[Recorded by Electronic Apparatus]
Tuesday, April 23, 1996
.1105 
[English]
The Chairman: Order. Today the committee will be continuing its study of regulations that have an impact on the mining industry. We're fortunate enough today to have two witnesses:Mr. Gertler from the Quebec Environmental Law Centre and Mr. Kennett from the Canadian Institute of Resources Law.
Welcome, gentlemen. We appreciate your taking the time to be here today.
I think the way we'll proceed is to ask each of you to provide us with your opening statement. Then, after you've each made an opening statement, we'll turn it over to committee members and they can ask either one or both of you questions based on your testimony.
Mr. Kennett.
Mr. Steven Kennett (Research Associate, Canadian Institute of Resources Law): I'm a research associate at the Canadian Institute of Resources Law, which is an independent research institute affiliated with the University of Calgary. Our mandate at the institute is to undertake independent research, including contract research, education, and publications, in the areas of environmental law and natural resources law and policy. So we're not an environmental group and we're not an industry group either. I know Mr. Gertler has a long list of people who have signed onto his brief. I don't have anyone else who has signed onto my brief. I don't know if that will enhance my credibility or not. In any case, that's the work we do.
I was asked to talk primarily on the question of federal-provincial harmonization in the environmental regulation area. Since I chatted with Mr. Berg about that, I've talked to him and two other people, and most recently Mr. Franklin Gertler, about whether now there's a harmonization initiative that's worth talking about, because according to the best information I have the CCME harmonization initiative is very much in the balance right now and in fact may not survive the next few weeks or months.
But I think it's worth talking about that. A number of people, particularly in the environmental community, and I know you've heard from some of them, will be very happy to see the end of that initiative. They have very valid concerns about it, in my view. But I don't share the view that the end of the harmonization initiative is a cause for celebration, because I think in the long run federal-provincial cooperation in environmental matters is in the best interests of environmental management in Canada.
The Constitution clearly allocates environmental responsibilities to both levels of government. It seems to me if both governments are active in the environmental area there is a need for cooperation and coordination to deal with overlap and duplication. If governments are withdrawing from their environmental roles, as is arguably the case at least in some jurisdictions today, there's a need for coordination to deal with gaps, to ensure the overall integrity of the regulatory system, and to ensure resources are spent efficiently. Furthermore, I think cooperation can improve the clarity and the understandability, if you will, of the regulatory system; because it can be complicated.
.1110
Therefore, I think what one looks for are areas where there are, in a sense, win-win possibilities for cooperation. A few of these spring to mind, such as application procedures for permits and approvals, areas I know you will have considered already.
Process coordination is an important area, particularly environmental assessment processes. I don't see any reason that there can't be coordination in the area of ongoing reporting and monitoring requirements and also perhaps an intergovernmental cooperation on collection of baseline environmental data. Those are areas where I think there may be obvious potential for coordination.
Having said that, I think that in order to have successful harmonization, one should keep in mind several basic objectives. One of those is the clarity of the objectives of the harmonization process itself. The second principle is transparency of policy-making and decision-making in harmonization. A third important principle is the preservation of democratic accountability. Finally, last but definitely not least, harmonization should be concerned with the effectiveness of environmental regulation as well as, of course, its efficiency.
What I'd like to do is talk about four issues that are raised by the harmonization initiative. They all relate to those principles in one way or another. Those issues are the federal role in environmental management, the question of transparency and accountability, the issue of capacity and fiscal resources, and finally what I'll call the process of review and monitoring of harmonization itself.
First, in terms of the federal role, obviously the role of the federal government in environmental management is a very contentious issue in the context of the CCME initiative and more generally. Concerns have been raised by critics about what exactly the federal government sees as its role in the environmental area.
There are two principles that jump to mind here of the four I listed. One is clarity of objectives, and the other is regulatory effectiveness. The CCME harmonization agreement does talk about federal interests, and some of the areas mentioned are areas where one would expect to see a federal role, in transboundary matters, in federal lands, obviously, and so on.
I think there is an ambiguity within the document as to how those interests relate to roles and responsibilities. When reading the agreement, there is room for doubt as to what exactly the federal government sees its role being in the context of harmonization. I think there's a broader context, which makes that uncertainty even more important in the minds of some people. I think there are sort of mixed signals coming out of the federal government as to how they see their role in the environment. Obviously, there's the response to the CEPA report, which may or may not be entirely consistent with what some people think the harmonization initiative is about.
To give you a more anecdotal example, from reading the harmonization agreement one would think the federal government would be taking a lead role in the scientific area, in terms of research on environmental matters. I read in The Globe and Mail a few weeks ago that the aquatic research laboratory, the inland waters research institute, is being closed by the federal government. These mixed messages raise concerns in people's minds about where the federal government is going.
It seems to me that there are several areas where one would expect and want to see a clear federal assertion of the government's role. One of those is in transboundary issues, and by that I mean both interprovincial and international issues. Of course, that relates to the broader question of ecosystem management. Ecosystems are obviously transboundary in many cases. I noticed that the Whitehorse Mining Initiative emphasizes the importance of ecosystem management. In that context, it seems to me there is a federal role.
There are areas of regulation where I think a national approach is required for reasons of economic and regulatory efficiency. There are areas where there are significant economies of scale, such as the area I mentioned, scientific research. Perhaps on the international front, the federal government is uniquely placed to play a role. So those are areas where I think one could look for a little more clarity on what the federal intention is.
Let me make two other comments about the federal role. I know there's an argument that the committee has considered and has asked other witnesses about, which is the allocation of mining, as an area of activity, to the provinces. Why not just cut that off as an area of environmental regulation and let the provinces look after it? I think it's worth looking at some of the complexities this raises.
To give you a very concrete example, let's take the example of the proposal, which was in the works but has since been cancelled, to build a mine called Windy Craggy in northern British Columbia. I imagine many of you are familiar with that Windy Craggy proposal. That was a mine on provincial crown land in British Columbia.
.1115
Why not let B.C. look after it? I think there are a number of interesting issues about how the federal government would react to that.
Part of that mine proposal was to build a road and a pipeline that would cross a fairly significant river in that area, which is clearly a navigable water. So the federal government has constitutional authority also with legislation dealing with navigable waters. Does the federal government say this is a mining project and it's provincial, so it won't be concerned with the navigable water issue, or it'll delegate that?
Consider fisheries. There are implications of that project for fisheries, salmon fisheries in this case. Salmon are interesting because of course they spawn in fresh water and then they go out into the ocean. The fishery is in the ocean. It's actually an international fishery in this case.
The mine, because of acid mine drainage, had potential implications for salmon spawning. Does the federal government, which has jurisdiction over fisheries, say that it isn't going to be concerned about the fisheries implications of this because it's mining and it's provincial, or does it delegate? If it delegates, how does it ensure that its federal interests are protected?
Take international pipelines. There was a proposal involving a slurry pipeline to Haines, Alaska, crossing the Canada-U.S. border. International pipelines are a matter of federal jurisdiction under the Constitution. It's also part of the mining project. How does the federal government deal with that aspect of the project if mining is delegated to the provinces?
