Speech: Bill C-69 gets an F. At committee, let us please get it to a C+.

by Elizabeth May | March 2, 2018 2:46 pm

Elizabeth May

Mr. Speaker, I rise today on the traditional unceded territory of the Algonquin people, and thank them for their generosity. Meegwetch. I also want to thank the hon. member for Davenport for splitting time with me. The circumstances are not those that lend me to feel particularly relieved or happy, but I am grateful for the civility of giving me 10 minutes. Otherwise, I would not be able to speak at all because of the egregious use of time allocation on an omnibus bill. I never expected to see omnibus bills with time allocation after the change in government.

This is three bills put together, the National Energy Board Act changed, the Navigable Waters Protection Act changed, and the Environmental Assessment Act overhauled. The fourth piece that had been running along in tandem, through the great judgment of the minister of fisheries, is Bill C-68. It stands on its own and is an excellent piece of legislation.

However, with the time available to me, I am only going to be able to speak to the impact assessment piece of this omnibus bill, which I am afraid falls below any standard of acceptability and should trouble deeply any Liberal who stood in this place and voted against Bill C-38 in the spring of 2012. We stood together, every Liberal MP and every New Democrat, against the destruction of decades of environmental law. How that process has been captured by the same mentality, values, and principles that led to Harper destroying these acts so we now have a repackaged version of those same principles of eroding environmental assessment is something that caucus should try to figure out. I hope it will lead to changes in committee.

With the time available to me, I will quickly review my background in environmental law. I happen to be an environmental lawyer. It is an even weirder fluke that when I was 22 years old and a waitress and cook, I participated in the very first environmental assessment panel hearing in Canadian history in 1976. It was in Cape Breton. It was the Wreck Cove hydroelectric plant. I have participated in dozens since.

Ten years after that, I was in the minister of environment’s office. I was actually a senior policy adviser, the person who took the quest from Environment Canada from a wonderful senior civil servant named Ray Robinson. who headed the Canadian Environmental Assessment Agency in those days, and we took to the Privy Council Office the request to legislation. Up to then, we had been operating under a guidelines order that required environmental reviews, but it was a bit uncertain in its full rubric. Some people thought it was a guideline so therefore was not binding. We got permission to legislate. Subsequently, I resigned my job with the minister of environment when the minister violated the environmental assessment review process guidelines in approving dams without permits. This is just to say that I did not only recently come upon my commitment to proper and thorough environmental assessment in Canada. It is non-partisan and goes back decades.

Now, what happened under Bill C-38 was the repeal of our environmental assessment process and the replacement with a rather bogus process. We can compare Bill C-69 to the bogus process in Bill C-38 in 2012, or we can compare it to what is needed. It is all well and good for the federal Liberals to say to us today that they did a lot of consultation. It is true. There were 21 cities with public hearings, and over 1,000 people showed up to a superb expert panel on environmental assessment. The question before us today is why were their recommendations ignored?

One at a time, I am going to read the recommendations that were ignored. There are many. In previous debate in this place, when the bill was first put forward, the parliamentary secretary to the minister of environment claimed I was wrong in my assertion, which I think is fact, that the environmental assessment expert panel was ignored. It is really important to understand the point of environmental assessments, so I will just go back a bit and say that is one of the pieces of Harper think that has survived into Liberal think.

Environmental assessment has never been about a green light, red light, yes, no, the project goes ahead, or it does not. It is primarily a tool for good planning. In that whole history from 1976 to 2012, when Harper repealed the act, only two projects were ever given a red light. I will say that again. From 1976 to 2012, with the thousands of environmental reviews that were done, only twice did a federal provincial environmental review panel say that a project was so damaging it could not be mitigated and that it must say no.

