Recommendations for Improvements

to Bill C-78, the Canadian Environmental

Assessment Act

by

William J. Andrews

Barrister & Solicitor

Executive Director

Ann Hillyer

Barrister & Solicitor

Staff Counsel

West Coast Environmental Law Association

November 9, 1990


EXECUTIVE SUMMARY

This brief makes recommendations for improving Bill C-78, the Canadian Environmental Assessment Act. The recommendations are summarized in the first part of the brief. The second part of the brief sets out discussion and recommendations on a section by section basis.

Some key points are:

   1. the scope of the Act should be broadened to require environmental impact assessment (EIA) of all matters within federal jurisdiction, including Crown corporations, foreign aid and authority for special EIA procedures for policies and programs;
   2. loopholes allowing broad discretion to exempt projects from EIA should be closed;
   3. any joint federal/provincial environmental review should be required to meet federal EIA standards;
   4. federal EIA should be required to consider the need for and alternatives to a project;
   5. the government's promise to institute intervenor funding should be enshrined in the Act;
   6. the federal government should have the power to require a proponent to participate in EIA and to stop a project until EIA is completed; and
   7. the Act should establish a Parliamentary Commissioner for Sustainable Development to report directly to Parliament, like the Auditor General;
   8. the powers of the Minister of Environment should be expanded;
   9. provisions for public participation in federal EIA should be improved.

This short list does not include numerous other important points made in the brief.
PART I INTRODUCTION AND SUMMARY OF RECOMMENDATIONS

The West Coast Environmental Law Association provides legal services to members of the public who are concerned about threats to the environment. Since its founding in 1974, WCELA lawyers have provided advice to and acted as counsel for citizens participating in numerous provincial, federal and joint federal/provincial environmental assessment hearings. They participated actively in the cross-Canada consultations on reforming the federal Environmental Assessment Review Process (EARP) in late 1987, the consultations on EARP procedures by the Study Group headed by the Honorable Allison Walsh, and the national consultation workshop on reforming EARP in 1988. WCELA lawyers have also been active in the Environmental Assessment Caucus of the Canadian Environmental Network and the National Environmental Law Section of the Canadian Bar Association regarding reforming EARP and, later, addressing Bill C-78.

For many years, WCELA has strongly supported the concept of legislating an improved federal environmental assessment process. From this perspective, Bill C-78 is a mixed blessing. On the one hand, it enshrines federal environmental assessment in legislation and improves the procedures in several significant respects. On the other hand, it dramatically narrows the scope of application of the existing EARP process and fails to implement many much-needed reforms.

The second part of this brief is organized according to the sections of Bill C-78. For each section addressed there is a short discussion of the problems we see with the section, followed by a recommendation proposing, in most cases, the specific wording for proposed amendments.

The following is a summary of the key proposals in the brief:

    * the Constitutional basis for the Act should be broadened to include the Peace, Order and Good Government (POGG) power of the federal government (Preamble);
    * the purposes of the Act should be broadened including:
          o governing all federal authorities, not just responsible authorities (paragraph 4(a));
          o requiring federal authorities, rather than merely encouraging them to conduct environmental assessment (paragraph 4(b));
          o referring to "sustainable development" instead of "a healthy economy" (paragraph 4(b));
          o fostering public participation in environmental assessment (paragraph 4(b));
    * the Act should establish a Parliamentary Commissioner for Sustainable Development to report directly to Parliament, like the Auditor General (subsection 2(1), section 55);
    * the definition of environment should be expanded to include human and human-made systems, and the definition of "environmental effect" should be expanded to include our physical and cultural heritage (subsection 2(1));
    * the Act should be revised to close various loopholes which allow broad discretion to exempt a project from environmental assessment, including:
          o removing exemptions from the definition of "federal authority" (subsection 2 (1));
          o broadening the wording of the description of projects to be assessed (section 5);
          o replacing a subjective test with an objective test, regarding:
          o whether a project is excluded (section 6);
          o whether an environmental assessment has been completed (subsection 7(2));
          o whether a project is on the mandatory study list or an exclusion list (subsection 13(1));
          o whether a project is on the mandatory study list (section 17);
          o limiting the exclusions for emergencies (subsection 61);
          o barring other federal authorities (in addition to the responsible authority) from taking actions to allow a project to proceed where it fails to meet the criteria (paragraph 34(1)(b));
          o striking out the provision allowing the Minister to bypass environmental assessment under the Act by agreeing with a province on "another manner of conducting an assessment" in lieu of a joint federal/provincial assessment (subsection 43(2));
          o requiring ("shall") rather than allowing ("may") the Minister to establish a review panel where the criteria are met regarding trans-border situations (section 43, 44 and 45);
          o requiring federal standards to be met in provisions for environmental assessment included in international agreements (subsection 50(2));
          o removing the power to make regulations exempting environmental assessment because of national security (paragraph 55(1)(e));
          o removing the power to make regulations varying or excluding environmental assessment of a broad range of projects (paragraphs 55(1)(i));
          o removing the power to make regulations exempting "inappropriate" physical activities from environmental assessment (subsection 55(2));
          o specifying that the Agency's objectives include promoting uniformity and harmonization of environmental assessment within the federal government (paragraph 58(b));
    * for decisions about whether to proceed to further environmental assessment, the test should be whether the project "may cause significant adverse environmental affects" rather than the currently overly-broadly defined terms "mitigation" or "mitigable", regarding:
          o the definition of "mitigation" (subsection 2(1));
          o a decision to proceed to further review following screening (section 16);
          o a decision to proceed to further review after a mandatory study report (section 20);
          o a decision to refer a project for mediation or a review panel at any time (section 21);
          o a decision by the Minister to refer a project to mediation or panel review (section 24);
          o an order by the Minister to halt a project pending environmental assessment (subsection 47(1));
    * for decisions about whether to allow a project to proceed following the completion of environmental assessment, the current test of "mitigable" or "justified" adverse environmental effects should be replaced with a two-pronged test that the project including any mitigation measures that will be undertaken:
         1. is not likely to cause significant adverse environmental effects; or
         2. will contribute to sustainable development, regarding:
          o a decision by a responsible authority to allow a project to proceed following mediation or a review panel(subsection 34(1)); and
          o an order by the Minister to halt a project following environmental assessment (subsection 47(2));
    * the Act should be amended to improve the opportunities for public participation in federal environmental assessment, including:
          o defining a "stakeholder", who will have the right to participate in a mediation or assessment by a review panel (subsection 2(1), section 25, subsection 32(5));
          o provision for public notice and an opportunity to comment, regarding:
          o exclusion (section 6);
          o declaration of a class screening report (subsection 14.1);
          o the decision following screening (section 16);
          o the decision following mediation or review panel (section 34);
          o guidelines, etc., established by the Minister (section 54);
          o requiring a decision maker to give reasons where a decision is contrary to previous recommendations or comments, regarding:
          o the decision following screening (section 16);
          o the decision following mediation or a review panel (section 34);
          o requiring notice to the public regarding trans-border environmental assessment (section 43, 44 and 45);
          o establishing a mailing list (subsection 19(1));
          o providing for party status in assessments by review panels, with the right to be represented by counsel, to present evidence and to question evidence received by the panel (section 32);
          o providing for funding of public participants in environmental assessment (section 59), including:
          o providing that public parties to a mediation can receive whatever participant funding would be available to them if the assessment were to be done by a review panel (section 25);
          o providing a right to public access to records in a public registry (section 51), including:
          o providing that the registry is to ensure fast and affordable public access (section 51);
          o providing that the registry can include records in electronic form (subsection 51(3));
          o providing authority for regulations to ensure electronic access by the public to public registries (paragraph 55(1)(h));
          o requiring responsible authorities' "statistical summaries" to be made available to the public (subsection 52(2));
    * providing authority for the Governor in Council to prescribe procedures for environmental assessment of, and follow-up programs regarding, federal policies and procedures (section 4, subsection 55(1));
    * the authority of the Minister should be expanded to include powers:
          o to serve as a responsible authority where no other federal authority is available to do so (section 5);
          o to decide an appeal from a decision by a responsible authority to exclude a project from environmental assessment (subsection 6(1));
          o to direct responsible authorities respecting their duties and functions where there is a conflict between the responsible authorities (subsection 8(2));
          o to give directions to a responsible authority regarding the scope of environmental assessment(subsection 11(3));
          o to hear an appeal of the decision of a responsible authority regarding whether a project is on the mandatory study list or an exclusion list (section 13);
          o to give directions to a responsible authority regarding use of the class screening report (subsection 14(3) and 14(4));
          o to hear an appeal from a decision of a responsible authority to allow a project to proceed following screening without referring it to mediation or a review panel (section 16);
          o to direct a responsible authority regarding the use of a previously conducted screening report or mandatory study report (section 15 and 18);
          o to order parties to a mediated agreement to comply with the agreement (section 29);
          o to be consulted by a responsible authority regarding a decision to allow a project to proceed or to halt a project after environmental assessment (subsection 34(1));
          o to initiate not only a review panel but other forms of environmental assessment regarding trans-border situations (subsection 43(1), 44(1), 45(1) and 45(2));
          o to order a halt or impose specific requirements on any project, not just a project in a trans-border situation, during or following environmental assessment (section 47);
          o to issue guidelines regarding follow-up programs, in addition to environmental assessment (subsection 54(1));
          o to issue guidelines and codes of practice regarding qualifications and experience required by individuals who carry out aspects of environmental assessments or follow-up programs (subsection 54(1));
          o to establish a mechanism for removing mediators and members of review panels based on conflict of interest or other factors unrelated to the views or actions of the mediator or member of a review panel regarding substantive issues (subsection 54(1));
          o to order a proponent to carry out studies and participate in an environmental assessment or follow-up program (subsection 54(1));
          o to order a proponent to provide financial security (subsection 54(1));
    * the Act should ensure that no federal authority (not merely the responsible authority) exercises a power in relation to a project until environmental assessment --including screening -- and related appeals are completed (section 7 and 9);
    * the factors to be considered in an environmental assessment should be the same for all levels of assessment (section 11);
    * the provisions for authorizing mediation should be strengthened by:
          o authorizing mediation of an issue or issues while other aspects of a project are assessed by a review panel (subsection 25(3));
          o requiring the Minister to consult with a mediator and parties to the mediation before terminating a mediation and referring the project to a review panel (section 29);
          o providing for mediation in trans-border situations (subsection 43(1), 44(1), 45(1) and 45(2));
          o incorporating in the Act the EARP criteria for members of review panels (section 30);
    * a responsible authority should be authorized to require a proponent to participate in a follow-up program (section 35);
    * joint assessments should be required to meet the federal requirements for environmental assessment (section 38 and 50);
    * rather than substituting assessment by other federal agencies or environmental assessment under the Act, the Act should provide for joint assessments by a responsible authority and the other federal agency (section 40);
    * where the criteria for environmental assessment in a trans-border situation are met, environmental assessment should be mandatory not optional (subsection 43(1), 44(1), 45(1) and 45(2));
    * the Act should include an offence provision with innovative sentencing options modeled after the Canadian Environmental Protection Act (CEPA) (discussed in relation to section 48); and
    * the Act should include a civil remedy for damages due to a violation of the Act modeled after CEPA section 136 (discussed regarding section 48).

      This is not intended to be an inclusive summary. Please refer to the section by section recommendations which follow.

PART II SECTION BY SECTION RECOMMENDATIONS
PREAMBLE

The most important problem with the Preamble is that it fails to set out the constitutional bases for the Act. Presumably these include the following:

(1) trade and commerce;

(2) criminal law (human health);

(3) seacoast and inland fisheries;

(4) treaty making (if this should be held by the courts to support federal legislation);

(5) Indians and lands reserved for the Indians;

(6) federal spending;

(7) federal property; and

(8) peace, order and good government (POGG).

Of these, the POGG power is by far the most important to advert to in the Preamble. This should be done by citing the national dimension of the problem and the national concern about it. The recommendation below is patterned after the Preamble to the Canadian Environmental Protection Act (CEPA).

Recommendation 1. We recommend that the Preamble of the Act be amended by:

(1) setting out the constitutional bases for the Act; and

(2) in particular adding the following paragraphs:

    "WHEREAS degradation of the environment is a matter of national concern;

    WHEREAS significant adverse environmental effects of human activities cannot always be contained within geographic boundaries;

    WHEREAS Canada must be able to fulfil its international obligations in respect of the environment;".

SUBSECTION 2(1) "COMMISSIONER"

We recommend below regarding section 55 that there be a Parliamentary Commissioner on Sustainable Development. Accordingly, the term should be defined.

Recommendation 2. We recommend that section 2(1) of the Act be amended by adding the following, in alphabetical order:

    "`Commissioner' means the Parliamentary Commissioner on Sustainable Development appointed pursuant to subsection 55.1(1);"

SUBSECTION 2(1) "ENVIRONMENT"

The definition of "environment" is apparently intended to be broadly worded. However, paragraph (c) of the definition does not met this objective:

"(c) the interacting natural systems that include components referred to in paragraphs (a) and (b)" (emphasis added).

This seems to intend to exclude the human and human-made systems referred to in paragraphs (a) and (b).

Recommendation 3. We recommend that the definition of "environment" in subsection 2(1) of the Act be amended to add ", human and human-made" after "natural".
SUBSECTION 2(1) "ENVIRONMENTAL EFFECT"

This definition is apparently intended to be broadly worded. It specifically includes any change to the project caused by the environment, or any change in the environment caused by the project, including effects on "health and socio-economic conditions".

The problem is that the phrase "health and socio-economic conditions" does not clearly include our physical and cultural heritage. This should be made explicit. One of the strong consensus recommendations of the March 1988 national workshop on reforming federal environmental assessment was that the scope of the assessment should be broad, to ensure that legitimate concerns are not excluded.

Recommendation 4. We recommend that the definition of "environmental effect" in subsection 2(1) of the Act be amended by adding the phrase "or physical and cultural heritage" after "socio-economic conditions".
SUBSECTION 2(1) "FEDERAL AUTHORITY"

The definition of "federal authority" specifically excludes agencies of the Yukon Territory and the Northwest Territories, Indian band councils, harbours commissions, port corporations and corporations set out in either section 85 or Schedule III of the Financial Administration Act. These bodies are thus exempted from the main environmental assessment requirements of the Act. Paragraph 55(1)(j) of the Act, however, authorizes the Governor in Council to make regulations requiring some -- but not all -- of these bodies to conduct environmental assessment of projects for which they are proponents, provide financial support or provide federal land or interests in land.

It is not clear whether this approach -- exempting these bodies from the main EA requirements but authorizing regulations to impose special EA requirements -- is an improvement over the current Environmental Assessment and Review Process (EARP) Guidelines Order. Some of the bodies exempted in Bill C-78 because they are listed in Schedule III of the Financial Administration Act, such as Air Canada, the Central Mortgage and Housing Corporation, the national railways, the Export Development Corporation and the St. Lawrence Seaway, are expressly exempted by section 7 of the Guidelines Order from mandatory application of EARP, since they were listed in what was Schedule D of that Act.

It is arguable that others, not in Schedule D, such as the Canada Ports Corporation and agencies of the Territories, are covered by the Guidelines Order. However, in the past, the conventional view held by the federal government has been that these bodies are not covered by EARP.

On the other hand, the Canadian Wildlife Federation (Rafferty - Alameda) and Friends of the Oldman River cases have made it clear that federal authorities are obliged to apply the EARP process even where they have no other statutory authority to consider the environmental effects of a project. Thus, it is not clear now whether the courts would rule that EARP applies to these bodies or not.

