Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue No. 64 - Evidence - April 23, 2019 (afternoon meeting)
ST. JOHN’ S, Tuesday, April 23, 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 1:01 p.m. to give consideration to the bill.
Senator Rosa Galvez (Chair) in the chair.
[English]
The Chair: Good afternoon and welcome to this meeting of the Standing Senate Committee on Energy, the Environment and Natural Resources. My name is Rosa Galvez, a senator from Quebec and chair of this committee.
I will now ask senators to introduce themselves.
Senator McCallum: Mary Jane McCallum, Treaty 10 territory, Manitoba.
Senator Ravalia: Mohamed Ravalia, Newfoundland and Labrador.
Senator Simons: Paula Simons, Treaty 6 territory, Alberta.
Senator Woo: Yuen Pau Woo, British Columbia.
Senator Neufeld: Richard Neufeld, British Columbia.
The Chair: For our first panel this afternoon, from the Fish, Food and Allied Workers Union, Keith Sullivan, President, and as individuals, Brett Favaro, Research Scientist, Fisheries and Marine Institute, Memorial University of Newfoundland, and Gail Fraser, Associate Professor, Faculty of Environmental Studies, York University.
Welcome. We are looking forward to each one of your statements.
Keith Sullivan, President, Fish, Food and Allied Workers Union: Senators, thank you for coming to Newfoundland and Labrador and for this opportunity today. The Fish, Food and Allied Workers Union represents about 15,000 women and men in the province working mostly in the fisheries. About 10,000 are inshore harvesters in the province. Our members work and live in pretty well all of the 500 communities in the province. All the nook and crannies are covered by our members. Most of those communities have always been fishing communities, the main reason why most people are there and continue to be there in most cases. Obviously the marine environment is something that’s very important to the people I work for every day.
FFAW members have serious concerns regarding the continued expansion of oil and gas into traditional fishing areas. There are obviously impacts to that commercial fishery and the livelihoods of people. Today, my conversation will mostly focus on a few different things around the legislation. First, I will focus on the types of projects designated under the act, the assessment of socio-economic impacts of these projects, the roles of boards, advisory councils and review panels, and the inclusion of regional assessments in the legislation. I also want to focus on what meaningful consultation really means and how key stakeholders get consideration in this consultation.
There are many references in the bill to the designated projects that would require a full environmental assessment. There are significant concerns with seismic work in our marine environment. It’s absolutely imperative that seismic programs be considered a designated project under the act. We understand the impacts of well-site drilling surveys and future commercial production, but much of the concern, particularly in recent years with the expansion of seismic work, has revolved around the impacts of vast areas of seismic blasting covering the ocean and around what that impact really means for people who are making their living on the ocean.
Fishing is vulnerable to oil and gas industry, particularly its oil spills. A close second in concern or right up there would definitely be seismic work. Very little work has been done. There is not a lot of knowledge of seismic impacts on the marine environment, whether its fish, phytoplankton or other such things.
The purpose of the act is to foster sustainability and to protect environmental, health, social and economic conditions. Unfortunately, there’s very little in the bill to ensure that socio-economic impacts of other ocean users, such as fish harvesters, are factored in, particularly when we talk about offshore oil and gas development. In these offshore developments, companies are not mandated to consider fishing activities, which is obviously the main concern for us. When you meet with the fishing industry there are some relationships. When you meet again, sometimes the result has been more information sessions.
Harvesters make significant investments to operate in the industry. It’s a changing industry. It’s a tough business to be in. They don’t own any of the ocean, but we see seismic companies going over the same parts of the ocean year after year in many cases and getting leases for specific parcels of the ocean. There’s very little consideration and certainly no compensation for the fishing industry’s potential economic loss associated with oil and gas activities.
When it comes to taking any steps to prevent these losses, the proponents have not given fair consideration and have not gone far enough. Mitigation considerations should be actually mandatory. There should be a mandatory consideration, not a discretionary one, to minimize the impacts of the fishing industry during the offshore oil and gas exploration development. There’s no consideration for when fishing seasons are open or when there are spawning concentrations of fish. All these things do not get full consideration up to this point.
To move on to the roles of regulators, like the C-NLOPB and the likely composition of some review panels, expert committees and advisory councils, the concern is that the appointed individuals would be unrepresentative of the general public. They would probably be people who would have a bias toward the industry being reviewed. In the case here, it is the oil and gas industry. Those biases would be very problematic in having a fair and reasonable assessment based on concerns of the public and particularly affected stakeholders in the fishing industry.
The FFAW is supportive of the inclusion of regional environmental assessments to consider accumulative impacts. At the same time, there is no doubt that cumulative impacts are very difficult to measure. Regional assessment should not exclude offshore projects from environmental assessment. These are on grand spatial scale. Whether it’s strategic environmental assessment or what a regional assessment would look like, certainly the environment is changing very quickly. We’re seeing ecosystems change. There should be a follow-up around specific projects as well.
The meaningful consultation piece is an improvement over what the CEAA 2012 would have. It’s definitely an improvement. You get more public input. However, fish harvesters, the people who tend to be most affected by offshore development, do not automatically get additional standing when it comes to consultation beyond being seen as the public. The FFAW would recommend amendments to the legislation that more clearly define the expectations and requirements for meaningful consultation, including confirmation from the federal assessment agency if, and or how stakeholder comments have been considered by the proponent in the review process. Sometimes we have comments that seem to go into a black hole and never get addressed. Basically the change would involve more transparency in the process.
Fish harvesters also object to being considered merely a member of the public, or sometimes a special interest group. Our membership relies on a healthy and ecologically balanced ocean to contribute to the economy. The working and living concerns of the people whose entire livelihoods are based on that area of real estate should be getting additional consideration and not merely be lumped in with the public. Again, it’s good that the public get consideration. Beyond that, people who are certainly impacted more should get additional consideration. An essential addition to the act would be legislating the proponent to effectively consult and consider activities of the fishing industry or other obviously direct stakeholders in the initial planning stages.
We know the value of wild fish is increasing. It will be a vital component of our economy for years to come. For that to flourish, we need a healthy regulatory environment, first and foremost, and some balance. That’s why oil and gas projects need to be thoroughly reviewed. The environmental assessment process is very important to our members. We need a mechanism through legislation and policy to ensure the voices that will be impacted the most are actually heard in the process when decisions are being made.
I’ll wrap it up there. I appreciate that I am probably a minute or two over time, and I look forward to the questions.
Gail Fraser, Associate Professor, Faculty of Environmental Studies, York University, as an individual: I am a biologist and I am trained in science. I undertook investigations about environmental assessments as they pertain to impacts on seabirds in the Newfoundland offshore industry. My focus was primarily on oil production projects rather than exploratory projects.
Environmental assessments are detailed, technical documents. Subsequently, the types of questions I have pursued are fine scale in nature. I am making predictions, following them through and asking what are the outcomes of those predictions. I have focused on seabirds, a valued ecosystem component in Newfoundland identified in the environmental assessments. Environmental assessments are meant to predict the impacts of a project on the environment. There’s a recognition that we can’t include everything in the environment. Therefore, there’s a focus on significant features of the environment that may incur adverse effects.
Environmental monitoring and follow-up are post-environmental assessment programs designed to test whether or not the predictions laid out in the environmental assessment were correct. Based on my environmental assessment research, I would argue that the Impact Assessment Act passed by Parliament is a good start, but it could be strengthened to ensure the long-term protection of marine biodiversity in Newfoundland and Labrador. The northwest Atlantic is globally known for biodiversity and that biodiversity supports a diversified economy.
I have four main points on the legislation that I’ll make. The first is on scientific integrity. I was glad to see scientific integrity under the purposes of the act. It should be a key principle throughout the whole process. Scientific approaches are fundamental paths for achieving goals to sustainability. I would like it if the legislation specifically noted that consultants who write environmental assessments are required to adhere to scientific integrity principles. These principles also include transparency and access to information or data collected that are either used to make the predictions or to test the predictions in environmental assessments. In that regard, the Atlantic Accord acts for Newfoundland and Nova Scotia have sections on confidentiality and disclosure that could oppose the principles of scientific integrity.
The second point is on monitoring and follow-up. Because I am following a prediction through to its end, a lot of what I have done falls into this section. There are international best practices for environmental assessments to include a strong follow-up component. If we don’t test the predictions made in the EA, we will not have a clue what the impacts are. The EA follow-up could be strengthened in the legislation. Specifically, the principles of scientific integrity could be clearly incorporated into the monitoring and follow-up programs. There are some predictions that have high uncertainty. We have a pretty good sense of what’s going to happen, but the marine environment is complex. It’s a big place, and we don’t know what’s going to happen. They end up being best guesses. Predictions with high uncertainty have to have monitoring and follow-up programs. You may think that’s obvious, but it has actually not happened in the past.
The public should be permitted to provide input into the follow-up phase design. All data collected in follow-up programs should be made available to the public in a timely manner and be permanently archived by the agency. Data collected in follow-up programs should be used to inform future projects. Oversight of follow-up programs would ideally be conducted by an independent advisory board that includes experts in ecology from across Canada.
The third point is on cumulative effects. It’s imperative that we understand cumulative effects from multiple industrial activities working in the marine ecosystem. As I understand, their goal would be regional environmental assessments. In other areas it’s called marine spatial planning, but I think that is essentially the goal. I think we need one. Strategic environmental assessments have been done, but it is outside of the jurisdiction the C-NLOPB to be considering other industries. In the regional assessments we should be identifying areas that are off limits to everybody, to all industry, and to marine protected areas and marine refuges. I mention this specifically because the C-NLOPB a year ago put out a call for bid in a marine refuge that excluded fisheries.
The final point is on joint federal-provincial oil and gas regulators. From my perspective, they already have substantial influence over the post-EA phase. They approve environmental protection plans, oil spill response plans and environmental effects monitoring plans. They’re overseeing how the project is being played out. From my research, which follows some very specific questions, I have argued that there seems to be some indication of regulatory capture with respect to the board’s actions. They’re really doing what industry wants them to do, rather than doing what’s best for the protection of the environment.
Therefore, I would hope and argue that oil and gas regulators should not chair panel reviews and that their membership should be limited to two seats in total. Thank you.
Brett Favaro, Research Scientist, Fisheries and Marine Institute, Memorial University of Newfoundland, as an individual: I have testified to this committee before about sustainable development and climate change, and today I speak in favour of Bill C-69.
I will start by discussing the state of Canadian biodiversity and habitat. Biodiversity, the living wealth all Canadians have an obligation to protect, is a gift that we steward for current and future generations. We are dependent on it for our livelihoods, our culture, and indeed our clean water, air and food. Canada has a bigger responsibility than most. Ours is the second largest country on earth by area and contains the biggest area of intact wilderness. When we get conservation wrong, it’s a loss to the whole world. The loss is felt for generations, not just a fiscal quarter.
One of the basic goals of environmental law is to enable people to do projects that can make money while minimizing harm to biodiversity. If someone wants to weaken environmental law, they often start by arguing that existing laws are too strong and that biodiversity is in fact overprotected. Is that true in Canada? Let me describe three pieces of work that I have personally co-authored.