Consider U.S. effects. There was quite a bit of concern in the United States about this project because of U.S. fisheries, U.S. national parks downstream and so on. In fact, Al Gore, as a senator, raised the issue in the Senate.
So say the project had gone ahead and Vice-President Gore had come to Ottawa and said to Prime Minister Chrétien, for instance, that he was concerned about the project and its impact on the United States. Does Prime Minister Chrétien then say that this is a mining project and within provincial jurisdiction, so Gore should go talk to the B.C. premier? It may be difficult for him to do that. I'm talking politically rather than legally, in a sense, although often there is legislation at issue here. There are migratory birds and other issues like that.
So I think this illustrates that it may not be simple just to say, concerning provincial mining, that because it's provincial the feds will wash their hands of it. That's because environmental jurisdiction can be divided up in a number of ways. That project illustrates it.
The second point on the federal role is just to mention what I think is a useful model for that role, which is the Canadian Environmental Assessment Act and the bilateral agreements that have been negotiated under that. In a nutshell, the Canadian Environmental Assessment Act says there is a strong federal interest in environmental assessment, and if the federal government is going to make decisions with environmental impacts, it should have the best information it needs to make those decisions. So there is a strong federal interest.
There is a need for process coordination so that we don't have two environmental assessment processes going. Most importantly perhaps, the statute provides clear legal guidelines for the delegation of certain activities, like screening, and for coordination or joint processes, like joint hearings. It says that if the process meets certain standards, there can be a joint process or a delegated process.
So in a sense, the federal government says that it does have an interest. It wants certain standards, but assuming those standards are met, it's open to cooperating.
I think that's a useful approach, because it does give a clear indication of how harmonization works. It provides legal, statutory guidelines that control discretion and provides some certainty to everybody more or less in a number of areas. Not in timing of the process, interestingly enough, but in other areas, it provides some degree of certainty about how it works. I think that's a useful model to consider.
The second issue I wanted to mention concerns accountability and transparency. It's clear that federal-provincial arrangements have the possibility at least of obscuring lines of accountability and making decision-making and policy-making less transparent.
My colleague here, Franklin Gertler, has written an excellent paper on that subject, which has been cited in many places, including in the paper I distributed to the committee. I noticed that Franklin's comments on this also turned up in the House of Commons standing committee report on CEPA and in the government's response.
So I won't go into this in too much detail since the expert is right beside me. Nonetheless, it is an important concern as to how these intergovernmental processes preserve transparency and accountability, particularly in an area like enforcement.
If the federal government is delegating enforcement powers for federal legislation to the provinces, how is accountability and transparency about those prosecutorial decisions maintained?
I don't think it's impossible by any means to maintain transparency and accountability. I think harmonization should ideally enhance that. Perhaps a harmonization agreement will be a better technique than a whole lot of bilateral agreements. But you do need to have attention to that.
.1120
The Environmental Management Framework Agreement, which is the CCME agreement, does address this issue to some extent. It states in the compliance schedule, for instance, that parties will remain ultimately accountable for the enforcement of their own legislation and will retain responsibility for compliance. That statement is in there. There is some provision, although it's a bit vague, for monitoring, but I think the agreement should pay more attention to that issue, because it is an important one.
The third issue is capacity and fiscal resources. This is really an issue that goes to regulatory effectiveness. It's not adequately dealt with in the Environmental Management Framework Agreement. At least it's dealt with in a way that raises legitimate concerns.
Clearly, the issue is transferring functions between levels of government administratively, either federally, provincially, or the other way. The concern people have raised is if you transfer responsibilities without attention to capacity - and I'm not talking about just money but also technical capacity and regulatory infrastructure and so on - will there be effective fulfilling of those roles that are transferred?
One way to deal with that issue of course is to transfer money, or perhaps personnel, with the powers. Another way is through capacity building, if you will - helping provinces develop their regulatory capacity where they're undertaking federal roles. The third response is to have flexibility in the delegation. In other words, you wouldn't delegate to a province such as Ontario, B.C., or Alberta in the same manner as you would delegate to a smaller province that had less ability to deal with it. That flexibility isn't precluded by the Environmental Management Framework Agreement, but it's not clearly there. I think if there were more clarity on this issue then some of the concerns about that agreement would be met.
I might add that there's a context that makes harmonization very difficult right now, very difficult to defend and very difficult to be certain about, and it's that there is such a fluid environment in environmental management. Obviously there are serious cutbacks at the provincial level in Ontario and Alberta. It's a very good question what the capacity of provinces to undertake increased environmental management responsibilities is.
I'm not saying there isn't capacity, but it's a question that's difficult to answer right now. I would think the federal government, in anticipating or considering delegation, would want to have an answer to that question, what is the capacity, before going ahead with a major delegation. Getting an answer is very difficult.
That having been said, there is also another response - and this brings me to my fourth point - in the context of uncertainty. That is to have appropriate mechanisms for review and monitoring of the consequences of these agreements. It seems to me inevitable that in anything as complicated as environmental regulation, especially in the Environmental Management Framework Agreement, which is a very broad agreement, there will inevitably be uncertainty about implementation. There's also the possibility of unintended consequences. Needless to say, there are groups out in the world who view the whole process as a hidden agenda and as an attempt, in a sense, to deal with matters in bad faith in some respect.
I think there is an answer to those concerns that doesn't require an impossible degree of certainty. It's to provide for effective, transparent, and clear monitoring techniques to determine how the agreement is being implemented. There is something of that in the compliance section of the Environmental Management Framework Agreement. There is a menu of monitoring techniques, some of which are more public, more open, and more transparent than others. But it doesn't really nail down which approach will be taken.
I would suggest that type of approach should be applied to the agreement as a whole. In other words, if there's going to be delegation, if there will be transfer of roles, there should be a way, after five years, after three years, on an annual basis, to determine how it is working. Is there effective management? Is the federal government, is the general public, satisfied those responsibilities are being adequately carried out? I think that's an area that requires strengthening.
To wrap up, I don't believe the Environmental Management Framework Agreement and the harmonization initiative are so flawed as to be completely useless. I do believe I've identified some major problems. They could be addressed, if we assume the agreement is in good faith and one reads it not in the worst possible light but at least in a balanced way.
.1125
I think none of the changes I have suggested is incompatible with what's there. If the intention is to have openness, transparency and regulatory effectiveness, I think those changes could strengthen the agreement.
If that's not the intention and those changes are unacceptable, I don't think the agreement is in the best interests of environmental management, as it stands. I do think intergovernmental cooperation is in the best interests of environmental management, so hopefully, if that process doesn't go ahead, at least we can learn lessons from it and make progress in the future.
Thank you very much.
The Chairman: Thank you very much, Mr. Kennett. Mr. Gertler.
[Translation]
Mr. Franklin Gertler (Vice-President, Quebec Environmental Law Centre): My name is Franklin Gertler and I am the Vice-President of the Quebec Environmental Law Centre.
Perhaps I should mention that, from the beginning, the Quebec Environmental Law Centre has had a representative sitting on the advisory board dealing with regulations under the Canadian Environmental Act. I am its current representative and therefore we are monitoring the development of the legislation and federal environmental assessment regulations very closely.
