Manitoba Committee Hansard — 17 January 1991 (Legislative Affairs Committee, Sitting 5, 35th Legislature, 1st Session)

35-1-la5

Manitoba — Debates (Hansard)

MG-8048 First Session -T hirty-Fifth Legislature of the Legislative Assembly of Manitoba STANDING COMMITTEE on LAW AMENDMENTS 39 Elizabeth 11 Chairman Mr. Jack Reimer Constituency of Niakwa VOL. XXXIX No. 5-8 p.m., THURSDA V, JANUARY 17, 1991 Printed by the Office of the Queens Printer. Province of Manitoba ISSN 0713-9586

MANITOBA LEGISLATIVE ASSEMBLY Thirty-Fifth Legislature Members, Constituencies and Political Affiliation NAME ALCOCK, Reg ASHTON, Steve BARRETT, Becky CARR, James CARSTAIRS, Sharon CERILLI, Marianne CHEEMA, Gulzar CHOM IAK, Dave CONNER Y, Edward, Hon. CUMM INGS, Glen, Hon. DACQUAY, Louise DERKACH, Leonard, Hon. DEWAR, Gregory DOER, Gary DOWNEY, James, Hon. DRI EDGER, Albert, Hon. DUCHARME, Gerry, Hon. EDWARDS, Paul ENNS, Harry, Hon. ERNS T, Jim, Hon. EVANS, Clif EVANS, Leonard S. FILMON, Gary, Hon. FIN DLAY, Glen, Hon. FRIESEN, Jean GAUDRY, Neil GILLESHAMMER, Harold, Hon. HARPER, Elijah HEL WER, Edward R.

HICKES, George LAMOUREUX, Kevin LATHLIN, Oscar LAURENDEAU, Marcel MALOWAY, Jim MANNESS, Clayton, Hon. MARTINDALE, Doug McALPINE, Gerry McCRAE, James, Hon. Mci NTOSH, Linda MITCHELSON, Bonnie, Hon. NEUFELD, Harold, Hon. ORCHARD, Donald, Hon. PENNER, Jack, Hon. PLOHMAN, John PRAZNIK, Darren, Hon. REID, Daryl REIMER, Jack RENDER, Shirley ROCAN, Denis, Hon. ROSE, Bob SANTOS, Conrad STEFANSON, Eric STORIE, Jerry SVEINSON, Ben VODREY, Rosem ary WASYL YCIA-LEIS, Judy WOWCHUK, Rosann CONSTITUENCY Os borne Thompson Wellington Crescentwood River Heights Radisson The Maples Kildonan Portage la Prairie Ste.

Rose Seine River Roblin- Russell Selkirk Concordia Arthur- Virden Steinbach Riel St. James Lakeside Charleswood lnterlake Brandon East Tuxedo Springfield Wolseley St. Boniface Mi nnedosa Rupertsland Gimli Point Douglas lnkster The Pas St. Norbert Elm wood Morris Burrows Sturgeon Creek Brandon West Assiniboia River East Rossmer e Pembina Emerson Dauphin Lac du Bonnet Transcona Niakwa St. Vital Gladstone Turtle Mountain Broadway Kirkfield Park Flin Flon La Verendrye Fort Garry St.

Johns Swan River PARTY Liberal NDP NDP Liberal Liberal NDP Liberal NDP PC PC PC PC NDP NDP PC PC PC Liberal PC PC NDP NDP PC PC NDP Liberal PC NDP PC NDP Liberal NDP PC NDP PC NDP PC PC PC PC PC PC PC NDP PC NDP PC PC PC PC NDP PC NDP PC PC NDP NDP

LEGISLATIVE ASSEMBLY OF MANITOBA THE STANDING COMM ITTEE ON LAW AMENDMENTS Thursday, January 17, 1991 TIME-8p.m. LOCATION-Win nipeg, Manitoba CHAIRMAN - Mr. Jack Relmer (Niakwa) ATTENDANCE · 11 -QUORUM · 6 Members of the Committee present: Hon. Messrs. Cannery, Cumm ings, Ms. Cerilli, Messrs. Cheema, Edwards, Helwer, Martindale, Reimer, Rose * Substitutions Mr. Stef anson for Mr. Praznik; Hon. Mr. Enns for Mrs. Mclntosh; Mr. Ashton for Mr. Martindale.

WITNESSES: John Shearer, Private Citizen Kemlin Nembard, University of Winnipeg SAFE Cyril Keeper, Private Citizen Kenneth Em berley, Private Citizen Bill Hunter, Private Citizen Jenny Hillard, The Consumers' Association of Canada (Manitoba) Wayne Neily, Manitoba Environmental Council Dennis Breed, Canadian Public Interest Organization Toby Maloney, Private Citizen MATTERS UNDER DISCUSSION: Bill24, The Environment Amendment Act *** Mr. Chairm an: Will the Comm ittee on Law Amendmen ts please come to order. Bill 24, The Environment Amendment Act, will be considered tonight. Committee Substitutions Mr.

Chairman: Before we proceed, I have a few comm ittee resignations. I have before me the resignations of Mrs. Linda Mclntosh and Hon. Darren Praznik. Mr. Edward Helwer (Gimll) : I would like to make a change here: the Member for Kirkfield Park (Mr. Stefanson) for the Member for Lac du Bonnet (Mr. Praznik) and the Member for Lakeside (Mr. Enns) for the Member for Assiniboia (Mrs. Mclntosh). Mr. Chairman: Is there agr eemen t? Agreed . Therefore, the committee Mem bers will be Ms. Cerilli, Mr. Cheema, Hon. Messrs. Cannery and Cum min gs, Mr. Edwards, Hon. Mr. Enns, Mr. Helwer, Mr. Martindale, Mr. Reimer, Mr.

