CANADIAN BAR ASSOCIATION-ONTARIO
ONTARIO FEDERATION OF AGRICULTURE
INTERNATIONAL ASSOCIATION OF PUBLIC PARTICIPATION PRACTITIONERS, ONTARIO CHAPTER
CANADIAN ENVIRONMENTAL DEFENCE FUND
ONTARIO PROFESSIONAL PLANNERS INSTITUTE
TORONTO ENVIRONMENTAL ALLIANCE
CONTENTS
Wednesday 14 August 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
Canadian Bar Association-Ontario
Mr Philip Byer
Ms Pam Wheaton
Ontario Federation of Agriculture
International Association of Public Participation Practitioners, Ontario chapter
Canadian Environmental Defence Fund
Ontario Professional Planners Institute
Toronto Environmental Alliance
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)
*Mrs 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 LeoJordan (Lanark-Renfrew PC)
Mr GerardKennedy (York South / -Sud L)
Mr FloydLaughren (Nickel Belt 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)
Mr BudWildman (Algoma ND)
*In attendance /présents
Substitutions present /Membres remplaçants présents:
Mr DougGalt (Northumberland PC) for Mrs Johns
Mr DaltonMcGuinty (Ottawa South / -Sud) for Mr Kennedy
Mr R. GaryStewart (Peterborough PC) for Mr Newman
Mr MorleyKells (Etobicoke-Lakeshore PC) for Mr Preston
Mr EdDoyle (Wentworth East / -Est) for Mr Smith
Mrs MarilynChurley (Riverdale ND) for Mr Wildman
Clerk / Greffière: Ms Lynn Mellor
Staff / Personnel: Mr Ted Glenn, research officer, Legislative Research Service
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): Good morning. We expect a few members to be joining us presently in addition to the existing members. We begin our final day of hearings in Toronto on Bill 76. We have one more day in Thunder Bay tomorrow.
CANADIAN BAR ASSOCIATION-ONTARIO
The Chair: Our guests this morning are from the Canadian Bar Association, and we welcome you here, the Ontario environmental section in particular. You have 30 minutes to make your presentation. Any time that remains between your presentation and the 30 minutes is divided up equally between the three parties for questions.
Mr Len Griffiths: My name is Len Griffiths. I am the past chair of the environmental section of the Canadian Bar Association-Ontario and I'm a member of the legislative subcommittee.
Ms Cara Clairman: My name is Cara Clairman and I'm on the executive of the environmental section of the Canadian Bar Association.
Mr Griffiths: Thank you very much for allowing us an opportunity to make a presentation to you this morning. The environmental section of the Canadian Bar Association-Ontario is comprised of over 500 environmental practitioners in the province. As a result, it's often difficult for us to make these types of submissions with any form of consensus-building or unanimity, which is indeed impossible in some cases to achieve. We are here representing not only the section, but specifically we have 30 members on our executive and, further, 20 of those members are on a subcommittee that's known as our legislative subcommittee.
The legislative subcommittee has been involved in the development of the submission we're making this morning, but I should tell you, as is indicated in our written submission to date, that the final submission we have for you this morning has not been circulated to every member of the legislative subcommittee, for lack of time.
What we intend to do is to circulate it to all of the members and subsequently obtain approval from our council of the Canadian Bar Association to make a final written submission to you, which we hope we'll be able to forward to you over the next few weeks. So what we have this morning is a compilation of comments that have come from members of the legislative subcommittee. Not all of the comments have been incorporated in the written submissions, but we hope to do that by the time we give you the final submission.
This morning we wanted to highlight four issues that were of importance and are of importance to our members. These are the issue of deadlines in the process, the terms of reference that are proposed in Bill 76, public consultation, and mediation. I will address the first issue. My colleague, Ms Clairman, will deal with terms of reference and public consultation. I will conclude with mediation. Then of course we'd be more than happy to take questions that you have. Indeed, we hope to make our presentation no more than 15 minutes so that we can take advantage of your questions.
First, I'd like to say that our section generally supports an initiative for change with respect to environmental process in Ontario. Of course it goes without saying that it has to be changed for the betterment of the environment and it can't be at the cost of the environment. We have a number of different interests that are represented on our own subcommittee, and we hope our final submission will provide you with various views on some of the proposed changes. There is, as I said before, not necessarily consensus, but we hope that if we can give you one, two or sometimes three different views, your committee will be able to take those into account in making your own conclusions.
We think it's a good opportunity, though, right now; there's good momentum that exists. We have had good and bad experiences with environmental assessments in Ontario. Most of our members have participated in the process. We also think there's a strong Environmental Assessment Board right now that's given good direction in recent years and recent months to participants. So we think it's an excellent opportunity for the government to look at changes and make changes that will better the process, which will in turn, in our view, better the environment in Ontario.
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Let me turn to the issue of deadlines. We only intend to hit the highlights of our submission, and you can either read the submission we've provided to you this morning or wait for the final submission that will be forthcoming.
We support the inclusion of deadlines in the process. We think it's one of the fundamental problems that have occurred in the past. It's a problem that has been remedied to some extent by the board with its rules, but we certainly support the inclusion of time lines or deadlines.
Currently, as the bill is drafted, there are certain time lines, deadlines, that are included specifically in the bill and there are others where it is indicated they will be prescribed by regulation. We would prefer that all deadlines be articulated in the statute rather than dividing them between statute and regulation. We think it's important for participants to be able to see what the deadlines are. It's obviously not possible for us to make comments on the reasonableness of the proposed deadlines that will be prescribed by regulation because we don't have a draft of the regulation today, but our members believe it's appropriate to have the deadlines set out in the statute.
Secondly, it also goes without saying that the deadlines have to be reasonable. As practitioners who will have to live with these deadlines, it's our view that in certain circumstances, as currently drafted, Bill 76 sets out unreasonable deadlines. For example, the deadline requiring a proponent to respond to deficiencies that may be articulated by the ministry within seven days, in our view, is insufficient.
Likewise, if the ministry has provided its list of deficiencies only 14 days before the end of the review process, which is required by the bill, and if the proponent is able to get a response back within seven days, the ministry would then be stuck with only seven days to consider the response to the deficiencies, which in our view is equally unfair to the ministry as it would be to a proponent. What we've suggested, for example, is increasing that time to 30 days, which in our view is more reasonable.
Finally on deadlines, it's our view that there have to be consequences for failing to meet deadlines: accountability. The board has included reference to this in its rules. In our view, without consequences that follow the failure to meet a deadline, indeed the deadlines will not likely be met and will not have any force to make the process more efficient.
The kinds of consequences that have been proposed by several of our members are consequences that are known in law and are used in various proceedings; for example, cost consequences, that if someone doesn't meet a deadline, there may be a cost consequence applied to them. They may have to pay costs that are incurred by the parties who have suffered prejudice as a result of the failure to meet the deadline.
Further, it may be that in certain circumstances, if the ministry is unable to provide a response, that silence may indicate that the ministry is content with what has been submitted and the process will move along. I can tell you there is not unanimity or consensus in our group on that.
We hopefully may even have more types of consequences available for you in our final submission. These are a few that we've had to date.
Ms Clairman: Now we'll move on to terms of reference. Again, we are in support of the requirement to submit proposed terms of reference early in the process. We think this will make an effective replacement of the current statute, with its requirement to have the environmental assessment accepted prior to it being approved.
We're hopeful that these terms of reference are going to provide all the parties with a guide that's early enough in the process to guide the entire EA process. But because this can be so important, and it is going to come up front, we have a recommendation that the terms of reference be considered at all stages of the environmental assessment process, including the public consultation stages, very early.
We also think the government should consider adding a public consultation requirement to section 6 of the bill, the terms of reference section, and that public consultation could assist the minister in making her decision on the approval or rejection of the proposed terms of reference.
Finally, we also would recommend that the minister's approval or rejection of the proposed terms of reference be given with written reasons, provide all the parties with the explanation for why those terms of reference were accepted or rejected.
Further, we notice in the bill that the board and the minister, in their consideration of an application, are required to consider the terms of reference, but they're not bound by these terms of reference. There's a concern among our members that if the minister and the board, in making their decision, are not bound by the terms of reference, there could be a decision against a proponent, for example, because that proponent may have failed to consider an issue, even though that issue was not in the terms of reference.
In our view, the minister and the board should not simply be required to consider the terms of reference in making their decision, but should be bound by those terms of reference and of course there should be the flexibility to go back and make changes to the terms of reference in the event that new material information has come forward that require those terms of reference to be changed. Again, in the event that the terms of reference do need to be changed, public consultation should be part of the process to make those changes.
To sum up, we think that the board and the minister should be bound by the terms of reference.
One more point on the terms of reference: There is some confusion in the bill as to whether the terms of reference can be used to scope out what we currently know as the subsection 5(3) requirements, the substance of what's required in the environmental assessment, which is subsection 6.2(2) of the new bill. For example, is it possible to scope out alternatives to the undertaking, alternative methods from your environmental assessment using terms of reference?
This is something that's not clear from the bill and some of our members are concerned that the terms of reference may be used to avoid certain requirements under the current subsection 5(3). Some of our members would suggest that they would like to see the ability to scope out certain parts of subsection 5(3) in the event that there are circumstances which would indicate that those requirements need not be met. I'm not going to put forth a recommendation on this point as there is some disagreement among our members. But this is a concern that really should be clarified in the bill.
I'd now like to move on to public consultation. We support the explicit inclusion of public consultation requirements in the bill. There are some improvements that we think, and our members have expressed their views, that these public consultation requirements should be clarified. For example, the definition of "persons as may be interested" -- in other words, those persons who are to be consulted -- there's uncertainty in the bill as to who should be consulted in the EA process. It's the view of our members that there needs to be some clarity, some definition on the interested persons.
Further, the issue of funding has not been addressed in the bill and with the Intervenor Funding Project Act expired, there is quite a bit of uncertainty as to how requests for funding are to be handled. Everyone, proponents, intervenors, they all need clarity on the issue of funding and there are concerns that if a proponent makes decisions on funding, whether those be to fund or not to fund, they may be criticized in the end of their process for perhaps failing to fully consult because they did not provide adequate funding. Even though there's no legislative requirement at this point to provide funding, we need clarity on whether it's the case that proponents should be funding participant funding early or intervenor funding.
We may have trouble achieving consensus on this point, but we do need clarity on the issue of funding. Some of our members have suggested including a funding requirement right in the bill; others have suggested perhaps a guideline on funding. In any event, one idea was that the government consider establishing a task force to address these important issues of interested persons and of funding that would take into account the views of all stakeholders.
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Mr Griffiths: If I can address the fourth issue, which involves mediation, we certainly support the concept of mediation. It's in keeping with the times. I think it's interesting to note that recently the rules of professional conduct for lawyers were amended to add the following clause: "The lawyer should consider the appropriateness of alternative dispute resolution to the resolution of issues in every case, and if appropriate, the lawyer should inform his or her client of ADR options, and if so instructed, take steps to pursue those options."
It seems to us that this is what is happening in the rest of the world, and in keeping with the times, it makes sense that there be some form of alternative dispute resolution mechanism, some mediation process, within the environmental process.
It has already existed to some extent. I participated in one hearing, for example, where we took a board member aside, and to his credit, he allowed himself to be used, if I can put it that way, as a mediator in a sense. It wasn't a formal process, but it was done in order to try to resolve some issues between the parties and try to get the parties to form some consensus on some of the concerns. Even though ultimately that wasn't successful, it was, in my view, a very good attempt by the board to offer an alternative to what can be quite adversarial procedures that go on in a hearing.
In our view, mediation can especially be helpful if there is a scoping of issues. The parties can get together and try, if they can, to identify the issues that must be resolved at a hearing, if indeed a hearing is required.
Some of our members -- and we haven't heard from all of our members on this point -- have suggested quite strongly in fact that the mediation process itself should be confidential. It is essential, in order for the parties to have meaningful discussions and to have full and frank discussions, that the content of what goes on in the mediation process be kept confidential and that there be consequences for anyone who discloses matters that are raised and discussed in the mediation process, consequences such as costs or even, members have suggested, contempt proceedings. It is very important that these matters be kept between the parties at the mediation stage. The public process would of course be all other processes involved under the act.
In summary, those are four of the important issues to our members that we have had discussion about, that we've received comments about. We will have further comments, I'm sure, in discussion that we will provide to you in the future when we have the final submission. We welcome questions on any of the points or anything else that you have.
The Chair: We begin the questioning with Mr Gravelle and we have four minutes per caucus.
Mr Michael Gravelle (Port Arthur): Thank you very much for your presentation. What I'd like to focus on, if I can, at the beginning -- we haven't got a lot of time, obviously -- you clearly make reference to the need for public consultation. You make reference specifically to the whole question of intervenor funding. If I may say so, without being the least bit rude, you seem to be hedging a tad in the sense that you're saying, "Gee, unless there is funding, it might be likely or possible that people won't have the ability to be part of the consultation process, which could lead to, literally, a decision not being fairly brought down, because people haven't been able to be fully consulted."
I guess I'd like to try to pin you down a bit more if I could. Are you saying that you feel intervenor funding should be provided to those who are interested? I know you tie it into the whole concept of the interested party, which is I think a good way of doing it. The fact is, we need to define the whole level of interest. Anyway, I think it's a really important point and I appreciate your bringing it up, but I did feel you were walking a bit of a tightrope there.
Mr Griffiths: Thank you for the question. This will be like pinning Jell-O to the wall. We have 20 members who probably have 21 different views on this issue. All I can say to you, to add hopefully some certainty or some clarification to what we're saying, is that it appears the two or three main views are that, on the one hand, there should not be intervenor funding, that parties should come forward if they have concerns and intervene and accept the normal cost consequences, the cost rules that are available in other proceedings in Ontario. That is one view.
I would suggest the other view is that we have to have intervenor funding and it has to be in the act in order to ensure that interested persons can participate fully. Otherwise you cannot have an effective public process without providing a certain amount of funds.
I would also suggest that another view, which may come from a proponent's side, if I can call it that, is that there has to be some clarification. It's not good enough just to say there'll be no funding but then find out later that the board actually takes that into account when a decision is made.
I think what we're looking for is that we're going to try to put forward three, maybe four fundamental views to you and hopefully the politicians will do what politicians do best, and that is make decisions and take either one of those views or something in between. But I think the one thing we all agree on is that there has to be some clarification and some certainty from among the different views.
Mr Gravelle: You make a really interesting point -- certainly in my time on the committee, it hasn't quite come up in that way -- which is that unless you do allow the opportunity for real, full public consultation, you run the risk of that process not being fairly done. Therefore you can't make the case that a full public consultation has taken place, which does speak to the fact that intervenor funding may be needed. Obviously there are various groups who are going to be affected by the bill who just may not have the funds, and one can't be critical of them for not having the funds. This is an issue that comes up, obviously, regularly. I've maintained that in order to have that full fairness, you need the funding, and I appreciate your being careful on the issue.
The question of deadlines: I think you make quite specific reference to how you would change the deadlines. There's a sense of agreement with the process being speeded up, I guess is what you're saying. On the other hand, you think the way it's in the bill right now is too speeded up. Is that a fair way of putting it in terms of the time required? What are your thoughts? Is this a bill where they're trying very hard just to make things happen more quickly, which puts at risk the whole process itself?
Mr Griffiths: There's a perception, we believe, and I think it's a reality in many cases, that these cases just take too long. In a Star or Globe editorial yesterday, they talked about Metro's potential 10-year process to find waste management decisions, and that is out there. There are cases that have just gone on too long.
Our view is that you don't take a potential 10-year process, have concerns about that and turn it into a seven-day process. What we expect is that if we have reasonable deadlines that can be met, that can be relied on and that people, if they don't meet them, can fairly be criticized for not meeting those deadlines, those are the deadlines. Seven days versus 30 days isn't going to cause a lot of flak for any side, I would suggest. But if you get it down too tight, you're going to get people either putting in submissions or recommendations that aren't well-thought-out or they'll come and say, "I only had seven days; I need another two weeks," and then two weeks becomes a month.
Ms Marilyn Churley (Riverdale): I'm going to try to squeeze two questions into this. One is, I suppose, a bit technical. I'm not surprised that you've been having trouble reaching a consensus on this issue. For some lawyers, it may depend on which side they've had the most experience in fighting.
On page 5, you talked about the fact that you're not clear on subsection 6.2(2), and I'm not sure why. I'm not a lawyer, but reading it, it's very clear to me that subsection 6.2(2) reads, "Subject to subsection (3), the environmental assessment must consist of," and then describes what I view as the heart of the EA, and that is alternatives to the undertaking and the site and all of that. But then in subsection 6.2(3) it says very clearly, "The approved terms of reference may provide that the environmental assessment consist of information other than that required by subsection (2)." I can't understand what the confusion is about. It's very clear: Reach the terms of reference and then some of this stuff can be negotiated off the table because this section says it doesn't have to include all that. I wonder where the confusion comes from.
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Ms Clairman: I think the confusion would come from "other than." This is the heart of environmental assessment. The things in section 6.2 that were in subsection 5(3) of the current act are not negotiable. "Other than" means additional things can be considered, but it's not clear whether the things that are in 5(3), or 6.2 now, can be taken off the table, because it says an environmental assessment shall have all those things. That's where the confusion is coming from. If it's additional things, that's what it should say, and if some of those things can be taken off the table than that's what it should say.
Ms Churley: I see. It's interesting that you can read it either way. You're the first ones to suggest it could go that other way. There's real concern from people who want the alternatives included, that this means that. In my view that's what it means and I think in the government's view, that these things can be taken off the table.
My second question is, and you didn't really get into it, about the discretionary powers to the minister, of which there are over 30. There are some now within the existing act, of course, but this really opens up the door for considerably more discretionary powers for the MOEE itself. Do you have any views on that in terms of certainty, clarity, when so much of course could be in each different EA, so much is discretionary?
Mr Griffiths: My colleague may decide to tackle that question but I suggest, unfortunately, in response to your question, that we have not had the opportunity to have sufficient comments from our members to make comment to you on that today. It is an issue we can raise with our members and hopefully give you our comments back in our final submission. But to suggest I could speak for our members today would not be appropriate.
Ms Churley: And you probably have different viewpoints on it anyway.
Mr Griffiths: That's true. Hopefully we can give you one or two viewpoints on it in our final submission, but to even suggest one today I think would be inappropriate for me.
Mr Trevor Pettit (Hamilton Mountain): Thank you for your presentation. I'd like to carry on a little bit relative to the intervenor funding. You indicate on page 5 of your presentation that you support mandatory public consultation. It seems to me that the current IFPA encouraged participation at the tail end only, and over the last couple of weeks we've heard from other deputants that they felt early consultation might have avoided what you may term as late-in-the-process participation and hence additional costs.
