Recommendations For Improvements To Bill C-13,
The Proposed Canadian Environmental Assessment Act Including The Government's Proposed Amendments

by

William J. Andrews
Barrister & Solicitor
Executive Director

WEST COAST ENVIRONMENTAL LAW ASSOCIATION

October 22, 1991
PART 1
INTRODUCTION

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, the proposed Canadian Environmental Assessment Act.

In November 1990, WCELA lawyers William Andrews and Ann Hillyer prepared a brief on recommendations for improvements to Bill C-78, which was presented to the Legislative Committee examining Bill C-78. In December 1990, WCELA submitted comments on provincial proposals for amendments to Bill C-78 to the Committee.

Bill C-78 died on the Order Paper when Parliament was prorogued and it was replaced in identical terms with Bill C-13 which was given first reading on May 29, 1991. In early October 1991, the federal government tabled with the Legislative Committee examining Bill C-13 a "Consolidated Working Draft of Amendments for Committee Review" which incorporates the government's proposed amendments. This brief comments on and makes recommendations regarding Bill C-13 as it would read with the government's proposed amendments. No attempt is made in this brief to repeat the comments and recommendations made in WCELA's two previous briefs to the Legislative Committee examining Bill C-78. It is our expectation that those briefs will be considered by the Legislative Committee examining Bill C-13 in its clause-by-clause examination of the Bill.

In preparing this brief, we have considered two documents recently released by the Federal Environmental Assessment Review Office: "An Annotated List of Statutory and Regulatory Provisions Under Bill C-13, Revised Draft September 1991," and "Annotated List of Comprehensive Studies: Discussion Draft, September 20, 1991." Recommendations regarding those two documents will be made by WCELA during the federal government's consultation process regarding them.
PART 2
FUNDAMENTAL POINTS NOT YET INCORPORATED IN BILL C-13 AND THE GOVERNMENT'S PROPOSED AMENDMENTS

      1. There should be mandatory, not optional consideration of the need for, and alternatives to, a project.

      2. Key decisions in the environmental assessment process should be subject to independent review by the courts, in order to ensure full implementation of the environmental assessment process set out in the Act.

      3. Responsible authorities must be given clear authority to impose and enforce environmental terms and conditions on (mitigation measures and participation in follow-up programs) the proponent of a project.

      4. Financial compensation by the proponent for environmental damage (under the term "mitigation") should not be a basis for blocking further environmental review where it would otherwise be necessary.

      5. Environmental assessment of proposed policies and programs has not yet been adequately addressed.

      6. The scope of the Act should extend (as does EARP) to federal decisions not to exercise a power to protect the environment.

      7. There should be no wide-open exception to remove the need for environmental assessment of projects claimed to be intended to prevent damage to property or the environment.

      8. The public should have notice of, and an opportunity to comment on, a screening report prior to the making of decisions regarding allowing a project to proceed or requiring further environmental assessment.

PART III
SECTION BY SECTION COMMENTS AND RECOMMENDATIONS
Preamble

The proposed amendment to the first paragraph of the Preamble distorts the Brundtland definition of sustainable development by specifying promotion of economic development. Sustainable development is the basis for the second paragraph of the Preamble. The first paragraph of the Preamble should focus on preservation and enhancement of environmental quality.

We recommend that the first paragraph of the Preamble be amended to read:

WHEREAS the Government of Canada seeks to preserve and enhance environmental quality and to encourage and promote economic development that preserves and enhances environmental quality.
Subsection 2(1) "Mitigation"

We support the proposed amendments to strengthen this term by specifying "substantial reduction or effective control of the adverse environmental effects of the project." One effect of this proposed change is that the power to impose mitigation measures under section 16 and 34 is narrowed (presumably, unintentionally) because the power to impose mitigation measures which are desirable but will not effect the substantial reduction or effective control of the adverse environmental effects of the project is removed.

The proposed amendments do not deal with the second major problem of the definition of mitigation, which is that by including "compensation," and in conjunction with the use of the term mitigable in subsequent sections as a criterion for allowing a project to proceed, a project could be allowed to proceed without full assessment, merely because the proponent offered financial compensation for environmental damage. We would not want to exclude the possibility that after full environmental assessment, financial compensation could be among the "mitigation" measures imposed on a project, but it is clearly undesirable that mere financial compensation could be used as a substitute for full environmental assessment.

Regarding section 6, below, we recommend replacing "mitigable" as a criterion for acceptance of a project without further environmental assessment. Instead, the proposal that the test for whether further assessment is required should be whether a project, including mitigation measures that will be undertaken, is likely to cause significant adverse environmental effects.

We recommend that the definition of "mitigation" in subsection 2(1) be amended to ensure that a proponent's offer to provide financial compensation for environmental damage cannot be a basis for precluding full environmental assessment of a project.
Subsection 2(1) "Sustainable Development"

We support the government's proposed amendment to define sustainable development.
Section 4 Purposes

We support the government's proposed amendment to add facilitation of public participation as an enumerated purpose of the Act.
Section 5(1) Cases Where Environment Assessment is Required

The proposed amendments fail to restore the scope of the EARP process which had been narrowed in Bill C-78 and Bill C-13 by the exclusion of environmental assessment regarding decisions of the government not to take action to protect or enhance the environment after being requested to do so. This was one of the bases of the Oldman River dam case. In the absence of the decision of the Supreme Court of Canada in that case, it is our view that Bill C-13 should be amended so that it does not narrow the scope of EARP in this respect.