Rose and Mr. Stef anson,. *** Mr. Chairman: We have the list of presenters this evening. I will just read off the names: Mr. John Shearer, Private Citizen; Ms. Kemlin Nem bard, University of Winnipeg SAFE; Mr. Cyril Keeper, Private Citizen; Mr. Ken Emberley, Private Citize n; Mr. Bill Hunter, Private Citizen; Ms. Jenny Hillard, The Consumers' Association of Canada (Manitoba); Mr. Wayne Neily, Manitoba Environmental Council; Mr. Dennis Breed, Canadian Public Interest Organization. Before we proceed, can we agree on adjournment time this evening? Is there a will of the committee? An Honourable Member: Unlikely. *

(2005) Mr. Chairm an : Unlikely? Okay. Does the comm ittee wish to im pose a length on the length of the presentations? Some Honourable Members: No. Mr. Chairm an: We will proceed then. I will call on Mr. John Shearer, and his brief has been distributed. You have it before you. You may proceed at any time, Mr. Shearer. Mr. John Shearer (Private Citizen): Mr. Chairman, committee Mem bers, environment can be defined as all the conditions, circumstances and influences surrounding and affecting the development of an organism or group of organisms. That definition comes from Webster's New World Dictionary. What

145 LEGISLATIVE ASSEMBLY OF MANITOBA January 17, 1991 could be more im portant to us as organisms than our environment? In recent years we in Manitoba have become increasingly aware of human-i nduced factors which may contribute to a deterioration of the quality of this environment. Often these factors are related to development projects which, while generally well int entioned, are not suffi cie ntly evaluated or understood with respect to their long-term effects and costs.

The Manitoba Environment Act, passed in 1987, represents a significant, albeit flawed, legislative atte mp t to deal with these human-in duced en vironme ntal conce rns wit hin the exi sting legislative and social framework. You are meeting here this evening to consider an amendment to The Environment Act, namely Bill24. Any such amendment, given the impo rtance of our environment, is an extremely important piece of legislation. I address you, both on my own behalf and on behalf of Ms.

Kim Tyson, as concerned citizens who share a deep communion with the natural world and some know ledge of the complex ity and sensitivity of environme ntal or ecological interactions. We are also professional ecolog ists with considerable experience, both as researchers and as educators, and with some first-hand knowledge of the im portance and limitations of the existing Manitoba environm ental review process. We welcome this opportunity, limited as it is, for public input into the amendment process.

While The Manitoba Environment Act has proven valuable in a number of instances, we recognize a need to redress some weaknesses and omissions in the present review process. We understand that the entire Environment Act will be open to public review sometime later this year. If so, we encourage this initiative. More imm ediately, howev er, the pr esent Go vernment has ind icated its concern that proposed developments of direct environmental impo rt both to Mani toba and to some other jur isdiction may be subjected to se parate environmental review processes by both Manitoba and the other jurisdicti on.

This could result in prolonged delays in deciding whether a project should be licensed and in costly duplication of effort by the various jurisdictions involved. Bill 24, The Environment Amendment Act is, as we understand it intended to avoid this duplication and to streamline the environmen tal review process for projects affecting both Manitoba and some other jurisdiction. We can appreciate the advantages in avoiding duplication of effort. However, the re are also potential risks of omis sion. We mu st stress that environmen tal concerns are paramount.

There are a number of im portant issues which must be addressed in any legisla tion such as Bill 24. In particular, the responsibility for environmen tal assessment of projects affecting Manitoba must not be delegated to other jurisdictions. This would be complete folly and would indicate that Manitobans do not accept the full responsibility for the welfare of their own province. • (201 0) An early draft of Bill 24 left this possibility open to mi ni ste rial dis creti on in

Section 13 .1 (b). We understand that this

section will be amended in the final draft to ensure that such responsibility is never delegated. We encourage and applaud this change. Not only must Manitoba and Manit obans be directly involved in any environmental assessment affecting Manitoba and Manitobans, but the existing process must be improved to ensure that these assessments are thoroughly and correctly carried out by an independent and expert review panel.

The exis ting review process under The Environment Act allows for panel memb ers to be political appointees who may have little or no exper ti se in, or unde rstan ding of, the specific issues being addressed during the hearing process. We do not wish to demean the excellent efforts of many Clean Environment Commission memb ers over the past years. However, many of the issues being discussed at CEC hearings become so technical and specialized that it is almost impossible for someone not expert in these specialties to adequately evaluate the arguments.

Perhaps even more importantly, the review pane lists must be seen to be independent of political, commer cial and governmen tal pressures and biases with respect to the project being reviewed. Too often the panelists have obvious personal linkages which bring into question their total objectivity in the decision-making process. Under current practice in Manitoba, the CEC memb ers have access to and input from a Technical

January 17, 1991 LEGISL ATIVE ASS EM BLY OF MAN ITOBA 146 Advisory Committee or T AC composed of senior Government officials from various departments. The impl ication is that these TAC memb ers have expertise which may be useful to the CEC in evaluating the environme ntal impacts of a project. Unfortunately, memb ership on the TAC does not guarantee any particular expertise, qualifications or knowledge about the specific project. TAC mem be rs do bring the bi ases of their own Go vernment de partm en ts to the evalua tion process.

This can be particularly undesirable whenever the Government is itself involved, as it often is, in the project under review. Therefore, the use of a Technical Advisory Comm ittee is not a substitute for expertise on the actual review panel and may well be detrimental to the objectivity of the review process. We urge that you recommend amendments to ensure that mem bers of each review panel will be pol itical ly indepe nde nt, unbia sed and knowledgeable in the specific areas required.

They should also be given the power to set their own terms of reference for the review in consultation with interested memb ers of the public. Often these review panels are constrained by narrow terms of reference im posed by other authorities. The panel members must be allowed to examine and consider social and ethical issues as well as economic and technical scientific arguments. We have seen a draft of Bill 24 which makes no provision for ensuring that environmental review panel mem bers are unbi ased, politically independent or expert in any way.