We would like to thank the committee for inviting us here today. Because we were called on such short notice, we unfortunately do not have a brief to present which is tailored to today's presentation. Nevertheless, we have distributed some documents to you.
I would also like to say a few words about the Quebec Environmental Law Centre. The Centre was established in 1989. Its membership includes lawyers and other environment specialists, toxicologists, urban planners, etc.
We have three main purposes.
First of all, the development of legal tools to protect the environment. Secondly, encouraging the public to participate in the decision-making process. We believe that public participation is the best guarantee for good environmental management. Furthermore, and this goes hand in hand with our second objective, we are trying to achieve better access to the legal system for environmental matters. We are working on reforms that will lead to better access and we also provide some assistance to citizens and citizens' groups that want to participate in either the administrative or legal decision-making process.
As I said earlier, we do not have a brief. However, I have given three documents to the clerk: first of all, a short bilingual pamphlet on the Quebec Environmental Law Centre; secondly, the executive summary of work we did for the Canadian Environmental Network Task Force which deals with the Department of Fisheries and Oceans proposed changes to section 35 of the Fisheries Act; finally, the list of groups that support the position described in the document summary. I would also like to tell you that the Union québécoise pour la conservation de la nature can now be added to the list of groups supporting this position.
For your records, I have also given the clerk two copies of the discussion paper for consultation purposes. Other documents can be obtained by contacting the Canadian Environmental Network here, in Ottawa.
[English]
Mr. Chairman, obviously I'm happy to answer questions in French or English, but I'll continue the rest of my opening remarks in English.
.1130
I'm going to talk about three things. First, I'd like to briefly discuss the issue of the Fisheries Act, section 35, and outline for you some of the work we've done and some of the conclusions we've come to.
Second, I'm very briefly going to comment on some of the recommendations that are found in the interim report of this committee to Parliament. I think that will give you some flavour of some of our concerns and perceptions of the issues that have been raised.
Third, as a way of addressing the question of duplication and overlap, I'd like to just very briefly make some remarks about existing federal and Quebec regulation of the mining industry.
Our discussion paper arose out of meetings about one year ago with the Department of Fisheries and Oceans. We were called in to give our views on the proposal being put forward by Fisheries and Oceans for the reform of the administration of section 35 of the Fisheries Act.
At that time we expressed our concern that perhaps the approach being taken was not the most advantageous one, and we were challenged to come up with some alternatives. That's what we've done in our paper.
I think it's important to realize that the Fisheries Act, and section 35 particularly, are really at the centre of federal environmental protection and the management of fisheries. The power and responsibility of the federal government under the Constitution Act for fisheries is the clearest, strongest and most direct federal environmental power. If you ask Canadians what one thing they want the federal government to do in the environment, I think many of them would say protect the waters where they canoe, swim and fish.
Obviously the Fisheries Act is also an extremely important trigger for the Canadian Environmental Assessment Act. Including the Fisheries Act as a trigger for the Canadian Environmental Assessment Act and federal environmental assessment was a consensus recommendation of the regulatory advisory committee, admittedly with some call on the industry side for adjustments to make its administration more efficient. But that was a consensus recommendation.
Section 35 is reproduced in the text of the summary I gave you and at the back in an appendix. I won't take you through the reading of it in detail, but there is one remark I want to make about it of a general nature.
When Romeo LeBlanc, then Minister of Fisheries and the Environment - they were together then - brought legislation into the House that introduced what is now section 35, it was clear that what was contemplated was a preventive and planning regime that was to operate in an integrated way from the obtaining of information to exchanges with the proponent, to obtain modifications to the design and operation of a work or undertaking, to finally an authorization. Unfortunately, it has deteriorated into an approvals regime, which we admit is often applied too late in the process.
Fisheries and Oceans has proposed three things. First is to amend the Fisheries Act to allow delegation to the provinces of the administration of subsection 35(2), which would include authorizations and something it has invented, called exemptions, which appear nowhere in the law.
In our perception, in order to get around ever having to trigger environmental assessment, it says in some cases you haven't risen to the level of needing a subsection 35(2) authorization, and you don't even get in through the door so it can give you an exemption. That's contained in the directive you have a copy of at the back of our executive summary. As I say, in our perception it has no legal basis, making both the proponent and the governments involved vulnerable to legal challenge. That's the first thing.
.1135
The second thing would be to delist subsection 35(2) as an environmental assessment trigger under the Canadian Environmental Assessment Act. As I mentioned, that trigger was really the heart of the compromise that was brokered and that made the Canadian Environmental Assessment Act acceptable to the environmental community.
In most cases, there is no equivalent provincial regime to evaluate projects that would be by way of environmental assessment, that would fall outside of federal environmental assessment if subsection 35(2) was delisted.
From a purely political point of view, in our estimation the commitment to strengthening and proclaiming the Canadian Environmental Assessment Act, including section 35, the Fisheries Act triggers, was really the major environmental commitment of the current government in the red book and, to date, its only major environmental achievement. So the proposal to reform the ``administration'' of the Fisheries Act and delist subsection 35(2) would be a black eye for this government in the environmental area.
The third part of the proposal that's being made, in some way in trying to react to this critique, is to add a subsection 35(3) to the Fisheries Act that would make major projects, however defined, automatically subject to a federal permitting requirement and part of the kinds of authorizations that trigger federal assessment under the Canadian Environmental Assessment Act. In other words, the new subsection 35(3) would be added to the law list.
The great difficulty there, of course, is how you define major and minor projects. That's been a nightmare everywhere we've tried to do it. Furthermore, there's a major environmental issue, which is whether it is in fact demonstrated or demonstrable that it is the major projects, which would probably be assessed anyway, that are the problem for fish habitat in this country, or is the fish habitat being nickeled-and-dimed to death?
There is the cumulative effect of many small and medium-sized projects, so by focusing on the major ones we may not even be capturing what's environmentally significant.
Now we have a critique to level. I've given you some flavour of that. In our view, at this time the provinces don't have the expertise, the money, or the inclination, the political will, to enforce subsection 35(2) of the Fisheries Act, and this constitutes a threat to fish habitat. In many cases the provinces are proponents of projects or are closely linked to the proponents of the projects.
I spent yesterday in meetings with officials here on this issue. Among the people in our delegation were some who have daily contact with wildlife officials, particularly in the prairie provinces, and they are constantly being told that such-and-such is a very serious problem, but then, ``But don't tell anybody I said this. I will lose my job''. So there's a real problem. Often the people at the provincial level are not free to speak their minds on these issues, and there's a federal expertise and a federal independence of action that is very desirable in this area.
I've already mentioned that delisting would be something of a betrayal of the consensus recommendation, and I've already discussed major projects and the problem with that distinction. I won't go back to those matters.
In our view, what's going on in the discussion of section 35 is pushed by program review, regulatory reform, budget cuts, constitutional politics, and unsubstantiated fears that there would be a floodgates problem and a tremendous number of highly disruptive federal environmental assessments would be triggered by the Fisheries Act once the Environmental Assessment Act came in.