Bill C-78 offers the potential to clarify that environmental assessment must be conducted by the bodies currently excluded from the definition of "federal authority". However, in the absence of draft regulations under paragraph 55(1)(j) it is impossible to determine whether the approach taken in the Act will actually result in adequate environmental assessment of projects for which these bodies are responsible. The most reliable method to ensure that such assessment occurs is to strike out the exemption of these bodies from the definition of "federal authority".

We understand that the primary rationale for these exclusions is that these bodies (except agencies of the Territories) operate in competitive marketplaces and that their ability to compete would be hampered if they were required to comply with the standard federal environmental assessment processes when their competitors are not required to conduct such assessments. While this rationale has some appeal, it falls short when compared to the goal of universal application of environmental assessment within the federal sphere. This goal is implicit in the assertion of the Preamble that:

    "...the Government of Canada is committed to exercising leadership within Canada and internationally in anticipating and preventing the degradation of environmental quality ... (and) to promoting public participation in the environmental assessment of projects to be carried out by or with the approval or assistance of the government of Canada..."

To achieve this goal, the Government of Canada should protect the competitive position of the currently-exempted bodies by pressing other jurisdictions to impose comparable environmental assessment requirements on the competitors of these bodies and by encouraging these bodies to promote the environmental assessment of their projects as a marketing feature. Proper environmental assessment should not be viewed as a luxury that can be afforded by bodies in the public sector but not by those in the private sector. Both sectors contribute to degradation of the environment and so changes must be made within both.

The rationale for excluding agencies of the Territories is presumably the desire to allow for flexibility in the development of new arrangements between the federal government and the Territories. We suggest that the goal of adequate environmental assessment within the federal sphere not be compromised by the development of these new arrangements. Accordingly, we suggest that the exemption for Territorial agencies be removed. Parliament should consider express legislation when and if it has been agreed that either or both of the Territories will assume responsibility for environmental assessment within their respective jurisdictions. In that case, the Act could be amended to allow for joint assessments between the federal government and the government of what is now a Territory, where there is some additional basis for a federal environmental assessment.

Recommendation 5. We recommend that the definition of "federal authority" in subsection 2(1) of the Act be amended by:

(1) replacing "Schedule I or II" in paragraph (c) with "Schedule I, II or III or to section 85 of "; and

(2) striking out the words:

    "but does not include the Commissioner in Council or an agency or body of the Yukon Territory or the Northwest Territories, a council of the (sic) band within the meaning of the Indian Act, The Hamilton Harbour Commissioners constituted pursuant to The Hamilton Harbour Commissioners' Act, The Toronto Harbour Commissioners constituted pursuant to The Toronto Harbour Commissioners' Act, 1911, a harbour Commission established pursuant to the Harbour Commissions Act, a corporation set out in section 85 of the Financial Administration Act or Schedule III to that Act or a corporation controlled by such a corporation".

SUBSECTION 2(1) "MITIGATION"

This definition is extremely broadly worded:

    "`mitigation' means, in respect of a project, the elimination, reduction or control of the adverse environmental effects of the project, and includes restitution...through replacement, restoration, compensation or any other means;"(emphasis added).

We note two problems.

First, this overly broad definition is incorporated into sections 16, 34, 47 and 48, where the terms "mitigated" and "mitigable" are used as triggers for decisions as to whether to proceed with a project. It is difficult to imagine a project -- no matter how environmentally inappropriate -- regarding which the adverse environmental effects could not be reduced or controlled or compensated for at least to some extent. Thus, the broad definition of mitigation means that the tests set out in sections 16, 34, 47 and 48 are virtually meaningless.

We suggest that it would be preferable to limit the definition of "mitigation" by the phrase "substantial elimination of adverse environmental effects". We suggest below regarding subsection 34(1) that the test for whether a project should be allowed to proceed following completion of environmental assessment should be two-pronged:

(a) the project is not likely to cause significant adverse environmental effects, or

(b) the project will contribute to sustainable development.

The second prong of the test allows substantial leeway for decision making, without relying on an overly broad definition of "mitigation".

Second, the phrase "and includes restitution ...through...compensation..." means that the payment of money aimed at compensation for environmental damages could suffice to meet the criteria for allowing a project to proceed. It is hard to believe that this would have been the intention of the drafters of the Act. If the intention was to include some form of what might be called "environmental compensation" then we suggest that the intention would be more clearly expressed by relying on the other two terms in the paragraph, "replacement" and "restoration".

Recommendation 6. We recommend that the definition of "mitigation" in subsection 2(1) of the Act be amended by:

(1) replacing "the elimination, reduction or control of" with "the substantial elimination of"; and

(2) replacing "replacement, restoration, compensation" with "replacement or restoration".
SUBSECTION 2(1) "STAKEHOLDER"

The term "stakeholder" is not currently defined in subsection 2(1) of the Act. This would be a very useful concept to define for the purpose of identifying the parties who are entitled to participate in a mediation or assessment by a review panel. Related recommendations are set out below regarding section 25 and section 27.

Recommendation 7. We recommend that subsection 2(1) of the Act be amended by adding the following definition:

    "`stakeholder' in relation to an environmental assessment of a project means any person, including a government, an agency or other body created by government, an Indian band, or an unincorporated organization, who expresses an interest in the outcome of the assessment where such interest is neither frivolous nor vexatious;"

SUBSECTION 2(1) "SCREENING"

Regarding sections 43, 44 and 45 we recommend that the Minister's authority to establish a review panel be broadened to include the power to initiate screening. The definition of screening must be amended as a consequence.

Recommendation 8. We recommend that the definition of "screening" in subsection 2(1) of the Act be amended by replacing "section 13" with "section 13, 43, 44 or 45".
SUBSECTION 2(1) "SUSTAINABLE DEVELOPMENT"

The term "sustainable development" is not defined in the Act. However, a paraphrased version of its authoritative definition (World Commission on Environment and Development, Our Common Future, page 8) is incorporated in the second paragraph of the Preamble. It seems unnecessarily circuitous not to use the term sustainable development as a test in appropriate places throughout the Act.

Recommendation 9. We recommend that subsection 2(1) of the Act be amended by adding:

    "`sustainable development' means development that meets the needs of the present without compromising the ability of future generations to meet their own needs;".

SUBSECTION 2(2) CONTROL

This subsection defines the conditions under which a corporation is controlled by another corporation for the purposes of the Act. The definition is weak in that it requires the parent corporation to control more than 50% of the votes of the subsidiary corporation. In reporting (or publicly-traded) companies it is common for the parent corporation to exercise functional control over a subsidiary where the parent owns the largest single block of shares, even though this block may be substantially less than 50% of the voting rights.

Recommendation 10. We recommend that subsection 2(2) of the Act be amended to broaden the definition of control of one corporation by another to reflect the concept of "a non-arms length" relationship.
SECTION 4 PURPOSES

This section sets out the purposes of the Act. There are six problems here.

First, a problem with paragraph 4(a) is that it does not adequately express an intention to apply environmental assessment universally within federal jurisdiction, subject to appropriate exceptions. In particular, the use of the term "responsible authorities", referring to the authorities which are not to take actions with respect to a project prior to the "careful consideration" of the environmental effects of the project, is excessively narrow. The term "federal authorities" is wider and would be more appropriate.

The second problem concerns paragraph 4(b). Given the widespread non-compliance by federal authorities with the existing EARP Guidelines, the purpose of the new Act should be to require federal authorities to take the necessary actions, rather than to merely encourage them to do so.

The third problem is that the term "healthy economy" in paragraph 4(b) is undefined and is conceptually weaker than the term "sustainable development".

The fourth problem is that section 4 omits any mention of requiring opportunities for participation by members of the public in the environmental assessment process. Public participation is a key element of successful environmental assessment -- its importance is acknowledged in the Preamble -- and fostering it should be an explicit purpose of the Act.

Fifth, the section does not -- but should -- affirm that one purpose of the Act is to ensure that no project be allowed or assisted by any federal authority unless and until the proponent of the project has demonstrated that the project will cause no significant adverse environmental effects or will promote sustainable development.

Sixth, section 4 should be expanded to specify that one purpose of the Act is to provide authority for regulations governing environmental assessment of, and follow-up programs regarding, federal policies and programs.

Recommendation 11. We recommend that section 4 of the Act be amended by:

(1) in paragraph 4(a):

    (a) adding "affecting federal jurisdiction" after "the environmental effects of projects"; and

    (b) replacing "responsible authorities" with "federal authorities";

(2) in paragraph 4(b):

    (a) replacing "encourage responsible authorities" with "require federal authorities"; and

    (b) replacing "a healthy economy" with "sustainable development";

(3) adding a new paragraph 4(d) as follows:

    "4(d) to provide opportunities for participation by members of the public in environmental assessment";

(4) adding a new paragraph 4(e) as follows:

    "4(e) to ensure that no project is allowed or assisted by any federal authority unless and until the proponent of the project has demonstrated that the project will cause no significant adverse environmental effects or will promote sustainable development;"and

5) adding a new paragraph 4(f) as follows:

    "4(f)To provide authority for environmental assessment of, and follow-up programs regarding, federal policies and programs."

SECTION 5 - PROJECTS TO BE ASSESSED

This is a key section of the Act, setting out the situations in which an environmental assessment is required. We note five problems with this section.

First, paragraph 5(d) limits the projects for which environmental assessment is required to those for which a permit is issued or other action is taken pursuant to a statutory provision prescribed by the Governor in Council under paragraph 55(1)(g). This represents a dramatic curtailment of the current, universal scope of the EARP Guidelines Order set out in paragraph 6(b) of that Order as follows:

    "6. These Guidelines shall apply to any proposal... (b) that may have an environmental effect on an area of federal responsibility; ..."

This universal approach in the EARP Guidelines should be continued in the new Act. The recommendation below proposes paraphrasing the language of paragraph 6(b) of the Guidelines Order, but adding a provision to include the prescribed list under paragraph 55(1)(g). Thus, the prescribed list would provide particular instances that fit within the general language, but would not be an exhaustive list.

The second problem with section 5 is that paragraph 5(d) does not state clearly that a federal authority meets the criteria for triggering an environmental assessment where it declines to act in the specified situations. An important example is in the water quality and fish habitat protection provisions of the Fisheries Act. These are important areas of federal responsibility upon which projects may have an environmental effect. However, these provisions do not operate by way of a license or permit system. Rather, these provisions authorize federal intervention where necessary. Thus, federal support for a project under the Fisheries Act would be signified by its decision not to intervene to protect water quality or fish habitat. Such a decision clearly ought to be based on information made available through an appropriate environmental assessment. In the recommendation which follows, we propose changing the wording of subsection 5(d) to make it clear that this result will be achieved. We also recommend reversing the order of listing the terms, to ensure that "takes any other action" is not limited (following the principle of ejusdem generis*) to actions which are like issuing a permit or granting an approval.

The third problem relates to each of the four paragraphs of section 5. The section is worded so that an environmental assessment is required only where one of the four triggers actually occurs:

    "(a) ...commits the federal authority to carrying out the project ...;

    (b) makes or authorizes payments ...;

    (c) sells, leases, or otherwise disposes of those lands ...; or

    (d) ...issues a permit or license..."

This must be read in conjunction with subsections 7(1) and 7(2). Subsection 7(1) requires a federal authority that exercises a power, etc., referred to in section 5, to conduct an environmental assessment "as early as practicable in the planning stages of the project." The laudable intention of this provision is undermined by the fact that under the current wording the obligation does not arise until the authority actually commits itself to one of the actions set out in section 5.

Subsection 7(2) is more efficacious. It prohibits a responsible authority from exercising any power or performing any duty or function referred to in section 5 in relation to a project unless it is satisfied that an environmental assessment of the project has been completed. Thus, it would seem that the net effect of section 7 and section 5 is that the Act bars the authority from making the decision to assist the project without having completed an environmental assessment, but the assessment is not mandatory at the time the assessment is conducted because none of the actions specified in section 5 have yet occurred. While this may seem like a subtle distinction, it could lead to problems in enforcing the various provisions in the Act and Regulations which define and impose conditions on the conduct of an environmental assessment under the Act.

The fourth problem with section 5 is that in paragraph 5(b) it provides an exception so that an environmental assessment is not required where the financial contribution of a federal authority is in the form of a tax break, unless the project receiving the financial assistance is specifically named in the Act, regulation or order that authorizes the assistance. There is no logical rationale for requiring environmental assessment of certain projects that receive federal financial assistance in a positive form while at the same time failing to require environmental assessment of projects that receive federal financial assistance in a negative form, e.g., a tax break. This anomaly should be removed.

Fifth, as it is currently worded, section 5 of the Act leaves a critically important area of ambiguity regarding whether a project which is on the mandatory study list (established pursuant to paragraph 55(1)(c)) must be assessed where it is not clear that there is a federal authority which exercises a power, etc, under a statute listed pursuant to paragraph 55(1)(g). The Act should be amended to make it clear that assessment is required regarding any project on the mandatory study list and that the Minister is the responsible authority where there is no other applicable resonsible authority.

Recommendation 12. We recommend that section 5 of the Act be amended by:

(1) in paragraph 5(a) replacing "does any act or thing that commits" with "intends to do any thing or act that would commit";

(2) deleting from paragraph 5(b) the words:

    "except where the financial assistance is in the form of any reduction, avoidance, deferral, removal, refund, remission or other form of relief from the payment of any tax, duty or impost imposed under any Act of Parliament, unless that financial assistance is provided for the purposes of enabling an individual project specifically named in the Act, regulation or order that provides a relief to be carried out";

(3) in paragraph 5(b) replacing "makes or authorizes payments or provides a guarantee" with "intends to make or authorize payments or provide a guarantee";

(4) in paragraph 5(c) replacing "sells, leases or otherwise disposes of" with "intends to sell, lease or otherwise dispose of";

(5) in paragraph 5(d) replacing "under a provision prescribed pursuant to paragraph 55(1)(g), issues a permit or license, grants an approval or takes any other action" with:

    "is responsible for an area upon which a project has an environmental effect, including but not limited to where a federal authority intends to

    (i) take any action or refrain from taking any action, or

    (ii) issue a permit or license, or grant an approval

    under a provision prescribed pursuant to paragraph 55(1)(g)," and

(6) renumbering the current section 5, with the amendments recommended above as subsection 5(1), and adding a new subsection 5(2) as follows:

    "5(2) Where a project is on the mandatory study list or an environmental assessment of a project has been initiated under subsection 43(1), 44(1), 45(1) or 45(2), the Minister shall be the responsible authority in relation to the project if no other federal authority is the responsible authority.

SUBSECTION 6(1) EXCLUDED PROJECTS

This subsection sets out exclusions from the requirement for environmental assessment. There are six problems.

First, paragraph 6(1)(a) exempts a project from environmental assessment where "in the opinion of the responsible authority the project is described in an exclusion list" (emphasis added). This is a subjective test to determine what is really an objective question, that is, whether or not a project is described on an exclusion list. The test should be an objective test.

Second, it would be a conflict of interest for the responsible authority to have the final decision-making authority to exclude a project from environmental assessment under this subsection. Such a decision should be subject to an appeal to the Minister, who should be authorized to require that an environmental assessment be conducted. This will ensure consistency in the application of the Act, as well as preventing the responsible authority from being put in a conflict of interest.

Third, a responsible authority should be required to give notice to the public and provide an opportunity for comment when it intends to exclude a project from environmental assessment. Presumably, in most cases there will be no objection. But where a member of the public does object, it is critically important that the concern be addressed as soon as possible. Subsection 16(3) provides a useful model for such a provision, with the recommendations we make below for improving subsection 16(3).