My question to you is, with introduction of the early mandatory public consultation along with the terms of reference, do you see these amendments reducing possibly not only the costs of intervenor funding but also the delays that are somewhat caused by, I guess we could call them 11th-hour or late-entry opponents?
Ms Clairman: I'll try that one. I think there'll be improvement with early public consultation and perhaps costs will be reduced, but that doesn't really address the problem of whether parties at that early stage should also receive funding to assist them in their review or their participation in the process. For example, we are aware of processes going on right now where intervenors are coming forward and asking for funding and proponents aren't sure what to do about that. They think, "Perhaps we should provide it because we're not sure whether at the end we'll be told, `Oh, you didn't consult, because you didn't provide it.'" As my colleague said earlier, it's not so much an issue of whether there's funding or whether there isn't funding, because there's quite a bit of disagreement on that point among our members; what everyone agrees on is that all parties want to know whether they're going to get funding and when they're going to get it, and that will just make it easier for everyone.
Mr Pettit: But you do see the early mandatory public involvement as a vehicle to reduce possible intervenor costs.
Ms Clairman: I would think so, but again I'm not speaking for all the members when I say that.
Mr Griffiths: If I could add to that, I think there's likely strong support for that proposition. People have realized over the years, whether it was formal or informal, that the earlier you were able to get involved in the process, the better you were able to find out what their concerns were, deal with them and then move on to the contentious issues. The answer to your question is yes and yes.
Mr Pettit: You see this as a positive improvement to the EA act.
Mr Griffiths: Most of our members agreed with that, and it may be that we can get consensus on that.
Mrs Janet Ecker (Durham West): The confidentiality concern that you flagged around mediation: Where do we draw the line between the need for confidentiality if mediation is to work and having to report on the results of that in a public forum? How do we bridge that gap, because there are two things that need to be answered here: the public reporting process and the need for confidentiality during mediation.
Mr Griffiths: The recommendation we have in our submission today says that the line is clearly drawn, that nothing in the mediation shall be reported publicly without the consent of the parties -- that's to the minister, to the board or any other way publicly, so it's with consent. That has not been completely assessed by all our members, but we may get consensus on this issue. The line is, if there's mediation it must stay within the participants unless all participants agree to have it released.
Mrs Ecker: How does the ministry make the decision? We don't have to announce what the results of the mediation are, right?
Mr Griffiths: No.
Mrs Ecker: Under the process you have to say what the conclusion is in order to move forward with the process, so that means you have to say something about the mediation process, "We've done it and we've concluded," or "The result is," or the announcement coming out of that impacts on the process, does it not?
Mr Griffiths: Yes indeed, but the conclusion would be, "The result of the mediation is that there was no agreement made by the parties and the process will continue," but without revealing any of the actual discussions or disagreements that were made between the parties.
Mrs Ecker: If you've got further comments on that from your members I would be interested in seeing them.
The Chair: Our time has gone by quickly. Thank you very much for coming this morning, Mr Griffiths and Ms Clairman. We appreciate your taking the time, and we look forward to receiving your documents when they're ready.
PHILIP BYER
The Chair: We now call forward Mr Byer from the University of Toronto. Mr Byer, each member has a copy of your document.
Mr Philip Byer: I appreciate this opportunity to speak to you today about the proposed amendments to the Environmental Assessment Act, which is one of Ontario's most important pieces of environmental legislation. I plan to speak for about half my allocated time and leave, I hope, sufficient time for questions that you may have.
By way of background, I was chair of the Environmental Assessment Advisory Committee from 1986 until the committee was terminated last fall. As you may know, this three-person committee was established by the government in 1983 to provide increased public input and independent advice to the Minister of the Environment on matters relating to the Environmental Assessment Act.
During my nine years as chair the committee advised the minister on numerous matters, including whether projects should be subject to the act, policies and guidelines under the EA program, overlaps with other legislation, revisions to class EA and, most importantly, for the purposes here, legislative and administrative reforms to the EA program. Before I continue, I'd like to make clear that I'm speaking only on my own behalf today and not for others who are members of the committee.
In 1991 the committee carried out extensive, province-wide consultations with the public, proponents and government agencies about the entire EA program. We heard a number of significant, legitimate concerns about the lack of government commitment to effective and efficient implementation of the EA act, the length and cost of the EA process, the need for greater direction and certainty, the emphasis on process rather than results, the need for early and effective public involvement and the limited and inconsistent application of the act.
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We also found broad support for the sound principles underlying the EA act: the evaluation of potential environmental effects, consideration of alternatives, the broad definition of the environment, documentation of the assessment, public and government consultation and review, and decision-making by an independent tribunal where warranted.
Our report to the minister, Reforms to the Environmental Assessment Program, contained 96 detailed recommendations for both administrative and legislative changes to address the concerns while maintaining the principles underlying the act. We believe that these recommendations would, as a package, significantly improve environmental assessment in Ontario, both for proponents and the public, by making it more efficient, effective and fair. I have three copies of our report that I would be pleased to leave with you.
As you know, the previous government chose not to amend the act but rather focused on making certain administrative changes. However, administrative changes are not nearly enough to address current weaknesses of the EA process and its implementation. I therefore commend the current government for trying to tackle at least some of the problems through legislative changes and am pleased to see a number of improvements, including some recommended by my committee, EAAC, included in Bill 76, such as the requirement for public consultation, concurrent public and government review of the submitted EA, combining the acceptance and approval decisions, the use of mediation and the establishment of deadlines.
It is regrettable, however, that the government has not used this opportunity to make other changes recommended by the committee that would go a long way towards making the process fairer and more effective; for example, establishing clear legislated criteria, procedures and consultation requirements for decisions such as exemptions and designations, and providing for an assessment of cumulative effects of sets of undertakings rather than the current focus on individual projects.
I would now like to speak directly to what is included in Bill 76. As I mentioned above, the bill includes many important changes. However, details in the bill run counter to the spirit of the government's statement that the revised act will maintain the key elements of EA and that it will result in increased public involvement from the earliest stages. Unless appropriate changes are made, the bill will undermine the effectiveness, fairness and integrity of the EA act. This is made even worse by the lack of funding to assist the public.
I will focus on only four crucial areas: terms of reference, class EAs, powers to refer decisions to bodies other than the EA board, and the delegation of decision-making powers. In addition to these, which I discuss below, I'm attaching a list of other specific changes that should be made. I also hope you will give serious consideration to other submissions that suggest amendments in line with EAAC's recommendations in other areas.
Terms of reference: I fully support the concept of terms of reference that will help focus and direct the attention of the proponent and the 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 of the revised EA process. They set the scope of all that follows.
Under clauses 6(2)(b) and (c) and subsection 6.2(3), the government or the proponent can develop binding terms of reference that ignore necessary elements of an environmental assessment which are set out in subsection 6.2(2), including alternatives and the key elements of the environment set out in the definition in section 1. An example of such scoping was in the previous government's Bill 143, which eliminated consideration of incineration and the export of waste in the EAs for waste disposal in the GTA. You can be assured that most proponents will try to use this section of the act to scope out as much as possible from consideration. Negotiations between the proponent and ministry on these critical scoping issues will be out of sight of the public and will likely cause unanticipated delays in the process.
The bill needs to be amended to ensure that any approved terms of reference are consistent with the intent of subsection 6.2(2) and the full definition of the environment.
The second major problem concerning the terms of reference is that there is no legislated requirement for public consultation during their development, yet the minister's description of Bill 76 states, "Right from the earliest stages of the process, there will be a guarantee of public consultation for all affected parties." I assume the minister is referring to her proposal elsewhere that there would be a brief public review period, perhaps only 14 days, under the Environmental Bill of Rights.
Believing this would be at all meaningful is frankly both naïve and deceptive. It would require your constituents to have access to the computerized EBR registry and to check it almost daily for terms of reference that might affect them. Can you imagine their reaction to being told later in the EA process that important issues are not being considered, they're off the table, because they missed their opportunity to comment on the terms of reference by not checking the registry on a library computer during a brief comment period, which might even be while they are on vacation during the summer? At least the scoping of the GTA landfill EAs under Bill 143 was developed through the open legislative process.
The bill needs to be amended to require meaningful consultation with the potentially interested and affected public during the development of terms of reference under clauses 6(2)(b) and (c). This should include prescribed minimum requirements concerning public notice, a meaningful public review period and reporting to the minister on the matters raised and how they have been addressed.
With respect to class EAs, class EAs have been a very useful and important feature of the EA program to allow for streamlined approvals of numerous and relatively insignificant undertakings. Legislating the use of class EAs helps to clarify their legal basis and subsection 14(2) establishes important contents for class EAs. However, the definition of "class" in section 1 would allow for any undertakings, including landfills, no matter how environmentally significant, to be included under a class EA, and sections 13 and 14 would allow the planning for these undertakings to exclude essential elements of environmental assessment such as the consideration of alternatives.
Subsection 14(2) should be amended to ensure that at the project level the process for choosing the proposed undertaking includes the essential elements of an EA set out in subsection 6.2(2) for individual EAs; in other words, it contains the same essential elements, such as consideration of alternatives. In my view, if this is ensured and there is meaningful public process for bumping up undertakings from the class to an individual EA, then it is less important to restrict what types of undertakings can be covered under a class EA. What is lacking from Bill 76 are assurances that these requirements are in place.
In addition, the issues I raised above about the terms of reference for individual EAs also apply to the terms of reference for class EAs. Therefore, sections 13 and 14 should be amended similarly to the changes recommended for sections 6 and 6.2
With respect to powers to refer decisions, section 11.2 allows for a referral of a matter to "another entity," and then later on in that section, it states "that is authorized under another act to decide such matters." While the act should allow for some flexibility in how decisions are made concerning technical details, this provision is much too open-ended with respect to what or who the entities might be and what matters might be referred. The referral could be to someone in the ministry or to a municipality for essentially all decisions of an EA application. In addition, this could result in a piecemealing of the decisions, where no one body has an overview of the entire application. Furthermore, subsection 11.2(2) allows for the matter to be decided without a hearing even if a hearing would otherwise be required. Together, these changes are not consistent with the minister's important claim that the role of the EA board is being maintained.
Section 11.2 needs to be amended to restrict referrals of only technical details that are a relatively small part of an environmental assessment application and restrict entities, for example, to agencies, boards and commissions of the province that are authorized under other legislation to decide the matters.
Finally, with respect to delegation of powers, one of the most important aspects of the current act is the political accountability for decisions. However, Bill 76 provides the minister with the power to delegate all but the final approval decision to others in the ministry. I fully support the notion that routine decisions that help streamline the process should be made by public servants, but Bill 76 allows for a number of very significant and potentially controversial decisions to be delegated. For example, as written, the bill would allow staff in the ministry to approve terms of reference that scope out important EA elements, to decide whether an application should be sent to the EA board or some other tribunal or entity, to scope these referrals and to set the deadlines for the board. This is way too much power to place in their hands.
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The bill should be amended so that the decision to approve the terms of reference cannot be delegated. However, this change would not be so important if the recommendations above concerning the terms of reference are adopted. Similarly, the power to refer part of a decision to other tribunals or entities should not be delegated without significant restrictions on such referrals as recommended above. Finally, the decision to refer an application to the EA board, scope such referrals and establish board deadlines should only be made by the minister.
All of these problems can be easily addressed through amendments to the bill. I urge you to make them; otherwise, I know that in short order you and your constituents will see that the integrity of the EA act has been undermined.
Thank you again for this opportunity to speak to you today and I'd be pleased to assist in any way to further improve the EA act.
Ms Churley: Thank you, Mr Byer. I know you've had very many years involved in this process and know it inside out, the good, the bad and the ugly; I know there's been some of all. This is a very good presentation and in fact picks up on themes that many community groups and environmental groups and even some proponents, in some cases, of landfills have picked out.
Most people agree the process was too long and cumbersome in places and it's my understanding that a lot of the delays took place at the government review period and that there's now going to be time frames on that. I wanted to ask you, in your view, given the complexities and differences in the kinds of cases that go before a board, is it reasonable to prescribe time frames in regulations that apply to everything in order to get it done on time? I personally support some kind of time frames, but I'm not quite sure of the best way to go about it so that you have the best environmental decisions made, especially with the cutbacks now to the ministry, and the cutting of committees like yours as well, which offered really valuable advice. That's a big concern of mine.
Mr Byer: Thank you for the question. I didn't address that question of deadlines here, but I think it is an important one. Part of the reason I didn't address it is because it will come up through regulations, at least the way the bill is written. Let me address it in two ways, or about two issues here.
First of all, should they be specified in the bill or in regulation? When it comes down to it, I prefer through regulation and the reason for that is to allow for experience to direct us, and regulations are easier to change than legislation. I like deadlines and I think they should be set out in regulation and I think there needs to be significant thought given to what those deadlines are.
With that said, I don't know if we want to deal with what the deadlines should be, but I'm very concerned with the deadlines the minister has indicated in her proposed time lines. I know it says proposed EA approval time lines. I think some of them are way too short for them to be meaningful. I thought the comment by the previous speaker about -- you need to have reasonable deadlines such that people can't come back and say, "Look, there was no point in it," or, "We need an extension." Have something that's reasonable that people can work under. That needs to be looked at in the context that there is no time line for how long the proponent takes. When the committee was dealing with issues, we could see many examples where proponents were taking months and months to deal with things, and then when it gets to the government it's, "Hurry up, hurry up."
I do say that I think there's fault on every side with respect to deadlines. There need to be deadlines, there needs to be clarity about what happens if they're not met, but they need to be reasonable. I'll be here or somewhere when the regulations come before us.
Ms Churley: Great, okay. Coming back to something you did talk about in your document, the process at the beginning, I think by now almost everybody without exception agrees that the public should be included in the setting of the terms of reference.
Mr Byer: I hope so.
Ms Churley: I hope that the government -- I think in my memory only one delegation objected to that. All sides seem to think that makes sense.
What I describe as the heart of the EA, and many others, looking at alternatives, alternatives to the undertaking of the site etc, it's most people's understanding that can be negotiated off the table during the setting of the terms of reference. Can you explain to us briefly why it's important that those elements of EA be kept within the process, that they can't be just easily negotiated off the table?
Mr Byer: There are two aspects here. The heart of EA is the old section 5(3) and new subsection 6.2(2). These are important. Let me give you an example with a landfill. If someone comes forward to you with, and I'll use the example -- there are two key elements there: alternatives and definition of the environment, although the broad definition is in section 1.
Let's take alternatives. If you come before me and say, "You can have this alternative and this one; these are the only two we're looking at," and there are a bunch of others that are reasonable out there but they're not being looked at, they've been scoped off the table for some reason, and you have these alternatives and this one is not good but this one is worse, what you only end up with is this not good one, unless -- one thing we need to be clear on is there's also the other alternative, the third one, which is don't approve it at all, which is the do nothing alternative. It's really going to be hard here to decide between, "Well, it's not great but it's the best we've got versus do nothing."
I just think that we're much better off if we leave on the table -- we need to be reasonable about this -- the reasonable set of alternatives, but they can be scoped. The first issue is allowing them to take off, and the key thing that's maybe lost is the negotiation could be death of this. The government wants to speed up the process, but if you allow negotiation on the scoping up front, particularly out of sight of the public, you've lost this streamlining issue.
Mr R. Gary Stewart (Peterborough): Thank you, sir, for your presentation. I want to go back to the terms of reference. Certainly, the indication in your report is that you want the public to be involved right from the start, and I can certainly appreciate that. But if they are involved right from the start and if the terms of reference are established -- we heard the previous speaker saying the terms of reference should be flexible and should be possibly revisited as you go through the process. In my mind that was one of the reasons the process didn't work under the previous legislation. Do you feel that if the public is involved early or at the start and is involved with the terms of reference from the beginning, those terms of reference should be consistent all the way through the process?
Mr Byer: Do you mean binding on everyone?
Mr Stewart: Yes.
Mr Byer: Yes, but --
Mr Stewart: Do you want to stop there?
Mr Byer: Let me tell you what the problem is. First of all, it needs to be meaningful public consultation, not something on the environmental registry for 14 days or 28 days.
Mr Stewart: No, I'm not talking about that. I'm talking about --
Mr Byer: Talking about meaningful consultation, if there's meaningful consultation they need to be binding, and part of the reason is you need to bind the public in addition to the proponent. We've seen many cases where the public can say, "Well, I don't need to go to this meeting or deal with it because we know we can get a kick at it later on." There needs to be buy-in to these terms early on.
The "but" is if you look on page 7 -- I didn't talk about these; these are proposed other recommendations -- the first one there does say that there will be cases where new information, significant information comes up later on. There needs to be some legislative authority for the minister to amend the terms of reference later on where it's recognized that these are significant.
What I've recommended on my attachment is that section 6 should allow the minister to amend approved terms of reference during the EA process in exceptional or unusual situations where important new information comes forward that would affect the validity of the approved terms of reference. It has to be significant. From a legislative point of view there needs to be an out for the minister, but it's got to be used carefully.
Mr Stewart: Should the public also then be involved with the new information and the possible changes then to it?
Mr Byer: I guess the public could always write to the minister saying: "Listen, we've been part of this process and we think the terms of reference are fundamentally flawed now that we've been part of it. We've participated and now new information has come forward." The terms of reference are set before any environmental studies are done and there's a real problem there.
There is an opportunity under the act -- it doesn't say it explicitly -- for the proponent to come back with new terms of reference. That's a little unclear here, but there is that possibility, that they start again. I think you should look at this question of what happens during the process, once people finally look at the environmental significance and start the EA process, if new information comes up that makes those old original terms of reference really inappropriate. I'd say it's a key area to look at: What can the proponent do, what can the public do, and what can the minister do?
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Mr Doug Galt (Northumberland): Thank you for your presentation. I'd just like to refer to the section you have under delegation of powers, and we've been hearing a few comments about concern of too much political power in this decision-making process. That's been expressed on a few occasions. I guess I'm coming around to the question of you're looking for clarity; that's how I summed up what you were saying. Should that clarity be, in your opinion, developed more in this bill or should it be more in regulations that would be connected to the bill?
Mr Byer: Clarity on the delegation of powers?
Mr Galt: Delegation and how that process would occur with the different --
Mr Byer: I think the bill is fairly clear on what the minister can do and that the delegation can be limited delegation and that it needs to be in writing. My concern is what can be delegated. I don't think the approval of the terms of reference should be delegated, I don't believe the referrals to the EA board should be delegated, and the referrals to tribunals or other entities should not be delegated.
