THE STANDING SENATE COMMITTEE ON ENERGY, THE ENVIRONMENT AND NATURAL RESOURCES
EVIDENCE
OTTAWA, Thursday, May 30, 2024
The Standing Senate Committee on Energy, the Environment and Natural Resources met with videoconference this day at 9:15 a.m. [ET] to study the subject matter of those elements contained in Division 28 of Part 4 of Bill C-69, An Act to implement certain provisions of the budget tabled in Parliament on April 16, 2024; and in camera, for consideration of a draft agenda (future business).
Senator Paul J. Massicotte (Chair) in the chair.
[Translation]
The Chair: My name is Paul J. Massicotte. I’m a senator from Quebec and chair of the committee. Today, we’re holding a meeting of the Standing Senate Committee on Energy, the Environment and Natural Resources.
Before we begin, I would like to ask all senators and other in-person participants to consult the cards on the tables for guidelines to prevent audio feedback incidents. Please take note of the following preventative measures in place to protect the health and safety of all participants, including the interpreters.
If possible, ensure that you’re seated in a manner that increases the distance between microphones. Only use a black approved earpiece. The former grey earpieces must no longer be used. Keep your earpiece away from all microphones at all times. When you aren’t using your earpiece, place it face down on the sticker placed on the table for this purpose.
Thank you all for your cooperation.
I’ll ask my fellow committee members to introduce themselves, beginning on my right.
Senator Miville-Dechêne: Julie Miville-Dechêne from Quebec.
[English]
Senator Cotter: Good morning. Brent Cotter, senator for Saskatchewan.
Senator Greenwood: Margo Greenwood, senator from British Columbia.
Senator Sorensen: Karen Sorensen, Alberta, Banff National Park.
Senator Cardozo: Andrew Cardozo, Ontario.
Senator Arnot: David Arnot, Saskatchewan.
Senator Wells: David Wells, Newfoundland and Labrador.
Senator Galvez: Rosa Galvez, Quebec.
[Translation]
The Chair: Today, the committee is continuing its examination of the subject matter of those elements contained in Division 28 of Part 4 of Bill C-69, An Act to implement certain provisions of the budget tabled in Parliament on April 16, 2024. For the first panel, we welcome Alexandria Pike, past chair of the National Environmental, Energy and Resources Law Section of the Canadian Bar Association. Welcome, and thank you for accepting our invitation. You have five minutes for your opening remarks. The floor is yours, Ms. Pike.
[English]
Alexandria Pike, Past Chair, National Environmental, Energy and Resources Law Section, Canadian Bar Association: Good morning and thank you for having me. I am the past chair of the Canadian Bar Association, and I have spoken to some of the senators who were considering this original legislation — the Impact Assessment Act — several years ago. I have practised in the area for over 20 years, and I have been part of the Canadian Bar Association for most of that time.
The Canadian Bar Association has over 36,000 members; it’s mainly lawyers, but also notaries, students and academics. We range right across the country, and we pride ourselves on the dialogue that we foster between provinces and territories. We’re a very diverse group.
We stretch to represent common interests, and our common interests are to really focus on improvements of the law for the administration of justice; that’s the general focus of the Canadian Bar Association. The National Environmental, Energy and Resources Law Section, of which I am a part and on whose behalf I am here today, focuses on energy, environment and resources law issues. Most of us are private practitioners, but our section also includes academics and non-governmental groups.
Throughout the last 15 years, the common theme that we have looked for — where there have been significant changes in environmental assessment and impact assessment in Canada — is to seek efficient, clear legislation that will help guide the process. When we look back at that history, the Canadian Environmental Assessment Act, 2012 — or CEAA 2012 — was a pretty dramatic shift from what we had prior to that time. That’s when we first saw the Project List being brought in. Before that, it was a triggers-based system.
That was a significant change, and the Canadian Bar Association has embraced that change and is accepting of the Project List, as it is in the Impact Assessment Act.
The changes that are being considered today with respect to the Impact Assessment Act build upon that. CEAA 2012 changed to the Project List and various other things about the regime. The Impact Assessment Act shifted but built upon that. Now we’re looking again to address the opinion of the Supreme Court of Canada and make further changes.
Our organization has been involved for that whole period in discussing these changes. We hope that we can help you this morning.
We are looking for standards that are transparent, that provide consistency, that show how mechanisms are going to work — so that people can anticipate and provide what’s needed and work within the system — and that also allow for timely analysis and determinations. We’re strong believers that there has never been a greater need at any time in Canada for a strong and functional environmental assessment system or, as it is now, an impact assessment system.
The transition that we’re going through to a lower-carbon economy is requiring tremendous action in many different areas of our economy, and that’s going to require development. This is bringing these pressures to bear, where climate change needs action, and the action that is needed needs evaluation before it comes ahead.
Trying to balance that is a really significant challenge, and we’re looking for a clear path forward for proponents, and also for those who want to participate in the system, however that might be. For stakeholders of all types, we look to ensure that the system works for them as well.
In terms of the specific amendments that are before you — and we can talk more about them during the question period — we think many of these amendments do provide necessary clarity and certainty. When we came and spoke to some of the senators back when the Impact Assessment Act was being brought forward, we said that we had particular concerns about uncertainty at that time. When you look at the Supreme Court decision, several of those points align. In many ways, we do welcome the efforts that are going into addressing some of these.
However, there are still a few concerns that we would like to raise. When we look at the designation power, which is separate and apart from the Project List that is at the back of the act, there is a power to designate things that aren’t on that list. We think a really serious look has to be given to that list, and that list has had a serious look. This is in amended section 9(2) of the Impact Assessment Act, where the minister has separate powers. When you look at the bottom of that list, there is a very broad discretion that is sort of thrown in at the end which we think raises uncertainty. We think that every time that you are saying, “And anything else the minister wants,” we really should think about what context that is within. We’re not trying to hamstring the minister, but there needs to be context around what they might decide to add. Proponents need certainty, and communities and stakeholders need to understand when a federal system is going to apply.
Our past submissions also focused on “one project, one assessment.” That is the issue about the federal-provincial system and how it is going to work. These are still challenges today. We have been trying for years and years to get substitution agreements in place and make these systems work. They are not functioning the way they need to in order to ensure that we have as efficient a system as possible. There is much more included here that is signalling when substitutions should be taken into account, and there are signals in the amendments that show when the federal agencies should step back.
However, this needs to happen at the implementation level. It is a very serious issue. The agency needs to be given the authority to call upon federal expertise and to support provincial processes where there are federal issues, without taking it over with a full federal impact assessment. That mechanism and structure might be more bureaucratic than legislative, but it really does have to be considered carefully.
The public interest test has been refined in the amendments. It has been narrowed, and we think it gives more clarity and will allow for more efficient processes. We applaud that. In particular, we are actually quite happy that the decision-making stage — amended section 60 of the Impact Assessment Act — is going to require mitigation to be taken into account before the determination is made. Before you are considering whether effects are significant, you have to look at how it might be mitigated. That is actually a throwback to CEAA 2012. We are glad it’s back in, because there is no use in going to the “significant” first and then looking at the mitigation afterward. Now you have created a situation where you are making a finding, yet you haven’t considered how you can avoid the effects. Putting it back in at the earlier stages is very helpful, and that has been done.