Fourth, paragraph 6(1)(b) provides that an environmental assessment is not required where, among other things, the project is to be carried out during a national emergency for which temporary measures have been taken under the Emergencies Act. This provision is unnecessarily broad, in that on its terms it would apply to a project whether or not the project had any connection to the emergency. There must be an explicit link between the project and the emergency.

The fifth problem is that paragraph 6(1)(b) does not provide any reasonable mechanism to evaluate the environmental impact, even after the fact, of a project which meets the emergency conditions and is thus not required to be subjected to the usual environmental assessment. Since much of the environmental assessment contemplated by the Act involves measures for mitigation and follow-up monitoring, there would seem to be no reason to exclude totally an environmental assessment of emergency projects. Rather, it would make more sense to adjust the timing of environmental assessment of emergency projects to ensure that the assessment does not negate the potential of the project to deal with the emergency, while ensuring that the project is subject to as much environmental assessment as is reasonable in the circumstances. The recommendation below proposes authorizing the Minister to order an exemption from time requirements for the environmental assessment of a project linked to an emergency. In the alternative, there should be an appeal to the Minister of a decision by a responsible authority under paragraph 6(1)(b).

The sixth problem is that paragraph 6(1)(c) of the Act would exclude the requirement for an environmental assessment where the project is in response to what the responsible authority considers to constitute an emergency.

We question whether the section is necessary. Paragraph 6(1)(b) provides for exclusion from environmental assessment regarding emergencies dealt with under the Emergencies Act. That is the federal legislation designed to allow appropriate federal response to emergencies. If the Emergencies Act is not capable of authorizing federal authorities to handle certain emergencies regarding which it may be desirable to exclude or alter environmental assessment, then we suggest that it would be more sensible to amend the Emergencies Act to correct that problem than to add a second structure for dealing with emergencies by adding paragraph 6(1)(c) to Bill C-78. Thus, our primary recommendation below is that paragraph 6(1)(c) be struck out and then, if necessary, that changes be made to the Emergencies Act.

In the alternative, if Parliament is to provide in Bill C-78 for emergencies not dealt with under the Emergencies Act, then paragraph 6(1)(c) needs improvement. The test in paragraph 6(1)(c) is subjective ("in the opinion of the responsible authority"). This makes the test extremely broad. Moreover, paragraph 6(1)(c) puts the responsible authority in a stark conflict of interest. The responsible authority is in some cases the proponent of the project. It would be quite inappropriate for the responsible authority to be authorized to grant itself an exemption from environmental assessment, especially on the basis of a subjective test.

The Minister is the most appropriate official to be authorized to relieve a project from the usual requirements for environmental assessment in emergency circumstances. As discussed above, however, it would be better to authorize the Minister to adjust the timing of environmental assessment in such circumstances, rather than authorizing a complete exemption from environmental assessment. At the very least, there should be an appeal to the Minister of a decision by a responsible authority under paragraph 6(1)(c).

Recommendation 13. We recommend that subsection 6(1) of the Act be amended by:

(1) striking out "(a) in the opinion of the responsible authority";

(2) adding new subsections 6(3), (4) and (5) as follows:

    "6(3) At least 30 days before taking a course of action in relation to a project pursuant to subsection 6(1) [modified as recommended above], the responsible authority shall give notice to the public and the Agency, shall provide an opportunity for comment, and shall take into consideration any comments that are filed.

    6(4) Where a responsible authority acts under subsection 6(1) [modified as recommended above], it shall give notice to the public and the Agency and provide written reasons where its decision is contrary to any comments received from members of the public.

    6(5) Within 30 days of the last date of public notice under subsection 6(4) any person may appeal to the Minister, who, after hearing the appellant, the responsible authority, the proponent and anyone who filed a comment under subsection 6(3) and anyone he or she considers relevant, may affirm, vary or revoke the decision of the responsible authority.";

(3) striking out paragraph 6(1)(b) and adding a new subsection 6(1.1) as follows:

    "6(1.1) Where environmental assessment of a project is required and the project is to be carried out in response to a national emergency for which special temporary measures in relation to the project have been taken under the Emergencies Act, the Minister may by order exempt the assessment from any provision of this Act or regulation relating to the time at which the assessment or any part of it is to occur, in order to ensure that the assessment does not jeopardize the potential of the project to respond effectively to the emergency.";

(4) striking out paragraph 6(1)(c);

(5) in the alternative, if our recommendation (4) is not accepted, replacing paragraph 6(1)(c) with a new subsection 6(1.2) as follows:

    "6(1.2) Where

    (i) environmental assessment of a project is required,

    (ii) the project is to be carried out in response to circumstances that constitute an emergency, and

    (iii) the Minister considers that carrying out the project is in the interest of public health, safety or protection of the environment,

    the Minister may by order exempt the assessment from any provision of this Act or regulation relating to the time at which the assessment or any part of it is to occur, in order to ensure that the assessment does not jeopardize the potential of the project to respond effectively to the emergency.";

(6) adding new subsections 6(1.3) and (1.4) as follows:

    "6(1.3) Where the Minister acts under subsection 6(1.1) [or subsection 6(1.2)] he or she shall give notice to the public and provide written reasons for the decision.

    6(1.4) Within 30 days of the last day of public notice under subsection 6(1.3) any person may appeal to the Governor in Council, which, after hearing the appellant, the responsible authority, the Minister, the proponent, anyone who has filed a written comment in relation to the project in question and anyone it 
considers relevant, may affirm, vary or revoke the decision of the Minister." 

SUBSECTION 7(2) NO POWER, ETC., TO BE EXERCISED UNTIL ASSESSMENT IS COMPLETE

Subsection 7(2) of the Act provides that:

    "7(2) A responsible authority shall not exercise any power or perform any duty or function referred to in section 5 in relation to a project unless it is satisfied that an environmental assessment of the project has been completed" (emphasis added).

There are three problems.

First, the evident purpose of the subsection is thwarted by the fact that it applies only to the responsible authority, not to all federal authorities. It would make no sense for a federal authority to take steps to approve or assist a project at the same time as the responsible authority is refraining from taking such steps because an environmental assessment is not completed. The subsection should apply to all federal authorities.

Second, this is a subjective test. That is, the test, as it is currently worded, is whether the responsible authority "is satisfied" that an assessment has been completed, not whether an assessment has actually been completed. The criterion -- whether or not an environmental assessment has been completed -- is objective and readily ascertainable. An objective test would be preferred in this situation because being more readily verifiable it creates greater certainty for the various parties involved.

Third, if our recommendations regarding section 6 are accepted, subsection 7(2) should be reworded to provide that federal action is barred until the determination of any such appeals.

Recommendation 14. We recommend that subsection 7(2) of the Act be amended by:

(1) replacing "responsible authority" with "federal authority";

(2) striking out the phrase "it is satisfied that"; and

(3) replacing the phrase "an environmental assessment of the project has been completed" with "environmental assessment of the project and any related appeals have been completed".
SUBSECTION 8(2) "DISAGREEMENT"

This subsection provides that where there are two or more responsible authorities in relation to a project and they disagree as to the manner in which they are to perform their duties and functions under the Act and regulations they "may ask the Agency for advice respecting their duties and functions."

As is it currently worded, this section is both unnecessary -- any federal authority could ask the Agency for advice without needing statutory authorization to do so -- and ineffective -- if one or more of the responsible authorities are recalcitrant the subsection provides no mechanism to ensure that the dispute is resolved. In order to ensure that this dispute resolution mechanism is effective, it is necessary to provide that some office has the authority to impose a solution. The Minister is the obvious choice. In many cases, the existence of such a power may motivate the parties to resolve their own differences.

Recommendation 15. We recommend that subsection 8(2) of the Act be amended by replacing the current wording with the following:

    "8(2) In the case of a disagreement, the Minister shall direct the responsible authorities referred to in subsection 8(1) respecting their duties and functions."

SECTION 9 - ACTION OF FEDERAL AUTHORITIES SUSPENDED

This section bars a federal authority from allowing a project to proceed where it is on the mandatory study list or is referred to mediation or a review panel before the responsible authority has taken action under paragraph 34(1)(a).

As far as it goes, this section is a very useful improvement over the EARP Guidelines Order. However, there is no reason why it should not apply to any project which is undergoing environmental assessment, including screening. Our recommendation here is to the same effect as our recommendation regarding subsection 7(2). Similarly, if our recommendations regarding appeals are accepted, section 9 should be reworded accordingly.

Recommendation 16. We recommend that section 9 of the Act be amended by:

(1) replacing "a project is described in the mandatory study list or is referred to mediation or a review panel" with "any environmental assessment is required or has been initiated";

(2) adding "subsection 16(1) or" after "a course of action pursuant to"; and

(3) adding "and any related appeal has been completed" after "paragraph 34(1)(a)".
SUBSECTIONS 11(1) AND (2) - "FACTORS TO BE CONSIDERED"

These two subsections set out the factors to be considered during environmental assessment. We see nine problems with the current wording.

First, the subsections divide the factors to be considered into two subsets, the first to be considered in every assessment, and the second to be considered only in a mandatory study, mediation, or assessment by a review panel. In other words, during the screening process the factors set out in subsection 11(2) do not need to be considered, that is, the purpose of the project, alternative means of carrying it out, a follow-up program, the regeneration of renewable resources, or other matters required by the responsible authority or the Minister.

This would appear to be a highly counterproductive distinction. The purpose of a screening is, among other things, to determine whether the project ought to be subjected to mediation or assessment by a review panel. In order to achieve this purpose, those conducting the screening must be able to consider the factors which would be considered during mediation or assessment by a review panel in order to determine whether the particular project warrants more intensive scrutiny. The perverse effect of the current wording is that a project would have to be sent to mediation or assessment by a review panel in order to consider the factors set out in subsection 11(2). However, if those factors had been considered in the screening stage, it might have been decided not to send the project on for additional scrutiny. Therefore, the factors listed in subsection 11(2) should be moved into subsection 11(1).

The second problem is that paragraph 11(1)(a) requires consideration of "any cumulative environmental effects that are likely to result from the project" (emphasis added). This would be unduly restrictive. A proper environmental assessment should consider effects that may occur, not only those that are likely to occur. The relative probability of the occurrence of a particular effect is a key matter to be considered during the assessment process.

A third problem is that paragraph 11(1)(a) requires consideration of the cumulative environmental effects of the project "in combination with other projects that have been or will be carried out." (emphasis added) "Project" is a defined term in the Act, and it is far more restrictive than the wide range of other activities or operations which could exacerbate -- or mitigate -- the effects of the project being assessed. A valid environmental assessment of a project must consider its cumulative environmental effects in combination with all other relevant activities or operations, past, present and anticipated.

The fourth problem concerns paragraph 11(1)(c), which requires consideration of comments concerning environmental effects received from the public. It should also require public notice and an opportunity for the public to comment.

Another problem with paragraph 11(1)(c) is that it restricts public comments to comments concerning the environmental effects of the project. The assessment should consider public comments regarding any of the matters set out in section 11 which are to be considered during the assessment.

An additional problem with paragraph 11(1)(c) is that it requires the assessment to consider "comments concerning those effects received from the public in accordance with this Act and the regulations". The problem here is that if no regulations on this subject have been adopted, the paragraph could be construed to mean that no comments meet the description in the paragraph.

The seventh problem is that paragraph 11(2)(e) requires consideration of "any other matter that the responsible authority, or the Minister at the request of the responsible authority, may require" (emphasis added). It seems unnecessary to shackle the Minister with a requirement that a matter can only be considered where the responsible authority so requests. The paragraph does explicitly authorize the responsible authority to require that a particular matter be considered. It should also authorize the Minister to require that a particular matter be considered during an assessment.

Eighth, section 11 fails to specify adequately one of the most important factors that should be considered in relation to a project: the need for the project, and the environmental effects of alternative ways of meeting that need.

The ninth problem is that section 11 does not -- but should -- require consideration of whether, in all the circumstances, the project would contribute to sustainable development.

Recommendation 17. We recommend that section 11 of the Act be amended by:

(1) removing paragraphs 11(2)(a), (b), (c), (d), and (e) from subsection 11(2) and adding them after paragraph 11(1)(d) as paragraphs 11(1)(e), (f), (g), (h) and (i), respectively, and striking out the remaining portion of subsection 11(2);

(2) in paragraph 11(1)(a):

    (a) replacing "are likely to" with "may"; and

    (b) replacing "other projects" with "any other projects, activities or operations that have been, are being or will be undertaken";

(3) in paragraph 11(1)(c):

    (a) replacing "concerning those effects" with "concerning any of the matters set out in this section";

    (b) adding ", following reasonable notice of the nature of the project and any anticipated environmental effects and a reasonable period for comment," after "the public"; and

    (c) adding ", if any" after "the regulations";

(4) in new paragraph 11(1)(i) [currently paragraph 11(2)(e)] by striking out the phrase "at the request of the responsible authority";

(5) adding a new paragraph 11(1)(e.1) as follows:

    "11(1)(e.1) the need for the project, and the environmental effects of alternative means of meeting that need that are technically and economically feasible;" and

(6) adding a new paragraph 11(1)(i.1) as follows:

    "11(1)(i.1) in all the circumstances, whether the project including mitigation measures would contribute to sustainable development."

SUBSECTION 11(3) DETERMINATION OF FACTORS

This subsection provides that the scope of the factors to be considered during an assessment shall be determined by the responsible authority or, where a project is referred to mediation or a review panel, by the Minister. There are three problems.

First, it would be problematic to leave the ultimate authority to determine the scope of the factors to be considered in the hands of the responsible authority alone. This would thwart the objects of the Agency which are to administer the environmental assessment process and to promote uniformity and harmonization in the assessment of environmental effects (paragraph 58(a) and (b)). The primary responsibility for determining the scope of the factors to be considered should rest with the responsible authority. However, there should be an ultimate authority in the Minister (who will act on advice from the Agency) to control the scope of the factors being considered, either on his or her own initiative or upon request.

Second, it is very important that the public have an opportunity to provide input to the determination of the scope of the factors to be considered during an assessment and to the fixing of the terms of reference of a mediation or review panel. Good consultation at this early stage can save much time later on in the assessment.

Third, if our recommendation regarding subsections 11(1) and 11(2) are accepted, then subsection 11(3) should be reworded accordingly.

Recommendation 18. We recommend that section 11 of the Act be amended by:

(1) adding a new subsection 11(3.1) as follows:

    "11(3.1) In making a determination under paragraph 11(3)(a), the responsible authority shall follow any directions given by the Minister.";

(2) replacing "paragraphs (1)(a), (b) and (d) and (2)(b), (c) and (d)" with "paragraphs 1(a), (b), (d), (e.1), (f), (g), (h) and (i.1)"; and

(3) adding ", following reasonable notice and at least 30 days for comment by the public,".
SUBSECTION 11(4) - FACTORS NOT INCLUDED

This section provides as follows:

    "11(4) An environmental assessment of a project is not required to include a consideration of the environmental effects that could result from carrying out the project during a national emergency for which special temporary measures have been taken under the Emergencies Act."

This subsection is confusing. Is the phrase "is not required to" intended to mean "shall not"? Is it intended that the subsection is to apply where the special measures have been taken at the time of the assessment? If not, how could a current environmental assessment reasonably anticipate the nature of a future national emergency, or determine which future national emergencies might be the subject of special temporary measures under the Emergencies Act? Moreover, the intention of the subsection is difficult to discern because the subsection draws no connection between the project or its environmental effects on one hand, and the national emergency, on the other hand.

In addition, the subsection appears to be unnecessary, as paragraph 6(1)(b) of the Act provides that environmental assessment of a project is not required where the project is to be carried out during national emergencies of a particular type. (Note our recommendation above for improving the wording of paragraph 6(1)(b).)

