THUNDER BAY REMEDIAL ACTION PLAN PUBLIC ADVISORY COMMITTEE
WINDIGO INTERIM PLANNING BOARD
TRI-NEIGHBOURS WASTE MANAGEMENT
CONTENTS
Thursday 15 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
Thunder Bay Remedial Action Plan Public Advisory Committee
Sioux Lookout
Windigo Interim Planning Board
Friends of the Forest
Tri-Neighbours Waste Management
Friends of the Kam
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
Mrs MargaretMarland (Mississauga South / -Sud) for Mr Jordan
Mr R. GaryStewart (Peterborough PC) for Mr Newman
Mr EdDoyle (Wentworth East / -Est) for Mr Smith
Mr MarionBoyd (London Centre / -Centre 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 Acting Chair (Mr R. Gary Stewart): Ladies and gentlemen, I would like to welcome certainly those in the gallery and those who will be presenting today, as well as all the members. I will welcome them, Mr Gravelle, to Thunder Bay on your behalf.
Mr Michael Gravelle (Port Arthur): As I welcome you, Mr Chair.
The Acting Chair: Thank you. To those who are going to present, I would like you to know the protocol. You have 30 minutes to make your presentation. It can be all presentation, or part of it a question-and-answer period, but you have 30 minutes to do it and the questions will be done on a rotation basis and will be divided equally between the three parties.
THUNDER BAY REMEDIAL ACTION PLAN PUBLIC ADVISORY COMMITTEE
The Acting Chair: The first delegation is the Thunder Bay public advisory committee, and I believe Mr Hartley is the chair. Welcome, Mr Hartley.
Mr Bob Hartley: First of all, welcome to Thunder Bay at the head of the Great Lakes. I looked forward to your committee coming here because I have some very positive things to say to you this morning. My name is Bob Hartley. I chair the Thunder Bay Area of Concern Remedial Action Plan Public Advisory Committee -- the PAC.
I would like to first of all outline the public membership in the public advisory committee. There are 22 members who represent a variety of interest groups which really mirror a cross-section of the public of this very fine city. On the public advisory committee are representatives of most major industries, municipalities, academics, professionals, various organizations such as sports fishing and environmental groups, and the general public. We meet monthly, are strictly volunteers, and are interested in achieving a cleanup of environmental concerns and pollution prevention.
We are part of a very important process, the RAP process. We understand the need for a stepwise, ratchet approach rather than instant gratification by hatchet success, and as a team of RAP professionals develop a consensus for each issue. We understand the need for compromise rather that divisive rhetoric.
Our interest in Bill 76 is proactive and positive. At this time I also wish to congratulate the government for offering to develop an EA process by Bill 76 which will speed up the decision-making under EA legislation. The changes will allow for a decision on the EA application, within a realistic time, either to proceed or not to proceed. The long time length of the present process seems to benefit neither the environment, the public or the proponent. Perhaps only the legal system materially benefits from the present process.
We see the positive changes in Bill 76. They should accomplish a guaranteed access to the EA process by the public, and I'll elaborate on this shortly; a clear understanding of what the EA terms of reference will include, and it's extremely important at the outset that everybody be on stream on this; a time frame for the process that will allow for quick decisions at each step of the process; harmonization with Environment Canada's EA process to produce one product; mediation, extremely important to speed the process along at key steps; a less costly, quicker result; and a decision that does not become mired in bureaucratic paper shuffling where millions of dollars pour into the sands of the legal system.
I've outlined positive views on Bill 76. I'd also like to make a couple of recommendations to be considered regarding Bill 76.
The first one involves public involvement. It's very difficult to get a handle on who the public really is: Is it an interest group, a variety of interest groups, or those people out there who never comment upon anything? But it's very important for the government to get a handle on who the public is and bring them on stream. Our public advisory committee is public. We certainly try to bring all issues to the overall public by keeping the work we do transparent and responsible.
In order to truly involve the public, the ministry should look at a process to bring interested parties from the public on board early. That isn't just posting something in a registry. You want to bring on a team of people, a team that will develop consensus, not adversarial divisiveness. The public can be the greatest strength in any ministerial process if you're brought on at the beginning, if you're brought on in a consensual method, and if you're brought on in a transparent process.
In the present legislation, it seems the public is brought on adversarially partway through the process, and this is really unfortunate. That is, I think, an opportunity for Bill 76 to rectify because of bringing the public in in the terms of reference, but you want to encourage the public to come in. This encouragement will bring a strength to the EA decision that's far beyond today's process. If you look at some of the adversarial decisions that have occurred recently, there are no winners. There's always somebody who feels really miffed. But if you bring the EA process into an openness, you will provide a strength that is unknown, really, in this province.
Encouraged participation in this process provides true strength in decision-making. The RAP process in certain successful areas of concerns such as Hamilton harbour, Bay of Quinte, Collingwood, Nipigon and here in Thunder Bay, to list a few, certainly brings the public into a process to successfully complete tasks.
An example here in Thunder Bay is a decision that brought out of bureaucratic litigation for years the Northern Wood Preservers' contaminated sediments. It was adversarial, in the courts for more than a decade. The public advisory committee initiated a dialogue with the company against the advice of lawyers on both sides, government as well as the company; they wanted to continue the adversarial route. I was at a meeting yesterday in regard to this and it looks like probably within the next few months the process will begin to remediate one of the most toxic hot spots in Lake Superior.
You have to remove it from the court system. As a result, public participation will develop a trust with the environmental process and adversarial conflicts are solved long before multimillion-dollar derailments occur. There are many examples of multimillion-dollar derailments here in Ontario. A good example is the $140-million-plus derailment in one of the southern environmental hearings.
Another positive point in this process is professional mediation being allowed in the process. This will allow mediation to perhaps -- and I like the word "mediation" because again it implies consensus. When there's a vote, there's always somebody, unless everybody votes positive for it, who feels they have lost. If you bring it into consensus, you will find that everyone is a winner. Even if somebody or a group finds that they are not in agreement with the consensus, if you have them actually put down their disagreement as a dissenting opinion, when you put the two side by side, consensus and dissenting opinion, you find out there's very little difference between the two. Suddenly you have a point to move ahead and the divisiveness is not there.
1110
Bill 76 allows public servants to serve on the board, hopefully in order so the actions of the board seem in the public interest and seem transparent, and are transparent. The board majority should not be that of public servants. It is fine to have professional public servants serve on the EA assessment board, but certainly I think the public would look askance at having a majority.
My presentation is short. In conclusion, we all understand that wastes are generated by a vibrant economy, and good recycling programs can reduce waste discharge. However, with a new EA process that involves the public, truly involves the public, and is transparent in its actions, wastes should be controlled with no environmental degradation.
Good effort on changing a cumbersome act. Congratulations. Pollution prevention is the key, not costly remediation.
I will be more than pleased to answer any questions.
Mr Gravelle: Thank you very much, Mr Hartley, for your presentation. There's probably agreement among all three parties that in terms of the process we'd like to have the process in some way changed. There's been too much time taken for various projects perhaps, but at the same time I think we all would agree that the important thing is that the environment is protected. So I think finding that balance has been and probably will continue to be the true dilemma.
One of the problems that's certainly been identified with this particular bill, which you make some reference to in terms of the public consultation, is the fact that the bill itself says it's "An act to improve environmental protection, increase accountability and enshrine public consultation in the Environmental Assessment Act," and all the material that's come from the minister has certainly indicated that is the priority, but when you look at the details of the bill, it's not there. Quite frankly, in terms of the public consultation process, there's very little guarantee of public consultation. In fact, there's much less public consultation. Certainly there is none there in the terms of reference portion of it. You made reference to the environmental registry not being enough.
Certainly one of the concerns that those of us in opposition have is that in order to maintain the integrity of the environmental process, you truly do need public consultation. The act, on the surface, says that's what they're going to do, but when you look at the details there's some concern.
I guess my first question is that obviously you feel the public consultation process is important. Should the public be involved at every level they possibly can be, and how can they be involved? Obviously, when you look at the bill you can see that there really isn't that opportunity, except probably at one level potentially.
Mr Hartley: Absolutely. That's why I focused my comments on public participation. The public should be involved right from the very outset in the terms of reference. You've got to draw the public -- and I use the word "public"; it's a tough word to really define. But where there are organized groups that do mirror society, use them. Ask for their input.
Volunteer organizations, first of all, are volunteers. There are virtually no paid staff. So you want to bring them on board, encourage them.
Unfortunately, many times, not so much governments because government-elected representatives are servants of the people, in the bureaucratic process of things they sometimes fear public participation, that it may upset the apple cart or it may cause some adversarial publicity. But done correctly, brought on stream where you feel you're really part of the process and it doesn't fall into the legalistic hands of the solicitors, then you're going to have a strength. I agree with you, it should be perhaps necessarily part of the bill, but part of the process that follows the bill. You've got to bring the public on stream, very much so. I totally agree with you and that's why I'm speaking.
Mr Gravelle: Our feeling is that it does need to be made very clear in the bill, because I think in the rush to speed the process -- and I know the government members who have been listening to two weeks of testimony have frequently heard this and I'm sure they're sensitive to the fact that consultation at all levels is very much what needs to be there, and it needs to be there to maintain the integrity of the process.
But you came close to another issue which I think probably needs to be addressed here. A lot of the groups that are involved are volunteer groups. In many cases you may be allowed into a public consultation process, but unless you can find some funds to do it, it's difficult to do. Intervenor funding is no more; the funding is gone. I'd like to know how you feel about intervenor funding. The fact is that it does seem to me that unless there is some part of the process that guarantees intervenor funding, you can't truly have public consultation, because to be able to hire the experts or do the sort of things you need to do, you can't do it potentially at bingos and at some of the charities. So I'd like to know your position on intervenor funding and whether you think that should be part of the process.
Mr Hartley: First of all, the Remedial Action Plan Public Advisory Committee, which is part of a government process, our particular funding has almost been cut 90%, and I apologize for only giving one Xerox copy of my presentation, but funds are really that short.
As we look at ourselves as part of the government team, we're there to remedy a problem area. Intervenor funding, funding to do things like this, even to say positive things about what is happening, is drying up very quickly. Our costs to the government are minimal. If you look at what we've done here in Thunder Bay over the last six years, they're positive.
Mr Gravelle: So you think that intervenor funding obviously is something that should be considered.
Mr Hartley: Yes.
Mr Gravelle: I think probably it's important to --
The Acting Chair: I'm going to have to cut you off.
Mr Gravelle: Really? No special dispensation?
The Acting Chair: No, not because you're up here. Mrs Boyd.
Mrs Marion Boyd (London Centre): Just to continue, these are highly technical issues very often and one of the real issues about true partnership with the public in trying to engage the public in this as a partnership issue is that it's going to be an extraordinarily unequal partnership -- isn't it? -- without intervenor funding.
Mr Hartley: Very much so, and that is why I spoke very much on the public part. I'm speaking personally on this now. I don't believe that intervenor funding should be provided to a group to hire a solicitor to do the presentation. I totally disagree with that.
Mrs Boyd: But the technical things.
Mr Hartley: Otherwise I'd have had a lawyer sitting here today, not me, and it would have cost us thousands of dollars. It cost the government nothing for me to be here. That's why I think intervenor funding should be provided to facilitate organizations such as ours and others, not to hire other professionals, because within a group that does in fact mirror society, you've got people who can lend their expertise to make responses and input. I would probably disagree with having intervenor funding to hire a bank of lawyers to do what I feel the public should be able to do, come and speak to a group, but I do need, and the public advisory committee and other groups like us in Ontario do need, support at the facilitation level. It has dried up extremely quickly, extremely fast, and many of the good things that we have done are going to disappear too.
1120
Mrs Boyd: There were two items you mentioned that I'd like to pursue. One was the issue of your concern around not just the lawyers taking over but the bureaucrats taking over, and this committee has heard this before.
There was a very good presentation by Robert Gibson, from the department of environment and resource studies at the University of Waterloo. He goes through the sections of the act where there is discretionary ability within the act, for example, section 6.2(3), which allows discretion around the actual elements of the EA itself, but there are many others, including the ability of the minister to delegate his or her responsibility to ministry officials and talks about this as basically a strengthening of the ability of the bureaucrats to make the decisions and really cutting both the elected and responsible officials as well as the public out of the process. What's your comment on that?
Mr Hartley: First of all, I believe that the ultimate responsibility is that of the government of Ontario to make a decision. However, if the process has been followed where it is transparent, the public has had true input, they've been helped with their input on funding, funds for professional mediation have been allocated and all parties feel that public input has been there, then the bureaucrats perhaps would feel more comfortable in the results.
I deal constantly with bureaucrats in my capacity at all levels, and I feel very comfortable dealing with local Thunder Bay civil servants, because we have developed I think a sense of trust and responsibility, and I'm not there nor is the public advisory committee there for the 30-second adversarial clip where we hang somebody out. That's not our style. We're there to get a job done. We understand the word "process." Many people don't understand truly the word "process." It's a variety of steps, and if you work in that process, you develop a trust team approach, then the bureaucratic control is not necessarily there.
Mrs Boyd: I don't disagree with you at all. I just think that this act in fact brings the public in so late and in such an ephemeral way that your vision is not possible. I would share your vision, and I would agree with you that in that kind of circumstance it could be a true partnership, and I agree with you there are very fine people who work within the government and work on that process. I guess my concern is that the way this is set up and the so-called flexibility in the act in fact is geared to allow whatever results are wanted in the first place to happen, and that's a real problem.
On the harmonization issue, I think most of us are agreed that it would be nice to have one process that would meet all needs, but in fact we've seen in the NAFTA agreement and many other agreements that harmonization means dropping to the lowest common denominator rather than the highest common denominator. Would you agree that's a concern for you in this whole situation?
Mr Hartley: Not here in Thunder Bay. The remedial action process is a team between Environment Canada and the MOEE and the other Ontario ministries.
At present, our EA process, and one of the projects I mentioned in the program is northern woods, that's been essentially teamwork between the local MOEE staff and Environment Canada, so I can't really say that I have seen here in Thunder Bay that particular problem which you address. I'm sure it happens.
