CONTENTS
Monday 7 October 1996
Environmental Assessment and Consultation Improvement Act, 1996, Bill 76, Mrs Elliott /
Loi de 1996 améliorant le processus d'évaluation environnementale
et de consultation publique, projet de loi 76, Mme Elliott
STANDING COMMITTEE ON SOCIAL DEVELOPMENT
Chair / Président: Mr Richard Patten (Ottawa Centre / -Centre L)
Vice-Chair / Vice-Président: Mr John Gerretsen (Kingston and The Islands / Kingston et Les Îles L)
Mr David S. Cooke (Windsor-Riverside ND)
Hon JanetEcker (Durham West / -Ouest PC)
Mr JohnGerretsen (Kingston and The Islands / Kingston et Les Îles L)
Mr MichaelGravelle (Port Arthur L)
Mrs HelenJohns (Huron PC)
*Mr W. LeoJordan (Lanark-Renfrew PC)
Mr GerardKennedy (York South / -Sud L)
Ms FrancesLankin (Beaches-Woodbine ND)
Mrs JuliaMunro (Durham-York PC)
Mr DanNewman (Scarborough Centre / -Centre PC)
*Mr RichardPatten (Ottawa Centre / -Centre L)
*Mr TrevorPettit (Hamilton Mountain PC)
*Mr Peter L. Preston (Brant-Haldimand PC)
*Mr BruceSmith (Middlesex PC)
*In attendance /présents
Substitutions present /Membres remplaçants présents:
Mr EdDoyle (Wentworth East / -Est PC) for Hon Janet Ecker
Mr DougGalt (Northumberland PC) for Mrs Johns
Mr DaltonMcGuinty (Ottawa South / -Sud L) for Mr Kennedy
Ms MarilynChurley (Riverdale ND) for Ms Lankin
Mr GaryFox (Prince Edward-Lennox-South Hastings /
Prince Edward-Lennox-Hastings-Sud PC) for Mrs Munro
Mr BillVankoughnet (Frontenac-Addington IND) for Mr Newman
Also taking part /Autres participants et participantes:
Mr LeoFitzPatrick, counsel, legal services branch, MOEE
Mr JimJackson, director, legal services branch, MOEE
Mr ChuckPautler, director, environmental assessment branch, MOEE
Clerk / Greffière: Ms Lynn Mellor
Staff / Personnel: Ms Laura Hopkins, legislative counsel
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The committee met at 1535 in room 151.
ENVIRONMENTAL ASSESSMENT AND CONSULTATION IMPROVEMENT ACT, 1996 / LOI DE 1996 AMÉLIORANT LE PROCESSUS D'ÉVALUATION ENVIRONNEMENTALE ET DE CONSULTATION PUBLIQUE
Consideration of Bill 76, An Act to improve environmental protection, increase accountability and enshrine public consultation in the Environmental Assessment Act / Projet de loi 76, Loi visant à améliorer la protection de l'environnement, à accroître l'obligation de rendre des comptes et à intégrer la consultation publique à la Loi sur les évaluations environnementales.
The Chair (Mr Richard Patten): Ladies and gentlemen, we are ready to reconvene clause-by-clause of Bill 76. I need to inform you that in your new package here subsection 7.2(3) should actually follow subsections 7(2) to (6).
Subsection (3) of the bill, subsection 6(6), was removed from the table for consideration for today. Have you had a chance to think about it?
Mr Dalton McGuinty (Ottawa South): I just spoke with Ms Churley about it. I gather it was stood down. As I recollect, I made some argument in favour of this one. I'd just like to vote on it, if we could, and then move on.
The Chair: Does everyone have that? It should be the second sheet in, the page which is section 3 of the bill, subsection 6(6).
Ms Marilyn Churley (Riverdale): Mr Chair, we have discussed it. I did look into it. I still don't support it for the reasons I mentioned last week, but I'm ready to vote on it now. I'll just vote against the government motion.
The Chair: All right. Is there any further discussion on it, or would you like to vote on it?
Mr McGuinty: We'll vote on the Liberal motion first.
The Chair: Yes.
Ms Churley: Oh, the Liberal motion. So what happens? Was the government motion on the same section already voted on then?
The Chair: Yes.
Ms Churley: Oh, it was. All right, I'm ready to vote on this.
The Chair: Are we ready for the vote? All in favour? Those opposed? The motion is defeated.
Mr McGuinty: If I might, I know this is slightly out of order, but there has been one amendment that has aroused some considerable interest, if I could put it that way. I want to make an inquiry now with the parliamentary assistant to see if there are going to be any further amendments on it, because one of the things we're looking at here now is some of the time constraints we are going to be operating under. This will be one that will deserve some attention, and that is the amendment which is section 3 of the bill, part II.2. I am just wondering, is that it or does the government intend to introduce anything further? That will be the subject of discussion today? Nothing further to be added to that?
Mr Doug Galt (Northumberland): That's the intent. It will be introduced today as printed in the last printing.
Mr McGuinty: All right. Thank you.
Ms Churley: Another question, because that is fairly far into the paper, I believe. There's an agreement that we'll try to finish today, although it was my understanding that when we made the agreement it was two full days. It was during the summer, and of course the hours are curtailed quite considerably with the House in session. I just wanted to make sure. I am willing to go quickly through some of these amendments, but I also want to make sure we can debate substantive ones -- I forget which section it is now Mr McGuinty mentioned -- fully. What happens?
The Chair: Mr Galt, would you like to comment on this?
Mr Galt: Yes, no problem in stopping and debating at any point, but it would be nice if we could complete today.
Ms Churley: My question was, what happens if we've made an agreement that we're supposed to finish today and we haven't gotten through all of the amendments and the substantive ones in particular, like that one we want to make sure we get to debate?
The Chair: My understanding was that the House leaders were to meet on this and provide some interpretation of what is meant in terms of two days. I checked that and we have not received word yet. It would have to be a motion from the House. Mr Galt, would you like to comment on that
Mr Galt: I don't really have anything to comment on since I gather the House leaders have not met. I can be flexible. However, there are some time commitments that various people around the table have and I have myself. Certainly I would like to get this wound up as early as possible this week. Tomorrow's not a favourable day, but maybe there's another day this week we could look at.
The Chair: All right. If there is no decision from the House leaders, then we continue until we finish. That's the procedure.
Mr Galt: Are you referring to this evening or another day?
The Chair: No, I'm talking about another day.
Mr McGuinty: I'm not clear. If we haven't come to the end of our amendments, dealing with those today, then we are deemed automatically to be going into another day? If we don't finish by the end of today, then we can take it for granted that we will be given further time, or do we have to put forward a motion on that?
The Chair: Yes, unless there is a motion from the House stating otherwise.
Mr Galt: There cannot be an unlimited length of time. We agreed to two days. If we have to go into a third day, that would be the maximum. I'll request a vote if that's necessary. We did agree to two days. Yes, I appreciate the days are shorter than originally agreed to, but to go beyond a third day, no.
Mr McGuinty: I would think we could do it in three days too.
The Chair: Fine. Good. I'll take that as an attempt to move ahead and work within those time frames.
We finished off at section 3 of the bill, subsection 6.2(2) of the act. There were Liberal and, I believe, NDP motions. I forget which one was taking a lead on this.
Ms Churley: I'll be happy, in the interests of time, to move it.
I move that subsection 6.2(2) of the Environmental Assessment Act, as set out in section 3 of the bill, be amended by adding the following clauses:
"(c.1) a description of the net or residual effects after mitigation measures are applied;
"(c.2) a description of an appropriate level of compliance and effects and of the monitoring of and reporting on effectiveness."
This amendment is there to add to the existing requirements that the terms of reference have to consider. It would include, obviously, better environmental planning and protection. The proponent would be forced to describe the residual effects after the mitigation measures are put in place. The requirement of the level of compliance is extremely important, particularly in view of the cutbacks and the staff cuts, which in the interests of time I won't go into detail on again now. But there is real concern about compliance. I hope the government members will support this because it simply makes sure there is better, wider environmental protection included at the stage of the terms of reference.
Mr McGuinty: I agree.
Mr Galt: We're not in favour of this amendment.
The Chair: Are you ready for the question?
Ms Churley: Very quickly, I'd like to know why not.
Mr Galt: We can walk through some of the reasons. Current practice requires the proponent to determine the net effects in order to evaluate the advantages and disadvantages to the environment. That is presently required. Since this is currently practised, this motion is really redundant. Monitoring is addressed in any environmental assessments and regularly included in terms and conditions of approval. Therefore, this is also redundant.
Ms Churley: It's not redundant; it strengthens it. None the less, I'm ready to vote on this.
The Chair: All in favour of the motion? Those opposed? The motion is defeated.
The next motion is section 3 of the bill, subsection 6.2(3), a Liberal-NDP motion again.
Mr McGuinty: I move that subsection 6.2(3) of the Environmental Assessment Act, as set out in section 3 of the bill, be struck out.
I cannot overemphasize the importance of this one. Right now, 6.2(3), as found within the bill, allows the minister to exempt a proponent from following the comprehensive EA review criteria set out earlier in section 6.2. Subsection 6.2(3) leaves a loophole so big you could drive a Mack truck through it.
The intention of the Premier all along has been to ensure that, especially when it came to dumps, landfill sites, there would be an obligation from which a proponent would not be relieved, and that would be that they continue to meet all the obligations imposed on them under the existing legislation to explore all alternative sites and means by which they might deal with the waste. That is a commitment that had been made by the Premier in the House. I don't have a copy of my question that I asked of him on a certain day, but he committed to ensuring that it would be a full environmental assessment. Perhaps my colleague has that. That commitment has been made. It was delivered in the House. This is a very important amendment. With this we will enable the Premier to live up to his word, so I'm making every effort to ensure that the Premier is not embarrassed. That's why I've kindly put forward this amendment.
Ms Churley: This to me is the central focus and the biggest problem with this bill, and I am going to take a few minutes on this one. I know, for the record, I've attempted to convince government members, although I see there are some people who weren't with us throughout the whole committee, who might be interested to hear that if this bill passes without this particular section being removed, the Premier will have broken a major promise that he made time and time again.
I have some quotes here that I'm going to read to you from the Hansard record: "Recent legislative debates regarding the Waste Management Act, Bill 143, the GTA landfills and the Interim Waste Authority are replete" -- I'm reading this from the Canadian Environmental Law Association's document, and I thank them for the work they did. They wrote a letter to the Premier making it very clear, on an analysis, that if this section is not removed, it breaks a really fundamental promise that the environmental community was very pleased to see the Premier make.
I'll read to you what the Premier said on one occasion in opposition, when he was the leader of the third party: "Why did the minister dismiss the Kirkland Lake proposal out of hand, without examining the merits and without permitting a full environmental assessment...on that proposal?" That's Hansard, June 27, 1991. "Under the existing Environmental Assessment Act, all alternatives must be considered when establishing a waste disposal site. Her proposed legislation," -- here he's referring to the Honourable Ruth Grier at the time -- "as I understand it, steamrollers over this provision by excluding the Britannia, Keele Valley and Durham sites from this process." "Can the minister tell me why the most effective way of managing the environment in the short term is to say: `It's my way or the high way. You can no longer consider the best environmental alternative. In fact, you must not take the time to find the best answer for the environment. You must do it my way'? Can she tell me how, in the short term, expressly telling people, `Don't look for the best solution,' is good for the environment?" Mike Harris said that as the leader of the third party.