We recognize that to establish reasonable administrative procedures it is important to specify which types of decisions of this sort will be subject to environmental assessment. For this reason, we recommend below that Bill C-13 be amended to allow a prescribed list of provisions of federal statutes and regulations regarding which a decision not to take action to protect or enhance the environment on request will trigger the need for environmental assessment. One example of such a provision is subsection 37(1) of the Fisheries Act, which authorizes the Minister of Fisheries to request plans and specifications from a proponent of a project that may affect fish habitat.

We recommend that subsection 5(1) be amended by adding the following paragraph:

5(1)(e) fails or refuses to exercise authority under a provision prescribed pursuant to paragraph 55(new) to protect or enhance the environment after being asked in writing to do so.
Subsection 5(2) Projects Requiring Approval of Governor in Council

We support the government's proposed amendment to require environmental assessment of projects that require Cabinet approval.
Subsection 6(1) Exclusion

Regarding paragraph 6(1)(a), we support the government's proposed amendment to delete "in the opinion of" here and elsewhere throughout Bill C-13.

Regarding paragraph 6(1)(b), we support the government's proposed amendment to clarify that the exclusion is for projects taken in response to the emergency.

Regarding paragraph 6(1)(c), we object strongly to the government's proposed amendment which would provide a completely unlimited exclusion for projects considered to be in the interests of preventing damage to property or the environment or in the interest of public health or safety. Rationale of this sort are often used to support clearcutting of allegedly infested stands of timber, dams allegedly for flood control purposes and a wide range of other projects that are quite capable of causing significant adverse environmental effects. Nothing in the proposed paragraph even limits the exclusion to an emergency situation. Moreover, in our view, if there is to be some authority in the federal government to curtail environmental assessment in emergency situations, it should be exercised by the Minster of Environment, not by the responsible authority.

We recommend that the government's proposed paragraph 6(1)(c) not be adopted. In the alternative, the proposed exclusion should be subject to the following conditions:

      1. The project must be in response to an emergency situation and to follow the usual environmental assessment process would negate the value of the project.

      2. The authority to exercise the exclusion should be given to the Minister of Environment, not the responsible authority.

      3. Rather than a total exclusion of environmental assessment, the paragraph should provide for bridged or altered environmental assessment procedures, including a follow-up program.

Subsection 7(2) Duty of Responsible Authority

We support the government's proposed amendment to replace the subject test here with an objective test.
Subsection 8(2) Disagreement Between Responsible Authorities

We support the government's proposed amendment to strengthen the Agency's authority to resolve disputes between responsible authorities.
Subsection 8(3) Participation by Federal Authorities

We support the government's proposed amendment to require other federal agencies to assist in environmental assessment.
Subsection 8(4) Participation by Other Jurisdictions

While it is desirable to facilitate cooperation, a qualifying phrase should be added to proposed subsection 8(4) to make it clear that although a responsible authority must endeavor to cooperate, it is not obliged to agree to the other jurisdiction's proposed terms and conditions of cooperation.

We recommend that the government's proposed subsection 8(4) be revised to make it clear that although a responsible authority must endeavor to cooperate, it is not obliged to agree to the other jurisdiction's proposed terms and conditions of cooperation.
Section 9 Action Suspended

This section requires that federal authorities in addition to the responsible authority must not take steps to further a project until a comprehensive study, mediation or review panel in relation to a project are completed. It is difficult to understand why it does not apply also to the screening of a project. Examination of proposed list of types of projects which will be required to undergo comprehensive study, indicates that the list is designed on an exceedingly narrow basis. For example, greenfield pulp mills are included, but major pulp mill rebuilds are excluded. Petroleum production is included, but exploration is excluded. This means that future projects such as the proposed rebuild of the Celgar pulp mill in Castlegar, B.C., and WestCoast offshore petroleum exploration, both of which were subject to environmental assessment review panels under the EARP process, would not even be required to be subject to a comprehensive study report under the new legislation. We will recommend that the comprehensive study list be expanded, but the fact that it illustrates the government's current intention to allow major projects to be subject on a mandatory basis only to screening means that the procedures dealing with screening in the Act must be particularly rigorous.

We recommend that section 9 should be broadened to suspend federal action to further a project until screening is completed.
Section 10 Environmental Assessment Process

This section introduces the term "environmental assessment process." This term is also used in section 55. However, it is not used elsewhere in the Act and the terms used more frequently are "environmental assessment" and "assessment of environmental effects." Each of these terms is different. "Environmental assessment" is defined in subsection 2(1). "Assessment of environmental effects" is not defined, but section 11 provides that environmental effects are only one of a number of factors to be considered in an environmental assessment, so presumably, an environmental assessment is broader than an assessment of environmental effects. It is not clear, however, that the use of these terms in different places in the Act is always intended to carry correspondingly different meanings.

We recommend that the use of the terms "environmental assessment process," "environmental assessment" and "assessment of environmental effects" throughout the Act be reviewed with a view to:

      (2) making clear distinctions, where distinctions are intended, and

      (3) ensuring that assessments consider a broad range of factors, including mitigation measures and follow-up programs.