We also think the reintroduction of justification — that language that’s back in — in the public interest section is useful too. That is old language as well. That is from CEAA 2012. It’s back in because it gives a little bit more of an indication of the balancing. Instead of just saying that it has to be in the public interest, the effects have to be justified in the public interest. It just indicates a little bit more of the balancing that goes on.
There are some other things that we would bring your attention to. Some of these are language, but we’re concerned they will create uncertainty, so we ask that you just think about it. Under the public interest test and the factors that are in amended section 63 of the Impact Assessment Act, there is a discussion about impacts on Indigenous communities and on Indigenous rights, but the effects are treated differently in that section; the language around them is different. We don’t know why that is, so please consider that. Why are we not talking about significant adverse effects with respect to Indigenous communities, but we are talking about them with respect to Indigenous rights?
We think this act should only be dealing with significant adverse effects. There is a fair bit of language that has been put into the act to show that we’re not dealing with negligible effects, so why not make sure there is more consistency?
The term “sustainability” is also used in the public interest test, and we understand why it is there, but there are many different ways to evaluate sustainability, and there has to be a federal way of doing it. There has to be a way of doing it with respect to federal projects and federal effects, and that’s what should be considered in this test.
The other thing that isn’t included here — and we wonder how it will be implemented — is the targets that the budget had announced. It had talked about a five-year target for federal impact assessments, and a two-year target for the issuance of federal permits where the project is being dealt with by a provincial regime or a territorial regime. In those cases, those timelines haven’t been built in here, and we query where we will see those come up.
Finally, little language inconsistencies matter. We talk about “non-negligible” and “significant.” Do we really need both? Are we creating confusion when we do that? Please think about simplicity when you are reviewing this. There is also language about the extent of the significance, but isn’t it rather the context of the significance? I’ll leave it to you to think about that. But if something is significant, it is significant. Is it significant often? Is it only significant in particular cases? Perhaps.
Those are a few of our high-level comments. I must say that we just found out about this opportunity at the end of last week — perhaps it’s because the Canadian Bar Association has just had its government relations person resign. I am sorry that I don’t have a written brief for you. I did confer with several past executive members of the section before I came. We have been talking about this. We were at a conference together talking about this a month ago. We have been in touch since the amendments have come out.
I am open to your questions. Thank you.
The Chair: Thank you. We’ll proceed with the questions.
Senator Arnot: Thank you very much for your presentation. You have mentioned a number of issues of great concern. You want to focus on the clarification of some uncertainties that you have raised, and you are looking for simplicity in the act so that it reads well and will be much more workable.
Do you have a set of recommendations for amendment that you want us to consider? Are you thinking of writing this in a document that you would send to us? In other words, do you have specific suggestions for amendments to reach the goals of clarification, simplicity and removing uncertainty, which is central to what you are saying? Do you have something that you are going to give us?
Ms. Pike: I had hoped to provide you with a bit more on the specifics, and I can certainly undertake to do that. It will have to go through our executive process. I wasn’t able to do it for today, but we can certainly do that.
Senator Arnot: I think this is important: If the Canadian Bar Association has suggested amendments to reach the goals that you have talked about, we should know what they are. Thank you very much.
Ms. Pike: Thank you.
The Chair: Can I ask what kind of delay you foresee in getting to us your comments and suggestions?
Ms. Pike: I would hope that I could get them to you early next week.
The Chair: That’s good. We’re reviewing it for finalization early next week, so that would be very good.
Senator Wells: Thank you, Ms. Pike, for helping us on this review.
I want to go to your important points about “non-negligible” and “significant,” and I know that in law it is always nice to quantify things because what might be significant to one might be not so significant to another. I think about major projects that might have a deleterious effect on the environment. To an environmentalist, that might be extremely significant, and, to a proponent, it might be not so significant.
Have you seen things that are challenged on that basis, and how they are dealt with in law? I know that we operate on a precedent system, so lawyers often go to precedent. How do you do that on something that’s non-quantifiable?
Ms. Pike: In impact assessment, how it primarily works is you evaluate the degree of the effect, and you do the balancing as to whether it is justified. But any mitigation you can do is typically required, and that becomes a working project after the approval. That is very important work, and it will often happen at the permitting stage in the details of the individual permits, but there may also be requirements through the actual impact assessment.
This early decision and the conditions and the concerns that are built into the determination will guide all of the work that happens if the project is approved. This is a gating decision that should only be focused on big, significant effects, and anything other than that should be addressed through the management of the systems in the project implementation.
Senator Wells: Thank you for that. You said these things would be done after approval.
Ms. Pike: If it is approved.
Senator Wells: Yes. Assuming it is not approved, then there is no after-approval.
What about using some of those requirements that are less quantifiable or non-quantifiable as a condition of licence, which would be an after-approval event, and you would deal with the regulator and would have to satisfy certain conditions as a condition of licence?
Ms. Pike: Absolutely. There is ongoing reporting that is required — reporting to stakeholders. There are many mechanisms that allow for that oversight longer term, through the regulator and through the community.
Senator Wells: Right. I do know that is what is done in the Newfoundland offshore. They do almost everything as a condition of the licence, because that’s a big hammer.
Ms. Pike: Exactly.
Senator Wells: Thank you.
Senator Cotter: Thank you very much, Ms. Pike, for being here.
The main reason we are here again studying this bill is the Supreme Court of Canada’s decision last October that found substantial sections of the Impact Assessment Act — which you spoke about earlier — to be unconstitutional. Other than for that reason, we would be moving forward with the application of the Impact Assessment Act as it had been written.
The Supreme Court found two substantial dimensions of the scheme to be unconstitutional. One was the designated projects dimension, and the other was the broad impact of the language around effects on federal jurisdiction.
I am interested in whether the Canadian Bar Association has a constitutional law view as to whether those unconstitutional aspects of the act have been adequately addressed in constitutional terms. You are far more knowledgeable than I am about the intricacies of the process, as are my colleagues here. But have we solved the constitutional question?
The second dimension of it, regarding effects on federal jurisdiction, is articulated by the Chief Justice for the majority of the court as going well beyond federal jurisdiction. He chooses that language. It appears to me that the change with respect to effects on federal jurisdiction, which this amendment generates, is the introduction of the phrase “non-negligible adverse effects.” It seems to me that “adverse” was assumed — that’s what we’re talking about — so the change is to try to describe effects on federal jurisdiction that are non-negligible. The list of the categories of effects seems to me, as I read the previous legislation and this amendment, to be almost identical. It strikes me that the way in which we get to the constitutionality of its effects on federal jurisdiction, by the Government of Canada’s line of argument, is raising the stakes from the word “effects” to “non-negligible effects.” It seems to me that it’s an unusual choice of words — Senator Wells channelling his insightful law student son on interpretation of language here, I think, draws our attention to that.
Does the Canadian Bar Association have a view on whether that does the trick with that aspect of the unconstitutionality of the previous law?
Ms. Pike: Thank you for the question.