I do say though that if the terms of reference are clarified, if there's public consultation on the terms of reference and if that section 6 makes the terms of reference consistent -- it must be consistent with 6.2(2); in other words, the guts of EA -- then I would leave it with the director and the ministry. Quite frankly, I would be happy with that, but only if those other two changes with respect to terms of reference are made.
Mr Gravelle: Good morning, Mr Byer. I think actually the delegation of powers and the whole question of consultation are both areas I want to get into, but I probably won't have time.
In terms of the public consultation, I think it's interesting what we're hearing, which is that clearly there is an attempt by the government to make the process move more quickly forward for a variety of reasons. There's also an attempt to at least tell the public that they want to have the public involvement process, which is reflected in the title of the bill. But it's almost like they really do want to have it both ways, which is they want public consultation but not too much public consultation because one gets the impression there is a feeling that's what slows it down.
But would you not agree that unless the public consultation aspect is genuine -- and I think many of your amendments speak to that very clearly -- it basically affects the integrity of the whole process, that unless you have the public truly consulted, the process itself is not going to be a process that can be legitimately described as fair?
Mr Byer: I can give you a very clear yes. It affects the integrity of the entire process.
Mr Gravelle: I think that's an important, clear, simple point.
On the delegation of powers, and certainly I know you were not being the least bit critical of those public servants and civil servants who were involved in the process in terms of what they want to do, but if you can just quickly for us once again explain why you think that political accountability is crucial. We're dealing with the issues and projects. Obviously, as you say, there are some matters that do not have political significance but if they're made by a public servant or a civil servant, this could affect the integrity of the process if the minister is not accepting the responsibility for the decision. Do you agree with that as well?
Mr Byer: Absolutely.
The Chair: Mr Byer, thank you kindly for joining us and sharing your views with us. We appreciate that.
PAM WHEATON
The Chair: Our next witness is Pamela Wheaton, the past senior researcher and coordinator of the Environmental Assessment Advisory Committee. Ms Wheaton, that's the Environmental Assessment Advisory Committee of what, of the ministry?
Ms Pam Wheaton: It was an advisory committee of the minister. It's the same one that Dr Byer was chair of.
The Chair: I see, okay.
Ms Wheaton: Good morning, and thank you for the opportunity to speak to you today about this important legislation. My name is Pam Wheaton. I was the senior researcher and coordinator for the Environmental Assessment Advisory Committee for eight years before the committee was disbanded last October.
I'm making this presentation today on behalf of Dr Robert Gibson, who is a professor in the department of environment and resource studies at the University of Waterloo. Dr Gibson has worked in environmental assessment and taught EA-related courses for well over 10 years. He has not only been active in Ontario's EA reform discussions but has also advised other governments on the development of environmental assessment legislation and policies, including those of the federal, Yukon and BC governments. Dr Gibson was a member of the Ontario Environmental Assessment Advisory Committee also, from 1985 to 1994. As he is unable to be here today, he asked me to make this presentation on his behalf on Bill 76, the Environmental Assessment and Consultation Improvement Act, 1996.
I'd like to begin with an overview. The explanatory materials accompanying the release of Bill 76 include three very welcome messages which are largely contradicted by the actual substance of the bill.
The first welcome assertion is the reaffirmation of a commitment to the core of the existing law. The minister said in her June 13 statement to the Legislature, "A full environmental assessment will still be required and the key elements of the environmental assessment are maintained, including the broad definition of the environment, the examination of alternatives, the role of the Environmental Assessment Board as an independent decision-maker." These are indeed the key elements of effective EA, and the government is right to recognize and preserve them.
The second positive assertion is the expressed intention that the amendments should (1) guarantee early public consultation and issue identification and resolution in the process, (2) provide early and clear direction and improve timeliness, (3) reduce duplication, and more generally (4) strengthen environmental assessment. These are worthy objectives. While they do not exhaust the list of areas deserving attention in EA reform, they would be important components of a comprehensive reform package.
Finally, in the covering press release the minister is quoted asserting that the amendments would make changes that "have been recommended over the years to previous governments." The reference here is presumably to the reforms proposed by the Environmental Assessment Advisory Committee at the end of a lengthy public process initiated in large part by the Canadian Environmental Law Research Foundation's 1986 report on environmental assessment in Ontario and including the work of the government's EA program improvement project. As coauthor of both the CELRF and EAAC documents, Dr Gibson is pleased that the present minister wishes to move on these recommendations.
Unfortunately, the provisions set out in the text of the bill are sharply at odds with the explanatory materials on each of these three matters. The problem is explored in the specific comments below.
First, the terms of reference mechanism: The bill introduces a requirement that proponents prepare and obtain approval for terms of reference that are to govern the preparation of the EA for the undertaking. Such a mechanism could provide for early and open clarification of EA requirements, minimizing confusion and conflict and improving the efficiency and effectiveness of the process. However, the current provisions in Bill 76 undermine this potential by (1) encouraging avoidance of the key elements of EA, (2) introducing a wide-open and inevitably inefficient case-by-case negotiated process, and (3) failing to ensure effective involvement of those potentially affected and concerned.
Clause 6(2)(c), subsection 6.2(3), clause 13.1(2)(c) and subsection 14(3) invite proponents to propose terms of reference that do not satisfy the standard requirements of the act. With these provisions, the terms of reference become a mechanism for avoiding full assessment. Proponents may, for example, seek and receive approval for terms of reference that narrow the definition of "environment" and eliminate the examination of alternatives.
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The unrestricted opening for terms of reference of any kind will increase substantially the potential range of variation from common expectations in EA. Unavoidably, this will increase rather than minimize uncertainty in the EA process. Everything will be open to negotiation. Many terms of reference deliberations and decisions will be politically sensitive as well as administratively complex. In so far as important parties will not be at the table, politically astute decision-makers will have to take readings of possible reactions.
In so far as most proponents are in the public sector, internal differences of analyses and priorities will have to be resolved through interministerial and provincial-municipal discussion. Such deliberations in a case-by-case process will add greatly to the burdens of the EA branch and the minister's office. It is difficult to see how the effects will not undermine commitments to timely and yet competent decision-making.
Despite the claims in the explanatory materials, the current bill does not ensure effective early public consultation in the development of terms of reference proposals or even provide a legislated guarantee of early public notice of submitted terms of reference proposals, nor is there any specification of what must be done to satisfy the vague requirement to consult. Introducing a terms of reference process that invites avoidance of key elements of EA and failing to ensure effective early involvement by potentially concerned parties is a recipe for conflict and delay.
Recommendation: To provide for early and open clarification of requirements without sacrificing the key elements of EA, the terms of reference provisions would have to specify what must be included in terms of reference proposals under these subsections and make clear that the terms of reference are to clarify how, not whether, the key elements of EA are to be satisfied.
This could be accomplished by eliminating clause 6(2)(c) and the similar or associated provisions in subsection 6.2(3), clause 13.1(2)(c) and subsection 14(3) and amending clause 6(2)(a) to require that a proposed terms of reference "indicate how the environmental assessment will be prepared in accordance with requirements set out in section 6.1 and subsection 6.2(2)."
Second, public consultation: The bill's title suggests that improving public consultation is the central purpose of the new law. The covering documentation stresses, more specifically, that early public access "will be guaranteed to ensure proponents consult all affected parties from the earliest stages of the process." However, the bill's only significant new provision on public consultation is section 6.1, which says, "When preparing an environmental assessment, the proponent shall consult about the undertaking with such persons as may be interested."
This obligation, which appears to apply only after the terms of reference have been set, does not cover the earliest stages of the process. Because "consult" is not defined, there is no guarantee of a meaningful public role in assessment deliberations. The requirement to consult "about the undertaking" seems open to narrow interpretation that, for example, would not cover alternatives to the undertaking.
In addition, the current bill fails utterly to provide for early, or even late, public consultation on other important EA process decision matters. These include decisions on exemptions, section 3.2; bump-ups, section 16; designation requests; and on the development of new regulations and policy guidelines, section 27.1, under the act.
Recommendation: Add provisions ensuring timely public notice of and opportunity for comment in deliberations on terms of reference proposals, on exemption, bump-up and designation requests, and on the development of new regulations and policy guidelines under the act.
Third, harmonization: The bill provides in section 3.1 for harmonization with requirements of other jurisdictions, presumably to avoid unnecessary duplication. However, unless there is a clear requirement to ensure that the harmonized process requirements are at least equivalent to those of Ontario, the result will be a weakening of the EA process that is contrary to the government's stated intention. Providing unguided ministerial discretion in considering equivalency, clause 3.1(1)(b), and combining this with an unrestricted authority to waive requirements of the Ontario act, subsections 3.1(2) and (3), is an invitation to harmonization towards the minimum.
Moreover, complaints in Ontario have more often centred on duplication and overlap with other Ontario legislation, such as the Planning Act, than with the EA laws of other jurisdictions. This appears to be addressed in the bill only in a new discretionary ministerial power to refer any decision or part of a decision to another tribunal or another entity that is "authorized under another act to decide such matters," section 11.2. For these cases, no criteria are specified. Equivalency is not mentioned.
Recommendation: Sections 3.1 and 11.2 should be rewritten to specify that adjustments to permit harmonization or referral are to be permitted only where the harmonized or substituted process is at least equivalent to the Ontario EA process and where the key elements of the Ontario EA process are maintained. The specified elements must include the broad definition of the environment; the requirements to address purpose, alternatives to, and alternative methods; the provisions for public involvement and for rigorous public hearings before an independent panel; and the ability to impose binding terms and conditions.
Concerning referrals of parts of decisions, section 11.2 should be amended to specify that partial referrals may be permitted only where the referral of this part of the decision does not conflict with the maintenance of key elements of the Ontario EA process, including those listed above for the case in question.
Fourth, class assessments and sectoral guidance: Class assessments have provided a useful means of ensuring more open and environmentally enlightened planning of undertakings that do not need the full review and hearing process but are too significant to be exempted from EA requirements. The bill provides a firmer legislative base for the class assessment version of the process. However, it does so in a way that would undermine the value of class assessments and allow them to be used in inappropriate circumstances.
Contrary to the government's expressed commitment to retaining the key elements of EA, the bill's list of required contents of a class environmental assessment, subsection 14(2), does not appear to require identification and consideration of alternatives. Moreover, the bill fails to specify any essential requirements of the planning and approval processes established under class assessments, such as how purposes and alternatives are to be addressed, what documentation is to be provided, what public comment and other consultation openings must be provided. Since the vast majority of EA work in Ontario is done under class assessments, this is an opening for a major gutting of key provisions.
The current bill also puts no limit on what may be considered a class for the purposes of using the class assessment option, subsection 1(2). EAAC, recognizing the lessons of experience in, for example, the interminable process of trying to apply the class EA process to forest management policy and planning, which involved over a decade before an EA was submitted, recommended strongly against the approach taken in the bill.
Various commentators, including EAAC, have argued for class and sectoral clarification of EA obligations. In response, the current bill includes a mechanism for prescribing terms of reference for certain types of undertakings, clause 6(2)(b). Here again, however, the idea is undermined by the failure to specify how these terms of reference are to be developed or to ensure effective public consultation.
EAAC saw broader clarification documents for sectors or other types of undertakings as equivalent in importance to class assessments. Indeed, EAAC proposed use of combined sectoral and class assessments to provide for both overall, generic evaluation -- of alternatives and impact concerns -- for specified types of undertakings and specification of streamlined planning and approval processes for undertakings of the types covered here. The intended result would be more effective concentration of EA attention on larger issues, as well as clarification and simplification of requirements for approval of individual undertakings. The generic terms of reference mechanism in the present bill does not do this.
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Recommendation: Adopt the EAAC recommendations on class and sectoral/class assessments. Amend the bill to specify a public process for developing and approving generic sectoral terms of reference as anticipated in clause 6(2)(b).
I would refer you to the EAAC report that Dr Byer just submitted. Recommendations concerning this matter are numbers 43 to 47 and 53 to 63.
Fifth, new discretionary powers for the minister and public servants: The bill adds many broad openings for the exercise of ministerial discretion, such as to determine what exemptions from key EA requirements will be allowed in terms of reference, subsection 6.2(3), to refuse to refer a matter to the board for hearings, section 9.1, and to limit what will be considered in cases referred to the board, subsection 9(3). It also anticipates that the responsibility for making many of these discretionary decisions will be delegated to public servants in the Ministry of Environment and Energy, subsection 11(2), and that parts of decisions may be delegated to the EA board or "another tribunal or another entity," section 11.2. Presumably these other entities could include senior officials of proponent ministries.
The usual argument for ministerial discretion provisions is to enhance political (elected official) control over the assessment process. The reality is that such provisions typically enhance the effective power of public servants, since no minister has the time to become familiar with the substance of more than a handful of these discretionary decisions. The anticipated delegation of these decisions confirms that enhanced elected authority is not expected here.
The question then is whether giving more broad discretion to ministry officials and other public servants, possibly including proponents, will add to effectiveness or fairness or certainty or efficiency in the process. For a host of reasons, the most plausible answer is no. As noted above, the breadth of the openings will inevitably increase the contentiousness of the issues to be decided.
EA decision-making even at the ministerial level and within the relatively narrow range of discretion offered in the existing act has always involved difficult political pressures from within and outside government. Throughout the history of Ontario's EA process, dealing with these pressures has always been the main source of delay in decision-making. Broadening and delegating the discretionary openings will certainly add to the pressures and complexities of responding to them.
The recent Canadian Environmental Assessment Act was also full of discretionary openings when first drafted and introduced. Most of the provisions were eliminated in committee review by the legislators. Ontario's legislators would be well advised to take similar action on the present bill.
Recommendation: Amend the bill to reduce discretionary openings to the minimum necessary for applying the key elements of the process in appropriately different ways to different kinds of undertakings. Particularly worrisome discretionary provisions to be removed from, or sharply constrained in, the present bill include: section 3.1 concerning dispensing with Ontario EA requirements for the purposes of harmonization; section 3.2 concerning the exemptions of undertakings, proponents and classes of undertakings and proponents; subsection 6(3) in combination with clause 6(2)(c), clause 13.1(2)(c) and subsection 14(3), concerning terms of reference that do not cover basic EA requirements; subsection 9(3) concerning limiting the scope of hearings; section 9.1 concerning refusal to refer an application to the board; section 11.2 concerning delegation of parts of decisions; section 11.3 concerning amendment of decisions; section 27.1 concerning policy guidelines; and subsection 11(2) concerning delegation of authority to officials of the ministry.
A final observation: The current bill follows a long, if not entirely honourable, tradition. Public servants charged with drafting new laws have often written them to enhance their authority to exercise minimally restricted flexibility in the application of legal requirements.
Some flexibility is necessary since the laws have to apply to a range of cases and circumstances. But more flexibility typically means less certainty and less administrative efficiency, or it is a cover for an intent not to apply the law, which can be certain and efficient, but amounts to a legislated fraud.
The lesson of equally long experience is that clarity and flexibility need to be pursued together in open processes with maximum involvement of the affected parties. Efficiencies are to be gained chiefly through anticipation, integration and, where appropriate, devolution.
In EA, the main positive initiatives to reconcile clarity and flexibility stress anticipatory strategic or sectoral assessments; integration of planning, assessment and regulatory processes and requirements, covering various sectors, receptors etc; and greater emphasis on local involvement, such as in effects monitoring. It is disappointing to find no hint of these things in the present bill.
On behalf of Dr Gibson, I'd like to thank you again for the opportunity to speak to you today.
Mr Galt: Thank you for your presentation and thoughtful analysis. I'd like to refer to pages 2 and 3, at the beginning. Let me assure you the intent is for full environmental assessment, and it would appear I'm hearing from you concerns relating to the upfront consultation and the concerns of the public not fitting into the terms of reference. Once that's in there, would you feel more comfortable then?
We don't want to be going back and reinventing the wheel. If something's established and working, there's no point in carrying out a further environmental assessment on those activities. It's the activities that are not proven that we want to be looking at. If all of those are brought forward by the general public, would you then be more comfortable with the flow of this in the full environmental assessment?
Ms Wheaton: In addition to guaranteeing public consultation at the development of the terms of reference, there'd have to be the other matters regarding the substance of the terms of reference, the actual inclusion of the key EA elements, that would have to be changed as well in order to ensure that those aren't dropped off the table through the scoping unless there was full agreement.
Mrs Julia Munro (Durham-York): Thank you for your presentation. My question really relates to much the same issue, but I wanted to come at this question of the terms of reference and the development of them from a slightly different angle. I just wondered whether or not you see an opportunity -- if there was agreement among the members, let's assume there's a public representation at that point -- to take those particular areas, that is, focus more narrowly on terms of reference. Do you see that as a fitting way to deal with streamlining the whole process?
Ms Wheaton: You mean if people actually agreed to take off one of the key elements of EA?
Mrs Munro: Yes. In the hearings so far, one dealt with rail haul, and the idea whether you would have to put down truck transportation once again when there's so much information that supports rail haul over truck transportation, as a for instance. Do you see that as fitting the concerns you have raised?
Ms Wheaton: On one level, I think that's a possibility. I guess you run the danger of missing out on something that might come up later in the process. If all of the affected public was at the table, which is difficult to achieve, but if that was the case, then there'd be some basis for getting or buying in on the terms of reference, yes.
Mr Gravelle: Good morning. Thank you very much for your presentation. Certainly it's encouraging to hear Dr Galt make some reference to the fact that they are actually hearing what people are saying at the presentations in the sense of public consultation. I think what he was saying was that indeed there may be some amendments from their side that we can look forward to which will recognize that despite the fact that the material that goes out publicizing the bill talks about public consultation, the actual details in the bill itself just do not reflect that. It's very important that so many groups, including yourselves, have made that really clear because public consultation obviously is crucial. It's got to be real.
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Quickly, because we have very little time, you make reference to section 3 in terms of the exemptions that are possible. I just want to let you know that we've heard reference a couple of times in the last couple of days to the Ministry of Natural Resources perhaps, or in fact very likely, applying for an exemption once this bill is legislation to be exempted from the class environmental assessment parent documents. In your work with the group have you heard anything about this particular exemption, and if so, what would the ramifications of that mean if it happened?
Ms Wheaton: An exemption from a class assessment?
Mr Gravelle: Yes.
Ms Wheaton: I don't know that I've ever heard of that occurring in a direct way. It's more an exemption from an actual specific activity or project. There need to be criteria for exemptions and there needs to be a set of procedures set out that requires public notice and an opportunity for public comment, and about how the exemptions would be dealt with, and some fairly restrictive criteria, and that sets up a process for dealing with exemptions in a more meaningful way.
Mr Gravelle: We've had reference to that a couple of times. I was curious whether or not you had heard anything about that specifically, but obviously not.
Ms Wheaton: No.