But, again, I would hope what you're going to end up with, and I envision this -- the bills sometimes don't do what we all envision, but then this is a process and perhaps no bill is ever the best that's ever come to us, but what I envision is that both the environmental process of Ontario and that of Environment Canada again develops this team approach where they come to an agreement, because some of the rules for Environment Canada differ from some of the rules here in Ontario for MOEE.
Mrs Boyd: Not to mention the US or Manitoba.
Mr Hartley: Yes.
Mr Trevor Pettit (Hamilton Mountain): Thank you, Mr Hartley, for your presentation. I'm interested in your comments relative to early public consultation and the intervenor funding. It seems to me that the previous act encouraged public participation at a later stage in the process, whereas this one here will encourage early public participation. Would you agree that by getting the public involved at an earlier stage not only will we reduce, perhaps, at least the total amount of intervenor funding but it will also encourage a little bit more cooperation among the groups and also, in so doing, eliminate a lot of the 11th-hour delays and late entry opponents in the process?
Mr Hartley: Absolutely. The earlier you have the public on board and the earlier they feel that the public is part of the process and believe that the process is transparent and the public is involved in the terms of reference, the less chance for divisive rhetoric.
Mr Doug Galt (Northumberland): Mr Hartley, thank you for a very eloquent and thoughtful presentation. I was intrigued with some of your comments as they relate to the public. Certainly as addressed by you and the other two parties and us, the system is broken, and what this is about is trying to fix it, get it so it works in a reasonable time frame down the road. We're out here for the hearings because we don't pretend that it's perfect. We're looking for the fine-tuning, and that's what the hearings are all about.
I'm interested in your comments about the public. When we were in North Bay on Tuesday, one of the presenters was very vehemently opposed to busloads coming up from southern Ontario to tell people in North Bay what they should or should not be doing environmentally. I'm wondering if you get them up here. At the same time I'll ask you, what should "the public" be? Should they be the public of the community of Thunder Bay when we're dealing with something like this, the public of the region or the public of Ontario, Canada or maybe an international public? Environmentally, with some things, we all pay if we make a mess. How do you see the public, and do you like to see busloads coming up from southern Ontario to help you?
Mr Hartley: No, I don't like to see busloads coming up here to help us, because I think we have a very competent society here in Thunder Bay to deal with Thunder Bay issues. I also should mention that I am part of the Lake Superior Binational Forum, an IJC group that is a very unique group that looks after the environmental process of the entire Lake Superior. This is an international group. So as a result we get an even more diverse dichotomy of opinions. But eventually you work as a team and you develop consensus on that.
I believe that in any area if the public representation really truly mirrors the community, then you're getting an opinion of the community; the busload of single-viewed individuals does not mirror that of the community, does not mirror that of the unseen public who never writes letters to the editor and never appears before groups like this.
You end up getting that alienation between industry and the environment. Truly, in all my time dealing with environmental issues -- and I've been dealing with them since 1974; I chaired the Lakehead Region Conservation Authority here for a decade -- I have never met an industrialist who wanted to pollute our environment, never. They feel difficult with some of the constraints. I think what has happened over the last decade in Thunder Bay and in Lake Superior is that we have improved our environment here immensely.
But we need the government's support in intervenor funding. We need some facilitation support to provide what I think the government would like to see in public consultation. If you do not provide some small amounts of support, you will have busloads coming in here. Because you no longer have persons such as a public advisory committee sitting here to discuss sanely a topic that affects us all, you will have a busload from here, a busload from there. Why? Because you have no local support for public representation. That's the difficulty the government must face and that's unfortunate today. In the cutting of funding, people who have contributed positively also get cut as well, so the government loses a phenomenal resource base which has taken a decade to produce.
The Acting Chair: Thank you, Mr Hartley, for your presentation. It's been a pleasure.
1130
SIOUX LOOKOUT
The Acting Chair: The next delegation is from the town of Sioux Lookout, Mr Ian Marshall, waste management planner. Welcome, sir.
Mr Ian Marshall: First of all I'd like to thank you for the opportunity to address the standing committee on social development concerning Bill 76. I have a brief presentation which I'll make and I prefer to leave a large amount of time at the conclusion for discussion and any questions from this committee.
I bring three years of intensive public consultation field experience to this forum, having worked as the project manager for the Sioux Lookout area waste management plan, and I've also been a member of the Bastille Group of Municipal Solid Waste Management Study Co-ordinators of Ontario during that same period. Many of my comments today are shared by my colleagues in the Bastille Group.
Ontario has set the pace for environmental planning. Past initiatives must be applauded, as must many of the initiatives contained in proposed Bill 76. In general, I have been pleased to see that the initiatives to revise the EA process under Bill 76 will be beneficial to both the public and proponents alike. There are many strengths in this proposed legislation which will serve to expedite the process, minimize any additional costs and provide assurances that compliance will produce the desired results. There are what I feel to be some inadequacies or potential pitfalls which I suggest should be corrected prior to the approval of Bill 76.
I've identified seven main areas within the proposed legislation to which I will direct my comments. Likewise, I have included 12 recommendations which I will propose to this committee and discuss on conclusion of my comments. The comments are in the areas as follows: the need for early and clear public consultation; the implementation of strict time lines; terms of reference requirements; the ministerial review of EA submissions; the role of the EA board; the potential impact on EA projects that are currently under way; and finally, a general comment on the methodology which has been used for the development of Bill 76.
Public consultation: The need for early and clear public consultation has been, and continues to be, an essential component of EA planning to ensure the protection of all parties involved. However, public participation is essential for this to occur. The public has resisted, and will likely continue to resist, participation in processes which they don't fully understand or to which they can't envision an objective outcome.
The consequences of Bill 76 appear to be that if the public fails to comment at the appropriate time, that opportunity for comment will have been lost. Although I recognize the need to protect the proponent, since I'm currently working on an EA for my employer, the town of Sioux Lookout, I also recognize this lack of public participation as an inherent weakness in the success of proposed Bill 76, since it doesn't adequately address the needs of the public. Failure on the part of the public to "know the laws of the land" or "speak now or forever hold your peace" will only result in continued confrontation between the proponent and the public, and therefore potential opposition to any proposal. This will mean that resolution will continue to be effected through mediation or, ultimately, adjudication.
I feel that a public education component will be essential to advise the public of its role and obligations in EA planning and should be delivered by the regulatory body. It should not be the responsibility of the proponent to deliver this message since it will not be believed. I've had experience in that respect. Public comments during our planning process -- the public has said: "It's just a government law. We don't like it, so you go out and get it changed for us." There is a mistrust and a non-belief if the proponent delivers the message on behalf of the regulatory body and the legislative body of the province.
As a recommendation, I suggest that a guidance manual for public participation in EA planning should be prepared by the Ministry of Environment and Energy and be made available to the public upon request. It should also be made available for proponents, for their distribution at the outset of the EA planning process, so they can hand the message of the province of Ontario to the public rather than including it in their own documents.
Time lines: The need for strict time lines has been requested for a long time by both proponents and the public. The adherence to strict time lines has been strengthened in Bill 76 to provide some of those boundaries to the planning and approval process.
Strict time lines will only assist the planning process if those time lines are extended to all review agencies as well. The most commonly cited cause for planning delays is the lack of timely response by review agencies as well as lengthy delays during approval. Without amendment, a proponent will be placed in a position of non-compliance with Bill 76, possibly through that lack of action by a review agency.
The concept that the director may extend deadlines if a compelling reason exists weakens Bill 76 substantially as it has the impact of not having time lines at all and therefore no amendment to the current process. From the EA planning perspective, however, EA planning is iterative by nature and must be able to accommodate amendments proposed by the public and/or other government agencies. The potential for such amendments must remain a possibility and proponents must be able to react without jeopardy to their approved time lines.
As a recommendation, I propose that Bill 76 should be amended to provide the inclusion of adherence to strict time lines by all participants in the EA process, including proponents, public, review agencies and the approvals body. Proposed legislation should be amended to include provision for the consideration of the impact of amendments on planning time lines. Guidance documents for proponents should also include consideration of potential amendments upon request or upon demonstrated need into the proposed EA planning process time lines.
The terms of reference: A review of Bill 76 indicates that the terms of reference will be binding on the proponent but it does not appear that they will be binding on the minister or the EA board. This will not achieve the desired objective since it does not provide the intended assurance to proponents that compliance with the terms of reference should result in approval.
1140
As I mentioned previously, and I'll apply it to the terms of reference as well, EA planning is iterative by nature and must be able to accommodate ongoing amendments throughout the development of the EA process. Such a planning amendment, however, if undertaken but not anticipated at the outset of the process by a proponent, may cause significant alterations to the terms of reference. The proponent must have the freedom to react to that input or that input is meaningless.
In reality, amendments to the terms of reference will become the norm rather than the exception, since it is unrealistic to expect that all eventualities will be considered during the preparation of the terms of reference. A mechanism must be entrenched in the legislation which allows for amendment to the terms of reference as required.
As a recommendation, I propose that Bill 76 must be binding on all EA participants to the same degree in order to provide the intended assurance to parties of the integrity of the planning process and approvals process. Bill 76 should be amended to include provision for amendment to the terms of reference by the minister upon the request of the proponent, and such amendment must be made available for public comment.
Ministerial review and remedy of EA submission deficiencies and mediation: The provision for the remedy of deficiencies of an EA submission should be expected of the proponent. However, the time of seven days proposed to enact that remedy is substantially inadequate. This is significant since a proponent could face the rejection of their EA submission for non-compliance.
Mediation is a very worthwhile tool in the development of the EA; however, mediation must be entered into willingly by all parties concerned to be effective. Enforced mediation will not provide successful resolution. The provision for publication of the results of mediation in the event of failure to resolve the issues during mediation would prejudice both the mediation while it's going on and, subsequently, the hearing processes which would follow. Mediation discussions, if publication was allowed, would then depart from the frank and open discussions which could occur and would assume the guarded tone of a hearing, since ultimately any of those discussions would become public knowledge or evidence to be used in the event of a hearing.
As a recommendation, I propose that Bill 76 should be amended to allow the proponent to remedy deficiencies within 30 days as opposed to seven as proposed. Rejection of the EA should be considered by the minister only if deficiencies have not been completed after that 30-day period. The mediator's report should not be made public and should not be allowed to be used as evidence during a hearing. The mediator's report should be used for mediation, and mediation only.
The role of the EA board: Bill 76 provides the EA board with the opportunity to hear evidence on subjects in addition to those to which it has been directed by the minister. This latitude is an inherent weakness in our current approval process and should not be perpetuated in amendments to the EA approval process. The power granted to the EA board under proposed Bill 76 would actually supersede that of the minister, since scoping of hearings and adherence to the terms of reference would not be binding on the EA board. Proponents would not have any greater level of assurance that their compliance would be recognized than currently exists. The Minister of Environment and Energy must maintain absolute authority over the EA planning process to ensure the protection of the public, agencies, proponents and province of Ontario.
The provision to allow the minister to reconsider a decision of the board should be removed. If the minister wishes to rule on an EA submission, then it should be done prior to referral to the board. Reconsideration of board rulings will only cause delays, uncertainty and cost to the approvals process, which are collectively among the reasons for revising this legislation.
As a recommendation, I propose that the EA board should be bound to considering evidence and issues as determined only by the minister. The decision of the EA board should be binding.
Potential impact on EA projects in progress: According to the advice I have received, proponents who have substantially completed planning under EA legislation may have to amend current processes to comply with some aspects of Bill 76 if their submission is not anticipated until after promulgation of this legislation. This appears to place an undue burden on proponents who have complied with current legislation. There may however be proponents who feel it is in their best interests to bridge to the Bill 76 requirements.
As a recommendation, I propose that proponents who have substantially completed EA planning and will submit within three months of promulgation of Bill 76 should be allowed exemption from compliance to this legislation at their discretion -- the grandfathering concept.
In closing, I will comment on the process used for the development and consultation of this proposed legislation.
Pre-submission consultation is an inherent component of both the current EA act and proposed legislation. The Bastille Group, comprised of members of Municipal Solid Waste Management Study Co-ordinators of Ontario, individuals who have been involved in the development of municipal waste management plans under the current EA act, was not consulted during the drafting of this proposed legislation. Collectively, the Bastille Group represents many years of combined experience working within the EA framework and public consultation and could have provided a valuable resource during the drafting of this legislation. These are the individuals who have direct contact with the residents of Ontario involved in EA act consultation. Further, Bastille Group members have had considerable difficulty obtaining copies of the draft legislation and were not even advised of the existence of this standing committee nor the deadline for presenting comments until that deadline had passed.
As a result of this process selected, you are now being asked to consider some of those suggestions as amendments to the bill rather than incorporating the comments into the original proposed legislation. Consideration of such a group's comments during the development of the legislation would have saved yourselves and ourselves considerable time and effort.
It is somewhat ironic that the pre-submission consultation concept I have outlined is consistent with the current EA act planning requirements and has further been entrenched in Bill 76; however, this same process wasn't followed by the proponents of this legislation. I suggest that pre-submission consultation be used more effectively during the development of subsequent legislation.
I thank you for your consideration of this submission during your deliberations. I emphasize that I believe the recommendations I have made to you are somewhat minor in nature to the legislation, minor amendments. However, I believe the impact of including those recommendations will be quite substantial in improving the quality of our EA planning in Ontario.
Mrs Boyd: Thank you very much, Mr Marshall. I thoroughly enjoyed your presentation. It was very clear and very mindful of the kinds of issues a committee like this needs to consider, so that's very good.
I also am struck by the fact that although you're speaking primarily from the position of a proponent, your presentation reflects exactly what our previous presenter said: that people who are concerned about this and are prepared to work in good faith represent many of the same views. Although you represent it from a proponent's point of view, many of these recommendations would be agreed to as necessary by the general public and by environmentalists, and I think it is important.
I'm particularly struck by your final comments, because I agree with you -- and it's been true on other pieces of legislation like Bill 26 and so on -- that previous consultation, with the expertise that's been developed among both professionals and the public in the province, would save a lot of controversy around these kinds of acts.