We understand that some specific provision for unbiased panel members may be included in the regulations, but this does not answer all our concerns in this regard. The draft of Bill 24 does address specifically in

Section 13 .2 the issue of participant funding, another matter which we believe to be of great im portance. However, we are concerned that the allocation of this participant or intervener funding apparently is left to the discretion of the Mini ster with no clear indication of when it might be awarded. We believe that this type of funding is absolutely essential if both sides of most issues are to be adequately addressed.

Proponents, particularly proponen ts of major projects, usually are more than capable financially of ensuring that their side of the issue is presented complet e with glossy visual aids and expert witnesses or legal counsel. Often the opponents of projects are private citizens and volunteers who lack the financial resources to compete on a "ievel playing field." We believe that provision of intervener funding must be mandatory for all public review processes and that this funding must be made available at the beginning of the review process so that all necessary preparations for the hearing can be completed.

The review panel, if independent and unbiased, should be given the authority to award such funding when and as required. * (201 5) While some of our concerns may be addressed in the regulations pertaining to the Act, we recognize that these regulations could then be changed at some future date with little public knowledge. Inclusion of these impo rtant provisions within the body of the Act will ensure that they can be changed only by the Legislature itself. This would, in turn, ensure that the public has more knowledge of, and input into, any future changes to the environmen tal review process.

In summ ary, such public consultation is essential for a thorough review and upgrading of the existing Manitoba Environment Act. We urge that such a review be held later this year and hope that public dis cussion and in put will be solic it ed and encouraged prior to any amendment of the Act. We also urge that intervener funding be made available whenever required to permit citizens and citizen groups to provide adequate representation of their positions during any public environme ntal review process. Independent, knowledgeable panelists must be appointed to review major projects.

They must be given the authority in consultation with the public to set the terms of reference for the review and to allocate intervener funding at the outset of the review process. Manitoba and Manitobans continue to espouse the principles of sust ainable development. Ho wever, the key issue is environmen tal sustainability. A lon g-term view of envir onm ental cost accounting is required. Only thr ough strong environmental legislation can we ensure that our environment is protected both for us and for future generations. Unfortunately, time is the enemy.

You have the opportunity to take an immediate and signi ficant step toward a more secure future by ensuring that Manitoba's environme ntal legislation

147 LEGISLATIVE ASSEMBLY OF MANITOBA January 17, 1991 provides for thorough, unbiased public assessment of all signi ficant projects affecting our Manitoba environment. Let us not delegate this responsibility. Talk in defence of our environmen t is not enough. We must act. Thank you. Mr. Chairman: Thank you, Mr. Shearer. Are there any questions of Mr. Shearer? Ms. Marlanne Cerllll (Radlsson): You ha ve mentioned the Technical Advisory Comm ittee. I am wondering if you have some recommendations for how to improve the TAC and its involvement in the asse ssmen t, some mor e sp ecific recommen dations. Mr.

Shearer: I am not particularly knowledgeable about the TAC, but I think one of the dangers with any body such as this is that they may be seen by panel mem bers, who are perhaps not expert, as being a source of expertise when they may not necessarily be that. Because they are going to be coming from various Government departments, they are, I think of necessity, goin g to be representing the positions of those departments which, in some cases at least, may be biased towards or against a project, depending on what that project may be.

So I gues s I canno t really recommend the particular role for them, but I simply say that I do not believe they serve as an alternative to having some independent knowledge on the panel itself or giving the panel access to other more independent knowledge. *

(2020) Hon. Glen Cummlngs (Minister of Environme nt): Not to dwell too long on the point, but you are em phasizing that you believe the panel should be composed only of experts? Mr. Shearer: One of the difficulties, of course, is in defining an expert. I think, certainly as I pointed out in the brief, one of the problems that I see in a great many cases is that much of the evidence being presented at these hearings can become very technical.

I think for someone who does not have at lea st some backgroun d or had done some consider able reading in the field, it may be extremely difficult for them to evaluate the pros and cons of that testimony. For example, if I can refer to something in my own field, which is ecological research, one of the problems that I have seen in certain instances is that there is a serious lack of background information available on ecosystems that are potentially going to be affected by projects.

If panelists do not have some knowledge of what is involved in understanding the processes that take place in an ecosyste m, the complex interactions, they may not be aware that this kind of background information is essential in order to understand the im pacts on that ecosyste m. That sort of thing, I think, requires a certain level of expertise or knowledge. Someone who has no background or has not read considerably in that field may have a great deal of difficulty in being able to evaluate that testimony. Mr.

Cummlngs: A problem I have with what you are suggesting is that, if there were a panel that was evaluating a project, perhaps next to a northern village, do you believe that someone resident there, without necessarily a lot of expertise, should be barred from sitting on the panel? Mr. Shearer: I guess that person might be able to bring a different form of exper ti se. I do not necessarily believe that every pane list should have the same expertise as the other panelists.

I think you need a range. lt is probably, in most cases, impossible to find individuals who could be expert in all the various areas that any review process might require. I think local people may have certain expertise that they could bring to it that mi ght not be the same as perhaps someone who was not local. Mr. Chairman: Thank you, Mr. Shearer. I would like to call now on Ms. Kemlin Nembard. You may proceed. Ms. Nembard (University of Winnip eg SAFE): Mr. Chairman, comm ittee Member s and fello w Man itobans, the im por tance of a strong Envir onme nt Act in Manitoba canno t be over emph asized.

A strong and ju st joint assessment process will enable both the Gove rnment and public process to proceed efficiently and effectively. The proposed Environment Amendment Act, in the opinion of U of W SAFE, does not indicate a serious commitment by the Manitoba Government to a fair joint environment assessment review process. We feel that The Environment Amendment Act should em body the following six principles: 1. That the Manitoba Government must not dele gate sole responsibility of a joint review assessment to another jurisdiction, Manitoba must remain fully involved in the process;

January 17, 1991 LEGISLATIVE ASSEMBLY OF MANITOBA 148 2. The panel members for a joint revi ew assessment must be free of political influence, have no conflict of interest and have a special knowledge and experience on the topic of review; 3. The panel members must be able to set their own terms of reference; 4. lntervener funding should be made available to concerned citizen groups; 5. The panel should be in charge of setting the guidelines for granting intervener funding to citizen groups; 6. Public consultation should occur before any amendments to The Environment Act. Short and simple. "( 2025) Mr.