The last thing has certainly not come to pass. The statistics I have here of environmental assessments by Fisheries and Oceans show that from January 19, 1995 to March 22, 1996 only 92 projects across Canada were triggered for screening. We're not talking about hearings. We're not talking about the Oldman River Dam. We're not talking about cases in the Supreme Court or things that take three years of screening. There were 92 in the first 15 months of the operation of the Canadian Environmental Assessment Act. Four of those went to comprehensive study, for a total of 96.
.1140
So the floodgates aren't borne out by statistics. Our submission is that there's been inadequate policy analysis and inadequate effort at developing responses to what may be a solution in search of a problem. And we think we need to unpack the issue of section 35 of the Fisheries Act.
There are three things. What's the problem? To address that, we have to look at things like whether it is the large projects or the small projects. How much does it cost to administer fish habitat provisions? How much does it cost in environmental and economic terms not to do it? How many environmental assessments are really going to be required? What does it cost to do those? Those issues have not been addressed. So that's the first thing. What's the problem? Is there really duplication and overlap? It's not been demonstrated for the most part.
The second thing is what should be done? How should fish habitat be regulated and administered?
The third thing is who does it? And we submit - and I'll come to this again in a minute, because there's some reflection, I think, in your committee's recommendations and its interim report that there's a greater need for effort on the issue of what gets done before we look at the issue of who does it.
In our view, section 35 - the fish habitat provisions- of the Fisheries Act has been proclaimed unworkable in circumstances in which, as we say, overlap and duplication is not demonstrated, the number of assessments and their disruptive nature is not consonant with the fears of those who feared that there'd be hundreds of Oldman River Dam kinds of scenarios around the country. There's very little budget. It's not a big money issue. There's very little budget attributed by Fisheries and Oceans to this act and to fish habitat. It's 1.3% of its budget, and I think that comes in at $6 million, $7 million, or maybe $10 million at the outside. It's not a huge amount of money in its overall budget.
For that money, you get excellent work and excellent scientific knowledge that would be a great pity to dissipate into ten provinces. There are virtually no prosecutions under this act, so there's no effort at enforcement in that way. There's almost no proper tracking of what is in fact being done in terms of authorizations, projects, or prosecutions. There's an obligation to report to Parliament under subsection 42(1) of the Fisheries Act, and that is not being properly carried out.
After 20 years of section 35 being on the books, there are no regulations for its application, except for the application form, which is in the general part of the fisheries regulations. In other words, there are no regulations under subsection 37(1) that describe the situations in which information must be furnished to the minister and what that information is. So that function must be carried out on a case-by-case basis. That's expensive. That's slow. That's disruptive. That's uncertain. So this is a case in which some regulations could actually increase certainty and reduce costs.
After 20 years there are no regulations under subsection 37(2) that describe conditions under which orders can be made modifying the projects. And after 20 years there are no regulations under subsection 35(2) saying in which cases, rather than needing an authorization, you can simply avoid potential penal liability under subsection 35(1) if you conform to standard conditions set out by regulation for certain kinds of repetitive projects, those being the culverts, the stream crossings, the pipeline works, and that sort of thing.
So we think there's a lot of work to be done on the what - not the who, but the what - of the Fisheries Act habitat protection provision.
On the environmental assessment side, as far as we know, no effort has been made to conduct class screenings for some of these small repetitive or standard situations so that the burden of environmental assessment can be lessened. In other words, there has been no effort to use that efficiency mechanism that exists in the Environmental Assessment Act. There's been no effort to revisit the exclusion list on this point and say that certain kinds of projects really shouldn't be assessed.
.1145
So you might say we're in the stage of panic before having really tried to apply the regime, and there is some mistaking the birthing pains, or the difficulties of starting up with a new regime, with what will be the longer-term situation once the system is up and running.
So that's on the Fisheries Act, and if you will, I'll talk about the recommendations very briefly. I think I'll leave the question of Quebec and federal regulation because I'm sure it will come up in questioning. I don't want to take too much of your time.
I'm only going to comment on a few of these recommendations. The first one I'd like to make a comment on is recommendation 2, which talks about lead agencies.
There are a couple of things there. First, environmental groups fought very hard to have a central agency responsible for assessment under the Canadian Environmental Assessment Act. That recommendation was turned down. In its wisdom, Parliament has opted for self-assessment, so that each line department, each responsible authority, has an independent obligation under the act to carry out its assessment.
So I think we're stuck with that system. We don't like it that much, but it has certain environmental advantages. The trouble with this business of lead agency is, first, it goes somewhat against the prescription in the act that each responsible authority has its independent discretion and its independent duties. Also, it is often very difficult to arrive at a consensus about who should be the lead. Should the responsible authority be the one with the most economic interest, the one that is closest to the proponent, or the one with the greatest environmental interest in the environment to be effected? I think the good counsel is that the current method of committees and a kind of cooperative process to work out the administration of the environmental assessment and its coordination is probably the best model.
Under the act, in any case - I believe it's section 12 of the Canadian Environmental Assessment Act - the agency ultimately has some authority to knock heads together and force some cooperation between departments in the carrying out of the assessment. So that's the first thing.
On the question of time lines, Quebec of course has recently opted for that, and the federal government is moving in that direction with the proposal for either regulations, or directives, or guidelines under the Canadian Environmental Assessment Act. Those are the directives for public hearings and public review.
We don't have any objection in principle to time lines. The word ``binding'' is a little bit worrisome, because surely the process should be flexible. If indeed for legitimate reasons an assessment requires more time to be done properly, that time should be taken.
The other aspect of that is that there has to be good faith on the side of government and industry as well. A lot of the problem with environmental assessment in terms of proponents finding it to be disruptive is that they get into the process too late. It's supposed to be a planning process. You're supposed to come to government as early as possible and get that process up and running. Then the environmental assessment process is much less likely to be disruptive, both because the approval will come early and because any design changes that are required because of the exigencies of the environmental assessment will be easier to incorporate if they're done early.
On recommendation 5, with regard to cumulative effects, it is true that section 16 of the Canadian Environmental Assessment Act brings in a fairly new requirement on the Canadian scene with respect to cumulative effects.
I think it's important to understand that environmental assessment in general is a best-efforts kind of process. We're not looking for truth. This is not a trial. You're not trying to find the absolute answer. What the act requires, in our view, is that an honest effort be made with whatever analytical and scientific tools we have to analyse what the cumulative effects of the project will be. If you can't predict them all, that doesn't mean you can't make a decision, but at least you'll have put the best information you have on that subject into the hopper.
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On recommendation 6, we have put forward our view before - Steve Kennett referred to it - that federal-provincial agreements must be accompanied by appropriate protections for accountability, transparency, public participation, things such as the publication of draft, not final, agreements, and sunset clauses, so these things can be re-thought after a few years. Those are some of the protections.
I should say just in parenthesis that I have had ongoing discussions with people at the Canadian Environmental Assessment Agency. We have some concerns about whether the framework agreements being negotiated between the federal government and some of the provincial governments might cause a situation of illegality to the extent that they are regarded as binding the departments, which then have to make decisions in individual cases of individual assessment about how the assessment will be carried out.
The Chairman: Could I ask you to wrap up, because we won't have time for questions.
Mr. Gertler: Yes, I will. I'm sorry.