Subsection 10(1) Scope of the Project

We support the government's proposed amendment to add a power to define the scope of the project to be assessed, to combine the assessment of closely related projects and to require assessment of `whole' project, and not to allow `splitting' of the assessment.
Section 11 Factors to be Considered

We have a variety of comments regarding this section and the government's proposed amendments to it.

First, given the very narrow nature of the proposed comprehensive study list (discussed above), it is extremely important that the factors set out in subsection 11(2) (required to be considered in a comprehensive study, mediation or assessment by a review panel) should also be required to be considered during a screening. If a project such as a billion dollar pulp mill rebuild is to undergo screening with the possibility that it could be approved without further environmental assessment, it is essential that the screening consider factors such as the purpose of the project, alternative means of carrying it out, the need for a follow-up program and the impact on renewable resources (e.g. fiber supply).

We recommend that section 11 be amended to require that screening of a project include consideration of the factors in subsection 11(2) as well as those in subsection 11(1).

Given the narrow scope of the comprehensive study list, it is also important that screening include consideration of the need for, and alternatives to, a project. If offshore petroleum exploration, for example, is not to be required mandatorily to be subject to a comprehensive study, then the only guarantee that citizens have that energy conservation will be considered as an alternative is if the need for, and alternatives to, a project are factors to be considered in a screening.

We recommend that subsection 11(1) be amended to include consideration of the need for, and alternatives to, a project in environmental assessment.

We recommend that section 11 be modified to reflect the government's proposed paragraph 25(b) which contemplates that a review may be conducted in part by a panel and in part by a mediator.

Paragraph 11(1)(c) limits consideration of public comments to those that concern the environmental effects described in 11(1)(a). This is excessively narrow. There is no reason why screening should not include consideration of public comments regarding mitigation measures (paragraph 11(1)(d)), as well as any of the factors listed in subsection 11(2). This is equally important regarding a comprehensive study, mediation or review panel assessment.

We recommend that section 11 be amended to require that any environmental assessment consider public comments in relation to any of the factors listed in subsection 11(1) and 11(2).

We support the government's proposed amendment to strengthen 11(2)(d).

Regarding subsection 11(4), the government's proposed amendment to make a connection between the project and the emergency is a step forward, but the subsection is still fundamentally confusing. How is this subsection supposed to be different than paragraph 6(1)(b)? Is the subsection intended to make a distinction between "carrying out" a project in response to a national emergency and designing a project in response to a national emergency? By specifying consideration of the environmental effects is it intended that all the other factors in subsections 11(1) and 11(2) must still be considered? Is there an intention to make a distinction between "the environmental effects that could result from carrying out the project" and the phrase in paragraph 11(1)(a), "the environmental effects of the project"? Is is contemplated that the national emergency is a real one in effect at the time of the assessment or a speculative future emergency?

We recommend that subsection 11(4) be completely clarified or else deleted.
Subsection 12(1) Delegation

The government's proposed amendments provide that a responsible authority could delegate conduct of a comprehensive study, in addition being authorized to delegate the conduct of a screening. As well, the government's proposed amendments provide that a provincial government could be the recipient of this delegated authority. We are deeply concerned that this proposal could be used to allow the federal government to accede to provincial demands for control over the assessment of a controversial project where members of the public have no confidence that the province would be able or willing to conduct an assessment that would fully reflect the scope of federal environmental responsibilities. Subsection 12(2) requires such delegated assessment to comply with the requirements of the Act and regulations. But this provides little comfort because these public concerns are often based on a perceived difference of attitude and approach between provincial and federal authorities.

Before the comprehensive study list was released, we had been given the impression that screening would apply only to very minor projects and, thus, delegation of the power to conduct a screening seemed like a correspondingly minor matter. However, with the draft comprehensive study list indicating that screening is the maximum environmental assessment required to be conducted regarding certain major projects, it is clear that delegation of the authority to conduct a screening is not a minor matter. Moreover, the proposal to allow delegation of the authority to conduct a comprehensive study report goes far beyond the original justification of administrative efficiency for this subsection.

We recommend that section 12 be deleted.
Subsection 13(3) Consideration of Public Comments in Screening

The government's proposed amendments would remove the requirement in subsection 16(3) that the public be given the opportunity to examine and comment on a screening report before a decision is made regarding approving a project or referring it to the Minister for mediation or a review panel. The government proposes to replace this with a new subsection 13(3) that would allow the responsible authority to give the public an opportunity to examine and comment on a screening report "where the responsible authority is of the opinion that public participation in the screening of a project is appropriate."

This proposal is outrageous. It is totally contradictory to the government's proposed stated purpose of the Act "to facilitate public participation in the environmental assessment process" (paragraph 4(d)). The combination of the narrow draft comprehensive study list and this proposal would mean that the public has no guarantee that it would even have notice of a decision to approve a major pulp mill rebuild without anything more than an environmental assessment screening. Such a situation is simply not acceptable.

We recommend that the government's proposed amendments to abrogate the public's right to comment on a screening report prior to decision-making not be accepted.
Section 14 Declaration of a Class Screening Report

We support the government's proposed amended subsection 14(1) to require Gazetting of a proposal by the Agency to declare that a screening report is a class screening report.