Later as Premier of the province, when asked by my colleague Dalton McGuinty, who is the Liberal environment critic, "My question, Premier: Do you still, today, believe that Ontario's dumps ought to be the subject of full and public hearings under the Environmental Assessment Act?" the Honourable Michael D. Harris, Premier, said, "Yes, I do." "In spite of the fact that we felt the previous government was proceeding in error with the mega-dump proposal, at least they were having full environmental assessment, not trying to short-circuit the process, not going without any full environmental assessment." This is what Premier Harris said in the House very recently.
It's right here in writing and it's going to come back to haunt this government time and time again because it is a very significant broken promise. When municipalities across the province start doing their work under the new legislation this is going to come back to haunt the government. I'll explain what's going to happen as a result of this one little subsection 6.2(3). During the terms of reference it allows individual proponents to negotiate off the table key elements of what environmental assessment is all about. Looking at alternatives to the site and need is the heart and soul of environmental assessment. If that can be negotiated off the table, and looking at alternatives, particularly when you have, supposing, a big incinerator proponent coming forward wanting to build an incinerator, that wasn't allowed under our government. There were complaints from the Tories saying that wasn't fair, I believe even from some Liberals -- it's true -- saying we should at least be able to look at it.
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This government has put it back on the table. I thought, when it was put back on the table, that there would be full EA required. It gave me some comfort, when the Premier said he believes in full environmental assessment, that at least it would be looked at from all aspects. Now we know that somebody can come forward with a proposal for an incinerator and not have to look at alternatives to the undertaking, which is a very serious problem when you're looking at incineration, which burns up a lot of the same material that you use in the 3Rs, particularly since our NDP government, when it was in power, worked with pulp and paper mills up north which have retooled a lot of their plants to use recycled material and some of them have been concerned about the new incineration, the ability to look at that as an option. Given that a proponent could end up not even having to look at that as an option and the implications to not looking at that are very serious indeed.
The last thing I'd say about this is that it doesn't do what the government said it wanted to do. It doesn't create certainty at all. Each and every proponent will be able to sit down and negotiate those components during the terms of reference stage off the table. So for each and every one there'll be questions around: "Did this proponent give the government money during the election campaign? Oh, isn't that interesting. Did this one? No, they didn't, and they're not getting the same treatment as the other one."
It opens the government up, and I'm not saying the government would do that in this form -- spare me; I'll be careful here -- but even if they didn't, there would be the perception of that. It puts the government in a very vulnerable position to be able to have that kind of discrepancy during that stage. I think the government would want to make sure that is very clear. It's a matter of debating not what is on the table but how these components are going to be looked at. I don't know.
I expect that the government members think this is not a big deal, that there's still an EA, and as I pointed out many times before, a lot of these big projects don't even go before a full EA if things can be worked out in advance. We hear all the horror stories about long EAs, but we do know once we have an environmental assessment, once one is put in place, there's good reason for it. There's a lot of controversy around it, and it is absolutely essential to people to have these components there, and people want the certainty. I would say the community wants the certainty and that the proponent would like to know with certainty what they're going to have to look at. I think this is a big mistake and that -- I saw Mr Fox winking here. I don't know what he meant by that.
The Chair: I was greeting him and he just winked in acknowledging my welcoming him to the committee.
Ms Churley: Is that how you usually greet?
The Chair: No, I just nodded.
Interjections.
Ms Churley: Oh, he's the one who winked. That's right.
Getting back to the subject, I think it is going to come back to haunt the government members that the Premier will have broken a substantive promise he made time and time again. I would suggest that the members of the government vote for this amendment today.
Mr Galt: It's obvious, according to the debate and rhetoric that have gone on so far in this amendment, that a mistake was made by suggesting we might have extra time. I can assure Ms Churley that this bill provides for a full environmental assessment; it provides for the opportunity to look at all reasonable alternatives.
This clause is required to ensure that the proponents, in consultation with the public and government agencies, are able to focus on environmental assessments, on environmentally significant issues and on a project-by-project basis. We are trying to get away from these encyclopaedic and costly EAs that don't necessarily contribute to good environmental protection. Certainly stakeholders will be consulted on the development of the terms of reference by the proponent and the minister will seek input prior to approval. This clause also allows for more information than that already provided in 6.2(2).
Mr McGuinty: The concern I have is that there is no limitation whatsoever placed on the discretionary power provided to the minister under 6.2(3). I have a question for the parliamentary assistant: What assurance can you provide me that the minister would make only reasonable use of this, assuming that there is such a thing? And second, a specific example of where you would feel a proponent would not have to comply with the usual obligations regarding environmental assessment.
Mr Galt: For example, if you were doing an environmental assessment for the purpose of putting in a subway, why would you have to do an alternative to look at something like a superhighway to go over top or a railroad track to go over top when the intent is a subway? Our concern is all about protection of the environment, not looking at things that are really not reasonable alternatives. When you look at things that are agreed to, that's really what the scoping is about. When there's a consensus and people agree, why take all that to the hearing? That's really what this is about, rather than looking at these monstrous stacks of paper that have been going on in the past which has been extremely costly to citizens and to the public in general.
Mr McGuinty: Even with respect to that example I would think there ought to be some thought given to an alternative: From an environmental perspective, which is the most suitable way to move people back and forth? Consideration ought to be given to other forms of transportation.
I don't see a limitation of any kind whatsoever on the minister. The minister might say, when you take a look at 6.2(2) here: "We don't need the rationale. We don't need a description. We don't need to know about the effects. We don't need to know about any efforts made to mitigate." Am I missing something here or does this not give a blanket authority to the minister to cherry-pick or indeed waive all the obligations, just from a legal perspective?
Mr Leo FitzPatrick: Certainly the subsection as drafted would allow for variations, but in all, Dr Galt has described the process that would be used in focusing the terms of reference on those matters of environmental concern related to the undertaking. The process always has to be carried on within the overall framework of the purpose of the act. That is what would ensure that the terms of reference stay consistent with our goals of environmental protection.
Mr McGuinty: You're telling me there's something else in the bill that somehow limits the scope of the subsection?
Mr FitzPatrick: The purpose of the act as it has always been and remains unchanged.
Ms Churley: The issue remains that despite what you say, the elements of EA can be negotiated off the table during the terms of reference. I'd like to say to Dr Galt, the parliamentary assistant, as I've said time and time again, that for me this is the crux of the whole bill. If I spend a little bit more time on this, you'll forgive me, but I've expressed that this, in my view, is ripping the heart and soul out of the bill. I'm not asking a question at the moment, but just to explain. If this goes, the rest of the stuff is relevant, but to me this is the most important aspect of this bill that's being changed. So yes, even if at the end of the day it's just for the record, it's very important that we debate this. This is our last opportunity in this committee.
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Having said that, just so you understand, I will not be doing this on every amendment. We'll be here for weeks if I do and I have other things to do as well. But I want to read to you from the document by Philip Byer, the past chair of the Environmental Assessment Advisory Committee, who is one of the people who spent a number of years looking at reforms for EA. Our government made just some administrative changes, which surely, I agree, weren't enough. Some substantive changes need to be made.
Dr Byer -- I think he's here -- did say he congratulated the government on having the courage to move forward and make some changes, but one of the areas he pointed out -- and every other environmental group and community group that came forward that has had experience with EA said the same thing -- is that this was, if not their biggest concern, one of the biggest concerns. What Dr Byer says is:
"I fully support the concept of terms of reference that will help focus and direct the attention of the proponent and public. However, there are fundamental problems with the way the current bill establishes the terms of reference. These are critical since the terms of reference are the most important part in the revised EA process; they set the scope of all that follows."
Then he says, "Under sections 6(2)(b) and (c) and 6.2(3), the government or the proponent can develop binding terms of reference that ignore necessary elements of an EA (set out in section 6.2(2), including alternatives and key elements of the environment set out in the definition in section 1)."
He says later on, "The bill must be amended to ensure that any approved terms of reference are consistent with the intent of 6.2(2) and the full definition of the environment."
Dr Byer's mandate was to find ways to speed up the process and scope it and he came forward with a document that he presented to us at the committee that did that in ways that did not take this very important element -- in fact what defines EA as we know it -- out. I think he's given evidence in the document the committee wrote that it can be done in a variety of ways, so I think it's making a mistake, when you have a group of people who've worked for years and who know EA inside out, not following their direction on this.
I just don't buy the argument on this. I think there are other ways to scope and time frames and all kinds of things in place that could do that without taking away that essential element. What you're doing is destroying EA. That's what it does.
The Chair: Further comments or debate? There being none, are you ready for the question?
Mr McGuinty: Recorded vote.
Ayes
Churley, McGuinty.
Nays
Doyle, Fox, Galt, Jordan, Pettit, Preston, Smith.
The Chair: That is defeated. Government motion, section 3.
Mr Galt: I move that subsection 6.3(1) of the Environmental Assessment Act, as set out in section 3 of the bill, be struck out and the following substituted:
"Submission of environmental assessment
"(1) The proponent shall submit an environmental assessment for an undertaking to the ministry."
This is the notice to municipalities as provided for in the next government motion.
The Chair: Could you clarify that again, which amendment?
Mr Galt: Do you want the motion read again?
The Chair: No. Just the first line.
Mr Galt: Okay. Under subsection 6.3(1), "The proponent shall submit an environmental assessment for an undertaking to the ministry."
The Chair: Any comments, Dr Galt?
Mr Galt: Just simply that notice to municipalities is actually provided for in the next government motion.
Ms Churley: Just because the next government motion deals with it, and I haven't figured out the difference, can we talk about the next motion in this context since they're related?
The Chair: Would you like to ask the parliamentary assistant to comment?
Ms Churley: Yes.
Mr Galt: Just to ensure that both the public and the municipal clerk are informed at the same time is the end result.
Ms Churley: Oh, I see.
The Chair: That's the next one. Do you have any comments on this motion, Ms Churley?
Ms Churley: No.
The Chair: Mr McGuinty?
Mr McGuinty: No.
The Chair: Other members? I'll put the question. Those in favour? Those opposed? The motion passes.
Next government motion.
Mr Galt: I move that section 6.4 of the Environmental Assessment Act, as set out in section 3 of the bill, be amended by adding the following subsection.
"Notice to clerk of a municipality
"(2.1) The proponent shall give the information contained in the public notice to the clerk of each municipality in which the undertaking is to be carried out and shall do so by the deadline for giving the public notice."
This really again is back to the comment made earlier. This ensures that the municipal clerk will get useful information at the same time as the public. This provision for notice to municipalities parallels the notice in subsection 6.4(2).
The Chair: Debate? No debate. I'll put the question. Those in favour? Those opposed? The motion is carried.
Liberal motion, Mr McGuinty.
Mr Ed Doyle (Wentworth East): This is the one that we've moved.
The Chair: Oh, this is the one that was moved. I'm sorry. All right. Actually, there are two then. Ms Churley, do you want to take this one? It's similar.
Ms Churley: Which one is it?
