also be able to have the opportunity to comment on draft guidelines and things when we have those.
We are going to be working with Indigenous organizations in each of the provinces and territories across the country to host dialogue sessions to start to talk about that. I indicated that in order for us to move forward on the Indigenous jurisdiction provision of the legislation, the minister needs to create a regulation, so we want to start policy dialogue and develop a policy discussion piece to define what that Indigenous jurisdiction should look like. We will do that in a manner that is engaging communities in that development. That’s going to start likely next month.
Senator McCallum: Thank you.
Senator LaBoucane-Benson: Good afternoon. I want to talk about gender-based analysis. Currently, in the House of Commons, gender-based analysis is being done on all legislation, and in the Senate, we’ve asked how this is being done. What instrument are you using to do this analysis? We have not received that instrument at all, so we don’t know how that’s being done.
It’s good to hear that gender-based analysis is currently being done by proponents — that’s great — but in consultation with proponents, I have heard that they have indicated that the gender-based analysis requirement might increase perceptions of uncertainty and possibly decrease investments, not because they don’t want to do it but because they don’t understand what the instrument of this analysis is. Will there be a clear checklist developed for proponents so that they know in the pre-planning stage the nature of the gender-based analysis they have to do? How do they ensure they are meeting the expectations of the government?
Ms. Loth-Bown: Yes, we will be developing a policy framework and guidance to explain explicitly what’s meant by a gender-based analysis. In a nutshell, it boils down to understanding people in communities and where they are coming from — what their gender is, what their cultural heritage is, what their religion is, what their income level is. Projects take place in communities, so it’s understanding the people who live in those communities, how a project might impact them and how it impacts them differently as a result of factors that we all bring forward in our individual makeup. Then it’s about working with proponents for us to find ways to be able to manage some of those impacts.
Senator LaBoucane-Benson: I would say that in the description you gave, it’s quite vague. I think I know what you’re saying, but I’m not sure that, around this table, we have consensus, that we all clearly understand what that means. If we want to decrease the risk of litigation, the clarity on all of these — gender-based is one example of that — we are going to have to get real clarity and give proponents the opportunity to meet the expectations of the assessment agency.
Ms. Loth-Bown: We will have policy guidance and documentation. I had indicated earlier that resources had been provided to the agency to make sure we are able to do those things. For example, that’s one of the reasons. We have been working with Status of Women and other organizations to bring people on board with gender-based analysis expertise to be able to draft some policies and guidance so we can go out, consult and discuss on those.
Senator LaBoucane-Benson: When will that discussion paper be done?
Ms. Loth-Bown: The intent is to have something out in the coming months.
The Chair: Do you want to complete the answer?
Mr. Gardiner: It’s a pretty complete answer already, but I would add that in the case of the Canadian energy regulator, the NEB currently has a filing manual. For non-designated projects going forward under the CER, the expectation is that would continue. That lays out clearly information requirements that proponents are expected to bring forward and consultations they’re expected to carry out in advance to inform the environmental impact statement that’s brought into the assessment regulatory review process. That would continue and would capture new factors that are being assessed.
The other piece I would flag is that as part of the cabinet decision-making process currently, there’s a cabinet directive that a gender-based assessment is part of what goes into the decision-making process. By clarifying in a list of factors that this is one of the factors, you are essentially bringing that forward into the assessment process and making it more transparent than is currently the case.
Senator LaBoucane-Benson: At the Senate, we don’t know the nature of the House of Commons’ analysis. We’ve asked and we haven’t seen that instrument. I’m interested to see the instrument.
Mr. Parker: We could offer to the committee that we are working on this policy piece, but a lot of what we’re doing is based on the GBA analysis done by Status of Women, which is something that is currently public. If you’re interested, we could bring that back as part of our package.
The Chair: Please. We are progressing. We are about to start our third round.
Senator MacDonald: I think perhaps I’ll direct my question to Mr. Gardiner. Senator Mitchell mentioned the minister’s arbitrary authority and the built-in restrictions on it. I’d like to speak to you about that. It appears that the impact assessment act gives the Minister of Environment and Climate Change a lot more power over project reviews than the Minister of Natural Resources. I’d like to understand and wish you to explain to the committee the relationship between the two ministries in terms of their regulation-making power. Will the Minister of the Environment and Climate Change have the final say in writing regulations under the impact assessment act, and what authority will the Minister of Natural Resources have in writing regulations? Who has the final say?
Mr. Gardiner: I think it depends on the regulation. The different acts specify different responsible ministers and different types of regulations, in the case of the CER, led by the regulator, some led by the regulator with GIC approval, the GIC regulations, and some led by the Minister of Natural Resources with GIC approval. It really does depend on the regulation that you’re speaking of.