First, Canadian species at risk of extinction rarely improve in their conservation status. In a 2014 paper, we found that for 369 species at risk long enough to be assessed more than once, 31 per cent deteriorated in status across the two assessments and only 14 per cent actually improved.
Second, the most recent data available suggests that Canada has been losing fish habitat. For a subset of projects we could obtain data for, a full 67 per cent were authorized to destroy more fish habitat than they were required to restore. This was made under the Fisheries Act before it was weakened by changes made in 2012.
Third, between 2007 and 2011, there were only 21 convictions under the Fisheries Act for illegal harmed fish habitat: four convictions per year in the second largest country on earth where we know for sure that fish habitat is being harmfully altered.
Clearly our legal regime is not overprotecting these resources. This is research that I have published. Countless other scientists, NGOs, Indigenous groups and government agencies have found that whether we’re looking at fish stocks, vertebrate populations or just about any other ecological metric, you will find trouble in Canada.
I know we’re here to talk about Bill C-69 and not the Fisheries Act or the Species at Risk Act. However, environmental law has a shared purpose: to protect what matters while enabling industrial activity. We can only make wise decisions when we understand, as a whole, that Canada’s living resources have not been protected to the extent needed to preserve them. Clearly more conservation is needed.
Do Canadians value this? Some colleagues and I commissioned a poll to answer that question. When we asked a representative sample of Canadians whether they valued conservation of species in Canada, 89 per cent said yes. When we asked if industrial development should be limited to protect species, 80 per cent said yes. Even when we asked if Canadians supported limiting private property rights in the interest of species conservation, still 63 per cent agreed. Even when we deliberately worded questions in a way that focused on the personal costs, rather than on the benefits of protecting species, a majority always supported conservation.
This brings us to Bill C-69. I’ll make a few key points. First, Bill C-69 includes provisions requiring the establishment of a public registry for environmental assessments. This is essential. The registry should contain as much information as it is legally possible to disclose. Regardless of whether someone wants there to be more protection, as is the case for most Canadians, or less protection, as seems to be the case for some industry groups, it is in everyone’s interest to be transparent. Indeed, some of the research I spoke to you about was only possible due to filings under the Access to Information Act, an inefficient and cumbersome system.
Second, Bill C-69’s impact assessment framework requiring consideration of a project’s socio-economic impacts is sensible. Too often we accept the assertion that a given project will produce astronomical numbers of jobs with no evidence to support that claim. It’s time to quantify both benefits and costs in real evidence-based ways. Furthermore, as the climate crisis worsens, perception of what is in the public interest will continue to shift. The decisions we’re making now will quite literally play a role in determining whether our grandchildren get to exist in organized civilization. An impact assessment framework must enable, and ideally require, our elected representatives to weigh climate impacts when assessing proposed activities. This may sound extreme, but frankly reality is extreme. The United Nations Intergovernmental Panel on Climate Change laid out what needs to happen: 50 per cent reductions in emissions by 2030 to stay below safe thresholds of warming. I would like to see this reality at least acknowledged somewhere in the law.
Third and finally, as a marine scientist I must respectfully ask the committee to reject demands to exempt exploratory drilling wells from this environmental assessment process. The ocean is not a bathtub. One bit of seafloor is not interchangeable with another bit of seafloor. Critical habitats like corals and sponges are absolutely essential to healthy fish populations and therefore to fisheries, and they are patchy. Drilling in one place may cause tremendous damage, while drilling even slightly adjacent to that site may be relatively benign. This is why we assess.
I conclude by reiterating my support for Bill C-69, while also noting that it’s not perfect. A lot of decisions remain discretionary. It’s more ambiguous about climate change than it should be, given the ongoing emergency that we all face. This law could be made stronger but, as written, it is a positive, incremental step forward and should be passed without delay. Thank you.
The Chair: Before we move to questions, I will remind senators and witnesses that we are studying Bill C-69 and Bill C-69 only. Please make sure that your questions and answers are within the mandate of that bill and not other legislation.
With that, we will start with Senator Woo.
Senator Woo: I’ve been warned.
The Chair: You’ve been warned.
Senator Woo: I will be specific by picking up on Mr. Favaro’s reference to offshore drilling and connecting it to the testimony of Mr. Sullivan as well. Mr. Sullivan says that all offshore activities should be assessed and that a regional or strategic assessment should not be sufficient to exclude an individual project from being subject to impact assessment.
I am wondering whether you are including exploratory drilling as well, to the extent that a regional assessment might cover an area where exploratory drilling would take place, and whether that might be sufficient for the individual project to be excluded from impact assessment.
I think I know what Mr. Favaro’s answer is, but he may want to jump in after Mr. Sullivan has elaborated.
Mr. Sullivan: When we look at regional or strategic assessments in huge spatial areas and an environment that’s changing, I don’t think it’s good enough just to say that we covered this area, that this massive area has been assessed, and, therefore, specific projects within that should be exempt.
Senator Woo: Even exploratory drilling.
Mr. Sullivan: Even exploratory drilling, yes. Just to be clear, I think there could be concerns and considerations around exploratory drilling as well.
Senator Woo: Mr. Favaro, you’ve already made it quite clear.
Mr. Favaro: I did some research before appearing today about exploratory drilling. The precautionary principle suggests that we should not do the dangerous thing, in the absence of evidence, but I figure let’s get some evidence too.
I did a literature search for exploratory drilling. I found a lot of papers on this subject and one I just want to quote. There’s a paper looking at the Minerva Gas field in Port Campbell, Australia, specifically before and after an exploratory well was drilled. They found a 71 per cent to 88 per cent reduction in abundance of previously common invertebrate species that lived in that site. These species form the basis of the food web and are necessary for fisheries to persist. These impacts persisted as much as 11 months post-drilling. These aren’t things that don’t have an impact. It doesn’t mean they should be prohibited forever, but it means that they should be assessed.
Senator Woo: Why would not a regional assessment deal with those issues such that you can, in a sense, green light a whole area for exploratory drilling?
Mr. Favaro: I don’t mean to dodge. I think she has got it.
Ms. Fraser: The issue is that a larger scale assessment doesn’t capture the heterogeneity of what is on the ocean floor. There may be an area where it won’t have an impact, but it’s a much finer scale question when you’re thinking about exploratory drilling.
I just want to jump into it. The Gulf of St. Lawrence is a very unusual situation because it has a lot of different provincial boundaries. In any well drilled in the Gulf of St. Lawrence should have to undergo a detailed assessment.
Senator Woo: I have a brief related follow-up question on cumulative effects, one of the factors in clause 22. It has been mentioned by a number of witnesses that it’s difficult to assess cumulative effects, particularly when you’re trying to predict what future activities might take place.
What is your view of having cumulative effects as a specific factor for the assessment of individual projects, as opposed to leaving cumulative effects essentially to strategic and regional assessments? Should we take it out of the assessment of individual projects?
Ms. Fraser: I don’t know if I can give you like a solid answer on that. From what I’ve read of both the strategic environmental assessments and the individual environmental assessments, the individual environmental assessments inherently fall short on cumulative effects. They’re really considering their own industry when you really want cumulative effects to be capturing fisheries, tourism, oil and gas, and everything that’s happening in the ocean. I will say the individual project EAs I’ve looked at so far can’t do a good job with cumulative effects.
The Chair: I will jump into that and say that when we try to evaluate cumulative effect, there is the spatial and the temporal. Could there be a consensus that for certain types of projects it’s important to see the cumulative effects in temporal and in spatial? In others, could it be done through the strategic evaluation that my colleague is suggesting?
Mr. Sullivan: Yes, I guess a lot of response is based on what we’ve seen in the past. From our point of view, we’ve looked at strategic environmental assessment in the past. In my mind, there might be a lot of similarities in the regional, particularly spatial. We have seen input, from someone particularly interested in fish species and fish habitat, on how they fit into strategic environmental assessment and on how they relate to individual projects. Generally, there’s nothing significant enough to warrant any real consideration there. It’s nice but it’s still not having an impact.
Something needs to be changed in the process that will measure the cumulative impact. I am hopeful the regional assessment will be able to accommodate and at least focus on where it’s best serve. That’s my hope because up to this point it hasn’t been a real consideration, or at least it hasn’t been obvious.
Senator Simons: I was very interested in what Mr. Sullivan had to say about potential impacts of seismic work on the seabed. He suggested that there wasn’t that much known about it. I was wondering if Dr. Favaro or Dr. Fraser could speak a bit about what they know, if anything, about the impact of seismic drilling.
Mr. Favaro: One paper was published in the last year or two based in Australia, I believe, where they used acoustic imaging to essentially do an experiment. They did seismic testing in the ocean, and they looked at what happened to the phytoplankton communities. They found that once you have blasted an area, you would see an absence of phytoplankton, these tiny microscopic and sometimes macroscopic critters that form the basis of the food web. It basically punched a hole in it.
Research has been done right here in St. John’s where they’ve looked at the effect of seismic on snow crab. I know they looked at fully grown snow crab and didn’t find too much of an effect there. What’s being referred to here is an absence of evidence. Some evidence suggests that there could be trouble. The first principle suggests that there could be trouble. We know, for example, that sound is really important to fish. We’re starting to understand more and more about how fish actually communicate with one another and listen to underwater auditory cues to determine all sorts of different biological things. It stands to reason that sound should matter.
Ms. Fraser: Yes, some studies out of Norway have shown that fish will leave an area after seismic activity. It can affect the catch that could be obtained. On sound, what to me is nuts is that seismic boats of multiple companies are going over the same areas, collecting data and then selling it to the oil and gas companies. It’s causing a huge effect on the marine environment. The whales are super sensitive to sound.
There seems to be a problem in how data are being collected to further oil and gas development. We’re creating far more impact on the marine environment than we actually need to.
Mr. Sullivan: It seems like seismic has been promoted around Newfoundland and Labrador for a number of years. Now we’re seeing more. Recent numbers of phytoplankton are down. Again, it’s one of the causal effects. I am not so sure, but we are trying to push work, particularly on commercially important species, and initial things on the catchability of crab. Obviously there is a lot more studies to do, but these are expensive. This was done over 200 kilometres from here with a seismic ship. The cost of doing reasonable research makes it difficult.
Other fish like pelagics are more sensitive because of their hearing and bone structures. Marine mammals are very sensitive to the seismic work as well. Very basically, I don’t think anyone would be surprised that it affects the bottom line of fish harvesters at the very least. There’s a scaring impact on a lot of groundfish, but there’s a lot more we don’t know.
Senator Manning: I have a couple of questions. The first one is for Mr. Sullivan. You touched in your remarks on the consultation process for the fishing industry with regard to developments that have been ongoing. What do you see in Bill C-69 that would give more say to the fishing industry in relation to their concerns about future developments versus what they can do today through the process that is in place?