When you talk about the discretionary elements within the bill -- particularly you're talking about the ability of the board to hear evidence in addition to what's in the terms of reference -- that's a concern for everybody, because it really is a two-edged sword, isn't it?
1150
Mr Marshall: Yes, it certainly is, because if you've basically complied with what you said you have complied with, then why should delving into that in greater depth be a subject for the board's consideration?
Mrs Boyd: So you believe that a better process in setting the terms of reference, pre-consultation at that stage, would prevent a lot of controversy and adversarial nature afterwards, but you need to stick to those terms of reference and follow through from that, allowing for amendment?
Mr Marshall: Yes.
Mrs Boyd: You talk about the need, as you go along, that if additional information comes, the minister ought to be able to amend the terms of reference. It shouldn't just be at the whim of the board.
Mr Marshall: That's right, and that's where I think if that recommendation was included in the legislation, it would tie up some of those loose ends and it would basically put everybody on a level playing field. Amendment must be considered and is required; however, it shouldn't be done arbitrarily and there should be a defined process as to how that amendment to the terms of reference can be accomplished.
Mrs Boyd: So you believe that both the proponents and the public are better served with a much more definitive process that allows for consultation and amendment in a way that's built right into that process?
Mr Marshall: Yes, and thirdly the province of Ontario, because all parties then understand clearly where they stand in the process.
Mrs Boyd: The other issue you raise is this issue of time lines. I think everybody is very empathetic with the government's desire to move this process along, but your argument around the seven days to amend, needing 30 days to amend, is quite persuasive. I think many proponents would argue the same thing, that they want strict time lines, they don't want these things to drag on the way they have, but a seven-day amendment process simply doesn't meet the technical and scientific needs that you might face.
Mr Marshall: One of the reasons for making that recommendation is that although seven may work if there's ongoing consultation during the submission of the EA act, it's unknown at this point whether that submission consultation will continue with some of the downsizing that's gone on within the EA branch of the Ministry of Environment and Energy. Not knowing whether that ongoing consultation will be possible in the future is the reason I propose 30 days, because if that consultation does not continue, seven days is unrealistic.
Mr Ed Doyle (Wentworth East): Thank you, Mr Marshall, for your presentation. I believe you were here during Mr Hartley's presentation earlier; I think I saw you here.
Mr Marshall: Yes.
Mr Doyle: A question I have for you is similar to the one that Mr Trevor Pettit had asked of Mr Hartley, and that is, if the public is involved in the terms of reference stage very early in the process, do you believe this will keep the costs down as it may relate to intervenor funding or overall, and do you believe that perhaps it will keep hearings from occurring in a prolonged process?
Mr Marshall: I believe it will go a long way towards preventing the lengthy processes we've had in the past, but I do have a substantial concern. The public isn't voluntarily going to come forward because they're legislated to do so. There's going to have to be some incentive and encouragement and public education to get them to come forward. If the public is willing to come forward at the earliest stages in the process and buy into the process, which is another hurdle, then I do believe it will substantially reduce the need for intervenor funding, which has basically been used as a confrontational type position. It's been used to solve differences that hadn't been solved at the outset.
Mr Doyle: You had mentioned your concerns about mediation. I'm wondering if you could expand on that somewhat as far as keeping the process of mediation behind closed doors. What about the results of the mediation when the process is complete?
Mr Marshall: I believe there is no reason not to make the results public information. However, I would be concerned if all the details of all the discussions that went on during mediation were actually made public and used as evidence during a subsequent hearing, because you know and I know that if you and I were in the hallway talking about this, we'd both let our guard down and talk a little more openly and frankly about this, but if every word we were saying was being recorded and could ultimately be used as testimony, we'd be very careful about what we said.
Mr Doyle: Thank you, sir. I appreciate it.
Mr Gravelle: Good morning, Mr Marshall. Thank you very much for appearing.
There are a couple of things that probably need to be said. One, this is the last day for public hearings on this bill, Thunder Bay, so there has been a stretch of time and there have been some consistent themes. I'm encouraged, certainly, to see the government members asking the questions in terms of the further public consultation, because there is a recognition that one of the flaws in the bill is that the actual public consultation isn't there; it needs to be reinforced in terms of legislation. You obviously saw that when you were going through it and you obviously feel public consultation is crucial to it working.
You also made the point just now that the public is not likely to get involved voluntarily, or not able necessarily to get involved, but you had concerns about intervenor funding for what its previous purposes -- how it was used or how it was perceived. So it's maybe important to follow up on the possibility or the thoughts you have. If you were to define how the funding could be used, if it was used as supportive funding, would you be supportive of some form of funding being available to participants and people who need to -- in other words, in order for the public to be involved, there may need to be some form of help. It's sort of a catch-22, it seems to me. If you don't have some kind of help, they won't be able to participate, yet we all agree participation by the public is crucial, and hopefully again the government will put some amendments forward that will improve that in the bill.
Would you support a form of funding that could be defined in a clear way that would obviously help the public get involved and would not lead to what your concerns were?
Mr Marshall: Yes, I would, very much so. I would like to see the funding used at the front end of the process, however, for education and involvement of the public early in the process. I feel it's counterproductive to provide that funding at the conclusion of the process and basically to bang heads. A much more productive use would be to use it to involve the public at the earliest stages.
Mr Gravelle: It's certainly encouraging to hear you say that in terms of your position as well, so I think that has some impact in terms of what the government members may be able to do. It's becoming more and more clear as we near the end of the hearings that the public consultation is absolutely crucial and the process actually could ultimately fail, all the good intentions that may be here could fail, unless the public is involved in a manner that does maintain the integrity of the process. I look forward to some positive amendments from the government side.
The Acting Chair: Thank you very much indeed, Mr Marshall, for your presentation.
We will be breaking for lunch and resuming again at 1:30, but prior to that, Mr Galt, you had a comment you wished to make.
Mr Galt: It has to do with the tabling on Friday of the amendments and some difficulty with legislative counsel. They will be tabled by 5 o'clock, if that's in keeping with the opposition? Good. Thank you very much.
The Acting Chair: We will break and meet back here at 1:30.
The committee recessed from 1159 to 1331.
WINDIGO INTERIM PLANNING BOARD
The Acting Chair: Ladies and gentlemen, I call this hearing to order. Our first presenter this afternoon is the Windigo Interim Planning Board, Margaret Wanlin. Welcome on behalf of the members of the panel.
Ms Margaret Wanlin: Thank you. I've put a map on the table over here. Maybe you could pass that around as I'm talking to give you a sense of the geography I'm mainly focusing on.
My presentation today is called "Creating Partners, Not Adversaries." Let me begin by introducing you to the Windigo Interim Planning Board and how its existence relates to the Environmental Assessment Act.
You may be familiar with the gold mine that's currently under construction in the area north of Pickle Lake, near North Caribou Lake First Nation. It's called the Musselwhite mine. Musselwhite was the name of two brothers who did the initial exploration there in the 1960s. It's a joint venture between Placer Dome and TVX Corp. By the early 1990s it was starting to look at if there really could be a mine there. There are a number of first nations in the area, and some of them had been involved in mining agreements with Placer Dome's Dona Lake Mine and what is now Barrick Gold's Golden Patricia Mine. These were agreements that involved sharing opportunities for economic benefit with first nations and creating a commitment to ensure that all environmental standards are met. In exchange for creating that agreement, exemptions were given from the Environmental Assessment Act.
The Musselwhite mine has followed that same pattern. The signatories to that agreement, along with Ontario, Canada and the mining companies, are Windigo First Nations council and two of its member first nations, North Caribou Lake and Cat Lake; also the Shibogama First Nations council and two of its members, Wunnummin Lake and Kingfisher Lake.
This is now the third agreement with many of the same parties. Each of those agreements has shown the maturing of the parties and the increasing expectations on the part of the first nations both for protection of the natural environment and stimulation of their own local economies. For example, Musselwhite is currently in the construction phase, and as of late July there were 49 people from North Caribou Lake First Nation employed at the mine site. That's out of a community of 700 people, so you can see that it's a significant fact. Of the member communities, North Caribou has the largest number of people employed and has also benefited from getting some contracts to work on the mine project, including building the all-weather road last summer and clearing a section of the right of way for the power line last winter.
I describe these things to you to show the benefits of exempting properties from environmental assessment in favour of benefits agreements. The Windigo Interim Planning Board and another similar one for the Shibogama communities were set up in September 1993. The board was one of the elements of the Musselwhite agreement and it was given this mandate:
"The board shall advise the ministers (natural resources, northern development and mines, environment and energy and native affairs) by:
"(a) developing a plan for land use and resource development in the planning area;
"(b) reviewing and commenting on applications and `matters in land use related legislation' as the board may direct;
"(c) identifying potential opportunities for resource-based economic development and the practice of traditional economic activities;
"(d) developing community participation models suitable for use in remote northern Ontario."
The board is made up of six people, three from the Windigo communities and three representing Ontario, and I'm the independent chair. All of these are order-in-council appointments.
My title, the theme of the presentation, is to stress the importance of using benefits agreements to create partnerships instead of environmental assessment, which can tend to create adversaries. I believe it's particularly true in the remote north that opportunities for significant economic development are few and far between, so it's important that each one be captured. The proponents and first nations will be sharing the land; much better that they do so in an atmosphere of partnership where there is benefit to all the parties.
Now down to the specifics of Bill 76. First the good news: It's a positive step to establish terms of reference. We support the idea of getting it clear at the outset: What is this EA going to be all about? It can be an important step in providing the focus for preparation by the proponent and the intervenors. However, there does not seem to be a requirement to consult with the other parties in the process of developing these terms of reference. This could result in a serious gap in the terms and therefore a flawed EA. I just want to stress the importance of involving all parties in establishing the terms of reference.
We support the idea of the use of mediation; we think that's an excellent point. Bringing mediation and other problem-solving techniques in at any point is a good thing, because the whole point of the exercise should be finding solutions. Any true efforts at problem-solving and finding solutions are an important step. Mediation can be cheaper than some more legally oriented approaches and can result in solutions that get beyond the positions and deal with the interests of the parties. It goes back to our theme, "Creating Partners, Not Adversaries," because the search there is for the win-win solution.
Third, we think it's efficient that a hearing can be held on just the areas of disagreement. Sticking to those subjects makes a lot of sense. There's no need to replow the ground where there is already agreement.
It makes good sense to require consultation as in section 6.1. It's clear that the best way to solutions is to involve the parties at the earliest instance. More details are required here to include the description of the range of parties to consult and to clearly define what consultation means. Sending a notice in the mail, for example, does not constitute consultation, which brings us back to the point of the need for consultation regarding the terms of reference. Getting that stuff right at the beginning is really important.
Now the bad news: How will the parties, other than the proponent, be able to afford to participate in these processes? It's expensive, it's time consuming, it's costly; when you look at the map I've provided, you can see that travel just on its own is at a horrendous cost. Many of the interested parties are not in a position to afford to participate. Most first nations don't have the kinds of budgets that would allow them to do the research and studying that are necessary to participate effectively.
There's a need to limit the types of projects or undertakings that are subject to class EA. Your definition of the term "class" gives a great deal of latitude for grouping undertakings. We would prefer a definition of "class" that involves undertakings which are small and have repetitive and predictable impacts environmentally as well as culturally and socially. From my preamble you can see that the Musselwhite agreement is resulting in economic benefit to the member communities. It's not a perfect system and there are some growing pains going on as we speak, but none the less it's very worthwhile for first nations to work with proponents in a way that provides economic benefit and protects cultural values. This opportunity could be erased if a class of undertakings were to be established for, for example, small gold mines north of 51 degrees and more than 25 miles from a community of fewer than 1,000 people.
In short, an inappropriate definition of a class of undertakings could get in the way of native rights and native economic development. A good rule of thumb would be that class environmental assessments are not appropriate north of the area of the undertaking as established for the class environmental assessment on timber management.
There's a need to involve parties beyond the proponent in the development of the terms of reference. I mentioned that earlier and I say that again because I think it's an important weakness in the act as it is now.
1340
There needs to be more guidance on who is to be consulted. A wise proponent will take care to identify all the interested parties and be in communication with them. All proponents may not be that careful and thorough. First nations traditional lands extend some distance beyond reserve boundaries, and proponents will need to take this into account when identifying native groups which have an interest in the undertaking.
Two other issues I'd like to address. One is exemptions from environmental assessment; the other is federal versus provincial responsibility.
First, provision for exemptions. Benefits agreements, as described here, are important to first nations and to their goals of self-determination, self-sufficiency and self-government. It's important that the EA act in no way limit the ability of parties to come to an agreement outside the act. As well as being more efficient, these agreements have potential, more than has been reached so far, to stimulate the economies of small northern communities.
Where does federal responsibility begin and provincial responsibility end? As described, the Musselwhite agreement is a product of significant and serious consultation on a number of fronts: environmental, social, cultural and economic. Because an agreement was reached, the project was exempted from a provincial environmental assessment. However, the new federal Canadian Environmental Assessment Act came into effect. Huge volumes were generated at significant expense to the proponent. Placer Dome estimates that they spent $200,000 on external consultants. With additional costs for their staff time and government costs, the exercise was probably costing half a million dollars -- I was going to say "worth" half a million dollars, but I don't think it was. The time lines for response were ridiculously short. I believe it was 60 days for the six volumes of 200 pages.
The utility of that exercise was not apparent to the Windigo Interim Planning Board, to the member first nations or to the proponent. This was an example of government bureaucracy at its worst: duplication, no significant benefit and a tremendous amount of wasted expense. The money used to create this report could have been used in much better ways.
Where does the responsibility lie? Can Ontario and Canada get together on this and delineate who does what? This form of duplication is unhelpful. Harmonization or some form of interlocking process is necessary.
According to the proponent, there was only one change made as a result of the federal EA: to recommend covering the landfill site with clay instead of sand.
To create two environmental assessment processes, one from which the project was exempted and one from which it was not exempted, diminishes the multilateral process in which Canada, Ontario, the first nations, the tribal councils and the proponents were all diligent participants.
My conclusions: Protection of the environment from an environmental, social, economic and cultural perspective is important. Environmental assessment is an effective way of ensuring that protection, and alternatives to EA such as benefits agreements will be increasingly important in the future and, along with appropriate provincial standards and rules, can assist in the socioeconomic development of northern communities while ensuring that environmental concerns are paramount.