Clerk of the Committee (Ms Lynn Mellor): Subsections 7(2) to (6).
Mr Peter L. Preston (Brant-Haldimand): Is that a government motion?
Clerk of the Committee: Subsection 7.2(3) follows this one.
Ms Churley: Can you tell me again exactly what number it is?
The Chair: Subsections 7(2) to (6).
Mr Doyle: There are four pages and 7.2(3) will go after the four pages.
Ms Churley: Right. What about this one?
Clerk of the Committee: Subsection 7.2(3) follows.
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Ms Churley: Thank you very much. We're moving a very long motion here.
I move that subsections 7(2) to (6) of the Environmental Assessment Act, as set out in section 3 of the bill, be struck out and the following substituted:
"Same
"(2) The ministry review must be conducted by an integrated interagency review team which shall report to the director whether,
"(a) the proponent has met the requirements of the act; and
"(b) the environmental assessment meets the requirements of subsection 6.2(2).
"Deadline
"(3) The review must be completed by the prescribed deadline which shall be not later than 90 days after the environmental assessment is submitted to the ministry.
"Deficient environmental assessment
"(4) If, after considering the report of the review team, the director considers that the environmental assessment is deficient, the director shall so notify the proponent in writing and with reasons and shall do so by the prescribed deadline.
"Statement
"(5) Within 14 days after receiving the notice, the proponent shall give the director a written statement of whether the proponent intends to remedy the deficiencies and, if the proponent intends to do so, indicating how the proponent intends to do so.
"Rejection of environmental assessment
"(6) The minister shall reject an environmental assessment if the proponent does not remedy the deficiencies within 45 days after receiving the notice. The minister shall give the proponent written notice of the rejection together with reasons."
I would just say that 90 days in subsection (3) is a more reasonable time frame to complete the prescribed deadline. It's just too short. In the interests of time, I will just say here on this one to use your common sense. It's just more reasonable time frames in these very complex situations where, let's face it, I think there'll be very shoddy work done if the time frames aren't lengthened.
The Chair: Mr McGuinty, do you have any comment?
Mr McGuinty: Just to add one further thing that the amendment does: The bill as it stands provides, quite rightly, for the director reviewing an environmental assessment. The possibility is that he or she is going to find it to be deficient in relation to the approved terms of reference or the purposes of the act. So then the director can turn to the proponent and say, "Listen, you've got so many days to clean it up," but subsection 7(6) says that "The minister may reject the environmental assessment if the director is not satisfied that the deficiencies have been remedied...." I think if the minister has determined that there have been significant deficiencies, he or she ought to be required to reject the environmental assessment rather than "may" reject the assessment. That's the other thing that this amendment does which I think is important: It mandates, requires, that the minister reject a deficient EA.
Ms Churley: Just again quickly, if I could add to that, it continues to inform people throughout the process -- the community, the affected parties -- what's happening.
Mr Galt: Certainly they're addressing time frames and essentially doubling the time frames that we'd planned to put in regulations and have circulated. That sort of defeats the intent of what's trying to be accomplished by making this more timely and bringing certainty into the system. There's also the formation of an interagency review team; that's normal practice now. With the introduction of approved terms of reference, there should be very few deficiencies in the EAs that are submitted. The purpose of the deficiency statement and the seven days for proponents to respond is to get at glaring omissions or frivolous EA applications early. Fundamental flaws in the EA should mean that the proponent goes back and spends the time needed to fix the EA before submitting it and wasting everyone's time.
We really don't want to be in charge of the process. That's not the intent of this new bill.
The Chair: Other comments? All right. I'll pose the question. Those in favour of the motion? Those opposed? The motion is defeated.
Next is a government motion.
Mr Galt: I move that subsection 7.2(3) of the Environmental Assessment Act, as set out in section 3 of the bill, be struck out and the following substituted:
"Request for hearing
"(3) Any person may request that the minister refer the proponent's application or a matter that relates to it to the board for hearing and decision.
"Same
"(4) A request under subsection (3) must be made in writing to the ministry before the deadline for submitting comments on the review."
This provision allows any person to request the minister to have a hearing on the entire EA application or specific matters of concern to the requester. This is certainly consistent for the scoping of board hearings.
Ms Churley: Just a question: It looks to me as if it's been split. Is it being split into two here?
Mr Galt: Yes.
Ms Churley: Why is that?
Mr FitzPatrick: You'll see in some of the later government motions that there will be, if the motions go through, a clear distinction between the minister sending an entire matter to the board for its decision and the minister referring only a specific portion of the decision to the board for it to have a hearing about. This parallels that in that it allows a member of the public to request a hearing on everything or a hearing only on matters that the person considers are contentious.
Ms Churley: Under the present EA, how does that work? Who decides? Is it the minister or the board? How is it decided now, what is heard, what comes under a hearing?
Mr FitzPatrick: Under the present system a person can request a hearing, which will be the entire matter, and it is the entire matter that is referred to the board if a hearing is to be held.
Ms Churley: Why is this done? What was wrong with that method?
Mr FitzPatrick: It's being proposed so that matters that are not contentious need not be addressed at a hearing. Specific matters of concern can be referred to the board and the board will deal only with those matters and come to a decision.
Ms Churley: Who decides that?
Mr FitzPatrick: The minister.
Ms Churley: That means the board is shut out; the minister makes a decision about what can or cannot be heard, and even if the board feels that there are matters that should be heard, it means that if they are directed to do it this way, they have to do it this way.
Mr FitzPatrick: That's correct.
Ms Churley: I have a problem with that. I think an independent board should be making decisions around what's being heard at a hearing, not the minister.
The Chair: Any other comments? Hearing none, I'll put the question. Those in favour of the motion? Those opposed? The motion is carried.
Next, an NDP motion. Ms Churley.
Ms Churley: I believe I did the last one. Dalton, you're on.
Mr McGuinty: I move that subsections 8(1) and (2) of the Environmental Assessment Act, as set out in section 3 of the bill, be struck out and the following substituted:
"Mediation
"(1) In this section, `mediation' includes conciliation, facilitation, arbitration and other forms of alternative dispute resolution.
"Appointment of mediators
"(2) At any stage of the decision-making process under this act, the minister may appoint one or more persons to undertake mediation in relation to a matter in dispute or a concern."
What we're doing here is trying to ensure that a mediation process can occur at any stage in the process, as opposed to the later stages which are defined in Bill 76.
The Chair: Other comments?
Ms Churley: Just that we have the same motion, and I support it for the same reasons. It strengthens the section.
Mr McGuinty: I might ask, Mr Chair -- maybe Dr Galt was going to respond -- why does it not make good sense to allow for the mediation process to occur at any stage?
Mr Galt: I'll walk through a few different things here. One, when we talk about mediation, to me it's an informal, broad, open type of thing that can be looked at. Certainly "mediation" is a word that is accepted throughout the mediation industry and could mean any one of the words that you have listed in the motion. I suggest that maybe the wording in the motion is too prescriptive and might even limit mediation by putting that in there.
Also, the bill enables a minister to send an issue to mediation at any time, and we believe it's quite important that mediation could be entered into at any point in the discussions on terms of reference and all the way through in developing that.
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Mr McGuinty: Isn't that what my amendment is doing, though? First of all with respect to the definition of "mediation," we've kept it very broad so that it includes "and other forms of alternative dispute resolution." It's not exclusive; it's inclusive. I think what you're arguing for is the same thing I am arguing for: that a mediation process ought to be able to be started at any particular time.
Mr Galt: If I may, under item (1), adding all the other verbiage is really redundant. It's being said by the term "mediation." The second part, under subsection 8(1), "Before the application is decided, the minister may appoint one or more persons to act as mediators who shall endeavour to resolve such matters as may be identified by the minister as being in dispute or of concern in connection with the undertaking," in the present bill there is no limitation as to when it might be sent or not sent, so it's wide open that it can be sent at any time during the process.
Ms Churley: That is perhaps open to interpretation. I'm just trying to read it again. It says:
"Before the application is decided, the minister may appoint one or more persons to act as mediators who shall endeavour to resolve such matters as may be identified by the minister as being in dispute or of concern in connection with the undertaking.
"The minister may appoint the board to act as mediator."
It says there, "Before the application is decided." It's very clear in what this amendment is saying. Let's make it really clear. It's not just before the application is decided; it's during the whole process.
The second part is that it's not who the mediators could be. It doesn't preclude the board; it just adds more flexibility. I think it just strengthens what you have, because if your intent is what you said, that it could happen throughout -- this says, "Before the application is decided, the minister may appoint" -- doesn't that clarify it? You look puzzled.
Mr Galt: It's just referring to "Before the application is decided." That's the very end result, the end process, so everything before that makes it totally wide open.
Ms Churley: I guess I misunderstood that, "Before the application is decided."
Mr Galt: That decision is a final decision.
Ms Churley: The final decision made.
Mr Galt: Yes.
The Chair: Any further debate? Okay. I call the question. Those in favour of the motion? Those opposed? The motion is defeated.
Section 3, subsection 8(9), government motion.
Mr Galt: I move that subsection 8(9) of the Environmental Assessment Act, as set out in section 3 of the bill, be struck out and the following substituted:
"Disclosure
"(9) The minister shall make the report public promptly after the minister makes his or her decision under section 10 or the decision of the board under section 9 becomes effective. The minister may make all or part of the report public before then only with the consent of the parties to the mediation."
We've heard many comments during the course of the hearings regarding the need for mediation to be carried out without prejudice to the parties. Mediation is an important mechanism for ensuring timely and cost-effective issues resolution at all stages of the process. We agree and are proposing this amendment.
This provision provides that a mediation can be conducted without prejudice to the parties. The mediator's report will only be released after an approval or rejection decision has been made, or earlier, but only with consent of the parties to the mediation.
Mr McGuinty: The word "promptly": Ministers have been known to sit on these things for some time. What does "promptly" mean? What's the legal definition of "promptly"? At what point can you say, "This was prompt; that was not prompt?"
Mr Galt: I would have to turn to legal counsel for an interpretation of "promptly."
Ms Churley: This should be good.
Mr FitzPatrick: I don't know if I can give you a firm legal definition of this. All it is intended to do is allow time, once the decision has been made, for whatever necessary administrative processes are gone through to make the document available.
Mr McGuinty: Given that there's some subjectivity inevitably connected with this wording, why couldn't we come up with a time frame?
Mr Galt: If I can just toss in, there's nothing that has to be done here. All they have to do is just let go of it. It's not that they have to make a decision to work with it or manipulate it; it's just a matter of releasing it. I would think even under freedom of information this would then be available, because it's in the legislation that it's available. I can't picture why a minister would sit on it.
Mr McGuinty: I know of one who sat on a decision for over a year.
Mr Galt: Was that an NDP minister?
Mr McGuinty: I'm not going to name the minister.
Ms Churley: I think that's something all ministers have in common.
Mr Galt: I've never been one. You could answer that best.
Mr McGuinty: I'm giving you an example. It was the Red Squirrel Road case, I believe, that the minister in that case sat on -- Chuck, you may remember this -- for over a year before it was made public. That's my concern. I'm just putting it on the record.
Mr Galt: I appreciate your concern. I'm not sure how else we could write it other than "yesterday, if not sooner."