The government's proposed amended subsection 14(5) change the wording but do not change the nature of this subjective test embodied in this section.

We recommend that the government's proposed section 14(5) be amended by deleting the phrase "the responsible authority determines."

We recommend that the government's proposed amended subsection 14(6) be revised to require publication of notice in the Canada Gazette and an opportunity for comment prior to a declaration that a report is not to be a class screening report.
Subsection 16(1) Decision of Responsible Authority Following a Screening

The government's proposed amended subsection 16(1) would require consideration of only those comments filed pursuant to proposed subsection 13(3). This would be absurdly legalistic. The responsible authority should be required to consider any comments in relation to the project that it has received. The subsection does not require the responsible authority to agree with the public comments. It can hardly be said to be too onerous to require the responsible authority to at least consider any comments that it receives.

The government's proposed amendments would add as a criterion for referral for mediation or assessment by a review panel that there is uncertainty whether environmental effects are "justifiable in the circumstances." This proposed new criterion is discussed below regarding section 34.

We recommend that the government's proposed amended subsection 16(1) be revised to require the responsible authority to consider any comments in respect of a project received by the responsible authority.

The government's proposed subparagraph 16(1)(a)(ii) would allow the responsible authority to proceed with a project following the screening where significant adverse environmental effects of the project are "mitigable." Despite the government's proposed strengthening of the definition of mitigation (subsection 2(1)) the definition is still far too loose to serve as the criterion for allowing a project to continue without being required to be subject to further environmental assessment. Given that some extremely large projects will be required only to be subject to screening, it is quite possible that there would be situations where mitigation measures would meet the proposed strengthened definition but would still leave significant adverse environmental effects that warrant further environmental assessment before a decision should be made on whether or not to approve the project.

What we suggest is that the test of whether a project should be approved or required to be subject to further environmental assessment following a screening report should be whether the project, including mitigation measures, is or is not likely to cause significant adverse environmental effects. It seems obvious that if a project, including mitigation measures, is likely to cause significant adverse environmental effects then these warrant examination in more detail than ought to be required in the first stage of an environmental assessment process. The purpose of the screening stage should be to deal expeditiously with those projects (presumably, mostly minor projects) that will not cause significant adverse environmental effects. This is especially important as it is apparently contemplated that certain major projects will not be automatically subject to comprehensive study and will be required (on an automatic basis) only to be subject to screening.

We recommend that paragraph 16(1)(a) be amended to authorize the responsible authority to takes steps to further a project only where the project including mitigation measures that will be undertaken is not likely to cause significant adverse environmental effects.

Regarding paragraph 16(1)(a), we support the government's intention to eliminate the discretionary language in the original version of Bill C-13. However, the phrase "where the responsible authority finds that" is only marginally less discretionary than the phrase "where in the opinion of the responsible authority." The Minister of the Environment has stated that it "was never the intent" to "attempt `court proof' this legislation." [(1) -- 1. . Notes for an Address by the Honorable Jean Charest to the Legislative Committee on Bill C-13, Ottawa, 10 October 1991, p. 6. ] That being so, the discretionary phrase should simply be removed.

We recommend that:

      (1) subsection 16(1) be amended by deleting the phrase "where the responsible authority finds that" where it occurs in paragraph 16(1)(a), 16(1)(b) and 16(1)(c); and

      (2) the phrase "the responsible authority considers" be replaced by the word "are" where it occurs in paragraph 16(1)(a).

We discussed above regarding section 10 the apparently inconsistent use of the terms "environmental assessment process," "environmental assessment" and "assessment of environmental effects." An example occurs in the government's proposed amended subparagraph 16(1)(c)(ii) which authorizes the responsible authority to refer a project for mediation or to a review panel where warranted by "public concern respecting the environmental effects the project." This should be expanded to include public concern regarding any of the factors listed in subsection 11(1) and 11(2).

We recommend that the government's proposed amended subparagraph 16(1)(c)(ii) be revised, or that the definition of "environmental effects" be revised to ensure that public concerns regarding any of the factors specified in subsections 11(1) and 11(2) are a basis for reference of a project to a mediator or a review panel.
Subsection 16(2) Responsible Authority to Ensure Implementation of Mitigation Measures

We recommend that the government's proposed amended subsection 16(2) be revised to ensure that mitigation measures include those which would result in minor benefits and not just the substantial reduction or effective control of the adverse environmental effects of a project as specified in the proposed amended definition of mitigation (subsection 2(1)).

The phrase "justifiable in the circumstances" introduced in the government's proposed amended paragraph 16(c) is discussed regarding section 34, below.

We recommend that in subsection 16(2) the phrase "any mitigation measures that the responsible authority considers appropriate" be replaced by the phrase "any mitigation measures that are appropriate."

The government's intention to mandate responsible authorities, many of whom now have no express environmental mandate, rather than the Ministry of Environment, to enforce environmental mitigation measures and follow-up programs is one that does find philosophical support in the report of the World Commission on the Environment and Economy. [(2) -- 2. . The World Commission on Environment and Development, Our Common Future (New York: Oxford University Press, 1987).] However, we have misgiving about the likelihood that it will actually be effective. This concern is heightened by the apparent intention to have mitigation measures (and, to an unclear extent, follow-up programs) imposed by responsible authorities as terms and conditions of a very wide range of instruments, most of which currently have no relation to environmental protection.