With respect to unconstitutionality, to deal with the designation piece, the only issue we have with the designation piece is that last little piece that I had mentioned in my opening comments where, under section 9 of the Impact Assessment Act, the minister has the power to designate, and, when we come down to proposed section 9(2)(e), it’s the factors that the minister can consider in deciding whether to designate. The language at the top is that the minister is of the opinion that carrying out the physical activity “. . . may cause adverse effects within federal jurisdiction or direct or incidental adverse effects . . . .” So you have your whole federal built in up top.
When you come down to the factors that will be considered, they are primarily federal jurisdictional issues that they are to consider. At the end, it’s any other factor that the minister considers relevant.
That is our only concern with respect to an opening kind of crowbar on constitutionality. The minister should only be concerned about matters that are of concern for the federal minister. If we can tie that down, I think that would be our only concern with respect to designation.
In terms of the federal effects, when you compare what used to be there which is “effects within federal jurisdiction” versus what is there now which is “adverse effects within federal jurisdiction,” this is a question of trying to put belts and suspenders. The regime that was there before had the language, but it wasn’t as tightly worded or as constraining, and there were concerns that it would be misused. This is putting a tighter regime forward because of the language around “adverse” and “non-negligible,” as you’ve stated.
In terms of the difference between the two in the list, where they have taken out a change that would occur in a province other than where the physical activity existed, that is a big change. I know it’s only one item on the list, but that is a significant change when it has been left out now. I think we are looking at factors that are within federal jurisdiction in the new definition.
What I am still wondering about, though — and what I had thrown into my comments at the end — is this: Let’s think about this language. When you use “non-negligible,” you’re not just looking at significant adverse effects, but you’re also adding a whole mushy middle ground, and it’s a big middle ground. “Negligible” is way down on the bottom end. “Significant” is up here. “Non-negligible” is everything from here right through. Is that really necessary in a federal regime? Federal permits will capture anything that is within that realm, from non-negligible all the way through. If there is a federal permit requirement, it will catch and address those things.
The Impact Assessment Act, in our view, should just be focusing on the “significant.” We understand that there is perhaps an objective of catching anything that could be meaningful and evaluating it first, and then working toward significance. I think that’s why the language here is “non-negligible,” because they want to capture anything that is not absolutely de minimis, look at it and then move to the “significant.”
We think that a lot of that can be sifted out by the proponent early on to make this process more focused. There should be some reporting of non-significant factors so that people who have concerns that something may have been missed can sift through and say, “Wait a minute. I don’t agree with the determination of what is significant here. I think these other things are significant.” There should be ways to capture that without creating this middle ground of non-negligible.
I have to tell you that the whole discussion I just gave you is my interpretation. We have talked in the section about non-negligible being the middle ground. How you would deal with it and come with a different system is my idea, not the Canadian Bar Association’s idea, in terms of reporting what is not significant and letting people evaluate that themselves.
Senator Cotter: For me, one of the questions here is not just how insignificant, or non-significant, the adverse effect would be, but it’s the wide range of adverse effects that the minister is able to take into consideration, including pieces of language that are relatively soft — particularly in proposed section 2(g) of the new amendment to the Impact Assessment Act, which is “a non-negligible adverse change to a health, social or economic matter that is within the legislative authority of Parliament . . . .”
It’s a big or a small adverse impact, but there is a wide range of things that the minister is able to take into account that may have been troubling to the Supreme Court. It’s not just depth but width, if I could put it that way, and it doesn’t appear to me that the width question has been addressed. I don’t know whether that is the determinative issue on constitutionality, but it strikes me as one of the factors where, if you are reading a long list of things with only a modest amount of depth that is required here, that might have been seen as overreach from the Supreme Court’s point of view.
Ms. Pike: Certainly, any time you have a broad catch-all at the end of something like this, you do have to be very aware of it and focused on it. We had understood that the factors that would be considered would be closely scoped to be within federal jurisdiction. We would expect that to be the case.
Senator Cotter: Thank you.
Senator Cardozo: Thank you, Ms. Pike, for being here and for your presentation and discussion so far. It’s very helpful.
I want to take you back to square one on climate change. I was part of a delegation two weeks ago to the U.S. Congress. One of the representatives there gave us a little lecture about how the forest fires and wildfires had nothing to do with climate change, but were all about forest management. I talked a bit about our geography and how it might not be that simple.
Not only for climate deniers but also for people who haven’t been part of the discussion all this time, how would you explain — if I can take you back to square one — what we’re doing here? How do we explain to people what impact assessment is, as well as what we need to do and what the minister needs to do when it comes to climate change?
Ms. Pike: Thank you for that question.
When I first started learning about environmental assessment and impact assessment, it was really about protection, because we’re a developed country and we didn’t always have good practices in the past, but now we’re going to ensure good practices going forward, and every decision we make should be made very carefully. I certainly still believe in that.
However, now we’re facing urgent demands and we’re having to develop much more quickly. Taking 10-plus years for development is going to cause more environmental issues than what these projects that we’re considering might cause. That’s not the case with every project that will come forward. I’m not suggesting that. But there will be many projects that will come forward that will require impact assessment that is tied to the natural resources that we’re trying to take advantage of so that we can shift to a low-carbon economy.
In that balancing, I think we’re no longer in the state where we’re seeking perfection. We’re in the state where we’re balancing very serious and urgent concerns. We should never compromise critical habitat. We should never compromise Indigenous rights where we haven’t had full consultation, engagement, accommodation and consent.
We’re going to have to make tough decisions in light of these demands. I think our system has to work for that. We’re not dotting Is and crossing Ts.
Senator Cardozo: What is your response to people who feel that our economy is in dire straits for a number of reasons, and we don’t have time for environmental assessment, so people have to get on board and we have to get moving on major or minor projects?
Ms. Pike: I think we can do both. We have very smart, capable people who can evaluate the effects that we need, and who have experience in mitigation and can plan projects well. I’m not saying we will get it perfect. We can mitigate very serious effects in many cases.
We can also evaluate the habitat and Indigenous rights. We have to do that work. When we talk about a five-year schedule, that’s the kind of schedule we can work with. On that basis, you can still get very good science, community consultation and Indigenous engagement. That’s critical to our system.
Senator Cardozo: The cost of not doing that is?
Ms. Pike: You’re risking damaging the environment badly, especially groups who have been under-represented in our economy for years. You are risking harming territory that you may not be able to recapture later.
The balancing that I was talking about has to be done. It doesn’t need to happen over a decade or more. It can happen over much shorter periods of time.
We are very experienced in mining projects. We know how to work to minimize their effects. We are very good at mitigating risks to species at risk. We can do that work. We have people who are ready to do it hard and fast in order to get where we need to go on the low-carbon transition.
Senator Galvez: Thank you, Ms. Pike, for your intervention.
I would like to confirm the answer to my colleague Senator Cotter that the amendments proposed will solve the issue with unconstitutionality. Is that what you said?
Ms. Pike: I believe so, yes.
Senator Galvez: That’s one thing.
With respect to the language that you are talking about, it’s the “non-negligible” versus the “significant.” You said that it’s too huge and shouldn’t be like that.
Regarding this area of evaluating the impacts due to the changes that a project made in the system, some are local and some are on a larger scale. I will use an example to illustrate this issue.