It has primarily been about studying a process thoroughly, studying a project thoroughly, and deciding we can mitigate the damage if only the proponent would agree to better scrubbers or change the location slightly, and in the course of the review process, many projects were improved, the damages mitigated and reduced, and in the end a much better project was accepted. This has never been primarily about how to get to yes or no faster. That is what Harper thought, and apparently that thought process has somehow infested some ongoing decision-making process within government. Therefore, an environmental assessment is about good planning.

Until 2012, the Environmental Assessment Act said that the purpose was to get in and review a project, “as early in the planning process as possible and before irrevocable decisions are made.”

Let me quote what we heard from the expert panel on what an environmental assessment should contain. It did agree that it should be called an “impact assessment”. That is one piece that we could claim.

On page 5, it states that the impact assessment authority “should be established as a quasi-judicial tribunal empowered to undertake a full range of facilitation and dispute-resolution processes.” This has been ignored. The recommendation of the expert panel the government sent around the country—members have heard about them, a thousand people participated, and 800 submissions—was to not have ad hoc panels where people are put on different projects always having different panels, and to develop expertise through a quasi-judicial tribunal. Ironically, this was also the advice from the red book Liberal platform of 1993.

The second point is to have time limits and cost controls that reflect the specific circumstances of each project, not the current one-size-fits-all approach, which was an innovation under Bill C-38.

This is a key point. Projects need to be reviewed whether they are big or small. The effect of Bill C-38 that Harper brought in is this. The previous era had seen approximately 4,000 projects a year reviewed, most of them with paper-screening exercises that did not take much time. After Bill C-38, it shrunk from 4,000 a year to fewer than 100 a year. The Liberals have gone with perpetuating the fewer than 100 a year. This is how they have done it, by ignoring this advice.

The panel stated that when there should be a review the federal interests include, “at a minimum, federal lands, federal funding and federal government as a proponent, as well as”, and then it lists, “species at risk; fish; marine plants; migratory birds”, indigenous issues, and so on.

This piece of legislation ignores anything except a project list. That was an innovation of Bill C-38. There are no law list reviews requiring that if the navigable waters act or the Fisheries Act require a permit from the minister there be a review, and no requirement that when federal money is spent there be a review. That is the advice the government got from its expert panel, which it ignored.

The expert panel also said clearly that there should be no role at all for the National Energy Board, the Canadian Nuclear Safety Commission or the offshore petroleum boards. It points out that the federal system prior to 2012, “had decades of experience with delegating final decision-making to the Canadian Nuclear Safety Commission…and the [NEB]” without those agencies meddling in the environmental assessment.

What is happening under Bill C-69 is like a shell game. We are told it is one independent agency, except when it is reviewing pipelines the panel must be comprised of people who are sitting members of the NEB, now called the Canadian energy regulator. If it is reviewing offshore petroleum operations in Atlantic Canada, the panel members must come from the offshore petroleum boards, which by legislation are required to expand offshore oil. It is an embedded conflict of interest in the legislation.

The atrocities continue. With respect to indigenous rights, how is it that the Minister of Fisheries can put before us Bill C-68, which has strong language to protect indigenous rights? Bill C-68, at section 2.3, “Rights of Indigenous peoples”, makes it clear the act cannot derogate from indigenous rights. Section 2.4 states that it is the duty of the minister when making a decision to consider any adverse effects on the rights of indigenous peoples. This piece of over-discretionary political masquerading of environmental assessments in Bill C-69 merely states that the impact that a designated project may have on any indigenous group is a factor to be considered. As a former litigator, I can tell members that the courts do not regard indigenous rights as a factor to be considered as protecting indigenous rights.

This bill gets an F. At committee, let us please get it to a C+.

Kevin Lamoureux – Parliamentary Secretary to the Leader of the Government in the House of Commons

Mr. Speaker, I do not question the member’s passion on the topic. In fact, she has illustrated well the degree of her involvement on this file.

Having said that, I think there is an expectation that the government have a process in place that incorporates legislation that recognizes there is an indigenous factor, an environmental factor, and an energy to market factor that has to be taken into consideration in terms of what the needs of Canada are going forward.