The government has proposed amending subsection 16(2) to bolster the responsible authority's authority to require that mitigation measures be conducted by the proponent of a project. This is said by federal officials to reflect an intention to authorize a `superadded' power to the powers that the responsible authority may have under other acts and regulations. The proposed amendment strengthens the legal basis for taking the decentralized approach, but it does not deal with the underlying problem. If responsible authorities are to be given an environmental mandate with which in many cases they are totally unfamiliar, it is crucially important that the instruments through which they are to impose environmental requirements on project proponents be designed specifically for the purpose, including that they be readily enforceable.

There are many ways in which this could be done. One would be to add the following section:

X.(1) Not withstanding any other Act of Parliament, for the purpose of ensuring implementation of mitigation measures and participation by a proponent in a follow-up program under this Act, a responsible authority is authorized to order the proponent of a project to meet terms and conditions specified in the order.

(2) Every person who fails to comply with an order made under subsection (1) is guilty of an offence and is liable on summary conviction to a fine not exceeding two hundred thousand dollars or to imprisonment for a term not exceeding six months, or to both.

Canadian Environmental Protection Act apply, with appropriate changes, to an offence or an alleged offence under this section.

Whether or not this particular wording is the most appropriate, we cannot overstress the importance of clearly delineating the authority of a responsible authority to require a project proponent to implement mitigation measures and to participate in a follow-up program. Even authorizing Cabinet to make regulations regarding the making and enforcing of such orders would be a major improvement.

We recommend that subsection 16(2), 34(2), 35(1) and 49.1(1) be supplemented by a new section, or an authority in the Governor in Council, to make regulations to clearly authorize a responsible authority to order the proponent of a project to conduct mitigation measures and to participate in a follow-up program and to enforce such orders.
Subsection 16(3) Consideration of Public Concerns

As discussed above, we strongly object to the government's proposed amendment to eliminate this provision.

We recommend that the government's proposed amended subsection 16(1) be revised to require the responsible authority to consider any comments in respect of a project received by the responsible authority.
Subsection 16(3) All Federal Authorities Prohibited from Proceeding with Project

We support the government's proposed amended subsection 16(3) to bar action by other federal authorities where a responsible authority rejects a project under paragraph 16(1)(b).
Section 17 Comprehensive Study

We support the government's proposed amendment to section 17 to remove the subjective test.
Section 20 Decision of Minister

Three problems with this section have been discussed regarding other sections above. First, the availability of mitigation measures (even with the proposed strengthened definition of "mitigation measures") is simply not an appropriate criterion for the decision regarding whether further environmental assessment is required.

Second, the subjective phrase "where the Minister finds that" should be removed.

Third, in subparagraph 20(b)(ii), public concerns regarding any of the factors listed in subsections 11(1) and 11(2) should be a basis for a reference to a mediator or a review panel.

We recommend that section 20 with the government's proposed amendments be revised to:

      (1) in paragraph 20(a) and 20(b), remove the phrase "the Minister finds that",

      (2) in paragraph 20(a), provide that the project be referred back to the responsible authority where the Minister finds that the project including mitigation measures that are to be undertaken, is not likely to cause significant adverse environmental effects, and

      (3) in subparagraph 20(b)(ii), specify that public concerns about any of the factors in subsections 11(1) and 11(2) can be the basis for a reference to a mediator or a review panel.

The phrase "justifiable in the circumstances" used in the government's proposed amended paragraph 20(b)(1) is discussed regarding section 34, below.
Section 20.1 Use of a Previously-Conducted Environmental Assessment

The subjective tests should be removed from this proposed section.

We recommend that the government's proposed amended subsection 20(1) be revised by:

(1) in 20(1)(1), replacing "the responsible authority considers appropriate" with "is", and
Paragraph 21.1(b) Request to Minister

We recommend that paragraph 21.1(b) be amended to provide that public concerns regarding any of the factors in subsections 11(1) and 11(2) are a basis for reference of a project to a mediator or review panel.
Section 24 Referral by Minister

The government's proposed amended paragraph 24(a) retains Bill C-13's phrasing that the Minister's power to refer a project to a mediator or a review panel is available only when the Minister is of the opinion that a project "is likely to cause significant adverse environmental effects". This is a Catch-22. How is the Minister to form the opinion that significant adverse environmental effects are likely when an environmental assessment has not yet been done? This section allowing the Minister to refer a project to mediation or a review panel independently of the responsible authority is one of the key improvements which Bill C-13 makes to EARP. The value of this section, however, may well depend on eliminating this Catch-22.

We recommend that section 24 be amended by replacing the phrase "is likely to" with the word "may".

We recommend that paragraph 24(b) be amended to ensure that public concerns regarding any of the factors listed in subsections 11(1) and 11(2) are a basis for referral of a project for mediation or assessment by a review panel.
Section 25 Initial Referral to A Mediator or A Review Panel

We support the government's proposed amendments to remove the likelihood of success as a prerequisite for mediation, to allow mediation of an issue, and to provide for sending an issue to a review panel where mediation fails.