Ms Churley: Thank you very much for your presentation. If you would, I'd appreciate it if you would thank Dr Gibson for his very excellent submission to us today. We're sorry he couldn't make it, but we're glad to see you.
There's not enough time to get into substantive questions, so I want to come back to Dr Galt's question around a full EA and the fact that it still seems to me, after all of the presentations and explanations about why it's so important throughout the setting of the terms of reference, particularly if the public isn't involved, that the key elements of the EA are not negotiable. If they are, I say again and again, the Premier's promise about having guaranteed full EA for a landfill will have been broken. I want to clarify with you once again, for Dr Galt's assistance, how important that key element is to keeping the promise of full EA if that is not amended.
Ms Wheaton: I think it's absolutely essential that the key elements of EA are part of this legislation because without them you don't get good decision-making on the environment, and that is really the ultimate objective here. If you don't include particularly a consideration of alternatives, you miss an opportunity to be making good decisions.
Ms Churley: What I'm trying to express here is that Dr Galt in particular, but sometimes other members of the government, continue to say, "I can assure you that this bill will guarantee full EA," and that's not the case -- and it's been pointed out time and time again -- unless that section is amended. Either they're not getting it or it's a misrepresentation of what this bill is all about because it's very clear that if those can be negotiated off the table, it is not a full EA. We have to accept that as a committee and tell the truth about it.
The Chair: Ms Wheaton, thank you kindly for presenting this paper this morning. We appreciate it.
ONTARIO FEDERATION OF AGRICULTURE
The Chair: Our final presenters for this morning are from the Ontario Federation of Agriculture.
Mr Ken Kelly: The OFA is pleased to be able to come and spend some time with the standing committee on social development this morning. I'd like to introduce myself. My name is Ken Kelly and I'm vice-president of the OFA. With me are Paul Verkley, chairman of our environment committee, and Mary Lou Garr, a very active member of our environment committee.
With your permission, I would ask that we enter our brief in the record. That will absolve us from the need of reading it all the way through. I'm going to try and make some comments in about 10 minutes or less and then get into some questions the answers to which I will heavily rely on my associates for.
It's appropriate that the Ontario Federation of Agriculture provide comments on the proposed amendments to the Environmental Assessment Act, given that the farmers of Ontario, perhaps more than any other sector of our society, depend directly on soil, air and water resources to earn their livelihood. Farmers have a vested interest in ensuring that the integrity of the earth's physical environment is protected.
You can see on page 2 of our submission that we understand that the proposed amendments and changes focus on five general focuses on the Environmental Assessment Act. We support having the proponents prepare terms of reference, but it's incumbent, it's absolutely necessary, that the government and the public thoroughly review the terms of reference document to ensure that the proposed environment assessment is of sufficient rigour that all potential environmental impacts will be identified. Approved terms of reference that are inadequate will not provide useful direction to the proponent, nor will they safeguard our natural environment.
We strongly support guaranteed public consultation. However, for the public to be effective in commenting, the public must have access to funding which will allow them to critically evaluate the specific terms of reference under consideration. We recommend that proponents be required under regulation to provide some form of participant funding to individuals and groups that can demonstrate their capability to thoroughly evaluate a terms of reference document. Quite frankly, public comment on the environmental assessment document itself will need to be informed if it's to be useful.
Perhaps our greatest concerns are with the proposed time frames. We firmly believe that a quicker decision is not necessarily a better decision. We're particularly concerned that these collapsed time frames are being introduced at a time when government staff levels are being reduced. We question how we can expect fewer people to process complex environmental assessments more quickly and do an adequate job of those assessments.
We believe the original purpose of the Environmental Assessment Act was to remove environmental decision-making from the political arena, and while we accept that the Minister of Environment and Energy is ultimately responsible for ensuring that the Environmental Assessment Act is properly administered, we have considerable difficulty with the minister of the day defining, on a project-by-project basis, the significant environmental issues that are to be considered by the Environmental Assessment Board. By definition, there is an element of discovery associated with a hearing, and that element will be completely lost if the hearing process is too narrowly focused.
Regarding the concept of harmonization, we want to caution that the government's goal should be to protect the environment, not to ensure that proponents receive project approval with a minimum of effort.
In conclusion, we believe that a well-administered environmental assessment process is absolutely critical if our physical environment is to be protected for present and future generations. We believe it may be in the best interests of farmers as well to investigate the possibility of having the OFA serve as a commenting agency on rural project proposals requiring an environmental assessment.
With that we'll just open it for questions and we'll do our best to answer whatever questions we're asked.
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Mr Dalton McGuinty (Ottawa South): Thank you very much for your presentation, all of you. It's an extremely enlightened presentation. There's an important lesson to be learned here by all of us, but particularly the government members, and I say this with all due respect. We're always trying to compartmentalize, and it's easy to be dismissive and say the only people who have anything to say against this bill are those who have an environmentalist bent of the tree-hugging variety and those kinds of things.
But you, on behalf of the Ontario Federation of Agriculture, are telling us that it's important to have public participation, it's important to have intervenor funding, it's important for the public to lend shape to the terms of reference -- you stop me if I'm mistaken here -- and that timely decisions are important but let's consider the downside connected with that. If we're dealing with matters of substantial complexity, to be hamstrung by a deadline may not make sense. Furthermore, how are we going to respect those deadlines at a time when staffing and funding to the ministry is being reduced?
You're telling us, and I think quite rightly, that there's an element of discovery connected with hearings and that, try as we might, sometimes new things crop up at the time of a hearing and we ought to maintain sufficient flexibility to deal with that and treat the new information. Finally, you tell us that harmonization is fundamentally sound.
I want to probe a little bit further in that connection. One of my concerns is that Bill 76 as it stands right now permits harmonization to take place. Furthermore, there's no obligation on the part of the minister to ensure that our standards, if they are the higher standards, are those that are to be respected when it comes to an environmental assessment. Would you not agree that if we've got to harmonize -- no doubt we want to relieve proponents from the obligation of having to go through some kind of a duplication in process which is expensive and time-consuming, but if we have the more rigorous standards, then should there not be an obligation on the part of the minister to insist that our standards have paramountcy?
Mr Paul Verkley: I think we're all interested on an environmental protection basis, but I think in a lot of the environmental assessments we see the standards are ultimately the goals of the people objecting to any given proposal. It seems to be a very high standard, and maybe unrealistically high, the expectations of what impact society will allow. I think this has slowed down the process to a point where it simply doesn't function any more.
We've had a process in place that now puts into accessibility something that can delay on an ongoing basis, and it gets away from the original concept of what do we do as a society to make sure that projects are going to be friendly to the environment, as friendly as they can be? Any amount of standards is always going to be questioned. If we say it's a higher standard, interpreted by whom? Simply putting on more restrictions -- we, I think, have lost sight in a lot of cases of the end result of any specific proposal and why it was generated in the first place. Was it truly necessary?
If there is a general consensus that it's a direction we need to go in, we certainly still end up with a process that doesn't become solution-oriented and certainly makes no assumption that we're allowed to do some negative things to the environment and that may be the best way to handle the problem. We end up running around regulations -- whose is the tighter regulation, whose is the better for the environment -- and it becomes that political nightmare of bouncing around who's cleaner and who's better and who's allowed this and who's allowed that as opposed to, have we actually done anything to deal with the problem at hand? This is why we'd be somewhat reluctant to say that we always will stand on the side of the one that has the most restrictions.
Mr McGuinty: What prompted Ontario's farmers to take an interest in this bill, come forward here today and register their concerns with Bill 76?
Mr Verkley: Probably because we own most of the property that most of these projects are proposed at. We're looking at dump sites. We see very few cases in EA where there are proposals to have a dump site within an urban municipality's boundaries. Transportation corridors, service corridors, pipelines and hydro lines all tend to come through agricultural areas. As farmers, we deal with impact on the environment. It doesn't seem to be a very fair system.
We're here also because a lot of our members are part of the smaller municipalities that are actually trying to open up dump sites. It's taxpayers' money that's being spun around, and if there's one common complaint -- the reason we're here -- it's that we're not in favour of the $50 million, $60 million, $100 million that has been spent over the last five years with absolutely no result except for upsetting communities, putting unrealistic expectations on some groups and individuals and having a very negative impact on rural communities. The whole process is badly flawed.
I think that's one of the reasons we're looking for solutions, and we'd be the first ones to say that there are not a whole lot of easy ones out there. There certainly isn't a consensus within the farming community that says, "We will allow this much," or "We will allow this type of waste management," or "We will allow this kind of corridor." Certainly there's frustration that the system is not working, and part of that is the expectations of the system.
Ms Churley: It sounded interesting and not surprising that you mentioned the frustrations you had with site selection under our government. I think it throws into sharp reality how difficult it is to deal with waste. For every government for a long time now it's been one of the more controversial, difficult issues to deal with.
The interesting thing about some of the changes this government is making to the bill is that it makes it even harder. I know it was a very frustrating experience for many people but at least, as was just said by Mr Byer, who is past chair of the Environmental Assessment Advisory Committee, under Bill 143 it was developed through the open legislative process. The problem with this bill, as you have rightly pointed out, is that you're not going to have even the same say you had during that process. You've pointed that out in your documentation.
I come back to the terms of reference. There's a real problem with that now in that it's not prescribed in the bill that the public be involved in that. It's an interesting problem because it's the most important part, in a way. It's possible, as I've said many times and as others have said, that key elements of the act can be negotiated off the table during that process, yet it happens up front before we really know what we're dealing with. It's just the very beginning of the process, but the studies aren't done, new information can come up later and the ability to perhaps change those terms of reference would be crucial. It's a major element of the new bill that's really flawed in terms of public participation and in terms of your say in how possibly, at the end of the day, the EA is scoped.
Could you comment on the implications for some of your groups? Supposing you find out, if you're lucky enough to look and somebody sees on the Environmental Bill of Rights registry, "Oops, there are terms of reference going on here" -- the implications for a farmer in his or her life down the road if an EA is be scoped early on without his or her participation.
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Mrs Mary Lou Garr: I'd like to answer that. I agree with you. I think there is a strong need for public involvement much earlier in the process than I see in this bill. I was unable to see anywhere in there any requirement for consultation or participation during the development of the terms of reference. I know that some environmental decisions have come down in the last few years that have strongly criticized proponents for not involving the public early in the process.
With these terms of reference, I like what I see there and I think it's an opportunity for the community to really be part of the decision-making early in the process. I would like to see something enshrined in this act requiring a proponent to involve the public at that stage.
Linked with that is the need for some form of participant funding, and I draw a clear distinction between participant funding and intervenor funding. I think intervenor funding kicked in far too late in the process and was spent primarily on legal assistance. The true value of some sort of participant funding is that it would allow the community to participate fully, to have the ability to influence early decisions. If that were enshrined in the legislation in some way, I think many decisions that came out of that very early work might make the hearing process much easier at the other end.
That's what everyone is trying to do here: to get a more efficient process. We certainly agree with that. These 10-, 12-year environmental assessments have a big social impact on the agricultural community. If we could get some early decision-making that is good, when you try to scope the hearings later some of that might make sense because there would be some buy-in from that community.
Linked with that is the need for a good community agreement of some sort, and I see all this developing through early participation. Paul mentioned that there certainly are going to be negative impacts with some of these proposals. Then let's sit down as a community with the proponent and decide how we mitigate that, how we ensure that the community comes out of it in a positive manner so that the proposal can be well managed with the community. That's only going to occur if there is early participation, and we believe we need some form of participant funding to be part of that process.
Mr Pettit: Thank you for your presentation. I'm encouraged by you comments on early public involvement. We've heard many comments over the last couple of weeks, I think mostly positive, on the amendment to allow for earlier mandatory public involvement. I think Mr Galt is on record as having said we'll be supporting regulation that will enshrine this somewhere down the line.
Having said that, is it the feeling of your group that these provisions for mandatory public involvement, especially at the terms of reference stage, will encourage the identification and resolution of issues earlier on in the process that will better enable the proponents to re-examine possible alternatives?
Mr Verkley: I could maybe answer that one. The system right now is broken down because of lack of flexibility. I think you have the most flexibility going into the proposal at the very early stages. If we're locked into just an adversarial position on a lot of these issues, we're not going to have gained a whole lot; we'll just have moved the argument up further ahead. Until we get to a position where the whole process is solution-oriented, I don't see how we're going to avoid those problems. In the agricultural community we maybe have one statement that says, "We may not be easy, but we can be bought."
Realistically, if those types of solutions were available early on in the stage, which right now basically are not, if Metropolitan Toronto wants to get garbage out to the Adams mine or wherever, priority number one says we're going to do it in such a way that it will not have a negative impact on the environment, it will not have a negative impact on the community that we're going into, therefore we cannot discuss some of the problems and real concerns. We're going to have expert after expert lined up to say, "No, this will not happen."
We have very expensive promises being made that we must react to as a community that's going to be impacted. That's where this intervenor funding is required, because then we go on to different players. If you have very heavy-hitting players with deep pockets or whatever and you have a rural community that's going to be impacted and all we end up talking about is these promises that are made by the proponents instead of saying, "Look, let's sit down and say what the real issues are that affect us," you simply can't turn that into, "How do we deal with the negative impacts that we see on this proposal?" because the argument then is that there will not be a negative impact, and we end up spending five years talking about impacts or no impacts in the same time that we probably could have come to some solution. Nobody wants to live beside a garbage dump, but if there's a proper package of community compensation, some of the people say, "I would be glad to own land next to a garbage dump in Ontario that has a proper community agreement where some of the problems are being addressed."
The Chair: Dr Galt.
Mr Galt: For clarification purposes?
The Chair: For clarification purposes, if you want to make a quick comment.
Mr Galt: If I may, because I'm not on record as saying we have agreed; I'm on record as asking people, if that were in place, would they be more comfortable? I certainly, if not agreed -- it will be a democratic process by the government members of this committee of the amendments we put forward and will table on Friday.
Mrs Munro: I appreciate the comments you've made. I want to come back to the one that seems to have taken up the attention of so many groups: the issue of a meaningful public role. I wonder if you'd agree that, as you suggested a moment ago, you would recommend that it be in the legislation and whether you see that any public role implies public responsibility. By that I mean that many people have talked about this public role, many people have questioned the definition of persons who may be interested and many people who, in the experience they've had in the process, have commented on people who join in late in the process.
My question comes to you in the sense of, if we were to assume this public role up front, is there also incumbent upon them a public responsibility in terms of their commitment to the whole process? Clearly, the government has a commitment to the process and the proponent. I think it's necessary to get some input on exactly what is the public's role and responsibility and how you see this playing out.
Mr Verkley: Most of the time we're talking about a public problem and usually we've got the government being the proponent even though it might not be on a site-by-site basis. In general the provincial government is looking for a dump site; the provincial government is looking for a power corridor. As a people we want to see a project go ahead. Then we have the minister being given so much power as to direction of the project going in through an environmental assessment. Certainly as land owners we come back and say: "If that's the `public,' how do we protect ourselves?" In a geographic area that includes a community of some sort, and there's that division between the larger public body which seems to have all the cards, and we're asking for more power to counterbalance that. At the end of the day, is it still going to be realistic that we haven't just overly politicized the whole system?
Mrs Munro: I understand that concern. My question really comes from the need, as you expressed, to legislate a public role. If that's the case, what specific things do you see that should be included in legislating a role for the public?
Mr Verkley: It really needs to be at some point a very proactive role where changes can be made, where there is some flexibility, where some input will be recognized and dealt with as opposed to going indirectly on an adversarial basis, because then it's just a fight against the strongest, who wins and who throws the most resources into it as opposed to, if we had a problem, how can we come up with some reasonable solutions? That's part of the process, and everyone who's going to be affected needs to have access to that at a very early stage.
Mrs Garr: I think you're referring to how you identify the public and what public is involved in this. The federation feels strongly that it's the directly affected public we'd like to see have this early involvement, and that directly affected public would also have a strong role in developing with the proponent some sort of community agreement that would be seen as acceptable to both the directly affected public and the proponent.
In the event you could develop that community agreement, which would include elements of monetary compensation, I'd like to see drawn into that monitoring, mitigation, community benefits, that sort of thing, a strong, legal community agreement which would be negotiated with the affected public, and I see them as the directly affected.
I also wonder where the negotiation and community agreement fits into this new legislation. I know that the government has set up a task force or a committee of some sort, which I don't believe has met yet, to look at compensation and how those issues will be dealt with. How will that fit into this legislation? I haven't seen it here at all.
Mr Kelly: I build on what Mary Lou has said, that it's the affected people whom we consider the most important in this. I think that historically we have vastly overused the concept of stakeholders. I've often said that many people want to hold the stake, but very few of us actually provide it. It's those affected people we're very concerned about.
As for the public's responsibility, I think the affected public has a responsibility to get its act together at a very early time in this to be prepared to get into a meaningful discussion. That's where and why we started talking about the concept of participant funding, because it makes a sham of a public consultation process when one side can go out and provide for themselves a hydrogeologist and the affected people, the people who, if I could use the phrase, are being dumped on, for instance, don't have the wherewithal to get expert advice and provide the checks and balances that are required in the process.
The Chair: Mr Kelly, Mr Verkley and Ms Garr, I want to thank you kindly for being here this morning, making the presentation and sharing your views with us.
Mr Kelly: Thank you very much, Mr Chairman. We appreciate being here. If you need clarification or have any questions, you could contact either the three of us or through our office.
I just jotted down a little something before I left the office this morning. Certainly there has been a great deal of value in the environmental assessment process. I hope we don't lose sight of the value of a good process by only looking at the price of it. Somewhere within this concept of price versus value and cost versus benefit and risk management we have to protect our natural environment.
The Chair: Well said. Ladies and gentlemen, we will recess for lunch, but our researcher, Ted, would like to make a few comments.
Mr Ted Glenn: Lynn distributed this morning, for your edification, a summary of hearings up to and including yesterday. If there are any questions, comments or concerns, get hold of me.
The Chair: We'll reconvene at 1:30 sharp. Thank you.
The committee recessed from 1205 to 1332.
INTERNATIONAL ASSOCIATION OF PUBLIC PARTICIPATION PRACTITIONERS, ONTARIO CHAPTER
The Chair: The International Association of Public Participation Practitioners: That's a great acronym. Thank you for taking the time to be with us. You may proceed. Would you begin by introducing everyone for the sake of Hansard and the record.
Ms Cynthia Rattle: We'd like to thank the committee for this opportunity to speak to you about Bill 76. My colleagues Susan Thurston and David Hardy, and myself, Cynthia Rattle, are here to speak on behalf of the Ontario chapter of the International Association of Public Participation Practitioners, or IAP3 for short, as we refer to ourselves. We'd like to give you just a brief background about ourselves and the organization first.