Recommendation 19. We recommend that subsection 11(4) of the Act be struck out.
SUBSECTION 13(1) SCREENING

This subsection requires screening where the responsible authority is of the opinion that a project is not described in the mandatory study list or any exclusion list. There are four problems here.

First, the determination of whether a project is on a list is left to the subjective opinion of the responsible authority. Whether a project is on a list is an objective matter best governed by an objective test.

Second, subsection 13(1) does not specify what is to be done and what criteria are to govern where there is an uncertainty as to whether a project is or is not described in the mandatory study list or any exclusion list. The recommendation below proposes that any doubt as to whether a project is on a list be resolved in favour of the decision which would mean that more thorough environmental assessment would be undertaken.

Third, subsection 13(1) does not specify what is to be done where there is a dispute about whether a project is on a list. The recommendation below proposes that in the event of an unresolved dispute, an appeal would lie to the Minister.

Fourth, subsection 13(1) does not give the responsible authority the option of immediately referring a project for mediation or a review panel. If it is clear from the outset that a mediation or a review panel is to be the outcome, there is no point in requiring a screening to be conducted. Section 21 allows a responsible authority to refer a project to the Minister for mediation or a review panel, but it is not clear that this vacates the authority's obligation to conduct a screening.

Recommendation 20. We recommend that section 13 be amended by:

(1) striking out the phrase "a responsible authority is of the opinion that" in subsection 13(1);

(2) replacing the current paragraphs 13(1)(a) and (b) with the following:

    "(a) a screening of the project is conducted and a screening report is prepared; or

    (b) the project is referred to the Minister for a referral to mediation or a review panel in accordance with section 25."

(3) adding a new subsection 13(1.1) as follows:

    "13(1.1) Any uncertainty about whether a project is on the mandatory study list or any exclusion list, whether a project should be referred for mediation or assessment by a review panel, or whether a federal authority is required to conduct or to ensure that an environmental assessment is conducted shall be resolved in favour of the decision which will ensure the greater degree of environmental assessment."; and

(4) adding a new subsection 13(1.2) as follows:

    "13(1.2) Anyone who disagrees with a decision of a responsible authority under subsection 13(1) may appeal to the Minister, who, after hearing the appellant, the responsible authority and the proponent, may affirm, vary or revoke the decision of the responsible authority."

SUBSECTION 14(1) - DECLARATION OF CLASS SCREENING REPORT

This subsection allows the Agency to declare a class screening report for use as a model in conducting screenings of other projects. This would be a useful procedure in many instances.

However, it also will have the effect of limiting the scope of subsequent screenings for which it is used as a model. For this reason, members of the public should have an opportunity to comment on whether a report should be used as a model after is has been used for the particular project for which it was intended.

A second problem with subsection 14(1) is that it restricts the Agency so that it may only declare a report to be a class screening report on the request of the responsible authority. The Agency should have the authority to act on its own initiative.

Recommendation 21. We recommend that subsection 14(1) of the Act be amended by:

(1) adding the phrase "and following reasonable public notice and a reasonable period for members of the public to comment" after "on the request of the responsible authority"; and

(2) adding "or on its own initiative" after "on the request of the responsible authority".
SUBSECTION 14(3) - USE OF CLASS SCREENING REPORT

This subsection allows a responsible authority to utilize a class screening report. We note two problems similar to those that we discussed above regarding subsection 13(1).

First, the question of whether a project or part of a project is within a class in respect of which a class screening report has been declared is left to the subjective opinion of the responsible authority.

Second, the subsection should allow the Minister to oversee the process.

Recommendation 22. We recommend that subsection 14(3) of the Act be amended by:

(1) striking out the phrase "in the opinion of a responsible authority"; and

(2) adding a new subsection 14(3.1) as follows:

    "14(3.1) When acting pursuant to subsection 14(3), a responsible authority shall follow any directions by the Minister."

SUBSECTION 14(4) - NECESSARY ADJUSTMENTS

This subsection requires a responsible authority which is using a class screening report to take into account local circumstances and cumulative environmental effects. There are three problems, each of which have been discussed above.

First, the subsection neglects to provide the Minister with the power to oversee the responsible authority's determination of which cumulative effects to consider.

Second, consideration of cumulative environmental effects is restricted to those that are "likely to result" rather than those that may result.

Third, the cumulative environmental effects are restricted to those "from the project in combination with other projects." This inappropriately excludes the impact of the cumulative environmental effects of the project caused by other activities or operations in addition to other "projects" as defined in the Act.

Recommendation 23. We recommend that subsection 14(4) of the Act be amended by:

(1) adding "subject to any directions by the Minister" after "in the opinion of the responsible authority" in each of the two locations in which that phrase occurs; and

(2) replacing the phrase "are likely to result from the project in combination with other projects" with "may result from the project in combination with any other projects, activities or operations that have been, are being or will be undertaken".
SUBSECTION 15(1) - USE OF PREVIOUSLY CONDUCTED SCREENING

This subsection allows a responsible authority to use the report of a previously conducted screening where the project was not carried out after the original screening. The problem is that it does not provide for directions from the Minister.

Recommendation 24. We recommend that 15(1) of the Act be amended by adding "subject to any directions by the Minister" after "to whatever extent the responsible authority considers appropriate".
SUBSECTION 15(2) - NECESSARY ADJUSTMENTS

This subsection requires a responsible authority to make adjustments where it uses the report of a previously conducted screening. There are two problems with this subsection.

The first, discussed above, is the need for the Minister to have the power to give directions, to ensure consistency.

The second is the need to require consideration of changes in the environment, changes in the environmental effects of the project, and changes in the environmental effects of any changes in the project, as well as changes in the circumstances of the project, where a previously conducted screening is used at a later date. Lest this suggestion seem too obvious to warrant an amendment to the Act, we note that the second phase of the joint federal/Alberta review of the proposed Alpac pulp mill was expressly limited -- despite public criticism -- to considering the feasibility of proposed changes to the project without considering the impact on the environment of the changed project.

Recommendation 25. We recommend that subsection 15(2) of the Act be amended by:

(1) adding ", subject to any directions by the Minister," after "in its opinion"; and

(2) adding "in the environment, the environmental effects of the project including any changes in the project, or" after "any significant changes".
SUBSECTION 16(1) - DECISION OF RESPONSIBLE AUTHORITY

This subsection sets out the criteria upon which the responsible authority is to choose the appropriate action following completion of a screening report. There are four basic problems with this subsection.

The first problem is that the terms "mitigated" and "mitigable" form the crucial portion of the test to determine the action which will follow the screening report. As discussed above, the current wording of the definition of "mitigation" in subsection 2(1) of the Act ("`mitigation' means...the elimination, reduction or control of the adverse effects..." (emphasis added)) is so broad that virtually any project would be mitigable. Thus, according to the current wording, projects that would cause significant adverse environmental effects would normally not -- if those effects could be reduced or controlled -- be subjected to environmental assessment beyond that conducted by the responsible authority. In such cases, further assessment would occur only if the Minister exercises his or her power under section 24 to refer the project to mediation or a review panel.

We favour an approach in which the test for further environmental review following the screening report is whether the screening report indicates that the project including any mitigation measures that will be undertaken may have significant adverse environmental effects. We recommend below regarding subsection 34(1) that the criteria for allowing a project to proceed following mediation or a review panel be broadened to include a project which will contribute to sustainable development even if it may cause significant adverse environmental effects. We also recommend that a decision at that point (under subsection 34(1)) be appealable to the Governor in Council. These are provisions that are not appropriate at the screening stage, before a full environmental assessment has been completed.

Second, paragraph 16(1)(c) provides that where the project fails to meet environmental criteria the responsible authority shall not take any step to assist the project. The paragraph should apply to any federal authority.

The third problem is that the responsible authority is not -- but should be -- required to give reasons where its decision under subsection 16(1) is contrary to any recommendation it has received.

Fourth, it should be made explicit that a person has a right to appeal to the Minister where the responsible authority decides to allow the project to proceed without referring it for mediation or a review panel. A right to appeal does exist implicitly, since a person could at any time ask the Minister to exercise his or her authority under section 24 to refer the project to mediation or a review panel. However, a right to appeal should be stated expressly, for the sake of completeness and certainty.

Recommendation 26. We recommend that subsection 16(1) be amended by:

(1) in paragraph 16(1)(a):

    (a) replacing "the project is not likely to cause" with "the project including any mitigation measures that will be undertaken will not cause"; and

    (b) striking out "or (ii) any such effects can be mitigated,";

(2) in paragraph 16(1)(b):

    (a) replacing "the project is likely to cause" with "the project including any mitigation measures that will be undertaken may cause"; and

    (b) striking out "that may not be mitigable";

(3) in paragraph 16(1)(c):

    (a) replacing "the project is likely to cause" with "the project including any mitigation measures that will be undertaken is likely to cause"; and

    (b) replacing "mitigated" with "substantially eliminated and is not likely to promote sustainable development"; and

    (c) replacing "the responsible authority shall not exercise" with "no federal authority shall exercise".

(4) adding a new subsection 16(4) as follows:

    "16(4) Where a responsible authority acts under subsection 16(1) it shall give notice to the public and provide written reasons in any instance where it has not followed a recommendation within the screening report or made by a member of the public."; and

(5) adding a new subsection 16(5) as follows:

    "16(5) Within 30 days of the last date of public notice of a decision under paragraph 16(1)(a), any person may appeal to the Minister, who, after hearing the appellant, the responsible authority, the proponent and anyone who filed a complaint under subsection 16(3), may refer the project to mediation or a review panel in accordance with section 24."

SUBSECTION 16(3) - CONSIDERATION OF PUBLIC CONCERNS

This is a useful subsection requiring the responsible authority to consider public input subsequent to the completion of the screening report and prior to making a decision regarding the next step to be taken. There are three problems.

First, the subsection does not specify a minimum period of time for comment. Thirty days would seem reasonable.

Second, although the subsection requires the responsible authority to give the public an opportunity to examine and comment on the screening report, it should also require the responsible authority to give notice to the public.

Third, the subsection should explicitly require the responsible authority to provide notice to and an opportunity for comment by the Agency, in order to ensure that the Agency is able to fulfill its mandate to administer the environmental assessment process and to promote uniformity and harmonization, pursuant to section 58 of the Act.

Recommendation 27. We recommend that subsection 16(3) of the Act be amended by replacing "give the public an opportunity" with "give notice to the public and the Agency at least 30 days".
SECTION 17 - MANDATORY STUDY

This section requires the responsible authority to ensure that a mandatory study is completed or that a project is referred for mediation or a review panel where the project is one that the authority "is of the opinion" is described in the mandatory study list. The problem is that section 17 utilizes a subjective test where it should use an objective test to determine if a project is on the list, as was discussed regarding subsection 13(1).

Recommendation 28. We recommend that section 17 of the Act be amended by striking out "a responsible authority is of the opinion that".
SECTION 18 - USE OF PREVIOUSLY CONDUCTED MANDATORY STUDY

This section provides for the responsible authority to use or allow the use of a previously conducted mandatory study. Again, the only problem here is the need for the Minister to be able to provide directions.

Recommendation 29. We recommend that section 18 of the Act be amended by:

(1) in subsection 18(1) adding ", subject to any directions by the Minister," after "to whatever extent the responsible authority considers appropriate"; and

(2) in subsection 18(2) adding ", subject to any directions by the Minister," after "in its opinion".
SUBSECTION 19(1) - PUBLIC NOTICE

This section requires the Agency to publish a notice setting out the deadline for public comments on a mandatory study report. Because of the importance of ensuring that affected members of the public receive actual notice to allow them to participate in the process, we suggest that the Agency be required to establish a mailing list to which it would send notice of mandatory study reports. We also suggest that the public be able to receive notice for projects within certain geographic areas.

Recommendation 30. We recommend that subsection 19(1) of the Act be amended by adding ", and sent to any person who has requested to be given notice of the Agency's receipt of a mandatory study report regarding a project within the geographic area of or affected by the project," after "publish".
SECTION 20 - DECISION OF MINISTER

This section sets out the criteria under which the Minister decides whether to send a project regarding which the Minister has received a mandatory study report to mediation or to a review panel, or back to the responsible authority. There are three problems.

First, like subsection 16(1) discussed above, section 20 hinges on the terms "mitigable" and "mitigated". Again, the current definition of "mitigation" is too broad to allow this term to be a useful test for whether there should be environmental review independent of the responsible authority. In our view, where a mandatory study report -- like a screening report -- anticipates that a project including any mitigation measures that will be undertaken may cause significant adverse environmental effects, there should be a mediation or review panel concerning the project.

A second problem is that paragraph 20(b) is inconsistent with subparagraph 20(a)(ii). Subparagraph 20(a)(ii) requires the Minister to refer a project to mediation or a review panel where warranted by public concerns. However, paragraph 20(b) requires the Minister to refer the project back to the responsible authority where the conditions in paragraph 20(b) apply. It is quite possible that the conditions in subparagraph 20(a)(ii) and paragraph 20(b) could be met at the same time.

It should be made clear that the Minister is to act under 20(b) only where he or she is not required to act under paragraph 20(a). The simplest way to accomplish this is to strike out the conditions set out in paragraph 20(b) and to leave paragraph 20(b) as a residual clause to take effect where conditions in 20(a) are not met.

Third, the Minister should have the authority under this section to reject the project without further study where the project will likely have significant adverse environmental effects and will likely not promote sustainable development. This would parallel the option provided to the responsible authority in paragraph 16(1)(c).

Recommendation 31. We recommend that section 20 of the Act be amended by:

(1) in paragraph 20(1)(a):

    (a) replacing "the project is likely to cause" with "the project including any mitigation measures that will be undertaken may cause"; and

    (b) striking out "that may not be mitigable"; and

(2) in paragraph 20(1)(b) striking out "where, in the opinion of the Minister," and striking out subparagraphs (i) and (ii) which follow.

(3) striking out "or" at the end of paragraph 20(a), replacing "." with "; or" after paragraph 20(b), and adding a new paragraph 20(c) as follows:

    "20(c) refer the project back to the responsible authority for action to be taken under paragraph 34(1)(b) where, in the opinion of the Minister, the project including any mitigation measures that will be undertaken is likely to cause significant adverse environmental effects and is not likely to promote sustainable development."

SECTION 21 - REFERRAL TO MINISTER

This section allows a responsible authority to refer a project for mediation or a review panel at any time where certain criteria are met. The problem is that, again, one of the criterion relies on the term "mitigable". For the reasons discussed above, we make the following recommendation.

Recommendation 32. We recommend that subsection 21(a) be amended by:

(1) replacing "a project is likely to cause" with "a project including any mitigation measures that will be undertaken may cause"; and

(2) striking out "that may not be mitigable".
SECTION 24 - REFERRAL BY MINISTER

This section represents an important improvement over the current EARP Guidelines Order, in that it allows the Minister to refer a project to mediation or a review panel at any time where certain criteria are met.

There are two problems.

First, in addition to having the power to refer a project to mediation or review panel, the Minister should have the authority to require the responsible authority to halt a project where it is clear that the project will not meet the applicable criteria. Our recommendation below utilizes the two-pronged criteria discussed above regarding section 20. An appeal to the Governor in Council would be available if our recommendation below regarding section 34 is accepted.

The second problem is the reliance on the loosely defined term "mitigation". For the reasons discussed above, we make the following recommendation.