I’ll ask both my questions now. Dr. Favaro, the legislation is trying to expand the consultation process, but at the end of the day the decision rests with the minister. All of us around this table understand, I am sure, the dynamics of politics and who he or she may be at the minister’s desk at the time. Do you have concerns in relation to that process? Would it be better if, at the end of the day, the panel made the decision versus the minister having to give final consent?
Mr. Sullivan: This is an improvement because of the public consideration, but at the same time I have a fear that the comments and considerations of the people directly affected, or most affected, could be watered down. The fish harvesters who will be most impacted by offshore developments will be bunched in with the general public.
The concern is how the people most impacted will get fair consideration. The bill is an improvement, but I still believe this is a serious weakness when, even in the past, harvesters have not had full consideration. One thing, very early in the planning phases, would be engaging harvesters and harvesters groups. That’s an important part that could be explicitly highlighted in the bill.
It’s just understanding that in the public there are some groups, we’ll call them for now, who will be impacted more than others. That should be considered. There are others if you’re talking about things on land. If you’re talking about in the waters around Newfoundland and Labrador, there’s no doubt the people who work in the fishery for a living will be impacted.
Senator Manning: As a quick supplementary question to that, I may know the answer to this question but I’ll ask it anyway. In the panel set-up, would you like to see somebody from the fishing industry directly involved in that process?
Mr. Sullivan: That’s an excellent suggestion, if that’s what you’re making. Yes, absolutely.
Senator Manning: I just wanted to get it on the record.
Mr. Sullivan: Fair enough, we’ll leave it at that.
Mr. Favaro: I was asked a question, too, about what I thought about the discretionary power of the minister. West Coast Environmental Law did an extensive briefing about this wherein they raised concerns about the discretionary powers given. I guess the discretion sort of falls into the process and the decision because the bill articulates all the different things you can consider as part of socio-economic impacts.
As somebody really concerned about climate change, I don’t think it should be optional to consider climate change, at least for projects where that’s a major factor. That’s my personal opinion. However, I think there is an anecdote to discretion. I recognize that it would be quite a change at this stage if the law did not have discretion. However, I think the anecdote is transparency and that public registry piece. Wherever you fall on the spectrum of belief in this matter, I think we can all agree that making these things transparent will make it easier to assess the performance of this law and assess the performance of our environmental laws in general.
When the minister makes a decision, that decision should be put online with an explanation, with the underlying data, with the underlying evidence and with the underlying follow-up showing monitoring and that sort of thing. That helps with the discretionary piece because at least people will understand the decisions being made. If they disagree with them, in our democracy they can go ahead and voice it from a position of having evidence.
Senator Ravalia: My question relates to marine biodiversity and marine ecology in relation to the fishery and scientific integrity in countries that have similar coastlines and similar economies to ours, if we were to look at Norway and the United Kingdom, for example.
Do you have any evidence of lessons that have been learned from these other jurisdictions that we might be able to apply to our own situation here?
Ms. Fraser: I could give an example that is around follow-up. I think those jurisdictions tend to be more transparent. We’ve come a long way. It has improved since I’ve started asking questions.
I’ll give you an example of what happens in Norway. A project gets approved. The follow-up design is online. The data are posted daily on the sediment rates or whatever and on whether they’re exceeding the particular projections they thought would happen. It’s completely out there. You can see what is the impact of the project, what is being measured, and how it relates to the environmental assessment.
When I first started my work, I was asking how many oil spills happen on a per platform basis. That information was not disclosed; it wasn’t disclosed. Now it is much better, but I think you can have really strong follow-up that gets the public engaged and they understand what the potential effects might be.
Do you have anything from Norway?
Mr. Sullivan: Yes, I guess it’s a little less about the details of what an environmental assessment process in Norway is like versus some of the final results. In consideration of the fishing industry versus oil and gas, obviously oil is important to their economy. It is probably an understatement, the same as the fishery.
There are regions in Norway where there’s no industrial development like oil and gas. Harvesters can sustainably harvest within that area. We contrast that with what we’ve seen here in the last year or two with large areas such as a marine refuge closed to harvesters who can’t put a hook in the water. However, we’re able to do seismic blasting, potentially punch holes in the bottom and dredge them. Those are two different approaches to resources and the marine environment. From the fishing industry point of view, we see that as very problematic.
Senator Massicotte: Mr. Favaro, let me share some frustrations with you in that clearly polls indicate significant support for environmental issues, and I feel the same. I think we’re heading to a serious, serious crisis as a world population with climate change. I don’t think we’re doing enough.
At the same time we see the polls. When we ask people in a questionnaire, of course, they’re in favour. They go on the street and they make all kinds of noises. Look at the polls where they ask, increasingly, “If it costs $20 a month, are you still on side?” It goes up very quickly to 100 bucks a month, the 86 per cent drops down to 20 per cent or 25 per cent. It’s very frustrating. In other words, they’re all in favour if it doesn’t affect them or if it doesn’t cost them.
How do you deal with that issue?
Mr. Favaro: That’s an excellent question. I had a briefing note photocopied. At the fifth point I have the citation for the paper that we actually did. We commissioned a poll with Ipsos to do a representative sample of Canadians. We deliberately tried to get at what you’re suggesting. We asked people a series of questions that got increasingly more personal. For example, what if you weren’t allowed to cut down a tree on your own property? We actually worded questions in two different ways. We tried to push it as far as possible. We highlighted the lack of freedom they would have with their own property. That’s where we saw sort of a flattening out, where a smaller majority responded with the opinion that they wanted to protect a specific species. The example we gave was the sage-grouse. We picked a species at risk in Canada. We found that it did sustain that, yes. There is a problem with social science research. You can always get a slightly different answer, depending on how you look at it.
The reason why I brought it up is that it was one page I was involved in this research paper, but it’s certainly not the only one. A paper came out in the last couple of weeks where they asked 2,000 Canadians what percentage of the land mass of Canada should be set aside for conservation. Can you believe, on average, that 50 per cent should be set aside? When we’re trying to think of the mechanisms of how you would do that as a scientist, that would be hard, but the opinion that people express tends to be very strongly on the pro-conservation side.
Senator Massicotte: As long as there is no consequence for them.
Mr. Favaro: No. Even if there is a consequence to them, our research showed that it softened it but there was still a majority that were generally supportive of it.
Senator Massicotte: To me, the fact that you would say 50 per cent immediately diminishes the credibility of it.
Mr. Favaro: That’s a different paper. That wasn’t our paper. I am just giving that as another example.
Senator Massicotte: Yes, I appreciate that. Anyway, I think we’re saying the same thing.
Senator Neufeld: Mr. Sullivan, do you have some information you could leave with us as to the loss in the fishing industry with regard to the oil and gas industry? I am not referring to anything else, whether it’s climate change or whatever, but specifically to the oil and gas industry.
Mr. Sullivan: I would say that I don’t necessarily have a document in hand, but we know we have offshore oil and gas installations where people can’t fish. People have to navigate around them. It takes time, energy and money. There are costs there. The unknown impacts of oil and gas, particularly the seismic like I said before, these things are very difficult to measure. A lot of it is unknown. If we need to do more work on it. We have to recognize that there are some impacts. We really need to try to understand more what the level of these impacts are.
I am not sure. I am sorry. I don’t have anything specific here. If there’s anything I can come up with that will inform you, I’ll certainly send it along.
Senator Neufeld: That would be great. You can just provide it to the clerk, so all of us get that information.
Second, at one time I was taken out in the Gulf of Mexico and landed on a platform. They were showing us around. I noticed there was fishing boats coming from shore, all the way around the platform. I asked the fellow who was showing us around, “What’s going on? Are there more people coming out here?” He said, “No, the fishing fleet actually fishes close to most platforms because that’s where the best fish are.” I don’t think that was scientific, but that’s what the person who worked on those platforms most of his life told me. That wasn’t a representative of the industry; that was a worker I actually talked to.
We flew from there to a drill ship. Through the centre of the drill ship where they drill through, I looked down to see if there were any fish. Sure enough, there were all kinds of fish swimming around down there that I could see. That’s what I found in the Gulf of Mexico.
Do you find it different here? Do you find it difficult for the fishing fleet to get around the platforms and that they are a hindrance, I think you said, or something like that? Could you clarify that a bit for me?
Mr. Sullivan: There’s not a huge number of platforms now, but they all have safety exclusion zones. Some are different sizes. For some of them it may be that you can’t go within five kilometres. Significant areas are closed to fishing, so they have to steam around those rather than go right through the zone. As a safety protocol, there are no ships allowed close to those rigs.
I don’t know what happens in the gulf, whether they use it somewhat as a reef, but generally the waste and drilling muds from those rigs would probably have a negative impact on the environment. Some species may do a bit better there, but I would say that decreases biodiversity. Like we saw with the Husky spill this year, the biggest concern is: What is the impact of an acute spill? Like I said before, what happened in the Gulf of Mexico wiped out the fisheries down there for a while. Where were our harvesters left? Are they bankrupted?
Right now, you hear that the oil and gas industry has no impact on fisheries. Quite frankly, that’s pretty offensive. It is an irresponsible statement. We could argue about how substantial and everything they are, but there are definitely some impacts.
Senator Neufeld: Drilling mud or drilling fluids do not get dumped overboard. They are contained.
I have a question for you, Ms. Fraser. Norway, the U.K. and the Gulf of Mexico have all been tagged. We have been told by individuals that they run the gold standard. As far as exploration wells go, the average for a well in Nova Scotia is 698 days for assessment. This information was just given to us. In Newfoundland and Labrador, it’s an average of 905 days. Yet you can go to the U.S. Gulf of Mexico and it’s 96 days. In Norway it is 79 days, and I am aware that Norway is usually held up as the gold standard. I am aware the U.K. is 18 days for exploration wells.
If we’re taking almost 700 days, what aren’t we doing? Compared to 79 days, it’s difficult for me to fathom what is going on. Is it just a bunch of people pushing paper, or what’s happening?
Ms. Fraser: Thank you for the question, but I am not sure I can fully answer it.
I would have liked to have seen one thing broken down by the data. What are the instances where the EA just goes through with no stoppages and where the proponent is asked for further data? The proposal they put forward is missing key pieces of information, which then slows it up. It’s not just the government that’s slowing up the process. It’s the proponent slowing up the process. The proponent has to go back and get the data being requested.
I’d like to see that divvied out. If you have everything, how long does it take? I don’t know if the well you’re talking about in Nova Scotia or the data from Newfoundland include the Gulf of St. Lawrence. As I mentioned, the Gulf of St. Lawrence is a politically sticky place to be drilling a well. If that well is a blow out, it covers all of those provinces. All of those local fisheries and tourism industries will be affected by a decision that was made by a petroleum board in Newfoundland. I would also have liked to have seen the exploratory well-drilling timelines. What ones were in the Gulf of St. Lawrence versus outside of that area?
In many ways I am sympathetic that it takes a long time, but I would also note that those three areas of Norway, the U.K. and the Gulf of Mexico have hundreds of platforms. They’re well past their maturity. Whereas, in Newfoundland we have four and lots of outlying ecological questions have not been addressed by the industry. What would be the comparison of Norway 30 years ago? How fast were they with their environmental assessments versus today?