Ms Churley: That sounds good.
The Chair: Is that an amendment to the amendment?
Mr Galt: No.
Ms Churley: I think I support this, although on principle I've been so disappointed in what's been happening overall with this bill that I haven't been supporting anything. Although I have some concerns about the word "promptly" too, I think this is probably a good thing, and one small area where it appears as though the government listened. It doesn't hurt them any, because if the proponent says, "We don't want to" -- both parties have to agree, but I understand that in mediation, in order to get the people to the table, sometimes there's got to be some confidentiality. I think this is reasonable, given that the parties have to agree. At the end of the day it may or may not be made public, but at least there's an opportunity there.
The Chair: Other comments? Are we ready for the question? All those in favour of the motion? Opposed? The motion is passed.
Ms Churley: I move that subsection 8(10) of the Environmental Assessment Act, as set out in section 3 of the bill, be struck out and the following substituted:
"Fees and expenses
"(10) The proponent shall pay the fees and reasonable expenses of the mediators and shall provide adequate funding for the mediation process to the other parties to the mediation in accordance with the prescribed criteria and procedures."
That is more explicit than in the government (10) as it now stands, "The proponent shall pay the fees and reasonable expenses of the mediators." I think this is extremely important, given that there is no intervenor funding act any more. That ran out, and the government chose not to renew it or put in an alternative method, so citizens are hanging out there. There is a big proponent, a big development going on, and citizens can very easily not be awarded costs at all until the end of the case or the end of the hearing, which is very problematic. This could ensure that if there is a mediation process, citizens can participate in a meaningful way and be fully funded in order to do that. Otherwise, it could be a sham if citizens don't have access to equal and meaningful participation.
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Mr McGuinty: I just want to support the comments made by Ms Churley. One of the things that we heard from witnesses who appeared before the committee on an ongoing basis was that it didn't matter what perspective they were bringing; they felt it was in the interests of the proponent and in the interests of the process that those who had objections or had concerns had a real say, and the sooner the better. Of course, they can't do that in a genuine way unless they have funding. Intervenor funding being off the shelf now, what this does is it's an attempt to restore that to some extent, saying, "If you're going to go into mediation and you want to have some representation there, you could bring forward some studies or whatever." This just enables that, to make sure the parties are on an equal footing.
The Chair: Debate? Seeing none, I'll put the question. Those in favour of the motion? Those opposed? The motion is defeated.
Mr McGuinty: I move that part II of the Environmental Assessment Act, as set out in section 3 of the bill, be amended by adding the following section:
"Board decision re major waste management facility
"8.1 The board shall hear and decide an application for an undertaking that involves either building or expanding a major waste management facility."
What we're trying to do here is to ensure that major waste management facilities are never exempted from the full hearings process of the legislation. I was the one to talk about "promptly," so I'm sure somebody is going to raise this notion of "What the heck does `major' mean?" It's a fair enough question. To that, I can offer that the government has released regulations defining large and small landfill sites. If the government was to support this amendment but has trouble with the word "major," perhaps the wording can be altered to allow "major" to be defined in the regulations.
Ms Churley: I support this motion. It seems to me that this ties in with the broken promise again -- very definitely. Harris has made the promise that the current legislation should be as it stands today around that, and it's another opportunity for the government members to keep the Premier's promises for him. I suggest voting for this, Dr Galt.
Mr Galt: Certainly Bill 76 maintains the ministry's authority to send any EA to a hearing where there are significant, outstanding environmental issues. If there are no outstanding contentious issues, then a hearing is not necessary. Certainly past experience demonstrates that not all waste-related EAs require a hearing to make a decision. Seventeen out of 23 landfill EAs were approved without going to a hearing, for example, Paris landfill, Essex-Windsor, and I could go on. I have the list if you want to hear the others, 14 that did not have a hearing.
The Chair: Any further debate? Seeing none, I'll call the question. Those in favour of the motion? Those opposed? The motion is defeated.
Mr McGuinty: I move that subsections 9(2) to (5) of the Environmental Assessment Act, as set out in section 3 of the bill, be struck out.
What I'm trying to do is remove the restriction that the board can only make a decision as limited under subsection 10(1) and remove the power of the minister to restrict the board's process. We've got a later amendment here which more broadly directs the board to consider the purpose of the act, the evidence given and the proponent's compliance in making a decision.
The Chair: Ms Churley, do you have any comment?
Ms Churley: Not at the moment.
The Chair: Debate? Any further comments? Seeing none, I'll call the question. Those in favour of the motion? Those opposed? The motion is defeated.
Government motion, section 3, subsection 9(6).
Mr Galt: I would move that subsections 9(3) to (5) of the Environmental Assessment Act, as set out in section 3 of the bill, be struck out.
This provision is necessary for later government motions dealing with the scope of board hearings. We're devoting section 9 of the bill to hearings on the entire application. Section 11.1.1 will address hearings when there are only some outstanding contentious issues that are being referred to the board.
Mr McGuinty: This is the scoping authority, as I understand it.
Mr Galt: Yes.
Mr McGuinty: And it's being removed through this amendment, but it's being replaced elsewhere. Is that right?
Mr Galt: Yes. We're not losing it.
Mr McGuinty: So you're lifting our spirits only to dash them.
Mr Galt: Our apologies.
Mr McGuinty: I'll support this amendment.
Ms Churley: I think we're a little out of sequence here. Was that subsections 9(2) to (5)? Which one are you on here?
Mr Galt: It's subsections 9(3) to (5). These papers have a habit of getting out of place.
Ms Churley: Yes, they do. We thought we sorted that out. No, I have no comments.
The Chair: I'll call the question. Those in favour of the motion? Those opposed? Unanimous. Historic moment.
Mr Galt: I move that subsection 9(6) of the Environmental Assessment Act, as set out in section 3 of the bill, be amended as follows:
1. By striking out "documents" in the second line of the English version and substituting "things."
2. By adding the following paragraph before paragraph 1:
"0.1 The purpose of the act."
3. By striking out paragraphs 5 and 6 and substituting the following:
"5. If a mediators' report has been given to the minister under section 8, any portion of the report that has been made public."
Substituting the word "things" for the word "documents" will allow the board to consider the purpose of the act in addition to the list of documents. Adding the requirement for the board to consider the purpose of the act is consistent with the requirements placed on the minister in making decisions and was raised by a number of deputants to the hearings. The final clause of the motion reflects earlier government motions with respect to disclosure of a mediators' report.
Ms Churley: It seems to me that this is moving in the right direction, but why not go a step further? I think that complete disclosure is what we want here, again, so that the public -- Mr McGuinty, would you go ahead with yours? I want to check something.
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Mr McGuinty: Sure. You may be getting at the same thing that I was getting at with respect to the third point in this amendment here: Why wouldn't we release any portion that has not been made public? As I understand, this section itself is found within the bill. We're talking about what the board is going to consider and then we talk about, "If a mediators' report has been given to the minister," we're only going to give a portion of the report that has been made public. But why not give the entire report to the board and let them decide what's relevant and what's not?
Mr Galt: I'm going to call on Mr FitzPatrick to respond to that.
Mr FitzPatrick: That would relate back to what we dealt with in the previous motion dealing with subsection 8(9), to the effect that the minister shall make the report public promptly after the minister makes his or her decision under section 10 or the decision of the board under section 9 becomes effective, the idea being that the report would not be made public until the decisions are all made, unless the parties to the mediation consent to all or a part of the report being made public. If they consent, there would not be any difficulty.
Mr McGuinty: If the report's given to the board, does that mean it's been made public?
Mr FitzPatrick: I'm sorry?
Mr McGuinty: If the report in full is handed to the board, does that mean all the report is deemed to be then public?
Mr FitzPatrick: By and large, the board operates in public. In holding a hearing, they're operating in public. It's difficult for them to take extraneous material into consideration without being able to bounce it off the public, the people that are testifying before them.
Mr McGuinty: Can anybody give me an example of a case where you wouldn't want the board to see a part of a mediators' report, why you'd want to keep that from them?
Mr Galt: That's in general just to not want to give any bias or prejudice the board. The intent was that the mediators' report would be kept confidential until the board was finished and the minister was finished with their decision-making. There wouldn't be the same kind of freedom for the mediation if they realized it was going to be made public prior to the final decision. That was the thinking all the way through in this exercise.
The Chair: Further debate? I will call the question. Those in favour of the motion? Those opposed? The motion is carried.
Government motion, subsection 9(7).
Ms Churley: What about 9(6)?
The Chair: We just dealt with that.
Ms Churley: So we won't be looking at the Liberal and NDP --
The Chair: No. We ran into this the other afternoon.
Ms Churley: Yes, we did, didn't we? Therefore because that one was voted --
The Chair: That's right. As soon as we vote on it, then any other recommendations -- the procedure is if you're dealing with the same section and you have some --
Ms Churley: I know.
The Chair: Then we call for an amendment to the first one that is put forward on the floor and we can deal with it, but once it's passed by the committee, everything else is redundant if we address that section again.
Mr Galt: I move that subsection 9(7) of the Environmental Assessment Act, as set out in section 3 of the bill, be struck out and the following substituted:
"Same
"(7) The decision of the board must be consistent with the approved terms of reference for the environmental assessment."
This provision requires that board decisions must be consistent with the approved terms of reference, as we heard from many of the deputants during the hearings.
Ms Churley: I just need further explanation as to what this means.
Mr Galt: It really requires the board to respond to the terms of reference consistent with the thinking of this bill, that they deal with the terms of reference and not a lot of other things.
Mr McGuinty: Can I follow up on that? What prompted this? Has there been a history of boards making decisions that are inconsistent?
Mr Galt: It's for clarification purposes. In the current Environmental Assessment Act there are no terms of reference. Nothing is being made in reference to it until they can be as broad as they want to be. That's part of the problem of what's been going on over the years, this 12- or 15-year exercise. We're trying to narrow it down to the terms of reference with the upfront discussions, how they're being developed by the public along with the proponent, and then it's limited to those binding terms of reference as decided. It's just sort of making sure it carries all the way through.
The Chair: Further debate? I'll call the question. All those in favour of the motion? Those opposed? The motion is carried.
We have an NDP and Liberal motion, same one. Ms Churley, I think it's your shuffle.
Ms Churley: As at 9(8)?
The Chair: At 9(8), yes.
Ms Churley: I move that subsection 9(8) of the Environmental Assessment Act, as set out in section 3 of the bill, be struck out.
I think that's because -- I have to doublecheck again -- it's stupid and unnecessary. But give me a moment --
Interjection: Tell us how you really feel.
The Chair: Thank you for your formal description.
Ms Churley: -- while I check it, if Mr McGuinty wants to make a comment. I have to figure out what my notes meant by that. That's what I've written down. So I'll go over it again.
The Chair: Mr McGuinty, do you have a comment?
Mr McGuinty: What we're talking about here is requiring that the board make a decision within a certain deadline, and I guess I just have faith in the board. We have to pick the minister or the board as to who ought to know better how much time it's going to take to properly consider and deliberate. I would pick the board. This amendment removes the ability of the minister to impose those deadlines or any extensions of deadlines.
Ms Churley: I've now read it and I guess I would stand by my previous words, that it's just unnecessary. I'm not quite sure if the government would like to explain why it's there.