On recommendations 8 and 9, about the Fisheries Act, what we've indicated is that we have a good deal of sympathy for a lot of what you say, in the sense that there is need for more certainty, especially through regulations.
I'll leave recommendation 11 for the moment. We'll come back to it.
On recommendation 14, I would just say, having done some of the litigation, it's not a bad idea to try to have a definition for navigable waters; but good luck.
Thank you. I would be pleased to answer your questions.
The Chairman: Thank you very much.
We will go to questions. Mr. Deshaies, from the Bloc.
[Translation]
Mr. Deshaies (Abitibi): My question is for Mr. Kennett. In your brief, you talked about several topics and I wasn't able to determine whether your objective was to have the federal government take over provincial regulations to make them more effective, in short, to come up with national standards. Do you want to see improved effectiveness by delegating certain responsibilities to the provinces and by keeping certain prerogatives within the federal realm? What is your position?
[English]
Mr. Kennett: In regulation one has to keep in mind both efficiency and effectiveness, obviously.
I guess my main message is twofold. First of all, it seems to me there are certain areas where the federal government does have a unique and important role to play. I mentioned transboundary matters. I mentioned areas where there are economies of scale, for instance in research. I mentioned areas where there is a need, for economic or regulatory efficiency reasons, to have a national approach. That might be, for instance, in regulating the import of toxic substances and assessing those substances. That might be an example where it doesn't make sense to do that province by province.
So there is a role for the federal government in certain areas. In other areas it may well be more efficient for the province to administer it. My message on that point is that's fine in itself, but there have to be mechanisms of accountability and transparency if the federal government is going to delegate some of the functions it has exercised till now, so there is a publicly verifiable way of determining what the provinces are doing with those regulatory powers and determining that they are meeting the federal expectations, and through those the public's expectations.
I realize that's not an easy answer, but the question doesn't lend itself to a yes or no type of answer.
[Translation]
Mr. Deshaies: Here in the committee, we gave ourselves the objective of examining the possibility of amending mining regulations as they pertain to the environment. We wanted to know if there was a direct way to reduce the number of regulations without necessarily having an impact on environmental quality. We also wanted to find out whether we could reduce the number of levels and interveners.
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If you are hoping to achieve transparency, an adequate budget and adequate regulations, should you not consider reducing the number of regulatory levels in order to make the mining industry more efficient and to attain, in the future, environmental objectives that are equivalent or even more stringent?
[English]
Mr. Kennett: I'm a little reluctant to speak specifically about mining regulations since that's not an area where I have a lot of detailed knowledge.
I think there is room for harmonizing regulatory processes and that is, for instance, as I mentioned, project application procedures. If you have to get approval in different places, it's useful to have a similar type of application requirement so that the proponent doesn't have to do all the documentation and the work differently. If there are regulatory requirements for monitoring and for reporting, those should clearly be harmonized so that the same tests are conducted and so that they satisfy all requirements. I think there are clear areas where it can be simpler.
I might just say something on the question of standards. I think perhaps sometimes the question of different environmental standards is exaggerated a little bit. In a simple case, if there are two different standards, let's say emission standards, effluent standards that apply to a project, it seems to me that often compliance with the strictest standard will satisfy both of them. In a practical sense, I don't see it as a major problem as long as they are compatible in the sense that you can effectively comply with both. That's an area where the number may or may not be a problem in practice.
[Translation]
Mr. Deshaies: Do you think that a single window would enable environmental groups to do a better job of monitoring the environmental process, because they too would have to go to only one agency in order to find out whether or not the environment is being monitored properly?
[English]
Mr. Kennett: I think there is potential for that. As I mentioned, in the environmental assessment area I'm not sure it's to a single window yet, but certainly some of the federal-provincial bilateral agreements under the Canadian Environmental Assessment Act work towards a single window for environmental assessment.
If there is the proper statutory basis and accountability, I think that does make it easier for everybody involved in the regulatory process to have to deal with a single window - one place to send the documentation, one set of requirements, one process, one place to look for decisions on timing. I think that is a useful way to go if the safeguards are in place.
[Translation]
Mr. Deshaies: Mr. Gertler, I'm very surprised that an agency that calls itself the Centre québécois du droit de l'environnement is presenting a document in English only. I wonder whether or not your group is connected to another special group or whether it is in fact really a Quebec group. Normally, in the House of Commons, documents are tabled in both languages whenever possible. I am, therefore, presuming that you did not table the document in French. It would be good if you had documents in French.
In your statement, you talked more about Section 35 of the Fisheries Act than you did about the topic of interest to us, namely, the potential harmonization of environmental regulations in the mining sector. We could also talk about other sectors. Is it possible to eliminate levels or interveners while at the same time keeping equivalent or better environmental quality so that we can meet our objectives and accelerate this whole exercise?
Mr. Gertler: As for your comments about our brief, we certainly are a Quebec group and, until we hear otherwise, we are also a Canadian group.
The work in question was a contract we did for the Department of Fisheries and Oceans for which we were paid a grant of $5,000. We spent about 500 hours doing this work. We did not have any money in our budget to do the translation. A translation was done, but it has not yet been checked by the department. This is why there is no French version. Soon we will have one. This is what happens when the government doesn't do its job when it comes to developing policies, analyzing the situation and doing the legal work. Finally, this work was done in an improvised fashion, it was done on contract and payment was truly inadequate.
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We do not always have the luxury of producing documents in both languages. In this case, the document was produced in English. If we receive a better grant the next time, perhaps we will provide a document in both languages. As I said, we would like things to be done in both official languages, however, perhaps there will at least be a summary in the other language.
[English]
The Chairman: Thank you. Please be very brief on the answer to the question.
Mr. Gertler: Mr. Kennett answered the question in part.
[Translation]
It is very difficult to say that regulations pertaining to a mining project should come under complete provincial jurisdiction. In the Oldman River Dam case, the Supreme Court stated that you couldn't really talk about a federal and provincial project. There is no jurisdictional field called assessment, namely, the environmental regulations with respect to mining. Nor is there any jurisdictional field on mining that would put the entire mining sector under exclusive provincial jurisdiction.
In other words, until there are changes made to the Constitution, there will always be federal responsibilities. We have always supported a substantive law approach. Under the present circumstances in, certain powers and responsibilities have been devolved to the federal government. This being said, it is obvious that, as far as concepts are concerned, nothing says that one level could not do everything. But does that jive with the current reality? That is an entirely different question.
Can we always be sure that a province's interest in mining projects, as well as in other things, go hand in hand with its role as environmental watchdog? That is a question we have to ask ourselves.
I will say that, as far as environmental assessment is concerned, it was only after the Canadian Environmental Assessment Act was adopted and implemented that, after a 15 year wait, Quebec finally implemented environmental assessment regulations on mining projects. The thresholds are very high. However, in the past, southern Quebec was not even subject to them. So it is only when Quebec felt that it was being pushed by the federal reform that this was done. I believe that your question must be put in this context.
[English]
The Chairman: Thank you very much.
Mr. Strahl.
Mr. Strahl (Fraser Valley East): Thank you for your presentations.