Recommendation 33. We recommend that subsection 24(a) of the Act be amended by:

(1) replacing "a project is likely to cause" with "a project including any mitigation that will be undertaken may cause";

(2) striking out "that may not be mitigable"; and

(3) renumbering the current wording of section 24, with the amendments recommended above, as subsection 24(1), and adding a new subsection 24(2) as follows:

    "24(2) Where at any time the Minister is of the opinion that a project:

    (a) is likely to cause significant adverse environmental effects and,

    (b) is not likely to promote sustainable development

    the Minister may, after consulting the responsible authority and giving notice and at least 30 days for comment by the public, refer the project to the responsible authority for action under paragraph 34(1)(b)."

SECTION 25 - DECISION OF MINISTER

This section sets out the criteria under which the Minister is to refer a project to mediation or, if the criteria are not met, to a review panel. The incorporation of a process to facilitate mediation where all parties are willing to participate and mediation is likely to produce a satisfactory result is an important improvement over the EARP Guidelines Order.

However, a major flaw in the current wording is that the parties who the section contemplates will participate in the mediation are restricted to "parties who are directly affected by or who have a direct interest in the project". This violates one of the cardinal rules of successful alternative dispute resolution, that is, that the process must include any and all parties who consider themselves affected. To exclude an interested party from a mediation process under the Act would invite rejection of the legitimacy of the process. Federal consultation processes in the last few years have quite successfully developed a concept of "stakeholders". It should be applied to mediation processes under the Act. We recommend above that "stakeholder" be defined in subsection 2(1).

The second problem with section 25 as it is currently worded is that it provides for either a mediation or a review panel but not for a combination of both. In order to make the most effective use of mediation and to limit as much as possible the range of issues which must be addressed by a review panel, it would be highly desirable for the Minister to be able to refer to mediation a particular issue or issues within the environmental assessment of a project and to refer to a review panel the remainder of the issues. In addition, a review panel should be able to propose such a mechanism to the Minister, so that a review panel would be encouraged to identify and `hive off' the particular issues within its mandate that are amenable to mediation.

Third, for mediation to have the best chance of being successful, it is important that members of the public participating in a mediation have access to the same resources that they would have access to if they were participating in a review panel. There are two reasons for this. First, members of the public must have access to assistance from experts they trust if they are to feel confident enough to reach agreements regarding matters which they would have otherwise feared would have negative consequences. Second, if citizens see that resources would be available to them if the assessment were to go to a review panel but not if it were to go to mediation, then they may feel obliged to reject mediation simply to ensure that they have adequate resources to participate effectively in the assessment. In order to protect mediations as a viable alternative to a review panel in appropriate circumstances, it would be desirable to ensure by legislation that citizens have equal access to resources in either process.

Recommendation 34. We recommend that section 25 of the Act be amended by:

(1) by replacing in subsection 25(a)(i) "the parties who are directly affected by or who have a direct interest in the project" with "all stakeholders";

(2) numbering the current wording of section 25 with the amendments recommended above as 25(1);

(3) adding the following as a new subsection 25(2):

    "25(2) A stakeholder in a mediation shall have access to the same contribution from government as if the stakeholder were participating in an assessment conducted by a review panel.";

(4) adding the following as a new subsection 25(3):

    "25(3) The Minister, on his or her own initiative or at the request of a review panel, may at any time refer an issue or issues within an environmental assessment of a project to mediation where the criteria set out in paragraph 25(1)(a) are met."; and

(5) adding the following as a new subsection 25(4):

    "25(4) Where the Minister utilizes subsection 25(3), the Minister shall refer to a review panel the issues not referred to mediation."

SECTION 27 - MINISTER'S DETERMINATION

This section allows a Minister to resolve disputes about the participation of parties in a mediation. It incorporates the same restrictive criteria for participation in a mediation as was discussed above in connection with section 25.

Recommendation 35. We recommend that section 27 of the Act be amended by replacing "directly affected by or have a direct interest in the project" with "stakeholders".
SUBSECTION 28(2) - MEDIATION

This subsection sets out the role of the mediator. We note three problems.

Subparagraphs 28(2)(a)(i), (ii) and (iii) set out matters regarding which the mediator is to help the participants to reach a consensus. This short list is essentially a summary of the points required by section 11 of the Act to be considered by the mediation. The problem is that this creates a potential source of confusion regarding which of the two lists governs. There should be only one list of the points that may be addressed by the mediation.

The second problem is that paragraph 28(2)(b) does not address explicitly the mediator's obligation in the event that the participants do not reach consensus on one or more issues. In such a case, the mediator should be required to report on the various views of the participants.

An additional point, arising from our recommendation above that a mediation be available to address an issue, is that it is necessary to modify the language of subsection 28(2).

Recommendation 36. We recommend that subsection 28(2) of the Act be amended by:

(1) replacing subparagraphs 28(2)(a)(i), (ii) and (iii) with new subparagraphs 28(2)(a)(i) and (ii) as follows:

    "(i) the issues or issues referred to it by the Minister under subsection 25(3) [as recommended above], where applicable; or

    (ii) the factors set out in section 11 of the Act;" and

(2) in paragraph 28(2)(b) adding "specifying the issue or issues upon which agreement was reached and setting out the views of the various participants" after "recommendations of the participants".
SECTION 29 - SUBSEQUENT REFERRAL TO REVIEW PANEL

This section allows the Minister to terminate a mediation and refer the project to a review panel. There are three problems.

First, the section should require the Minister to consult with the mediator and parties to the mediation prior to taking such a drastic step. Indeed consultation from the Minister regarding whether to terminate the mediation may in some cases prompt the parties to change their positions to the point where it would be unnecessary to terminate the mediation.

Second, if our above recommendation is adopted, the section should be reworded to incorporate the concept that a mediation may apply not only to a project but to a specific issue.

Third, the section specifies what the Minister is to do if a mediation has been unsuccessful, but it fails to address what is to be done if a mediation is successful.

The Minister should have the authority to order parties to an agreement to comply with the agreement.

Recommendation 37. We recommend that section 29 be amended by:

(1) adding ", following consultation with the mediator and the parties to the mediation," after "has been referred to mediation the Minister";

(2) adding "with respect to an issue or issues being considered" after "of the opinion that";

(3) adding "or any issue or issues being addressed by the mediation" after "refer the project";

(4) adding "with respect to any or all issues" after "terminate the mediation"; and

(5)renumbering the current section 29 as subsection 29(1) and adding the following new subsection 29(2):

    "29(2) Where a project or an issue has been referred to mediation and some or all of the parties to the mediation reach a written agreement the Minister may, by order, require the parties to the agreement to comply with the agreement."

SECTION 30 - APPOINTMENT OF A REVIEW PANEL

This section authorizes the Minister to appoint a review panel. The problem with this section is that it omits the detailed criteria currently set out in the EARP Guidelines Order for the qualifications of members of a panel. Instead, it substitutes a phrase which is too vague to provide any degree of control over the qualifications of panel members. The recommendation below proposes returning to the qualifications set out in the EARP Guidelines Order.

Recommendation 38. We recommend that section 30 of the Act be amended by replacing ", in the opinion of the Minister, possess the required knowledge or experience" with the following new subparagraphs:

    "(i) are unbiased and free of any potential conflict of interest relative to the proposal under review;

    (ii) are free of any political influence; and

    (iii) have special knowledge and experience relevant to the anticipated environmental effects of the project under review".

SECTION 31 - ASSESSMENT BY REVIEW PANEL

This section sets out the obligations of a review panel. Like subsection 28(2) with respect to a mediation, the main problem is that the list of factors in subparagraph 31(c)(i) regarding which the Panel's report should set out conclusions and recommendations is a summary of the factors set out in section 11. To avoid confusion, there should be only one such list.

We recommended above that additional factors be added to the list in section 11. If these factors are not added to section 11, they should be added to subsection 28(2) and paragraph 31(c)(i). In particular, it is crucial that the review panel -- or the mediator under section 28 -- set out its conclusions and recommendations regarding whether the project including any mitigation measures that will be undertaken should or should not be allowed to proceed.

Recommendation 39. We recommend that subparagraph 31(c)(i) be amended by replacing "the environmental effects of the project and any mitigation measures or follow-up program" with "the factors set out in section 11".
SECTION 32 - HEARING OF WITNESSES

This section sets out various powers and obligations of a review panel. However, it does not set out the concept of a "party" to the review panel's assessment. The Act in sections 25 and 27 contemplates that a person may be a party to a mediation. It follows that a person should be entitled to be a party to an assessment by a review panel. The main privileges of party status should be the right to be represented by counsel, to present evidence and to question other witnesses and evidence. We recommend below that the Minister have the power to make more detailed rules to govern the procedures of a review panel.

Recommendation 40. We recommend that section 32 of the Act be amended by adding new subsections 32(5) and (6) as follows:

    "32(5) Upon written application, the review panel shall register a stakeholder as a party to the assessment by the panel of a project.

    32(6) A party has the right to

    (a) be represented by counsel;

    (b) present oral and written evidence to the review panel; and

    (c) question the oral and written evidence considered by the review panel."

SECTION 33 - PUBLIC NOTICE

This section requires the Minister to make public a report submitted by a mediator or review panel. However, it does not specify a time limit.

Recommendation 41. We recommend that section 33 of the Act be amended by adding "within 30 days" after "make the report available to the public".
SUBSECTION 34(1) - DECISION OF RESPONSIBLE AUTHORITY

This subsection sets out the criteria according to which a responsible authority is to take action following receipt of a report by a mediator or a review panel or the referral of a project back to the authority pursuant to paragraph 20(b). Before discussing the six problems with this subsection, we note that it will probably be necessary in the future to move toward granting greater decision making authority to environmental assessment review panels, as is done to a certain extent in Ontario. At the present time, however, we suggest that the priority should be placed on tempering the decision making discretion of the responsible authority by increasing the decision making responsibilities of the Minister in appropriate situations and providing for appeals to the Governor in Council.

The first three problems concern the criteria in subparagraph 34(1)(a)(ii) under which the project should be allowed to proceed. First, the current wording allows the responsible authority to let the project proceed if any significant adverse effects "can be mitigated or justified in the circumstances". The overly broad definition of "mitigation" in subsection 2(1) has been noted above and should be amended.

Second, the "justified in the circumstances" branch of the test is weak because it is overly broad and lacks criteria.

Third, we submit that it is not appropriate for the responsible authority to be the ultimate decision maker in balancing the importance of the project vis-a-vis protection of the environment. The recommendation below proposes replacing the criteria in subparagraph 34(1)(a)(ii) with the criterion of "sustainable development", which we recommended above be defined in subsection 2(1). We also recommend that the responsible authority's decision under subsection 34(1) be made in consultation with the Minister and that there be an appeal available to the federal cabinet. This would ensure that the responsible authority is not the final arbiter regarding a project which may have consequences which are beyond its mandate to consider.

The fourth problem is that section 34 does not include a provision like subsection 16(3) (in relation to a decision following a screening) requiring the responsible authority to give notice to the public, provide an opportunity for comment, and consider comments given, prior to acting under subsection 34(1). The recommendation below proposes a new subsection like subsection 16(3) with the changes we recommend above to subsection 16(3).

The fifth problem with subsection 34(1) is that it should be stronger in requiring the responsible authority to consider the recommendations of a mediation, review panel or mandatory study. One way in which this could be achieved is by requiring a responsible authority to provide written reasons where it declines to follow such a recommendation. Subsection 35(2) does require the responsible authority to provide reasons, but this occurs as part of the follow-up program and may be some time after the decision under paragraph 34(1)(a) is announced.

The sixth problem concerns paragraph 34(1)(b). This paragraph prohibits a responsible authority from allowing the project to proceed where the project fails to meet the criteria. However, it does not expressly bar other federal authorities from taking actions to allow the project to proceed. This gap should be closed.

Recommendation 42. We recommend that subsection 34(1) of the Act be amended by:

(1) in paragraph 34(1)(a):

    (a) adding "in consultation with the Minister" after "in the opinion of the responsible authority";

    (b) adding "in consultation with the Minister after "mitigation measures that the responsible authority"; and

    (c) replacing "any such effects can be mitigated or justified in the circumstances" in subparagraph 34(1)(a)(ii) with "the project will contribute to sustainable development";

(2) in paragraph 34(1)(b):

    (a) adding "in consultation with the Minister" after "in the opinion of the responsible authority";

    (b) replacing "the project is likely to cause" with "the project including any mitigation measures that will be undertaken is likely to cause";

    (c) replacing "that cannot be mitigated and cannot be justified in the circumstances" with "or likely will not contribute to sustainable development"; and

    (d) replacing "the responsible authority shall not" with "no federal authority shall"; and

(3) adding new subsections 34(1.1), (1.2) and (1.3) as follows:

    "34(1.1) Before taking a course of action in relation to a project pursuant to subsection 34(1), a responsible authority shall give notice to the public and the Agency, shall provide the public and the Agency at least 30 days to examine and comment on the environmental assessment and any record that has been filed in the public registry, regarding the project, and shall take into consideration any comments that are filed.

    34(1.2) Where a responsible authority acts under subsection 34(1) it shall give notice to the public and the Agency and provide written reasons where its decision is contrary to any recommendations of the environmental assessment or any comments filed under subsection 34(1.1).

    34(4) Within 30 days of the last date of public notice under subsection 34(1.2) any person may appeal to the Governor in Council, which, after hearing the appellant, the responsible authority, the Minister, the proponent, and any party to the environment assessment of the project in question and anyone else it considers relevant, may affirm, vary or revoke the decision of the responsible authority."

SUBSECTION 34(2) - RESPONSIBLE AUTHORITY TO ENSURE IMPLEMENTATION OF MITIGATION MEASURES

This subsection requires the responsible authority to use its statutory powers to implement mitigation measures where it has elected under paragraph 34(1)(a) to allow a project to proceed. There are two problems here.

First, the subsection binds the responsible authority but not any other federal authorities that may have it in their power to require mitigation measures which would be necessary to allow the project to proceed.

Second, the subsection should require input from the Minister.

Recommendation 43. We recommend that subsection 34(2) be amended by;

(1) replacing "it shall exercise" with "any federal authority shall exercise"; and

(2) by adding ", in consultation the Minister," after "mitigation measures that the responsible authority".
SUBSECTION 35(1) - FOLLOW-UP PROGRAM, DESIGN AND IMPLEMENTATION

This subsection requires a responsible authority to design and arrange for the implementation of a follow-up program for a project, following a decision to allow the project to proceed under paragraph 34(1)(a). This is a very useful subsection. There are four problems.

The first problem is that the obligation of the responsible authority is qualified by the phrase "in accordance with the regulations". If there are no such regulations, the obligation may be negated.

The second problem is that the responsible authority's obligation to design "any follow-up program that it considers appropriate" is not subject to directions by the Minister to ensure consistency.

The third problem is that the responsible authority is required to "arrange for the implementation of (the follow-up) program". However, it is not given any specific authority to require a third party, such as the proponent, to implement the program. This should be remedied.

Fourth, the section should provide for the establishment of a citizen public advisory committee as part of a follow-up program.

Recommendation 44. We recommend that subsection 35(1) of the Act be amended by:

(1) adding "if any," after "in accordance with the regulations,";

(2) adding ", subject to any directions by the Minister," after "it considers appropriate for the project";

(3) adding ", by order, if necessary," after "and arrange"; and

(4) adding a new subsection 35(1.1) as follows:

    "35(1.1) A responsible authority may establish a public advisory committee as part of a follow-up program."

SUBSECTION 35(2) - FOLLOW-UP PROGRAM, PUBLIC NOTICE

This subsection requires a responsible authority to notify the public of the details of measures to be taken following a decision to allow a project to proceed under paragraph 34(1)(a). There are two problems.