Senator MacDonald: What’s the process for determining how the projects will be designated?
Mr. Gardiner: That is a regulation that’s under the impact assessment act. It is colloquially referred to as the project list.
Senator MacDonald: What about the process for proving substitution to a provincial process? How is this process designed and can you explain the consultations that were undertaken with the provinces on this matter?
Mr. Gardiner: It will depend on whether we’re talking about a designated project or not. For designated projects, the Minister of the Environment is the relevant minister. For non-designated projects, the Canadian energy regulator would be the relevant regulatory authority and, within the act, some of the tools that my colleague Ms. Loth-Bown has described to collaborate with jurisdictions are also found in the Canadian energy regulator act.
Senator MacDonald: Do we have a list of designated projects now and can that list be released?
Mr. Gardiner: The current project list is the starting point for that work, but the new list has not been developed or released.
Senator MacDonald: Do you know when it may be released?
Ms. Loth-Bown: Mr. Parker can speak to that in terms of the work under way with respect to it.
Mr. Parker: To the first part of your question about who is responsible for the regulations for the project list, it’s actually a Governor-in-Council regulation. It’s not one minister or another, it’s the cabinet.
In terms of the list, we have released an initial consultation paper. I think the deputy minister spoke about that this morning a little bit. That initial paper laid out the existing project list as a starting point for the conversation and then the two criteria of environmental risk and federal jurisdiction and asked for feedback on those criteria and the way in which they should be applied to the existing list. We’ve gotten that input and we have been working on that over the summer and fall. We’re in a position to put that together and come out with another paper. I think, as was mentioned this morning, the date is still to be determined on that. The intent is certainly to have some clarity on that list before the time of coming into force.
Senator MacDonald: Thank you.
Senator Carignan: My question has to do with subsections 22(1) and 22(2) of the IAA. Subsection 22(1) reads as follows:
The impact assessment of a designated project, whether it is conducted by the Agency or a review panel, must take into account the following factors:
After “take into account the following factors,” a slew of items are listed, including the intersection of sex and gender.
Subsection 22(2) goes on to state, and I quote:
The scope of the factors to be taken into account under paragraphs (1)(a) to (f), (h) to (l) and (s) and (t) is determined by
(a) the Agency; or
(b) the Minister, if the impact assessment is referred to a review panel.
There seem to be two levels of consideration when it comes to the factors. I don’t understand. I took law. I’m pretty good at administrative law, but I’m having trouble seeing the difference, and, if there is a difference, I’d like to know why. Clearly, a difference poses a risk in terms of how the information in question is dealt with.
Ms. Loth-Bown: With respect to the clause 22 factors, as indicated previously, the agency is obligated to take into account all of the factors, but the level, or where we access that information from, is determined on a project-by-project basis. So we may not be asking the proponent for all of this information. We may be going to other sources of information to be able to get it. And 22(2) enables the ability that I’ve just spoken about in terms of scoping those factors. In a particular project, an element may not be relevant for that project. We would document it and indicate that it’s not going to be looked at for that particular project. Then there is what we have to always look at, the Indigenous knowledge, because, as we talked about earlier, that’s a must, not a may, so we can’t scope that out, and we have to look at public input and specific studies that were undertaken.
It’s the agency that is obligated to look at these things and has to document it in its report. We do not have to obligate the proponent to do all of these things.
Senator Carignan: Yes, I understand when you’re talking about the factors related to the issues, but item (m) indicates “community knowledge provided with respect to the designated project.” Isn’t the scope of factors the same when the agency conducts the assessment?
Ms. Loth-Bown: The (m) is community knowledge, and we have to take that into consideration. We can’t scope that out.
Senator Carignan: But it was excluded from subsection 22(2). Paragraph 22(1)(m) isn’t listed. Subsection 22(2) excludes paragraphs 22(1)(g), (m), (n), (o), (p), (q), (r)—
Mr. Parker: I’ll just clarify it. The factors that are not in section 22(2) are those that are simply inputs into the process. So if there’s information from the public and there’s Indigenous knowledge, all of that information just comes in and is on the record. We don’t scope it in any manner. Whereas with the other factors, which are more substantive in nature in terms of how they relate to the project, we have the ability or the power to scope those. For example, the accidents and malfunctions, in some cases they may be very relevant to a project. In other cases, they may not be as relevant, and so we would scope down the degree to which we’d look at those or the information associated with those. Whereas those other ones that are inputs, we just take them on as part of the record and we wouldn’t scope any of that information out of the process.
