Submission of the Canadian Construction Association House of Commons - PDF document

Submission of the Canadian Construction Association House of Commons Standing Committee on the Environment and Sustainable Development for the Parliamentary Review of the Canadian Environmental Assessment Act Introduction This document is the submission of the Canadian Construction Association (CCA) to the House of Commons Standing Committee on Environment and Sustainable Development for the Parliamentary Review of the Canadian Environmental Assessment Act (CEAA) . CCA has more than 17,000 members across Canada and represents the non-residential side of the construction business. As an industry, construction employs 1.25 million Canadians and accounts for just under seven percent of Canada’s total GDP . Consequently, when planned projects experience issues of uncertainty and unpredictability in relation to the environmental assessment process, both CCA members and the economy of Canada are adversely affected. The members of CCA have a considerable interest in the administration and operations of the CEAA given the impact environmental assessments can have on the pace and design of new construction projects. For example, with the Supreme Court of Canada Red Chris Decision, important projects like the extension of Route 407 in Ontario suffered a one year delay and a regrettable postponement of the intended associated benefits of stimulus funding. CCA is very supportive of environmental assessment and believes that it can be a key contributor to sustainable development in Canada. That said our membership is greatly concerned by matters relating to the efficiency and effectiveness of the administration of CEAA , and the uncertainty and unpredictability of its implementation. As remarked during a presentation to the Senate Finance Committee on July 6, 2010, CCA fully supports the amendments to CEAA implemented through Part 20 of Bill C-9 and applauds the more recent Establishing Timelines for Comprehensive Studies Regulations , and particularly how effectively the Canadian Environmental Assessment Agency (the Agency) has taken on its new responsibilities. In this submission, CCA is providing some additional high level perspectives on CEAA and its implementation in the context of this Parliamentary Review. CCA believes that despite the recent positive amendments to the Act, there persists serious issues around CEAA related to what we would suggest are fundamental flaws in the legislation. We believe that reforming federal environmental assessment legislation is necessary to address those issues. CCA Position CCA believes that the Government of Canada should continue its effort to improve administration of federal environmental assessment, recognizing that substantial legislative reform is necessary. While many important amendments were made to CEAA as recently as 1

2010, it remains that these amendments, while welcome, are more triage for legislation that has some inherent flaws that require remedy. In recommending legislative amendment, this Parliamentary Review should consider these interrelated factors:  The way in which environmental assessments are triggered;  The entrenchment of duplication, and the lack of reciprocity with and substitution by the processes of other jurisdictions;  Inherent process uncertainty and issues of timeliness; and  The wasted resources applied to the assessment of inconsequential projects that have minimal environmental risk that could be applied in more meaningful ways toward the achievement of sustainable development. CCA believes that the Government of Canada should play a leadership role in avoiding duplication and negotiate the establishment of a National Framework for Environmental Assessment with other jurisdictions. The Framework would be aimed at achieving equivalency and reciprocity between jurisdictions, working towards the basic objective of “one project one assessment, ” where the Government of Canada respects other jurisdictions and minimizes or avoids duplication. In reforming the legislation, the Government of Canada should assess only projects where it is the proponent, where no other jurisdiction has authority, the project is largely on federally administered land, or perhaps where there is potential for significant trans-boundary environmental effects. CCA believes that there should be no mandatory requirement for environmental assessment where there is a transfer of land, federal funding or a federal permit to be issued, except in the circumstances suggested where federal involvement is warranted and not duplicative. The reformed legislation should adopt a list-based approach to triggering which projects require environmental assessment similar to that of some other jurisdictions including various international financial institutions. This would eliminate the currently complicated situation with respect to the triggering of the environmental assessment process, free resources from administrative processes that derive little or no environmental benefit to other more meaningful endeavors, and improve overall process certainty. Triggering Mechanisms and Other Matters of Efficiency and Effectiveness Self-assessment is a key aspect of CEAA screenings. Screenings make up the vast majority of environmental assessments conducted. This and the “triggering” mechanism s for environmental assessment remain a fundamental problem with the Act. For each assessment, there is a complex federal coordination process. Under CEAA an environmental assessment of a project is triggered by a federal authority by one of four mechanisms, wherein the federal authority:  is the proponent; 2

 will transfer land to facilitate its implementation;  provides funding; or  issues a permit or authorization pursuant to a variety of legislation under the Law List Regulations. This process to determine which federal authorities must undertake an environmental assessment results in a gross waste of resources and contributes immensely to process uncertainty and efficiency problems, primarily due to its complexity and diffusion of responsibility. The so called “federal coordination process” is time and resource consuming, unpredictable and uncertain. There is no value added in respect of what needs to be assessed or how to better plan a project to meet sustainable development objectives. The assessment of projects by different agencies leads to inconsistency in application of the law and thus the recent amendments to make the Agency responsible for the coordination of comprehensive studies are excellent. Self-assessment in screenings does raise the question of potential conflict of interest, however, where the assessor and decision maker are one and the same. Provided there are fewer environmental assessments in future, there may be merit in considering centralizing all administration with the Agency as has been done for comprehensive studies with the benefit of improved consistency, Agency knowledge and capacity, and independence. Duplication, Reciprocity, and Substitution The federation of Canada involves a complex division of jurisdictional responsibility between the federal, provincial and territorial governments, as well as Aboriginal communities with settled land claims. These mostly have environmental assessment legislation and processes. While they have similar goals, they are generally different processes reflecting the different jurisdictions. This is a complex matter but it suffices to observe that there are few mechanisms for equivalency, substitution and reciprocity among jurisdictions. Consequently, federal environmental assessment is frequently duplicative of that of other jurisdictions. Environmental assessment is frequently duplicative where the federal triggering mechanism for the environmental assessment arises from the funding, land and Law List Regulations triggers. CCA suggests that it does not make sense necessarily for the federal government to trigger an environmental assessment when it is transferring land, providing funding or issuing a permit or authorization, particularly where an environmental assessment is being conducted by another jurisdiction or where the project is of little environmental consequence, is not substantively on federal land or is not likely to have the potential for significant trans-boundary environmental effects. A simple Section 35(2) Fisheries Act authorization for a small component of a project (e.g., a roadway culvert for a mine), or a federally funded project (e.g., a highway) that is otherwise being fully assessed by a province, results in a broadly scoped, duplicative assessment under CEAA , particularly since the Red Chris decision. With respect, CCA submits that Fisheries and Oceans Canada do not have the mandate, resources and capacity to assess the environmental effects of a mine beyond its legislative authority to issue an authorization (e.g., for harmful alteration, disruption or destruction of fish habitat) for a component of the project that may affect 3