I have a question that springs especially from you, Mr. Kennett, from your opening remarks of how the CCME's discussions may or may not be on the rocks, depending on who you believe. They've been trying for a while now to come to some sort of an agreement between the two levels of government basically, so I think there are 12 or 13 ministers involved.
I have a concern about what is happening in British Columbia, where I'm from, specifically as it relates to aboriginal land claims. The agreement in principle between the Nisga'a, the first of the new treaties, and the federal-provincial governments states in its opening environmental package here that the parties will negotiate an attempt to reach agreements for the coordination of any Nisga'a federal and provincial environmental assessment requirements to avoid duplication where a project is subject to more than one environmental assessment process.
We are going to start in, I believe, including not only the 13 governments that we do now, but in B.C. probably another 50 or 60 governments on this process of duplication.
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It goes on in this to say that the Nisga'a central government may make laws in relation to the environmental assessment of projects:
- Unless otherwise agreed, where a Nisga'a Central Government law and the law of another Party
requires an environmental assessment...the project will be assessed under the process described
by Nisga'a law
Mr. Kennett, if your analysis is correct that we may or may not be able to make the best of the CCME's attempts to coordinate environmental policy, have you done any thinking or looking at this Nisga'a agreement, or the agreement in principle that I have here, as to how that will affect the effectiveness of any future environmental assessment process? I think it's going to be a monster. I wonder if you've done any thinking on that from the law perspective.
I don't want to pick on the Nisga'a. The Nisga'a are a very responsible group. The problem will be, I think, from other groups that may not have the resources or necessarily have the long-term goals of their people in mind. We'll end up with several layers of government that will try to reach agreements on coordination, and may instead fragment, including water regulations and effluent standards, into 50 or 60 different groups, including environmental ecosystems within B.C., very sensitive ecosystems, some of which may be taken advantage of in order to promote economic activity or who knows what.
I wonder if you've done any thinking on that? Is it a good move? What do you think?
Mr. Kennett: The short answer is that I haven't looked at that agreement and I don't really want to stray into the aboriginal rights area because it is a very complicated one. What I will say is that I have been thinking about that issue in another context, which is in the Yukon, where there have also been comprehensive land claim settlements that create environmental assessment processes. There are currently discussions going on at different levels about how to coordinate those processes with the Canadian Environmental Assessment Act and whatever Yukon territorial process that there is there.
So yes, it's definitely a problem. Is it insurmountable? No, I don't think it is, but I think it does require some flexibility in the regimes. As I've mentioned, the Canadian Environmental Assessment Act has provisions for delegating certain functions, with certain requirements. It definitely envisages joint hearings and so on. I think those kinds of tools are available and will have to be worked out. Obviously, if you're talking about a large number of individual agreements with potentially different processes, that could be a difficult process to work through.
It may be unavoidable. There'll certainly be birthing pains, as Franklin mentioned, with these processes, but I think it is something that should be addressed when the processes are developed. As I said, the way to do that is through mechanisms of coordination.
In terms of your other point about the overview, that again goes to whether there is a federal role, and in certain contexts a provincial role, to look at transboundary issues, to look at ecosystems, to look at fisheries from the salmon spawning right down to the ocean. Those are areas where I think one has to be careful about delegating to the lowest level, because those are broader issues. Ecosystem management, as I said, is in the Whitehorse initiative, it's in the environmental groups' briefs, it's common sense in a fairly fundamental way. That does require being factored into these harmonization jurisdictional questions.
Mr. Strahl: On the salmon end of it, it seems to me that one of the reasons we can't come to an agreement on the regulations, or any kind of an international agreement, with the Americans is because we're dealing - it would be fine if we were dealing with Canada and the United States; we could come to an agreement - with Canada, Washington, Alaska, various Indian bands up in the Alaska Panhandle and so on. The problem is we can't come to an agreement because there are too many parties at the table, I think. Canada and the U.S. want to preserve the salmon stocks. The problem is that everyone has a vested interest in it. Everybody wants to dance, nobody wants to pay the piper.
.1210
If this agreement goes ahead, I would argue that what we're creating again is a situation where you may end up with 20 or 30 governments at the table, and I think you will have destroyed the resource. The minister won't be able to manage the resource if he has that many stakeholders saying ``But me first''.
I realize you haven't looked at this. It's a difficult situation for you, but in principle, or in theory, it seems to me there are times, as you have mentioned, when there is a federal role. The federal government, I think, is abdicating its responsibilities, especially in fisheries where you're looking at habitat spawning to international harvesting agreements.
Somebody has to coordinate that. If there are too many people, if it's farmed out in too many ways, that is one role the federal government may find unmanageable and therefore disastrous in years to come.
I hope you get a copy of this. As a matter of fact, I'll send you a copy of the pertinent sections. I'd like to get comments from a legal point of view, and I realize that it's what your business is, because at a layman's first blush, it seems to me we're painting - because this is the first of many - a very difficult role in the future for both environmental purposes and habitat and salmon protection.
Mr. Kennett: I'd certainly be interested in looking at it and thinking about those questions.
Mr. Strahl: Thank you.
The Chairman: Thank you. Thank you very much.
Mrs. Cowling.
Mrs. Cowling (Dauphin - Swan River): Thank you, Mr. Chairman.
First of all, I would like to thank both of you for coming before the committee.
I have at least four questions. My first question is why do you think the provinces are concerned about the federal government's involvement in the environmental assessment process?
My second question is do you see that the federal-provincial involvement in federal habitat management results in delays and uncertainties?
Third, what initiative has your organization taken to work directly with the mining sector or industry and the federal regulatory agencies to find solutions to your concerns?
Fourth, do you have any suggestions as to what the federal government could do to reduce uncertainty and delays while ensuring that we maintain high environmental protection standards?
Mr. Kennett: Is that addressed to me or Franklin or both of us?
Mrs. Cowling: To both of you. I would like to have a response from both of you.
Mr. Gertler: The omnibus question is always a good technique. The chair can't cut you off when you're asked all four of them right off the bat. I'll have to remember that.
I'll answer your questions. I'm not sure I accept all the premises that are underneath them.
As we said, we don't think that claims in regard to duplication and overlap - those seem to me sometimes to be repetitive words; it's kind of an irony - are borne out by any research. Indeed, the general case of environmental regulation in Canada is either not enough regulation or not enough enforcement of the regulation that exists.
I don't think things like the development of diamonds in the Northwest Territories, the current multi-billion-dollar bidding war for the right to develop Voisey Bay and so forth indicate that mining is being choked to death in this country, but I'd be interested in seeing the proof that it is.
Why are the provinces concerned about the federal role in EA - was that your first question?
Mrs. Cowling: Yes.
Mr. Gertler: That's a very big question with a lot of history behind it. In some cases, there's concern, I suppose, that the federal government is going to take the lead or impose its standards and presumably then both take charge of the economic agenda and get most of the political credit for being in charge of looking after the environment.
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The federal legislation is necessary because there are areas of federal responsibility and federal decision-making. We don't want to go through again that whole discussion about the legitimacy of federal environmental assessment. It's a separate, independently legitimate, and constitutionally founded role.
There's no doubt about the fact that in many areas the federal government's legislation is upping the standards. The Quebec case is a case in point. As I just said, the federal legislation has finally pushed Quebec to require environmental assessment of private sector projects.