Chairman: Thank you very much. Are there questions of Ms. Nembard? Thank you very much for your presentation. I would like to now call upon Mr. Cyril Keeper, private citizen. He does not have a written presentation for the Members, so you may proceed. Mr. Cyrll Keeper (Private Citizen) : I am sorry, I do not have a written presentation. Ever since becoming a private citizen, I have not had access to the resources to present you with a written presentation. lt is not a future that I wish on any of you. I did take the trouble to come out here because I think it is critical that we be here this evening.

I think it is crucial that all of the people who are here making presentations be here; that all of you who are here hearing the presentations be here because I have come to believe in a much more urgent way than I ever have before that we need a new way of life; that we have to make fundamental changes in the way we live and the way we carry on public business.

For the last couple of hundred years, to give you a round number, we have acted and believed that the planet was unlimited in terms of the amount of pollution that it could take care of, in terms of the amount of resources that it could provide us, and we have lived by the motto of more and more, that we want more and more material goods. Well, I think we all are becoming aware of the fact that there are limits to the capacity of this planet to provide for our material needs and for it to take the abuse that we hand out to it.

In short, we are living in a time of transition, transition from a society of unlim ited economic grow th to a soc iety of sustainable economic activity. We are living in a time of economic crisis. This crisis is visible to us all. We do not have to be a biologist, although I, like others, recommend them for the panel. We do not have to be an ecologist. We do not have to be a David Suzuki to see the signs. I talk to my uncle, who is a fisherman on Lake Winnipeg, and he tells me that he now sees fish on the lake without a lower jaw. Where does that come from?

I talk to older people that I know, and they tell me that there has been significant degradation in the environment in their own lifetime. One of the clearest indicators of the crisis that we are living in now, the fact that we are facing a crisis, is the fact that the resources that we have taken for granted, we can now recognize as limited. The resources upon which we have built our society, we now recognize as being limited.

Taking oil as a prime example, it is limited to the extent that people can now measure the amount of resources that are there and can measure within a measurable amount of time when those resources are likely to run out. We can also see it from the fact that we are having to go further and further afield in order to develop those resources, into more and more ecologically sensitive areas. We are having to subsidize projects with billions of dollars in a way that had not been done before-Hibernia, by way of example.

We are limited in the sense that if we use those resources in the wasteful way that we have been using them up until now, it is starting to affect our climate. There are limits in terms of the abuse and use of resources in terms of its impact on our life-support systems. Another evident way in which it is clear that we are living in a time of crisis is the fact that you can read in your daily newspaper about increasing cancer rates due to pollution, due to chemicals in our environment. We can read about chemicals being found in animals in the Arctic Circle.

We can read about Eskimo people being warned not to eat the animals that they hunt. These are notions which are inconceivable when I set myself back say to when I was a youth, which is really not that long ago. There are other signs of the fact that we are in a time of crisis. One that is very visible and that has to do with the inequitable use of resources on this planet is the fact that we in this part of the world, even if we think we are poor, we do not think we

149 LEGISLATIVE ASSEMBLY OF MANITOBA January 17, 1991 have enough, and I certainly do not think I have enough, use 80 percent of the world's resources. That leaves the rest ofthe planet to inadequate food, clothing and shelter. lt means that we take as a regular occurrence famines. When the Ethiopian famine happened a short time ago, it really hit home. lt disturbed people and it moved people. Now there are famines going on and it does not make much of a ripple in the water. *

(2030) There is a global inequity in the way that we use our resources, and that comes directly out of the way that we run our economy and the fact that we continue to make our decisions on the basis of economics as the top priority. I say these things by way of introduction just to indicate why I take my time to be out here, and this is really why you are here and why the people are here behind me. So we are here to ask for, to plead for, to beg for, to demand stronger environmen tal legislation because the times demand it.

My impression is that this legislation, this Bill here, which I must say if I was a Min ister-and good Lord knows that is not very likely-that I would be embarrassed to bring forward this flimsy sheet of paper in the name of environmen tal legislation. Rather than bringing forward such a lightweight pr op osa l, wha t we need is we need an environmental bill of rights.

Individual citizens in this province need the right to go to court in order to hold Governments, in order to hold private corporations, accountable for their damage to the environment, and they should not have to wait for political parties to wake up, for Governm ents to wake up. We ought to be bringing in legislation that would really move us forward, rather than a flimsy, one-page set of amendmen ts to the present en vir on men tal legislation which in itself is inadequate.

My impression of why this legislation is here is that the Government simply wants to avoid the trouble and hear tache that was visi ble in the Rafferty -Aiame da situation. We can see the changes that are taking place now in the federal legislation, which is watering it down and making it possible for co-or di nation, harm oniz ati on, efficiency, and this legislation falls right into it because this legislation is meant to avoid the court. And why do people go to court? People go to court because they ar e di ssatisfied with the environmen tal assessments that are taking place now.

What we ought to be doing is strengthe ning the legislation, and you have heard here over and over suggested ways as to do that. For example, if we are going to have joint assessments, why do we not go with the higher standards? If we are going to go with the higher standards, then let us spell it out so that people can have some confidence that we are going with the higher standards. For example, let us go with the federal way of appointing panels, which stresses the expertise, the non-parti sanship, and the non-political role of the panel memb ers.

I want to deal a little bit with that because there have been a lot of questions on that. How dare you say to somebody, because they are a member, an active member of a political party, that they ought not to sit on one of these panels? The obvious reason is that political parties have to protect their public image, and good loyal memb ers of political parties will have a tendency, or at least may appear to, to the public, to be more concerned with the im age of their party than they are with the environment or other public policy questions that come before them.