Mr. Favaro: I want to add some specific evidence pertaining to Norway.
Fisheries and Oceans Canada, in a Canadian Science Advisory Secretariat report in 2018, published a paper on the review of the environmental impact statements for the Flemish Pass Exploration Drilling Project and the Eastern Newfoundland Offshore Exploration Drilling Project. They were essentially reviewing the proponents’ environmental impact statement. Very quickly, the report stated that pre-drill surveys would be conducted using multi-beam echo sounder and side-scan sonar at a resolution of 0.5 by 0.5 metres. This scale was not fine enough to detect coral and sponge community types found in this region that are acoustically invisible using these methods. It went on to say that the proponents followed Norwegian best practices, but that those best practices were inappropriate for the specific habitat types the proponents were likely to encounter in the waters that they looked at in the study.
This is an example of how environmental assessment can make a project better. DFO didn’t say, “Don’t do these wells ever.” I forget exactly what they said. I know they said to use ROVs, remotely operated vehicles, to look at the seafloor and a few other things. They also said that this Norwegian best practice would not be a best practice here, so we would need to actually alter our practice so that we can get a valid result.
Senator Neufeld: That is one person’s opinion.
Mr. Favaro: It is one agency, Fisheries and Oceans Canada.
Senator McCallum: Thank you for your presentations. My question is similar to one asked by Senator Ravalia.
In 2015, Canada’s Commissioner of the Environment and Sustainable Development noted concern with respect to the federal government’s action on environmental assessment and public engagement processes. A serious concern lies with several aspects of Canada’s environmental performance, including weaknesses in monitoring, research, information management and reporting on biodiversity.
Would you be able to submit recommendations? You talked a bit about some of the problems you had with the predictions of high uncertainty and data collection. What happens to the data collection? How is it put together to come up with conclusions? Would you be able to submit recommendations to us that would help us better understand and would ensure that these weaknesses won’t continue to endanger the marine biodiversity in this area?
Ms. Fraser: Yes, I would be happy to do that.
The Chair: The three of you have talked about climate change, but the panel before you was not worried about how the water, the ice, the precipitation and the icebergs are changing. What is your opinion?
We recently read a report that in certain areas of Canada the climate is changing faster than in other parts. Should we worry about what climate change is bringing? What are the changes that you have seen?
Mr. Favaro: I mean climate change literally keeps me up at night. A problem that is certainly shaping my entire professional career is in understanding what to do about it and how to work around it. You’re right. Environment and Climate Change Canada produced a report showing that Canada’s warming on average had doubled. According to the report, the oceans around Canada have warmed and become more acidic and less oxygenated, consistent with observed global changes over the past century.
Fisheries and Oceans Canada did a state of the Atlantic Ocean report, again echoing deoxygenation, acidification, sea-level rise, a decrease in phytoplankton abundance, a decrease in large nutritious zooplankton and an increase in smaller, less nutritious zooplankton. All these things affect the fishery.
Do I think that should be included? Yes, that should be absolutely considered. Do I know if climate change will specifically affect one rig? I wasn’t sure if that’s what you were getting at specifically, but we know that storms are going to get worse. They’re certainly things that people will have to consider about the way these activities are conducted as well.
Ms. Fraser: One of the challenges that already exists is determining the effect of the industry versus something else. A more variable environment will make it more challenging to determine if the effect of decreased phytoplankton due to seismic testing. At any rate, it becomes more complicated.
Mr. Sullivan: I guess I’d be kind of shocked that someone on a panel would say that they weren’t concerned at all with climate change. I am not sure what the context was.
The Chair: You mentioned that they haven’t changed the way they design. They keep designing based on the 100-year period. I come from Quebec where we have many rainfalls, so the 100-year events are becoming 50-year ones or more frequent.
Mr. Sullivan: Yes. we’re very concerned for all kinds of different reasons, and we’re seeing changes in the environment. Is all of this just climate change? Is it different cycles that we’ve normally seen in the past? Is it a combination of both?
We’re seeing changes in the composition of phytoplankton. We’re seeing increases in some other species. We’re seeing the introduction of some subtropical species. These are having a serious impact on how we manage our fisheries. Whether massive amounts of seismic or some other change in our ecosystem is impacting on phytoplankton and zooplankton when we throw in the major projects either way it is us here. We work and live. Whether we’re in the oil and gas industry or the fishery, if we’re living in Newfoundland and Labrador we have to be very concerned and acutely aware of what changes in our climate and environment will mean for our businesses. It’s an important for us.
Senator Simons: A witness in a previous panel suggested to us that when a species is culturally significant to an Indigenous population it should trigger an assessment the same way you would if the species were endangered.
Listening to you speak about the role of the fisheries in Newfoundland, I wondered what you’d think about expanding the definition of culturally significant beyond Indigenous populations. If a species is culturally significant to a community, should that be something that might trigger a higher level of assessment, not just economically but culturally?
Mr. Sullivan: I certainly think it’s an important consideration. Most of my considerations have been about the economics, the value around commercial fish species, the environment and how they’d be impacted even if they are not commercial. It’s fair to give consideration around culturally important species. People are talking an important habitat for cod. I am sure that is near and dear to many people’s hearts.
Most of my consideration was around the livelihoods and the economy of Newfoundland and Labrador, particularly for renewable fisheries that sometimes don’t get the same consideration that people see as immediate higher payoffs from what an oilfield would be. I certainly think it’s an interesting concept, but that wasn’t necessarily my main focus.
The Chair: Thank you very much for your testimony and thank you, colleagues, for your questions.
We welcome from Nunatsiavut Government, Andrea Hoyt, Environmental Assessment Manager. Thank you very much for being here. You will have some time for your opening remarks, and we will follow with questions.
Andrea Hoyt, Environmental Assessment Manager, Nunatsiavut Government: I work in Labrador out of our Makkovik office. Thank you very much for inviting us here today to discuss Bill C-69.
Nunatsiavut Government is the regional Inuit government established through the Labrador Inuit Land Claims Agreement signed in 2005. Nunatsiavut Government has jurisdiction in relation to the environmental assessment of projects on Inuit-owned land in Northern Labrador. It has a role to play in federal and provincial environmental assessments on projects in the Labrador Inuit settlement region outside of Labrador Inuit lands and in projects that occur outside of our settlement area that have impacts on our rights and territory. Any projects that cross these categories could require multiple environmental assessments under current regimes.
We have been engaged in the reviews of environmental legislation since 2016. I’ve had the privilege of sitting on Minister McKenna’s multi-interest advisory committee on environmental assessment over the last 2.5 years. Nunatsiavut Government submitted a brief. We were also a witness before the Standing Committee on Environment and Sustainable Development, just about a year ago, regarding amendments to Bill C-69.
The Labrador Inuit Association negotiated with the federal and provincial governments for three decades to settle the Labrador land claim in Nunatsiavut and throughout that time, environmental assessment was evolving at both those levels of government. The land claim agreement was signed at a time when we had the pre-CEAA 2012 environmental assessment regime in Canada with screening of all projects that involved federal land, federal money or federal approval, while bigger projects went through more rigorous environmental review.
The land claim agreement refers to an environmental assessment process which no longer exists and it did not foresee that the federal EA process would be decimated within only a few years. CEAA 2012 drastically reduced the number of projects subject to federal EA from thousands every year in Canada to less than a hundred. This removed the mechanism for Canadians to provide input into the consideration of many projects that may affect them, but it also significantly limited the mechanism for Labrador Inuit through Nunatsiavut Government to contribute to good decision making on projects that might affect Inuit rights.
Nunatsiavut Government is already on the record voicing concerns about Bill C-69. In our written submission to the Standing Committee on Environment and Sustainable Development, we raised major concerns about consent and the weakness of language around the implementation of UNDRIP. We raised concerns about how cooperation and substitution were written into the bill but didn’t go far enough to ensure, “one project, one assessment.” We made suggestions on how to improve the sustainability, precautionary principle and public interest provisions of the bill to ensure that good decisions were made and to ensure that there was transparency in decisions and in the reasons for decisions, above all.
Nunatsiavut Government raised concerns about how the planning phase would be implemented. The details on that phase, which have the potential to improve how the impact assessment is implemented, are not in Bill C-69. It is worrisome that the key deliverables, including an Indigenous Engagement and Partnership Plan, are not described in the legislation. Reviewing and providing comments on this legislation without a project list is problematic, as we are looking at legislation not really knowing what it will capture. We know, however, that it is not intended to return to the pre-CEAA 2012 scope, which was for public review of all projects requiring federal funds, federal permits or approvals, or on federal lands.
At its core, environmental assessment is a planning tool. It is a mechanism to allow governments and their partners, citizens, Indigenous communities and other jurisdictions to consider proposed projects; to look at what the impacts may be, how to mitigate negative impacts and amplify positive impacts; and then to make a decision on whether the project’s contributions, on balance, will outweigh its costs. Impact assessment should also consider how the benefits and costs are distributed and whether some groups disproportionately benefit from a project while other groups disproportionately bear the costs. Industrial development has in the past benefited large companies, shareholders and a few employees, while environmental and social costs have been borne by local communities and often by Indigenous peoples in the North.
Impact assessment must provide for monitoring, whether predictions of impacts and mitigation efficacy are accurate or for adaptive management, to adjust mitigation to continually improve the way a project is being carried out. You already heard about the Muskrat Falls project today, about some of the concerns with the environmental assessment that was done, about the information on which the assessment was based and therefore on which the project approval was granted, and about the way the project has been carried out and the lack of adaptive management. That project, which was assessed under the pre-CEAA 2012 regime, will continue to be a financial drag on the province of Newfoundland and Labrador for generations to come. An Inuit living downstream of the project will endure increased levels of methyl mercury in their traditional foods for many generations to come. Any changes to environmental assessment legislation in Canada should consider how this situation could be avoided in the future and whether proposed legislation will contribute to improved decision making based on better science, traditional knowledge and respectful partnerships with Indigenous peoples.
When you consider amendments to the bill, please do not introduce limits to the factors to be considered in an impact assessment as set out in clause 22. There have been extensive consultations with a wide range of individuals and organizations over the last 2.5 years, first through the expert panel which held hearings in 2016 and provided excellent recommendations two years ago, then through rounds of consultation with federal departments and the minister, through the parliamentary process and now through the Senate process. The list of factors is a reasonable guide for the agency and proponents to look at the project and how it may interact with the environment and people.
Please do not remove any of those factors. There is no need for the agency to narrow the overall assessment either through scoping the project or through scoping the factors. In the early planning phase when studies have not yet been done and consultation has not been completed, it would be very risky to rule things out. We are in a rapidly changing world, and given all the unknown unknowns the agency should not limit factors pre-emptively.
Bill C-69 does not go far enough to establish a process that will ensure bad projects do not go ahead and to help good projects to be better. It does not ensure reconciliation with Indigenous peoples, create mechanisms to ensure free, prior and informed consent, or ensure meaningful consultation throughout the process so that Indigenous groups do not have to turn to the courts for recourse again and again. The bill does not shift environmental assessment from the frame of mitigation of the worst negative impacts to the frame of using impact assessment as a planning tool toward true sustainability.