Mr Galt: Certainly no one wants long, protracted hearings that cause proponents and taxpayers a great deal of money, and the setting of time frames would be done on an individual basis in consultation with the board and will take into account the complexity and contentiousness of the matter at hand. I think it's only fair to citizens. If you leave it open-ended, the big corporations, the big organizations, will grind away until they finally work the local citizens into submission. By hanging on to that, that shouldn't happen.
Ms Churley: That's been my argument around the terms of reference. I think on our motion -- I forget which one it is now, but the Liberals' and my motion on two-year time frames, for instance, on the terms of reference -- your answer back was, "We need that flexibility." I guess what I'm saying is you're being inconsistent here. I argued back and said, "People want certainty," which is one of your stated objectives here. I'm just pointing out an inconsistency in your approach here, that on one hand you're leaving all that flexibility at the front end, which I think is problematic, and here you're saying that in the interests of speeding things up, let's not have it. What's the difference?
Mr Galt: In each case it's being established by the circumstance at hand or at that time or the one that they're dealing with. In the case of what you're referring to, in the two years, there are some very big environmental assessments that may take longer to get the scientific information together. In each case what we're saying is, "Let's have a look at the significance of the environmental assessment in the reasonable time," and the time frame would be established.
Mr McGuinty: There's a second question here, Mr Chair. Does this subsection (8), as it stands, allow the minister to in effect describe the length of the hearing itself, define the length of the hearing? Is that what we're talking about here?
Mr Galt: Yes, the minister would. That's my understanding. The board's going to have to make the decision and the minister would establish their time frame. Again, are they sending them a whole lot of stuff or are they sending them a little bit of stuff? There's no point in giving them two years if they can do it in two months, and let's get on with it rather than having a fixed time for all instances.
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Ms Churley: So would you consider "unusual, urgent or compassionate" -- I mean, changing circumstances is always a concern in these. What would you see would be a reasonable reason for it to be extended?
Mr Galt: Do you want to run that again?
Ms Churley: What would be reasonable? What it says now is unless "there is a sufficient reason (which is unusual, urgent or compassionate) for doing so" to change the date.
Mr Galt: I guess we're referring to compassionate reasons -- a hall burns down, somebody is seriously ill, that kind of thing.
Ms Churley: What about in terms of the substance of the EA itself? Could you see circumstances changing to the extent that the deadline could be changed? Because it says, "The board shall make its decision by the deadline the minister specifies...." I'm just wondering how much flexibility there would be. There are the words "unusual, urgent or compassionate." You talked about a building maybe burning down, but --
Mr Galt: The only reasons I can see -- very special, urgent reasons or compassionate ones -- the minister would see at the time, but they would be very special ones. It wouldn't be just because they want more time to debate it.
Ms Churley: That's fine.
Mr McGuinty: What information will the minister use? How is the minister going to go about defining the length of hearings?
Mr Galt: As he or she is packaging how long it should be?
Mr McGuinty: Yes.
Mr Galt: It's going to relate to what's been scoped and what's not considered as contentious, that they're not sending. It's really what is being sent to the board; they would make a decision on that package, a reasonable amount of time for them to work on it, and give an end point so it does get finished and people know with some certainty where it's all at. Again, that's back to the main purpose of this whole bill, to bring some certainty into the exercise.
Mr McGuinty: Let's say that a minister intent on shortening the length of these hearings makes a mistake at the outset and allows for too little time. Will the minister be allowed to extend? Is that unusual, urgent or compassionate? Is it unusual for a minister to make a mistake?
Mr Doyle: Not in this government.
Ms Churley: Who said that?
Mr Doyle: It's a joke.
Mr Galt: It certainly has in there "unusual" and, yes, I can see where a special circumstance could be classified as unusual.
I think the ultimate thing is to get an end point on this, and if at all possible let's stay within that so there's some certainty for the public and for everyone which brings not only time but costs and all of it into the process.
Ms Churley: I support deadlines where it's appropriate and when they are sufficient for people to examine sometimes very complex documents. One of my problems throughout all of this is that the focus seems to be, in my view, taking away the public's time. It seems like the government has decided, "Oh, gee, we've got to speed things up; if we squished the time here and here and here...." I think that what we keep forgetting, and I keep coming back to it, is that we know that the biggest delays in previous EAs have actually been at the government review period. I think we keep losing that in this process, and you know that.
That's been a problem in the past, and it's obviously going to continue to be a problem in the future with a third of the staff cut; I must say, some very valuable staff. I haven't heard a commitment that they're going to increase, and I'd like to hear that, the reviewers or whatever you call the people in the department who deal with EA. I foresee that that's where the problems are going to be.
I'd like to see some of the deadlines just lengthened a bit in other areas. But there's an awful lot of work that has to be done by the government before it actually gets to a hearing. I suppose you would consider, if that work hasn't been done and there is inadequate information, then that would be not unusual but a circumstance in which the government could extend it. But that's a big problem that, frankly, you're really going to have to look at if you expect that the time frames are really going to be speeded up, because they aren't. There are a whole lot of flaws in this, but one of the biggest ones is that you're not going to have enough people in the government to do the work.
The Chair: Further debate?
Ms Churley: Enough said.
The Chair: All right, I'll call the question. Those in favour of the motion?
Ms Churley: Is that our motion?
The Chair: Yes, it is. Those opposed? The motion is defeated.
A government motion, section 9.1 of section 3.
Mr Galt: I move that section 9.1 of the Environmental Assessment Act, as set out in section 3 of the bill, be struck out and the following substituted:
"Referral to board following request
"9.1(1) This section applies if under subsection 7.2(3) a person requests the minister to refer an application or a matter that relates to one to the board for hearing and decision.
"Referral of application
"(2) If referral of the application is requested, the minister shall refer the application to the board under section 9 unless in his or her absolute discretion,
"(a) the minister considers the request to be frivolous or vexatious;
"(b) the minister considers a hearing to be unnecessary; or
"(c) the minister considers that a hearing may cause undue delay in determining the application.
"Same, related matter
"(3) If referral of a matter that relates to the application is requested, the minister shall refer the matter to the board under section 11.1.1 except in the circumstances described in subsection (2).
"Referral in part
"(4) Despite subsection (2) or (3), if referral of an application or of matters relating to the application is requested but the minister considers a hearing to be appropriate in respect of only some matters, the minister shall refer those matters to the board under section 11.1.1."
A comment, if I may. We have maintained the ability of the minister to send an entire application to the board for a hearing. In addition, we heard from many people who supported giving the minister the powers to scope hearings. The motion clarifies that the minister has the powers to refer only the outstanding contentious issues to the board for a decision in certain circumstances. We believe this will add more certainty and timeliness to the hearing process. This provision clarifies the minister's powers to refer a matter to the board for a decision after a request has been made.
Mr McGuinty: The following amendment is a Liberal motion and it relates to the same section. Before I move an amendment -- I don't want to lose it; I want to make that known right now -- I want to specifically raise the issue in the government amendment. Under subsection (2), we're talking about the possibility that the minister considers a hearing to be unnecessary. My amendment deals with that issue. I'm concerned about the minister finding a hearing to be unnecessary and I note that in hearings before the Ontario Municipal Board the minister's ability to reject a hearing must lie on the hearing causing undue delay or being frivolous or vexatious. We've introduced a new element here. It's within the complete and absolute discretion of the minister. The minister himself or herself may say, "To my way of thinking, this is unnecessary," and that's the end of it. Why do we have to introduce that subsection to be there?
Mr Galt: As I understand, it's already in the act. This is packaging it. I can read to you where it is in the act.
Mr McGuinty: The act as opposed to the bill, right?
Mr Galt: Yes.
Mr McGuinty: Okay, fire away.
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Mr Galt: It comes under hearings, 12(2)(b): "shall, upon receipt of a notice requiring a hearing pursuant to subsection (1) or pursuant to subsection 7(2) unless in the minister's absolute discretion he or she considers that the requirement is frivolous or vexatious or that a hearing is unnecessary or may cause undue delay."
As I mentioned earlier, we've had 17 out of 23 through without hearings, the most recent ones; on landfill sites, that is.
Ms Churley: Would you say that this amendment reflects EAAC's recommendation? You know there was a recommendation that hearing requests would only be denied if not "in good faith," and you have used those words in there. I'm dying to ask Mr Byer here. I'm curious if that's one of the areas where you did look at their recommendations and see that -- careful, because he is in the room.
Would you say that your amendment here reflects EAAC's recommendations that there should be a hearing if there's a request for one unless it can be proven essentially that a hearing request only be denied if it's not made in good faith, is frivolous or vexatious or is made only for the purposes of delay?
Mr Galt: The hearings are going to be held if there's anything that is contentious. The scoping idea is only to get rid of those items that are not contentious and that everybody agrees with.
Ms Churley: Can you tell me who makes the decision now under the existing EA? Is it the minister or the board?
Mr Galt: The minister, presently.
Ms Churley: So that hasn't changed.
Mr Galt: No.
Mr McGuinty: In the past, how often has the minister considered a hearing to be unnecessary?
Mr Galt: Could we get that number for you? I don't have that figure myself.
Mr McGuinty: Any kind of a ballpark?
Mr Chuck Pautler: In the past, the number of files directed to the board for a hearing was approximately one in four. Currently, over the last several years, the number is one in 12, more or less.
Mr McGuinty: One out of 12, so 11 out of 12 hearings are deemed to be unnecessary?
Mr Pautler: That's correct.
Mr McGuinty: In those cases the minister is exercising the authority under the act to which Dr Galt just referred. Is that right?
Mr Pautler: That's correct, or there was no request for a hearing.
The Chair: Further debate? I will ask the question. Those in favour? Those opposed? The motion is carried.
We will now move to Liberal motion 9.1.1.
Ms Churley: That's the same as this.
The Chair: There are two, Liberal and NDP.
Ms Churley: What was that one we just did, the government motion?
The Chair: The next one, move it along. It's 9.1.1.
Ms Churley: Right, and we just did 9.1.
The Chair: That's correct.
Mr McGuinty: This one's about intervenor funding.
Ms Churley: Mr Chair, I'll move this motion.
I move that part II of the Environmental Assessment Act, as set out in section 3 of the bill, be amended by adding the following section after section 9.1:
"Intervenor funding
"9.1.1 If the board holds a public hearing with respect to a decision to be made under section 9 or 9.1, the proponent shall provide adequate intervenor funding in accordance with such criteria and procedures as may be prescribed for persons who participate in the hearing."
This is to me the second most problematic aspect of the bill. I've said before, and members of the committee heard it time and time again as we travelled, that the end of the intervenor funding act under the Attorney General -- not being renewed, nothing to replace it -- is extremely problematic. What it means is that despite the title of the bill and the comments from the minister and members of the committee throughout that this is an act to improve consultation, there are many areas of the bill where that just isn't true, isn't the case.
If this is not put into the bill, it just makes a complete sham of any meaningful consultation, if you talk, time and time again, to little citizens' groups that are up against proponents with literally millions of dollars and the ability to hire whomever they want to basically say whatever they want. That has happened; as we know, science is not exact and most everybody knows that if you've got the money, you can find a scientist who can tell you and testify to what you want to hear. There are often two sides to issues, and that's true with legal help as well.