Miss Thurston has over 10 years of experience in public consultation and is currently with Ontario Hydro. She has developed, coordinated and implemented community relations and public involvement programs for route and siting projects. She is also a founding member of the Ontario chapter of IAP3.
Mr Hardy is a principal with the consulting firm of Hardy, Stevenson and Associates, and has over 20 years of experience with site and route selection and project and planning matters under the Environmental Assessment Act. Mr Hardy has provided public consultation and environmental planning evidence to every board in Ontario.
I am an Ontario planning consultant with over 12 years of experience in the design and coordination of public participation programs for waste management, transportation and pipeline projects proceeding under the Environmental Assessment Act. I have also provided advice on public consultation guidelines for MOEE.
IAP3 is a professional organization with over 100 members worldwide. It includes two chapters in Ontario, one of which is centred in Toronto. The 200 members of the Toronto chapter are consultants, employees of public and private utilities, waste management companies, natural resource companies and the public sector. Our members have been involved in the public participation component of almost all the major projects subject to environmental assessment across the province in the past 20 years. These projects include timber management plans, waste management plans and landfills, highway developments, energy sector pipelines, transmission lines, generating stations and urban infrastructure.
One of IAP3's mandates is to promote the concepts and benefits of involving the public in decisions that affect them. To this end, our organization undertakes to comment on government initiatives. In the past, for example, we have commented on the Sewell commission's proposed changes to the Planning Act. We are grateful, then, for the opportunity to comment on Bill 76. Dave Hardy will now provide our comments, which focus specifically on the public consultation aspects of Bill 76.
Mr Dave Hardy: You've received copies of our brief. I have several general comments and a number of specific comments. I'll speak for about 10 minutes.
In general, we're very pleased and support the informal inclusion of public consultation in the act, and early public consultation. We're also pleased in general with the continuation of the focus of the act on the problem and opportunity, and we're pleased with the continued wide definition of the environment.
We have several areas which we feel require clarification or enhancement. I'll be discussing an overview of those areas and pointing on occasion to specific parts of our brief.
The first area is the role of guidelines, in particular public consultation guideline documents. As seen on the final page of our brief, there have been a number of guideline documents addressing publication that have been issued by the Ministry of Environment and Energy. These have been very helpful to proponents and to the public and have helped us to understand the scope of the public consultation expected. We feel the act should formally refer to the guidelines about the expected design and delivery of public consultation programs.
In our brief on pages 3 and 4 we paraphrase the purpose of public consultation as already exists in guidelines. We feel that purpose has merit. For example, we feel that public consultation should help a proponent to identify and address issues before decisions are made and before all sides are established and positions entrenched. Public consultation should help to improve understanding between a proponent and a community. It should help a community develop a sense of control over risk and management of that risk. It should help a proponent to consider a broad range of issues, options and solutions and hear a broad range of opinion about the options before deciding on a course of action. Public participation should help to improve decisions by steering the undertaking towards an environmentally and socially acceptable path. While there are no guarantees, public consultation is a method to reduce and resolve conflicts that arise when multiple interests are involved.
In sum, these guidelines exist, they have merit, and we'd like to see that they're referred to in the act.
Finally, we also feel that section 4 of the act should be reworded to read that nothing in the act would prevent a proponent from conducting more consultation than the minimum established under sections 6.1 and 6.4, subsections (2) and (3). Thus, proponents should know that they don't necessarily have to just choose the minimum, that they can do more than the minimum required under the Environmental Assessment Act.
The second area of concern is the public consultation on policy issues. In our experience, policy issues require special treatment when they come under the act. Often we've found that transportation projects involve questions of transportation policy. Energy projects are intertwined with policy issues. When we build a water pipeline, it involves questions of policy. When we go to site a landfill, it involves questions of waste management policy. These are difficult items to address currently in the act and we think the act can be improved and enhanced somewhat to help to better address these issues. To do this, we've recommended the addition of a subclause 6.2(3)(c)(iv) to ensure that all relevant agencies and government departments and other organizations are consulted regarding policies that may have under their auspices that may be affected by an undertaking.
We also understand and have seen that policy issues surface late in EA processes. At worst times, policy issues will occur at a hearing. Often policy issues may surface after approved terms of reference have been issued as well.
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At the minimum to address this matter, our second recommendation is that once the environmental assessment is prepared in accordance with requirements of sections 6.1 and 6.2 of the draft Bill 76 -- that when the act is submitted, there also is ensured that the proponent consults municipalities so that if they have a policy item under section 6.3, they can address the act once it's been submitted. So we've suggested an amendment to sections 6.1 and 6.2 to add further consultation with the public under section 6.3.
We support the ability of the minister to refer policy matters to other tribunals. This is a useful addition in the act. However, we also feel the EA board is fully equipped to direct policy matters to other tribunals as well, or deal with it directly.
We also feel the public should have the ability to comment on the terms of reference of the environmental assessment study. To this end, our next recommendation is that the public should have the opportunity to provide input on the draft terms of reference.
We feel the EA board should be the first and primary forum for a scoping hearing before the terms of reference are approved by the minister or directed to other bodies. The use of a scoping hearing under the new Environmental Assessment Act at the federal level appears to have a fair amount of merit in narrowing issues and providing some input on those issues before the terms of reference are established.
The advantage under this act in providing scoping under the Environmental Assessment Board is that the board is able to hear evidence under the Statutory Powers and Procedures Act. The board has experience in scoping matters, and this is both the EA board and the Ontario Municipal Board, and other boards such as the Ontario Energy Board have had very good experience, in my opinion, on scoping issues that they are to address.
Our recommendation is that the Environmental Assessment Board and also a consolidated joint board should have the continued capability of defining issues that they -- oh, sorry. Let me come to a full stop. That the board have the ability to scope issues before these issues are referred to the minister for the minister's resolution of these issues under the terms of reference.
Our next recommendation deals with issues that come up during the hearing and the definition of those issues by the minister. We feel the EA board and the consolidated joint board should have the continued capability of further defining issues they hear based on evidence they hear and the advice from the minister. However, we feel the advice from the minister should be in an advisory capacity only, since the board is hearing the evidence and that's being cross-examined and being tested, whereas the minister doesn't have that advantage. On the other hand, the advice from the minister is very important and should help to determine the scope of the hearing by the board. We've suggested specific amendments to deal with this in section 9.3 of our brief.
The next issue that we feel is important to us and could help with the enhancement of the act is the need for broad-based consultation with the public. We are concerned about the possible narrowing of the definition of "the public interest." We've often seen in our projects that the public at the beginning of an environmental assessment process is a different public than the public at the end of an environmental assessment process, and it's very difficult to define that public at the beginning.
We feel, at the very minimum, there needs to be some broad front-end thinking and consultation at the beginning of a process to make sure that all people who may be interested are involved. In support of this, we have reviewed other briefs and feel that the brief prepared by the Canadian Environmental Law Association has some merit in defining the public as all people reasonably interested in or affected by any matter arising from the proposed terms of reference of the environmental assessment, whether or not the persons have a direct personal pecuniary or proprietary interest in the matter.
The next area where we think the act can be enhanced is to allow for greater provision for time-outs during the EA process, and particularly during the hearing. If there are issues that come up that are of concern either to the public or proponent, there should be some provision for either the public or the proponent to resolve those issues without necessarily jeopardizing the clock ticking in the process, and particularly for the proponent not jeopardizing the overall opportunity of getting the EA approved.
To not allow time-outs can be very costly for a proponent if there was a major issue that arose that wasn't addressed. It also is very difficult for the public if they felt an issue was very important and should have been addressed and it doesn't make for good relationships between the proponent and the public in the long term.
We also feel that the next issue is the need to provide time and support for the public to review EA documents. In our experience, after a long EA hearing on a complex matter -- an example I'm personally aware of is the Laidlaw rotary kiln study done in Sarnia. At the end of that process, there were four volumes of very complex health and safety and geotechnical and chemical air dispersion data and there was no way the public could review that in their 30-day period. There's also no way that anybody had the expertise in the area to be able to deal with and responsibly comment on those reports, as the proponent wanted. The proponent in this case was very progressive and assisted the public through a peer review and relationships have been generally good.
So we're suggesting that there be provision for an extension of the peer review process to make sure that facts are not overlooked, that local knowledge is provided and that peer reviews occur on the information prepared under the EA.
Our next recommendation is that in general we support mediation provisions of the act under section 8, and also the ability of the Environmental Assessment Board to act as mediator. However, we feel that alternative dispute resolution should be available throughout the process. There should be guidelines stipulating when mediation should be used. Our concern is that if there are situations where legitimate issues that are raised by either municipalities or agencies or the public about alternatives, then these issues shouldn't be mediated away; they should be discussed and studied.
On page 9 we've recommended appropriate changes to address this in section 8.1 of the bill, and this is that mediation not be defined to preclude public discussion of alternatives.
Generally, we support the reconsideration of alternatives under the act. However, we again feel that the act should allow for the public to be notified if there is a reconsideration of an alternative. A good example of this is the north Simcoe landfill, where, after the initial hearing, there were further studies done. At that point it would be quite appropriate for the public to be brought back into the process.
Next, a public consultation should occur on changes to the undertaking on section 12. Again, the proponent should make sure they consult the public if there are significant changes and consult on the second submission of an EA, if that occurs. In reviewing the class EA process, we feel that public consultation under the class EA is working well. We have no further comments.
The next area is the delegation of the minister's powers under section 31. In general, we feel it's too broad to meet the objective of fairness for the public and proponents. We feel that there needs to be an appeal procedure in place when powers have been delegated to staff and that the appeal needs to be decided by either the minister or the board.
So our next recommendation is that any decisions made by employees or a class of employees that have been delegated power should have an appeal procedure.
That finishes my review of our brief. In general, we are pleased with the public consultation provisions of the act and we wish to thank you for allowing us to speak to you. We'd be pleased to answer any questions or respond to any comments.
Ms Churley: Thank you very much for your presentation on the very important issue around public consultation. I think you've quite rightly pointed out, as have most people who came to speak to us, that although the government says that there's public consultation at the very beginning of the process, it is not part of the bill that people be consulted during the negotiating around the terms of reference. I believe that you are recommending that this be changed and that this be clarified in the bill that the public would be consulted and involved during that process.
Mr Hardy: Yes, very much so. The Ontario Municipal Board, during an issues hearing, does this quite well. The Ontario Energy Board does this quite well. We don't see why, in our situation, the EAB can't be a good forum for providing and researching information on terms of reference.
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Ms Churley: Another concern around the negotiations around the terms of reference, of course, is that even if -- and of course, people should be involved, people who have interests. I'm glad you made a comment about the definition of who these people are and that existing -- I believe you said, there are existing guidelines there and in fact we've been now provided with those and it should be enshrined in the legislation.
But even if you have the public involved in that process, the problem is, when you're setting those terms of reference, it's at the very beginning of the process and to a large degree you don't know what's going to come. As you mentioned, some of these hearings -- anything that gets sent to an EA by its very nature is complicated and often controversial. You're setting the terms of reference which would be binding and the problem is there could be all kinds of information after the studies are being done and more information about what's involved in this particular undertaking that could get left out because people just don't know it's going to come and it's going to be a factor.
What would you advise the government around dealing with if they want those terms of reference to be binding yet there could be complexities that aren't foreseen at that stage? The public, really, would not have the opportunity at that very early stage to know about some of the complexities which might come up.
Mr Hardy: I think the Canadian Environmental Assessment Act has also wrestled with this particular issue and they've put an awful lot of weight on making sure there's a very thorough scoping process at the beginning. We're recommending, to begin with, that the board be involved in the scoping process and also the minister and minister's staff and so on. At the outset there needs to be very careful and thorough consideration of all the issues that might be brought to bear in defining the terms of reference. I think there's also an obligation on the proponent, as the EA process proceeds, to make sure that as issues legitimately arise during public consultation processes they're studied and brought forward. That typically occurs during the EA.
Finally, I believe that in the actual hearing itself and during the ministry review, we've suggested that there be checks and balances to allow the minister to allow the proponent time out if an issue happens to arise without necessarily penalizing the proponent; on the other hand, allowing the board during a hearing to not necessarily be totally constrained by the terms of reference of a hearing or the terms of reference of the study if there's evidence that's been brought forward under cross-examination that survives and should really be addressed to make sure there's fairness.
Mr Ed Doyle (Wentworth East): Thank you, Mr Hardy, for your presentation. I was interested in your comments about the need for time-outs or additional consultation. I'm wondering if you can tell me in your experience, if people are involved in the early process, during the terms of reference stage, if this will eliminate the need for additional time-outs or if the likelihood of issues arising will be lessened. I'm wondering if the hearing process and the entire process can be shortened.
Mr Hardy: I think certainly the broad consultation with the public at the beginning is going to go an awfully long way to narrowing issues and eliminating the possible need for time-outs, as those issues are identified. I think what we're recommending, though, is that there still be a bit of flexibility in that act for issues that do arise. The EA process is a logical kind of systematic study process where, when you have various professionals looking carefully at a land area or an issue, they often do identify issues that do have to be researched. I've seen it many times.
In addition, I've been at a number of hearings or in EA public consultation processes where the public has pointed something out that we, as professionals, all completely missed, and we have to deal with it. So there's an issue of fairness where in that instance all the professionals know on both sides that that issue has to be dealt with. The boards know, the lawyers know, but the process has to be flexible enough for somebody to say, "Okay, let's just study this a little bit closely," so that's why we're suggesting the time limit. I agree with your point that if there's good consultation at the beginning, it should virtually narrow or almost eliminate the need for time limits.
Mr Stewart: My comment was much the same as Mr Doyle's, but I'll just go a wee bit further. Time-outs should have time lines?
Mr Hardy: Yes, and they should be linked to the -- again, the board and MOEE staff have very good experience. If there's a need for an additional hydrogeological study, for instance, generally they have good experience of how long that will take to do, so this shouldn't be an open-ended process at all.
Mr Galt: Thanks for your thoughtful presentation; very interesting. I'd like to explore your comments just a little bit. You supported the idea of referrals on the part of the minister, particularly to tribunals, and we were hearing this morning from other groups who were objecting to that opportunity or that ability within the bill. Could you explain why you're comfortable with that, why you like that idea? I'm curious.
Mr Hardy: Yes. I guess it's based on my experience of dealing with a number of EAs where I have either worked with a proponent or been on a peer review of what the proponent has done. If it was a landfill, for instance, I've seen a proponent assume that the landfill is simply the matter of finding a site, doing proper studies, doing the EPA studies and having it go through, but if, unfortunately, that proponent was doing it in a county that didn't have a waste management master plan, it's the policy of the province to ensure that there are waste management master plans in process, and unfortunately, the proponent got caught up with the whole policy process. That cost a lot of money for the proponent.
In that instance, it would have been very nice for the proponent if somebody at the front in the process could say, "Hold on, before you spend $6 million or $12 million trying to get the site approved, this should be referred either to another organization to review the policy matters," or addressed in some other way before the proponent has to deal with it.
Another example would be with an Ontario Hydro demand-supply plan. Those plans do come under the act, energy plans, water plans and so on, and there needs to be considerable thought about where that gets approved. If it goes to the Environmental Assessment Board, for example, maybe the EA board is not the body to be dealing with that. Maybe it should be a select committee. Maybe it should be a special commission or inquiry to deal with that. So that's my experience that I bring my opinion on why I'm comfortable with the referral of matters to other policymaking tribunals and bodies.
Mr McGuinty: Thank you very much for your presentation. The International Association of Public Participation Practitioners -- maybe it's appropriate for me to ask this of you. One of the things that we've heard here time and time again -- if we didn't know it at the outset, we certainly understand it now -- is that it's important and in the greater public interest and in the long-term interests of the proponent itself, himself or herself to involve the public, probably sooner rather than later. Have you anything to add to that, anything in terms of any reasons for that that we may not have heard about to date? By that I mean let's say that I was of the view that the public was an obstacle to be overcome rather than a resource to be tapped and let's say that I felt I had all the information and the matter was too complicated and they couldn't understand it. How would you respond to me?
Mr Hardy: I've witnessed a broad spectrum of successful and unsuccessful public consultation efforts. I would say that in some of the more unsuccessful efforts, there were issues that perhaps were out there and a minimal amount of effort to try to resolve them at the front end. Those issues only swelled to involve all sorts of agencies and politicians, and ultimately it's costly for everybody in the long run.
The better case is that there's a very good series of examples of voluntary siting in Canada and in Ontario, where proponents have taken public participation by the horns and said, "We're going to do this seriously and we're going to do it so that we're listening carefully, that things are heard, are going to be part of our process." We've had a voluntary low-level radioactive waste site in Chalk River, Deep River. That's a voluntary siting process. It wasn't kind of, "We'll force this through." We've had the Manitoba hazardous waste facility being voluntarily sited. We've had the Alberta waste facility being voluntarily sited.
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On the private sector, again, Laidlaw is probably going to get an expansion of a hazardous waste landfill down in Moore township on a voluntary basis. These are good examples where they've taken a very serious effort to consult the public as thoroughly as possible. Each proponent has got some good gains in terms of cost-effective processes, time-effective processes and overall good relationships with the public.
Mr McGuinty: Thank you for that answer. Did you make reference in here to intervenor funding?
Mr Hardy: No.
Mr McGuinty: Is it realistic to talk about consulting the public and allowing the public to bring to bear everything they could bring to bear if they don't have the funds to retain the necessary expertise and possibly legal counsel?
Mr Hardy: There's a difference between intervenor and participant funding; we're recommending more participant funding.
Mr McGuinty: Could you just distinguish between those two for me?
Mr Hardy: Yes. Participant funding occurs typically during the EA process, well before a hearing. It's when the proponent provides money -- Laidlaw, Hydro, many other organizations -- gives money to members of the public to, at times, hire lawyers, although that's more of an exception, but particularly to hire consultants to be part of the review process. A good example is the Taro quarry landfill. They've had a public or participant funding process before the hearing.
Intervenor funding is after the EA has been submitted and has been referred by the minister to a hearing. At that point, all positions are hardened and most of the money goes to lawyers and money is provided to consultants. It's an advocacy win-lose situation at that pont. You're not consulting the public any more; you're into a legal hearing at that point.
The Chair: Thank you very kindly for being here this afternoon and making your presentation.
CANADIAN ENVIRONMENTAL DEFENCE FUND
The Chair: The next witness is the Canadian Environmental Defence Fund, Mr Donnelly and Ms Kempton. Welcome. Thank you for joining us this afternoon.
Mr David Donnelly: Thank you very much for inviting us to appear. I propose to use our time with a 20-minute presentation split between myself and Ms Kempton, and then we've allowed for time for questions. Thank you for both opportunities.