I try to think about my children and my grandchildren’s grandchildren. We all have to think about how development decisions are being made and how developments are proceeding. We need to make the best decision about what activities happen in our country and how those projects happen. I am open to any questions.
Senator Simons: Thank you very much, Ms. Hoyt. Our committee was in Winnipeg, not last week but the week before. It’s all starting to be a bit of a blur. We heard from a very persuasive professor of Indigenous law who argued that by putting consultation in the legislation without defining the form that Indigenous consultation should take, we were actually creating a law that would be more open to litigation because it talked about duty to consult but never defined the form that consultation should take.
I am just wondering, from the point of view of the Inuit community you represent, if you think that is the case and that the bill needs to do more to outline exactly what the appropriate consultation model should look like.
Ms. Hoyt: That’s an excellent question and it’s something that I think Indigenous people have been struggling with, as have the various levels of government.
The legislation as written has added a formal pre-planning phase. There is potential for that to be very effective at laying out an appropriate consultation process for the communities that a project may affect. From my perspective it is problematic to be too prescriptive on what consultation would look like, given the diversity of communities and peoples in the country. I do not think it would be helpful to be more prescriptive.
I have some concerns about the 180-day limit. For a small geographically contained project, I can see how that is enough time as long as you’ve done some good work ahead of time to lay the groundwork; but for a large project that involves many different groups, it could be difficult to get it done in that time.
Senator Simons: I have a simple background question because I am from Alberta and this is new territory for me, literally. How large of a piece of property does your nation represent? I am sorry, I could just Google this but I am going to make you Google it. I am wanting to get a sense of the scope of the territory covered by your settlement agreement.
Ms. Hoyt: I should know that off the top of my head but I don’t. Visually, it’s about a quarter of Labrador.
Senator Simons: That’s what I wanted to know.
Ms. Hoyt: It’s a good bit of land.
Senator Simons: That’ll do.
Senator Manning: Ms. Hoyt. I have a couple of questions for you.
Could you explain the consultation process as it exists today? If there was a project proposal for your territory, how would the Nunatsiavut Government be involved in that process? What consultations would take place as of today, versus what you hope will take place with the passage of Bill C-69?
Ms. Hoyt: The way it is currently written, when a project description is submitted, it kicks off the process and starts the clock as well. The federal government is responsible to come to us and consult. The provincial government, if they’re involved, are also responsible for coming to us to consult.
There’s no defined harmonization measure in place right now. There was a proposed project a few years ago for a mine on the Labrador-Quebec border. The actual mine was starting on the Quebec border. It would eventually move into Labrador. There was a road across Nunatsiavut and a port in Northern Labrador. It was to involve five or possibly six different simultaneous environmental assessments. We did a lot of consultation to try to figure out if there was a way to harmonize. There was not. It was not moving; it was not happening. They eventually declared bankruptcy and gave up.
Senator Manning: I guess it would be fair to say that you’re not satisfied with the level of consultation under the present regulations and rules.
Ms. Hoyt: The requirements for consultation are not very clearly defined right now. It’s very dependent on who’s doing the consultation. That’s why we end up having recourse to the courts when consultation is insufficient or when consultation accommodation is insufficient.
Senator Manning: You raised a similar concern that had been raised by other witnesses in relation to the project list, and the fact that we’re talking about bringing in a piece of legislation and we’re not really sure exactly what’s on that project list.
Are you fearful that some projects in Labrador will be missed and will not be part of this process at the present time? What is the concern that you have in relation to your own area?
Ms. Hoyt: In relation to our own area, because of the way our land claim agreement is written, we would prefer to return to the pre-CEAA 2012 project list, which was all projects with federal money, federal land or federal approval. That allowed us to know about everything that was going on. Very few things fall through. There were three different levels of assessment but mainly there were two. There was a screening of all projects. If there were major concerns, it went to a review. That screening process was a mechanism to know what was going on and a mechanism to have input.
The current project list under CEAA 2012 is quite limited and quite arbitrary. We would like to see a project list based on something logical like what the footprint of the impacts would be or some sort of measurable and sensible criteria. We would also like to make sure that there’s a way to get a project on the project list if it is of significant concern to our people. We live in a spectacularly beautiful, fairly pristine area where the people of Nunatsiavut are extremely dependent on the land and resources. If a project that was happening on the outskirts of Toronto happened where we live, it would have the potential to be much more significant. We would like the potential to add a project in that case.
Senator Woo: You alluded to some concerns about the substitution provisions in the agreement. Could you elaborate on those concerns?
Ms. Hoyt: We were happy to see the options for harmonization and substitution in Bill C-69. For us, they are much more workable than what is in the CEAA 2012. What we wanted to see was a bit more clarity around how that would happen. We don’t have a process under our land claims agreement where there’s a co-management regime already in place like in Inuvialuit region or Nunavut. We don’t have that yet.
Senator Woo: Could you not negotiate an MOU or a protocol for substitution with the federal government? British Columbia has done that, for example.
Ms. Hoyt: Yes, we think that possibility is there. It doesn’t help us with the problem of the provincial government and having multiple environmental assessments. Yes, that is a possibility.
Senator Woo: The province can negotiate an MOU with the federal government as well.
Ms. Hoyt: Yes, theoretically we could all negotiate together and come up with one process.
Senator Woo: That’s right. That would be the solution.
Could I ask you about the factors in clause 22? You make the case that all of the factors should remain in the list. How would you apply the climate change factor in your own territory? What are the metrics you would use to assess whether a project helped Canada meet its commitments under international climate change treaties?
That’s the way it’s worded currently. It’s not just climate change in a generic fashion, but it has to do with meeting obligations and international treaties.
Ms. Hoyt: Climate change and metrics on how to implement the federal commitments are not part of my area of expertise. If it’s all right, I’ll get back to you on that one. I’ll get the right people.
Senator Woo: Thank you.
Senator Ravalia: Ms. Hoyt, my question relates to projects that may have already proceeded since CEAA 2012 that you feel have had adverse economic or environmental outcomes, based on the fact that you feel the legislation presently in place does not sufficiently protect your environment and your communities.
Ms. Hoyt: We actually haven’t had environmental assessments under CEAA 2012 in Nunatsiavut. The last major environmental assessment done was Muskrat Falls, and it was started pre-CEAA 2012.
Senator Ravalia: Do you have any potential projects in the pipeline that you think could be impacted on a go-forward basis?
Ms. Hoyt: A couple of mines have been proposed. Both of them are on hold for economic reasons. Perhaps the uncertainty around the environmental assessment regime is part of the economic reasons, but I suspect it has more to do with global prices of metals and other things.
Senator Patterson: I am glad to see you here, Ms. Hoyt. I am from your neighbouring jurisdiction to the north or up the coast.
In the land claims agreement, the Nunatsiavut Government has the power to make laws in relation to the protection of the environment and impact assessment. Is the Nunatsiavut Government looking at occupying that jurisdiction the way Nunavut and the Inuvialuit have done?
Ms. Hoyt: We have quite a different regime because co-management was not written into the legislation in the same way. Our environmental assessment chapter sets the possibility there, but it does not prescribe anything.
We have used the Inuit law provision to create our own environmental protection act, which includes environmental assessment on Labrador Inuit Lands. That would be private land, but the larger harmonized mechanisms do not currently exist. We’ve not had an appetite from the other levels of government to make a larger harmonization agreement. It’s project by project only, and so far we’ve been unsuccessful at making that happen.
Senator Patterson: LIA negotiated a comprehensive impact and benefit agreement with the Voisey’s Bay mine. I imagine you’ve been involved with that. I understand there’s an Inuit-owned environmental monitoring company that works there. There have been significant efforts made in training and employment.
How’s that going generally? I know it’s a big project, but could you tell us how that’s working out? Have you had a good voice in mitigating any impacts and improving positive benefits from that project?
Ms. Hoyt: Voisey’s Bay is a really good example of how impact assessment and impact benefit agreements made a project with good potential better. It was an economical mine. Because it was written into the land claim agreement and because of the political and economic climate at the time, they negotiated agreements with the two Indigenous groups that required business opportunities and job opportunities for local people. That has happened and, like you say, the monitoring process has been done through an Inuit business. I think people are very confident that the activities happening at Voisey’s Bay are being done as well as possible and that any issues happening at Voisey’s Bay are dealt with as effectively as possible.
It’s a very good example of how environmental assessment can work well. In contrast, Muskrat Falls is a good example of how it cannot work well for reasons you’ve already heard.
Senator Patterson: Muskrat Falls is outside your settlement area, isn’t it?
Ms. Hoyt: That’s kind of an interesting one, yes, because it was scoped outside our settlement area but the impacts are inside.
Senator Patterson: Good answer.
You spoke about the sanctity of the criteria outlined in clause 22 of the bill. Here’s what I would put to you about that: It’s very difficult, if not impossible, to speak against gender-based analysis or Canada’s commitments to climate change critically. It’s difficult to do that.
We heard in the committee some expert testimony last week in Winnipeg from a gender-based analysis expert and actually several witnesses. One of them said, “Oh, it’s easy to find the gender. There are 11 points in the GBA. Look it up on the website.” I did, and I found indeed there are 11 points. I put that to the next witness on the definition, and she said, “No, you can’t confine it. It’s much broader than the 11 points.”
My point is that it’s all well and good to talk about introducing these totally new concepts in the environmental assessment process, but they’re not defined. Actually, a witness this morning speaking in favour of FPIC and sustainability said that they were not defined well enough. We need clarity in the definition.
My question to you as an advocate for leaving those intact is: Isn’t there a problem that they have not been defined and that we’re opening ourselves up to huge litigation risk? That can work against proponents, but it can also work against intervenors who may be stymied by litigation challenging these as yet judicially undefined definitions.
Do you agree that there may be a risk in putting these new undefined factors into legislation?
Ms. Hoyt: Just upfront, I am not a lawyer; I am a biologist. It is problematic how some terms are defined in the legislation and how some terms are not defined in the legislation. When you were talking about free, prior and informed consent earlier today, that has been quite well defined. Consent versus veto has been well discussed. That’s not a major impediment.
Leaving those factors in environmental assessment and impact assessment so that they can be discussed and a decision can be based on the most fulsome information possible will lead to a better decision. If you don’t, then you’ll still have a judicial challenge at some point. There’ll still be litigation because this was left out.
It’s an important factor in how the project affects the environment or affects communities. Decisions have to be made on the basis of what the project is doing, and it’s better to leave the factors broad. If there are some that are not relevant or minimally relevant, then you provide the information to address them as best you can and to the level necessary. Removing the factors from the legislation means that we will not be looking at the full project and the full impacts.
The world is changing too fast. We talk about the 100-year storms that happen every year now. We talk about the cumulative effects that are happening around the world and the long-range transport of pollutants. These things are hard to deal with on a project level, but you can’t ignore them because they’re still there.