Mr Doyle: You have a very interesting presentation. I thank you for coming today and presenting your ideas to us. There are some good ones.
A lot of people who have commented to us in the hearings so far have made similar reference to the fact that it's important that the public be involved right at the beginning of the process, at the terms of reference stage. You obviously agree with that proposal, the idea that it perhaps be amended. You mentioned as well concerns about intervenor funding. Is it your view that if people are involved in the terms of reference stage and in helping the development of the terms of reference right from the beginning, it would help reduce costs and time in the entire process? Do you think this would be of assistance in reducing the costs?
Ms Wanlin: Absolutely. I think it would become clear where the contentious areas are and could be set out in the terms, and some areas which may not turn out to be as contentious as previously thought could be eliminated. The example that I go back to, one that was important here in northern Ontario in the last few years, was the class environmental assessment on timber management. They spent, from what I understand, months, weeks, maybe even years trying to decide whether they were really talking about timber management or forest management. If that discussion had been held outside of that very expensive and large process, it would have made a lot more sense.
Mr Doyle: I assume this would also cut down on the time element?
Ms Wanlin: I think so. I've done a lot of work with multi-stakeholder groups -- the Ministry of Natural Resources does quite a lot of them -- and the first thing they do is set out a terms of reference, and then people have an opportunity to sort of wrestle with those terms of reference. It's a necessary step that groups go through. It's just part of what they have to do, figure what we're here for, what this is about. If you don't do that in the formulation of the terms of reference -- in effect you do it anyway, because that's what you spend the first part of the hearing doing. So doing that as a deliberate part of establishing the terms I think would be effective.
Mr Doyle: I wonder if you could give us your idea on members of the public who could be involved and what the process should be in ensuring that everybody is properly informed. What would your views be on that? There seems to be some contention as to who the public is.
Ms Wanlin: That's a hard one. Obviously, that's going to be different in different geographic locations. In the area that I'm talking about, the major stakeholders are the first nations, so it's easier there to delineate who that is. It would be the first nations whose traditional land is involved plus the tribal council and probably the Nishnawbe-Aski nation as well, and then the industries that have an interest there. In much of that area there isn't any forestry going on, so mining would be the biggest potential other user, and tourism.
In more populated areas, I think you'd want to have the various sectors of the economy represented, whether it's mining, forestry, hydro development, whatever, as well as some of the more socially oriented concerns. So whether it's environmental groups or coalitions of people with social concerns, it's going to depend on what the thing is about.
Mr Doyle: Because, and perhaps you have experience in this as well, there have been questions raised at the hearings about people coming in from far afield to insert their views. I wonder if you could comment on that.
Ms Wanlin: It's a real problem in northern Ontario. If you take, just to use an example, a small town like Hearst, it's a lumbering town. That's what they do there. They don't have a large environmental community. It just doesn't exist. Anybody who dared to be an environmentalist in Hearst would be at risk. That doesn't mean the environment is not important and that voice shouldn't be heard, but it becomes difficult to figure out how do you reflect a broader, maybe a provincial perspective in that local situation. I don't think it's good enough to just draw a circle around it geographically; I think you really do have to have the range of perspectives present as well as the geographic.
Mr Doyle: Fine. Thank you very much.
Mr Gravelle: Good afternoon, Margaret. It's nice to see you. Thank you very much for your presentation. I think the story of the Windigo Interim Planning Board is a pretty incredible story all of its own in terms of what can be achieved by working together in this cooperative way. I think any opportunity you have to tell people about it is useful, and it's very effective I think talking to this particular committee about it.
I certainly appreciate also some of the other points you're making and I'm encouraged. Today being the last day of our public hearings, as I noted this morning, I think we're getting close to the stage where there will be some amendments going forward. Some of the common points that are consistently being brought forward are to do with public consultation and the whole issue of intervenor funding, and I appreciate Mr Doyle's comments, and a recognition that there need to be some adjustments to this legislation because I think one of the problems, as it stands now, is that they talk about consultation but the bill itself is set up so that actually consultation will not be what it appears.
I wanted to ask you just a little bit more about the concept of intervenor funding. The concern that I have, and I think many have, is that public consultation is crucial to the process, needs to be done up front, and potentially can be a better way of doing it by doing it up front, and we need to be able to involve the appropriate groups. But again without intervenor funding, a lot of them can't take part. So it becomes a situation where it looks like there's consultation but there may not be able to be, yet there's been criticism of the intervenor funding.
1350
Have you got any thoughts in terms of how the intervenor funding process to supporters or to participants, how it could be structured so that some of the criticism which has -- I presume you're probably familiar with some of the criticism of the funding -- how it could be structured so that it could work?
Ms Wanlin: I can't give you a really detailed answer to that, but I would suggest, building on the point from over here, that it should be in two parts, that intervenor funding for developing the terms of reference would be different from intervenor funding to actually have the hearings, for some of the same reasons I just gave.
What you might find once the terms of reference were developed is that some of the parties won't be as interested as they may have previously thought they were, so therefore they don't need money later on. I also think it takes a different kind of a person, someone who's a more strategic thinker probably, to develop the terms of reference, whereas when you get into the EA, that's when you've got to fight it out for your side. So supporting people to do the terms of reference should be a separate process and looking for different kinds of people. I don't know how best to do it other than to have some sort of pool of money that groups could apply for, and I guess some ranges would need to be set depending on the nature of the environmental assessment, how large it is.
Mr Gravelle: I think part of the criticism in the past -- and whether it's fair or not I won't comment on -- is that it's become just a place where consultants and lawyers make lots of money and don't necessarily get the message across. We heard actually somebody make a presentation a couple of days ago who made the point that they hired the lawyers to make a case for them but the lawyers weren't doing that. They no longer felt as if they had hired the person. It was suddenly the lawyer taking over the situation, and again no criticism meant of the profession, because I'm sure they were doing their best, but it got out of control. Somebody else made the case that you need basically people who are more scientific, that it's more of a scientific process, explaining hydrogeology and all this sort of stuff. So I think there's a need for it and there's a sensitivity I think developing that there is a need for this kind of assistance.
Ms Wanlin: I think mediation comes in here too, because if you have good quality mediation, it's a whole different process than the legal one, and it should shorten the time of the hearings and make the whole thing cheaper. Mediators -- I should say that I am one, as I make this point -- are cheaper than lawyers and they have a vested interest in solutions whereas lawyers tend to have a vested interest in winning on behalf of their client.
Mrs Boyd: This is a very interesting presentation and from a perspective that a lot of people haven't recognized, the kind of ground-breaking efforts that have been made to reach solutions around economic issues with first nations and various other economic enterprises.
Throughout where you talk about it, you talk about proponents and native communities, and of course all of our hope is the day will come when native communities themselves are proponents. One of the issues that arises around what governance is like in native communities is whether, if native communities were the proponents in one of these circumstances, the time frames in fact would be prejudicial to their governmental proposals. For example, the seven-day period for amendment to a proposal is a very short time period when you have a communal decision-making process and another level very often that needs to be consulted. I'm wondering if you think there needs to be built in there some mechanism to ensure that at those stages the kind of governance structure that exists in a native community, which is substantially different from a commercial enterprise, could be accommodated.
Ms Wanlin: I think that is a very good idea. You point out quite correctly that it doesn't run the same. Certainly the process of arriving at these benefits agreements has sometimes taken longer than people would have originally thought and hoped they would. But they've seen the benefit, so they've put in the effort. Yes, I think that is important.
One of the things that we do is review development proposals. Some of them come from the first nations themselves and some of them come from other proponents. The coordinator of our board has been quite strong in his opinion that we must use the exact same kind of rigour on first nations proposals that we would on others. I think there is a growing awareness there that, yes, we want to do it ourselves, but yes, we need to recognize that we've got to do this in an environmental context that's sustainable. But I think in order to make that work, the processes may need some form of amendment.
Mrs Boyd: Yes, because the whole notion of what property is is different and ownership of property is communal ownership of property rather than individual ownership of property. So when you talk about the use of that property there needs to be a much higher level of community consent than we would see in the white view of property as being private property, which simply is not part of the process.
Ms Wanlin: The nature of the impact is much greater, too. We were, for example, considering a proposal from another mining company and they were looking at a base metals mine quite close to North Caribou First Nation. To make a base metals mine work, you have to make a road. As soon as you put in an all-weather road to a community, you change everything. Everybody's aware of the struggle that these communities are going through with alcohol and drugs. These communities are attempting to be dry communities and not have people bring in liquor, but as soon as you have a road it's just impossible to do that. Many elements of the fabric of the community are affected by these developments.
Mrs Boyd: And there really would be an opportunity, I assume, if people had participation in the setting of the terms of reference perhaps to take that into account, but without that element there it's very hard, the bill as it sits now, to make sure that assessments would be able to take that kind of thing into account, because normally they wouldn't be taken into account. That's why that becomes such a crucial element.
The Acting Chair: Thank you, Ms Wanlin, for your presentation. We appreciate your appearing before the hearing.
FRIENDS OF THE FOREST
The Acting Chair: Our next delegation is Friends of the Forest, Deneen Brigham, if you would come forward, please. Also, for the folks in the audience, the clerk has put copies of the various presentations on the table back where the water is. If anybody wishes to have a copy of them, please help yourself.
Ms Deneen Brigham: Good afternoon. My name's Deneen Brigham and this is Lucie Lavoie and we're representing the interests of Friends of the Forest today. I'll just start with some background into who Friends of the Forest is and where our interests lie.
Friends of the Forest is a not-for-profit organization whose purpose is to unite people concerned with the loss of forests around the world. We strive to preserve and restore forests without sacrificing the integrity of forest users. The board consists of 10 persons who meet monthly to volunteer their time and efforts working on various issues as they arise. As a non-profit, non-government organization, there is no monetary gain for any of the individuals who are involved with Friends of the Forest. Individuals are affiliated with the organization simply because they are concerned about protecting the integrity of the natural environment.
Friends of the Forest is concerned with any amendments to the EA act which may result in a weakening of the process and negative impacts to forest resources and the environment as a whole. Friends of the Forest support the views and recommendations submitted by the Canadian Environmental Law Association with respect to Bill 76, the Environmental Assessment and Consultation Improvement Act, 1996. In our presentation today, however, we will focus on four main areas of concern with Bill 76. These areas of concern relate to the development of the terms of reference, effective public consultation and funding requirements, project exemptions, extensions of the act to private sector undertakings and application of the process to class assessments.
While we agree it is important to streamline the environmental assessment process, it is critical that adoption of a more efficient process does not compromise the intent of the original EA act. Since the terms of reference are the foundation for any future decisions regarding a project proposal, it is critical that they are as comprehensive as possible.
1400
This cannot be accomplished without requiring the proponent to consult with the public during the development of the initial project plan. If the terms of reference are deficient in any way and later approved, then the remainder of the process is defunct. Without public consultation, there is the potential for significant environmental impact to be disregarded.
In the long run, public consultation during this stage could actually be beneficial to all parties concerned. Contentious issues will be identified early on and could eliminate the need for mediation or a public hearing in the future. If no contentious issues arise, at least public interest groups would be able to build their case more effectively.
Therefore, Friends of the Forest recommends that section 6.2 be amended to include a provision which would require a proponent to notify any public interest groups that terms of reference for a particular project are being developed. Furthermore, public consultation during this stage of the process should be made a condition of approval of the terms of reference.
Friends of the Forest echoes the views expressed by the Canadian Environmental Law Association with respect to public consultation in the EA process. While it is an improvement to make public consultation mandatory throughout the process, there remain a few glitches which may hinder effective public participation.
Section 6.1 describes public consultation as an "obligation to consult," stating, "When preparing an environmental assessment, the proponent shall consult about the undertaking with such persons as may be interested." We are of the opinion that the terms "consult" and "such persons as may be interested" are ambiguous and open to interpretation by a proponent. There are many forms of public participation, which range in commitment from simply notifying the public to the development of longer-term relationships and joint planning and decision-making.
When public interest groups are asked to participate on committees, we accept in good faith. Public interest groups expect all parties around the table to participate openly. We are dependent upon the knowledge and expertise of those individuals who represent either the government agency or the corporate body.
A good example commonly used in northern Ontario are local citizens committees for timber management plans. Past experience has demonstrated that government and corporate interests accustomed to making decisions behind closed doors sometimes find it difficult to openly share information regarding the activities of their proposed project. The result for most representatives is frustration, and participants generally consider the process a waste of time and energy.
Secondly, how does a proponent decide who is deemed interested in their project? Some important interest groups or stakeholders may be selected against in the event that a proponent decides that a group has no direct interest in a development proposal. For this reason, we recommend that a clear definition of "consultation" and "stakeholder" be included under section 1 so that the intent of public consultation in environmental assessment is not ambiguous and left to the discretion of the proponent.
Another limitation to effective public participation is the lack of funding available to public interest groups to investigate and present arguments during either the mediation or the hearing stages of the process. Section 8 refers to the proponent paying the reasonable expenses of mediators. These moneys should be directed towards public interest groups, which would require additional researchers and legal counsel to build their case and represent their interests during these stages of the process.
If the purpose of the new revisions is to provide the opportunity for meaningful public participation in environmental assessment, then public interest groups require access to funding at these critical stages. Without a funding mechanism for approved participants, groups are at a significant disadvantage compared to most proponents subject to these regulations. An example of this occurred during the class environmental assessment hearings for timber management where Forests for Tomorrow was nearly forced to withdraw from the hearings due to funding constraints as a result of the proponent taking longer to present its case than was originally anticipated.
Therefore, we recommend that a funding mechanism be included under section 8 and section 9 of Bill 76. This will enable non-government, not-for-profit organizations to participate in mediation processes or public hearings equitably on a level playing field.
The Environmental Assessment Act of 1975 currently applies to all public sector undertakings unless exempted by the minister. Conversely, private sector undertakings are exempt unless otherwise requested to be designated. To demonstrate how successfully this system has worked in the past, 278 of 333 public projects were exempted from meeting the requirements of the EA act within the first 10 years that it was in effect. Similarly, between 1983 and 1985, there were only six requests for private sector undertakings to be designated under the Environmental Assessment Act. Of these six, four requests were rejected, one was withdrawn, and one which was referred to the Environmental Assessment Advisory Committee for comment was later withdrawn by the proponent.