There are legiti mate places for partisan appointmen ts, and those places are where the Government has a right to impose its policy. For example, you have a board for Manitoba Hydro. Well, yes, the Governmen t needs a board that is sympathetic to Government policy and that is not going to sabotage it, but when Manitoba Hydro goes before the Environment panel to plead its case, then that panel ought to be independent of political activity, people who are clearly partisan members. Now in a society that we live in there are a good proportion of people who do not take

part in politics. Every one of you around this table here has made an effort to get out people to come and do volunteer work in your campaigns, and you must be aware that there are people who will not campaign. There is a good proportion of our society that are apolitical, so let us tap that resource to get people who have some expertise, some knowledge, and can assure the public that they are independent in their decisions. So the legislation ought to be strengthened; there ought to be funding for intervener groups.

How much money did Man itoba Hydro spend on preparing its proposal with regard to Conawapa, and will citizens groups who question that from an ecological and an environmental point of view have an equal amount of funds in order to be able to

January 17, 1991 LEGISLATIVE ASSEMBLY OF MANITOBA 150 marshal information and knowledge or will they at least have assurance of having some? And why should it be at the discretion of the Min ister; why should it be "may", why should it not be "shall"? When the Conawapa project went before the Public Utilities Board the people who did the work, the leg work, the lawyers, the experts had to go to the same people that they were pleading with in order to make their case to say, well, here is how much we spent, cover our expenses and this sort of thing.

Well, if you are going to be an intervener, if you are going to have some independence and you do not want to have to watch your p's and q's, and you want to pay attention to the facts, then you ought to have an assurance that there is going to be money there for that purpose. Now there are a number of recommendations which you have already heard, and I am referring now to the lette r from Brian Pannell to Mr. Cummings. In there is outlined a number of solid recommendations for strengthening the legislation that is before you.

So I commend those recomme ndations to you but it is also disturbing and, I think, worthy of comment that, I mean, the reason why I have this letter before me is because the environmental groups met with the Minister, got assurances that there would be improvements in the legislation and then, sometime later, those assurances evaporated.

So not only is there a general global level of distrust with regard to environmental assessments because of what is going on in the cou ntry with reg ard to Rafferty-Aiameda, with regard to James Bay 11, but even here, when the legislation is being streamlined and people come up with positive suggestions, then the confidence that people have that Government will follow through on its commitmen ts in order to improve legislation, rather than water it down, are undermined.

By way of saying that there is a need for stronger environ men tal legi slation, stronger review of projects, I want to refer to the Public Utilities Board's hearing with regard to Conawapa. If you look at their executive summa ry, one of the things you can find in there for yourself is a statement, and I will paraphrase to this effect, that demand-side manage men t, environm ental consid erations, mitigating effects and a number of other items, which people who made submissions considered crucial and importantandwhythey werethere, were not fundamen tal parts of the decision-making process. So you know like, wow!

You know, it just blows you away. Demand-side management, that is the efficiency alternative to building another dam, was not a fundamental part of the decision-making process. I am paraphrasing, but you can find that in your own executive summ ary of the Public Utilities Board. •

(2040) While thes e hearings went on and people put a lot of energy into preparing submissions to that board, and then you get that kind of submission which just wipes away the criteria and the evidence that came before them, it undermines confidence in this kind of public hearing process. We need stronger legislation. I hope you will hear the concern that people are bringing before you and act on it. There is another aspect of why we are here that I want to touch on about the environme ntal crisis and the need for stronger public policies. I noticed that there is no media here.

There are no television cameras here. I see no newspapers here. I see no radio outlets here, unless they are hiding. I know I have found myself in rooms in which I have spoken very frankly and later woke up and found out there was a media outlet there. I do not see any. Why do we have no media outlets here? Where is the media? I just left home, and what was on the television? The war in the Gulf. Gorbachev can brutalize Lithuania, while there is war in the Gulf. Manitobans do not hear about the fact that the environmen tal legislation is being gutted while there is war in the Gulf.

Why did they go to war instead of sanctions? Would they have gone into the Gulf if there was no oil there? This is a related issue. Would they have gone into the Gulf if we had learned to be energy efficient? If we had invested properly in public transit? If we had invested properly in the insulation of our homes so that we would use less fossil fuels? Gentlemen, to sum up, we need a new approach. We need stro nger legi slation. We need a fundamental restructuring of the society in which we live. We need a fundamental change in the priorities by which we live.

We can no longer make decisions on the basis of economic criteria while ignoring ecological criteria. We can no longer live on the assumption that we can have more and more. We can no longer live on the assumption that our only needs are material.

151 LEGISLATIVE ASSEMBLY OF MANITOBA January 17, 1991 I call upon you to remind yourself, when you come down to considering this legislation, that we do live in a time of crisis and that if you look around yourself you will see the indications.

We need to make a radical change in direction, and you could make a small step in that direction by accepting the recommendations from the environmental groups to stre ngthen this leg isla tion, to spe ll out the comm itments that you have made with regard to having appropriate environmen tal legislation, to spell out the commitmen ts that would give people a sense that you are not just here to scuttle the legislation or you are not just here to streamline the process, but that you have a genuine interest in good legislation. Thank you very much. Ms. Cerll ll: Mr.

Keeper, you have mentioned the Conawapa development and energy conservation. Can you tell us how you feel the legislation as it stands would affect the Conawapa development? Mr. Keeper: Well, my understanding is that the Conawapa development still has to go before the environmen tal hearings. Those environmental hearings will be subject to Manitoba legislation, so that the quality of that legislation is going to be critical in terms of the quality of the environmen tal assessment.

I think it is crucial, because when I look at the Public Utilities Board hearings, I think there was good evidence brought to those hearings, but I certainly was really wounded by the fact that the board jus t wrote off considerations such as demand-side management and put it in their own words. lt is not my

interpretation of what they did, but they spelled it out. They said that demand-side management, energy efficiency, was not a critical factor in their decision. When we are into the situation in which we are examining a major development in Manitoba that is going to affect the northern ecology, that is going to affect the distribution of capital in this province, $5.5 billion which if we were, by way of alternative, to invest in energy efficiency, we could give something like $13,000 , by rough calculations, to each household in the province in order to retrofit their homes in order to make them energy efficient.