Senator Carignan: —“(t) any other matter relevant to the impact assessment that the Agency. . . .” If a matter is considered relevant to the agency’s impact assessment, is it dealt with differently in terms of assessing the information deemed relevant?
Mr. Parker: The intention for factor (t) is simply that if there’s something else that comes up that hasn’t been identified by one of the factors, there’s the possibility for the agency to take that into account and consider it. It’s a bit of a safeguard. I can’t imagine there won’t be another place under those 22 factors that we would not already capture the elements that we’ve seen on projects to date, but it’s in there just to ensure that if there are things that come up on record that people think are relevant to the project and that are warranted, then those could be considered in the assessment.
Senator Carignan: My next question has to do with the regional assessments referred to in section 92 and subsequent sections of the IAA. The regional assessment also seems to designate a separate obligation from that of a panel or the agency when it comes to having to apply the rules of natural justice. Regional assessments don’t appear to be subject to the rules of natural justice, unlike panel assessments.
Mr. Parker: I’m not sure I exactly follow the question and what it is you are referring to that is different.
Senator Carignan: Section 92 and subsequent sections of the IAA deal with regional assessments, and with respect to the consultation obligations for a regional assessment, section 101 indicates the following:
Section 53 applies, with any necessary modifications, to a committee established under section 92 or 95. . . .
Section 92 and subsequent sections set out the authority, but the obligations of the regional assessment committee make no mention of section 54 or 51. It’s as though people don’t have the same right to consultation when designated projects undergo regional assessments, as compared with non-regional assessments. Regional projects can have a significant impact on people as well.
Mr. Parker: The nature of the regional assessment and strategic assessment provisions is somewhat different, and that’s intentional in that, in the case of impact assessment, we have a proponent with a project that is coming forward, and there’s a very structured process by which the public and others may wish to engage on that project. Because of the fact that there is a proponent, there are also the principles of natural justice that you spoke about earlier that have to be part and parcel of that process. Whereas in the regional assessment and strategic assessment provisions, we’re not looking at a specific project with a proponent per se. Typically, those would be used, in the case of regional assessments, to look at an area and perhaps a sector or a number of different projects from a cumulative effects perspective that would then help to inform an impact assessment. There are still some basic provisions for public participation and consultation, but not to the same degree because the intention of those tools is different.
Senator Simons: I have a question that I think is best directed towards Mr. Gardiner. I think it covers territory we haven’t touched on yet. It’s about the changes to the enforcement provisions. I have to say that this isn’t something any proponent flagged for me; it just made me curious as a citizen to see that no warrant is required for an investigator or inspector under the act to seize documents and make copies of documents, as long as those documents are in a commercial office and not a private dwelling. I’m curious about that because certainly if the police or the RCMP were investigating a case of white-collar crime or regular old crime, they would need a warrant to enter a business and seize those kinds of documents. I’m curious to know if this is a change from the act. Could you explain how this works from a legal perspective? It’s something that I haven’t heard about on this issue from other people. Maybe this is a Jean-Sébastien question. I’m not a lawyer. I’m a rarity around the Senate, so maybe I’m wrong.
Mr. Gardiner: It relates to the CER. I’m drawing a little bit of a blank on that detail. My former —
Senator Simons: It’s 102 and 103. I guess it’s basically 103(2).
Mr. Rochon: I’ll double-check, if you will allow, but I believe this is what we had under the National Energy Board Act. Again, if you’ll allow it, I’d like to take that under advisement and come back to you with an answer.
The Chair: You will provide us with the answer later?
Mr. Rochon: Yes. Thank you.
Senator Simons: I have a second question that comes back to the waterways section of things.
Just so we’re clear, this doesn’t just affect hydroelectric dams. It would affect irrigation dams as well; right? This bill is not specific to energy projects. I’m trying to figure out, if I wanted to build a dam or a bridge that would in some way impinge on a waterway, do I only have to deal with the transportation ministry, or do I also have to go through an impact assessment, depending on the size of the project? If I’m going to build a dam, what’s my process? There seems to be two parallel sets of regulations.
Ms. Harris: Brent may wish to add something as well. The impact assessment act defines where an impact assessment is required. If the dam that you’re proposing to build requires an impact assessment, that would be outlined in that legislation, and that process would proceed. There would also be a requirement for some analysis under the Canadian navigable waters act to see what kind of approvals are required.
As the Canadian navigable waters act moves forward, all works in all navigable waters in Canada would receive some oversight under the legislation, and there are three categories of works. There are minor works. There are currently no dams in the minor works order. There are also major works. It’s a new category of works going forward, which would apply to all navigable waters in Canada. Then there’s also works that don’t fall into either of those two categories, so there could be dams that fit within this last category. For works in this category, if they’re built on a scheduled water, they would require an approval by Transport Canada under the navigation protection program. If they are not built on a scheduled water, then they would be subject to the new resolution process, which requires the proponent or the builder to notify the public of what they’re planning to do and to accept comments and resolve concerns.