According to the Canadian Environmental Law Association, the use of the exemption clause under section 29 of the Environmental Assessment Act, now identified as section 3.2 of Bill 76, is one of the most controversial issues surrounding environmental assessment in Ontario. In the past, there have been no criteria to determine which projects should be exempted. There are no procedures outlining the process to be followed for exemptions. Consequently, most projects have been excluded from the EA act on an ad hoc basis. Traditionally, there has been no public notification of projects to be exempted from the process and no opportunity for the public to respond or appeal an exemption decision. Section 3.2 of Bill 76 does little to address these criticisms in the future.
Therefore, Friends of the Forest recommends that there be public notification of project exemptions and an opportunity for the public to respond to these exemptions. We also recommend that there be some fixed criteria used to determine which projects will be excluded from the regulations under the EA act.
Since the original purpose of the act "is the betterment of the people of the whole or any part of Ontario by providing for the protection, conservation and wise management in Ontario of the environment," then why distinguish between public or private sector proponents when the end result is the same? Either there are environmental impacts associated with a project or there are not, regardless of who the proponent is.
This is particularly relevant when one considers that our society is moving towards more privatization and less government intervention. This change in itself is not necessarily a negative step. However, one must consider that our economy is largely dependent on the use of natural resources. Our forests, our water, our air are held in trust by the government for the use and benefit of all Ontario citizens and not for the profit of one particular private company. Should there be continued efforts towards more private control, then private projects which have potential significant environmental impacts need to be evaluated on the same basis as public projects and therefore subject to regulations under the Environmental Assessment Act. Continued exclusion of private sector undertakings in the face of our new economic climate will jeopardize the ability of the act to protect our environment.
Therefore, we recommend that the Environmental Assessment Act apply to any and all projects which have the potential to significantly impact upon the environment, regardless of who the proponent is.
Class assessments are described as projects which have important characteristics in common. Typically, they are relatively minor in scale, recur frequently and have a generally predictable range of effects. Though significant enough to require environmental assessment, the projects are deemed to cause relatively minor effects to the environment. With the exception of the class environmental assessment for timber management in Ontario, the class assessment approach has been used successfully to streamline the environmental assessment process. Class assessments have been submitted by municipalities, conservation authorities, various provincial ministries and Ontario Hydro.
The current Environmental Assessment Act does not include provisions for the use of class assessments, since this approach to environmental assessment occurred after the act was passed in 1975. Bill 76 provides a legal basis for the use of class assessments. We consider this inclusion to be a positive step, because the development of class assessments will be consistent among proponents. However, it is important that the class assessment approach be limited to projects that truly fit the definition above and not applied to such projects as timber management in which the environmental impacts are neither minor in scale nor the procedures routine in nature. Another criticism of the class assessment application is the lack of mandatory public consultation required during the development of the terms of reference.
Finally, there is no requirement by the proponent to evaluate "alternatives to the undertaking" or "alternative methods of carrying out the undertaking" as part of the preparation of a class EA. This step would only come into effect if a particular class assessment is requested to be bumped up to a full environmental assessment.
We also recommend that there should be an expiry date of five years placed on approved class EAs. This way, any new technologies which are either unknown or cost-prohibitive could be re-evaluated and incorporated into the new class EA, thereby improving the effectiveness of the process.
1410
Mr Gravelle: Thank you very much for your presentation. It was truly an excellent one. You really have homed in on the flaws in the bill in terms of the things that need to be changed. As we continue these public hearings into the bill, consistently the message is coming across that the areas that need to be improved are obviously the whole element of consultation on the terms of reference at the beginning part of the process, and I think you make the point really well in your brief when you say that in the long run public consultation could actually be beneficial to all parties concerned. The point has been made by proponents as well that if there is public involvement at the early stages, there's a much better chance that the process will -- I've been using the term "maintain some integrity" and I agree that we need to do so.
Tell me more about your thoughts on that, how important it is in terms of a project being able to basically be helped out by having public consultation at that early level.
Ms Brigham: If you have parties like public interest groups that are involved at that point in time, then whatever the contentious issues are will be identified and then the teams could work together to come to a common solution, particularly if it's a resource-sharing issue or something like that.
Mr Gravelle: You've just stated it so well and it's been a consistent message, and I do think that obviously those --
Ms Brigham: In the long run it would save time and it would save money if everybody was working together and you could identify those and come to some sort of common ground.
Mr Gravelle: Intervenor funding has been another one of the consistent issues, the fact that legislation such as this and the whole concept of environmental assessment is a complicated process and it's very complicated for lay people. You talk about the need to have funding so you can hire researchers and lawyers to do it -- and we don't want to start a tirade in any way against lawyers, because certainly they perform an important role. But there's no doubt that unless there is intervenor funding, no matter who it is you hire -- Friends of the Forest, for example, wouldn't have the resources to basically get involved in a process, I wouldn't think, in any kind of meaningful way if you weren't able to find some assistance. If you need to do that research, you need some help to do it.
Ms Brigham: Sure. The main thing with public participation in any hearing or review of a project proposal is that most of the people work for non-profit groups and they're not being paid to spend the time to go over any of this, whereas the proponent, that's their job. They put the plan together, they review it. If it's a government proponent, then it's government-paid employees who are doing that, whereas the public interest groups have to do it on their own time. They already have jobs, most of the time, that they're spending 40 hours a week at, so they have to take all the extra time they have out of their lives to be able to do something.
That's why I think it's really important that if they can get access to it, apply to some sort of funding mechanism, then they'll be able to participate on an equitable ground. Maybe they'll be able to hire somebody to help them put together the research that's necessary, or maybe they have somebody who's a lawyer who could already participate who's part of their group and they could cut the cost. But still they need some additional help. They can't spend all their time trying to fund-raise; then they wouldn't have any time at all to review the proposal or to participate in the hearings.
Mr Gravelle: It's probably not a fair question, but have you got any ideas as to how the funding mechanism could work? There's been a fair amount of discussion about how it doesn't work, but have you got any concept, or what would your thoughts be in terms of how the funding could be put in place?
Ms Brigham: Not really. The only thing I had thought of was that if there was some way where people could apply -- you would have the groups identified already as to who would be approved to participate in the process and you would know what the issues were, so you could have some sort of -- maybe they apply, they put together a short plan outlining what they need the money for, and then the money would be approved at that point. How much would be dependent upon whether they put in the proposal, and maybe, you know, a budget of how much they thought they needed. You could have a certain set allotment for various activities.
Mr Gravelle: I'm very impressed with your presentation. I know that those on this side agree with many of the amendments, and I hope the government is getting the message as well. I think they are basing some of the comments they've been making the last couple of days too on the need to obviously consult. It's important to have it much better defined than it presently is in the bill and I hope they listen to your amendments. Thank you very much for coming here today.
Mrs Boyd: I think your colleague had something to add to the funding thing, and I wonder if she would like to go ahead and do that, because that's fine.
Ms Lucie Lavoie: I was simply going to agree with the previous speaker that funding shouldn't be available at the beginning of the process, when defining the terms of reference, in a separate way from actually participating in the EA, because I believe that many of the conflicts can be overcome during the definition of the terms of reference.
Mrs Boyd: I certainly agree with that and I think that's an important issue.
Friends of the Forest is larger than just a local group, isn't it? Do you want to talk a little bit about what kinds of things you've been interested in in the past, and in that respect the notion that Mr Doyle talked to Ms Wanlin about, whether or not people who are not locally and immediately involved in an EA situation, whether it's ever appropriate for people who have a broader public interest to be involved in this process? I'm a little concerned because I hear people saying, "We don't want busloads of people coming in from outside." I'd really like to hear you talk about when it might be appropriate for people who have a broader public interest -- for example, maintenance of old-growth forest -- to be part of a process like this.
Ms Lavoie: Friends of the Forest is a regionally based organization, but we do focus much more broadly than just on the Thunder Bay region. We are concerned about forests everywhere and we have a special stake in the boreal forests because there aren't a lot of organizations that work on boreal forest issues.
With respect to having outside interests coming into a case in a particular community, I believe that quite often many of the environmental consequences of development projects affect everyone in Ontario or Canada. They aren't necessarily limited to that particular community. Often what happens is that the good of society as a whole is overlooked and often public interest groups play a very important role in bringing some of those issues to the fore. Although the old-growth white pine forests are important for the people who cut them in Temagami, for instance, they also serve a very important function for people from Thunder Bay who might want to go canoeing in an area that has old-growth white pine. So it's very important to include a broader range of interests around a particular issue.
Another instance where Friends of the Forest has had experience is with native communities in the north, especially native trappers who have been very concerned because forest companies have come and have cut many areas that they need for trapping. They feel that they don't have recourse, that they have no one who will listen to them. In such instances, groups from outside can give a voice to people who can't negotiate the system or don't know how to negotiate the system.
Mrs Boyd: I notice that you rely, for example, on the Canadian Environmental Law Association, and we know that the Sierra Club is putting a legal defence fund into place as well. Those are groups that have a broad experience, not only in Canada obviously, but really across the world, and know about the common kids of issues and the implications of the kinds of decisions that are made, not just on our jurisdiction, but on other jurisdictions. It would be a shame if they were not allowed to participate in the discussions throughout some of these situations.
Ms Lavoie: It's absolutely essential that they be allowed, because in many ways many of the proponents are multinational corporations, or very large corporations, that have access to a worldwide network of information. Why should the same not be true of smaller proponents or smaller interests like environmental or non-government organizations?
Mrs Boyd: Exactly.
Ms Brigham: We often feed off each other. If there is a local issue that a group is working on and we don't have the resources, we will contact other groups from other locations and ask for either their help or their political support, whatever it is that's needed to get through. Usually, as far as regional issues are concerned, outside people are invited in by the people who are participating, and they would work through us to voice their opinions.
1420
Mrs Boyd: Have you a view on the mediation issue, how important it is to try to resolve these problems outside of the courts or outside of very lengthy hearings? I know that the length of hearings is very draining for people and is as much of a concern for proponents and public interest groups alike. Have you a sense on the mediation aspects of this bill?
Ms Brigham: I think mediation is an excellent alternative to making it more legalistic, particularly if you have people who are not familiar with that kind of process at all. It makes it a more comfortable environment for them to be able to participate. I had some concerns as to how you would reach a win-win situation between the two different parties if they're not about to give and what alternative they would have at that point in time, either to take it to a higher level or something. But other than that, I think it's good. If you can get the issues worked out at that level, then it would be beneficial all around.
Mrs Boyd: It's also hard to have mediation unless there's a fairly level playing field. If in fact there is no support for the public interest groups which want to have some say in a proponent's proposal, it makes it very difficult for mediation to be very meaningful, if you have an elephant on one side and a mouse on the other.
Mr Pettit: Thank you, Deneen and Lucie, for your presentation. I'm wondering, could you please tell the committee what direct involvement either of you or your group has had with the EA process and, if so, the roles you may have played?
Ms Lavoie: We didn't have a direct involvement in the EA process. We were formed about four or five years ago. The process was already under way. We kept up to speed as to what was happening, but we weren't directly involved.
Mr Pettit: Throughout our travels in the last two weeks we've heard from, as you probably know, many groups. We've heard a constant theme from those groups, both pro and con, that in their view there seems to be a lack of certainty to the process, along with horror stories about the lengthy time frames and horrendous costs. They seemed to agree, at least for the most part and with the majority of the amendments, that this will solve a lot of those problems. Would you agree with that?
Ms Brigham: I'm sorry, would solve what?
Mr Pettit: That the amendments in Bill 76 will increase the certainty to the process and, in so doing, will reduce a lot of these lengthy time frames and tremendous costs involved in the process. Would you agree that the new amendments are going to alleviate those concerns?
Ms Brigham: I think having some sort of set deadlines for reviews and responses to reviews is a positive step. Yes, it can move the process along a lot quicker than having it go on indefinitely with no time lines on it.
Mrs Margaret Marland (Mississauga South): I'm very interested in two areas you've highlighted for us this afternoon, the first being intervenor funding, because I have to admit that in the early 1980s and late 1980s, before I went to Queen's Park in the early 1980s and then in the late 1980s when the Liberals were the government, I was one of the people who pushed for intervenor funding. It's very interesting to admit that 10 years later I've come full circle on this issue. I've done it through personal experience in my own riding.
One thing I've learned, because I'm dealing with a very difficult environmental issue in my riding currently, is that if there is enough level of concern in the community, the expertise is there, and it's there on a volunteer basis. If there is additional funding needed, it also is there. I think where that is of value to all of us -- and I can say this because I've been on both sides; as I say, I was one of the advocates for establishing intervenor funding when Jim Bradley was the Minister of the Environment -- where it has an advantage is that you know if you get the support in the community and it is established and it is broad-based to the point where people are willing to throw in their $10 or whatever -- there is a group in my riding right now that is fund-raising -- then that says to the issue and in fact to the proponent and ultimately to the government, "Look, there are enough of us who are concerned about this that we're demonstrating our concern by our support."
In one case in my riding, we won a hearing at the Environmental Appeal Board which the board itself acknowledged wouldn't have been won without the community involvement. That community involvement was all volunteer expertise. There was no payment for the time that the community representatives -- some were lawyers and some were accountants and so forth -- put into preparing for that hearing.
The advantage of that is that it eliminates a situation where you might have a very small segment with a very particular vendetta against a particular application. The fact is that you don't have the David and Goliath scenario; you have something demonstrated by the participation of the community.
The money is there. Look at the Environmental Defense Fund. These organizations have a lot of money, and they have given groups in my community money in the past to support their causes because there was enough concern demonstrated that they believed in it. I heard you say a few minutes ago that people shouldn't have to spend their time raising money to fight a particular proposal. But that really doesn't have to be the case. When intervenor funding comes voluntarily from people with a concern in the community, would you agree that the intervenor funding from the community is a stronger demonstration of concern than intervenor funding that's extracted through taxes, through government?