One problem with this subsection is that, as with subsection (1) of the same section, the obligation of the responsible authority is qualified by the phrase "in accordance with the regulations". If there are no such regulations, the obligation may be negated.

In addition, if our recommendation above to establish a right of appeal to Cabinet against a decision by a responsible authority under paragraph 34(1)(a) is adopted, notification of that right should be incorporated in subsection 35(2).

Recommendation 45. We recommend that subsection 35(2) of the Act be amended by:

(1) adding "if any," after "in accordance with the regulations,"; and

(2) after paragraph 35(2)(d) adding a new paragraph 35(2)(e) as follows:

"35(2)(e) the right of anyone to appeal to the Governor in Council regarding the decision by a responsible authority under paragraph 34(1)(a)."
SUBSECTIONS 37(2) and 37(3) - REVIEW PANELS ESTABLISHED JOINTLY WITH ANOTHER JURISDICTION

These subsections allow the Minister to establish review panels jointly with other jurisdictions. Subsection (2) applies to Canadian jurisdictions. Subsection (3) allows the Minister and the Secretary of State for External Affairs to establish a review panel jointly with a foreign jurisdiction.

The key problem with these subsections is that they do not authorize the Minister to authorize environmental mediation jointly with another jurisdiction. The many reasons for legislating the power to establish mediation as an alternative form of environmental assessment apply equally to authorizing the Minister to establish mediation jointly with another jurisdiction in the appropriate circumstances.

Recommendation 46. We recommend that section 37 of the Act be amended by

(1) in subsection 37(2) adding "or mediation" after "a review panel" in each of the two places in which that phrase appears; and

(2) in subsection 37(3) adding "or mediation" after "a review panel" in each of the two places in which that phrase appears.
SECTION 38 - CONDITIONS

This section sets out the conditions under which the Minister may establish a review panel jointly with another jurisdiction. There are four problems.

The critically important problem with this section is that as it is currently worded it does not require the Minister to be satisfied that the joint process will meet the requirements of the Act and the regulations. The Act and regulations are enacted by the Parliament of Canada and the Governor in Council, respectively, for the benefit of the people and environment of Canada. It would be quite inappropriate to authorize the Minister to derogate from those requirements by utilizing a joint review with another jurisdiction. If another jurisdiction is not authorized to establish a review panel with standards that meet those imposed by the Act and regulations then the Government of Canada ought not to establish a review panel jointly with that jurisdiction. Putting it more positively, the Government of Canada should play a leadership role by ensuring that jointly established review panels meet the federal requirements as a minimum standard. Indeed, such an objective apparently underlies paragraph 58(b) of the Act, which provides that:

    "58. The objects of the Agency are...(b) to promote uniformity and harmonization in the assessment of environmental effects across Canada at all levels of government".

Second, the section should require that the public have notice and an opportunity to comment on the Minister's intention to use this section. Utilizing a joint federal/provincial assessment process has the potential to abridge the rights that citizens would have if the assessment were purely federal. It is important that citizens have an opportunity to comment on the use of a joint assessment.

Third, members of the public should have an opportunity to provide input on draft terms of reference for the assessment. As discussed above, regarding subsection 11(3), good consultation on the terms of reference for an assessment can save much time at later stages in the assessment.

Fourth, if our above recommendation for provision for joint mediation is accepted, then section 38 should be amended to reflect mediation as well as a review panel.

Recommendation 47. We recommend that section 38 of the Act be amended by:

(1) adding "or mediation" after "shall not establish a review panel";

(2) adding ", following notice and at least 30 days for the public to comment," after "unless the Minister";

(3) in paragraph 38(a) adding "the mediator or" after "the appointment of";

(4) adding "notice and at least 30 days to comment on draft terms of reference for the assessment and" after "be given";

(5) in paragraph 38(b) adding "or the mediation" after "for the panel";

(6) in paragraph 38(d) adding "or mediation" after "of the panel";

(7) in paragraph 38(e) adding "or mediator's report" after "the panel's report"; and

(8) adding after paragraph (e) a new paragraph (f) as follows:

    "38(f) the assessment to be conducted by the panel or mediator will satisfy all the requirements of this Act and the regulations, if any, respecting assessments or mediation";

SECTION 39 - DEEMED SUBSTITUTION

This section provides that a review panel established jointly with another jurisdiction shall "be deemed to satisfy any requirements of this Act and the regulations".

For the reasons set out above, it is our view that this approach should not be adopted and that Canadians and the Canadian environment should have the benefit of the requirements of the Act and the regulations regardless of whether an environmental assessment is conducted by the federal government alone or by the federal government jointly with another jurisdiction. Thus, we make the recommendation below.

In addition, we recommend that the section be modified to reflect a provision for joint mediations (as recommended above).

Recommendation 48. We recommend that section 39 of the Act be amended by:

(1) striking out "be deemed to"; and

(2) adding "or mediation" after "that panel" and after "a review panel" in each of the two locations in which that phrase appears.
SUBSECTION 40(1) - PUBLIC HEARING BY A FEDERAL AUTHORITY

This subsection authorizes the Minister to approve the "substitution" of another federal process for an environmental assessment by a review panel under the Act.

Under section 37 we discussed the reasons for ensuring that the requirements of this Act and regulations are met in any environmental assessments carried out by the federal government alone or jointly with another jurisdiction. The same rationale applies to environmental assessment required or authorized to be conducted under the Act where it may be convenient to have the assessment conducted under another federal process. That is, it is critically important to ensure that the other federal process meets the standards of the Act and regulations. Again, this is implicit in subsection 58(b) which provides that:

    "58. The objects of the Agency are ...(b) to promote uniformity and harmonization in the assessment of environmental effects across Canada at all levels of government".

Also, for the reasons discussed above, we recommend modifying the section to provide for utilization of mediation under other federal processes where it meets the requirements of the Act and regulations.

Recommendation 49. We recommend that subsection 40(1) of the Act be amended by:

(1) adding "or mediation" after "a review panel" in each of the two locations in which that phrase occurs;

(2) replacing "be an appropriate substitute" with "meet the requirements of the Act and regulations"; and

(3) replacing "the substitution of" with "the utilization of".
SECTION 41 - CONDITIONS

This section sets out the conditions that must be met for the Minister to make a "substitution" under subsection 40(1). We note three points.

First, this section should be modified to specify that the other federal process is to be utilized as a method of complying with the Act and regulations rather than serving as a "substitution" for a process under the Act.

Second, the section should specify that the other federal process must meet all requirements of the Act and regulations.

Lastly, this section should be modified to reflect the incorporation of mediations, as recommended in subsection 40(1).

Recommendation 50. We recommend that section 41 of the Act be amended by:

(1) replacing "a substitution" with "a utilization";

(2) in paragraph 41(a) replacing "substituted" with "utilized"; and

(3) adding after paragraph 41(d) a new subsection 41(e) as follows:

    "41(e) the process will satisfy all the requirements of the Act and regulations, if any, regarding assessments or mediation.

SECTION 42 - DEEMED SUBSTITUTION

This section would "deem" that a substituted process meets the requirements of the Act.

As with section 39, the thrust of section 42 should be reversed, so that it ensures that the requirements of the Act and regulations are met, rather than allowing them to be derogated by deeming them to have been met.

Also, if our recommendation above that subsection 40(1) be expanded to include mediation in addition to a review panel is accepted, then section 42 should be reworded accordingly.

Recommendation 51. We recommend that section 42 of the Act be amended by:

(1) replacing "a substitution" with "a utilization";

(2) striking out "be deemed to"; and

(3) adding "or mediation" after "a review panel".
SUBSECTION 43(1) - INTERPROVINCIAL ENVIRONMENTAL EFFECTS

Section 43 provides for the Minister to establish a review panel where a project (for which an environmental assessment is not required under section 5) "is likely to cause serious adverse environmental effects in another province". This section is an important improvement over the current EARP Guidelines Order. However, there are six problems.

First, subsection 43(1) specifies that it is a review panel only which the Minister may establish. It omits a mediation or a screening. Where an environmental assessment is necessary, it is important that the Minister have available to him or her the full range of environmental assessment techniques.

Second, the current wording of subsection 43(1) suffers from a `Catch 22', in that the Minister's authority to establish a review panel is available only where the Minister is "of the opinion that the project is likely to cause serious adverse environmental effects...". How is the Minister to form an opinion on the likely effect of a project without having had an environmental assessment conducted? This wording is reminiscent of the former Environmental Contaminants Act in which the Minister had to have "reason to believe" that a substance would cause a problem before the Minister could require additional information about the substance. But the provision was rarely used because the Minister typically lacked sufficient information to form an opinion that the substance was harmful. This problem was corrected in the Canadian Environmental Protection Act. The recommendation below proposes that the phrase "is likely to" be replaced by "may".

Third, subsection 43(1) states that Minister "may" establish a review panel where the criteria are met. This should be changed to "shall", to be consistent with the rest of the Act, in which where the appropriate criteria are met, environmental assessment is mandatory.

Fourth, subsection 43(2) provides that the Minister shall not establish a review panel under subsection 43(1) where the Minister and the relevant provinces have agreed on "another manner of conducting an assessment". The problem with this section is that it offers a complete exemption from the requirements of a joint federal provincial assessment under section 37 and 38 of the Act. We suggest that this is undesirable and that the provisions for joint provincial assessment are the most appropriate mechanism of ensuring efficiency in this situation.

Fifth, subsection 43(4) requires the Minister to give notice of the intention to establish a panel to the proponent and the relevant provinces. The problem is that it fails to require notice to the public.

Sixth, this subsection defines "interested province", which is a status which allows a province to request the Minister to establish an assessment under this section. The problem here is that subsection 43(5) provides that for a province to be an "interested province" it must claim that "serious environmental effects are likely to occur...". As discussed above, the phrase "are likely to" should be replaced by "may" so that a province need not prejudge the result of an environmental assessment in order to be in a position to request that one occur.

Recommendation 52. We recommend that section 43 of the Act be amended by:

(1) in subsection 43(1):

    (a) replacing "is likely to" with "may; and

    (b) replacing "the Minister may establish a review panel to conduct an assessment of" with "the Minister shall ensure that a screening is conducted and a screening report prepared regarding, or shall refer the project to a review panel or mediation to conduct an environmental assessment of,";

(2) striking out subsection 43(2);

(3) in subsection 43(3) replacing "A review panel may be established" with "An environmental assessment may be initiated";

(4) in subsection 43(4):

    (a) replacing "a review panel" with "an environmental assessment";

    (b) replacing "a panel" with "an environmental assessment"; and

    (c) adding "to the public," before "to the proponent"; and

(5) in paragraph 43(5)(b) replacing "are likely to" with "may".
SUBSECTION 44(1) - INTERNATIONAL ENVIRONMENTAL EFFECTS

This subsection allows the Minister and the Secretary of State for External Affairs to establish a review panel regarding a project that "is likely to cause serious adverse environmental effects outside Canada..." (emphasis added). There are four problems with this subsection paralleling those we noted regarding subsection 43(1).

First, "is likely to" should be changed to "may" so that the Minster need not prejudge the results of the assessment.

Second, "may establish" should be changed to "shall establish", to be consistent with the approach taken in the rest of the Act.

Third, the Minister and Secretary of State for External Affairs should be able to select a mediation or a screening, in addition to a review panel.

Fourth, the notice provision, subsection 44(2), should require notice to the public, as discussed above regarding subsection 43(4).

Recommendation 53. We recommend that section 44 of the Act be amended by:

(1) in subsection 44(1):

    (a) replacing "is likely to" with "may"; and

    (b) replacing "may establish a review panel to conduct an assessment of" with "shall ensure that a screening is conducted and a screening report prepared regarding, or shall refer the project to a review panel or mediation to conduct an assessment of"; and

(2) in subsection 44(2):

    (a) replacing "a review panel" with "an environmental assessment";

    (b) replacing "a panel" with "an environmental assessment"; and

    (c) adding a new paragraph 44(2)(d) reading:

    "44(2)(d) the public;".

SECTION 45 - ENVIRONMENTAL EFFECTS ON FEDERAL AND OTHER LANDS

This section allows the Minister to establish a review panel regarding a project that "is likely to cause serious adverse environmental effects" on federal lands or Indian lands (subsection 45(1)) or a project that is on Indian lands (as described more fully in the section) that "is likely to cause serious adverse environmental effects" outside those lands (subsection 45(2)). These subsections suffer from the same four problems noted above with respect to section 44.

Recommendation 54. We recommend that section 45 of the Act be amended by:

(1) in subsection 45(1):

    (a) replacing "is likely to" with "may"; and

    (b) replacing "the Minister may establish a review panel to conduct an assessment of" with "the Minister shall ensure that a screening is conducted and a screening report prepared regarding, or shall refer the project to a review panel or mediation to conduct an environmental assessment of,";

(2) in subsection 45(2):

    (a) replacing "is likely to" with "may";

    (b) replacing "the Minister may establish a review panel to conduct an assessment of" with "the Minister shall ensure that a screening is conducted and a screening report prepared regarding, or shall refer the project to a review panel or mediation to conduct an environmental assessment of,"; and

(3) in subsection 45(3):

    (a) replacing "a review panel" with "an environmental assessment";

    (b) replacing "a panel" with "an environmental assessment"; and

    (c) adding "to the public," before "to the proponent".

SECTION 46 - RULES GOVERNING REVIEW PANELS

This section lists certain sections governing review panels and provides that they apply to review panels appointed pursuant to subsections 43(1), 44(1) or 45(1) or (2) of the Act. We note three problems.

Corresponding to our recommendation, above, that the authority to establish a review panel under these subsections be broadened to include any form of environmental assessment, section 46 should be broadened to refer to sections 11 to 15 regarding screening, and sections 25 to 29 regarding mediations.

Second, the assessments referred to in section 46 should also be subject to section 34, which requires the responsible authority to make a decision following receipt of the report of the mediator or a review panel. We recommended above section 5 be amended to specify that the Minister is the responsible authority where no other federal authority is required to act in that capacity.

Third, in accordance with our recommendation that joint federal/provincial assessments and joint assessments with another federal agency be required to meet federal standards, it would be desirable to included such assessments in section 46.

Recommendation 55. We recommend that section 46 be amended by:

(1) replacing "Sections 30 to 33 and 37 to 39" with "Sections 11 to 15, 25 to 33 and 37 to 39";

(2) replacing "a review panel" with "an environmental assessment conducted or"; and

(3) replacing "subsection 43(1), 44(1) or 45(1) or (2) with subsection 37(1), 41, 43(1), 44(1) or 45(1) or (2)".
SUBSECTION 47(1) - MINISTERIAL ORDERS

This subsection authorizes the Minister to stop a project from proceeding while a review panel under sections 43 to 45 conducts an assessment. This is a very useful provision. However, we note five problems.

First, the subsection is unnecessarily narrow. It applies only to review panels established under sections 43 to 45 (the trans-border situations). The justification for this provision applies equally to any environmental assessment under the Act. The Minister needs the authority to stop a project until an assessment under the Act has been completed, in order to preserve the integrity of the assessment.

Second, in accordance with our recommendation above, we would broaden the application of the subsection from review panels alone to any form of environmental assessment.

Third, an order under the subsection continues until the Minister comes to a conclusion about the environmental effects of the projects. In this respect, the subsection refers to the term "mitigated", which, as discussed above, is defined overly broadly.

Fourth, it also provides that an order ends when the Minister is satisfied that any serious adverse environmental effects "are justified in the circumstances". This language is extremely broad as it is not constrained by any criteria. We would prefer that the test be simplified to apply where the project -- including any mitigation measures that will be undertaken -- is not likely to cause any serious adverse environmental effects.