Senator Simons: I thought the goal here was “one project, one review,” but it seems to me that if your project impinges on a waterway, you would be subject to two reviews. Is there any way that those reviews could be brought together in the same way that a life-cycle regulator works with the impact assessment team? It seems that you’re creating a two-step process for anything that involves water flow.
Ms. Harris: I’m sure Brent will add to this part of the question as well, but it is one process. We would have the requirements for the regulatory approval looked at through the impact assessment process.
Mr. Parker: I was going to say that depending on the size of the dam — right now, if we looked at the project list, if it’s a hydroelectric-generating facility that’s over 200 megawatts, you would come through the assessment process. In the future, if it was the same level, the new element is that because of that early planning phase, things like the navigable waters or other regulatory approvals for that same project would be brought into that process and would flow through the permitting plan.
Senator Simons: Flow. That’s the correct metaphor for the subject. Thank you.
Senator Massicotte: Thank you again. I have two questions for you. One of the most common things proponents have said is that the legislation intermingles government policy with the approval of highly technical projects. That’s the issue many have raised in relation to clause 17. It doesn’t give the minister the option of saying project X or Y is subject to a certain degree of oversight in light of information that is needed.
Why not also tell proponents that, from a technical standpoint — for a pipeline, for instance — the government knows exactly what the greenhouse gas impact is, to a very precise figure? It also knows what the climate change impact is, because a pipeline doesn’t produce a significant amount of greenhouse gas when it’s in use, but when it’s being built. Why not instead say that, for policies such as climate change and sustainable development, we are satisfied except for this or that? Why not get rid of this level of questioning, instead of waiting a year and a half to say everything is fine, but we have some questions about this aspect?
Mr. Parker: I can respond to that. There’s definitely an intent under the new legislation to do exactly that. One of the new tools that we have is the section on strategic assessments. Deputy Minister Lucas, this morning, was talking a bit about the strategic assessment on climate change, which is the only strategic assessment right now that has been launched, but there are plans to use that tool, as well as the regional assessment tools, to look at, in particular, how existing government policies are applied to specific projects. I think at the heart of that question or comment is the challenge of a proponent trying to address these broad policy issues in the context of one project over which they have a limited amount of control on those broader contexts and policy issues. One of the intents behind that strategic assessment is to outline specifically how climate change considerations should be brought into this project-based system, recognizing that the context is very different than the broader policy tools that are being applied to that environmental challenge. Similarly, there are standards around air, water, et cetera, that could be brought in and set in policy at the outset. The early planning process, then, would apply those to a specific project.
Senator Massicotte: Next, I’d like to discuss the matter of confidential information as it relates to traditional Indigenous knowledge. Why does it stay confidential? It’s not a problem, it won’t cause any major legal issues, because someone can speculate that the information received is the reason why the project wasn’t allowed. It seems unfair to me and gives rise to a significant judicial delay. Why is that information considered confidential?
Mr. Rochon: Information that falls under the umbrella of Indigenous knowledge has a certain degree of protection under the law, partly to encourage Indigenous groups to provide the information. It’s not necessarily information they want in the public realm. It can have an impact on the community. They are being afforded the opportunity to have the information protected, in the same way that confidential business information may be protected. If a panel or the agency, for instance, refers to the information in its recommendation, the idea is to respect procedural fairness and give the proponent an opportunity to respond to the information that was provided in confidence.
To that end, the legislation sets out an exception allowing the information to be disclosed to proponents for the purpose of procedural fairness. It is possible to disclose the information under certain conditions that must be determined prior to disclosure in discussion with all parties concerned.
Senator Massicotte: The first condition is the consent of the person who provided the information. On the business side, it’s the opposite; everything is public except when the person signals that the information is confidential and its disclosure could have a significant impact on their business. On the Indigenous side, it’s the other way around; everything is confidential except if the conditions are met. In terms of legal proceedings, isn’t that problematic from the proponent’s standpoint, assuming that the information could be detrimental to their interests?
Mr. Rochon: In fact, Madam Chair, the information provided must be protected pursuant to section 119 of the Impact Assessment Act; it must be provided in confidence. It must be indicated that the information is confidential in order for the provisions to apply. That way, it isn’t much different from a company that provides information within a regulatory context and asks that the information be protected because it is confidential. As we can see, for example, under the Canadian Environmental Protection Act regime, that point doesn’t pose a risk, in my view. Where a risk could arise is in the event that the report of the agency or review panel included the information. We are talking about information that could significantly influence the recommendations and final assessment of the project by the minister or Governor-in-Council and the proponent not having had an opportunity to respond. That’s when fairness can become an issue.