Senator Patterson: The Labrador land claim gives the Labrador Inuit 3 per cent of the provincial royalties on certain projects. I am wondering how that’s going. I heard there were some hiccups in the Labrador Inuit getting the money.
Ms. Hoyt: That’s not part of my purview as the EA manager, so I can’t answer that.
Senator McCallum: I want to continue with the topic raised by Senator Patterson.
In 2016, the Government of Canada began a review of federal EA processes with the aim of introducing new ones that are robust, incorporate science, protect the environment, respect the rights of Indigenous people and support economic growth. The intention is to move toward an inclusive and transparent impact assessment process that engages both Indigenous and non-Indigenous communities.
What I am looking at is the interpretation of the words that I’ve just read. With my Cree language and how I was raised on the land, my interpretation of this goes beyond what the English means. That’s the only way I can interpret it. The best way I can relate this is to B.C. and their EA processes.
That process has a broader scope than the federal environmental assessments. It assesses the potential for adverse environmental, economic, social, heritage and health effects that may occur during the life cycle of a project.
When you look at all that, you look at gender-based analysis which is the social injustice that occurred to people who lived at the community base level, including the rapes of women that occurred in work camps. I am talking about the dam now, including that they didn’t get the benefits of the electricity the dam produced. It went to Winnipeg, but not to where they lived. They were without electricity, without sewage and without running water. It impacted their health. It affected their access to health and their access to food security. It affected so much of their lives that all of that belongs here. With this bill, people are cutting it off and saying, “You can’t look at that. You stick here.” It’s impossible to do that. You will come up with unintended consequences because if you limit like that.
You said you had looked at the early planning phase which was very important for you. Could you speak a bit about that, using the background that I just used? I don’t know if this will allow you to give us the full planning you need to give us.
Ms. Hoyt: I think we share the concern that the early planning phase is limited. It’s time limited. It aims to achieve a lot. In Nunatsiavut, the Inuit traditionally take a very holistic view of the environment, impacts on the environment and impacts on people. It’s all one thing. It is very difficult to parse it out into federal jurisdiction and provincial jurisdiction, and my bit of land ends here and yours starts there.
Having a required early planning phase provides an opportunity for proponents that may have less experience or less will to work with governments, communities and Indigenous groups. It gives some parameters for what has to happen. Throughout the last three years of this process, it has been repeatedly said that good proponents already do these things. They already look at all the impacts. They already use good research. They already share their data. They are open. They work with the communities. They start years ahead of time, et cetera. If all those pieces are in place, then that early planning phase of 180 days is probably enough to pull together the pieces. If those are not in place, maybe the 180 days will make it possible to pull things together so that we can make a good impact assessment.
I know that industry wants certainty. They want timelines. They want to know 15 years ahead of time that they will get approval. The whole point of an environmental impact assessment or an impact assessment is to make a decision. It’s not to rubber-stamp something that some company has decided is economical.
The early planning phase is very helpful. It’s good to see it in the legislation. None of us know how it will roll out or how will work in practice. For a very complicated project, 180 days is pretty optimistic.
I am not sure if that answers your question.
Senator Massicotte: Thank you for being with us and thank you for your patience in answering all the questions.
You made reference earlier to the UN declaration. I presume you’re making reference to the consent provisions. You’re saying those are very clear and there’s agreement on how to define those words. I read most of the Supreme Court rulings. I’ve read the declaration. I’ve read the repertoire. I’ve met with Indian chiefs. I’ve met with the sponsor of the bill.
Help me out a bit. Where do I get the definition that “consent” does not mean “approval”?
Ms. Hoyt: I think I said “consent” does not mean “veto”.
Senator Massicotte: Help me out there. If you look in the Webster’s Dictionary, “consent” means to approve the project. If you have the right to approve the project, I presume you have the right to say no to the project. No means no.
Ms. Hoyt: Some excellent articles have been written. From Delgamuukw right on through the courts there have been discussions on what it means and how free, prior and informed consent is a balancing of rights. I can’t define it better than all those folks have, but it has been an evolving thing.
Senator Massicotte: I think I read all of them.
The Supreme Court has made it very clear that rights are never 100 per cent. It’s a question of degree; it’s a question of certainty. If something clearly belongs to you, the Supreme Court says that you have a right to consent. However, if you’re simply sharing some geography, maybe fishing and hunting rights, then that’s not consent. That’s more meaningful consultation. The Supreme Court says that it depends on the evidence and the certainty of rights. The Supreme Court only uses consent on a couple of occasions.
A lot has been written, including by the lawyers that are helping with this legislation, to say what “consent” means in their terms. What happened in the United Nations was a delay of six months because most of the nations wanted “sought” consent. The Aboriginal communities said, “No, not good enough.”
It’s pretty unclear in my mind, and I would love it to be clear. If your interpretation is accurate, I say, “Good, let’s just make a small amendment. Let’s clarify it. Then it’s done and everybody is happy.” Then Aboriginals say, “No, no, don’t do that because we kind of like what it says right now, which means you need to seek our approval.”
That was more of a comment.
The Chair: What is your question, Senator Massicotte?
Senator Massicotte: I am just sharing the argument to see what I can learn from it because I am groping with this issue. I’ve read a lot of stuff about it, and I am not getting satisfaction on that question.
The Chair: I think she answered that “consent” doesn’t mean “veto”.
Senator Massicotte: I appreciate that she’s not a legal expert
The Chair: You have said that, right?
Ms. Hoyt: That’s right.
Senator Massicotte: Well, that’s good for you.
The Chair: Thank you very much.
For our last panel, we welcome from John Lewis Paton Distinguished University Professor, Memorial University of Newfoundland, William Montevecchi, as an individual; and from Newfoundland and Labrador Environmental Industry Association, Kieran Hanley, Executive Director.
William Montevecchi, John Lewis Paton Distinguished University Professor, Memorial University of Newfoundland, as an individual: My name is Bill Montevecchi. I am a research scientist at Memorial University of Newfoundland. I study seabirds. Some of my lab papers on seabird risks at offshore platforms have been submitted to the committee. As a former member and director of Nature Canada and Nature NL, I endorse their submissions to the committee that were submitted with five other environmental organizations.
In the next few minutes I will try to focus on three key issues, some of which you’ve heard a bit about: first, transparent science-based decision making; second, the need for regulatory strengthening; and third, precautionary approaches to ocean environment and development.
Seabirds are the primary indicators of the state of the ocean. In the late 1990s when oil production came online on the Grand Banks, we addressed this issue. Canadian and international scientists met with the Canadian Association of Petroleum Producers, CAPP, and submitted a report which proposed comprehensive yet simple protocols for seabird monitoring on offshore platforms, Montevecchi et al 1999 Chapter III, submitted to the committee. Dedicated trained observers have never been employed on offshore platforms, despite acknowledgements, concerns and commitments about seabirds at every environmental assessment for ocean oil development.
The most abundant breeding seabird in Eastern Canada is a tiny Leach’s storm petrel. It is also the most vulnerable. Actually, so that this won’t just be a word for committee members, I brought in one of these birds. It’s important that you see it. This is a specimen of the most abundant breeding seabird in Eastern Canada. You probably don’t know much about it. It’s small. It’s the size of a robin. It’s a little albatross. I want to talk about them and their status. This is what we’re talking about; this is a real animal.
They’re nocturnal. Due to their attraction to flares and brilliant lighting and their formerly opaque ocean habitat, these birds are at high risk. The global population of these animals has essentially halved in the three decades that flaring and lighting have been introduced into the Canadian offshore. More than three million of these birds are missing. That population decline is driven by decreases in the species’ largest colonies on the East Coast of Newfoundland, very near where we are meeting. The Leach’s storm petrel is now listed as vulnerable by the International Union for the Conservation of Nature.
Comprehensive arm’s-length monitoring of seabirds at offshore platforms and on drill rigs must replace the inadequate haphazard self-reporting by oil companies under the auspices of the Canada-Newfoundland and Labrador Offshore Petroleum Board. Even though nothing of consequence has been done, we can act proactively, and we can minimize risks for seabirds associated with flaring, lighting and chemicals. I’ve tried to highlight a few parts of the Bill C-69 that are actually strong and can help in this regard, as well as some amendments that I think give too much authority to the Canada-Newfoundland and Labrador Offshore Petroleum Board.
I want to make one more point because this seems to be a key point that keeps coming up all the time. It’s about the timing of assessments. Clearly timing is everything. Following the explosion and blowout of the Deepwater Horizon in 2010 in the Gulf of Mexico, oil spilled from the wellhead for 87 days because the blowout preventer that should have activated in that emergency situation failed. Subsequent to that, the backup blowout preventer which should have kicked in following the initial failure also failed. Evidence indicated that pressure to get production online quickly may have compromised engineering due diligence. That’s evident in President Obama’s initial response to the disaster when he referred to “a scandalously close relationship between the regulator and the industry.”
As a result, an important action was taken. The U.S. regulatory responsibilities for development were partitioned from those for safety and environment. We have had a similar call for an independent safety board in Canada. The C-NLOPB rejected that recommendation, though many people thought they should not have.
During November 2018, the largest platform spill in Canadian waters occurred when Husky Oil decided to resume production in 9-metre, 30-foot storm seas, while other operators did not do so. Again, time not caution was the deciding factor. The C-NLOPB supported Husky’s decision to resume production in storm seas.
We have to reject the “time is money” mantra that threatens our ocean and fuels economic arguments. Time is our best insurance for truly comprehensive environmental assessments and for ocean protection. Thank you for your attention.
Kieran Hanley, Executive Director, Newfoundland and Labrador Environmental Industry Association: I would like to express our appreciation for having the opportunity to speak today. Newfoundland and Labrador Environmental Industry Association, or NEIA, is a not-for-profit association of businesses that promotes the development of clean technology and the growth of the green economy in this province. Our members provide clean technologies that mitigate environmental risks and improve environmental outcomes across industry. They are the environmental professionals that facilitate project design, implementation and monitoring, and navigate regulatory frameworks.
NEIA believes that Bill C-69 is an improvement of the current framework. One of the witnesses earlier before this panel indicated that sustainability was ultimately about balancing economic, environmental and social factors and ensuring the net balance achieves substantial benefit for Canada. Bill C-69 focuses on sustainability from this holistic perspective, and thus NEIA is very much supportive of its overarching intent. We support specific new measures, including the inclusion of climate change impact as a consideration in the assessment, the increased opportunities provided for engagement with the public throughout processes and a renewed commitment to evidence based decision making.
NEIA has some concerns around how Bill C-69 will be implemented on a practical level and what effect it will have on economic development in Newfoundland and Labrador. Our province is a jurisdiction rich in natural resources. Their extraction is a substantial contributor to our economic and social well-being. With respect to the environmental sector, industries like offshore oil and gas and mining are primary economic drivers and key sources of innovation and clean technology advancement.