Take the Site C dam. Site C is in British Columbia. It is using the water from the Slave River in Alberta. It needs to give electricity to the oil sands. This is the water giving water to the Mackenzie watershed. You have three jurisdictions, each with a different requirement for the impact assessment.
Isn’t it the role of the federal government to come and ensure that everybody has fairness and justice? I’m talking about water. We could go down to a very toxic substance — the oil or mercury — that affects the ecosystems and people, both Indigenous people and Westerners.
We cannot have general language to say this is non-negligible and significant, because it depends on what type of issue, factor or indicator we are measuring. How do we solve this legally?
Ms. Pike: When factors are considered, we certainly are looking at local and regional. We’re also looking at cumulative. Absolutely, all of those factors need to be considered.
If it’s within federal jurisdiction, the federal government should absolutely be involved. Cumulative effects do need to be taken into account. The mechanisms that are in place in terms of looking at those regional effects are very important. We haven’t suggested that be taken out of this.
We do think that evaluating those types of effects can still be done in terms of the significance. The significance can be locally on the species, or locally with respect to traditional territory. It can also be regionally. It can also be cumulative on a much broader scale. Absolutely, that significance can be evaluated on all of those levels.
The Chair: If I could interject, Ms. Pike, and bring in more of a business perspective, your skill set is very large, I’m sure. I wouldn’t mind you commenting on the following: When you look at the number of projects being discussed, there are many things going on. I share your optimism that we can get there if you want to get there.
Yet, when you compare it to the Organisation for Economic Co-operation and Development and other countries, we are slow in getting projects approved and done. What are your comments? Why is that the case? Is it bad faith — people looking for a fight or dispute — and a lack of good faith to work on it together and do it faster, but also more complete without these skirmishes? What are your thoughts on that?
Ms. Pike: We do struggle with our federal-provincial system and the way environment is spread between. We really do struggle with that.
When we talk about substitution in this legislation — and as I said in my opening comments — we need to make sure that is working. If the federal agency can come in and determine that the federal aspects are not predominant, and the permitting system will allow for federal effects to be addressed, then we would support substitution in that case. We think that should be used more. We think that will help streamline.
This is me speaking personally, not as the chair: My firm prepares at doing business in Canada legal briefings to international clients who are considering investment in Canada. The environment section takes a lot of that — much more than it would in many other countries. That’s because of our jurisdictional issues.
We’re not trying to change the Constitution. We’re proud of what has been built in this country, maintaining these regional identities and interests. We really need the federal government to work hard in cooperation with these different jurisdictions.
The messaging in here is clear. The implementation is going to have to be serious to make a change. We have not seen changes. Much of this substitution has been around for a very long time. It has not been used properly and fully. We are looking to change that.
The Chair: Thank you.
Senator Arnot: You have touched on this before, but I would like you to maybe amplify it. Considering the intersection of environmental law and Indigenous rights, how do you think the amendments in Bill C-69 address the concerns of Indigenous communities? What improvements might still be needed?
Ms. Pike: The Canadian Bar Association has the Aboriginal Law Section, and I have not conferred with them, but I did speak with them about this at a recent combined conference with many members from that section. I think that the Impact Assessment Act is already quite protective, even before these changes. I think it does put these issues front and centre in terms of Indigenous interests, rights and knowledge, and I think that is maintained here, as it should be. I don’t think that these amendments are compromising that.
Has enough been done, and have Indigenous communities had the opportunity to fully engage on these? Perhaps not. If we look at the projects that have come forward under the Impact Assessment Act, we have some examples of Indigenous engagement. I think we’re going to see much more, and I think the platform for that engagement is there. We’re getting better at that all the time, and we’re ready for the type of engagement that is anticipated here. I don’t think further changes are needed on that.
Senator Arnot: Thank you. You talked about an anomaly with perhaps two different measurements applying to Indigenous people and First Nations. What would you say about that?
Ms. Pike: That may just be a minor drafting point. I am not as clear on what might have been considered there. If you pull out amended section 63(a), it says:
(a) the impact that the effects that are likely to be caused by the carrying out of that project may have on any Indigenous group and any adverse impact that those effects may have on the rights of the Indigenous peoples . . . .
We should be looking at the defined term that we have spent so much time and attention on: the adverse effects within federal jurisdiction. That’s really what we should be looking at here — the provincial authority that will consider provincial effects under their jurisdiction. This should be the adverse effects within federal jurisdiction.
I am not sure why there is that disparity in that language; I, and the members of the Canadian Bar Association executive, think we should go back to the federal adverse definition that’s been created in these amendments.
Senator Arnot: Thank you very much for that observation. If there are any specific amendments that you propose pursuant to that, I would really like to see them. Thank you very much.
Ms. Pike: We’ll include them in the notes.
Senator Galvez: According to some non-governmental organizations, the amendments go beyond solving this constitutionality problem. For them, it seems that the federal government is renouncing its powers with respect to what I was talking about before, which is the significant impacts that go beyond one single province or territory. With time, this is becoming more and more evident because of the pollution of the atmosphere, and because rivers get contaminated and then go through other provinces. It is the same thing for agricultural soils and all kinds of pesticides, for example, which go through many provinces.
Shouldn’t we be using the best environmental impact assessment guidelines instead of looking for the substitutions? Some provinces and some territories are really very bad at impact assessment.
Ms. Pike: That is a very interesting question, but I think much of it has been decided by the Supreme Court. The Supreme Court has been very clear that environmental impacts in a particular province or territory is the jurisdiction of that province or territory. They really do, in this opinion, refer back to the greenhouse gas decision. Their reaction here — and why this is such a strong decision for the Supreme Court and is very forcefully worded — is because they are very unhappy with the federal administration on greenhouse gas.
They confirmed the constitutionality of the greenhouse gas legislation and that regime, but that regime is a backstop, and it does not involve working at the building code level or working at the gas stations in the province. It doesn’t work at that base level. It is a backstop to ensure that our international commitments are met on greenhouse gas emissions.
The same has to be thought of, perhaps, on this. On the interprovincial, with the cumulative effects, we should perhaps be considering this more from a backstop situation, and, where we’re looking at the significant effects, we’re only going to get involved when we’re at this end, so we are going to have to trust that the provinces and territories are going to work on the middle. But if they don’t do their jobs, then it will end up in the lap of the federal government, and the requirements that the feds have in certain areas — not in every area — should protect on fisheries and on greenhouse gas. We should have comfort that the federal regimes can work on those levels.
If we’re talking about some type of air emission that is not greenhouse gas, that doesn’t get caught at the federal level. We will have to have the other province or territory that is affected come forward and say, “You are impacting our territory; we need to get involved here, and we’re going to start getting involved.” We have seen some of that pushback between provinces, and I think that is the way our regime should work. It is how our Constitution is meant to work.
The Chair: Thank you very much.
Senator Tannas, thank you for joining us. Do you have any comments or questions?
Senator Tannas: I don’t. Thank you.
[Translation]
Senator Miville-Dechêne: I have a brief question to follow up on Senator Galvez’s question.