Senator Massicotte: Clearly.
Senator Tkachuk: Do you believe that the early planning phase will reduce the amount of time needed for environmental assessments?
Mr. Parker: If your question is the overall time for a project —
Senator Tkachuk: Yes. Do you believe the early planning phase will reduce the amount of time needed for environmental assessments?
Mr. Parker: Yes, I think it will. When we look at the timelines, the legislated timelines have been set as such.
Senator Tkachuk: Many stakeholders believe that the early planning phase will add to, rather than reduce, the time taken for environmental assessments. Canadian National Railways, for instance, said the proposed planning phase would add six months of process time at the beginning of an IA, as it is unlikely that proponents would have the necessary project description information to formally start the process any earlier than they currently do under the CEAA 2012. The Canadian Association of Petroleum Producers said the information required for the proposed detailed description is too detailed for the planning phase and resembles a mini-impact assessment, and this will require a significant amount of time, effort and cost for the proponents to complete and seems particularly onerous. Do you believe these stakeholders are mistaken? If so, what are the specific flaws in their analysis?
I’ll have another question after that.
Mr. Parker: Sure. Thank you. In terms of clarification, the early planning phase is about both ensuring that the project is well understood by the public, the Indigenous groups and others involved in the assessment process so that the rest of the process is able to proceed without time stoppages. That’s been a major problem in the process up until now in terms of predictability and certainty.
So if you look at the current timeline that’s set in CEAA 2012, and we just take the example of an agency-led assessment, it’s 360 days of legislated timeline. But when we go through our internal analysis and look at the actual calendar days that a project takes, it’s upward of three years — two and a half to three years. That’s because there are these clock stoppages that relate to information coming up late in the process.
Some of the commentary that you’ve noted and that others have discussed with us relates to the fact that that information needs to come up early and at the outset. To the degree that we can do that in the early planning phase, it will streamline much of the rest of the process. For some proponents, that may be something that they are doing to a certain degree, but I know in the case of certain sectors — and the pipeline sector is a very good example — those projects have such a long lead time that they’re doing that work well in advance of any 180-day time period that would be set in advance of the assessment in order to allow them to make their own planning decisions internally.
Part of the commentary that we are hearing around that early phase is that some of the work that those proponents do now is going to be made public and we’re going to be able to engage on that and hopefully expedite the rest of the process because of it.
Senator Tkachuk: What consultations did you take with CN or the Canadian Association of Petroleum Producers on the specifics of what you are proposing on Bill C-69?
Mr. Parker: Like we were noting earlier, there was certainly a lot of public consultation that was done —
Senator Tkachuk: I’m asking you about these two organizations.
Mr. Parker: They participated. I flag it because they have been involved since the very beginning of the review from the time the expert panels were set up two years ago through until now. We have had bilateral meetings both with CAPP and with CN, and those conversations have been productive and we have been able to walk through the legislation. We’ve also walked through the regulation and the policy intent and so, as we clarify pieces in the legislation, we have been able to move to that next level of dialogue as well about how it would work in practice, because a lot of the uncertainty that we have heard about has come from people wanting to ensure that they understand in practice that this piece of legislation couldn’t work.
Senator Tkachuk: All of the panellists today have talked about consultation. I had a phone conference call with the Saskatchewan Association of Rural Municipalities, and they are extremely unhappy with Bill C-69, and especially the particulars on navigable waters. The petroleum producers are not happy. There are some people who are kind of okay with this, but most of the people who have to work with it are not okay with it. The provincial governments are not okay with it. When you did your consulting process, did you listen to what they said or did you just lecture them? What happened here? How could you have done all this consultation and have all this uproar about what is going on? We have a problem in Saskatchewan and we have a problem in Alberta. People aren’t investing. This is a serious issue. You are talking about consulting. Who did you consult with, and did you listen to anybody?
The Chair: Okay. So the question is, did you listen to —
Senator Tkachuk: I think they got it. They don’t need your help, chair.
Mr. Parker: Thank you, Madam Chair.
The consultation was very in-depth. It certainly involved us listening to all the voices that came forward. I would say that the views that were heard were very diverse, and I think, like the opening remarks this morning highlighted, this bill seeks to find the balance across a whole diversity of perspectives that span the gamut from the views that we heard around Indigenous groups and interests and involvement in projects, public interest and transparency, and industry views on those issues as well. So I think the diversity of views that we have heard continues now at this stage of the process. You noted some of them, and I would say that across all the different sectors — from provinces to industry — there is a diversity within each of them, and those voices —
Senator Tkachuk: Including the Indigenous groups, right? You can’t say they are all supportive, because they are not. There is some debate going on amongst them as well.