We are appearing here today on behalf of the Canadian Environmental Defence Fund, which we refer to as the CEDF, a group that was formed 11 years ago to provide funding and legal, scientific, planning and engineering expertise to groups pursuing nationally significant environmental law cases. Over the years, this mandate has changed because citizens in other provinces and engaged in the Canadian environmental assessment process have often been short of adequate resources to participate effectively or fairly in environmental assessment hearings, and so our scope has expanded. This gives us some expertise in the area of intervenor and participant funding, and we'll be addressing the absence of any provision for that in our presentation today for Bill 76.
The Canadian Environmental Defence Fund has worked with numerous citizens' groups over the years that have been defending the public trust: cod stocks off the coast of Newfoundland; people concerned about the illegal trade in wildlife parts; groups concerned about fisheries in the Northumberland Strait, opposed to the fixed link to PEI. In almost every circumstance they have been engaged in some sort of process, whether the courts or quasi-judicial tribunal proceedings, such as environmental assessment or municipal board hearings, and have often run up against problems both with the process and with finding resources. We have experienced all sorts of different problems, and they form the basis of our criticism of Bill 76.
To start with, we have several general concerns with the current approach. The first is that there has been inadequate consultation with both affected parties and public interest groups in the compilation of these recommendations. For example, there is no clear determination of what the real costs of environmental assessment are. We think this particular bill is hasty in that the public hasn't been provided with an adequate explanation as to why these changes are necessary. For example: What is the cost of one hearing day? What is the cost of hearings versus not having hearings or not conducting environmental assessment at all?
There are numerous examples of failing to apply environmental assessment costing the public substantially more than applying assessment and coming to a reasonable and independent decision. I'll give you two examples. First, in Ontario the Darlington nuclear power plant was exempted from environmental assessment. I don't think there are too many people who agree that was a good undertaking.
In the case of the Newfoundland cod stocks, which I've already mentioned, there was a federal court application made in 1989 insisting that the licensing and quota-setting for the fishing of cod off the coast of Newfoundland and Labrador be submitted to independent review. That application was denied, no assessment was ever held and now the federal government has paid out $2 billion in compensation and will likely pay out much more for the loss of the cod, whereas a moratorium, which surely would have been declared through an assessment process, could have saved some of that money. The failure to apply adequate assessment wound up costing far more than simply not applying assessment.
The first recommendation is that you should scrap this process and start again with adequate consultation. There are no opponents to reforming environmental assessment; there are only opponents to reforming it poorly.
We also think the mandate to carry this out hasn't been well established. As you know, the environment wasn't mentioned in the Common Sense Revolution. The thrust of these changes cuts against the raison d'être of this government, which is to return more power to the public, give the public more rights and divest elected officials and the bureaucracy of authority over the environment and the public trust. What you are doing, perhaps inadvertently, is vesting a great deal of authority in elected officials. Even you can imagine a time perhaps in the far-off future when a Brown Horseman of the Apocalypse Party could be elected that would have environmental views you'd find objectionable, or perhaps there might a left-wing party that might be returned to government and would want to build all sorts of crazy public works projects with little environmental justification. This bill invests so much authority in the minister or in the bureaucracy that the public is almost without tools whatsoever to stop them. Is that really the mandate of this government?
Third, there's very little cost accounting to these changes. With your regulatory efficiency undertakings, you are requiring that there be an eight-page summary of the rationale for any new regulation. Has that been done in this case? Are there real efficiencies or savings to be gotten from this proposal? I would like to see those changes even before we have these public hearings so that I know whether the stated purpose of this, which presumably is to save money, is actually realized by it. I certainly haven't seen it and we weren't consulted on it. That is a major failing.
I should mention one last point, and that is that in the United States there's an election campaign under way, and I should note that both parties consider it prudent to consider protection of the environment in their platforms. Not only is it a political issue, but mainstream business in America has recognized that deregulation is not in its best interest. Several weeks ago, when the US Congress brought its session to a close for the summer, it was considering two bills, an anti-terrorism act and a safe drinking water act. They were laying on new regulation for the defence of the public trust. With this bill you're actually cutting against the grain in North America and you're reducing environmental regulation. That actually bucks a trend. That is another reason why we should reconsider this action.
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I have three specific concerns. The first is with the purpose of the act. There is no stated purpose in this bill or in the original act that provides a measure for the public to see if the assessment is meeting its objectives. While the CEDF recognizes that the proposed act is designed to streamline the EA process, there is no clear statement of purpose against which the streamlining objective is to be applied and measured. The CEDF would therefore recommend that the purpose section of the proposed act be amended so that decision-making at all stages of the EA will be applied against this standard and not compromise basic environmental protection.
We recommend that the purpose section state simply, "The purpose of this act is to plan undertakings so as to prevent, mitigate or remedy significant adverse environmental effects, or those reasonably expected to be significant, including cumulative effects and effects on future generations." This is the model that the former and current federal environmental assessment process follows and it sets out a nice test that the public can follow: Will the project cause significant adverse environmental effects? If so, it should not proceed. That's absent from this bill and is a significant omission.
It is significant also because the federal government wishes to harmonize the EA process with the province. We are undertaking a revision of our current EA process when six months or perhaps a year from now we'll have to do the exercise all over again to bring the two processes into conformity. I wonder why we're proceeding at this time and if it isn't premature.
Second, the discretion in this bill needs to be limited. As I've already mentioned, it provides such wide latitude for a minister or for the bureaucracy that you're inadvertently creating a regime that's unintended, and that is to vest so much power into so few hands that the public is effectively excluded.
Finally, panel membership is of grave concern to the CEDF. By allowing for bureaucrats who have perhaps worked on a project, worked on accomplishing the EA, to then sit as its judge should clearly represent a conflict of interest. Again, inadvertently, you may actually be doing environmentalists a favour. There's a case before the courts right now involving diamond mining in the Northwest Territories where a government official was put on a panel to hear the assessment of the proposed diamond mine. That's now the subject of litigation, and if it's successful, then there will be a conflict of interest declared in this case, the environmental assessment will be rendered null and void and they'll have to start the process all over again.
If you include this provision, you may well find that future environmental assessments will be declared null and void by the courts. That should be a significant concern and that's why we're recommending that this provision should be struck out immediately.
Having said that, I'll now ask Kate Kempton to address several other points and then I'll provide a short conclusion.
Ms Kate Kempton: I wasn't going to do this, but I think I will; I'd like to show you my tie. It's my symbol of business and environment working together. There are a lot of people like me, well-educated people from actually quite conservative, middle-class backgrounds who look to the EA process to represent, to actually be more than a symbol of business and environmental principles coexisting and supporting one another.
You can't, like a tie, have the EA process on paper be merely window dressing. Without effective public participation, with merely the words that proclaim public participation but without effective tools that allow for it, then that is what the EA process becomes, just window dressing for development without adhering to sustainable environmental principles.
In particular, I would like to address the terms of reference, the scope of the hearing and intervenor funding. With regard to the terms of reference and the scope of the hearing, they really are the same arguments we have that are problematic with these two issues.
First of all, by creating what will amount to, in perception if not reality, a fait accompli by allowing the proponent to present terms of reference, even though they are submitted to the minister for approval and/or mediation, this does harm the reality of the EA process as well as the perception. Again, the perception is that of a fait accompli. It skews the process from the beginning. It establishes something that somebody has to look at and then fight against or challenge, rather than seeking a diverse amount of public input right from the beginning from a variety of sources. This basically creates an adversarial climate, and instead of people saying, "I can help create this," they're saying, "I now have to defeat or try to change this." An adversarial climate, I gather, is not what this bill intends to create.
You are at risk of making greater mistakes by targeting and skewing the input right from the beginning. Again, even though somebody can comment on it, they're focusing and targeting all their energy, all their thought processes in debate on that thing that they're looking at: the terms of reference as presented, as given. That will potentially ensure that various other options right outside those presented are not even considered. They're forgotten in the fray. In other words, if the die is cast, it's very difficult to argue for a different colour altogether.
Those essentially are the same arguments in terms of the scope of the hearing as well. By allowing the minister to set the scope of a hearing, the same arguments apply. A snowball effect is created in that the original mistakes that might have been created in the terms of reference are perpetuated in the scope of the hearing and you create a snowball effect in mistakes and in lack of credibility in the whole process.
The CEDF recommends that the terms of reference be set by wider stakeholder and public input right from the beginning, as happens with the federal process now, that the minister or the MOEE provide guidelines to the scope of the hearing only, and that there is flexibility in the board to change those hearings as arguments presented warrant.
Finally, I want to address the issue of intervenor funding. The CEDF has conducted two studies, one in 1991 on the IFPA and intervenor funding in Ontario, and is just completing one this summer on alternatives to the IFPA, which I'm sure you all are aware was sunsetted this year. We have some expertise in this area, in other words.
What this bill proposes is basically to hold out a carrot on a stick by saying, "Yes, we're allowing, in fact encouraging public participation," but effectively cutting off the arm reaching for that carrot by not providing the effective means and tools to effectively participate.
The need for funding was established by the Berger inquiry in 1974, so this is a well-known, judicially established need. For 14 years an ad hoc system was used, and in 1988 it was determined that there were so many deficiencies with an ad hoc system that the IFPA was created, legislating a better system.
The deficiencies with an ad hoc system are essentially those with the system that is now in place since the sunsetting of the IFPA with the post-hearing cost awards: There's too much uncertainty with post-hearing cost awards; there's too much risk of personal financial loss of the participants; there are potentially inconsistent funding decisions made. These things lead to less and less effective public participation. That is the only logical conclusion and in reality that is what has happened.
Why this is being done -- dropping the IFPA and not legislating something similar to it into this act in its place -- perhaps is because it looks good to drop an expense line off the EA process budget. But every time you drop an expense, you do incur other costs, and those costs and benefits of dropping any expense or incurring any others have to be measured. The cost of removing intervenor funding and not legislating it is, as I've said, lower and less effective public participation. That leads to less credibility in the entire process and obviously the end result of that process, the decisions made and the projects that result from it.
There is more likelihood of mistakes due to less effective public participation because the input, the information that the decision-makers have to draw from is less. Thus you have a greater likelihood of harm to the environment as a result.
The concerns over intervenor funding that I will assume led to the dropping of the IFPA are no longer justified. Those concerns essentially we believe to be: the possibility for non-meritorious or frivolous interventions, lack of spending accountability on the part of the intervenors and higher EA process costs overall, like longer and more costly hearings.
The first two concerns, the non-meritorious interventions or less accountability for spending on the part of the intervenors, were addressed in the IFPA and can be addressed again in effective provisions in this bill. One only has to set stringent enough and appropriate criteria for intervenors to receive funding and to be named as an intervenor group to begin with to address those two concerns. As I said, they were addressed effectively in the IFPA.
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The third concern, higher EA costs, basically is addressed by effective public participation funded through intervenor funding from the beginning. Your bill proposes more front-end input. That is in fact what intervenor funding does provide: effective input from the beginning. It ensures that effective and diverse information that decision-makers can use will help avoid costly mistakes later, mistakes that for cleanup and fixup will be far more costly for everybody, including the proponent and the government.
Finally, intervenor funding is a very small part of a proponent's budget. The proponent is the beneficiary of the project. The proponent should therefore bear the cost. This is a small budget item. If, however, a proponent cannot afford intervenor funding, it could be paid for out of environmental enforcement fines, licence application fees or certifications of approval. There are other alternatives that are very viable. So we recommend, finally, provisions in this bill similar to the IFPA for participant and intervenor funding.
Mr Donnelly: Thank you, Kate. One last point on funding; it's our experience that when parties are asked or even sometimes forced to engage in mediation, not to provide the costs of both the mediator and also the public-interest participants is a significant failing in that groups cannot adequately represent themselves in those forums without the funding. So I would suggest that you revise subsection 8(10) to pay the costs of not just the mediators but of the mediation itself. Otherwise the mediation cannot be conducted fairly or competently.
In conclusion, it is our recommendation that the purpose of this bill be improved; that you attempt to limit discretion; that panel membership provisions be changed; that the scope and terms of reference not be unduly narrowed; and most importantly, that funding be provided at all stages, but particularly participant funding at the beginning, to limit the time and cost of the assessment down the road.
It's our primary recommendation that you delay this bill so that it can be harmonized with the federal process and that some of the deficiencies that we and others have identified can be remedied. We think this should be done for two reasons: (1) it's in the public interest and (2) there are some deficiencies in this bill that may lead to inadvertent costs and problems in the process down the road. Thank you for your time.
Mr Stewart: Thank you, sir and ma'am, for your presentation. I want to just ask you a couple of questions on the intervenor funding. One of the reasons that I believe they had to have participator funding and intervenor funding under the present act was the fact that there was no public input, basically. Until you found out -- and we'll talk landfill here -- where the landfill was going to be, which was probably half to three quarters of the way through the waste management study -- all of a sudden people found out it was in their backyard, and they had to fight it to get it off. In the rural community, it would be on good agricultural land. It seemed, under the present act, that was the only place, with the criteria, that you could have it.
My concern is, as you're saying that if we get the people involved early, which you want to and which I agree with, then the people know up front and all the way through what is happening during the process of siting that landfill, do you feel that by having them involved early it could solve some of the problems that we have for intervenor funding? That's one.
The other comment that was made yesterday at the hearings was the fact that we don't have any type of intervenor funding for anything to do with planning. Planning can be just as controversial and probably take as long to solve some of the problems as the environment does. My second question to you would be, where do we stop giving out money to people who want to be our opposition? Why don't we quit worrying about getting them as opposition and get them on side, as we believe much of this bill does?
Mr Donnelly: Both good questions. Funding does solve problems, both early on and near the end of the process, because it makes participation more reasonable, effective and responsible. If you don't give people funding for hydrogeologists, engineers, planners and lawyers, then they have to resort to other tactics, which are in most cases delay. There are very few rules, then, that you can apply to the process, because they simply can't participate fairly.
With respect to participant funding in the early stages of the process, in many instances it's in the proponent's best interests to provide that funding, because then the unreasonable issues that should not be subjected to some sort of testing can then be scoped out of the process. So to spend $10,000 early on in the process, you can save yourself hearing days at the end of the process.
But you have to understand the rationale and the scale of funding to truly appreciate why it is necessary but is not unlimited. If you're siting a nuclear power facility or Metro's waste disposal, those are billion-dollar undertakings. The limit to the funding is set by an independent decision-maker and is often fractions of 1% of the total project cost. If participant funding or intervenor funding was to be a quarter of the cost, I can see how you would object, but it's a thousandth of a per cent of the total project cost. So we're really fighting over nickels and dimes here, whereas it's absolutely essential to streamline the process.
Mr McGuinty: Thank you for a very good presentation and for lending a little bit of sobriety to some of the discussions we have here. Sometimes we lose sight; we're focused because it's the rage today to focus on costs of existing programs. But we haven't, I believe, been properly looking at the costs of not having some of those programs that have been developed over a number of decades for good reason.
Back to the subject of intervenor funding. First of all, participant funding and intervenor funding: Previous deputants gave me a definition of the two. Do you favour both?
Mr Donnelly: Yes.
Mr McGuinty: Is there anything that you would caution us regarding one that wouldn't apply to the other in terms of amounts? The purposes, ought they to be circumscribed in either case?
Mr Donnelly: My recommendation would be that if your concern -- and this we don't know, because the government won't provide us with the rationale for cutting the Intervenor Funding Project Act -- is limiting the exposure of the public or the public purse or of the proponent to unseemly intervenor funding awards, then you could put awards on a scale or a schedule and you could prorate it to the cost of the project. So if the project is a $10-million project, then you may want to limit intervenor funding to $10,000. But, again, you see what the percentage is. You could limit the costs of it but also provide fair awards based on the scale of the project.
So that would be my one recommendation: If you're worried about the cost of it, then put it on a budget, put it on a schedule, and you'll limit your exposure. How can that not be reasonable?
Mr McGuinty: Good point. I heard that in Australia they have something called an environmental public defender. Have you heard about that, and would you recommend that to us? In other words, somebody who's on a permanent retainer. I gather they're paid by the government, by the taxpayers. They acquire expertise in the area, and they are there and available, as would counsel and a public defender in criminal law, for instance, here if we had the system.
Mr Donnelly: I'm one of those small-c conservatives. I think that public interest groups can represent themselves. In small communities, particularly remote communities that are both physically and ideologically removed from the centre, being Toronto, they often have particular wisdom that should be applied in these cases. That type of moral doesn't always lend itself well to adequate representation of diverse views. There are cultural issues, geographic issues, all sorts.
Really what we're talking about here is public funding. If it's a hydro dam or it's a landfill site, this is public money, taxpayers' money, that's being applied to solve some sort of waste management problem or some other problem. Why is it, then, that public money shouldn't also be given to groups that are representing the public interest? Give it to the local, directly affected people, and they'll represent themselves adequately.
I ask you to turn your attention to the Berger inquiry. He thought that there should be criteria that stipulate how the money should be spent and how it should be accounted for, and Berger rejected that notion. He said: "Give them the money. If they go away to Hawaii for a month-long party and then they turn up at the hearings without funding, well, tough on them; that's how they decided to spend their money." The citizens themselves are adequate advocates of their own interests, but if you're going to spend public money to compromise the environment, then you should spend a percentage of it to give the people the adequate means to represent their interests. They're representing the public interest.
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Ms Churley: Thank you for your presentations. I like your tie. Perhaps I'm being unfair and misunderstood Mr Stewart's characterization of the intent of Bill 76, and that is, "to get people on side." That's what I heard, and I submit that a major purpose of the EA is to get all of the facts on the table both from the proponent, who often has a very deep pocket, who can hire any expert, any lawyer in the world to prove his or her case, and that information the citizens have to have, and the people most affected have to get their information on the table as well. It's not about getting people on side but ending up with having the best environmentally sound project approved at the end of the day.
If there is no intervenor funding, what citizens often are up against are proponents with very deep pockets, and you can't have a fair, open process unless citizens are able to counter with their own expert witnesses in some of these particularly very technical areas that are often involved in landfill and incineration. Is that not, at the end of the day, what the EA is supposed to be doing?
Mr Donnelly: Absolutely. I regard environmental assessment as an auditing of projects: Do they make sense? Is there an environmental benefit to them? But, almost paramount, will this save money? Is it a good application of public funds? You can only get at that through scrutiny and testing of evidence. Particularly in the cases you mentioned, where there are complex, technical issues to be resolved, you cannot expect the public to show up as volunteers and to engage the process meaningfully or effectively.