NEIA is actively exploring clean growth opportunities within these industries, a priority that brought us to Norway last month to explore how clean technologies could be developed and applied to the offshore oil and gas industry. Norway is the leading international jurisdiction in this regard. We learned a lot about the opportunities for Canada to adopt clean technologies in this industry, but we also learned that Norway has an internationally competitive regulatory framework in place that creates a balance between economy and environment.
Recently in Canada proposed offshore exploration campaigns took over 900 days to clear EA. Norway, the most environmentally progressive offshore industry regulator in the world, facilitates this process in a fraction of that time. We need to ask ourselves why that’s the case. In this circumstance and those like it in other industries, the environmental risks and challenges of activities are already known and approaches to mitigate risks and impacts are tried and tested. Spending time exploring what we already know wastes valuable public and private resources. It significantly delays or discourages projects that could contribute greatly to economic and social sustainability. It does nothing to improve on environmental outcomes. NEIA feels that well understood and routine activities, like offshore exploration, should not be on a project list. In cases like these, let’s instead focus our collective efforts on finding new solutions to the known challenges.
Notably, Bill C-69 does outline shorter assessment timelines. It also enshrines in the legislation the value of and ability to undertake regional and strategic EA. In theory, these commitments can ultimately provide greater certainty and allow for proactive work to take place on projects that are in the national interest. We are highly supportive of their inclusion. The bill also introduces an early engagement process that seemingly opens the doors to significant delays and introduces new discretionary powers to the minister, both creating an element of uncertainty for proponents.
Above anything else, those whom we represent speak clearly to the need for certainty in EA processes. Our environmental professionals that work in jurisdictions world wide know that the length of an EA process does not necessarily speak to its effectiveness. Let’s set the standard for environmental protection. Industry will adjust. Let’s make sure the pathway for projects to get there is linear, predictable and efficient. This is the trade-off required to create an EA framework that all have confidence in.
With this in mind, NEIA recommends sharpening language in the legislation to better define the early engagement process and to allay fears around stopping the clock and, in the Newfoundland and Labrador context specifically, address concerns about ministerial discretion in decision making by clarifying the role of C-NLOPB in EA to respect the vision of a joint resource management agreed upon in the Atlantic Accord.
Effective regulatory frameworks balance economic growth with environmental and social considerations, while providing clear and predictable pathways that lead to final decisions. NEIA believes that Bill C-69, in its current form, is a welcome progression in this regard. It could achieve broader support if issues around certainty were addressed. Thank you for your time.
Senator Woo: I will start, Mr. Hanley, with your last point about clarifying the role of the C-NLOPB. Part of the logic of the bill is to separate the function of the agency doing the assessment from the agency doing the regulating, monitoring and so on. That’s the logic to it. It’s something that Professor Montevecchi referred to in his reference to the Gulf of Mexico.
Could you elaborate a bit more on what you mean by an appropriate role for C-NLOPB? In particular, should they have more seats on the review panel, for example? Should they have the ability to chair the panel? This would appear to me to be getting closer to the potential conflict of interest that Professor Montevecchi highlighted in the U.S. example. What exactly are you asking for when you say that we need to clarify the role of the C-NLOPB?
Mr. Hanley: When the Atlantic Accord was first established, the idea was that it was to be a jointly managed resource. The unclarity in the way the bill is currently written in regard to the minister’s ability to make final determination is something that we would like to see some clarity on.
Senator Woo: It has to do with decision making rather than composition of the review panel.
Mr. Hanley: Correct.
Senator Woo: Could I ask, then, about the issue of exploratory drilling? You seem to come down on the side of excluding exploratory wells from impact assessment, yet we heard from the previous panel and from others that each exploratory well was unique and required its own assessment.
You come from the industry that provides environmental assessment, so I am interested in your view on why you think you could have a sui generis approach to dealing with exploratory wells and not require stand-alone assessments for each one.
Mr. Hanley: Let me be upfront in saying that I am not the one personally doing the environmental assessments. The feedback I have from our members is that there is enough commonality between the various exploration programs. Perhaps there are opportunities not to put new exploration campaigns through the full process. I think that’s abundantly clear when you look at the 900-odd days to do that work. I think the latest data from Norway is under 100. I am not sure where that sweet spot is, but we’re certainly on the uncompetitive side and our members tell us that there is an opportunity.
Senator Woo: Would a regional assessment approach or a strategic assessment approach to exploratory drilling be one middle ground to solve this conundrum?
Mr. Hanley: It certainly looks like an area of opportunity, yes.
The Chair: I have a supplementary question on that point because you do the impact assessment work. Do you have data on the benthos, the phytoplankton and the seismic impact? You say that there are similarities, so do you have this information?
Mr. Hanley: Our members certainly would. The members that inform me absolutely would. I am not a scientist, so I am representing their perspectives here. Should you need further information on those sorts of things, it’s something I can get for you.
The Chair: Thank you.
Senator Massicotte: Mr. Montevecchi, perhaps you could share your own knowledge. You refer to the Gulf of Mexico disaster. A lot has been written about why it was a disaster, but let’s fast-forward approximately 10 years from that disaster.
Mr. Montevecchi: Yes, it was 2010.
Senator Massicotte: What’s the consequence to the environment today with that disaster?
Mr. Montevecchi: We don’t necessarily have the answer to that terrific question. It’s complicated, but I don’t want to fudge on the answer. I just want to tell you what the consequences for us were here. We can look at the top 10 most oiled birds. They were tropical birds, pelicans, gulls and terns. The third most oiled bird, the northern gannet, was from Cape St. Mary’s. We haven’t seen any perturbation or negative effect on the population as a consequence of that. I am not saying there was not, but I point that out to show the long reach of the Gulf of Mexico. Our animals were threatened by that.
Much was said about the lessons learned from the Gulf of Mexico. That was deepwater drilling. We’re doing deepwater drilling in the North Atlantic. I can tell you within four weeks of the blowout in the Gulf of Mexico, we drilled the deepest exploratory well in Canadian history in the Orphan Basin. It was the deepest we ever went. This is when the U.S. was on the moratorium for deepwater drilling. That has all been reversed, but at that time Canadians drilled the deepest well. There weren’t observers from Environment Canada or independent observers of that.
I want to drive home a point about exploration. We have an Atlantic Accord which accords confidentiality to oil companies during exploration. If there’s a pollution event, the oil company does not have to report it. I think you have to keep that in mind. There could have been a pollution event in the Orphan Basin. We don’t know, and we don’t have the right to know. I think that is most shocking. I hope that answers your question.
Senator Simons: I am going to teach you guys here in Newfoundland a new word. In Alberta, when people look at Norway’s giant heritage fund equivalent and at our Alberta heritage fund, they complain about it, we call that “Norwayling.” Now that I am here, I have learned there’s a whole other kind of Norwayling. We’re all after Norway as the great, good place.
In the text of your presentation, Dr. Montevecchi, you lay out more specific amendments that you’d like to see. You signal public participation and the use of scientific information, in particular, in subparagraphs 6(1)(h) and 6(1)(j). Perhaps you could expand on that. What precisely would you like to see changed about the language around public participation and the use of scientific information?
Mr. Montevecchi: We clearly need it. I talked about birds because that is what I do. I want to emphasize that this is crazy. We’ve been at this for 20 years. In 1999, we gave CAPP a protocol. It wasn’t just me; it was international scientists. We know how to do it. We can do it. We’re not allowed to do it.
I want to show you that science hasn’t counted. Somebody said earlier said that it should be science and science approved. We have not been able to follow up with science. We can’t tell you. We don’t know. Three million of these birds are missing. We know they’re attracted to flares. We know they’re attracted to offshore lighting. We don’t know how many might have been there in a scientifically robust way or how many might have died.
That’s not so simple to do, but we can do it. We don’t do it because the regulator that has a role here doesn’t require it to be done. I don’t expect oil companies to necessarily want to do it. They’re liable for these things. Why do we have such a self-reporting role for the oil companies? Why does the regulator allow them to do that? This is the job of the regulator. It’s not done. It has never been done.
In answer to your question, if I can, and I don’t want to deflect this too much, the one thing in the provisions that would bolster up science was actually in subparagraph 6(1)(n). Up to this point in time it was said that scientific information would be encouraged. Words matter. If you were to look at every single one, they said that it would be “ensured”. Somehow when we got to subparagraph (n), it slipped over to “encourage”.
We’ve been encouraging that for 20 years. It doesn’t make any difference. We want it ensured. That’s what I would say to try and answer your question.
Senator Simons: You’re not the first witness we heard in the course of our travels who has complained that no follow-up was mandated. These are conditional approvals. We lay out the conditions. Where is the monitoring? I am struggling to see whether that should be in the text of the legislation or in regulation. Since we don’t have draft regulations at the moment, I don’t know where it is. It is common sense, whatever the project is, that there ought to be a transparent follow-up to see what the impacts are and if the assessment hit the mark.
Senator Manning: In full disclosure, I’ve known Dr. Montevecchi for many years now. We have a shared endearment and fondness for a place called Cape St. Mary’s. He has done some wonderful work there over the years in relation to the seabird colony.
I’d like to touch on, doctor, one of the things you highlighted. We should ensure that the roster of potential review panel members be made on the basis of the expert committee established in clause 157. There has always been a concern. We have heard from earlier witnesses, and you’ve been here all day, in relation to people negatively affected, whether it’s in the fishing industry, the environment or the birds, having a say in the establishment of regulations, the establishment of rules and the follow-up to make sure that they are followed.
Are you comfortable with the input that you and others in the field will have as laid out in Bill C-69 today?
Mr. Montevecchi: No, of course. We never have. It’s not that we haven’t been asking. It’s not that we haven’t collaborated with oil companies or with CAPP. We have tried to work with C-NLOPB. I am not an obstructionist, no.
What you said is critical. It was one of our recommendations. Why shouldn’t those panel members be vetted through an expert committee? That would help a lot. Try to find a biologist when we look at C-NLOPB. Try to find somebody who knows anything about the ocean. You’d be hard pressed to do that, and yet they’re regulating. I know the expert panel is used to vetting technical experts, but I think it could be easily incorporated to vet panel members. If it were somebody who knows something about this, somebody with expertise, as opposed to somebody that’s convenient or somebody who knows somebody, it would really help a lot. It is a recommendation that panel members be vetted through the expert committee.
Senator Manning: You focused in your remarks also on the need for regulatory strengthening. Can you expand on that a bit exactly what you’re laying out there with regard to the need for regulatory strengthening?
Mr. Montevecchi: What was that again?
Senator Manning: One issue you touched on was the need for regulatory strengthening. Can you expand on that a bit with regard to exactly what you’re asking there?
Mr. Montevecchi: Are you referring to regulatory strengthening?
Senator Manning: Yes.
Mr. Montevecchi: The examples I gave show exactly how it’s not working. We have a mandate to protect these animals, and it’s not working. Why can you put a drill bit within five centimetres and go two kilometres down in the ocean? We can do just about anything. We can count birds. We can do that. Of course we can do that. It’s my example that we don’t have proper regulation. It’s shunted aside. It’s like it’s of no consequence and we don’t have to worry about it. We do have to worry about it. We’re responsible for it. We have to step up, but we haven’t done it. We have not done it, and the reason we haven’t done it is that essentially the data we have is self-reporting by oil companies. There haven’t been any independent observers on platforms.