We could produce jobs in every community across this province. I would like to see some tough legislation that gives ·us more assurance that the environmen tal aspect at least of the project will be soundly and thor oug hly examin ed , and that they will be examined by an independent board with adequate funding for interveners and with assurance that it is not going to be a series of political hacks sitting on the panel who will be more interested in protecting the image of the Government than they will be in considering the evidence that is before them . Mr. Chairman: Thank you.

Are there any other questions of Mr. Keeper? Thank you very much, Mr. Keeper. Mr. Keeper: Thank you. Committee Substitutions Mr. Chairman: I have the resignation here before me of one of our commit tee Mem bers, Mr. Martindale. Is there a nomi nation to replace Mr. Martindale? Ms. Cerll ll: I move that the Member for Thompson (Mr. Ashton) replace the Member for Burrows. Mr. Chai rman : Is there agreem ent? Agre ed. Therefore, Mr. Ashton will replace Mr. Martindale on the Law Amendm ents Comm ittee. *** Mr. Chairman: I would now like to call on our next presenter, Mr. Ken Emberley, private citizen.

His brief has been circulated. You may proceed, Mr. Emberley. Mr. Kenneth Emberley (Private Citizen): My name is Kenneth Emberley. Mr. Chairman, ladies and gentlemen, I thank you for the honour of appearing here today. I have a little surprise for you. Everybody has the same sheet of paper on the top of their brief, but to try and make it a little interesting I included a few different papers for each person just to make it a little exciting.

If you happen to have a paper that might be of interest to women and you are not a woman and you do not want to learn about the other half of the world, you share it with one of the women near you. If you can get permission from the Chairman, take it home, read it and then bring it back. *

(2050) I have several items I would like to run over just quickly that came up today in the hearing. I am deeply offended at the cens orship of these meetings. For a long time we have talked about "democracy includes the people, just not the people

January 17, 1991 LEGISL ATIVE ASSEMBLY OF MAN ITOBA 152 who rule the people and the few people who come up to talk to the people who rule the people." For many years we have talked about your duty to provide cable television transmission of these hearings, so if there happens to be anything worth while that you say or that we say, the public should be able to hear it.

If the hearings are valuable, im portant, which most of us believe they are, because we think we are saying something worth while, and we find very ma ny in teres ti ng que sti ons from you and commen ts, and we would like the public to be able to share in it. They do not share in it through the regular media because they only give little, tiny, chitchat items, but three hours of cable television two nights in a row might even educate them a little bit about the subject you are talking about.

We believe that many of you do not want them to be educated about it, because there might be an election where the people would make a decision concerning how big a majority should be continued. That is something that we must not mention at a time like this, so forgive me. Tonight it was mentioned the very great need for legal and technical details, the problem of technical experts in hearings, in the assessment panels. I beg of you to realize the problem that we have since the lawyers and technical ex perts have com e to dominate the hearings. We know how nice lawyers are-but.

There are complicated technical issues, the Repap corporation. Twenty years ago they used to dump mercury in the river. That was considered a bad thing after they poisoned Indians all over the country. They did not know that a hundred years ago mercury was a known poison, and they did not care, and nobody else did apparently. Now we have dioxin and furans, under the new Repap thing, they dump it in the river, exactly the same. The only high technology perfection is that they have an expensive eggbeater, and they stir it up on the river until it disappears.

You have to be a technical expert to understand that, but it is all fraud. Then people stand up and say they did not know dioxin is poisonous or it only hurts a little bit. We have our Mr. Manness saying that we are a million dollars in debt every day for debt in the Province of Manitoba and that is why we have to cut the budget. We have a window of opportunity that at the start of the recession we could borrow $5.5 billion, and the million people of Manitoba could owe $35 billion in interest over the next 50 years.

Now that is a window of opportunity we should seize, not energy conservation, because energy conservation might make back half the money it would cost. How is your forum going to provide us a proper forum to allow us to discuss these things in detail? The Ombudsman has talked often, if you read the Winnipeg Free Press, about the brutality, stupidity and vicious cruelty of the bureaucratic hierarchy. Some people call it a patriarchy, I do not know what that means, but the brutality and the stupidity of a power structure is one of our problems everywhere.

When we talked yesterday aboutenviron mental funding, environm entalist funding, can you imagine how many times the environmen talists have to do like we have had to do for the last eight years. Some body will snap their fingers, they will roll over three times, and they will jump up and say bow-wow, and they will say we will give you a hundred dollars. That is no way to provide environm ental funding, but it is a way to control the environm entalists so they are still powerless. ! think that is the way the system works now.

There is a tiny thing called interbasin transfer, called by Rafferty- Aiameda, and Frances Russell is the doctor who is in charge of that. She talked about it today, but we knew about it two and a half years ago, but there was no way for me an ing ful discussion, meaningful scientific examination. The expert report on environm ental effects of dams by the Sierra Club, called The Environmen tal Effects of Large Dams, was never made available in any of the public hearings and yet I now find it has been sitting in the library for three years.

That is the state of the art of our technology, the state of art of our information, and it is the state of the overload of the environmen talists trying to work for peanuts to do a job for you free and being harassed. I want to go to my written brief quite quickly. Much time yesterday was devoted to three topics. I will begin tonight quoting from my Oak Hammock paper to illustrate the problem and a possible solution. My little Oak Hammock oral report-the corporate headquarters in a marsh is 1 00 percent wrong.

Generous corporate donors will make up the shortage of Government funds to create the one world class education centre in the province. Tax deductible gifts mean it will be 100 percent funded by mostly middle- class and lower-class taxpayers, because most prosperous donors take a

153 LEGISLATIVE ASSEMBLY OF MANITOBA January 17, 1991 tax deduction. Maybe some of you may not be aware of that. So it will be all funded by Government but under the control of private business. Will they teach balanced programs so that each year 2 percent of the hunters' children become cam era hun ters? Will they tea ch balanc ed education that large-scale long-d istance tourism is an environment problem caused by 15 years of steady transfer of more excess income to the rich from the lower classes?