In the case of low-level flight training in Labrador, a native group, the Innu nation, was asked to critique horrendously complex and technical information prepared by noise experts and wildlife experts from all across the world. Before the federal government provided them with funding, they were required to pay their own experts primarily through the proceeds from their hunting and gathering. That happened five years ago.
What we are seeing in Ontario is a turning back of the clock to a situation where you will have people asked to front their own personal resources -- their savings, by and large -- to engage in these hearings. Particularly if they catch a defect with that technical information, they could save the public thousands, if not millions, of dollars. But why should the public be expected to bear that risk?
In the case of a farmer with a landfill put into the backyard, that person is being asked to bear the burden of Metro's garbage, and yet they have to mortgage their children's future, mortgage the family farm that in some cases has been in the family for generations, simply to try and root out these defects to try and give the public a benefit. It cannot be fair to ask them to front their own personal money when the proponent is being funded by the public purse.
The Chair: Mr Donnelly, your time is past. I want to thank you and Miss Kempton for being here this afternoon and sharing your views and answering the questions directly.
ONTARIO PROFESSIONAL PLANNERS INSTITUTE
The Chair: The next witness is the Ontario Professional Planners Institute, the OPPI. Welcome. Thank you very much for coming.
Mr Philip Wong: My name is Philip Wong. I'm the president of OPPI. With me are Dianne Damman, environmental planner with Ecologistics, and Chris Murray, environmental planner with the region of Hamilton-Wentworth.
The OPPI, Ontario Professional Planners Institute, represents over 2,200 practising planners in Ontario who provide professional services to the public and private sector in areas that include urban and regional community planning and design, and environmental planning and assessment. We are an affiliate of the Canadian Institute of Planners, CIP, an organization which represents approximately 3,400 professionals across Canada. Through CIP and OPPI, planners are able to speak with one voice on matters of importance to the planning profession.
We are a member-driven organization. All our funding and administration are paid for by the members, and we do not receive any funding from any interest group or parties.
OPPI is committed to working with the provincial government on matters affecting our profession and its practice. The Environmental Assessment Act remains an important instrument to ensure that environmentally responsible decisions are made with respect to infrastructure development in Ontario. Our members appreciate that changes to the EA act are required to make decision-making more timely and add greater certainty to the EA process.
Our general comments on Bill 76:
In general, OPPI supports the fundamental direction and intent of Bill 76. We are encouraged to see that the key elements of the environmental assessment process have been maintained in subsection 6.2(2). The EA process has added significant value to infrastructure planning through consideration of the need to identify problems/opportunities; consider alternative solutions; investigate alternative methods; provide clear, traceable documentation; and involve stakeholders.
OPPI also supports in principle the proposed changes to the class EA process. Most environmental assessment projects undertaken by our members are guided by planning processes outlined in parent class EA documents. Our experience indicates that the class EA process has operated relatively efficiently and effectively and should continue to do so given the changes proposed in Bill 76.
We have, however, three issues, some concerns and recommendations regarding the level of uncertainty concerning the following: one, the integration of Planning Act and EA act processes; two, the use of a terms of reference to scope EA act requirements; and thirdly, we have other general comments. The remainder of my presentation will focus on these three aspects and hopefully provide the committee with some useful direction.
First, integration of Planning Act and EA act processes: the problem as we see it.
To understand the importance of integration, one need not look further than the challenges that currently face municipalities throughout Ontario. Lower provincial transfers of financial resources and higher transfers of day-to-day planning responsibilities are causing many municipalities to reassess what they can afford and environmentally sustain in terms of future population and employment growth and infrastructure maintenance and expansion.
As you all well know, the Planning Act provides planners the legislative framework for managing population and employment growth through such documents as official plans and zoning bylaws. Conversely, the EA act has historically been used to plan the specific infrastructure projects that are needed to service growth areas identified in official plans and other such documents. Land use and infrastructure planning follow separate processes which almost without exception have been conducted in series rather than parallel by municipalities.
In almost all cases where land use decisions precede infrastructure servicing decisions, the basic environmental consequences of servicing growth are not considered during official plan preparation. It's not until the servicing EAs are carried out that members of the public and other government agencies become more fully aware of the direct and indirect impacts infrastructure development will have on the community's natural, social, economic and cultural environment. Experience demonstrates that it is extremely difficult to revisit land use decisions at the time of the EA, even though other land use alternatives may substantially reduce the need for such areas where infrastructure solutions are being considered. In the end, timing becomes a critical factor.
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As I mentioned previously, municipalities are under increasing pressure to accommodate population and employment growth in ways that are both affordable and environmentally sustainable. Many planning practitioners recognize that the proper response to these challenges lies in the integration of land use and infrastructure decision-making processes, the result of which is more commonly referred to as a strategic EA.
Strategic EAs integrate land use and infrastructure decision-making to the point where problems and/or opportunities at a regional, area municipal or secondary plan area can be determined and reasonable solutions or alternatives can be assessed. This allows all stakeholders an opportunity to assess the affordability and sustainability implications of various land use infrastructure strategies before selecting a preferred solution. The products of a strategic EA generally include revisions to an official plan and master infrastructure plan documents.
Because of the scale of this type of study, no attempt is or should be made to assess specific design issues normally addressed when one examines alternative methods. This level of planning is best left to a time when funds are available to carry out the specific infrastructure projects identified in the master plan documents and detailed studies can be more highly focused.
Our current EA legislation does not allow a proponent to submit for acceptance and approval an individual EA or strategic EA without proper consideration of alternative methods. The solution to this problem may well exist in Bill 76, although specific wording that will address this does not appear right at the moment.
OPPI would like to make the following five recommendations:
(1) That the Ministry of Environment and Energy, MOEE, and the Ministry of Municipal Affairs and Housing support the need for better integration.
(2) Make resources available for municipalities to become more aware of the benefits of strategic EAs.
(3) Recognize strategic planning exercises as individual EAs by including them in section 11.2.
(4) Prepare regulations and/or guidelines that define how a terms of reference could be used to carry out a strategic EA.
(5) Incorporate into parent municipal infrastructure class EA documents the need to integrate Planning Act and EA act requirements.
Our second issue concerns the proposed terms of reference.
The problem: In the past, our foremost criticism of the EA process has been the length of time taken for approvals, the lack of certainty in expectations for the EA process and content, and the lack of autonomy allowed to proponents, municipalities in particular, in guiding the planning process in a manner that is appropriate and responsible for their given mandate.
Our solution that we can see: It appears that the terms of reference may resolve some of these problems. However, in its present form there exists a great deal of uncertainty as to how the terms of reference will be used or misused in actual practice. OPPI presents five recommendations in this regard:
(1) That regulations and/or guidelines be established to clarify how the terms of reference should be developed for strategic EAs, as mentioned earlier, individual project EAs and parent class EAs.
(2) That regulations set out the extent of flexibility to be allowed in a terms of reference when interpreting sections 6.1 and 6.2 of the bill for waste management planning.
(3) That the process to establish a terms of reference be consistent with good environmental planning practice.
(4) That regulations be passed outlining when and how it is appropriate to revise a terms of reference.
(5) That the minister be given the authority to monitor the progress of an EA and allow changes to terms of reference as necessary and where supported by stakeholders.
Finally, our other general comments on Bill 76.
Non-prescriptive guidelines should be prepared outlining MOEE's expectations with regard to stakeholder involvement.
OPPI does not support sections 9.2 and 11.3, which give the minister the right to overturn or reconsider a decision of the board.
Public service employees with conflicts of interest or responsibility should not be appointed to the EA board.
There is a need to clarify how the transition to Bill 76 will apply to projects which are now under way.
Bill 76 must make reference to section 6.2 when determining the content of parent class EAs.
The revised EA process should include cumulative effects assessment.
The minister should not make a mediation report public upon referral of the application to the EA board.
Finally, ecosystem-based planning principles should be reflected in the definitions of the environment.
OPPI looks forward to working with the ministry in developing the guideline documents and regulations, as we mentioned above, that will accompany this legislation to provide greater certainty and direction.
Mr McGuinty: Thank you very much for making a presentation. Maybe I can ask you this at the outset. Let's assume that no amendments are made to this bill. What's your advice? Do we vote in favour of this or do we vote against it?
Ms Dianne Damman: I'm sorry. You said assuming there are no limits to --
Mr McGuinty: No amendments. Is this a step forward or a step backwards or is it a step sideways?
Ms Damman: In many ways you've been hearing a lot of good input from various parties who are actively involved -- environmental assessment practitioners, planning practitioners -- in doing the hands-on work required under the umbrella of the legislation.
I think that to approve the bill as it stands now would be not the prudent thing to do. There is room for improvement: some of the points Philip has addressed, a number of other points included in our submission. Speaking to some of the details of the act such as the seven-day allowance for addressing deficiencies, that is not really an adequate time for a proponent to deal with deficiencies that may arise. In addition, there are issues pertaining to class environmental assessments in terms of the specifics of how these would be used by municipalities and how they would be integrated with broader strategic planning issues. Those are also concerns that should be addressed.
There are some good things that are added to the bill. The entrenchment of public consultation as a legislated requirement is certainly a positive step. Although in the past proponents should have, in theory, undertaken public consultation anyway, this ensures that will happen.
We believe there are further guidelines or regulatory additions that should accompany the bill to address some of the specific issues, such as public consultation, such as class environmental assessment, such as amendments to the terms of reference.
Mr McGuinty: I'm not sure whether that's a yes or a no.
Ms Churley: That was a careful sidestep.
Ms Damman: That was a diplomatic answer.
Mr McGuinty: Do you hold public office?
I wonder if I could put it this way. The minister, who came in to see us -- she was one of the earlier witnesses; she kindly came in and spoke with us at some length -- told us that the act was going to provide for early and effective public consultation, and we've heard all kinds of witnesses express concerns about the fact that the public won't be invited to help lend shape to the terms of reference, which is the very preliminary document. The minister told us that Bill 76 would increase certainty. There's reference in here at some length to the fact that this is going to lead to uncertainty. And the act of course is supposed to improve environmental protection.
You see, one of the tough things we face as members of the Legislature here is that you can only vote yea or nay. I'm just trying to pin you down. Is this an improvement? Is Bill 76 an improvement?
Mr Chris Murray: Of course it gets deferred to me. As Philip said at the very outset, in terms of the general direction it's going in, yes, it is an improvement. However, there is still a certain amount of caution that this group and other groups are trying to advise you on. To approve it as is isn't necessarily the direction you should go; there's a need for amendments. But we do encourage the government's direction. We believe it is the right direction, but there still is a need for fine-tuning.
The Chair: I think that's the best you're going to get, Mr McGuinty.
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Ms Churley: Thank you for your presentation. Were you here to present on the changes to the Planning Act?
Mr Wong: Yes, we were.
Ms Churley: I thought I recognized you. I don't always agree with every aspect of what you say, but I do want to compliment you on your thorough review and your very professional presentation. It's very clear that you analyse very carefully the material before you and you give very thoughtful, good presentations.
Having said that, I do agree with some of your points and not with others. I appreciate the positive aspects you've brought before the committee today and hope that some of your amendments will be taken into consideration.
There's no time to discuss all the areas you brought up today. One I'd like to refer to, because I have a particular interest in it and we haven't talked about it a whole lot, is class EA. There's a concern expressed by some, and certainly I have this concern, that because the proposed legislation doesn't define what can be in a class EA, there are concerns about cumulative effects, which you mentioned, by the way, in another area. And there are concerns that the way it's written now, conceivably landfill could be -- I don't know if you're aware of that -- brought in under class EA, plus there's no provision for public consultation around that.
Would you say there needs to be a better definition of the kinds of things that should come under class EA and that there should be some kind of public participation around those kinds of decisions?
Ms Damman: I would say yes, there needs to be a better definition of what the requirements for class environmental assessments will be. I think now is the key time to look at the existing class EA system and improve and build upon that, especially if municipalities will have greater opportunity under this legislation to use class environmental assessments as an approval mechanism.
Under the current class environmental assessment process there is provision for public consultation, and we would certainly encourage that to remain. The level of public consultation differs, depending on the schedule under which the project falls, but as in any good environmental assessment or environmental planning work, public consultation is an absolute essential.
You also mentioned cumulative effects. I guess one could look at that, within the context of class environmental assessments, as part of the overall impact assessment framework. We would encourage that. In addition, we've noted in our submission that consideration should be given to including cumulative effects assessment as a requirement under the Ontario act. As I'm sure you're familiar, under the recently approved federal act there is a requirement for cumulative effects assessment, and in fact the federal government is currently preparing or working towards the preparation of a guideline document for proponents concerning CEA or cumulative effects assessment. We would recommend that that issue be given further consideration.
Ms Churley: On another issue, on public consultation, we've had every day discussions around the fact that there is no provision for public consultation around the very important setting of the terms of reference, which is at the very front and the most important part because that's where the thing is scoped. Would you recommend to the government that the public be included in that process at the very beginning?
Ms Damman: Yes, we would echo that recommendation. I think it's important that the public be involved as early on in the process as possible. The public, those who will be directly affected by the proposed undertaking, will have valuable information to contribute. That contribution should start at the outset of the proposal in terms of defining the terms of reference, the approach that will be taken and, perhaps most important, it can be used as a tool to help scope environment assessment. I think we're all familiar with EAs that have taken on a life of their own. If any upfront scoping can be accomplished, it is desirable.
Mr Galt: Thank you for the thoughtful presentation -- well presented, well packaged. On page 2, talking about transition, we've had a few presentations express concern about the transition from the old act to this bill coming in probably early in the new year. Some have talked about time frames and others have talked about issues. Do you see this as a time frame, that it should bridge over six months, 12 months, that kind of thing, or should it be based more on the issue at hand? Or do you have any feelings on that transitional period?
Mr Murray: With respect to the transitional period, what seems to be missing in the legislation right now is some kind of grandfathering clause. A number of individual EAs are under way that are substantially nearing the end of their process. As it stands right now, it's my understanding that those projects would be required to stop and to submit a terms of reference to the government before they could proceed. I don't really see what benefit that would provide at this time. It does make sense that there be some allowance for those projects that are already under way to complete their process.
Mr Galt: So you suggest that we should look at them individually and say we'll grandfather in those 11 out there and not the others? Or would you say we should go to a time frame and if you can't get it in in six months then we're going to get on with the new program?
Mr Murray: I'm a little reluctant to support a time frame because the amount of time it takes to complete an EA depends on the EA itself. If I were to lead you in any direction, it would be more to the former, to simply address all the EAs currently under way and include them under the grandfathering clause. Other EAs that are moving along, that will become EAs, those are the ones it would make more sense to apply to the legislation.
Mr Galt: In the appeal you mention on page 1 in connection with the terms of reference, do you want to talk a little more about your thoughts on the appeal process, how you think that might plug in, how you would like to see that work?
Ms Damman: Although we haven't spoken to the particular details here, we feel it's a necessity. As proponents move through the process there can be things that change, perhaps as the result of public input, perhaps as the result of certain technical studies that have come forward, and the legislation, as it is currently framed, does not make any provision at all for any sort of appeal or revision to the terms of reference.
Mr Pettit: Thank you very much for your presentation. I might add it's always a pleasure to have someone from the hometown region of Hamilton-Wentworth participate in our deliberations.
I'm interested in your comments regarding the need for better integration of the EA and the Planning Act. One of the intents of Bill 76 is that the terms of reference can, in certain cases or where applicable, incorporate planning done by the proponent under other legislation. Given that, would you agree, at least to a certain extent, that integration with the Planning Act is being carried out under Bill 76?
Ms Damman: Our view is that that issue has not been adequately addressed and that it is something that should be examined in more detail.
The Chair: Thank you very much for appearing before us this afternoon and having taken the time to develop the brief. It's much appreciated.
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TORONTO ENVIRONMENTAL ALLIANCE
The Chair: Our final presentation this afternoon is the Toronto Environmental Alliance, Mr Simpson and Ms Thorson. Welcome.
Ms Stephanie Thorson: My name's Stephanie Thorson. This is Greg Simpson. We're both project coordinators with the Toronto Environmental Alliance, which is a public interest group in Toronto, founded in 1988. It's an alliance of several caucuses that work on a range of issues such as pesticide use, waste reduction, climate change and transportation. The alliance has been involved in several environmental assessments in the past, such as the sewage treatment hearings and waste management plans such as the Interim Waste Authority.
As a staff member of a public interest group, the Toronto Environmental Alliance, I came here to discuss primarily the changes to public involvement in the Environmental Assessment Act. But there are more fundamental changes to the act that affect public involvement that I would like to discuss.
Even if you had provisions for extensive public involvement, which of course you don't, what the public is no longer allowed to comment on is the whole scope of the project, as has been discussed, I'm sure, in previous presentations, including the last one. Section 5.3, the cornerstone of the existing EA act, which forces the proponent to outline alternative methods of carrying out the goals and alternatives to the proposal itself, is essentially gone. By giving the minister the power to determine what has to undergo environmental assessment, you're throwing out the whole purpose of the act. The public won't even have a chance to find out what projects are proceeding behind closed doors, because notices of such projects are not mandatory, the ones that don't have to go through assessment. This is totally unacceptable, and we feel that Bill 76 is dangerous and either has to be scrapped or dramatically changed.
Under the new rules, if a proponent wanted to build a highway, for example, alternatives to the highway itself, such as light rail or car pooling, would not even have to be investigated by the proponent; it would only be an option. This is a change that is totally unacceptable and makes the Environmental Assessment Act a farce. A proponent could plan a highway, yet only be required to have available routes for a portion of the highway under discussion. The proponent's preferred option for the portion of the highway could be the only element up for debate.
This takes the teeth out of the EA act and sets the clock back decades in terms of environmental protection legislation. The rules have been removed. In fact, there isn't even guidance for proponents on how to proceed with good planning procedures.
Without the ability to discuss the scope of the proposal, public involvement becomes meaningless. The public's role is very limited in this bill and does not allow input into the terms of reference. The public should be involved before each key decision-making point in the process, and it should be an open process, because some decisions are just too important to be left to a few people.
Furthermore, mediation is only called for after the decision has been submitted to the minister, and this is far too late in the process. The option of alternative dispute resolution should be able to be invoked at any time during the process.
As the Canadian Environmental Law Association points out, "Section 6.1 says the proponent must consult with such persons as may be interested, but does not define who are interested parties." So who determines the interested parties? It should be left open for people to select themselves, rather than giving that power to the proponent or to the minister.
I'd like to point out that the public has become a sophisticated set of groups as a result of past experiences in interventions and increased awareness of environmental issues. Taking away the ability to participate will not take away opposition to proposed projects. People won't stand for it any more. You can't just turn back the clock. They've gotten too sophisticated. In fact, by not allowing people to participate in the process, you're forcing opponents to work outside the process, either through calls to their elected representatives, through the media, or by organizing opposition groups. This will result in the further politicization of the issues, and one of the reasons the environmental act was created in the first place was to give a forum to opposition, to sort of rein it in and give it some structure and focus.