Another aspect of the federal system, which some provinces may find difficult to swallow, is intervener funding as a measure to level the playing field and ensure high-quality and less-obstructive participation by interested groups. We think that when groups are well funded, it allows the hearings to be focused on the issues and to get on with the scientific and fact-based study of the project rather than pure obstruction.
When, in your second question, you said ``federal and provincial habitat'', asking if there were delays and uncertainties, were you talking about fish habitat -
Mrs. Cowling: Yes.
Mr. Gertler: - or about habitat in general?
I don't want to get back into this very much, because we have a lot of it in our executive summary and I can give you a copy of our full paper.
We think that Fisheries and Oceans has some work to do, as we say, in regulatory development so there will be fewer case-by-case decisions about the administration of section 35. Part of that is also not just to focus on section 35 but also to use the information-gathering and modification-to-project powers in section 37 so by the time you get to section 35 the job is done. In other words, to apply this as a planning regime would make things go more quickly and give them more certainty about when environmental assessment was triggered.
In terms of cooperation with the mining sector, our group has not done anything explicit, I would say, but I've sat for several years as a colleague of Justyna Laurie-Lean, who's with the mining association. I believe she was a witness before this committee, along with Mr. Miller. I have had excellent contacts with her. We work well together.
My perception of her agenda is that indeed the mining association is looking for certainty and rigour and that in many cases at least the larger mining interests would be quite happy to see a good deal of federal uniformity in regulation, because they deal across many jurisdictions and would be in a more advantageous position if they didn't have to deal with a multiplicity of provincial regulations.
We've discussed a little bit suggestions for reducing uncertainty and delay, in terms of the environmental assessment and the habitat protection side. I don't think I'll go into that further at the moment.
Mr. Kennett: I will just say two words, and then we can get on to other ones.
On the question of provincial and industry concern about environmental assessment, I think there is concern about unanticipated delay in projects as a result of unpredictability of the regulatory process. It seems to me as if that's the main concern about environmental regulation generally.
In fact, it's not about the cost of compliance per se. Especially with a large project, the costs associated with a six-month or a one-year delay from the predicted timeframe would dwarf any direct compliance costs.
I think that, as Franklin mentioned, there are concerns partly associated with the birthing, if you will, the working out of the wrinkles in the Canadian Environment Assessment Act. As that process becomes clearer as bilateral agreements are negotiated, and perhaps as some time lines are introduced, I expect that provincial concerns will diminish.
A brief note in terms of our own groups: as I mentioned before, the institute where I work is not an advocacy group; we're not an environmental group or an industry group. In the past year we've published the definitive guide to the Canadian law of mining. We do commentary, such as the article I put forward, to try to further the policy debate. That's our mode of cooperation, if you will, and communication.
.1220
Mrs. Cowling: Perhaps I could just make one concluding statement, Mr. Chair.
The Chairman: Yes, very quickly.
Mrs. Cowling: I just wanted to reassure both of you that this government is listening to the public through a consultation process and that we're doing our job and we're really not ignoring the people we represent.
The Chairman: Mr. Reed.
Mr. Reed (Halton - Peel): Thank you, Mr. Chairman. In the interests of time and because all of us must be getting hungry by now, I'll try to be as brief as possible.
Mr. Gertler, I'll just say at the outset that I think you and I agree on at least one thing, and that is that regulation in the Fisheries Act is necessary. If there's one thing that I could observe from personal experience in interfacing with government, it's that where there is no regulation or where there are no rules of the road, what happens is that the interpretations become very subjective.
In some cases, depending on the personalities involved, crises are created where no crisis exists. For instance, the proponent of a project who's interfacing, let's say it's on crown land or whatever, may very well be faced with some personalities who are bound and determined to keep themselves employed and create a crisis where there is no crisis. You can go into another area and find an entirely reversed opinion on exactly the same set of circumstances.
I would suggest that everything should be done to inject objectivity into what is very often, especially with fisheries, an exercise in developed alchemy, as much art as science. Somehow, something has to be laid down that's reasonably clear. In Ontario, some class environmental assessment has taken place. There was a class environmental assessment on small dams, for instance, and on forestry. I'm not familiar with the other provinces.
I have one question for you. I notice that on the three elements of promotion in your brochure, you mention public access to environmental justice. I was wondering if you could briefly enlarge on that. In Ontario, any citizen can stop a project at the present time. That project can be very costly to a proponent, but at the same time, if the charge turns out to be frivolous, there is no financial obligation on the part of the citizen laying the frivolous charge. I just wonder how you couch that with your objective of public access to environmental justice.
Mr. Gertler: First I'll comment on your opening remarks. You're right, we do agree, although I should caution that objectivity is not always attainable, no matter how much fabulous drafting you do. There are limits, both literary and scientific, to getting objectivity.
The complexities of the problems involved mean that there will have to be discretion, but we certainly agree that discretion should be structured as far as possible, and that's perhaps a lot of the point. If you have regulations under subsection 35(2) for most cases, then the minister and his officials can turn their attention to the few cases that require greater study and case-by-case examination.
I should also mention, I think as a corollary of what you've said, that the delegation will not cure the uncertainty. Assuming that the intention is to have somebody do the job, different personalities doing the job will not cure the uncertainty. That's what I was saying about having to separate the problem of what gets done and who does it.
I don't think this is really the topic of the hearing, but on public access to environmental justice, first of all we're not just talking about prosecutions there. We're talking about everything from public hearings to prosecutions, I suppose. In Quebec, under provincial statutes, there are no private prosecutions. There are federally. There's always the power of the Attorney General to stay a prosecution where there is private prosecution.
.1225
As things stand now, with the lack of intervener funding, the lack of legal aid for environmental groups, there is not very much access to environmental justice. I think it's our position - I mentioned it earlier - that structuring the participation of environmental groups will increase both the level of harmony and the quality of decisions made. People can be picketing outside or blocking the road, or they can be made part of the process and part of the decision-making through the structured mechanisms we've developed as democratic societies. I guess that's what an environmental law centre such as ours is about.
The Chairman: Mrs. Hickey.
Mrs. Hickey (St. John's East): Mr. Chairman, I apologize for being late. I would also apologize to the gentlemen for missing their briefing. However, there is one question I'd like to -
Mr. Gertler: You'll read about us in The Globe and Mail, I'm sure.
Mrs. Hickey: I hope you don't read about me, that's all.
I was just wondering if there was some support for implementing a joint federal-provincial-territorial environmental assessment management program.
Mr. Gertler: Do you mean a single national system?
Mrs. Hickey: Yes, because for places such as Voisey Bay, if something like this were to take place it would mean starting up the Voisey Bay program much sooner, much faster, and it would mean more work for people in Newfoundland.
Mr. Gertler: As things stand, certainly no initiative is under way to have a single super-governmental structure to do environmental assessment, if that's what you're referring to, although I have heard some rumblings of that as an idea as the first five-year review of the Canadian Environmental Assessment Act comes up. I have heard that said.