Will they teach the balanced history of housing size and luxury increase in North America is a problem that needs subsidy from lower classes all over the world? Will they teach a balanced educ ation based on topics and in formation discussed at the world class Fate of the Earth Conferences, of which I have attended two in Ottawa and Managua, Nicaragua. Will the library and teaching in the Oak Hammo ck March include a book like Endangered Kingdom by DiSi lvestro , talking about our attack on the environment. Will it include The Environme ntal Effects of Large Dams: Report by Goldsmith.

Will it include Zero Energy Growth by David Brooks, A Parcel of Rogues by Maude Barlow? Will it include Recolonization or Liberation, a new policy for the poor and the rich countries applied in Canada now under GATT and free trade? Local people control of sustainable development education centre and of the environmental joint review process-w ill the aboriginal people have a part, the peace movement people, the social justice people , the trade union people, the fem inis t movement, the organic farm ing movement, the selective cutting non-chemical forestry movement.

Will the inn ovative ec ologis t envir onment movement have a place in the Ducks Unlim ited education centre? Will the movement for civilized humane industrial system-not the one we have now-be there? Will the United Nations Association be allowed to have a part? Will the overwhelming need to reduce the im pact of conspicuous overconsumption on the land and forests be discussed? How many of you heard David Suzuki say that the 22 million people living around Los Angeles consume more of the world's resources than the billion people in India?

Twenty-two million people in Los Angeles almost consume as much as the billion people in China. Each white civilized baby-and that includes Negro babies of rich people-is a plague on the earth like a locust equal to 40 or 50 Indian or Chinese babies. Nobody is facing that in this country. Nobody is talking about it. We have not begun to think about a proper environmen tal assessment. Our hydro projects in the North country are just like the United States Army Corps of Engineers, the most hated and feared, environmentally strong organization in the USA.

That is what our Hydro looks like to Native people and environmentalists. Ducks and wet lands are only 5 percent, a vital 5 percent, of the solution to the problem plaguing western Canada, and the world to devote literally mi llions of dollars to a private group to run the only high- profile environment education centre is further pr oof tha t Gov ernmen t and busi nes s are determined not to solve problems or to allow the people to solve the problems themselves.

Did you know that companies like Nestle's are again funding and giving out samples of baby formula in the hospitals to try and persuade and increase the number of women not nursing their children in Canada, and giving and paying sums of money-as much as $200,000-to be allowed to give free samples of baby formula in the hospitals in Canada? These are the kinds of things that should be talked about in an education centre. I want to go on from there. The qualific ation of panel mem be rs was discussed at length last night, and it is a very important issue.

Many know of possible benefits for business or Government projects. Few are really qualified to understand, in a comprehensive, holistic way, the inte rconne cted disben efits and disadvantages.

Worst still very few have even heard of the many alternatives and the interconnected benefits of the alternatives and how they interrelate and multiply the benefits of the alternatives to other projects. * (21 00) So if you have an alternative to Repap that is environmentally sensitive and takes care of the needs of the Native people to have control of the land around their reserves, which was deliberately ignored, very deliberately ignored, in the signing of the deal in Repap, and if you have a Hydro project that is not built and work is done on energy conservation and energy efficiency, you not only increase the environmen tal preservation and you

January 17, 1991 LEGISLATIVE ASSEMBLY OF MANITOBA 154 avoid environmen tal destruction, you create a huge number of local jobs which is, of course, of no interest to the major multinational corporations. lt is of interest to the people in the community. If you make the Manitoba Hydro do a massive, large effort in energy efficiency, you promote energy efficiency in the whole of the industrial sector of your province and make your province's industrial system more competitive on the world market without abusing the people.

You allow the United States to pay the regular price for their energy instead of trying to figure a way to supply your United States competitors with lower-cost energy, which has been the duty of most provincial Premiers for 20 years, to put the environment destruction for hydro dams in Canada and supply the lower cost of electricity to the United State s. Now that is what traders would do, not what loyal Canadians would do.

Until people who stand before you today and their colleagues are included on the panels in substantial numbers, no real improvement is possible. lt is like talking to a farmer walking behind a one-man plow about how you glue heat-resistant panels on a space shuttle. Talking about the alternatives that we had discussed in depth since 1975, how many of you are aware of the conservative society study No. 27 put out by the science council?

The best way to solve the unem ployment of a million people in Canada is only to allow a hundr ed percent Canadian-owned companies to get into the energy conservation and renewable energy business. Now we are working on free trade. The whole purpo se of free trade is to sell as mu ch hydrocarbons as we can to the United States to produce acid rain and produce global warming. As Mr .-there was a politician up here just ahead of me, a Mr. Cyril Keeper I think it was-he is a neutral politician now. He is a good politician now. He talked about energy conservation. ! never thought anybody would mention that.

We have been trying for 15 years to talk to Governme nts about energy conservation. If energy conservation had been seriously practised instead of the energy megaprojects which helped to lead to the recession, we would only need a third as much im ported oil today as the United States needs, a third or half as much, so they would not have had to go to Iraq for a war. So they interconnected into these issues, but that is a peace issue, that is an environment issue. How are we going to get those into your new studies?

There was a gentleman that was at the scoping session in the form of presenting a written brief, a Mr. H. Gavin, who had done some environment work, and he talked about a 15-year arrangement that had existed in the Province of Manitoba with the federal Government, a signed legal document, that when major projects came up that involved the provincial Government and the federal Government, there was in effect for 15 years an agreement between the Province of Manitoba and the federal Government that they would jointly work together to solve the problems of conflict of interest in hearings.

Now everything I have seen in the last four years of the screaming and foot stamping by Premiers when their projects were stopped in western Canada because they were doing illegal things, they wer e doing stupid things, they were doing environme ntally bad things, they were doing undemo cratic things by selling their country's resources without the people even knowing, and subsidizing to do it.

