Comments on Provincial Proposals for Amendments to Bill C-78, the Canadian Environmental Assessment Act by William J. Andrews Barrister & Solicitor Executive Director and Ann Hillyer Barrister & Solicitor Staff Counsel West Coast Environmental Law Association December 4, 1990 EXECUTIVE SUMMARY This brief provides comments on provincial proposals for amendments to Bill C-78. It follows WCELA's November 9, 1990, brief on Recommendations for Improvement of Bill C-78. In general, the provincial proposals would weaken the authority of the federal government to conduct environmental assessment within its jurisdiction by requiring consultation or cooperation with the provinces. We oppose this general thrust. INTRODUCTION This is further to WCELA's November 9, 1990, "Recommendations for Improvements to Bill C-78, the Canadian Environmental Assessment Act." This brief provides comments on "Amendments to Bill C-78, An Act to Establish a Federal Environmental Assessment Process: A Submission to the House of Commons Legislative Committee on Bill C-78 by the Ministers of Environment of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, New Brunswick, Prince Edward Island, Nova Scotia, Newfoundland, Yukon and Northwest Territories" (the "Provincial Brief") presented by the Honorable John Reynolds, Minister of Environment for British Columbia, to the Legislative Committee studying Bill C-78 on December 4, 1990. The following comments are organized according to the Provincial Brief's proposals. COMMENTS A. Definitions This proposal would define "provincial authority" and "provincial Minister". One problem with this proposal is that the definition of provincial Minister presumes that there is one minister responsible for environmental assessment of all projects in a province. This presumption is incorrect, at least in British Columbia. Recommendation 1. We recommend that if provincial proposal A. is accepted the phrase "environmental assessment of projects" be replaced by the phrase "environmental assessment of a project". B. Paragraph 11(2)(e) Proposal B. would qualify the phrase "other matter" in paragraph 11(2)(e) with the phrase "relevant to the study, mediation or assessment". This proposal would provide a reasonable clarification. Recommendation 2. We recommend that proposal B. be accepted. C. Section 24 This proposal would require the federal Minister to consult with the provincial Minister prior to referring a project to mediation or a review panel. It incorporates the proposed "cooperative scoping process" set out in proposal G. For the reasons discussed below regarding proposal G. we oppose the imposition of a mandatory cooperative scoping process. Recommendation 3. We recommend that the provincial proposal C. not be accepted insofar as it imposes a cooperative scoping process on the federal Minister. Provincial proposal C. would also add the qualifying phrase "that is subject to review under this Act" to the term "project" in section 24. The proper term under the Act would be "assessment" not "review". Recommendation 4. We recommend that if provincial proposal C. regarding qualifying the term "project" in section 24 is accepted then the phrase "that is subject to review under this Act" be replaced by the phrase "that is subject to assessment under this Act". D. Subsection 37(2) The first portion of proposal D. would limit the Minister's authority to establish a review panel jointly with a federal authority or a body established pursuant to a comprehensive land claim agreement by requiring that this be done "in cooperation with the provincial Minister". (We note that this proposal is not discussed in the comments column of the Provincial Brief.) These joint federal environmental assessments are not the business of a province any more than is a federal assessment conducted solely under Bill C-78. While the federal government may desire, as a matter of practice, to cooperate with a province regarding such matters, there is no reason for such cooperation to be imposed as a mandatory requirement in Bill C-78. Recommendation 5. We recommend that provincial proposal D. regarding subsection 37(2) not be accepted. The second part of provincial proposal D. would add a subsection 37(2.1) to clarify that the federal Minister may establish a joint federal/provincial review panel where the provincial Minister has agreed a joint review panel should be established. This would be a useful clarification. Recommendation 6. We recommend that provincial proposal D. regarding proposed subsection 37(2.1) be accepted. E. Proposed Section 37.1 This proposal would require that a joint federal/provincial review panel follow procedures and requirements established jointly by the federal and provincial Ministers. This proposal concerns us because it would allow the federal Minister to derogate from the procedures normally associated with federal environmental assessment. Members of the public should have the right to the benefit of such procedures. In B.C., for example, provincial environmental assessment is not normally conducted by an independent review panel (the panel is composed of civil servants) nor is there provision for funding for public participants. Recommendation 7. We recommendation that provincial proposal E. not be accepted. F. Section 47 This proposal would add a subsection 47.3 requiring the Minister to consult with the provincial Minister prior to issuing an order under section 47. Again, the federal government may desire, as a matter of practice, to give notice to or offer to consult with a province before making an order under section 47. However, the Minister's authority would be severely hampered by the provincial proposal as it is currently worded. Consultation with a province could delay action in an urgent situation. Moreover, if a province was slow to consult, the Minister would