True consultation gives legitimacy to the decision-making process, and if you have a consultation process in place, people are much more realistic in the tradeoffs they make, so you're probably going to get better compromises as a result. With the current situation, you're going to have polarized factions fighting each other.
Since this closes the door on the public in any meaningful way, it results in closed-door deals between the minister and the proponent. The public will be restricted to discussing the technical issues of the proposal rather than the more important planning issues. In the highways example, rather than discussing if light rail or car pooling could replace the need for a new highway, the public would be limited to discussing the technical merits of various options. So even if this government had kept intervenor funding which would allow the public to hire experts to discuss the merits of the technical aspects, the fundamental questions of whether the highway were needed at all could not even be addressed. It would be impossible to challenge the need for a highway based on the technical aspects, which is what this legislation does.
Another alarming change this bill will bring about is the decreasing flexibility in the terms of reference. Under Bill 76, terms of reference could be approved in 1996 and yet the actual EA statement could be submitted in the year 2020 using the same terms of reference. This situation does not reflect the fact that environmental progress is being made all the time, that techniques can quickly become outdated. For example, if a waste management plan were approved in 1982 and were still in force, recycling would not even be considered as an option, because then recycling was not considered a viable alternative in waste management by the government.
We feel a five-year time limit should be placed on terms of reference to reflect that things do change. In the case of recycling, in the past five years alone the government has realized -- five years ago, they thought an approximately 20% diversion rate was possible with recycling; now they realize it's in excess of 70%. That's just an example of how quickly things change and to what extent.
Terms of reference also have to be flexible throughout the process. A proponent should have the option of modifying the terms of reference as the assessment takes place because learning takes place, or at least it should, throughout the process. And the public should have a role in that education process because, believe it or not, the experts don't know everything. As I stated, things change, and this should be reflected in the process and the ability to amend the terms of reference.
Finally, Premier Mike Harris has stated on several occasions, in opposition and as Premier, that he supports full environmental assessment, a process that seeks to find solutions to problems that are the least environmentally damaging. Surely this bill serves as an embarrassment to the Premier and he's trying to distance himself from it. This a broken promise that will not go unnoticed by the media, and if the media do not pick up on it by themselves, the Toronto Environmental Alliance will be happy to point it out to them.
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Mr Greg Simpson: I'll continue to make a few more points just to sum up our presentation. Essentially, we appreciate the intention with which this particular act is proposed, to try to clean up various parts of the act that have been problematic over the years. Nobody benefits from long-drawn-out environmental assessment processes, least of all an average homeowner who might get drawn into the process and have four years of their life consumed, involved in fighting some proposal, without getting paid or compensated for it. This is more than limiting the amount lawyers or consultants can make from this whole process.
We need to find a way to reduce the time line for environmental assessments. Unfortunately, the changes that have been put in Bill 76 allow too much ministerial flexibility to exempt different proponents from the whole Environmental Assessment Act. The idea behind the Environmental Assessment Act was to serve as a planning mechanism for environmental protection. That's what it's there for. If you don't have it there, then you've got the Environmental Protection Act to deal with the technical aspects of whether a particular proposal harms the environment. What the Environmental Assessment Act is there for is to make sure you look at alternatives.
If it were not for the fact that there is an Environmental Assessment Act, you would not have had recycling and composting programs across the province to the degree you have now. I worked for four years with the Metro works department, on the other side of the whole environmental assessment process, when it was going through environmental assessments related to landfills. Because of that process and the fact that they were forced to look at alternatives, recycling developed in Metro Toronto, composting programs developed in Metro Toronto. The money would not have been spent, those alternatives would not have been looked at.
Right now, with Bill 76, the minister can exempt the proponent from having to look at alternatives. In fact, with regard to landfills, there is a strong possibility under the terms of this act that you could exempt a landfill entirely from the Environmental Assessment Act.
In terms of why this is here, essentially you've got a decision-making process, in the same way that if you had a referendum on a decision or if you had a court case or if you had an election, you'd want a balanced process so that both sides of a particular decision can get their points of view out. Unfortunately, this act makes no reference to the fact that intervenor funding was discontinued with fast decisions, and I believe that's an essential part of this process.
It's very difficult for opposition or for individuals who are concerned about a proponent to participate meaningfully in a process where you've got very expensive lawyers and very expensive consultants being paid for by a proponent opposing you. The people getting involved in this are your average, middle-class homeowner with a family. They're concerned about their family's health and they're concerned about their property values. It's generally not professional environmentalists who are running around doing these things. It's generally somebody who didn't have an interest in this until it was decided to put some particular proposal right next door to his home.
Essentially, if you set up the process that Bill 76 is going to institute where you have a lot of uncertainty, where the rules can be changed at any time according to the ministry, where there is no public involvement in the terms of reference right at the beginning, you're setting in place a process that is stacked towards the proponent, and when there are complaints from constituents, they'll be going to the local MPPs, and those folks are basically going to be saying, "Wait a minute; democracy isn't working for me."
Thank you for your attention.
Ms Churley: Thank you for your presentation. You have spoken to many of the same issues a lot of community and environmental groups have referred to, problems with various aspects of the bill.
I'm going to quote something. My colleague Mr McGuinty asked the Premier in the House one day, "Do you still today believe that Ontario dumps ought to be the subject of full and public hearings under the Environmental Assessment Act?" and Mr Harris said: "Yes, I do, in spite of the fact that we felt the previous government was proceeding in error with its megadump proposal. At least they were having full environmental assessment, not trying to short-circuit the process, not going without any full environmental assessment." That's one of the times, and there are others, when the Premier of Ontario, Mr Harris, has guaranteed full environmental assessments for landfills and other, related waste management facilities. Would you say, given the possibility of negotiating key elements of EA off the table during the discussion of the terms of reference, that this promise would be kept?
Mr Simpson: It doesn't appear to be. Depending on what actually happens when the minister is negotiating things away with the proponent, there is not full participation from the public in deciding the terms of reference. We and many other submissions have said that this is crucial if the public is not involved, and to the degree that for later parts of the act Bill 76 actually says that it's up to the minister and the proponent's decision as to who is an interested party in this whole process, no, I don't believe that promise is being kept. Unfortunately, you could question whether he is keeping the promises to the 905 anti-dump groups or other possible opposition to future dumps, basically saying that a dump is a serious proposition and you need to have that process.
Ms Churley: So you would recommend that for the Premier to keep his promise, this committee needs to put forth an amendment that -- I don't have the sections in front of me now -- during the process of negotiations around the terms of reference the heart of the EA be kept; that is, looking at the alternatives to the undertaking, the alternatives to the site, the definition of environment. Those are key elements, the heart of the EA, which now, under this new proposed legislation, might not be looked at during the EA. So you recommend that to keep that promise the government has to amend that section
Mr Simpson: To keep the act meaningful, yes, they do.
Ms Thorson: I'd like to add something too. While subsection 6.2(2) does maintain the force that the proponent must investigate alternatives, subsection 6.2(3) says, "The approved terms of reference may provide that the environmental assessment consist of information other than that required by subsection (2)." You'd have to remove subsection 6.2(3); that has to go. The cornerstone of the EA act was section 5.3, which is now subsection 6.2(2), and that should stay, definitely.
Mr Galt: Thanks very much for the presentation, your thoughts and ideas. You made reference to four years being a long time working towards a landfill site and some of the frustrations of homeowners. I can give you time frames that are much longer than that. We heard from the mayor of Cochrane yesterday. They were up to 13 years and still going. I forget how many hundreds of thousands of dollars they've spent and still they're not winning. Meanwhile lives of people have been disturbed during that period of time.
It's just nobody's winning. Obviously the system is broken and we want to try and fix it. An awful lot of what we're fixing is about recommendations that came through from the advisory committee that was working on this over the last quite a while.
You made reference to the alternatives, looking at all alternatives. I have a little difficulty when we already have in regulations something like the 3Rs program, the composting. Do you think we need to go back and reinvent that wheel over again with some of the alternatives? That's some of the thinking in trying to get away from spending horrendous quantities of time on reinvesting that wheel. I'm interested in your comments.
Mr Simpson: Essentially what happens in the various environmental assessments -- actually Metro is just involved in one right now potentially, if the Kirkland Lake process continues. They have basically looked at various alternatives. Every time you're talking about a waste management plan, it's different for every jurisdiction. What works in Metro Toronto may not work in Sarnia and vice versa. Nobody wants to reinvent the wheel, and what happens is you end up having information that's brought in from all jurisdictions. It's basically reused information. The consultant who's working in Metro Toronto is using information from Ottawa and all these other things, so it's not necessary to start from scratch each time. There's a body of knowledge that keeps building.
What the requirement actually does allow you to do is that if there are any new developments in the time frame, you are constantly searching to make sure you're on the cutting edge of technology, of what's happening. As well, if there is something particular to that jurisdiction that is possible as an alternative that may not have been possible somewhere else, you have to pay attention to that. You can put limits around that, but I think the essential idea of actually having to look at alternatives has to be there somehow.
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Mr Galt: I'd like to explore intervenor funding with you for a second. I'm sitting here really struggling, whether you call it intervenor funding, participative funding, assisting. We end up, as was just being related to me, with four landfill sites in one county. The proponent has four consultants, four hydrogeologists. The other side has four hydrogeologists, four other groups of consultants and lawyers and so on. It just strikes me, what we're after is to find out, is this environmentally sound or not? Why get two sides fighting if at the very beginning, when these terms of reference are being developed, we could come up with an agreement by the public and the proponent as to who that hydrogeologist would be or who the other consultants or lawyers or whatever would be? There would be a neutral party. Would we still need participative funding if we could come up with that kind of a neutral body?
Mr Simpson: I think you need participant funding throughout the process, but if you, for example, had proper representation right at the beginning during the terms of reference process -- right now the public is not involved; it's just the proponent and the minister -- if the public was involved and represented adequately there, that would certainly serve to shorten the whole process so you don't, as you say, have all these disputes: "Well, I don't trust this hydrogeologist. I'll bring mine in and you'll have to pay for my consultant." Yes, the more things you can get out of the way and get agreement on right at the beginning, that serves to shorten the whole process. As we say, it doesn't serve anybody to have something last 13 years and it just ends up that the proponent spends lots of money. If you actually have intervenor funding to make sure it's a fair funding, you have lots of tax dollars going for this as well.
Mr Galt: That was the old process problem. Maybe it's mediation up front and getting an agreement as to who these specialists will be.
Mr Simpson: Plus, the intervenor funding never covered the full costs of opposition to any proponents. You had many members of the general public putting in many hours of their own time on a volunteer basis and basically throwing their lives off to the side while they participated in this process.
Mr McGuinty: Thanks for your presentation. It's driven home for us some of the key messages we've heard the last few days. I wanted you to speculate a little bit -- you're going to be the last group we're going to hear from here in Toronto -- to look into the future, drawing on some clues from the past in terms of the record this government has vis-à-vis the environment. If Bill 76 goes ahead, particularly as it contains extensive discretionary powers for the minister to ensure that there's no longer a full environmental assessment as it's classically been defined until now, what's the landscape going to look like? What's it going to mean?
Ms Thorson: It could look like a proponent proposes a project and it is totally at the discretion of the minister whether that project is even subject to an environmental assessment process, whether it has to go through the submission of a statement, go through a hearing, be subject to assessment, which is not a way to proceed. You could get the power concentrated even further in this province so that proposals can be rammed down the throats of people who legitimately have concerns and perhaps even have better alternatives, but those better alternatives were never allowed to see the light of day because no one asked for their opinions.
There could be a lot of deal-making between the proponent and the minister, and the public in this case won't even find out which proposals are not subject to environmental assessment because the projects that are not required -- the public is not notified through the Environmental Bill of Rights or any other notification, they just happen. If they happen on their back door they'll catch wind of them, but that's the only way and then it will be too late.
Mr McGuinty: One of the stated objectives of Bill 76 is to bring about greater certainty. Now, based on what you've told me, is this going to lend greater certainty to different proponents from different parts of the province putting forward different proposals?
Mr Simpson: When you have as much ministerial discretion as is outlined in this act, there is not the certainty that you would really like to see. As well, I would add to Stephanie's comment that basically it's just going to shift the battlefield -- or whatever you want to call it -- from the environmental assessment process to the courts. Opposition to a particular proposal is not going to go away. It will find some way, be it the media or be it the courts. One of the good things in the environmental assessment process is that it actually keeps it fairly reasonable. You try to actually have some mediation going on, you have proper representation to see if you can come to agreement. You're going to have an adversarial situation no matter what. These things still could drag out only they'll drag out through the courts.
The Chair: Thank you kindly for joining us this afternoon and sharing your views with us and the preparation that you had. We appreciate it.
That was our final witness for today. I see a hand waving in the wind from Ms Churley.
Ms Churley: I just wanted to make sure that in the anxiety to get out of here for today you saw me. I'm sure you're all very sad to hear this, but I'm unable to join the committee in Thunder Bay tomorrow. Marion Boyd will be replacing me and I've briefed her well. Our party will be well served tomorrow. But because this is my last day on the committee before clause-by-clause, I do want to make a motion. I've already checked that it is in order.
I move that Ms Elliott, the Minister of Environment and Energy, who is ultimately responsible for Bill 76 and who is giving herself unprecedented powers while gutting the EA act, be requested to attend the committee for all clause-by-clause deliberations.
Mr Chair, I'm asking for this because it's very clear that as the committee progressed, the committee heard some concerns over and over and over again about the problems with this bill that the minister has not had the benefit of hearing repeatedly as the committee has. There are a few members who I see here today who have been consistently with the committee from day one. I think we've all got a clearer picture of some of the major problems with this act. I fear that when the parliamentary assistant goes back to the minister and the powers that be, whoever, in the Premier's office who want this bill to go through as is, it will fall on deaf ears. I should withdraw that. My friend Gary Malkowski would not have approved of that "falling on deaf ears." I apologize for that.
I think you get my gist that I'm afraid that, unfortunately, the committee members, should they agree with some of our amendments, the government will not agree overall, and I think it's essential that the minister be here to hear the arguments as to why some of these amendments we're putting forward need to be made to keep the integrity of this act to protect the environment.
The Chair: Ms Churley has put forward a motion to the committee. Is there debate?
Mr John Gerretsen (Kingston and The Islands): Surely it's a reasonable request, Mr Chair.
The Chair: Is there discussion? Is there comment?
Mr McGuinty: Sure. I'd be glad to speak in favour of that motion, Mr Speaker --
Ms Churley: Don't call him "Mr Speaker" today.
Mr McGuinty: There may be an opening there. It's an eminently reasonable request. I know that traditionally the minister appears before a committee at the outset and limits his or her time here in order to limit his or her exposure to the slings and arrows of questions launched by opposition committee members. But there's a number of concerns that are raised in Bill 76, and some of those -- we may be able to obtain some reassurance from the minister in terms of why it is that she's seeking to have these powers, broad-based powers. It may very well be that she will conclude that she doesn't need them. If that's the case, then of course we can remove them from the bill itself.
But we can't get that kind of reassurance and we can't have that kind of a discussion without the minister herself being here. So I lend my wholehearted support to my colleague's motion.
Mr Galt: Just a short comment. I was listening to the motion but I lost track of where the motion ended and the speech started. Maybe we could have it re-read.
Clerk of the Committee (Ms Lynn Mellor): Ms Churley moved that Mrs Elliott, the Minister of Environment, be requested to attend at this committee for all clause-by-clause deliberations.
Mr Galt: Thank you. We've heard the motion and we're not in support of that motion.
The Chair: If there's no further discussion, I can call the question.
Ms Churley: I'd like to make a brief comment. As I, and others, pointed out repeatedly during these hearings, the Premier of this province made a promise to the people of Ontario that garbage dump hearings would be subject to full environmental hearings. Perhaps there's a lack of understanding about what's going on here, but I think the minister needs to hear the serious ramifications of being party to breaking the Premier's promise if she's not aware of the implications if some of these amendments are not put through.
She can always turn it down, I suppose, but I don't understand why you can't support the motion to request her presence. It's up to her to say yes or no. So if you'll reconsider supporting a motion to request the presence of the minister, then it's up to her to decline or come.
Mr Gerretsen: I'm sure it will be supported now.
Mr Stewart: If I may ask, is this precedent being set for all of the clause-by-clause we have had on various bills through this term and indeed the previous terms? I doubt it very much.
I take a little bit of exception to the fact that I, being part of these hearings for two weeks, do not have the ability to have listened well to these people and to either make amendments or suggestions. I think probably we in this room, including yourselves, have gained a great deal of knowledge from the hearings and I think we can stand in good stead and create an act that will be environmentally sound in this province without having the minister at clause-by-clause for two days. So I won't be supporting the motion.
The Chair: Any other comments?
Mr Galt: Put the motion.
The Chair: All right. All those in favour of the motion? All those opposed? The motion is defeated.
Any other business?
Mr McGuinty: Someone made some reference at some point to the fact that the ministry is considering giving some consideration now to how it would compensate people who find their property located in the vicinity of a landfill site. I wonder if Dr Galt could make some inquiries to find out what's going on, if anything, in that regard so that we might be advised here at the committee. Is there a discussion paper that's been produced?
Mr Galt: There is a proposal for landfill site standards that was put out roughly on June 15, looking for comment. I think the comment period originally was to July 15 and extended to September 6. In that there is the compensation --
Mr McGuinty: So there's nothing separate from that relating to compensation that is been the subject of some consideration.
Mr Galt: Do you have a copy of that?
Mr McGuinty: Oh, yes, I've got that.
Mr Galt: It's in there.
Mr McGuinty: That's it?
Ms Churley: Just to follow up on that, I believe the agricultural group alluded to a task force being set up to look at the issue of compensation. What we want to know is: Is there a task force? If there is, who's on it? And is it in operation at this time?
Mr Galt: There is going to be. We'll get you details for tomorrow.
Mr Stewart: They'll have to come to Thunder Bay with us, Ms Churley.
The Chair: Likewise, I want to say thank you to all of you, because I found this to be a very civil committee in terms of its discussions and debate. I have a long-standing commitment in my riding tomorrow, so I will not be able to join you, but I've learned a great deal and I know we all have. So I want to thank you all for your cooperation.
The meeting reconvenes tomorrow in Thunder Bay at 11 am.
Mr Galt: If I may, Mr Chair, thank you for doing an excellent job as Chair of this committee. You've been handling yourself extremely well, and handling the committee.
The committee adjourned at 1535.