Following are general comments on the draft Agreement, followed by comments on a number of specific provisions on the draft text.
Our greatest concern is with section 5 of the Subsidiary Framework Agreement on Joint Review Panels. Although the sectionmeets the requirements of CEAA section 41, those are minimal requirements. The Subsidiary Framework Agreement should be amended to ensure balanced representation of environmental interests in the joint review panel.
Our concern is that appointment of most members of a panel by the BC Lieutenant Governor in Council makes the appointment of a panel which fully represents environmental values less likely. Although we are unaware of any instances of biased or inappropriate appointments to environmental assessment panels, appointments of environmental decision makers in other fora raise significant concerns. For instance, Canadian Forest Products Limited ("Canfor") recently appealed provisions in its air emissions permit to the BC director of waste management. Canfor requested that its appeal not be heard by a long time public servant with a demonstrated expertise in air issues. The provincial cabinet interfered with the normal process and appointed an official who had previously worked for Canfor. This is not a unique example. Amendment of park use permits has been taken out of the hands of parks officials because they were "too concerned" with protecting park values.
Although, the federal government is not immune from this sort of activity, its broader interest may provide for more neutral appointees. Moreover, the federal Minister of Environment, having as his or her main responsibility protection of the environment, is more likely to appoint environmentally concerned officials. The federal Minister should appoint or approve at least one half of the individuals serving on a joint review panel.
The Subsidiary Framework Agreement on Joint Review Panels could also be improved by adding the following sentence: "All panel members must meet the requirements of section 41(b) of CEAA". This will not cure the problem discussed above ("bias" as used in section 41(b) is narrowly defined in administrative law), but it will highlight the importance of appointing environmentally aware, unbiased officials.
Finally, all federal departments with responsibilities in connection with the proposed project should be able to participate on the project committee.
Most of the following comments relate to potential conflicts in the operation of the Agreement and the two environmental assessment regimes. We recognize that an attempt has been made to address problems of incompatibility through the inclusion of general provisions in the Agreement such as section 18, section 22, section 33 and section 36. Despite these general provisions there is a large risk that specific provisions of the Agreement will be interpreted as imperative by federal or provincial authorities and will result in an environmental assessments being contrary to the terms of Canadian Environmental Assessment Act ("CEAA").