The Chair: We are going to adjourn that question because we are now at seven minutes.
Senator Mitchell: Earlier in the afternoon, the issue of public interest was raised, and it was my understanding that public interest is in this bill in part because industry wants it to be assessed based upon their belief that pretty much all their projects will be in the public interest, therefore strengthening their hand in getting approval for their projects. At the same time, some of them have a concern about the politicization of the decision-making process, although that concern hasn’t existed much since 2012 when it was first implemented. They would rather have a public servant in CER, for example, NEB, the Canadian energy regulator, make that decision. But does it not make sense that a politician whose business it is to deal with the public, relate to the public, be immersed in the public, ergo have a good advantage in assessing the interests that the public sees as theirs, should make that decision rather than a public servant who is, by and large, operating at a pretty technical level, assessing pipelines in the ground, who doesn’t deal with the public at all?
Senator Patterson: What is the question?
Senator Mitchell: My question is, does it not make much greater sense to have somebody at the political level assessing public interest and making the yes or no decision than a public servant — I don’t mean to be hard on you — than a public servant who simply operates a technical level and does not have an overall outlook and assessment of public interest?
Senator Carignan: The answer is because it’s a political decision.
Senator Mitchell: Thank you.
Mr. Parker: I guess I’ll start by saying the intent certainly was to respond to what we heard in the consultations, and what we heard was that elected officials are accountable. So that was part and parcel of the reason that the public interest decision was framed in that way. It also, just to the point about discretion, was framed such that clause 63 has those five factors to frame the decision, and those five factors are also the basis for clause 65 where one has to provide the detailed reasons so there is a concordance between the decision and the rationale used for the decision.
Senator Mitchell: Thank you. Clause 17 is again a response, I believe, to the concern of industry that they get $900 million into Energy East and then the thing is shut down, in this case not by government, but by the National Energy Board initiative. So clause 17 allows for the minister not to shut down an IA process but to say at some stage earlier than the $900 million, “We think there will be a real problem. This is our opinion and please assess it, but if you want to continue, you can.” Is that right?
Mr. Parker: That is right. There is not the possibility of stopping a project. It’s simply a notice that goes to the proponent and they can decide how they would like to proceed with the project.
Senator Mitchell: It’s good for industry to have that earlier.
The Chair: We are going to continue.
Senator Woo: I have two questions. The first one picks up on Senator Massicotte’s comment on the climate change factors, clause 22, in assessing projects. I understand that there is strategic assessment going on in the area of climate change, and this is maybe more of a comment, but you are welcome to respond to it as well. It seems to me that there is a bit of double counting going on here. There is a national climate action plan going on, and there is going to be a national carbon tax or equivalent via back stop or some other means. It seems to me that if we do have a national climate action plan that is aligned more or less with our GHG targets and the Paris and so on, that should be sufficient as the overarching framework for all industries to operate, and therefore projects shouldn’t have to have a second hurdle to cross. That’s a comment, and I suspect that idea may be reflected in the discussion paper, and I hope it is. You are welcome to respond, but let me ask my second question that ties in a bit with Senator Mitchell’s point about political accountability.
The question is about the type of report that comes out of the agency or the review panel, as the case may be, and whether this report makes a recommendation on whether the project should go ahead or if it’s simply a kind of sterile statement of impact, strictly an assessment of the impact as opposed to saying the impacts are great or they are neutral and therefore we believe the project should proceed. And that this is the recommendation the minister or the cabinet would get, and, therefore, the minister or the cabinet would, in a sense, have a greater responsibility to take the recommendation at face value and reject it if she so decides but to provide the reasons as stipulated in the relevant clauses?
Terence Hubbard, Vice President, Operations, Canadian Environmental Assessment Agency: The intent is for these reports to outline the recommendations to government, and it will be government who will be the final decision makers. It won’t be a decision coming from the review panels.
Senator Woo: But it will say, “We recommend that this project go ahead?”
Mr. Hubbard: They will recommend specific mitigation measures. It will depend on the type of project. In the case of integrated reviews with the Canadian energy regulator going forward, the report will need to satisfy the responsibilities under both pieces of legislation. Under the Canadian energy regulator act, there is a responsibility for that panel to provide its recommendation on whether or not the project is in the public interest, along with terms and conditions to mitigate any potential impacts associated with that project. In terms of other projects, it will be making recommendations on impacts and mitigation measures, and the Minister of the Environment will have the responsibility for putting in place conditions to mitigate those impacts and making the determination on public interest.