Fifth, if our recommendations regarding subsection 47(1) and 47(2) are accepted, this section should be moved to a new Part of the Act which we suggest be entitled Enforcement.

Recommendation 56. We recommend that subsection 47(1) of the Act be amended by:

(1) replacing "Where the Minister establishes a review panel to conduct an assessment of the environmental effects of a project referred to in subsection 43(1), 44(1) or 45(1) or (2)" with "Where an environmental assessment of a project is required or unauthorized under the Act";

(2) adding "including any mitigation measures that will be undertaken" after "the Minister is satisfied that the project"; and

(3) striking out ", referred to in that subsection or that any such effects will be mitigated or are justified in the circumstances".
SUBSECTION 47(2) - MINISTERIAL ORDERS, IDEM

This subsection gives the Minister the power to stop a project after a review panel under sections 43, 44 or 45 has submitted a report. Again, this is a welcome addition to the powers of the Minister under the current EARP Guidelines Order. However, we note four problems.

First, as discussed above regarding subsection 47(1), this order power should apply to any environmental assessment under the Act, not merely a review panel under sections 43 to 45.

Second, the test uses the term "mitigated". As discussed above, we suggest narrower language.

Third, this subsection would be more useful if the Minister had the authority to impose conditions on a project, in addition to the authority to prohibit the project altogether. We suggest that such an authority should exist where the project including any mitigation measures that will be undertaken would, in the view of those responsible for environmental assessment of the project, cause serious adverse environmental effects but where the project would contribute to sustainable development if certain conditions were met.

Fourth, if the Minister is to be authorized to allow a project to proceed with conditions as discussed in the previous paragraph, then there should be a right of appeal to the Governor in Council.

Recommendation 57. We recommend that subsection 47(2) of the Act be amended by:

(1) replacing "Where a review panel established to assess the environmental effects of a project referred to in subsection 43(1), 44(1) or 45(1) or (2) submits a report to the Minister indicating" with "Where the report of an environmental assessment of a project indicates";

(2) adding "including any mitigation measures that will be undertaken" after "that the project";

(3) striking out "referred to in that subsection";

(4) replacing "mitigated" with "substantially eliminated"; and

(5) labelling the phrase "prohibit the proponent of the project from doing any act or thing that would commit the proponent to ensuring that the project is carried out in whole or in part until the Minister is satisfied that such effects will be mitigated" as a new paragraph 47(2)(a) as follows [including the change recommended in (4) above]:

    "47(2)(a) prohibit the proponent of the project from doing any act or thing that would commit the proponent to ensuring that the project is carried out in whole or in part until the Minister is satisfied that such effects will be substantially eliminated; or";

(6) adding a new paragraph 47(2)(b) as follows:

    "47(2)(b) require the proponent to comply with requirements that will ensure that the project will contribute to sustainable development."; and

(7) adding new subsections 47(3),(4),(5) and (6) as follows:

    "47(3) Before acting under paragraph 47(2)(b) the Minister shall give notice to the public and provide at least 30 days to examine and comment on the environmental assessment and any record that has been filed in the public registry regarding the project.

    47(4) The Minister shall take into consideration any comments that are filed under subsection 47(3).

    47(5) Where the Minister acts under paragraph 47(2)(b) he or she shall give notice to the public and shall provide written reasons where his or her decision is contrary to any recommendation of the environmental assessment or any comments filed under subsection 47(3).

    47(6) Within 30 days of the last date of public notice under subsection 47(5) any person may appeal to the Governor in Council, which, after hearing the appellant, the responsible authority, the Minister, the proponent, any party to the environmental assessment or the project in question and anyone it considers relevant, may affirm, vary or revoke the decision of the Minister."

SUBSECTION 48(1) - INJUNCTION

This subsection allows a court on the application of the Attorney General of Canada to issue an injunction to enforce an order under section 47. This subsection is necessary in order to allow enforcement of an order under section 47. We note ten problems.

First, there is no reason why the court's injunction power should be restricted to a section 47 order. It should apply to any violation of the Act or regulations.

Second, legal standing to apply for an injunction should not be restricted to the Attorney General of Canada. Any member of the public should be able to take steps to enforce the Act, regulations and section 47 orders. The courts have ample powers to control any attempt to abuse such a right.

Third, the court should be authorized to order someone to do a positive act, in addition to its power to order a person to refrain from acting.

Fourth, paragraphs 48(1)(a) and (b) restricting the ambit of an injunction simply reiterate the limitations on an order under subsection 47(1) and 47(2). This is unnecessary. It is abundantly clear that the court's authority to issue an injunction to enforce an order is limited by the limitations that apply to the order itself.

Fifth, for greater certainty, the subsection should specify that the persons against whom an injunction may be issued include the Crown.

Sixth, the phrase "about to be or is likely to be" is redundant.

Seventh, the Act as it is currently worded is incomplete in that it does not include an offence provision. It is highly desirable to include an offence provision in the Act in order to signify the seriousness with which Parliament intends the requirements of the Act to be taken. An offence section also allows for setting out innovative sentencing options that would not otherwise be available.

The recommendation below proposes adding a simple offence provision with the same penalties as the residual offence provision in the Canadian Environmental Protection Act, section 116. It also proposes incorporating the provisions of Part VII of CEPA regarding investigations, seizures and related matters with whatever changes are required to make them fit the context of the Act.

Ninth, Bill C-78 does not -- but should -- include a civil remedy for damages due to a violation of the Act. The recommendation below proposes adding a section to the Act identical in terms to section 136 of CEPA.

Tenth, if these recommendations on expanding the injunction power and adding an offence provision are accepted, these sections should be added to a new Part of the Act entitled Enforcement.

Recommendation 58. We recommend that subsection 48(1) of the Act be amended by:

(1) adding "or any other person" after "Attorney General of Canada";

(2) replacing "an order made under section 47 in respect of a project has been, is about to be" with "any provision of the Act or regulations or an order made pursuant to the Act has";

(3) adding "including Her Majesty in Right of Canada or of a Province" after "any person named in the application";

(4) adding "or to do any act or thing to ensure the cessation or prevention of a violation of the Act or regulations or an order made pursuant to the Act." after "to refrain from doing any act or thing";

(5) striking out:

    (a) the phrase "that would commit the proponent to ensuring that the project or any part thereof is carried out until";

    (b) paragraphs 48(1)(a) and 48(1)(b);

(6) adding a new section 48.1 as follows:

    "48.1(1) Every person who contravenes any provision of this Act or of any regulation or order made under this Act is guilty of an offence punishable on summary conviction and is liable to a fine not exceeding $200,000 or to imprisonment for a term not exceeding 6 months, or to both.

    48.1(2) The provisions of Part VII of the Canadian Environmental Protection Act regarding inspection, search and seizure, inspectors, seizure and detention, forfeiture, investigation of offences, offences and punishment, discharge, contraventions, and other remedies apply mutatis mutandi to this Act."; and

(7) adding a new section 48.2 as follows:

    "48.2(1) Any person who has suffered loss or damage as a result of conduct that is contrary to any provision of this Act or the regulations may, in any court of competent jurisdiction, sue for and recover from the person who engaged in the conduct an amount equal to the loss or damage proved to have been suffered by the person and an amount to compensate for the costs of any investigation in connection with the matter and of proceedings under this section.

    48.2(2) Any person who suffers or is about to suffer loss or damage as a result of conduct that is contrary to any provision of the Act or the regulations may seek an injunction from a court of competent jurisdiction ordering the person engaged in the conduct

    (a) to refrain from doing any act that it appears to the court causes or will cause the loss or damage; or

    (b) to do any act or thing that it appears to the court prevents or will prevent the loss or damage.

    48.2(3) In any action under subsection 48.2(1) against a person, the record of proceedings in any court in which that person was convicted of an offence under this Act is, in the absence of any evidence to the contrary, proof that the person against whom the action is brought engaged in conduct that was contrary to a provision of this Act.

    48.2(4) In any action under subsection 48.2(1) against a person, a certificate setting out with reasonable particularity the conviction and sentence of the person for an offence under this Act signed by

    (a) the person who made the conviction, or

    (b) the clerk of the court in which the conviction was made,

    is, on proof that the person is the offender referred to in the certificate, evidence that the person was so convicted and sentenced without proof of the signature or the official character of the person appearing to have signed the certificate."

SUBSECTION 49(2) - APPROVAL OF GOVERNOR IN COUNCIL

This subsection provides that an order under section 47 expires after fourteen days unless it is approved by the Governor in Council.

This subsection is impractical. It may be extremely difficult to arrange to have the Governor in Council consider the matter addressed by section 47 within a mere fourteen days. The recommendation below proposes that the subsection be replaced by a provision allowing an appeal to the Governor in Council. This would ensure that the Governor in Council fulfills an oversight role in relation to the Minister's authority under section 47.

Recommendation 59. We recommend that subsection 49(2) of the Act be struck out and replaced by the following:

    "49(2) Any person may appeal an order under section 47 to the Governor in Council, which, after hearing the appellant, the responsible authority, the Minister, any party to the environmental assessment of the project and anyone it considers relevant may affirm, vary or rescind the order in question."

SUBSECTION 50(1) - AGREEMENTS OR ARRANGEMENTS WITH THE PROVINCES

This subsection provides that where Canada enters into an agreement with a province regarding financial assistance (paragraph 5(b)) or disposal of federal lands (paragraph 5(c)) the agreement must provide for environmental assessment of projects not identified at the time the financial support or disposal of federal lands is carried out. This is a useful provision.

However, it should provide that the environmental assessment required to be provided for in such an agreement meets the requirements of the Act and regulations. This is to ensure consistency.

Recommendation 60. We recommend that subsection 50(1) of the Act be amended by adding "meet all the requirements of the Act and regulations and will" after "the assessment will".
SUBSECTION 50(2) - INTERNATIONAL AGREEMENT OR ARRANGEMENT

This subsection is similar to subsection 50(1), except that it is with respect to federal agreements with foreign states. There are two problems here.

First, as discussed regarding subsection 50(1), the environmental assessment required should meet the requirements of the Act and regulations.

Second, this subsection provides that the federal government's obligation exists only "in so far as is practicable". This is so broadly worded as to render this subsection virtually directive, as opposed to mandatory. The recommendation below proposes that this `loophole' be closed.

Recommendation 61. We recommend that subsection 50(2) of the Act be amended by:

(1) striking out "in so far as is practicable and"; and

(2) adding "meet all the requirements of the Act and regulations and will" after "the assessment will".
SUBSECTION 51(1) - PUBLIC REGISTRY

This subsection requires that a public registry be established and operated in respect of every project for which an environmental assessment is conducted.

The recommendation below proposes that this subsection be amended to specify that its establishment and operation ensure fast and affordable public access to the registry.

Recommendation 62. We recommend that subsection 51(1) of the Act be amended by adding "so as to ensure fast and affordable public access to the registry" after "established and operated".
SUBSECTION 51(2) - REGISTRY ESTABLISHED

This subsection provides that the public registry in respect of a project shall be maintained by the responsible authority in some situations and by the Agency in other situations.

The problem here is that there will be a proliferation of such registries, without centralized information on where each registry exists. This centralized information should be maintained by the Agency.

Recommendation 63. We recommend that subsection 51(2) of the Act by amended by adding a new subsection 51(2.1) as follows:

    "51(2.1) A responsible authority shall notify the Agency when it establishes and when it closes a public registry in relation to a project."

SUBSECTION 51(3) - CONTENTS OF REGISTRY

This subsection outlines the contents of a public registry. We note three problems.

First, the subsection should specify that a registry may include records in electronic form.

Second, the subsection refers to "comments filed by the public". The term "filed by" is excessively formal in the circumstances and may, therefore, be misleading.

Third, the phrase "the public" could be construed to exclude a proponent, government agencies or parties to a mediation or a review panel.

Recommendation 64. We recommend that subsection 51(3) of the Act be amended by:

(1) adding "consist of records in physical or electronic form and shall" after "a public registry shall"; and

(2) replacing "filed by the public" in paragraph 51(3)(b) with "submitted by anyone".
SUBSECTION 51(4) - CATEGORIES OF INFORMATION TO BE MADE PUBLICLY AVAILABLE

The problem with this subsection is that, despite the marginal note, the subsection does not expressly affirm a public right to access to information in a public registry, nor does it require a responsible authority to provide such access.

Recommendation 65. We recommend that section 51 of the Act be amended by adding a new subsection 51(4.1) as follows:

    "51(4.1) Anyone has a right to access to the records in a public registry in a manner that is reasonably fast and affordable, and the responsible authority or Agency which operates a public registry shall provide such access."

SECTION 52 - PREPARATION OF STATISTICAL SUMMARY

This subsection requires a responsible authority to maintain a "statistical summary" of environmental assessments it undertakes. We note two problems.

First, the term "statistical summary" is unclear, but would probably mean information on the numbers of projects of various types. It would be more important for the Agency to receive a summary of the assessments and follow-up actions undertaken.

Second, for administrative convenience, responsible authorities should be required to follow directions by the Agency as to the format of the information to be submitted.

Recommendation 66. We recommend that subsection 52(1) of the Act be amended by:

(1) adding ", in accordance with any directions from the Agency," after "a responsible authority shall maintain"; and

(2) striking out "statistical".
SUBSECTION 52(2) - PREPARATION OF STATISTICAL SUMMARY, IDEM

This subsection requires the responsible authority to complete its summary within one month of the end of a fiscal year.

It should also provide that the summary be submitted to the Agency and be made available to the public.

Recommendation 67. We recommend that subsection 52(2) of the Act be amended by adding ", submitted to the Agency and made available to the public" after "is completed".

SUBSECTION 54(1) - POWERS TO FACILITATE ENVIRONMENTAL ASSESSMENTS

This subsection sets out the Minster's powers. We note seven problems.

First, paragraph 54(1)(a) includes the qualifying phrase "respecting the application of this Act and the regulations". This qualifier is unnecessary and potentially overly restrictive.

Second, paragraph 54(1)(a) should also mention follow-up programs.

Third, it would be highly desirable for the Minister to have the authority to establish guidelines for the qualifications or experience required by individuals carrying out aspects of environmental assessments or follow-up programs under the Act.

Fourth, it would also be desirable for the Minister to have the power to establish a mechanism for removing mediators and members of review panels in appropriate circumstances unrelated to the views or actions of such individuals on substantive matters.

Fifth, the Minister should have the authority to require a proponent to carry out studies and to participate in environmental assessments and follow-up programs. This is essential to the operational viability of the environmental assessment process established by the Act.

Sixth, the Minister should have the authority to require a proponent to provide financial security in favour of the federal government or third parties, to ensure that funds are available for clean-up or compensation where necessary.

Seventh, there should be a requirement that the Minister provide reasonable public notice and an opportunity to comment on draft instruments under this section.