I understand your constitutional arguments based on the Constitution, the division of powers and what the Supreme Court has said in that regard. However, it’s 2024 and greenhouse gas emissions are spreading across Canada. Can the division of powers be interpreted in such a historical way, given that dangers to the environment are not just national, but also international in scope? I say this as a senator from Quebec who generally believes in the division of powers. However, I feel that something here goes a bit beyond all this. It may be a philosophical question. I don’t know what answer you can give us.
[English]
Ms. Pike: Yes. I am sorry that I am responding in English. These are concerns; we have to be vigilant, and it takes a lot of work to track this and look at it. We have enforcement regimes in provinces and territories across the country, and we should be ensuring that they are robust. We need those regimes to work well. That’s not the role of the federal government, though. That really is the role of the provinces and the territories.
In terms of the federal government evaluating based on climate change commitments, absolutely, but for the actual health impacts that span beyond the impacts of contaminants getting into water, unless it is affecting a federal authority, then it is a provincial and territorial matter.
If we lived in another country that had a different constitutional structure, then we would be able to do more at the federal level, but we don’t. If we believe that there are provinces and territories that aren’t pulling their weight, and aren’t looking after their people and their resources, then there are ways to shine light on that. The federal government has a strong tool on fisheries, for example. With respect to fisheries, I think it is the strongest environmental law we have in Canada. In our Maritime systems, our fisheries habitat and our species at risk will be protected through the regimes that you are involved with.
Through protecting traditional territory, the federal government can have a significant role. But we have to remember that beyond that, when it comes to particulate matter in the air, that is going to be local, not federal.
The Chair: Ms. Pike, thank you for being with us today. We were pretty rough on you. We didn’t let you slip up.
Ms. Pike: On my toes.
The Chair: Your breadth of knowledge was inspiring, and your approach was very welcome. Thank you for being with us.
Ms. Pike: Thank you.
The Chair: We look forward to your written comments.
Ms. Pike: Yes, we will work hard to get you that early next week. Thank you.
The Chair: Thank you very much.
[Translation]
For our second panel, we have with us Joshua Ginsberg, lawyer and director of legislative affairs at Ecojustice Canada, and Anna Johnston, staff lawyer at West Coast Environmental Law. From the Assembly of First Nations, we have Kluane Adamek, regional chief, Yukon; Graeme Reed, senior advisor, Environment, Lands and Waters Branch; and Andrea Lesperance, senior policy analyst, Environment Sector.
Welcome to the committee and thank you for accepting our invitation. I must warn you that we’re a bit pressed for time. Please be specific when answering questions. I’ll help you if needed. The same goes for those asking questions. Thank you. You’ll each have five minutes for your opening remarks. Mr. Ginsberg, let’s start with you.
[English]
Joshua Ginsberg, Lawyer and Director of Legislative Affairs, Ecojustice Canada: Chair and senators, thank you for the invitation to appear before you today to discuss proposed amendments to Canada’s impact assessment law. I am grateful for the opportunity to meet with you on the ancestral, unceded territory of the Algonquin Anishinaabe people.
I am a lawyer with Ecojustice, an environmental law charitable organization with offices across Canada. We have participated in every constitutional case regarding federal environmental jurisdiction since our founding in 1991, including the recent Supreme Court Reference re Impact Assessment Act in which I was counsel.
Senators, buried in the government’s proposed amendments to the Impact Assessment Act is a quiet retreat from an important area of federal jurisdiction, and that is Canada’s responsibility to assess and mitigate significant transboundary air pollution. The Supreme Court did not mandate that retreat in its recent judgment on the Impact Assessment Act. We understand, of course, the need to be scrupulous in implementing the Supreme Court’s directives. But we can do that without abandoning federal authority that is necessary to protect Canadians and uphold our international obligations. We hope the Senate will ensure that impact assessments remain a meaningful tool to protect Canadians from harmful pollution.
In my brief comments, I will explain what the Supreme Court did and did not say about transboundary pollution, as well as why it is important and constitutional for the federal government to regulate significant transboundary air pollution of major projects, and how our proposed amendments, which you should have before you — or you will have it shortly after translation — affirm that particular area of federal jurisdiction within the limits that the Supreme Court set.
The Impact Assessment Act contains a list of the effects within federal jurisdiction that ground its decision making. One of those areas is interprovincial and international effects or, in the words of the statute, it’s a change to the environment that would occur:
(ii) in a province other than the one where the physical activity or the designated project is being carried out, or
(iii) outside Canada . . . .
That language is broad and encompasses marine and freshwater pollution, air pollution and, indeed, every other kind of environmental effect that crosses borders.
It is worth noting that language did not originate in the Impact Assessment Act. It was copied and pasted, so to speak, from the old Canadian Environmental Assessment Act, 2012, which was passed under the previous Conservative government. Evidently, governments of every stripe considered air pollution and water pollution to be within Parliament’s competence, and to be an important consideration for environmental assessments.
That makes perfect sense, since there is no dispute that Canada has jurisdiction over marine and freshwater pollution — the Supreme Court has confirmed as much, including in the recent Impact Assessment Act reference — and Canada has been regulating transboundary air pollution for decades under the Canadian Environmental Protection Act, which has been constitutionally tested and upheld.
If jurisdiction over these areas is so clear, what was the Supreme Court’s concern? It was not the existence of federal jurisdiction over air or water pollution; rather, it was the broad language of the definition. The Supreme Court said the definition lacks:
. . . specificity as to the type or scale of the “change to the environment” that is said to be a federal effect. . . .
What is the fix? The fix is not to deny that transboundary pollution is an effect within federal jurisdiction, but to be clearer about the kinds of pollution and the scale of the pollution that make it federal.
Pollution is federal when there is a “provincial inability,” in the legal jargon, to address it. As the Supreme Court explained in the Greenhouse Gas Pollution Pricing Act reference, this means that the failure of one or more provinces to cooperate would prevent the other provinces from successfully addressing that pollution, and then a province’s failure to deal with that pollution within its own borders would lead to grave extra-provincial consequences.
The Supreme Court jurisprudence has consistently reflected the view that interprovincial and international pollution is constitutionally different from local pollution, and that it may fall within federal jurisdiction. This is because the provinces, acting alone or together, can’t sufficiently address that kind of threat.
I want to give you a recent example related to transboundary air pollution. Recently, a multinational corporation proposed to build a cement plant on the shores of the Ottawa River near L’Orignal, Ontario, which is just a few kilometres from the province of Quebec, and 70 kilometres upwind from the city of Montreal. That plant would emit 20 tonnes of pollutants per day, including smog-causing nitrogen oxide. Although the plant would be in Ontario, Quebecers would bear the brunt of that smog given the prevailing westerly winds that would carry it their way. Only federal oversight can ensure that any failure to control those emissions does not harm Quebec, which has no regulatory control over the project.
I will pause there on that point, and I can deal with the rest in the questions. Thank you.
The Chair: Thank you very much. Ms. Johnston, please proceed.
Anna Johnston, Staff Lawyer, West Coast Environmental Law: Thank you to the committee for the opportunity to present. I’m also grateful to the Algonquin Anishinaabe Nation on whose unceded territory we are gathered.