Ms Lavoie: I strongly disagree with you that the community can raise funds even if it is really concerned about the impact of a particular project. Many of the communities in northern Ontario are very small; many of the projects that are happening in northern Ontario are very large. Right away, even if everyone in a particular community -- for instance, a native reservation in the north -- is strongly opposed to a project, they don't have the money. Even if they pooled their annual incomes all together and tried to put it together, they wouldn't have enough money even to get people to a hearing in southern Ontario. This particular scenario that you have that people in the community, if they are really concerned, will pull together their resources to fight, it's true, they will, but their resources may not even, and usually will not, approach the resources of the proponent.
Mrs Marland: But isn't that where the Environmental Defense Fund comes in? That's a national and international organization.
Ms Lavoie: I believe you put too much emphasis on how much money and how much organization many of the environmental advocacy groups have. Many of the budgets of the environmental advocacy groups are not as great as you think. They will do what they can. Many people work very long hours for very low pay because they are so concerned about what's happening to our environment. That's not to say that we should go on exploiting these people, trying to get as much as we can from people who are really concerned about what's happening. For any dialogue to be effective and any communication to be meaningful, both partners have to come from an equal position. Money unfortunately speaks very loudly, and I think if someone has more money than someone else, whoever has more money will likely have a greater impact.
The Acting Chair: Thank you, Ms Brigham and Ms Lavoie, for your presentation. We appreciate it very much.
1430
TRI-NEIGHBOURS WASTE MANAGEMENT
The Acting Chair: The next presenters are from Tri-Neighbours Waste Management, Mr Bonnett and Ms Hart. As you know or probably heard, you have 30 minutes, either total presentation and/or questions. I was going to say you should identify yourselves for Hansard, but I'm quite sure they know which is which.
Ms Carolyn Hart: Just for the record, I am Ms Hart.
Mr Ron Bonnett: And I am Mr Bonnett.
Ms Hart: In case there was any confusion.
I'd like to thank you for the opportunity to speak to you this afternoon. I'm the project manager with Tri-Neighbours Waste Management. I'm also a member of the Canadian Institute of Planners and a registered professional planner in the province of Ontario. I also hold a master's degree from Queen's University in planning.
We'd like to give you an overview of our thoughts on Bill 76 this afternoon and we hope we can provide you with some information that you can use when reviewing this very important piece of legislation.
Mr Bonnett: My name is Ron Bonnett and I am the chair of the steering committee.
Tri-Neighbours was established as a pilot project to determine if waste management planning could be done in a more streamlined fashion going through the EA process. We were extremely successful at doing that.
You have actually three pieces of information that we've presented: One is a summary document that we're going through today; the other is a presentation that we made to Mr Galt in April, and we're pleased to see some of those recommendations implemented in the new legislation; and the other is an example of the type of public consultation that we used in our process.
Our community has three separate municipalities in it. We've developed a waste management plan for 40 years. We began the EA portion of our study in February 1994, the document was completed and submitted to the ministry in March 1995 for approval and we received the approval in January 1996. We accomplished this at about 50% of the cost of waste management studies in the province of Ontario. I think a lot of that had to do with some innovative techniques we developed to do that.
Ms Hart: One of the first items we'd like to discuss this afternoon is the legal requirement to consult. What we have presented you with this afternoon is an example of the type of correspondence we send out to each and every mailbox within the study area. It's termed the Tri-Neighbours Tribune. We find that this type of consultation mechanism is quite effective in the sense that there are maps showing exactly the study area and what is being considered.
There are plain-language questions and answers on the back of this document, some of the common questions that people have which they may be too reluctant to raise at a public meeting. With these questions and answers, the questions are there -- quite obvious questions -- and the answers that are required. There's also technical information in that newspaper as well if people are interested in more of the technical side. There is also an opportunity for people to write in, and questionnaires have also been included in this document in the past.
We've sent out over four documents over the course of the environmental assessment process, and as I mentioned earlier, each and every household within the study area was given this directly to ensure direct public consultation and participation in the process itself. However, we also suggest that the definition of "public consultation" be broadened to include government agencies. We suggest that pre-submission consultation take place prior to the submission of the complete document.
In the past, we found that our task reports, tasks 1, 2, 3, 4 and 5, were sent to government ministries for review and comment. This did require resources on the part of the ministries to review the documents. In particular, municipal affairs, natural resources and northern development and mines commented directly on the documents. The documents were rewritten three times prior to submission of the final document. This increased the time required for the government review in the sense that when the documents were given to those ministries, they had already seen them. In fact, they had seen them three times, and the changes and concerns they had indicated during the review process were already in place by the time they received the final submission. Had these concerns been raised during the government review period, extensive negotiations, particularly with natural resources, would have occurred, thus adding to the time frames. So it's very important, we feel, that the definition of "public consultation" be broadened to include government agencies.
In fact, representatives from those ministries attended our public meetings. Any questions the public may have had, in particular regarding Natural Resources, could have been answered directly by the Ministry of Natural Resources representative there at the table, instead of the project manager or the consultant or the steering committee chair interpreting government policy. So we feel that's a very important item to be considered.
Mr Bonnett: Just adding to that, the whole concept was that you don't want to put a pile of paper in front of somebody that they've never seen before or have never had a chance to comment on before, and then all of a sudden you've got to go back to square one. We wanted to make sure that didn't happen.
Ms Hart: We believe that the proposed time frames for the government review cannot be met without the extensive use of pre-submission consultation techniques. The Tri-Neighbours submitted the environmental assessment review in March 1995, and the review lasted well into the fall of 1995, which is approximately eight months. The proposed 45 days for a public agency review of EA and 30 days for EA review and notice of completion is too short to adequately carry out this task. If we're going to carry out the pre-submission consultation, it is necessary that those time frames be lengthened. The 30-day final public comment period, however, is adequate, and the 90 days for the decision of the approval is adequate, as both those time frames were met within the Tri-Neighbours' EA exercise.
We also believe that the time lines should be set for proponents, in particular the municipalities, when preparing the environmental assessment and carrying out mandatory public consultation. Without the time lines, municipalities may drag out and rehash issues continually throughout the process.
Mr Bonnett: That gets into the municipal agreement that was drawn up between the three municipalities. We drew up an agreement between the three municipalities mandating that decisions be made at the steering committee table. We were not going to make a decision at the steering committee, have it go back to three individual councils, each council take a different interpretation and come back, because you end up getting into a process that you never come to a decision. At times there were very tense discussions at the committee table, but we hashed the problems out there, made the decisions and moved on.
It has to be built into the process that the local people who are sitting on these steering committees have to take responsibility for some of the decisions they're making. They have to realize that you can't blame someone else for all the problems. You have to deal with the issues, make decisions and move on.
Ms Hart: The only item that had to be ratified by the municipal councils was the budget, but after the budget is approved, all other planning decisions can be made at the committee level as long as they are within the budget constraints. We feel that's the only area where it is necessary that municipal council ratification of decisions be made. These items, we feel, can be included right in the terms of reference, so up front everyone sees the level playing field, that the type of public consultation that's going to be done is going to be this type of newspaper that we saw, that government agencies are going to be included in public consultation, that the time frames would be set out and that decisions would be made right at the steering committee level.
The other added item that would be of benefit to the terms of reference is the amount of work done in-house by the project manager. In our specific case, I had authorship of tasks 1, 2 and 3, and the consultant took that work and did 4 and 5. Based on that, that was approximately $50,000 worth of savings by having in-house creation of the first three task documents. They set out the planning rationale, they set out the environment in which the undertaking was going to be completed. This can be done right at the local level. It has to be led by the project itself, not by the consultant. In the past, we've seen other studies in which all five task documents are completed by the consultant. The prices of those studies have risen in the sense that they are done usually outside the study area.
That type of cost saving has been greatly enjoyed by the Tri-Neighbours group. In particular, the public consultation component is $10,000 per meeting, and we handled that ourselves. We had 10 public meetings, and that was quite a cost saving for this particular project.
1440
Mr Bonnett: One of the other recommendations, too, is the fact that we should be into multicommunity efforts. It shouldn't be just one community dealing with landfill site problems. You should be dealing with multicommunity issues. There's no use spreading environmental damage all around. You might as well try and do it once and do it right. That's one of the things that we focused on with the three communities that we're involved with.
Moving into the reconsideration of decisions, I think one of the things that has to be recognized is once an EA is approved, it should stand unless there is some environmental damage that's being proven that is as a result of the study. It shouldn't be subject to reconsideration because all of a sudden some special-interest group springs up and they've got the not-in-my-backyard syndrome. People, if they're consulted properly through the process and they go through all the steps to make sure that everyone has their chance for a say, you have to have a cutoff point where you move on from there. You shouldn't get your EA document in place and get your landfill site approved, and then all of a sudden people say, "Why are you doing this?" because they had the opportunity to go through in the beginning.
Ms Hart: Once the EA is approved, it should reflect the competent staff at the ministry level. In light of the recent government cutbacks and the increased pressure on staff, it is possible that municipalities may not receive adequate advice from the EA advisers. It is crucial, therefore, that throughout the environmental assessment planning process, the EA advisers provide consistent, reliable advice to proponents, as was done in our case, to facilitate the development of the EA submission that will meet the requirements of the act, while at the same time provide for flexibility to modify the submission to meet the circumstances of the local community.
Mr Bonnett: There is a paragraph in there on the mediation provisions. We strongly believe that mediation is the approach that should be taken. I think you can save considerable money by going through that process as opposed to litigation.
Ms Hart: Mediation is far less adversarial, costs less and results in solutions that are generated by the participants themselves. It is highly recommended by the Tri-Neighbours as a method of accommodating both public and private concerns.
Mr Bonnett: We agree with the proposed land acquisition guidelines, which authorize a proponent to acquire property in connection with an undertaking prior to receiving actual approval. There is an element of risk, but I think if you have done your homework and done things properly it is a calculated risk. It all lends into the sort of streamlined process that we developed as we went through and completed the task reports. As Carolyn mentioned, we were always revising the reports that we completed before, but we were always reaching ahead to the next step, and when we reached task 5, we were already starting to reach ahead into the EPA level work and start site-proofing the site that we had identified. So you don't get the process where you go to task 1, you stop and wait to see if it's approved, you go to task 2 and see if it's approved. You keep reaching forward and amending as you go. It's got to be a seamless approach.
Ms Hart: The Tri-Neighbours agree that authorizing the ministry or the board to defer making parts of decisions better suited to an appropriate decision-maker of technical detail would lead to better decisions. The particular sections, 11.1 and 11.2, I think, are excellent sections to be added to this bill.
The non-applicability of section 2: This section of the act authorizing the minister, in the public interest, to declare part or all of the act or the regulations not to apply to a particular undertaking must be carefully considered. The Tri-Neighbours suggest that guidelines clearly state under what circumstances and the rationale that would invoke such provisions would be in order to ensure that the act would not apply.
Mr Bonnett: One of the things we noticed in the material that came around, the position of the director has been identified and there are certain responsibilities that go with that position. I think it's going to have to be very clearly spelled out what that person's role is, what the qualifications are and I think it's going to have to be a careful selection process that is based more on qualifications that on political expedience, because it's a very sensitive position.
Ms Hart: Generally, the Tri-Neighbours wish to encourage joint service planning. As indicated earlier, we are three municipalities working together on this and these types of partnerships ensure that cost-effective and timely waste management planning in Ontario will be the future way to go. Also, the Tri-Neighbours strongly agree with the concepts of early and clear direction on the kind of information to be included in environmental assessment documents in order to meet the requirements of the act. However, we suggest that flexibility and the ability to modify the document to the circumstances of the local community must be ensured. This can only be achieved through the use of competent and qualified environmental assessment advisers from the environmental assessment branch. The expert advice provided to the Tri-Neighbours during the development of our plan was a key factor in the cost-efficient methods by which we were able to complete the document in only 13 months.
Mr Bonnett: In addition to the EA branch advisers who were assigned to us from Toronto to work with this pilot project, the role of the Sault Ste Marie district office was -- it was unbelievable the support that they gave us. We had an EA adviser from Toronto attending our public meetings and local staff attending meetings. We were given competent, timely advice. I think one of the clear things is that when you have an EA adviser advising municipalities, they should not only be able to read the legislation; they should be able to interpret and advise. I think you've got to have that flexibility to understand the legislation and give proper, competent advice to the people who are in the field implementing it.
One of the other key components, and I think it reflected through our whole study, was the fact that it was locally driven. We hired a competent staff person with a planning background. The consultant was our employee. The consultant did not drive the process. The legislation did not drive the process. We knew we wanted to select a new landfill site. We knew we had legislation to comply with. We made sure we had competent staff to deal with it at the local level and the consultants who were hired were given very specific direction of what was expected of them, and the committee itself became very involved in the process, as well as the public.
Ms Hart: We strongly believe these ideas must be included in the future terms of reference for environmental assessment if cost-efficiencies and a timely process are to be achieved. The Tri-Neighbours believe some training should be made available for steering committee members in order that they can be made aware of their decision-making function. The concepts of a municipal agreement and the committee structure for effective decision-making must also be included in these terms of reference.
Mr Bonnett: The attached document with the comments made, Mr Galt, include some nuts and bolts of how to streamline the process, simple suggestions like instead of sending -- it was how many documents? -- $2,000 worth of printing to circulate for the environmental assessment review, that could have been put on computer now and distributed by Internet. The savings would be, if you look at it across the province, quite a bit. There are little things like that that you can do to save money. I think sometimes we get a view of, this is how it has been done and that's the way it should always be done. We've got to look at new ways of doing it.
Ms Hart: Once again I'd like to thank you for the privilege of being able to address the committee this afternoon.
Mrs Boyd: I want to thank you very much for your presentation: very interesting as an example of how municipalities can work together and can work with provincial government employees to make something work. So it's very helpful.
I must tell you that as I was listening to you, I was thinking to myself that you're already halfway there in terms of wearing two hats, because of course you have to represent the public interest because you're municipal governments, very different from commercial operations in some cases, and of course this bill has to apply to both. So it's very good for us to know that for public organizations like municipalities, you already -- I mean, in order for people to maintain office, they have to show they're following the public interest, and that's very different from a corporation. So in trying to do a bill like this, we need to meet both needs. Much of what you say is very valuable in terms of making the process work for municipal governments, regional governments, that sort of thing. It's very, very valuable.