Senator Patterson: To the witnesses, this is about the changes to the standing test for project hearings. The changes removing the standing test would allow an unlimited number of participants, it would seem. Would that increase the amount of time required for the hearing stage? Can you guarantee for the committee that timeline extensions will not be granted to accommodate all those who wish to appear?
Mr. Gardiner: There are two parts to this answer. The elimination of the standing test is for the NEB only. That is a change being implemented through the CER act. Where you’re likely to see a very large number of participants in a process, and where management of that participation will be most important, is probably going to be on designated projects, large projects, and that process would then be managed under the impact assessment act. I can turn to my colleagues to describe how that would be managed.
Mr. Parker: The agency has not operated with a standing test of any sort over the course of its history. We have dealt with tens of thousands of comments and individuals in some of our recent projects, and we have effectively been able to meet the timelines that we set out for ourselves under CEAA 2012. Under the impact assessment act, officials would be fully empowered to continue to manage those processes, and that includes both the agency but also the independent review panels that would be established, so they have that authority to use different means and measures in order to provide different channels of engagement for individuals.
It doesn’t mean that because an individual is interested in participating, they have a right to participate in a hearing, necessarily. There are still choices a panel would make in terms of how best to accommodate all those who have an interest. That could be a hearing, but it could also be written commentary or other online engagement. All the timelines that have been set out have been structured such that the agency would prescribe the time limit for the different stages of engagement such that we are able to respect the timelines that have been built into the legislation.
Senator Patterson: Numerous corporations have said that removing the standing test will undermine effective consultation because local residents and people directly impacted by the projects will be drowned out by activists, and we know some of those are funded offshore. Does your department believe that local affected residents should be given priority over activist groups from other provinces or countries?
Mr. Hubbard: The intent going forward, as Brent had noted, was that as we go through the early planning process, there will be a public engagement plan established. The engagement plan will lay out and determine how participation will operate throughout the process, and necessarily that plan will need to be tailored and developed to be able to accommodate the interest and participation. That will necessarily mean determining different ways different groups can participate. Certainly those who have a direct interest, we will need necessarily to provide greater opportunities to fully hear their views and perspectives.
Senator Patterson: This business of the designated project list is of great, compelling interest. Your predecessor in that chair told us that there is going to be yet another consultation, discussion paper, and there will be clarity on the designated project list before the coming into force of the bill. Now that’s too late for us parliamentarians. The water will be under the bridge by then. Do you understand how important this designated project list is, and could there be a way in which this could be resolved before this bill reaches third reading in the Senate? A lot of us are very concerned about buying a pig in a poke.
Mr. Parker: I know that Deputy Minister Lucas this morning noted that particular interest and so is taking that back in terms of the request.
In terms of the next step for us, you used the term “discussion paper,” and we might have used that as well this morning, but I want to clarify that it actually would be the regulatory proposal. So it wouldn’t be another dialogue on the approach. It would be the regulatory proposal that would come out such that people would be able to see what projects would be designated.
Senator Patterson: Would the department be open to implementing parliamentary scrutiny of the regulations made under Bill C-69?
Mr. Parker: I’m not sure exactly what that entails.
Senator Patterson: Parliamentary scrutiny of regulations before they come into force. It’s not unprecedented.
Mr. Parker: I would have to take that back under advisement.
Senator Patterson: Thank you.
Senator Richards: I asked this question to the minister a few months ago. ConocoPhillips, ExxonMobil, Imperial Oil and Royal Dutch Shell have all left Alberta for other climes. They say it no longer fits into their plans. I asked the minister about this, and she said they did and she hoped they would be back because she wants a robust economy. I don’t blame her. We are still a resource-based economy. Do you think this bill will allow these companies to come back? Will they see the climate has changed and warmed to them? Because Alberta spends billions of dollars on the rest of the country every year. They give $4 billion to my province alone. Could you maybe give us some guarantees of that? I know it’s subjective, but I’m just asking.
Mr. Hubbard: As Mr. Lucas noted earlier today, one of the primary objectives with the framework is to provide greater certainty for investors going forward so that good projects can move forward. One of the primary intents is to ensure that good projects can move forward.
I would note that some of those companies — ExxonMobil, Shell — haven’t vacated and have, in fact, made some pretty significant investments in Canada in recent months, including the LNG Canada project. ExxonMobil recently developed a Hebron project —
Senator Richards: Excuse me. I might have gotten a few names wrong, but some have left, haven’t they?
Mr. Hubbard: Some have sold some interests, yes.