I’m a staff lawyer for West Coast Environmental Law, a public interest organization dedicated to protecting the environment through law. I also sit on the Minister’s Advisory Council on impact assessment, and I co-chair the Environmental Planning & Assessment Caucus of the Canadian Environmental Network. My areas of expertise are impact assessment, constitutional law, climate and biodiversity.
Mr. Ginsberg walked you through our submissions and our joint brief on why we believe transboundary air pollution should be kept in a significant way in the Impact Assessment Act.
I am going to step back and talk about some of the other amendments the government has proposed in Bill C-69 and the role of federal assessment in responsible decision making more broadly.
The committee heard from witnesses on Tuesday who argued that the amendments to the Impact Assessment Act don’t go far enough. With respect to those colleagues, in my opinion, the amendments go beyond what the Supreme Court of Canada said must be done to bring the act into alignment with the Constitution. What’s more, they will compromise the federal government’s ability to make informed decisions that protect Canadians, respect Indigenous rights, and ensure Canada does its part in addressing the climate and biodiversity crises.
For one, they unnecessarily constrain cabinet’s ability to extend timelines. I appreciate there has been much discussion and desire for timeliness in impact assessments, particularly for projects that will be important to the energy transition, as Ms. Pike discussed this morning. But the reality is that Canada has constitutional obligations to consult Indigenous peoples and to respect their rights. Courts have said time and time again that consultation must be meaningful. It is the simple truth that one side of the conversation cannot unilaterally set a time limit on meaningful dialogue, and, as any good lawyer will tell you, it will almost always be cheaper and faster to get it right the first time than to have to go to court. If I were Canada’s lawyer, I would have advised it that hamstringing the federal government’s ability to meaningfully consult Indigenous peoples is more risk than it’s worth.
The second issue with the amendments is that they allow for too much reliance on provincial regulatory processes that fall below the standard that Canadians should expect of decisions. This is not at all a diss on provincial processes; it is a reflection of the reality that there is a fundamental difference between impact assessments and regulatory decision making. Regulatory processes are more akin to check-box exercises: Will you use this type of equipment? Will you locate your project X number of metres away from water bodies? You get your permit.
Impact assessment is an internationally recognized good practice for environmental decision making for good reason: As a planning tool, it works with proponents to figure out things like the following: Where is the best place for the project? What is the right pace and scale to maximize benefits, minimize impacts and ensure that communities are protected? A regulatory permit to turn a lake into a tailings pond might require a proponent to use a liner to help ensure that toxins don’t seep into bodies of water. An impact assessment might identify other ways of dealing with tailings in the first place so that they don’t have to destroy an entire lake.
The Impact Assessment Act already allows the minister to substitute provincial assessment processes for federal ones. Substitution has been a standard practice in my home province of British Columbia since 2012. The amendments in Bill C-69 go further and will allow officials to rely on provincial regulatory processes that fall short of the mark. These amendments aren’t trading apples for oranges; they are trading a well-balanced meal for a PowerBar.
As much as I would like to ask you to amend Bill C-69 to correct these issues, I recognize that we are talking about a budget bill and that amendments should be judicious, so we have not asked for amendments to correct these issues that I’m bringing to your attention. Instead, we’re simply asking that this committee consider an observation that the amendments may end up arising in unwarranted issues down the road that the federal government should consider. We have, of course, recommended amendments considering greenhouse gas emissions and significant transboundary air pollution. We would be pleased to answer questions on any of these issues.
The Chair: Thank you very much. Kluane Adamek, please proceed.
Kluane Adamek, Regional Chief, Yukon, Assembly of First Nations: Hello.
[Indigenous language spoken].
My name is Kluane Adamek, and I am a citizen of the Kluane First Nation in the Yukon Territory. I am the elected Yukon regional chief, having served since 2018. I currently carry the portfolios for the environment, water stewardship and, of course, climate change.
I want to thank and acknowledge Ta’an and Kwanlin Dün, the traditional territories where Whitehorse is located in the Yukon. I also want to thank the committee for the invitation to share perspectives of the Assembly of First Nations on Division 28 of Part 4 of Bill C-69. In short, we’ll focus on three areas, each of which is elaborated further in our technical submission, which has also been submitted to you as well.
First Nations have participated overwhelmingly in the Impact Assessment Act, and, to that end, we want to maintain those protections in the initial act. Regarding First Nations participation in the creation of the Impact Assessment Act, it is really important to recall the context through which First Nations have not always been participants in the development, drafting, crafting and implementation of federal legislation. When we look back on Bill C-69, we welcomed that opportunity to be incorporated, including mandatory consideration of Indigenous knowledge, assessment of impacts on rights and opportunities for First Nations to lead our own impact assessments.
When the Supreme Court of Canada issued its opinion, First Nations were concerned, of course, that these hard-fought concepts would be entirely lost. Any proposed amendment must not weaken the act for First Nations, especially given the court’s confirmation of duty to ensure the well-being of Indigenous peoples and the commitment to the United Nations Declaration on the Rights of Indigenous Peoples and, by extension, the United Nations Declaration on the Rights of Indigenous Peoples Act.
In terms of additional considerations, we look to legislative development, as I mentioned, in the era of the United Nations Declaration on the Rights of Indigenous Peoples Act. The Impact Assessment Act was the first piece of legislation that recognized the UN declaration. Since that time, Canada has now adopted the United Nations Declaration on the Rights of Indigenous Peoples Act into law. The national action plan that supports the United Nations Declaration on the Rights of Indigenous Peoples Act is committed to developing tools to ensure consistency with the declaration. However, these tools have not yet been developed or adopted. As a result, the Impact Assessment Act has not benefited from this analysis, and thus, we see this as such a key opportunity to ensure compliance with the UN declaration and to ensure that proposed amendments are consistent with the government’s commitments.
We urge you to use this legislative opportunity to take tangible steps forward on implementing the UN declaration compliance, and to ensure that any proposed amendments and regulations be consistent with the United Nations Declaration on the Rights of Indigenous Peoples.
The third area I will speak to is regarding proposed areas of amendment. The First Nations-in-Assembly, otherwise known as the Chiefs-in-Assembly — 630-plus chiefs from across the country — have passed numerous resolutions calling on the Assembly of First Nations to work with Canada to ensure the legislation respects First Nations treaties, rights, title and jurisdiction, and recognizes responsibilities to their traditional territories. We urge you to engage directly with rights holders and titleholders in making changes to any piece of federal legislation that may impact First Nations treaties, rights, title, jurisdiction and responsibilities to our traditional territories.
Inevitably, this conversation grows to one about First Nations jurisdiction and decision-making power. The use of delegated authority for co-administration of federal impact assessment through section 114 agreements in the Impact Assessment Act was a positive step forward from past environmental assessment legislation. However, it fails to fully implement First Nations’ inherent jurisdiction over our lands and waters or our right to own, use, develop and control our territories. The Government of Canada must explore opportunities to move past co-administration of federal impact assessment to recognize First Nations systems.
Specifically, the Impact Assessment Act should contain statutory affirmation of First Nations jurisdiction over lands and waters, and express reference to First Nations decision-making powers. Placing First Nations governments and rights holders at the centre of decision making of the Impact Assessment Act would achieve a higher level of cooperation and coordination by requiring alignment with impacted First Nations on both outcomes and process. The inclusion of Indigenous knowledge in the Impact Assessment Act was another step forward from previous environmental assessment law. However, there are two outstanding issues raised by First Nations that were not incorporated into the legislation.