If citizens' groups do not have the guarantee of adequate intervenor funding, it will be Goliath and David many times over, and that's like the bad old days when citizens really did not have a proper opportunity to be consulted and to participate on an even close to equal footing. They are often not, even with intervenor funding, but this will shut people out without any meaningful participation whatsoever and make this entire bill, the entire process, a complete sham. This is an absolutely essential motion for the government members to support. I take it, Dr Galt, you will support us on this, because despite the changes that you're going to make in the bill that I entirely disagree with, at the very least giving people the opportunity to participate on some kind of fair footing is absolutely essential in a democracy.
Mr McGuinty: I support the comments made by Ms Churley. Let's remember that intervenor funding does not impose direct costs on the government. This government has allowed the legislation to lapse. There has been no effort made to replace it in any way, not even to say: "We're going to cap it. There's going to be intervenor funding allowed, but it's going to be such-and-such a percentage. Such-and-such a cap will apply." There's nothing. This is obviously an effort to introduce some kind of intervenor funding. Some criticisms are legitimate in that we have spawned, to some extent, an industry -- consultants and lawyers who have derived benefit from intervenor funding -- but I think the large scale, the big picture, provides that it has been of net benefit to the province and to environmental protection in the province. For that reason, I support this.
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Mr Galt: Part of the terms of reference, funding, can be agreed to; that can be right up front. The requirement for early consultation encourages all parties to work cooperatively to identify and resolve issues at the front end rather than later at the hearing stage. Intervenor funding unfortunately encouraged participation at the end of the process only, and a board will continue to be able to award costs once hearings are complete. We don't agree with intervenor funding to continue.
Ms Churley: That's a really flawed way of looking at this process, and if you really believe that, you don't understand the EA process. As much as can be resolved up front, that's great and I'd like to see that motion we made earlier, although you didn't support it, that there is more certainty around the funding of citizens groups during the mediation process. However, leaving that aside, I support all the way whenever possible to try and resolve issues before a hearing, but the fact remains that once an issue goes before a hearing, it means there's a problem. We know that from experience. If you can't work out a lot of these issues beforehand through mediation, which I'm glad to see in this bill -- it's one of the things I do support fully.
But you know that if it goes before a full EA with all the bells and whistles, it's going to be a big deal. The proponent is going to be hauling out whomever they can to support their position on this. There are going to be scientific studies on waste management, dumps, groundwater contamination measurements, all kinds of things that are going to involve scientists who cost money and lawyers who cost money, and these people on the community level are going to be screwed. Excuse the language, but that's essentially what it comes down to.
This is making me really angry, because if it gets to the process where it's a big environmental assessment hearing, the little people, the people your government claims to care about, are going to be left out in the cold and can forget it. They can kiss their case absolutely goodbye because they won't have the resources. To be told they may or may not be rewarded costs at the end of a hearing is a sham. People will be afraid to get involved because they won't know what's happening.
This is ridiculous. People can't raise enough money by a little bake sale in their community to participate in a full-blown, big environmental assessment hearing. Have you ever been to one of these things? All of your scoping in the world -- once these things go to a hearing, it's going to be very complex and very involved. Citizens have got to be given more of an equal footing or it's all a sham. That's the truth. So you're really going to let this go?
The Chair: I'll call the question.
Ms Churley: Recorded, please.
Ayes
Churley, McGuinty.
NAYS
Doyle, Fox, Galt, Jordan, Pettit, Preston, Smith.
Mr Galt: I move that subsection 9.2(1) of the Environmental Assessment Act, as set out in section 3 of the bill, be amended by striking out "or 9.1" in the second line and substituting "or 11.1.1".
These are just housekeeping changes that reflect later government motions.
The Chair: Ready for the question? Those in favour? Those opposed? The motion carries.
Mr McGuinty, do you want to take the next one, subsection 9.2(3)?
Mr McGuinty: I'm just looking for it here.
Ms Churley: Is that subsection 9.2(3)?
The Chair: Yes.
Ms Churley: Do you want me to?
The Chair: Go ahead, Ms Churley.
Ms Churley: Then you pick up the next one. We have the same amendment on this so I'll read it into the record.
I move that subsection 9.2(3) of the Environmental Assessment Act, as set out in section 3 of the bill, be struck out and the following substituted:
"Notice and comment
"(3) When the minister proposes to make an order under this section, the minister shall give adequate public notice of the proposed order and shall ensure that members of the public have an opportunity to comment on it."
Simply, not supporting this amendment is just more of what I had been saying earlier. It's shutting the public out of the process. Voting for this amendment gives the government the opportunity to put its money where its mouth is a little bit here and vote to allow the public to be given more information and be able to comment on it.
Mr McGuinty: It's a case again of public notice and an opportunity for public comment and supportable on those grounds alone.
The Chair: Debate? I'll call the question. Those in favour of the motion? Those opposed? The motion is defeated.
Government motion, section 3, subsections 10(3) and (4).
Mr Galt: I move that subsections 10(3) and (4) of the Environmental Assessment Act, as set out in section 3 of the bill, be struck out.
This is a housekeeping provision which reflects another government motion in section 11 which contains the deadline provisions, which is actually the next motion.
Ms Churley: The next motion deals with why you're doing this? Can't we do it in reverse order then?
The Chair: It's the next section. We have to go section by section, so that's why.
Ms Churley: Oh, I see. It's hard to vote on this, so I guess we'll have to ask now -- can we just discuss the implications of this vis-à-vis the next motion from the government?
The Chair: Ms Churley, do you have a comment or a question?
Ms Churley: No, that's a question, because you're saying this is not necessary because of the next amendment, section 11 of the Environmental Assessment Act.
Mr Galt: That's right, yes.
Ms Churley: Perhaps what you could do, even though we have to vote on this one first, is explain the next one so we understand the connection. Did I misunderstand you earlier? I must admit I was only half-listening because I was reading the next motion.
Mr Galt: Maybe I'll call on Mr FitzPatrick to explain the juggling within the act. Would that be helpful?
Ms Churley: Yes.
Mr FitzPatrick: There were provisions in several places respecting deadlines on the various decisions that the minister can make when the matter is put before him or her and we're pulling all of those together in section 11, which is the next motion that the government will put forward.
Ms Churley: I see. If I could continue, this is simply a setup for the next section and we will see in that one. But you're not taking any deadlines out?
Mr FitzPatrick: Correct.
Ms Churley: In the next section will there be some deadlines extended or changed? Are you taking anything away from it?
Mr Fitzpatrick: All of the deadline provisions are being pulled together in a more logical fashion in one place.
Ms Churley: So they're just being pulled into another section. No other implication. Promise? Swear? Cross your heart?
Mr FitzPatrick: Correct.
Ms Churley: They crossed their hearts. Okay.
Interjection: You must have been a Girl Guide.
Ms Churley: Nope.
The Chair: Are we ready for the question? All those in favour of the amendment? Those opposed? The motion is carried.
Government motion, section 11.
Mr Galt: I move that section 11 of the Environmental Assessment Act, as set out in section 3 of the bill, be struck out and the following substituted:
"Deadline, minister's decisions
"11(1) Once the deadline has passed for submitting comments on the ministry review of an environmental assessment, the minister shall determine by the prescribed deadline whether to refer a matter in connection with the application to mediation or to the board under section 11.1.1.
"Same
"(2) By the prescribed deadline, the minister shall decide the application under section 10 or refer it to the board for a decision under section 9.
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"Different deadlines
"(3) For the purpose of subsection (2), different deadlines may be prescribed for applications in which a matter is referred,
"(a) to mediation; or
"(b) to the board under section 11.1.1,
"and for those in which no referral is made.
"Validity of decisions
"(4) A decision of the minister is not invalid solely on the ground that the decision was not made before the applicable deadline."
Just a comment, Mr Chair: This provision helps to clarify that the minister shall have a prescribed time frame for making decisions. These include matters that have been referred to mediation or to the board.
The Chair: Debate?
Ms Churley: Sorry, if you could give me a moment here.
Mr McGuinty: Could Dr Galt give the explanation again? What is the purpose of this provision?
Mr Galt: Part of it down in subsection 3(3) is giving the time out provision for mediation to the board for the minister's decision so that there can be some recommendation and the minister will still have the same quantity of time. Essentially, as I understand it, that's what's referred to here all the way through, to ensure that the minister still has his or her time regardless of the other activities that are going on and still that a deadline is being established.
Ms Churley: "Validity of decisions," the very last one: "A decision of the minister is not invalid solely on the ground that the decision was not made before the applicable deadline." What does that mean?
Mr FitzPatrick: It's a guarantee essentially that if for some reason the deadline is not met, the proponent and the members of the public who have put a lot of time and effort into it will not have thrown that away.
Mr McGuinty: The board can't exceed the deadline but the minister can?
Ms Churley: Why have deadlines if you have an escape clause? First of all, that's gobbledegook. I would prefer that it be clearer, that last statement, but why have deadlines if you have an escape clause? I mean, why try to pitch this politically if you don't mean it? It seems to me you either have deadlines or you don't have deadlines, and here we go again on this question of some deadlines are firm, some are flexible. It seems like the ones that we the opposition have some concerns about have to be firm. But I just think you can't have it both ways, and that's what you're trying to do here and that's what you're pitching politically. But you've got an escape clause here.
Mr Galt: As you go through the bill, there's no penalty in any place if the deadline isn't met. There are not that kind of teeth in here. But you run into many situations where you come to a certain date and it's totally null and void and court procedures and we just don't want it -- should they go over a day or two we just have this in here to ensure that it's not going to be totally thrown out and have to start all over again.
Ms Churley: You see my point, though?
Mr Galt: Yes, I do.
The Chair: Further debate? I'll call the question. Those in favour of the motion? Those opposed? The motion is carried.
Government motion, subsection 11.1(4).
Mr Galt: I move that section 11.1 of the Environmental Assessment Act, as set out in section 3 of the bill, be amended by adding the following subsection:
"Notice of deferral
"(4) The minister or the board shall give notice of the deferral to the proponent and to every person who submitted comments to the ministry under subsection 7.2(2)."
A comment: This motion reflects what we heard from deputants with respect to keeping the public informed on various decisions. This government motion requires that the proponent and any other person who submitted comments are notified of the minister's deferral decision.
Ms Churley: I just want to ask a question. I have a motion dealing with subsections 11.1(4) and (5). If we're to vote on this sub (4), then could we still deal with sub (5) or not, because this one is only sub (4).
The Chair: Sub (5) would be fine, but the section under sub (4) should be dealt with here, so you can amend it in part or in whole.
Ms Churley: Right. So I could make an amendment?
The Chair: You can make an amendment to this because you have an amendment yourselves, both of you, and we're dealing with this 11.1(4) now. If you pass it, then we move on to the next section. We can move on to sub (5) because this section doesn't deal with (5), or you can amend this amendment under sub (4) in relation to your own amendment as it stands.
Ms Churley: I guess what I'd like to do is I think we're both going after the same thing here, but I believe that either the government agrees to support our amendment and removes this, or I would amend the notice of deferral and have it say, as in the NDP and the Liberal motion:
"If the minister or the board proposes to defer deciding a matter, the minister or the board, as the case may be, shall give adequate public notice of the proposal and shall ensure that members of the public have an opportunity to comment on it."