Senator McCoy: When I added up all the designated time limits, I came out to a total of five and a quarter years. It’s easy to say 300 days quickly, as if this was a short process, but that’s from the start of the planning phase to the decision statement. Then there is what I call the balloon clause in clause 70, which allows the minister, at his or her discretion, to add a further amount of time before construction starts. If you compare that five years with other jurisdictions, it’s fairly substantial, notwithstanding that we all want stellar environmental review processes. But that’s before any of the extensions and suspensions, et cetera.
A couple of them really intrigued me, though, a these are my two questions that I want to address. The first is clause 10 of the impact assessment act portion, and that is the clause that sets up the preliminary project description. CEAA is to post a notice on the website, and then subsequent clauses say, “Okay, that’s the start of the planning process.” However, in subclause 10(1), there is no time limit.
So in terms of getting around to posting that notice, I presume that, in practical terms, there can be quite some time before the agency is satisfied that the preliminary description is complete and, at that point, they can use their discretion to say, “All right, here’s the notice posted on the website,” and that kicks off the evaluation process. What a barrister looks for is how to manipulate legislation. That’s another off-ramp, if you will, that can be used in what we call managing timelines, is it not?
The Chair: The question is on timelines.
Mr. Parker: Thank you for the question. Regarding the question on clause 10, I would clarify that the initial project description required for clause 10 is effectively tombstone information about the project. It is not a high bar for the sufficiency of review for that. That information will come in, and it will almost automatically go up, because we have a service standard, which I think is five days, for that to be reflected. That would, of course, commence the timeline.
To the initial part of your commentary around the overall time, you noted clause 70. I wanted to clarify for the record that clause 70 is about proponent time; it’s not the agency’s or government’s time. The intent behind clause 70 is that once a project has been approved, in order for that project to continue to have the authority to advance, they need to actually start construction within a certain period of time. The reason for that is because we don’t want to have an approval of a project, and then a decade to pass and for a lot of the findings and the mitigations associated with that project to be irrelevant now because the context around that project has changed, either environmentally or socially. That is really up to the proponent to bring the project forward.
The Chair: Before Senator Wetston’s question, I want to remind you that we will have a short in-camera meeting after this.
Senator Wetston: Senator Woo asked you a question about the recommendation framework. You have different frameworks in which the agencies function. For example, subclause 283(2) talks about the agency’s rationale and conclusions. With respect to the review panel, it’s about recommendation in paragraph 51(1)(d). I’m asking the question because I’m trying to fit this into the structure of judicial review and appeal rights, because I’m unclear what you appeal. I recognize that the ultimate decision maker, normally, would be where and which an appeal would occur. But that would be from what?
You talked about mitigation. When I read paragraph 51(1)(d), I really don’t understand what exactly the review panel does. When you describe a recommendation, what does the recommendation mean? Is it a recommendation in the public interest? Is it a recommendation in relation to a certain standard within the legislation? I can understand mitigation, so I imply in that that if you making a recommendation around mitigation, you are directly also making a recommendation that the project would proceed.
Mr. Rochon: There are a number of decision points in the bill that could lead to the aggrieved party filing an application for judicial review. In this context, if I understand the senator’s concern or question, it has to do with what is the decision here that could be reviewed, or what is the recommendation here made by the report and whether that would be justiciable and could be brought to court? The report here sets out effects that, in the report’s opinion, are likely to be caused by the designated project. These recommendations help the Governor-in-Council or the minister as they make their decision to determine whether those are adverse in consequence or not.
The position of the government right now under the Canadian Environmental Assessment Act — and it would be the same for the IAA — is that the report is justiciable and can be reviewed in a court of law. One distinction for that would be — and we have had that recently in the Trans Mountain case and the earlier Northern Gateway case, where the report was deemed by the court not to be open to judicial review. The conclusion here has to do with the specific scheme in the act that dealt with the review of that report, that the report had to go to the Governor-in-Council, who then had the option of sending it back for reconsideration such that the administrative process was not over until the Governor-in-Council did something with it.
That specific report was not justiciable. We don’t have the same scheme here under either CEAA 2012 or the IAA, such that when the report comes out and produces a recommendation upon which the minister or the Governor-in-Council will base their decision, it could be subject of a judicial review. And we have seen that in a number of cases.
Senator Wetston: What do you mean the subject — of an appeal, not a judicial review?
Mr. Rochon: At present, under the impact assessment act, there is no right of appeal. Under CEAA 2012 and the IAA, no recourse is specified for the impact assessment and the decision-making process, which automatically defaults to the rules for judicial review at the Federal Court.
The Chair: Thank you very much. This was very interesting and we learned a lot. Now we have to digest the information.
I ask senators to remain because we have to have a very short in camera session.
(The committee continued in camera.)