The first is acknowledged by the expert panel, which is that First Nations must have control over Indigenous knowledge at all times. The current version of the act allows for non-consensual disclosure of Indigenous knowledge in certain circumstances. This non-consensual disclosure of Indigenous knowledge can have detrimental impacts on First Nations, our communities and individuals, and undermines trust in the government.
The second issue is a lack of clarity on requirements to consider Indigenous knowledge in assessment and decision making with regard to projects. Enhanced specificity in the mandatory requirement to consider Indigenous knowledge would provide a foundation for improved engagement and strengthen methodologies for assessment. The government has proposed many amendments, and we direct you to our technical submission, as mentioned, for further recommendations.
The last point is about the climate change reality. The First Nations-in-Assembly affirmed the declaration of a First Nations climate emergency and endorsed an Assembly of First Nations National Climate Strategy last July. Given this, we are particularly concerned with the proposed removal or weakening of references to climate change throughout the act. Climate change is real, and we must acknowledge this. Climate change disproportionately impacts First Nations, and we must be positioned to be leaders in addressing this climate crisis.
Canada has made international and domestic commitments to drastically reduce greenhouse gas emissions, and it’s imperative that all aspects of government take all necessary measures to do so. You have an opportunity, senators, right now, to help us move forward in this together toward a future where First Nations are considered equal partners in all major resource decisions. Thank you. Gùnáłchîsh. I look forward to questions and dialogue with you.
The Chair: Thank you very much. We are anxious to get some questions in.
Mr. Reed and Ms. Lesperance, do you want to add to the presentation? No. Thank you very much. Now we will go to the question period.
[Translation]
Senator Miville-Dechêne: My question is for Mr. Ginsberg and Ms. Johnston. I’m having a hard time understanding the significant difference between your interpretation of those amendments — also shared by the first witness, Alexandria Pike — and the Supreme Court’s interpretation.
You seem to be saying that transboundary greenhouse gas pollution falls under federal jurisdiction and that the federal government can intervene from the outset when conducting impact assessments of this pollution. Can you explain why these two interpretations are so different?
[English]
Mr. Ginsberg: Thank you for the question. I hope it’s all right if I respond in English.
Senator Miville-Dechêne: Yes.
Mr. Ginsberg: I understood my friend from the Canadian Bar Association — of which I’m a member, but for which I don’t speak — to say that the amendments render the act constitutional, which may indeed be true, but our point is that they go further than necessary in doing that, and they omit important areas of federal jurisdiction that the Supreme Court did not bar in rendering its judgment.
You mentioned greenhouse gases. It’s an opportunity for me to address that specifically with respect to cross-border pollution. Of course, greenhouse gases always cross provincial and, indeed, national borders in that they contribute to climate change. But the Supreme Court was very clear that Canada can’t claim jurisdiction over all greenhouse gases. For instance, Ottawa will not be regulating our fireplaces or toaster. That is overreach. But there is a federal role with respect to the provincial inability to deal with massive emissions that are so significant that they would prevent Canada from meeting its climate targets and cause damage in provinces as a result of the climate change.
That’s why we propose that the Impact Assessment Act should be amended to clearly define federal jurisdiction as limited to significant transboundary air pollution of the kind that would prevent Canada from meeting its climate targets. Senators, to be even more cautious here, our proposed amendments to sections 7 and 64 of the act, which you’ll find on pages 12 and 16 of our brief, would also add additional constitutional guardrails to ensure that decisions are only about those significant greenhouse gas emissions, and that the federal government only acts if it’s very clear that there are not provincial processes in place to address those issues. There was reference earlier to a backstop — I believe it was made by Ms. Pike — and that’s what this would be.
The Impact Assessment Act, in this regard, would only act as a matter of last resort if provinces haven’t taken action, similar to the way the Greenhouse Gas Pollution Pricing Act works — constitutional constraints to address the federal matter.
Ms. Johnston: Thank you. Mr. Ginsberg did an excellent job of explaining the law. It might also help to note that in the Greenhouse Gas Pollution Pricing Act case, the Supreme Court noted the importance of Canada meeting its international climate obligations and its domestic targets, and talked about how the failure of one province to sufficiently regulate its emissions could derail the national project of achieving our targets. That was important to the court in that case. That’s why when we talk about significance, what we mean is it’s at a level that — like the court acknowledged in the carbon tax reference case — would hinder Canada’s ability to meet its climate target.
This is not an area that is established in the law, but we have consulted broadly with legal experts beyond ourselves, and we think this is a very sound approach to creating the kind of balance and action that the court has outlined that it would like to see.
Senator Arnot: My question is directed to the Assembly of First Nations, or AFN. Your technical support document is based on a solid foundation of seven resolutions by the AFN between 2017 and 2023, supported by the 634 chiefs that make up the Assembly of First Nations.
I looked at the 11 recommendations that you have made, and to me they denote very serious deficiencies in the act as it’s proposed. It seems to me that your recommendations are strong, logical and constructive, and they align with the United Nations Declaration on the Rights of Indigenous Peoples Act in Canada.
I would like you to amplify the seriousness of your concerns and any particular priority in these 11 recommendations for amendments. Thank you.
Ms. Adamek: Thank you, senator. We are appreciative of the support with respect to the work that chiefs from across the country have continued to lead.
Certainly, when it comes to priorities, as I mentioned, Indigenous knowledge is important. I’ll give you a great example of that. While it may seem small scale to some, when it comes to development in the North, First Nations knowledge keepers carry so much through our stories, songs and language that can be very helpful in these major projects. If you look at parts of B.C. where there have been major floods, First Nations elders had said to communities in B.C., “Hey, you probably don’t want to build a place to live there, or a city or a municipality, because it’s a flooding area.” Then look what happened.
I digress. It is incredibly important, and it is something that is very different — it shouldn’t be, but it is — in the way in which we consider traditional knowledge to be equated to Western modern academic knowledge. It is incredibly important.
I want to speak to section 35 of the Constitution Act, 1982, as part of public interest. The proposed Impact Assessment Act and the Canadian Energy Regulator Act, or CERA, let everyone — proponents, government and First Nations — know that the public interests include Indigenous rights and interests despite major pushback from industry. It also brings clarity to an otherwise ambiguous concept — the public interest — and ensures that Indigenous rights and interests are considered before any decision is made. That is what is required by the Constitution Act, 1982, and the proposed acts that affirm this.
Through the Supreme Court — Clyde River, for example — it has been decided that Indigenous rights and interests are a special public interest and a constitutional imperative that supersedes other public interests.
This also brings us to the whole concept of where the act is at. The recommendations that I’m speaking to — and that my colleagues before me have spoken to — are weighing the risk. Ultimately, if we had more time, we would be interested in taking that time to digest, assess, analyze and produce more recommendations. But I’m very mindful of the time frame in terms of a potential federal election. To be very candid, I am not partisan, but I am mindful of the priorities of a potential Conservative government, and that those may not be aligned with the recommendations that First Nations have spoken to in our submission.