Would the member not, at the very least look at this? On the one hand, we have the Conservatives saying we have gone too far, and on the other, the NDP and the leader of the Green Party saying we have not gone far enough.

At the very least, let us allow the bill to go to committee. I understand her concerns with regard to speeding this thing through. I can assure her, if it was up to some members of the House this legislation would never pass the House. Unfortunately, at times, time allocation is a tool we require.

Would the member not agree that at least it is a step forward, perhaps not the leap she would like to see, but it is a step forward.

Elizabeth May

Mr. Speaker, my commentary is not based on what I would like to see as an environmental activist. It is a public policy question of whether it is good legislation. It is, objectively speaking, not good legislation. It is so wide open to discretion, that though one might say “Well, look at our current Minister of Environment. One can’t imagine her ignoring indigenous rights and plowing something through”.

However, legislation is for all time, for different governments. Even if I thought there was no chance in a million years of any misuse of discretion in the current government, why would I sign off on a piece of legislation that is so, empirically speaking, deficient? It is not good legislation.

Ziad Aboultaif Member for Edmonton Manning

Mr. Speaker, I listened to the speech of the hon. member. She is definitely very experienced in green and energy, and the environment in general. She mentioned the pipelines. She mentioned the balance and indigenous communities. How does she envision a pipeline going anywhere, west or east, in Canada with a balance to get the pipeline going through? Where does she see the balance in order to get pipelines through Canada, either to the west coast or the east coast?

Elizabeth May

Mr. Speaker, I think it is a question of looking at the evidence, having a full impartial hearing where witnesses can be cross-examined, assertions can be tested, and the truth can be determined.

In the case of pipelines, I am not against any particular pipeline. The question is always what is in it. If it is a pipeline with bitumen and diluent it cannot be cleaned up. Should we wish to build a pipeline to bring more B.C. wine to Alberta, I am all for it.

Nathan Cullen Member for Skeena—Bulkley Valley

Mr. Speaker, I will not get distracted about the idea of a pipeline filled with great B.C. wines, as much as Canadians would probably like to see that happen.

My question for my friend is both and process and the substance. The Liberals promised not to bring in omnibus legislation. The Speaker of the House has determined that to be this. After two hours of debate, Liberals brought in time allocation, shutting off the conversation, when they promised they would not do this.

On the substance, and I suppose we need to bring this into the real world, and here is my question for my friend: The Prime Minister, when campaigning for the job said that the Kinder Morgan pipeline, for example, had been put under a bad review and that he would put it under a proper review. If the Prime Minister had done his job and actually subjected the diluted bitumen project plan to go to Vancouver, would the premier of British Columbia be having to do the makeup work after the fact, after the approval process, to find out things like how one handles a spill of diluted bitumen, either in fresh or salt water? If the Prime Ministerhad followed through on his commitment to have good legislation go through a decent process, that projects would be reviewed properly, would we be in the circumstance we are in with the conflict with first nations people and the people of British Columbia, and now the Government of Canada?

Elizabeth May

Mr. Speaker, the hon. member for Skeena—Bulkley Valley is absolutely right. The question, to me, suggests its own answer which is, of course, had we not been put through a process that is not part of that history of environmental review. The National Energy Board had no expertise in doing reviews.

This allows me to mention another carry-over bad aspect of Bill C-38 into Bill C-69. The time limits that were put into Bill C-38 is how it was that the National Energy Board determined that they would not allow people like me as an intervenor to cross-examine Kinder Morgan’s witnesses, which led to an abuse of process and not really getting to the facts of the matter.

That aspect of time limits has not only been continued in Bill C-69, but the time limits have been shortened.


Source URL: http://elizabethmaymp.ca/parliament/2018/03/02/speech-bill-c-69-gets-an-f-at-committee-let-us-please-get-it-to-a-c/