It strengthens that section. Would you agree to that?
Mr Galt: You're asking for a general public notice?
Ms Churley: Yes.
Mr Galt: And a comment period?
Ms Churley: Yes.
Mr Galt: No.
Ms Churley: So once again you're shutting out the public.
Mr Galt: No, we're being very specific that we're going to notify everybody who has commented.
Ms Churley: How would you know? Sorry. Well, he's saying, no, you're not shutting out the public and you are.
Mr W. Leo Jordan (Lanark-Renfrew): Define "public."
Ms Churley: In fact, we asked the government to define "interested parties" within the bill so that would be very clear, and they refused to do it. I can define it. They refused to put it in this bill. The Ministry of Environment and Energy does have guidelines about who the interested parties are. That's not within the bill. But we're talking about the public who have an interest in what's going on in their backyard or in their community here.
Mr Jordan: And they've made that known long before this.
Ms Churley: I think that every opportunity the public can be involved they should be involved and it furthers environmental protection in the long run. That's my submission, that you withdraw yours and support ours, the Liberal and NDP motion to follow, which I think is stronger.
The Chair: Is that a question to the parliamentary assistant?
Ms Churley: Yes, it's a question and he said no, I believe.
Mr Galt: Basically, what we're saying here is that we'll ensure that those who have made comment, who are involved, interested parties, will be notified. Of all these types of things that I've seen, the press is there, they're going to have it on the front page and you're going to know about it. It's probably a better way of notifying the public than trying to put it in some special ad on the back page.
The Chair: Does that satisfy you, Ms Churley?
Ms Churley: No, but we can vote on it.
The Chair: All right. Further debate on this motion? Those in favour of the motion? Those opposed? This motion is carried.
Under the next two Liberal and NDP motions, subsection (5), would you move that?
Ms Churley: I don't know whose turn it is here any more. We're just doing the "Reasons (5)" part, right?
The Chair: You're just doing (5), yes, "Reasons," correct.
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Ms Churley: "Reasons
"(5) The minister or the board shall give written reasons for a deferral, indicating why the deferral is appropriate in the circumstance."
I would just say that this act is supposed to be about accountability, and simply to government members that if you don't support this, then you're not supporting accountability throughout the process and you just can't continue to keep up that pretence. I would ask the government members to support this.
The Chair: Ms Churley, can I ask you, please, just to read the first section, "I move that section," ending with, "the following subsection," singular rather than plural, subsection (5).
Ms Churley: Okay. I move that section 11.1 of the Environmental Assessment Act, as set out in section 3 of the bill, be amended by adding the following subsection:
"Reasons
"(5)."
The Chair: Okay, fine. Thank you. All right. Other comment?
Mr McGuinty: I have a question for Dr Galt. Why would that be a problem for the minister or the board to give written reasons -- they could even be very brief -- for deferral?
Mr Galt: It's already happening. It's really redundant. The motion we just passed has looked after it.
Mr McGuinty: There's an obligation imposed there to provide written reasons then?
Mr Galt: That's my understanding, yes.
Ms Churley: What?
Mr Galt: It's a practice.
Mr McGuinty: The previous motion --
Mr Galt: "The minister or the board shall give notice of the deferral to the proponent and to every person who submitted comments to the ministry under subsection 7.2(2)."
Mr McGuinty: That's notice, though, as distinct from reasons. They can always say. "It has been deferred, and these are the reasons why." Come on, it's been a long afternoon. You've got to give us one and this one makes good sense.
Mr Galt: Already in subsection 11.1(1), "The minister may defer deciding a matter that relates to an application if the minister considers it appropriate to do so because the matter is being considered in another forum or for scientific, technical or other reasons."
Mr McGuinty: Is this the bill you're reading from?
Mr Galt: Subsection 11.1(1) of the bill itself.
Mr McGuinty: Yes, but what's that got to do with the reasons?
Ms Churley: You mean subsection 11.1(2)?
Mr Galt: Subsection (1).
Ms Churley: What's that got to do with it?
Mr FitzPatrick: Subsection (1) deals with the minister; subsection (2) deals with the board. In either case they'd have to bring themselves within the words of the section. In other words, they'd have to have one of those reasons for having the deferral and those reasons would be given, would be disclosed.
Mr McGuinty: But I don't see any obligation. It says here the reasons therefore, "because the matter is being considered in another forum or for scientific, technical or other reasons." "Other" is anything. Why can't we impose an obligation to give the reasons?
Mr FitzPatrick: In making the deferral they would be stating their reasons in order to bring themselves within the powers conferred in 11.1. Nothing more is required.
Ms Churley: So you're saying it would be redundant to put this in?
Mr FitzPatrick: Yes.
Ms Churley: And I'm saying, if you don't mind my interrupting, that I think it's not as clear to me as you seem to think it is that that would have to be done. It even says, "may refer to the board, another tribunal or another entity for a decision a matter that relates to an application if he or she considers it appropriate in the circumstances." Is that what --
Mr FitzPatrick: You're moving to the next section.
Ms Churley: I'm sorry, 11.1(1). You see, I think some of this is gobbledegook. "The minister may defer deciding a matter" -- is this the one? -- "that relates to an application if the minister considers it appropriate to do so because the matter is being considered in another forum or for scientific, technical or other reasons." That to me doesn't suggest that the minister has to give written reasons indicating why the deferral is appropriate in the circumstances. I just think it would make sense to put that in there very clearly; if that's the intention, even more so. I don't think it's redundant; it just clarifies it.
Mr McGuinty: Even assuming that this imposed an obligation on the minister to provide the reasons, which I don't think it does, the minister has to say, "I'm doing this for scientific, technical" or "I'm doing it for other reasons," without describing in detail what those other reasons might be.
Ms Churley: I also like having the words "written reasons" in there so that there is more than a verbal response, that people will be able to get any written comments about a deferral. It could have wide-reaching implications. I hope Dr Galt will support that.
Mr Galt: You're very convincing this afternoon.
Ms Churley: You're going to support that?
Mr Galt: We can support that, yes.
The Chair: Okay, are we ready to call the question?
Mr Galt: This is clear, on item 5.
The Chair: On item 5, yes; it's subsection (5). Those in favour? Those opposed? The motion is carried.
If I can alert the members to the next section, 11.1.1, the Liberal and NDP motions address the same content, but they're listed under 11.2. So if you look at the first one for amendments to the amendment, then that might be the way to proceed with that.
Mr Galt: I move that part II of the Environmental Assessment Act, as set out in section 3 of the bill, be amended by adding the following section (after section 11.1):
"Referral to board of part of a decision
"11.1.1(1) The minister may refer to the board for hearing and decision a matter that relates to an application.
"Restrictions
"(2) The minister may give such directions or impose such conditions on the referral as the minister considers appropriate and may amend the referral.
"Proposed decision
"(3) The minister shall inform the board of decisions that the minister proposes to make on matters not referred to the board in connection with the application.
"Notice of referral
"(4) The minister shall give notice of the referral to the proponent and to every person who submitted comments to the ministry under subsection 7.2(2) and shall give them the information given to the board under subsection (3).
"Basis for decision
"(5) The board shall observe any directions given and conditions imposed by the minister when referring the matter to the board and shall consider the following things to the extent that the board considers them relevant:
"1. The purpose of the act.
"2. The approved terms of reference for the environmental assessment.
"3. The ministry review of the environmental assessment.
"4. The comments submitted under subsections 6.5(2) and 7.2(2).
"5. If a mediators' report has been given to the minister under section 8, any portion of the report that has been made public.
"6. The decisions the minister proposes to make on matters not referred to the board in connection with the application.
"Deadline for deciding
"(6) The board shall make its decision by the deadline the minister specifies or by such later date as the minister may permit if he or she considers that there is a sufficient reason (which is unusual, urgent or compassionate) for doing so."
These provisions clarify that the minister has the power to refer a matter or matters to the board for a decision. In doing so, the minister will inform the board of the decisions that the minister proposes to make on the matters not referred to the board. When holding hearings on the matter or matters referred to it by the minister, the board is required to consider the directions of the minister and consider to the extent necessary those other things as listed.
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Mr McGuinty: A question with respect to subsection (2), "The minister may give such directions or impose such conditions on the referral as the minister considers appropriate and may amend the referral." This sounds like scoping to me. Is that what we're talking about here? Why is that? What's the purpose of this?
Mr Galt: Essentially the whole section is on scoping. It's all part and parcel of the scoping process.
Mr McGuinty: We heard during the length of the committee hearings many concerns raised by people more experienced in these matters than me about some of the dangers of scoping, about tying of the board's hands, about not bringing forward to the board certain elements which ought to be considered in order to ensure there's a full environmental assessment. For that reason, I cannot support this amendment.
The Chair: Further debate? All in favour? Those opposed? The motion's passed.
We'll move to subsection 11.2(1), government motion.
Mr Galt: I move that subsection 11.2(1) of the Environmental Assessment Act, as set out in section 3 of the bill, be struck out and the following substituted:
"Referral to other tribunal, entity
"(1) The minister may refer to a tribunal (other than the board) or entity for decision a matter that relates to an application if he or she considers it appropriate in the circumstances.
"Deadline for referring
"(1.1) The minister shall make any decision to refer a matter to the tribunal or entity by the deadline by which the application must otherwise be decided."
These are housekeeping provisions which separate the decision paths for the minister sending a matter to the Environmental Assessment Board versus to another tribunal or entity and impose a deadline.
Mr McGuinty: The original subsection 11.2(1) provided for referral to the board and now this says you can't refer to the board. Why is that?
Mr Galt: It was just dealt with in section 11.1 is my understanding, in the previous motion.
Mr McGuinty: What does that mean? Does that mean that reference can still be made to the board?
Mr Galt: Yes. The reference to the board is in 11.1 and to the tribunal is here. Maybe Mr FitzPatrick can help us out a little bit here.
Mr FitzPatrick: As we have reorganized this process during the course of the hearings, it does become a little complicated to remember which provisions are in which places. But in the new scheme, referral of the entire matter to the board is in section 9. Referral of an individual subject matter is in section 11.1.1, which we just dealt with, and referral to some other entity other than a board will be here in 11.2 where, for instance, a technical matter relating to the size of nuts and bolts in a bridge or something like that might be referred to the director of approvals at the Ministry of Environment.
Mr McGuinty: I think I'm in need of intervenor funding here to retain a lawyer, Mr Chair. All right.
The Chair: Further debate?
Ms Churley: Are we still doing 11.1.1?
The Chair: No, 11.2.1.
Ms Churley: I had some comments to make on that but I expect it passed. Did it?
Mr Galt: Yes, unanimously.
Ms Churley: Unanimously, yes, right. On 11.2, which is what you're doing now, could I just -- it's a government motion, so that would mean that our motion --
The Chair: Section 11.2.1.
Ms Churley: Still on the wrong one. If you'll give me a moment. Sorry, I had to leave the room for a moment. Okay, go ahead.
The Chair: I call the question. Those in favour of the motion? Those opposed? The motion's passed.
Government motion, subsection 11.2(4).