That brings us to the risk. We are in a situation in which there is greater risk if we don’t move forward with the suggestions that have been proposed to this act, or taking the time or being in a situation in which there are delay tactics to making the changes to this act, so that the work can continue and so that certainty is there with respect to the decision coming from the Supreme Court.
The interests of First Nations is to ensure that there is a balanced approach, and that Indigenous knowledge is included in a way that respects our values. Climate change has to be at the forefront, and First Nations need to be part of those decisions. Ultimately, at the end of the day, the right approach is a rights-based approach. If you have more specific technical questions, I may turn it over to my colleagues. At a high level, those would be the interests of First Nations from across the country.
The Chair: Thank you very much.
Senator Cotter: Thank you to the witnesses for coming and enlightening us on many of these issues — some of which we have a degree of understanding, and some of which we don’t.
I primarily want to focus on the question of constitutionality. I know a couple of you are there at the coal face of the Supreme Court. Congratulations for your advocacy there.
As a preliminary observation, I think all of us want the richest, most meaningful constitutionally endorsed structure for impact assessments here that is able to be achieved. Mr. Ginsberg, I recognize that your argument is that these amendments go beyond what meets that minimum threshold.
I want to ask you and Ms. Johnston about these points. I appreciate the policy conceptions, but my question isn’t about that. It’s about minimal constitutional requirement.
You talk quite a bit about the carbon pricing case. However, as I read the Supreme Court of Canada decision here, it is not based on a national concern argument that held the carbon pricing regime to be constitutional, but rather that it trenches on provincial jurisdiction by, in a sense, reaching a little too far in October 2023. The modification — particularly with respect to effects within federal jurisdiction — is mostly around establishing language that talks about non-negligible effects.
I want to draw a comparison here. If I were a provincial government, I would — almost aside from the constitutionality argument — be a little offended by that because with respect to the federal projects that were recognized by everybody as constitutional in federal jurisdiction, the language that is talked about is “substantial adverse effects” in sections 81 to 91 of the Impact Assessment Act. That’s the language of the touchstone for triggering the impact assessments. With respect to matters that are closer to provincial jurisdiction, the language is “non-negligible adverse effects.” That seems, to me, to be a different choice of language that gives greater licence to dive into stuff that we might think of as close to provincial jurisdiction. Am I being supersensitive as a provincial politician if I raise this point?
I would like Mr. Ginsberg and maybe Ms. Johnston to answer.
Mr. Ginsberg: Yes, I think we both have something to say. I’ll be brief.
For the issue of non-negligible and that section you’re referring to, first of all, it’s important to remember that it captures projects that are federally and provincially regulated, ultimately. Therefore, there is no discrimination there between whether or not one order of government or the other has primary regulatory responsibility for the project. It’s all captured at that threshold stage on the basis of non-negligible.
In my view, to move to anything else at that stage would beg the question of the Impact Assessment Act, which is ultimately about whether or not there are effects of such significance as to require a public interest determination. Of course, until we have the assessment, we don’t know that. That’s why I think the government has calibrated some threshold, which is arguably necessary for constitutional purposes, but it is not a sky-high threshold.
Ms. Johnston: I would like to point out that the court actually didn’t find an issue with thresholds with regard to most effects. With fisheries and migratory birds, there is no threshold required. The court had an issue with thresholds only with regard to transboundary pollution — and that was around air and greenhouse gases — and with impacts regarding Indigenous peoples.
The main issue that the court had with the definition of “federal effects” was that they referred to all changes — positive and negative. It was the positive versus negative distinction that was really the root cause of the court’s concern, which is why we see the focus on adverse effects in the amended language.
There is a long history of case law dealing with the fact that the feds can say “no” to fisheries impacts so long as those are not de minimis impacts.
This language around non-negligible effects in front of fisheries, migratory birds and marine pollution is all constitutionally unnecessary. According to the court, it really is only necessary when it comes to impacts with regard to the well-being of Indigenous peoples and also — we think — when it comes to transboundary air pollution. Then, it is more than non-negligible. It has to be significant.
Senator Cotter: What about the difference between the language used to focus on projects that are clearly within federal jurisdictions — sections 81 to 91 of the Impact Assessment Act? They are the languages of “substantial adverse effects.”
Ms. Johnston: It’s “significant adverse effects.” That was just a policy decision. It wasn’t a constitutional issue. It was that the drafters and the Impact Assessment Agency, when developing the act, decided that most of these projects are fairly minor. We’re talking about park benches in national parks.
I don’t necessarily agree with the policy decision, but they made them much more minor assessments that had a higher threshold because they didn’t want to bother with non-significant effects of smaller projects on federal lands.
The Chair: Thank you very much.
Senator Galvez: Thank you very much for clarifying, because my previous questions to the previous witness were exactly that: Why was it so clear with respect to fisheries and endangered species, but confusing with respect to transboundary air pollution?
I support your amendments because I think this will bring clarity to this situation, and we all agree that the question of constitutionality was already solved.
Mr. Ginsberg, you were cut off before finishing your story about the multinational and the Ottawa River and Quebec. I think that for educating my colleagues, it will be very important that you explain. If you have another one, please do.
Mr. Ginsberg: I’m happy to. Thank you, senator, for that opportunity.
This was a case of the way these emissions were going to be emitted and the prevailing winds that would carry them forward to Montreal, and there was nothing that Quebec or the City of Montreal could do because they don’t control that regulatory process. They are, of course, constitutionally and institutionally incapable of regulating in Ontario and vice versa.
In that case, what ultimately happened is that a request from the local communities on both sides of the border went to the federal government for an assessment. The environment minister concluded that they didn’t necessarily need to federally assess it, because they had a look and it looked like the existing process would deal with these effects. What is important here is that the minister had that jurisdiction to consider those cross-border air pollutants because the Constitution simply doesn’t allow Quebec to protect itself from that kind of pollution emanating from Ontario. Unfortunately, if the Impact Assessment Act amendments as proposed are adopted, Canada would lose that important jurisdiction.
I would just add that the same is true of international pollution. We have treaties such as the Canada-United States Air Quality Agreement, where Canada is actually obligated to control emissions of harmful pollutants that would affect the air quality of another country, including — and the treaty actually says this — by undertaking environmental impact assessments.
For instance, consider a proposal to build a new facility in Sarnia’s Chemical Valley, which borders Michigan and where poor air quality issues have spiked to such a degree that — even about a week and a half ago — Canada had to make an emergency order controlling benzene emissions. The federal government must have oversight of those impacts to comply with its obligations because no provincial assessment process requires consideration of transboundary air pollution, which is understandable because such pollution isn’t within provincial jurisdiction.
In the case of Ontario, I might add — because I used the example of Sarnia — that this province doesn’t assess private sector projects at all. There is a gap there that simply has to be filled, and these amendments would jeopardize it.
The Chair: Thank you very much, Mr. Ginsberg. That is much appreciated. Thank you to the other witnesses. I think we had a robust, serious discussion. We had very good contributions of information. Thank you very much to those who already submitted their comments, because that will be most helpful.
I would ask the other members if we can have an in camera session to deal with defining what our business approach looks like. Thank you very much.
Again, thank you very much to our guests.
(The committee continued in camera.)