But I'm wondering if you could give me some kind of sense of how you think it would be applicable where the proponent is a profit-making, multinational corporation. Is it possible? I mean, is the same methodology possible?
Ms Hart: I do believe the concepts of presubmission consultation would be applicable. Getting issues out on the table and even scoping them down prior to submissions being made is always going to result in efficiencies both in costs and in the actual review time. So that concept would stand. The mediation concept would stand as well. Solutions generated by participants take much more ownership and they seem to be longer-term solutions and more of a win-win slant is based on them when we come up with them ourselves. So those two concepts in particular would be applicable.
1450
Mr Bonnett: I think, though, the other thing is you have to remember that municipalities, while they are elected to represent the public interest, especially currently, we are very profit- and cost-driven as well, so we may be crueller and meaner than some of the for-profit corporations at the present time.
Mrs Boyd: You must have visited my municipality recently.
Mr Bonnett: I think that you develop the process and I think it would apply equally in both cases.
Mrs Boyd: That's really helpful, because that's one of the issues that needs to be there.
I think you're absolutely right about the timeliness of consultation and review by ministry officials. You're fortunate you were doing it when you were. As you know, both MNR and the Ministry of Environment, many of these people no longer are available to groups for this kind of consultation because there has been such a downsizing in many areas. It's going to be harder and harder to get the kind of expert help that you had and to have provincial employees be able to assist at that early stage. I personally think it's going to, in the long run, prove detrimental to this whole process not to have that expertise in the beginning because it will spin out those conflicts later on, or even a worse outcome, we will miss things and in the long run the environment will suffer.
Mr Bonnett: The ministry consultation was very, very important.
Mrs Boyd: I can tell that from your presentation. It's very important to keep the public on board to have those questions answered by the experts at the time they arise.
Ms Hart: Yes, right at the public meeting. There's no need for a middle person to interpret that. They can provide the policy explanation right at the table. We had over 80 people in attendance at public meetings because on the advertisement it said: "MMA will be here. MNR will be here. If you have a question, ask them."
Mr Bonnett: And people did ask.
Mrs Boyd: I'll bet they did.
Ms Hart: And 80 people in attendance at a public meeting is very well received in our area. That was an excellent turnout.
Mr Bonnett: I think the thing is, when you're looking at the cost of the process, the cost of having that advice up front is a lot cheaper than having a group go through the whole process and then have to go right back to square one. So there's got to be a mechanism for getting those specific government comments into the documents before they get to the final page.
Mrs Julia Munro (Durham-York): Thank you very much for joining us. I certainly appreciated the comments that you make here. I want to follow up on a couple of the comments that Ms Boyd made, because I too recognize that the difference here was naturally where you, as a municipality, were the proponent. But I think what you're suggesting here is that this provides us with a vision of how this process can be made to work. Certainly that's where the value lies, in your being able to provide us with this.
I wondered if you could, based on that, give us a couple of pieces of information with regard to things like the steering committee. The reason I want to know this is how you would see that change if you're talking about a private proponent.
Mr Bonnett: My personal feeling is that a private proponent would have to reach out into the community and identify interest groups and members who would sit on a steering committee for a private environmental assessment as well. I think they would have an obligation to identify individuals who could represent the interests of the community at large and draw them into the process.
One of the strengths of our steering committee is the diversity of the members who sat on it. We had people who knew the history of the area for 50 years back; we had people who were new to the area. That gave us sort of an overview of issues that wouldn't be identified by a consultant, wouldn't be identified by a ministry person. If you mandated that the companies had to have a selection process built into their terms of reference for how they were going to appoint a steering committee to walk it through, that would alleviate some of the problems.
Mrs Munro: Following up on that then, what do you see as the role for municipalities in that kind of context?
Mr Bonnett: I think they would definitely have to have a representative on that steering committee, a representative from the municipality, to represent the interests of the municipality.
Ms Hart: When representing the interests, be it an environmental group or a municipality or any other particular identified stakeholder, there are opportunities within the process which are clearly found within Bill 76 that you can identify and weight the criteria throughout the actual environmental assessment process to indicate your concern or where your interest is. The actual weighting of forestry or soil conditions or distance to builtup areas or distance to roads can all be identified and your interests can be used directly in the process by saying, "I am weighting the importance of forestry above distance from schools" or "I am weighting the distance from the airport higher than the soil interest." It's very clear within Bill 76 in that you have the chance to do that and the process recognizes the interests of the public.
Mr Bonnett: Maybe even adding on that, the practical way that we built the public consultation into this process, we started those newsletters -- I think there were a total of five went out -- and we developed some questions of what things the community people thought were priorities. They had mail-ins; they could call in. We documented their responses. The next issue that went out, we showed what their responses were; we showed how we had changed the document to accommodate those responses.
In the case of a private company, if they had that same sort of process, then people would feel they are part of the process. I think one of the strongest things you can do in an environmental assessment process is make the public feel they are part of it. They don't want to be presented with, "Here it is, like it or lump it." They want to feel, "I've had my say; oh, yes, I can see where you took in some of my considerations," or "I can see where you've considered it, but yes, I agree with your argument that it doesn't apply." But they have to know that they're part of it. I think that's key.
Mrs Munro: If I might just ask one other question, you referred to a municipal agreement. A few days ago we had someone who raised the issue of a community agreement. I'm just wondering if you could give us a couple of points on what you mean by "municipal agreement."
Ms Hart: The municipal agreement is a document devised by the three municipalities clearly stating our roles that each of us would play throughout the process. It also clearly states the voting structure, the responsibilities they have, the fact that they're going to make decisions at the table. They won't be going back to council after this is approved, after the budget is approved. You'll be making the decision that night. Some of our meetings lasted until midnight because a decision had to be made. We had to keep the process moving. Those types of things are in the municipal agreement.
Mr Bonnett: As an example of bringing ministry people into it, when we were drawing up the municipal agreement, we had a vision of how we wanted it to work, and we knew we had to make the decisions at the table. We had a representative from municipal affairs come to the meeting, sit down with the councils, and explain that it was legal for the steering committee to make these sorts of decisions on their behalf, so that then we weren't into this constant rehashing of issues between municipalities.
Ms Hart: That should clearly be included in the terms of reference. In fact, we suggest that the Tri-Neighbours terms of reference can be used as generic terms of reference if required, because these items we are talking about are reflected in our terms of reference: the municipal agreement, the presubmission consultation. This is going to be fast; it's going to be cost-effective. It was right up front and provided a level playing field for everyone.
Mr Gravelle: Thank you very much for coming to Thunder Bay, and welcome.
Mr Bonnett: Glad to be here.
Mr Gravelle: Did you drive or did you -- the north is a big place.
Mr Bonnett: It is.
Mr Gravelle: This is really a very exciting presentation, because it truly is, I think, in some way the model that we've all been in some way talking about, looking for, trying to find solutions to things. It's good timing perhaps, as we near the end of the public hearings, that your story is being told, because it really is quite remarkable.
I'm really interested in the public consultation. We probably don't need to explain it better, but I'm just curious. I understand from listening how you did it or what happened, but I'm curious about the objectivity thing. Somehow you were the proponents in essence but you were viewed comfortably as being objective in terms of truly wanting input, and I can see by some of your communication techniques why they would work. That's really the trick, I think. That's the trick.
Mr Bonnett: That's the key.
Mr Gravelle: That's the key. What is it in essence? To me, it also has to do with you sitting down and having an attitude; there's a genuine desire to be totally fair and objective. So just tell us if you can in some way how you did it or --
Ms Hart: That's exactly it. We didn't want the consultant to come in and set up an intimidating type of structure, which I have seen in the past. We just tried to present ourselves as totally objective and wanting the best for the communities. We're from the community. We want the best for the community, and we did more of a facilitation technique as opposed to consultation. We drew in people, 80 people, everyone talking. We had coffee. We sat down. It was quite effective and quite useful, and it wasn't a lot of just lip-service, if I can use that term. It was real facilitation.
Mr Gravelle: These are methods that are there, but you sort of changed the way things are normally done, and of course obviously it's one where people feel they're truly involved and their input does matter.
1500
Mr Bonnett: But I think when they saw their questions coming back to them in the next issue, showing how it was amended or how it was changed -- another thing too is that you mentioned attitude. I think a lot of groups, municipalities or businesses going into environmental assessments see the words "environmental assessment" and they see this horrifying dragon rather than the two words "environment" and "assess," trying to figure out how you can do the least damage to the environment and proceed with a project. We took the attitude that we were going to go through this, we were going to do it as fast as possible but address all those environmental concerns, address all the concerns of the public through it. Once you take that positive outlook at the start, rather than beating up on the provincial government or the federal government or the guy down the road because he doesn't agree with you, then you can work through the process.
Ms Hart: A lot of plain language was used. That was another key.
Mr Bonnett: Some of it really plain at some of the public meetings.
Mr Gravelle: I'll bet. Just changing gears quickly, I'm curious about the fact that you talk about section 11.3 in terms of the ability of the minister to have an EA approved and then have it revoked afterwards. Obviously that is an interesting concern.
Ms Hart: Yes, because our EA was approved in January and we immediately began Environmental Protection Act work; again, as a pilot project, to do it streamlined, do it quick, do it fast. We were already eight months into it, ready to submit fairly soon. Later, if something did come up, we'd still want the best for the environment. We would want that to be addressed. However, I would rather just not have that fear. I feel we did an adequate job the first time around and we addressed those concerns.
Mr Gravelle: Why would the minister want it in there?
Mr Bonnett: That's a good question.
Ms Hart: Unless new information came to light, because we do not want to contribute to any environmental degradation.
Mr Bonnett: As a closing note, I'd like to say that the new landfill site should be open next spring. We started in February 1994 and it should be open in February or March 1997.
Mr Gravelle: Congratulations.
The Acting Chair: On that note, we'll stop this one. Hopefully you'll invite us all up to it, because it's great to hear a success story in landfill for a change. I compliment you on it. I know I'm supposed to be neutral, but I can't. I compliment you on it, sir, and thank you for your presentation, both of you.
Mr Bonnett: Thank you for the opportunity.
FRIENDS OF THE KAM
The Chair: The final presenter today is Friends of the Kam, Julian Holenstein. Julian, welcome to the group.
Mr Julian Holenstein: Thank you very much. I guess I should start with a brief introduction about who the Friends of the Kam are because it's hard to tell from that name what we're actually all about. Friends of the Kam is a non-profit community group representing and supported by recreational users, naturalists, sportsmen, municipalities and local businesses. Our work in the past few years has been opposing further hydro-electric development on the last remaining wild water sections of the Kaministiquia River. This river is already shared with two hydro-generation facilities operated by Ontario Hydro. The river, for those of you who haven't heard of it before, is located about 20 kilometres west of Thunder Bay.
Since 1986 our group has rigorously opposed two private sector development proposals put forth by Kam Power Corp. For over 10 years now we've participated in Environmental Assessment Act processes. They have included public reviews, an intervenor funding hearing, meetings with independent mediators and impromptu resource-sharing discussions initiated by MOEE staff from the EA branch.
In some ways the existing EA act has worked. All of us are fortunate that the last remaining wild water section of this river remains free-flowing and continues to be used by a multitude of recreational groups. However, with this said, 10 years is still an absurdly long time for EA act participation by a local community group. During both the Kam 1 and Kam 7 EA reviews, burnout and frustration with the EA process was clearly evident from all sides, including user groups, government ministries and the proponent.
Friends of the Kam has spent many long days within the current EA process. Given our past experience, we are very concerned that the contents of Bill 76 could erode any progress we may have made in securing protection for the Kaministiquia River. In many ways Bill 76 appears to be taking a giant step backwards for environmental protection.
When we first received Bill 76 and we looked at the title, it had a great title. It said it was "to improve environmental protection, increase accountability and enshrine public consultation." Ironically, after we'd read the bill we felt that it would jeopardize environmental protection, decrease accountability and erode public consultation. Our greatest concerns lie with the sweeping powers given to the minister and the limited requirements for early public consultation.
I'll talk first about public consultation as that's where we have some of our major concerns. The EA legislation must provide opportunities for public participation throughout the EA process, particularly in the early stages of EA planning when critical decisions are being made. Public participation must occur before the proponent has made significant financial commitments in a project in terms of research costs necessary to prepare the detailed terms of reference.
Bill 76 does not provide early consultation during the development of the critically important EA terms of reference. It is during this stage that significant environmental problems or conflicts should be identified. On some occasions, conflicts will be so apparent and significant that the proponent may decide to voluntarily withdraw before significant project costs have accumulated. The minister or the MOEE could also at this time advise the proponent not to continue. On other occasions, it would become clear early in the process that there were no conflicts.
Other problems with consultation with Bill 76 include provisions that do not require early public consultation on proposed exemption declarations or harmonization orders; give no definition of what constitutes "consultation" or who an "interested person" for the purposes of consultation would be, and this appears to be a decision that's been left with the proponent; and offer no requirement for the proponent to provide intervenor funding to facilitate meaningful public participation during hearings or mediation. This is extremely important to small, community-based groups such as Friends of the Kam. It also offers mediation proceedings that are kept closed from the public. That's something we strongly disagree with.
In terms of ministerial powers, in many situations throughout Bill 76 numerous discretionary powers are conferred on the minister without public notice requirements or detailed implementation criteria. We feel these powers could seriously jeopardize the bill's goal of increased accountability. For example, Bill 76 empowers the minister to approve terms of reference that may not include important EA requirements that exist in the current act; to grant wholesale exemptions from the EA act to any proponent or undertaking; to scope or narrow the matters to be considered in environmental assessment hearings and to dictate the length of these hearings; and to deny reasonable EA hearing requests if the minister feels that it "may cause undue delay in determining the application." This has given the power to the minister to say: "Jeez, this is going to take too long. Let's just go ahead with it; forget the environment."