We are very concerned, however, that the efficacy of the innovative provisions for mediation in the environmental assessment process will be undermined by the government's proposed amendments which would retain Bill C-13's rigid `standing' limitations. These would restrict participation in a mediation to "parties who are directly affected by or have a direct interest in the project." This could quite easily be construed to exclude, for example, a major environmental organization which is concerned about a project but which owns no property affected by the project. Even if some of the organization's members were directly affected by or had a direct interest in the project, it could be argued that the organization itself does not meet the standing requirement.

Rigid restrictions on standing are archaic. At all levels of the legal system, from the Supreme Court of Canada's decision in Finlay v. Minister of National Revenue to allow public interest standing to challenge alleged government illegality to the standing requirements for environmental appeals under provincial legislation, rules of standing are being relaxed. Moreover, it is a fundamental principle of successful mediation that all self-identified affected parties participate. We are not aware of any reason why Bill C-13's new mediation provision should be constrained by a rigid standing requirement. If self-identified affected parties are excluded from mediation in a particular case, then the environmental assessment process will turn into a public relations disaster.

We recommend that the government's proposed amended subparagraph 25(a)(i) be revised to allow any party which considers itself affected by a project to participate in a mediation under the Act.
Section 26 Appointment of Mediator

We support the government's proposed amendments to require consultation with the parties to a mediation before the appointment of the mediator, and to set criteria for mediators, and to establish a roster of mediators.
Section 27 Minister's Determination

The government's proposed amendments would eliminate section 27 of Bill C-13, which authorized the Minister to resolve disputes regarding a person's standing to participate in a mediation. Rather than eliminating the dispute resolution mechanism, the Act should be amended to eliminate the source of potential disputes: the restrictive standing requirements.
Section 28 Mediation

The government's proposed amendments would eliminate subsection 28(1) of Bill C-13. This is an innovative section that provides:

A mediator shall not proceed with a mediation unless the mediator is satisfied that all of the information required for a mediation is available to all of the participants.

This would be a very useful way to ensure that all of the participants in a mediation are on something close to a level playing field. Eliminating it would not seem to be consistent with the government's proposed amended statement of purposes of the Act to include facilitating public participation in an environmental assessment (paragraph 4(d)).

We recommend that subsection 28(1) be retained.

The government's proposed amended subsection 28(2) would strengthen the mediation process by attaching a privilege to statements made by a mediator. This would promote candor on the part of the mediator. This new provision would be much more effective if it was extended to the participants in a mediation.

We recommend that the government's proposed amended subsection 28(2) be extended to attach privilege to statements made by participants in a mediation.
Section 29 Reference to Review Panel

This section allows the Minster to terminate a mediation. It should be subject to the same requirement that the Minister consult with the mediator and parties to the mediation prior to terminating the mediation, as is provided in the government's proposed amended subsection 25(2).

We recommend that section 29 be amended to require the Minister to consult with the mediator and parties to the mediation prior to terminating a mediation.
Section 30 Appointment of a Review Panel

We support the government's proposed amendments to establish criteria for panel membership, and to establish a roster of potential panel members.
Section 31 Assessment by a Review Panel

We support the government's proposed amended paragraph 31(c)(i) to replace the phrase "environmental effects" of the project with the phrase "environmental assessment" of the project. This is an example of the re-evaluation of the use of the term "environmental effects" such as we suggested regarding a number of sections above.
Subsection 32(6) Immunity

We support the government's proposed amended subsection 32(6) to add immunity for panel members.
Section 34 Decision of Responsible Authority

The government's proposed amended subparagraph 34(1)(a)(ii) introduces a new criterion for the acceptability of allowing a project to proceed following environmental assessment. It would allow a project that is likely to cause significant adverse environmental effects even where such effects are not mitigable to proceed "where justifiable in the circumstances". This is what might be called the `bottom line' of environmental assessment.

We fully recognize that after environmental assessment is fully completed a decision regarding a project will have to be made and that there may be good reasons, in certain cases, to allow the project to proceed even if it would have adverse environmental consequences. However, what is missing is the criterion for making such a decision.

"Sustainable development" is such a criterion, albeit a very general criterion. However, as the government proposes to enshrine the concept of sustainable development in the Preamble to the Act and to define sustainable development in subsection 2(1), it seems reasonable that sustainable development should be the `bottom line' criterion for deciding whether or not to allow a project to proceed following the completion of environmental assessment. Utilizing the concept of sustainable development as a criterion in this respect could hardly be seen as imposing an unreasonable constraint on the decision making authority of responsible authorities. It is worth noting that the government's recent Constitutional Proposals would enshrine the concept of sustainable development in the Constitution.

In the alternative, at the very least, the Governor in Council should be given authority to adopt regulations prescribing criteria to guide a responsible authority in deciding whether or not to allow a project to proceed following the completion of environmental assessment.

Subparagraph 34(1)(a)(ii) would also allow the responsible authority to permit a project to proceed where the project is likely to cause significant adverse environmental effects "but any such effects are mitigable". As discussed above regarding sections 16, it is our view that the project should be considered as a package including whatever mitigation measures are to be undertaken as part of the project. If the project, including mitigation measures is likely to cause significant adverse environmental effects and all environmental assessment is completed, then the `bottom line' decision must be made. The appropriate criterion for this decision is sustainable development, as discussed above. It is simply stretching the concept of "mitigation" too far to use it as the criterion for making the `bottom line' decision.