Let me come clean. I have people who work on rigs come to my office. I have observers who work on rigs come to my office. They say that the system doesn’t work and that we don’t do enough observations. That happens. That’s real. That’s what’s going on. We have to do something other than say the regulation is great and the regulator is great. The regulator is problematic. We have to do better. It’s a huge problem. To ignore it, you’re ignoring a huge problem.
I am not suggesting that you’re ignoring it. I am not trying to overstate anything, but we have to deal with this issue. It’s broken and it needs to be fixed.
Senator Manning: For my colleagues here, in the fishing industry we allow independent observers to travel on fishing boats, 45 feet or larger, to keep an eye on them and make sure the regulations and the rules are followed. From the committee’s point of view, do you think that we should be looking at maybe an amendment to the legislation to ensure that we have, as law, independent observers on oil platforms?
Mr. Montevecchi: Absolutely, and thank you for asking that question. That’s exactly what we need. If we had a fishing skipper and he was convicted of overfishing, we wouldn’t ask the skipper how many fish he overfished. If he said, “Oh, it was five tonnes,” we wouldn’t accept that. That’s why we have observers.
Just to go to ground zero here, this is how it works. Husky is liable for the oil spill in November. It reported that it was 250,000 litres. If you listened to CBC Radio or VOCM the next morning, it was reported that the spill was 250,000 litres. That was reported by the oil company that is liable for that spill. That was in 30-foot seas. They couldn’t even tell if the hose was connected or disconnected or if oil was spilling or not spilling. Yet, we take their information.
If you want this information, I’ll give it to you. We had a much smaller spill at Hibernia over the winter of 2015-2016. It was reported as a 6-litre spill. It was standard operating procedure, as best I can tell. Later that changed to 60 litres, and subsequently it was noted that it was 6,000 litres. That’s the kind of reporting that we get. How do we know it was 6,000 litres? Maybe it was 60,000 litres.
There are ways to try and truth this. We have satellites. We can do imagery. We can look at slick sizes. When you’re in a 30-foot sea, it’s all going to break up and go everywhere anyway. I am not saying they lied. I am not saying they’re wrong. I am just saying we’re very gullible to be taking information from somebody who’s liable. We wouldn’t ask a fishing captain how much but we would ask an oil company. That’s why we don’t know how many birds were out there. With no information, no information, we are sitting here. We don’t have any information, so there’s probably no problem. We just have no information. I hope there’s no problem but we just have no information.
The Chair: We have heard a lot of what you are saying about lack of information, lack of data and lack of transparency. These were key words in the two last panels.
Senator McCallum: My question is for Mr. Hanley. You made a comment about finding new solutions to known challenges. It was linear, predictable, and you used another word.
Mr. Hanley: Efficient.
Senator McCallum: This is the background. Over the last 50 years, human activity has contributed to an unprecedented speed and rate of decline in ecological functioning. Humans have passed the boundaries for the rate of biodiversity loss, disruption of the nitrogen and phosphorous cycles, land system change and climate change. State shift or rapid non-linear change is an emergent property of many complex adaptive living systems.
Examples on a global scale of rapid shifts in status include the big five mass extinctions when abnormally large numbers of species die out simultaneously, the loss of Arctic sea ice and the potential catastrophe release of methane from thawing permafrost. Science cannot predict such changes as there are no prior data. However, indefinite growth of resource consumption in a finite system such as earth is not sustainable.
When you use those words like known challenges, linear, predictable and efficient, can you clarify that for me?
Mr. Hanley: Yes, in combination with your reference, I was referring to known challenges and finite solutions. To use Dr. Montevecchi’s example, if flaring and lighting are proven to attract seabirds, our members are the ones that would try to find a solution to that. How can we address that particular environmental concern?
That’s what I meant. When we have known challenges, we can pursue known solutions.
Senator Patterson: Dr. Montevecchi, I was very interested in your submissions. We understand well that there’s no adequate scientific data to evaluate seabird occurrences and mortality at offshore platforms in Eastern Canada. You made that point very clearly. As well, there are no observers on the rigs. You also said that more than three million seabirds are missing. Do you know why?
Mr. Montevecchi: That’s what we want to know. One of the papers I submitted is an overview article that will come out in BirdWatch, published by Nature Canada. We essentially have four hypotheses on what could be driving the population demise of this species. One is predation of the breeding colony. A second one is pollution with mercury that they’re picking up in the ocean, maybe from myctophid fish that have high mercury body burdens. The other is climate change that may be affecting their food. The fourth is lighting and flaring in the offshore, but also lighting on ships, lighting around our coast and artificial night lighting that we use. Those are the four hypotheses.
I can guarantee you that Environment and Climate Change Canada and we at Memorial University are working on all four of those hypotheses. It is tough to take that all apart, but offshore lighting stands out as one thing we could immediately do something about. We’ve known that for a long time, and we haven’t done anything about it. That’s the one we really want to address and need to address because that might be the most important driver. My guess is that a number of things are affecting them. This is the one on which we could and should have information but we don’t.
It’s probably some combination of those four points: predation; climate change in food, which would be a food web effect; mercury pollution in the ocean; and lighting and flaring in the offshore.
Senator Patterson: We can do something about offshore lighting offshore, you said. What can we do? Do you mean no more rigs? Do you mean turn off the lights on the rigs or turn off the flares?
Mr. Montevecchi: We can do a lot of things. Periodically the flare has to be shut down anyway. These birds disintegrate when they are close to the flare. We know the best time to shut it down would be in September and October when these birds and all the other birds in Newfoundland are migrating on the Grand Banks. We can do a lot.
There’s so much lighting on that platform that does nothing to help with the safety of rig workers. It’s projected into the sky. We don’t have to do that. We can put deflectors on lights. We can close the blinds on the platform. We can change the wavelength of the light.
That has been done on the Dutch coast. One of the gas rigs there actually has green lighting on it that works fine for the workers and has less attraction for birds. That’s almost the real pity of the situation here. There is a lot we can do. Like I said, we should have done it. As long as rigs, flares and lights are going to be out there, we have this opportunity to act on it.
Senator Patterson: That’s very interesting. You said to us in your presentation that the global population of birds attracted to light has essentially halved in the three decades that flaring and lighting have been introduced in the Canadian offshore. You were not saying that the flaring is the sole cause of the reduction. I understand you to be saying it’s one of the hypotheses of at least four. Is that right?
Mr. Montevecchi: Yes, that’s absolutely right. I guess this one is of concern for me. I should be able to answer that question for you right now. I should be able to tell you it’s of little consequence. It could be a lot of consequence. It could be a total consequence. Yes, it is one of four hypotheses. We’ve been out there for 20 years. Why can’t I answer your question? That’s the real question.
Senator Patterson: Madam Chair, thank you for lenience with me.
Dr. Montevecchi, I was really quite shocked at your statement that the Atlantic Accord gives protection to oil companies from reporting oil spills. Did I hear you right? I say that because in my experience that’s one thing you can’t get away with. There are usually laws requiring the reporting of oil spills on land, for sure. I frankly was hoping we could hear from the offshore board while we were here and perhaps put that question to them. I know it’s not your field.
The Chair: Just a second. I think that he said they report but the problem is the quantity. They report but it’s the quantity that is different.
Senator Patterson: I am really interested. This is a big shock to me. Can we get some data or some references on this subject? It is important.
Mr. Montevecchi: I agree completely. I said two things, actually. I talked about the self-reporting of the oil spill and the underreporting that we’re well aware of. In the second point I said that with the confidentiality in the Atlantic Accord any pollution event during exploration does not have to be reported to Environment Canada. That’s what I said, or at least I hope that’s what I said, and that’s my understanding.
You’re right, senator. Yes, it probably has to be reported. I am not even sure of that, but I think it has to be reported. It would be reported to the C-NLOPB, but Environment Canada wouldn’t be aware of that.
The other thing I said, and this is standard operational procedure for exploration, was that when we drill the deepest well there aren’t independent observers. There aren’t Environment Canada observers when that activity is going on. If they don’t have to report a pollution event to Environment Canada, I would say we’re simply going to be unaware of it when it happens.
The Chair: We can ask a question of the board and of Environment Canada about this particular point.
Senator Patterson: That would be good.
The Chair: We’ll do that, yes.
Senator Neufeld: Pardon me for coming in late. I had some other things I had to take care of. I have a question on the issue of flaring and lighting and having independent people on the platform. Flaring and lighting are largely onshore where I come from. In Alberta and British Columbia, there’s lots of flaring and there’s lots of lighting. Are you saying that on every industrial site we should have independent observers, or are you just talking about the offshore?
Mr. Montevecchi: I am here in Newfoundland, so I am talking about the offshore. It is a good idea to have somebody else check when you have independent observers who are self-reporting on something you might be liable for. It isn’t a particularly good rationale for getting data. The proposal we made to CAPP in 1999 was that you could probably go out there four times a year in each of the seasons, maybe for a week, and have observers there. That would four checks or one each season because seasons are different.
The situation we have for observers on fishing boats is really modest and weak. There isn’t enough of it, but there’s a rotating system where not every boat would have an observer. The observer would be there periodically, but they don’t know where the observer is going to show up. That system would work. I don’t think I am saying there should be an observer on every platform everywhere. That wasn’t my intention.
Senator Neufeld: What about anything that goes through environmental assessment? If you look at large industry onshore, there are lots of light. There are all kinds of things. Look at the lights in an apartment building that’s 40 storeys high. They’re on all night too. Those are some of the things I wonder about.
I understand what you’re saying. My daughter-in-law was an observer on fishing boats on the West Coast. How far do we take it? I know you’re talking about Newfoundland. If it’s offshore Newfoundland, then maybe there are other places it should be also. I am not sure about that.
Mr. Montevecchi: The answer to how far we should take it is when we have enough information to know if there’s an effect. That’s what we have to do. We don’t know that right now.
I agree with you that lighting is a problem. We don’t think about it. We can talk about that. The lighting of buildings is important. With the lighting and flares on land, usually during migration there are often huge kills. It’s episodic. What can we do about it? We can think about it. We can put out the lights on buildings. We can stop the skyward projection. There’s a lot we can do.
We’re talking about a situation with a nocturnal animal. Its environment was opaque. It was dark. It was foggy. Now it’s hugely lit up. They’re attracted to that, as a lot of nocturnal animals would be. The answer to the question is that we can solve the problem. It’s not by putting an observer at every place where there are lights from industrial development. It’s by doing it effectively and incisively. If you take a look at chapter III of the report that we submitted in 1999, it will tell you exactly one way to do it. I am not saying it’s the only way. With four visits, one in each season, for about a week, I could give you good information about the offshore situation, but it’s impossible because we haven’t done that. We haven’t been allowed to do it.
The Chair: With that, I thank our witnesses very much their very interesting testimony and thank you, colleagues, for your questions.
(The committee adjourned.)