Recommendation 68. We recommend that subsection 54(1) of the Act be amended by:

(1) replacing "respecting the application of this Act and the regulations to assist in conducting assessments of the environmental effects of projects" in paragraph 54(1)(a) with "to assist in conducting environmental assessments and follow-up programs";

(2) adding a new paragraph 54(1)(a.1) as follows:

    "54(1)(a.1) issue guidelines and codes of practice regarding the qualifications and experience required by individuals who carry out aspects of environmental assessments or follow-up programs under the Act or the regulations;"

(3) adding a new paragraph 54(1)(f.1) as follows:

    "54(1)(f.1) establish a mechanism for removing mediators and members of review panels based on conflict of interest, misconduct, failure to carry out duties, or other factors unrelated to the views or actions of the mediator or member of a review panel regarding substantive issues";

(4) adding a new paragraph 54(1)(h) as follows:

    "54(1)(h) order a proponent to conduct and submit studies and to otherwise participate in an environmental assessment or a follow-up program under this Act and regulations";

(5) adding a new paragraph 54(1)(i) as follows:

    "(54)(1)(i) order the proponent of a project subject to environmental assessment or follow-up monitoring under this Act or regulations to provide financial security in favour of the federal government or any other person in relation to any commitment or assertion of fact by the proponent, and may specify the criteria under which the security will be realized or forfeited;" and

(6) adding a new subsection 54(3) as follows:

    "54(3) The Minister shall provide reasonable public notice of and a reasonable opportunity to comment on draft guidelines, codes of practice, agreements, arrangements, criteria or orders under this section."

SUBSECTION 55(1) - REGULATIONS

This subsection sets out the powers of the Governor in Council to make regulations. We note nine problems.

First, paragraph 55(1)(a) setting out a general power to make regulations regarding environmental assessments neglects to mention follow-up programs.

Second, paragraph 55(1)(a) authorizes regulations regarding joint federal provincial review panels. We recommend above regarding section 39 that these panels be required to meet all the requirements of the Act and regulations. If this recommendation is adopted, then the relevant portion of paragraph 55(1)(a) can be struck out.

Third, paragraph 55(1)(a) should be expanded to provide specifically for separate procedures for community hearings and technical hearings. This distinction has been a very effective way of ensuring full public input, especially outside the major cities, as well as ensuring that technical information is received in a more formal forum in which it can be rigorously evaluated. Paragraph 55(1)(a) should also be expanded to authorize specifically the authority to set procedures for requiring parties to an assessment to submit relevant information to a review panel prior to a hearing. This could be a useful mechanism to shorten and improve the quality of public hearings.

Fourth, paragraph 55(1)(d) allows the Governor in Council to prescribe a list of projects for which an environmental assessment would not be required where the federal contribution to the project is "minimal". A guide to the government's interpretation of the term "minimal" was provided by the Executive Chairman of the Federal Environmental Assessment Review Office in his recent testimony before the Special Committee reviewing Bill C-78. He stated:

    "In the case of determining what is minimal in terms of federal involvement, I suspect there will be more argument about that. A $10 million is very significant to a $50 million project. How significant is it for a $600 million project? At that point, do you then say impact is minimal? I would say that the mind-set behind what we are doing here would suggest, yes, when it is such small percentage, you would indeed argue that it is minimal." (Minutes of Proceedings and Evidence of the Special Committee to pre-study Bill C-78, Issue No. 2, October 11, 1990, page 28)

In our view it would be totally unacceptable for the federal government to spend $10 million toward a project that had not received a benefit of federal environmental assessment. The Executive Chairman's comments indicate to us that the provision is far too broad and should be removed.

Fifth, paragraph 55(1)(e) allows the Governor in Council to prescribe a list of projects or classes of projects to be excluded from environmental assessment where assessment would be "inappropriate for reasons of national security". This paragraph is sweepingly broad. Paragraph 6(1)(b) of the Act provides an exclusion from environmental assessment regarding national emergencies. Section 51 of the Act excludes from a public registry information that would not be disclosed under the Access to Information Act, which provides exemption from disclosure in relation to national security. Subsection 32(4) of the Act allows a review panel to require that evidence not be disclosed. We are not convinced that a need for paragraph 55(1)(e) is established.

Sixth, paragraph 55(1)(h) should specify that the facilities for enabling the public to examine records in a public registry include electronic facilities.

Seventh, paragraph 55(1)(i) sets out a very broad power to vary or exclude the Act's environmental assessment requirements regarding projects on Indian lands, outside Canada, under agreements entered into by Canada, with federal financial assistance, involving the disposal of federal land, affected by federal/provincial agreements regarding offshore petroleum, or in relation to which there are matters of national security. This paragraph would provide an unfettered power to vary or exclude the environmental assessment and follow-up requirements of the Act. This would have a dramatic impact on the certainty that would otherwise be established by the Act. It is our view that the power to alter environmental assessment and follow-up requirements in relation to the matters set out in paragraph 55(1)(i) are more appropriately exercised by Parliament by way of subsequent amendments to the Act.

Eighth, paragraph 55(1)(j) authorizes regulations requiring federally incorporated ports, harbours commissioners, and certain federal crown corporations to conduct environmental assessments. In our comments regarding subsection 2(1) we recommend that these bodies and others be included in the definition of federal authority and therefore be required to comply with the Act like other federal agencies. If that recommendation is adopted, then paragraph 55(1)(j) can be struck out. In the alternative, paragraph 55(1)(j) should be expanded to authorize regulations in relation to follow-up programs, in addition to environmental assessments.

Ninth, this would be an appropriate location in the Act to establish the office of a Parliamentary Commissioner on Sustainable Development, as recently recommended by the National Round Table on the Environment and the Economy (NRTEE). The NRTEE proposes that the Parliamentary Commissioner monitor the implementation of the federal government's environmental assessment of policies. We would include that as a major component of the Commissioner's role, while adding a more comprehensive range of duties. The recommendation below paraphrases the provisions of the Auditor General Act. While an argument could be made that the office of Commissioner should be established in an Act separate from CEAA, we take the view that this is not essential and that, if necessary, CEAA could be amended later to move provisions regarding the commissioner to a separate Act.

Tenth, subsection 55(1) should authorize the Governor in Council to prescribe requirements for environmental assessment of, and follow-up programs regarding, policies and programs. The background material distributed by the Federal Environmental Assessment Review Office along with Bill C-78 indicates that the federal government is establishing a mechanism to assess the environmental effects of proposed Cabinet-level policies. We suggest that it is important that the Act be amended to provide statutory authority for codifying environmental assessment of policies and programs, so that the design of the assessment and follow-up process will be subject to public input pursuant to the standard process for developing regulations. Also, putting the assessment and follow-up process in regulations would provide stronger assurance that it would be complied with, and would make it clearer to all concerned exactly what the process is. We note that our suggestion relates not only to Cabinet-level policies, but also to other policies and programs of the federal government.

Recommendation 69. We recommend that subsection 55(1) of the Act be amended by:

(1) in paragraph 55(1)(a) adding "and follow-up programs" after "the environmental assessment process";

(2) adding "including requirements for environmental assessment of, and follow-up programs regarding, policies and programs, and procedures for ensuring public accountability, public release of information used in such assessments and follow-up programs, and an opportunity for members of the public to comment on the anticipated environmental effect of policies and programs" after "the environmental assessment process set out in this Act,";

(3) adding ", procedures for community hearings and technical hearings, and procedures for requiring parties to an assessment to submit relevant information to a review panel prior to a hearing" after "the conduct of assessments by review panels established pursuant to section 37";

(4) [if our recommendation above that require joint federal/provincial review panels comply with all requirements of the Act is accepted] striking out ", including the conduct of assessments by review panels established pursuant to section 37";

(5) striking out paragraph 55(1)(d);

(6) striking out paragraph 55(1)(e);

(7) adding "physical and electronic" after "including" in paragraph 55(1)(h);

(8) striking out paragraph 55(1)(i); and

(9) [if our recommendation above that harbours commissions, etc., comply with all the requirements of the Act is accepted] striking out paragraph 55(1)(j), [and, in the alternative, if that recommendation is not accepted adding "and follow-up programs regarding" after "assessments of the environmental effects of";

(10) adding new sections 55.1, 55.2 and 55.3 as follows:

    "55.1(1) The Governor in Council shall, by commission under the Great Seal, appoint a person to be the officer called the Parliamentary Commissioner on Sustainable Development to hold office during good behaviour for a term of ten years, but the Commissioner may be removed by the Governor in Council on address of the Senate and House of Commons.

    55.1(2) Once having served as the Commissioner, a person is not eligible for reappointment to that office.

    55.1(3) In the event of the absence or incapacity of the Commissioner or if the Office of the Commissioner is vacant, the Governor in Council may appoint a person temporarily to perform the duties of Commissioner.

    55.2(1) The duties of the Commissioner are:

    (a) to examine and express his or her opinions as to whether the activities of the government of Canada

    (i) prevent significant adverse environmental effects; and

    (ii) promote sustainable development;

    (b) to report annually to the House of Commons

    (i) on the work of his or her office;

    (ii) on whether, in carrying out the work of his or her office, he or she received all the information and explanations he or she required;

    (iii) calling attention to anything that he or she considers to be of significance and of a nature that should be brought to the attention of the House of Commons, including any cases in which he or she has observed that

    (A) a federal authority has not complied with this Act or regulations or orders or guidelines under the Act;

    (B) the Act or regulations, or orders or guidelines under the Act have failed to prevent significant adverse environmental effects or have failed to promote sustainable development within the limits of federal jurisdiction;

    (C) a federal policy or program was implemented or adopted without adequate environmental assessment;

    (D) a personnel practice of a federal authority failed to promote the prevention of significant adverse environmental effects or failed to promote sustainable development; and

    (E) federal funds were spent on goods or services which were made or provided in contravention of governmental environmental standards;

    (c) to make a special report to the House of Commons on any matter of pressing importance or urgency that, in his or her opinion, should not be deferred until the presentation of his or her annual report;

    (d) whenever the Governor in Council so requests, if in the commissioner's opinion such an assignment does not interfere with his or her primary responsibilities, to enquire into and report on any matter relating to the prevention of significant adverse environmental effects or the promotion of sustainable development; and

    (e) to advise appropriate officers and employees in the public service of Canada of matters discovered in his or her examinations.

    55.2(2) In this section, "activities of the government of Canada" includes:

    (a) expenditures;

    (b) managing assets;

    (c) adopting and implementing policies and programs;

    (d) personnel practices; and

    (e) other activities prescribed by regulation.

    55.3 The provisions of the Auditor General Act regarding salary, pension benefits, submission of a report to the Speaker and tabling in the House of Commons, access to information, staff, estimates, audit, consequential and related amendments, and commencement shall apply to the Commissioner mutatis mutandis."

SUBSECTION 55(2) - EXCLUSION OF PHYSICAL ACTIVITIES

This subsection would authorize the Governor in Council to make regulations excluding environmental assessments from a list of projects or classes of projects that are physical activities where environmental assessment would be "inappropriate".

This subsection is far too sweeping. The term "inappropriate" is so broad as to render the section a carte blanche to vary the Act itself. This power should be reserved for Parliament.

Recommendation 70. We recommend that subsection 55(2) of the Act be struck out.
SECTION 56 - VARIATION OF PROCEDURES

This section allows the Governor in Council to pass regulations exempting a responsible authority from time or other procedural requirements of federal statutes other than the Act where they are in conflict with a requirement under the Act.

One problem with the section is that it limits the Governor in Council to acting only on the recommendation of the Minister and the Minister responsible for the administration of the other Act. If the Ministers should be in conflict, the Governor in Council would have no authority to resolve the dispute.

Recommendation 71. We recommend that section 56 of the Act be amended by adding "in consultation with" after "on the recommendation of the Minister and".
SECTION 58 - OBJECTS OF AGENCY

This section sets out the objects of the Canadian Environmental Assessment Agency. We note four problems.

First, paragraph 58(a) specifies that the Agency is to administer requirements and procedures "established by this Act and the regulations". This may, by implication, omit requirements under, for example, orders under section 47 or guidelines established under section 54. The wording should be broadened here.

Second, paragraph 58(b) specifies that the Agency is to promote uniformity and harmonization in the assessment of environmental effects "across Canada at all levels of government". This should specifically include uniformity and harmonization within the federal government.

Third, paragraph 58(c) specifies that the Agency is to promote research. So as not to be unduly restrictive, this should also include conducting research.

Fourth, section 58 does not -- but should -- specify that an object of the Agency is to promote effective public participation in environmental assessment.

Recommendation 72. We recommend that 58 of the Act be amended by:

(1) adding "or under" after "procedures established by" in paragraph 58(a);

(2) adding "within the federal government and" after "environmental effects across Canada" in paragraph 58(b);

(3) adding "and conduct" after "to promote" in paragraph 58(c); and

(4) adding a new paragraph 58(c.1) as follows:

    "58(c.1) to promote effective public participation in environmental assessment;".

SUBSECTION 59 - DUTIES AND POWERS

This section sets out the duties and powers of the Agency. We note three problems.

First, section 59 should specify that one purpose of the Agency is to establish an environmental assessment public participant funding program. The Federal Environmental Assessment and Review Office (FEARO), has announced that such a program has been established recently. This is a very welcome step and we recommend that the program be enshrined in legislation so that it is accorded the stature befitting its importance. This is absolutely essential to public participation and to public confidence in this process. The recommendation below proposes amending the Act to set out the purpose of the program, the criteria for determining successful applicants and the types of activities which may be funded by the program.

Second, paragraph 59(2)(c) authorizes the Agency to negotiate agreements with the provinces. It should also specify agreements with other countries under the Act.

Third, paragraph 59(2)(e) authorizes the Agency to issue guidelines regarding records to be kept by responsible authorities in relation to environmental assessments. It should also include follow-up programs.

Recommendation 73. We recommend that subsection 59(2) of the Act be amended by:

(1) adding a new paragraph 59(1)(d) as follows:

    "59(1)(d) establish an environmental assessment public participant funding program;"

(2) adding new subsections 59(1.1), (1.2) and (1.3) as follows:

    "59(1.1) The purpose of the environmental assessment public participant funding program is to improve the effectiveness of environmental assessment by providing financial assistance to members of the public and non-profit organizations for the preparation and presentation of informed views during environmental assessment and follow-up programs.

    59(1.2) The criteria for determining successful applicants to the environmental assistance public participant funding program are as follows:

        (a) the applicant or its members must have a clear interest in the environmental effects of the proposed project;

        (b) separate representation of the applicant's interest will contribute significantly to the environmental assessment of the project;

        (c) the applicant must have a legitimate connection to the interest it seeks funding to represent;

        (d) priority will be given to applicants whose presentation will be high quality and original;

        (e) priority will be given to applicants who need the most assistance in preparing and presenting their views;

        (f) priority will be given to joint applications from more than one individual or organization;

        (g) applicants must submit a proposed work plan and budget, consistent with the terms of reference of the environmental assessment;

        (h) funding will be provided only for new work, not for material that has been produced; and

        (i) applicants must be capable of accounting for funds received.

    59(1.3) Funds from the environmental assessment public participation funding program may be used for the following types of activities:

        (a) professional fees, including fees for legal representation;

        (b) salaries for research and preparation;

        (c) travel and accommodation;

        (d) purchase of background information;

        (e) collection and dissemination of information;

        (f) organizing and conducting workshops;

        (g) accounting and auditing services;

        (h) supplies, copying, communications and advertising for meetings;

        (i) rental of office space, meeting rooms and equipment;

        (j) translation; and

        (k) other activities prescribed by regulation."

(3) adding ", or in subsection 54(2) on behalf of the Minister and in consultation with the Secretary of State for External Affairs" after "on behalf of the Minister"; and

(4) adding "and follow-up programs" after "assessment of projects" in paragraph 59(2)(e).
SUBSECTION 67(2) - STATISTICAL SUMMARY TO BE INCLUDED

This subsection sets out the items to be included in the Agency's annual report to Parliament.

It should also include the extent of compliance or non-compliance with the Act and regulations and guidelines and orders under the Act by responsible authorities and others.

Recommendation 74. We recommend that subsection 67(2) of the Act be amended by adding "the extent of compliance or non-compliance with the Act and regulations and guidelines, codes of practice and orders under the Act by responsible authorities and others, and" after "referred to in subsection (1) shall include".