In summary, Friends of the Kam supports the need to improve the existing EA act and especially the need to introduce reasonable time lines throughout the process. However, we do not support Bill 76 as drafted and we feel that it should not be enacted until it has been substantially amended to address the concerns we have noted today. Most importantly, we urge you to reintroduce a process for intervenor funding so that small community groups such as Friends of the Kam can participate on a level playing field.
We also encourage members of the standing committee to open and review the EA branch files for both the Kam 1 and Kam 7 projects as a working case study for northwestern Ontario, using the legislation proposed in Bill 76. This would provide an opportunity to see what improvements, if any, the bill might enable, especially in terms of reducing the 10-year time line that was required to resolve this land use conflict.
1510
Mr Galt: Thank you for the presentation and coming to see us today and presenting. I think it's been generally agreed with the three different parties and many of the presenters that the system that we have is broken, that it hasn't been working for some time. What we're trying to do is build on the base of information -- the advisory committee and some of its reports -- and public input. We've put together this bill and we're out on the road for hearings. I can walk through a whole bunch of time problems. One came up in North Bay just on Tuesday, that it took -- they're still into it -- 13 years to site a landfill site and they're still not there. That's very unhealthy for those people who live around and are concerned about it.
There are two questions I have for you. One relates to closed mediation proceedings, mediation being informal once you open it up. I very much stand for open meetings when it has anything to do with government, but I'm concerned that if we had open mediation meetings they'd become formal and more like arbitration. The general feeling we have heard from public groups would be that once the hearings were over the mediation information and meetings would be made public. Why do you feel the mediation should be open?
Mr Holenstein: I understand that mediation is a delicate occurrence and might involve only a few individuals, but at the same time it could be set up that where they were having their discussions the room would be open, similar to the setup we have here, where people could sit and listen to what negotiations are going on, so nothing is behind closed doors, so it's not a mystery. This increases accountability. That's the way I feel about the mediation process.
Mr Galt: Even though it might hamper productivity and getting on with an agreement between the public and the proponent?
Mr Holenstein: It shouldn't hamper any productivity unless there are some -- usually shady -- deals going on with these discussions. We're dealing with the environment. They're very concrete subjects that we're talking about, so there shouldn't be any sellouts, if that's the right word, during the mediation process. They would have very concrete discussions, so unless there's something going on that someone wants to hide, it should be made public.
Mr Galt: If they know it's going to be made public following the hearings, the public is going to be aware of the decisions and how it was negotiated out.
The other question I had relates to interested parties -- and it's come up different times -- who should be involved. In North Bay, on Tuesday, they were very concerned about the busloads who come up from the south, creating problems for people in the north. I come back to the interested parties. Should it be in the local community? Should it be that of the region, Ontario, Canada, international? How do you come up with what the interested parties should be?
Mr Holenstein: I guess it's hard to set limits on it, and I don't think there should be limits set on it. If busloads of people are coming up, that shows they have a very strong and personal interest in it. You don't have to be living in a community, or five or 10 feet, a kilometre, 10 kilometres, 20 kilometres and so on further away from the site, to still have an interest in it. I'm happy that they're setting aside rain forests in BC, yet I haven't jumped on a bus and gone out there. As far as participants go, if someone wants to make the journey to a site, if it's important enough to them, they should be allowed to participate.
Mr Galt: Including, say, Iraq or Russia?
Mr Holenstein: Sure, but I think that's getting a bit extreme when you start leaving the boundaries of Canada; I would agree with you there.
Mr Galt: So you'd see it being limited more within the national boundaries?
Mr Holenstein: Sure. Well, national. Most issues where the EA act is used are going to be of provincial interest, given it's a provincial act, so if you wanted to limit it to the province, that would certainly be acceptable.
Mrs Munro: I want to follow up on that issue, because it is certainly something that many people have looked at and been concerned about. When you make the comment that the legislation shouldn't set limits, frankly, I agree with you, but I feel that where it says "with persons as may be interested," that is the intent in order to make it as great a number as possible.
To me, that's how I interpret that. I'm concerned that as soon as you start making a list -- you pointed out so many kilometres away and things like that. I agree with you that that does set limits. For the same reasons, I think this is a safer way of making it open for those people who see themselves as interested in the topic. As soon as you make a list of any kind, you have in fact left out everybody who isn't on the list.
Mr Holenstein: Right. I'm comfortable with where it says "all interested persons," but it's how that is determined and who determines that. When you're dealing with legislation that's going to be interpreted in the courts, there has to be a mechanism to sort that out.
Mrs Munro: Would you agree then that this should be part of the terms of reference, that if those were agreed upon --
Mr Holenstein: That public consultation should begin during the terms of reference?
Mrs Munro: Yes.
Mr Holenstein: It certainly should begin there. As I mentioned earlier, this is a key area because when a proponent is preparing terms of reference, it's likely they're going to be investing significant dollars right from the start, using consultants to prepare the terms of reference. But in many cases a conflict isn't going to be solvable and you're going to identify that right from the start. You can't work with the assumption that all projects are going to proceed and be able to go ahead, and this was the case with the Kaministiquia River. If that proponent had known up front before he had invested money -- he might not have continued on if he had been told from the minister or the Ministry of Environment and Energy that this conflict can't be resolved, that this is an inappropriate site for the project.
Mr Gravelle: Good afternoon. Thanks very much for coming here. Your presentation in some ways is a perfect ending to the public portion of our committee hearings -- I believe it's the last presentation today -- because I think you focus in on some of the key areas of concern with this bill. Not to be nasty, but you're quite right, the bumf up front says "improve environmental protection, increase accountability, enshrine public consultation," but when you study the bill carefully, you recognize that indeed there are various elements in the bill that are going to go in the reverse direction, certainly in terms of the consultation.
Having said that, a number of people, without question the majority of the groups that have come forward that have looked at the bill carefully, have seen the same flaws in the bill. I think we have to be hopeful that the government recognizes these as improvements that need to be made.
Specifically, and this has been a hobby-horse I've been on consistently but I think it's important to talk about it, is the aspect and the value of intervenor funding. I think Friends of the Kam is probably a great example. You've accessed it before in terms of the battles you've been through. I'm sure you can't tell me what you would have done without it because you would have found some way to keep the battle going, there's no doubt about that.
Mr Holenstein: That's right.
Mr Gravelle: I just think it's important to emphasize that without the intervenor funding, a number of interested parties, groups, whatever, would not be able to fight the battles they need to fight or literally make the points they need to. I just want to give you an opportunity to tell us in greater detail why you think intervenor funding is important, not just for yourselves but for the process.
Mr Holenstein: Sure. It's been brought up a number of times that when you're at a grass-roots community group level, the dollars aren't there to hire lawyers, and most of us are aware of the kind of fees that lawyers eat up. If you want an equitable scenario for groups having a discussion at an EA hearing, you definitely need to have a lawyer, you need to hire expert witnesses. We had to do that. We had witnesses flown to Thunder Bay from different areas and we used local witnesses as well.
You can only sell so many pancakes to raise money and this intervenor funding was an important part of the process. To a large extent, I believe that's why we still have a free-flowing river, and it's the last remaining set of rapids on the Kaministiquia River.
Mr Gravelle: If we had time, I'd love to bring you all out there. I'm sure Julian would too.
Mr Galt: Love to go.
Mr Gravelle: We'll go some time.
I guess another aspect of that which is really important too is the whole aspect, again, of public consultation and the case you make, I think quite logically, that by having public consultation up front in the process you can actually have projects, without a great deal of money being spent or a great deal of effort going into it -- one can discover that indeed it's not going to go forward. Just turning it into the aspect of a public consultation, it should obviously be made far more clear in the terms of reference.
Mr Holenstein: Sure.
1520
Mr Gravelle: Because that's a flaw that's been recognized continually, that obviously the public needs to be consulted. By what means do you think they need to be consulted?
Mr Holenstein: As the process continues there is a mechanism for them to be consulted, but it's just too late at that time because the minister has already accepted terms of reference. He should be aware, and he won't be aware when he's looking at the terms of reference prepared by a proponent. If the proponent knows that there are a lot of conflicts out there -- and he's likely to be aware of that ahead of time -- he's not going to include those in his terms of reference or make those identified to the minister.
Mr Gravelle: Absolutely.
Mr Holenstein: The minister, who may be many miles away from Thunder Bay --
Mr Gravelle: Pretty good chance of that.
Mr Holenstein: -- will not be aware of the issues unless it's been brought up during the preparation of the terms of reference and letters have been sent to the minister saying: "Hold on, wait a second. This is a regionally significant site. This is the last stretch of wild water in the Kam river. We have two existing dams there; hydro is being generated; there isn't a need to develop it further; there isn't a demand for that hydro." He could find that out up front during the preparation of the terms of reference, and the proponent could save itself some money by not having to continue down the road hiring consultants.
Mr Gravelle: It's a good argument. It's a good example too, because obviously by including the public in the early part of the process, a lot of damage can actually be avoided.
Mr Holenstein: Yes. That's why I suggest at the end of it that the hearings are an excellent venue, but also if you do a case study of some of these key ones that have happened. You have the one in North Bay that you mentioned that was 13 years. This one was 10 years, which is a long time and it does represent a lot of burnout for community groups. Open that file up at the EA branch. Go through it using this legislation and see where this would improve it -- or it might leave it the same. You can't tell until you see those letters, until you see the correspondence that's gone back and forth and see what's gone on behind the scenes.
Mr Gravelle: That's good advice. Thank you very much.
Mrs Boyd: I personally don't believe that people pursue an issue like this for 10 or 13 years unless there's a very serious issue at stake, and it's to the benefit of proponents to try and minimize that and say, "Oh, this is the fault of the process," or "This is the fault of people who are being imported to fight this fight," rather than say, "This is a very serious matter of public interest where the public is disagreeing with a project that could in fact damage the environment of their particular area." I think you're absolutely right.
I think what's being forgotten in this conversation and the ease with which people say the Environmental Assessment Act is broken and needs to be fixed is why it was put in, by a Conservative government, in the first place. It was put in because proponents weren't paying any attention to the environment. There was no mechanism to deal with the public interest and there was a recognition that there was a necessity to try and provide that.
But the changes that are here -- first of all, the proponent decides who is interested. Quite frankly, I suggest to you that many times those who are interested find out through intelligence or by accident that somebody is planning something. This gives the opportunity for proponents to set these terms of reference, present the case to the minister, without that initial effort being made. With the lowering of the number of staff in the various ministries that are involved, the minister won't have the benefit of the expert advice within the ministries either, so it's a really serious issue, isn't it?
Mr Holenstein: That's correct. It's a difficult one to alleviate, but perhaps there can be written down clearly in the act ways to initiate public consultation. In some areas there are going to be newspapers. Newspaper ads have been traditionally the venue for notifying people. In some areas there aren't newspapers and then you have to see what other mechanisms are there. But the mechanisms will always be in a community and there should be written out clearly in the act ways to start this public consultation and to start it right from the front, right from the beginning at the terms of reference, because a proponent doesn't want to spend that money early in a process if it's going to be rejected.
You have to realize that you can't start with the premise that everything is going to be approved. There are going to be occasions where projects are inappropriate. In many cases -- I'd say the majority -- things can be mitigated, there can be compensation, environmental issues can be addressed, but on some occasions the project is not going to be appropriate and there's got to be someone who says no right up front.
Mrs Boyd: If we look at the examples, this idea of limiting the involvement to local people strikes me as very insidious when we think of the kinds of situations, for example, with damming the Columbia River or damming the Red River, the different things that cross lots of boundaries. The local people may be very happy for the construction jobs and the supply jobs for the dam and they may not know what happens to people 200 kilometres down a river.
The people who are the proponents are people who have the advantage, in many cases, of having multinational expertise. They have funding that comes from multinational sources and so on and yet they object to people sharing the concerns of a local affected population.
I suggest to you that you rather easily agreed that things should be limited to people within Ontario, and I don't think that's necessarily a good plan. There are firms that want to operate and have projects in Ontario that have any extraordinarily bad environmental record in other jurisdictions and it should be possible for people from other jurisdictions to have an opportunity to have input on the public interest, given that the environment is not just something that can be walled off.
Mr Holenstein: Sure. That's right.
Mrs Boyd: That kind of expertise ought to be open within this kind of process. So the definition of who would be interested, who the public might be that were interested in a project, I think is extraordinarily important, and that's a major piece that's missing in this amendment to the bill.
Mr Holenstein: That's correct, yes.
Mrs Boyd: I have a sense that the members of the government are very empathetic to the notion of proponents, that the best thing in terms of timeliness and streamlining would be to limit the number of public participations. I suggest we would find ourselves in a similar kind of situation as many other parts of the world if we take that route where the environment as a larger picture as belonging to all of us gets lost in the notion of timeliness and streamlining.
Mr Holenstein: I don't think it's the public consultation that is causing these drawn-out delays.
Mrs Boyd: Exactly.
Mr Holenstein: That's far from the truth. What is causing the delays, and we fully support this after being in a process for 10 years -- there have to be some time limits on government review, on how long a project can go on.
In this case for the Kam River, the proponent was playing out the system quite well. He was told to go to an environmental hearing this year. As soon as he was told that, he withdrew it and said he was going to change his company name and submit again. He's done this for 10 years. He did that on the first one. He can play the game, minimal cost. When he changed his project from Kam 1 to Kam 7, he just used white-out to change the things and submitted it. It was accepted for government review.
We can't go on that long. These things have to be addressed and we're looking forward to changes in the EA act. We're looking forward to time lines, but there also has to be public participation. Public participation isn't what's causing it to be drawn out. That can be addressed.
The Acting Chair: Thank you, Mr Holenstein, for your presentation. We appreciate it very much.
Mr Holenstein: Thank you very much for listening.
The Acting Chair: Just a couple of things: The clerk of the hearing has been in touch with legislative counsel and they're doing everything possible to meet the 5 pm deadline tomorrow.
Secondly, the hearing will be adjourned until next Wednesday, August 21, at 10 am.
Thirdly, the shuttle vans will be at the front door. They'll have to make a couple of trips to take us back to the airport.
Fourthly, I want to thank you for your cooperation from all three caucuses.
This meeting stands adjourned.
The committee adjourned at 1529.