be left guessing as to the point at which consultation had been completed. The proposal should not be accepted. In the alternative, the proposal should be reworded to require the Minister to give notice or to offer to give consult with the provincial Minister. Recommendation 8. We recommend that provincial proposal F. not be accepted. In the alternative, we recommend that provincial proposal F. be amended by replacing "shall consult with" with "shall give notice to". G. Cooperative Scoping Process This proposal would require the Minister to establish a "cooperative scoping process" where an environmental assessment is required or proposed in a variety of circumstances. We note five problems with this proposal. First, the proposal is totally unnecessary. The federal government routinely consults with the provinces regarding the matters that will be assessed in federal and provincial environmental assessments of a project and the respective levels of participation by federal and provincial authorities. If there are communication problems between the two levels of government in this regard they should be solved in an expedited fashion rather than by establishing a cumbersome new federal/provincial process. Second, the proposal would require the federal Minister to enter what could be time consuming and, ultimately, wasteful discussions with provincial authorities where there is no provincial environmental assessment allowed or intended. Third, the proposal includes no obligation on a province to participate in the process. Fourth, the proposal lacks any mechanism for including participation from members of the public. Fifth, as the proposal is currently worded, if there were no criteria prescribed by regulations there would be no way to conduct the cooperative scoping process. Provincial proposal C. would bar the Minster from exercising his or her authority under section 24 unless the cooperative scoping process had been completed. Recommendation 9. We recommend that provincial proposal G. not be accepted. H. Substitution of Provincial Environmental Assessment Provincial proposal H. would allow the Governor in Council to order that an environmental assessment be transferred to a province. Decision making authority would remain with the federal government. There are four main problems with this proposal. First, the proposal would leave the responsible authority in the position of having to make a decision based on information received and assessed by individuals totally outside federal responsibility or control. If a federal responsible authority has an obligation to make a decision then as a matter of policy -- and perhaps law -- it has an obligation to retain responsibility for the information upon which the decision is made. Second, if the federal responsible authority were to conclude that the information received pursuant to a provincial environmental process was insufficient to support a decision under subsection 16(1) or 34(1) of the Act it would for all practical purposes be too late for the authority to obtain the necessary information. Third, the proposal would apply where provincial assessment provisions are "equivalent or comparable" to federal assessment procedures. The use of the term "comparable" renders the criteria so wide as to be almost meaningless. Any two things can be compared with each other. Fourth, many members of the public have no confidence that individual provincial governments can be relied upon to conduct an impartial environmental assessment of certain projects. There is a widespread perception that in certain cases provincial opposition to federal environmental assessment is motivated more by a desire to facilitate approval of the project in question than by a desire to spare the federal government from unnecessary expense. Recommendation 10. We recommend that provincial proposal H. not be accepted. I. Criteria for Exclusion Lists Provincial proposal I. would add a paragraph 55(1)(d.1) allowing the Governor in Council to prescribe criteria and the exclusion of projects from environmental assessment. There are two problems with this proposal. First, it is not clear whether the proposed criteria are intended to govern the Governor in Council in its prescription of projects or classes of projects under paragraph 55(1)(d) or the responsible authority in its decision as to whether a particular project is or is not on the list prescribed under paragraph 55(1)(d). Second, the proposed wording would greatly expand the range of projects which could be excluded from environmental assessment by replacing the term "minimal" with the phrase "minimal or limited". This change renders the criteria virtually meaningless as the contribution of a responsible authority to a project -- no matter how substantial -- is always limited by the statutory limits on the authority's powers. Recommendation 11. We recommend that provincial proposal I. not be accepted. J. Consultation with the Provinces This would add a new paragraph 55(1.1) which would require the Minister to consult with the provincial Ministers regarding the development of the criteria referred to in provincial proposal I. We recommend above that proposal I. not be accepted. In the alternative, there are two problems with proposal I. First, it is unnecessary in that the federal government already routinely consults with the provinces regarding the development of federal regulations in the environmental sphere. Furthermore, the provinces have an opportunity to comment on draft regulations published in the Canada Gazette, as do members of the public. Second, a requirement to consult with provinces is likely to lead to delay where there is no obligation on a province to consult and there is no definition of when consultation is completed. Recommendation 12. We recommend that provincial proposal J. not be accepted.