We recommend that the government's proposed amended paragraph 34(1)(a) be revised to remove mitigation as a criterion for acceptability and to either establish sustainable development as the criterion for acceptability or to authorize the Governor in Council to prescribe criteria for approving a project even where the project with any mitigation measures that will be undertaken, is likely to cause significant adverse environmental effects.

We recommend that the government's proposed amended subsection 34(1) be revised to remove the phrase "the responsible authority finds that" in paragraphs 34(1)(a) and 34(1)(b).

The government's proposed amended subsection 34(2) is an attempt to bolster the authority of a responsible authority to impose environmental terms and conditions on a project proponent. This needs to be substantially strengthened, as was discussed above regarding subsection 16(2).

We recommend that subsection 34(2) be supplemented by a new section, or an authority for the Governor in Council, to make regulations, to clearly authorize a responsible authority to order the proponent of a project to conduct mitigation measures and to participate in a follow-up program and to enforce such orders.

We support the government's proposed amended subsection 34(3)(b) to bar action by other federal agencies in addition to the responsible authority where the responsible authority blocks a project.
Subsection 35(1) Follow-up Program

As discussed above, a major gap in Bill C-13 even with the government's proposed amendments, is the failure to provide explicit authority for a responsible authority to require a proponent to participate in a follow-up program. The fact that Bill C-13 includes follow-up as part of the environmental assessment process is one of its key improvements over EARP. Yet this improvement will be substantially undermined if responsible authorities have no clear, consistent authority to require proponents to participate.

We recommend that subsection 35(1) be amended to clearly authorize a responsible authority to require the proponent of a project to participate in a follow-up program and to enforce such a requirement if it is violated.
Subsection 38 Conditions

We recommend that the government's proposed amended section 38 be revised by replacing the phrase "the assessment of the environmental effects of the project" with the phrase "the environmental assessment of the project".

We support the government's proposed amended paragraph 38(a)(1) to add criteria for panel members. We also support the government's proposed amended paragraph 38(b)(1) to add powers of the panel as a criteria for entering an agreement regarding a joint review panel.
Section 41 Conditions for a Public Hearing by a Federal Authority

This section sets out minimum criteria for the Minister to approve substitution of another federal review process for an environmental assessment under the Act. It fails to list the two criteria added to section 38.

We recommend that section 41 be amended by adding the following paragraphs:

(a.1) the members of the panel are to be unbiased, free from any conflict of interest relative to the project and are to have knowledge or experience relevant to the anticipated environmental effects of the project, and

(b.1) the review panel is to have the powers provided for in section 32.
Section 43 Interprovincial Environmental Effects

We support the government's proposed amendment to add referral to a mediator and to change "serious" to "significant".

We recommend that in subsection 43(1) the phrase "is likely to" be replaced with the word "may" or the phrase "is uncertain whether it will".

We recommend that subsection 43(1) be amended by replacing the phrase "an assessment of the environmental effects of the project" with the phrase "an environmental assessment of the project".

Subsection 43(2) prevents the Minister from referring a project to a mediator or a review panel regarding interprovincial environmental effects where the governments of "all interested provinces have agreed on another manner of conducting an assessment of the interprovincial environmental effects of the project". This provision should be subject to the proviso that the assessment agreed upon incorporates some basic minimum features such as the opportunity for public input, the submission of a final report to the Minister and that the report will be published.

We recommend that subsection 43(2) be amended to specify that the agreed upon manner of conducting an assessment includes an opportunity for public participation, the submission of a final report to the Minister and the publication of the report.

The government's proposed amended subsection 43(3) is a welcome initiative to authorize a province or certain persons to request that the Minister consider referring a project to a mediator or a review panel in the interprovincial environmental effects situation. Unfortunately, the provision is marred by a rigid limitation on standing that is even more restrictive than the provision in the government's proposed subparagraph 25(a)(i). Paragraph 43(3)(a) limits a petition to a person "who has a direct interest in the lands on which the project is likely to cause significant adverse environmental effects." What about persons concerned about an adverse effect on wildlife or some other environmental attribute of Crown lands? What about someone who would suffer a personal health effect?

As discussed above, the modern trend is toward unfettered standing to claim appropriate environmental remedies. In this case the advantage in question, the right to ask a Minister "consider" whether to make a reference, is so minor as to be virtually symbolic. No one needs a provision in an Act to authorize him or her to send a letter to a Minister asking the Minister to consider exercising a discretionary authority. If the provision is to be symbolic, it should at least portray the correct symbol, that is, an invitation to public participation.

We recommend that the government's proposed amended paragraph 43(3)(a) be revised by deleting the phrase "who has a direct interest in lands on which the project is likely to cause significant adverse environmental effects".

We recommend that the government's proposed amended paragraph 43(5)(b) be amended to replace the phrase "adverse environmental effects are likely to occur" with the phrase "adverse environmental effects may occur".
Section 44 International Environmental Effects

We support the government's proposed amendments to add referral to a mediator in subsection 44(1).

We recommend that subsection 44(1) be amended by replacing the phrase, "an assessment of the environmental effects of the project" with the phrase, "an environmental assessment of the project".

We recommend that subsection 44(1) be amended by replacing the phrase "the project is likely to cause significant adverse environmental effects" with the phrase "the project may cause significant adverse environmental effects".