Mr Galt: I move that subsection 11.2(4) of the Environmental Assessment Act, as set out in section 3 of the bill, be struck out and the following substituted:
"Amendment
"(4) The minister may amend referral to the tribunal or entity.
"Deemed decision
"(4.1) A decision of the tribunal or entity under this section shall be deemed to be a decision of the minister."
The minister has the power to amend referrals to the board. This government motion provides the same powers to the minister to amend referrals to a tribunal or entity.
Mr McGuinty: Why do we have this deeming provision in here? A decision of the tribunal or entity is going to be deemed to be a decision of the minister?
Mr FitzPatrick: It's simply a drafting convenience. There are other portions of the act respecting what happens after there's been a decision of the minister. This slots these kind of decisions into those cross-references.
Mr McGuinty: So it's got nothing to do with liability or anything like that?
Mr FitzPatrick: Correct.
The Chair: I'll call the question. Those in favour? Those opposed? The motion's passed.
Subsection 11.2(5), government motion.
Mr Galt: I move that subsection 11.2(5) of the Environmental Assessment Act, as set out in section 3 of the bill, be amended by striking out "subsections (1) to (4)" in the third line and substituting "subsections (1) to (4.1)."
This is a government motion that's reflecting the numbering of the bill. It's really just a housekeeping exercise.
The Chair: Debate? I call the question. Those in favour of the motion? Those opposed? None being opposed, unanimous. The motion passes.
Under section 11.3, the same situation arises for the opposition parties as well in terms of which motion comes first. The government motion is first. Therefore --
Mr McGuinty: Why is it first, Mr Chair?
The Chair: Why?
Ms Churley: Because they're the government. Why else?
The Chair: I never understood we did it that way.
Ms Churley: No, seriously, is it because they have the majority so they're always considered first? Because they are on every --
Mr Galt: It's interesting to note the official opposition always gets the first question in the House, so maybe it's a ritual like that.
The Chair: Yes, the rationale I have is that it's a government bill. The government makes the motion and the opposition can make amendments to the motion.
Mr Galt: I move that section 11.3 of the Environmental Assessment Act, as set out in section 3 of the bill, be struck out and the following substituted:
"Reconsideration of decisions
"11.3(1) If there is a change in circumstances or new information concerning an application and if the minister considers it appropriate to do so, he or she may reconsider an approval given by the minister or the board to proceed with an undertaking.
"Same
"(2) The minister may request the board to determine whether it is appropriate to reconsider an approval.
"Same
"(3) The minister may request the board to reconsider an approval given by the minister or the board.
"Amendment
"(4) A decision approving a proponent to proceed with an undertaking may be amended or revoked in accordance with such rules and subject to such restrictions as may be prescribed.
"Non-application
"(5) Section 21.2 (power to review) of the Statutory Powers Procedure Act does not apply with respect to decisions made under this act."
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As a comment to this motion, these provisions clarify that the provisions of the Statutory Powers Procedure Act which allow boards to reconsider decisions on their own do not apply. The only time the board can reconsider a board decision made under this act is when requested by the minister. This government motion will add certainty to the decision-making process by ensuring that only the minister can trigger the board to reconsider a decision.
Ms Churley: Mr Galt, if you look at the NDP and Liberal motions covering the same section, if you look at (4), I believe it's the same: "A decision approving a proponent to proceed with an undertaking...." My motion is, "If the minister proposes to make an order under this section, the minister shall give adequate public notice of the proposal and shall ensure that members of the public have an opportunity to comment on it." I wonder if you would accept such an amendment to your subsection (4).
If there are changes, once again I come back to ensuring that members of the public have opportunities to know about it and comment on it.
Mr Galt: If I may, getting a little sorted out here, the comment period is going to take a fair amount of time. This also could be a situation of urgency. To include it, it would have to be redrafted, because we're talking here about the minister and the board, whereas in here it's just the minister. I really don't see the need for it.
Ms Churley: Why not?
Mr Galt: We were quite kind to you a little while ago; don't forget that. We agreed with you.
Ms Churley: But in all seriousness, it's another attempt on my part to adhere to the spirit of the title of the bill, "improve public consultation," whatever it is, and it's another example where there are restrictions and this is a chance to think of that.
I don't understand what section 21.2 -- I don't know what you mean by subsection (5) there, "(power to review)...does not apply with respect to decisions."
Mr Jim Jackson: Jim Jackson here, environment and energy legal services branch. The cross-reference is to a section in the Statutory Powers Procedure Act which describes circumstances under which boards can determine to review their own decisions on their own initiative or at the request of anybody. Under the government motion, only the minister can initiate that amendment or change of an earlier decision of the board.
The Chair: Are we ready for the question? Those in favour of the motion? Those opposed? The motion is carried.
It's almost 6 o'clock and I'd like to raise the issue of our next meeting time. I gather it's impossible for members tomorrow. We only meet on our own in terms of Monday and Tuesday afternoons; otherwise it has to be a motion from the House. We had thought of next Tuesday but I understand Ms Churley has a problem. She'll be out of town.
Ms Churley: Sorry, a clarification. Tuesday, what date would that be?
The Chair: That would be the 14th.
Mr Galt: There is some urgency to get on with this, I'm told. It has been listed for tomorrow. I have another engagement, but it'll have to be cancelled and we'll get on with this tomorrow, as originally scheduled.
The Chair: So we would then meet tomorrow.
Ms Churley: I object to that because of the uncertainty around -- I'm not trying to delay here. I did say I would attempt to get through this today, but it's obviously too much. There has been confusion around how long this is going to take because, to be clear, there was a new minister who phoned both Mr McGuinty and me and asked us if we'd agree to delay the clause-by-clause so that he could have time to review the bill, which made sense, and we both said yes.
It was my understanding that the two days we put aside for clause-by-clause were two full days because the House was out of session. We're now back in session. Two days means only a few hours per day. We are going to extend it, but I believe we have to do it by consensus here, given that we didn't have any established days. Unfortunately, tomorrow I'm out of town for the entire day and I can't change that.
The Chair: Our established days are Mondays and Tuesdays. Ms Churley, how's next Tuesday?
Ms Churley: The 15th?
The Chair: The 14th.
Ms Churley: On a Monday, yes, I could accommodate that.
The Chair: Tuesday?
Ms Churley: My schedule must be wrong, because I'm --
The Chair: Monday is Thanksgiving.
Ms Churley: Oh, I see. Sure, yes, I could accommodate --
Mr McGuinty: I'm unavailable next Tuesday. I had set aside tomorrow.
1800
Mr Galt: It's been scheduled here for tomorrow and we are giving the liberty or whatever that we proceed with one more day.
I move that this be wound up tomorrow between 3:30 and 6, as scheduled by the clerk.
The Chair: There's a motion on the floor, but Ms Churley --
Ms Churley: I'm sorry, but this is not a government committee, it's a legislative committee and nobody told me that we were scheduling further hearings for tomorrow. I had no idea. Were people notified there were committee hearings tomorrow?
The Chair: Apparently the notice went out last Thursday notifying you.
Ms Churley: How come we came in here today being told that we had only two days scheduled?
The Chair: Monday and Tuesday is the schedule.
Ms Churley: I mean all together we had one day last week and what you're saying is that Monday and Tuesday of this week had already been scheduled?
The Chair: Ms Churley, I've been advised by the clerk that, first of all, Mondays and Tuesdays are our official times to meet. If it's outside that, it requires some kind of agreement or motion or direction from the House. Therefore, we continue to meet until otherwise on our official days.
Ms Churley: I see.
The Chair: But there was a notice sent out last Thursday which --
Ms Churley: About the committee meeting as opposed to continuing with clause-by-clause.
Clerk of the Committee: It was indicated.
Ms Churley: Okay. If it was indicated, I'm sorry, I didn't see it. However, there has been mass confusion throughout on how long we were going to debate this bill. In fact, Dr Galt and I talked earlier today and it was my understanding from what he said that he thought we were going to finish today. I understand that there are committee meeting times set aside. I object to -- I'm carrying this bill for my party. I understand the government wants to move it forward. I can't be here.
Mr McGuinty: I want to speak in support of Ms Churley. In fairness, she has been doing all the work on behalf of her party and it would be very difficult for another member to step in tomorrow and not have the knowledge base she's acquired during the length of these hearings and in her capacity as critic, so I support the argument she's making. I think we should, if at all possible, put it off to accommodate her.
The Chair: You have a problem next Tuesday.
Mr McGuinty: I've got a problem with the Tuesday after that.
Mr Galt: It doesn't seem to matter where we move, somebody's going to have a problem.
The Chair: The next day would be Monday of the following week.
Mr Galt: I have a major problem as well tomorrow, but that's the schedule and we better get on and get this wound up.
Ms Churley: Why? I'm sorry, but I'd like to know. I am not trying to obstruct here. I really do have a problem and you have to admit there has been confusion --
Interjection.
Ms Churley: And we're discussing that motion. There has been confusion around how many days we're going to be examining this bill clause by clause. You also have to admit that I accommodated the minister. I had set aside full days during the summer to look at clause-by-clause and I accommodated the minister so that he could have time to review this bill. I understand you don't have to. I understand you would now like to push forward. I just think it's unfair. We accommodated the minister when he wanted more time. There was confusion about the days, given that we're now doing just a few hours a day instead of full days. I would like to finish off the clause-by-clause. That's my request. I think given that there have been a few tradeoffs made here already, it would be only fair.
I wonder if -- one possibility -- we could get special order in council to do a day when we're not meeting.
The Chair: Order of the House.
Ms Churley: Whatever. If we could find a day that the major people, Dr Galt and Mr McGuinty and myself, can be here, why don't we do that?
The Chair: There's a motion before the committee. Dr Galt, do you have any response to that request?
Mr Galt: I'm running into all kinds of complications to try and change the day, and like some of the others I'd like to have it on a different day too; I'm supposed to be speaking in Collingwood tomorrow afternoon. But it's get on with it and get this wound up. It's consistent we keep following through on the days the committee meets until it's finished and we've agreed to go to a third day. Let's do it tomorrow and get it over with.
Ms Churley: And get it over with.
Mr Galt: Get it completed.
Ms Churley: The next time Mr Sterling asks me to do him a favour, I'll remember this. I'm sorry, but I think it's pretty outrageous that we can't at least look at the calendar -- I'm not asking to delay it for weeks -- and see if, in the spirit of goodwill, we can find a day we can all accommodate. That's the way we've been trying to do this bill and I just think it's outrageous that my request that I continue and finish this bill not be at least -- that we don't have at least an opportunity. Take out the calendar, see if we can find a day this week or next week that we can all be here and see if we can get whatever it is we have to do in the House to approve it. I'm sure we can.
Mr Galt: So far I've heard problems with every day that's been mentioned either from yourself or from Mr McGuinty.
Ms Churley: We've only mentioned one other day.
Mr Galt: I think we've talked about Wednesday and we've talked about next Tuesday.
Ms Churley: There are two other days of the week we could look at. All right. I can see I'm not going anywhere with this. I don't understand why, but it will be remembered.
The Chair: Okay, ready to call the question? All those in favour of the motion? Those opposed?
All right, we'll meet tomorrow afternoon at 3:30 to continue clause-by-clause.
The committee adjourned at 1807.