But there is a good deal of coordination. We could get into what's being assessed at Voisey Bay, whether there should be a full assessment of everything right now or just the infrastructure and access works. But that issue aside, every indication is there will be federal-provincial coordination of some kind on that assessment. That would be the typical case under the Canadian Environmental Assessment Act and the provincial regimes. Certainly it would be a very unusual situation under our current regime where a proponent would have to prepare two complete environmental assessment documents or undergo two completely separate hearings.
There may be a need to meet the separate regulatory standards and requirements of more than one regime, but in a consolidated process. Then what happens at the end is all the information comes together in the public hearing, or if it hasn't gone to public hearing, in the mediation, or just in the comprehensive study. After that information has been gathered and dealt with, the decisions about whether a project can go ahead on the basis of the information gathered in the environmental assessment devolve onto the governments that have those responsibilities.
So there's coordination in the process, but it doesn't lead to a unique decision. There have to be separate decisions, at least under our current regime.
Mrs. Hickey: But do you think this should happen at some point? Right now we're doing a provincial assessment on the environment and we do a federal assessment on the environment, in some cases doubling up environmental assessments.
Mr. Gertler: You'd be a constitutional magician without peer if you could manage such a feat, I would suggest. I think on that one we're going to walk before we run. I'd be surprised if it's on the agenda in the near future, anyway.
The Chairman: Our last questioner, Mr. Stinson, is very anxious.
.1230
Mr. Stinson (Okanagan - Shuswap): To follow up here, I'd be surprised if they didn't run instead of walk towards trying to get a one-window type of approach to this.
Mr. Gertler, you said something about binding timeframes. One of the problems in this country and one of the things this government campaigned on was jobs, jobs, jobs. As we listen to industry - and I have great respect for people who have come before this committee in regard to this - this seems to be one of the major stumbling blocks, especially in the mining industry. There are no timeframes. Their capital and jobs are being tied up as long as seven years, and in some cases longer.
When we go further into the environmental regulations and what happens here, following up on provincial and federal jurisdiction, we have a number of problems in British Columbia that were in the paper recently - actually, the Kemess Mine was one - over nine pairs of fish that were not on an endangered species list at all and could have been readily moved, but the federal government - after the provincial government, I might remind you, had signed off on it, saying there were no problems - decided there was a problem there over the nine pairs of fish that easily could have been moved.
I guess one of the questions should have been why were only nine pairs of fish still left in a lake of the size it was? There was something most definitely wrong here.
There is another question I would like to bring up. In mining reclamation, which falls into the environmental end of it, it has been suggested - and I'd like your opinion on this - that when mining companies put forward their bond, they have to come up with a sum of money in regard to their reclamation of the property afterwards. Could you see any advantage in allowing the companies to put this into almost an RRSP account, where they wouldn't be penalized for tying that money up through taxation for the period of time it takes? Would that be part of the answer here?
Mr. Gertler: On the timeframes, I'm not an expert on the problems of the mining industry. I would be surprised if all those delays were attributable to environmental regulation. I would also be surprised if environmental regulation was really driving capital for good projects out of the country.
In terms of delays, it seems to me, as I said earlier, it's kind of a two-way street. If the proponents make their absolute best efforts to come to government early in the process, not after they have all the design work done, not after all the financing is in place, but as soon as the germ of the idea is there, and start to engage - I know there are problems of business confidentiality and so forth - as soon as possible, with as much information as possible, there'll be less disruptive effects of environmental assessment.
The bargain on the side of government may have to be, in return, some kind of timeframes with, as I said, escape clauses for cases where there's a legitimate need to extend delays. But certainly some more certainty in the process through things like regulations under the Fisheries Act would be meeting the government part of the bargain.
So I think it's a two-way street, recognizing that environmental assessment and some of these other processes are not just rubber-stamp approvals but actually interactive dialogues between industry and government, where the discussion has to start early rather than at the end, and with the government doing its job in an effective and efficient way.
In terms of reclamation, this is really not a position of our group, for sure. But reacting to your question, setting aside money to deal with the post-closure decommissioning aspects of a mining development is an excellent, necessary approach. In fact, that's one of the interesting things about the Canadian Environmental Assessment Act. It requires assessment of decommissioning as well, from the start.
So in terms of full cost accounting, if you like, for mining development, that's the way to go, obviously.
.1235
About whether there should be what would amount to a tax expenditure or tax benefit, if it were demonstrated and necessary it certainly might be something to look at. It would have to be understood, though, that what you're doing is essentially having the taxpayer assume part of the full cost of the development. The ideal way would be to have that cost factored into the calculation of whether or not the development is financially viable; in other words, don't make environmental issues an externality, or don't put the environment off on the public sector, saying ``you have to give us a break in order to make this profitable''. The question then would be whether it really is profitable.
Mr. Stinson: What are you going to do to start addressing some of the jobs we're going to start losing here? We have to realize we are competing not so much provincially as internationally. When a company comes to you and says, okay, you have what we see in our assessment as a viable project here, we're willing to put up $700 million to go ahead with this project, and you turn around and say to that same company, well, gosh, that's sure nice and sweet of you, but here's the bottom line: on top of that $700 million you'll also put in another $600 million in reclamation, you'll also pay taxes on that, we will tie you up for seven years until we get the full impact assessment done on this, and this is not to say the rules may not change after you've made that investment - I don't know how you're going to be able to sell that to somebody who's willing to put up the money. I really don't.
Mr. Gertler: Are your figures correct, though? It sounds as if the reclamation is going to cost more than the development.
I don't know. I can't answer you on that.
About jobs, I guess one of the issues is whether mining investment, which is capital intensive compared with other kinds of investment, is the most efficient way to create jobs in this country. That's an issue you have to face. You have to look at it while comparing it with things such as commercial, aboriginal, and recreational fisheries and other kinds of sustainable development. This is where the background work needs to be done. It's the a priori assumptions which may be questionable, it seems to me.
The Chairman: I have a couple of wrap-up points to follow up on Mr. Stinson. I know he will appreciate this in his unending quest to have demonstrated the success of this government in creating employment and jobs.
I noticed a press release about a survey of Canadian mineral exploration expenditures that indicated in 1996 non-petroleum mineral exploration in Canada will be at $945 million. That's a 24% year-over-year increase, and it's more than double what it was when this government came to power.
I knew, Mr. Stinson, you'd want to know that information.
On another point, I might mention what came up earlier on the translation. Your brief was submitted to the Department of Fisheries and Oceans, and it's my understanding the thing was established so they would be doing the translation. They're in the process of doing the translation, and when that is completed it will supplied to all members of the committee. I believe that's the way it's working.
Mr. Gertler: That's correct, Mr. Chairman. I wasn't trying to slander anybody. The Department of Fisheries and Oceans has taken a good step towards helping those who have a point of view to put forward to them to participate in the process. A translation has been prepared. All we said was that this is a big document and if there's no budget to review the translation we can't put our stamp on the translation saying it's properly done, and we would like to be able to do that.
The Chairman: We will ensure you get a copy of that translated document.
[Translation]
Mr. Deshaies: You could have submitted you document in French to the department. The department would have translated it and everyone would have been happy.
[English]
The Chairman: We stand adjourned until tomorrow at 3:30 p.m. at a joint meeting with the environment committee. Thank you.