As with subsection 43(2), the government's proposed subsection 44(1.1), which blocks a mediation or review panel under subsection 44(1) where "the Minister and the governments of all interested provinces have agreed on another manner of conducting an assessment of the environmental effects of the project...", should be subject to bare minimum standards.

We recommend that the government's proposed amended subsection 44(1.1) be amended to specify that the agreed upon manner of conducting an assessment includes an opportunity for public participation, the submission of a final report to the Minister and the publication of the report.

The government's proposed amended subsection 44(1.2) would allow a foreign state that "claims that a significant adverse environmental effects that [sic] are likely to occur in that foreign state" can request of the Minister and the Secretary of State for External Affairs to consider whether to make a reference to a mediator or a review panel. As with subsection 43(3), this is a symbolic provision, since any state could write a letter to the federal government asking it to consider exercising its statutory discretionary authority even without the benefit of this proposed section. But, as with subsection 43(3), if the section is to be inserted for symbolic purposes, it should set the right tone by allowing the request where the foreign state claims that significant adverse effects may occur. If it already knew that significant adverse environmental effects were likely to occur, why would it need an environmental assessment? If it lacked sufficient information, how would it know that significant adverse environmental effects are likely to occur until an environmental assessment was conducted?

We recommend that the government's proposed amended paragraph 44(1.2)(b) be amended by replacing the phrase "that significant adverse environmental effects that [sic] are likely to occur "with the phrase "that significant adverse environmental effects may occur".

In the government's proposed amended paragraph 44(2)(c) the Minister is required to give notice of making a reference to a foreign state in which "significant adverse environmental effects are likely to occur". This use of the term "likely to occur" would produce an ironic predicament if Canada felt that a project would not likely cause adverse environmental effects in a particular foreign state but wanted to give notice, as a courtesy, to a foreign state that it had established an environmental assessment to clarify the matter. The provision of notice could be taken as an admission by the Minister that in his or her opinion significant adverse environmental effects are indeed likely to occur!

We recommend that the government's proposed amended paragraph 44(2)(c) be amended by replacing the phrase "are likely to occur" with the phrase "may occur".
Section 45 Environmental Effects on Lands in Which There Is a Federal Interest

We support the government's proposed amendment to add the option of mediation to the option of assessment by a review panel, in subsections 45(1) and 45(2).

We support the government's proposed amendment to broaden the federal lands covered by this section to include lands in which Indians have various interests.

We recommend that subsections 45(1) and 45(2) be amended to replace the phrase "if the Minister is of the opinion that the project is likely to cause" with the phrase "if the project may cause" or the phrase "the Minister is uncertain whether the project is likely to cause".

We recommend that subsections 45(1) and 45(2) be amended by replacing the phrase "an assessment of the environmental effects of the project" with the phrase "an environmental assessment of the project".

We recommend that the government's proposed amended subsection 45(2.1) be revised to specify that the agreed upon manner of conducting an assessment includes an opportunity for public participation, the submission of a final report to the Minister and the publication of the report.

We recommend that the government's proposed amended paragraph 45(2.2)(a) be amended by deleting the phrase "each of whom has a direct interest in lands on which the project is likely to cause significant adverse environmental effects".
Section 47 Ministerial Orders

We support the government's proposed amendments to add the option of mediation to the option of assessment by a review panel.
Subsection 49.1(1) Follow-up Program

We support the government's proposed amendment to add follow-up programs to environmental assessment of projects under subsections 43(1), 44(1), 45(1) or 45(2). As with section 35, however, there is a need to provide the Minister with authority to require the project proponent to participate in such a follow-up program.

We recommend that the government's proposed amended subsection 49.1(1) be amended to clearly authorize a responsible authority to require the proponent of a project to participate in a follow-up program and to enforce such a requirement if it is violated.
Section 50 Agreements and Arrangements

Section 50 requires that agreements for funding to provinces or bodies outside of Canada where specific projects are not detailed at the time the agreement is entered must provide for environmental assessment, either in accordance with the Act or simply an environmental assessment process in the province or the other country. As with subsections 43(2), 44(1.1) and 45(2.1), bare minimum standards should be specified.

We recommend that the government's proposed amended paragraphs 50(1)(b) and 50(2)(b) be revised to specify that the assessment must include an opportunity for public participation, the submission of a final report to the Minister and the publication of the report.
Section 54 Powers to Facilitate Environmental Assessments

We support the government's proposed amended paragraph 54(1)(h) to authorize the Minister to establish a participant funding program to facilitate the participation of the public in mediations and assessments by review panels.

It is important that there be a power to set criteria for key terms under the Act, such as "significant adverse environmental effect," "mitigable," and "justifiable in the circumstances". This may be implicit in the Minister's power to issue guidelines and codes of practice under paragraph 54(1)(a). However, it should probably be made explicit since it will be such an important component of achieving consistency in the implementation of a much-expanded environmental assessment at the federal level.

We recommend that subsection 54(1) be amended by adding a paragraph authorizing the Minister to establish criteria for determining "significant adverse environmental effect," "mitigable," "justifiable in the circumstances," and other terms in the Act.
Section 69 EARP Order Continued

We recommend that the government's proposed amended subsection 39(3) be revised by replacing the phrase "the responsible authority considers" with the word "is".

End of Recommendations For Improvements To Bill C-13