We believe that your need for this expeditious piece of legislation is to correct the problem of the delays to the mainly pulp and paper mills and hydro projects and power dams and that, therefore, there is no morally sound basis for the expediting. lt is very likely that the effect is to correct any errors in the structure at present and speed up and make easier the dev elopmen t of the pro je cts that the Government and the business want together. Now that is not a very kind thing to say.

I am sure all of the honourable people who worked on this thing would say it is not that way at all, but the experience I have seen in 10 years, in 15 years, that is what is happening. We talked with Bob Connelly for a whole day just a little over a year ago about fixing the federal FEARO to do something worthwhile. The federal Government brought in new FEARO regulations on PCBs and they slipped in a little paragraph and now eight provinces have opted out of what we were told was an all-inclusive, tough legislation governing PCBs. We al lowed eight provinces to opt out of it.

We know with the new FEARO regulations, they are designed to weaken the FEARO system. We know that from people outside FEARO and people inside FEARO.

155 LEGISLATIVE ASSEMBLY OF MANITOBA January 17, 1991 So you must forgive us if there is a concern at how this legislation is going to work out, because our last Environment Act was a disaster. Our Manitoba Environmental Council is badly weakened, our finances crippled. The production we have been able to do over the last eight years has steadily declined. The quality of our work has declined. Our member ship has declined. We have had a quota of 100 cut to a quota of 50, and it is being reduced further. Tonight I am making my final and firm resignation fr om the Manit ob a Environmental Council.

I am just so sick and disgusted, the way we have been treated for eight years by Environment Ministers and provincial Cabinet. The quality of research: Research from many sources must be available. The right to call for research known or suspected to exist, the right to legally ask for explanations and background of why the research was conducted, who conducted it and how it was conducted, from Government, from contractors, from business researchers-we have long needed this and I believe it is denied.

We are not allowed to call Government people to testify in the Clean Environment Commi ssion hearings about reports that had been produced in Manitoba by Mani toba Gove rnment scientists and federal Government scientists. This is a dreadful abuse. I think that when the Cabinet Members pay out of their own salary for research, they have a right to restrict it and keep it for themselves. That is their private business, but if the Cabinet Min isters allow a Government department to do research and they use the taxpayers' money to pay for it, that is our research. That belongs to the people.

That is the thing that I would ask the experts and the lawyers to check up on and see what can be done to allow the public access to all this research, when expert research comes in that not only the Government people can parade in with a bunch of silk-suited lawyers and testify about this and that, but the citizen environmen talists should be allowed to bring in their scientists and their reports and should be allowed to call for reports that they have he ard exis t and then bring the professional scientists who worked on these reports to explain the report and how they prepared it and what they understand about it.

This is what we would believe would be the panel's desire, to bring out the facts and the truth. I do not believe it is that well designed at the present tim e, so I would ask you to examine that. Funding: The powerlessness of armchair, token environme ntal representatives is a disgrace. I would humbly suggest that one of the things that is most desperately needed is a 1 percent capital fund. I have been talking about this for three years, and I have had agreemen t to the principles by some of the eminent environm entalists in Canada whom I have discussed it with.

When you want to build a $1 billion project, 1 percent of the capital cost, only $10 million, should be made available automatically to all the environmen talists who want and need to participate under a committee of environmen talists who will dispense and manage the money and account for it properly, but where they do not have to jump through hoops and bow and scrape and spend 20 percent of their time satisfying a set of ridiculous requiremen ts, bureaucratic machinery requirements, which is only designed to harass and reduce the effectiveness of environm entalists' work. * (21 10) If that was to happen over a five-year or a 1 0-year period and every project of Government and business over $1 million put 1 percent of capital cost into environmentalist intervener funding, we would have a Manitoba Environ mental Council where most of the guys could quit and go and work for the Eco-Network.

They could quit the Eco-Network and form an independent group. We would have $1 million a year coming into it, $1 million a year coming into Ralph Nader's crew at the Univ ersity of Manitoba, and we could do some worthwhile resear ch and come to your hearings with meaningful alternatives and presentations, which we want to do. We know how to do it. That is the thing I ask you to include and consider in your work. What is the record of our Government in these matters of environmen tal impact studies? I have taken

part in Clean Environment Commis sion hearings for about 12 or 14 years. I took

part in my first Hydro hearing 20 years ago, and I got in trouble because I said the crazy guys only had engineers on the Hydro Board and they needed an old Indian and an old fish boat captain on it, and I was right. lt turned out later I was right because just six years ago, I had a big shot scientis t give an excellent presentation and he said, we had no idea mercury would run out of the earth into the water and hurt the fishes when they took a river, a lake or a stream and made it handle 20 times as much water as it had.

January 17, 1991 LEGISLATIVE ASSEMBLY OF MANITOBA 156 We had no idea that would happen. We did not know the trees would fall into the water and interfere with fishing. They made a scientific study and they forgot that there are waves on the lake. When they were looking at the lake underneath some building at the university, they did not see any waves on it. They forgot thatthe waves occur on the lake, and so there was a different shoreline when there are waves.

You have no idea of the infantile inexpertise of the world's greatest experts because you are looking at a natural ecosystem, you are looking at a river basin. Did anybody here, anybody in this room, ever go up and stand in the Churchill River and look at what the Churchill River looks like when nine-tenths of its water is taken away?

You would cry with shame, just as you would cry with shame if you read my book, "Drumbeat" here about what our Government in Canada has done for a hundred years to their Indians, and what thlil forest policemen have done to our Indian Band in the North country because of the Su preme Co urt decision, and what the Government of Alberta did to the Lubicons, and what the brutal SUrete, the storm troopers of the Quebec Government did to the Oka Indians. You have no idea what is going on. That is why I supplied you a couple of nice little clippings in your little handouts.

I am not going to take any more of your time, except to remind you of something, gentlemen. Trading away our environment, GATT and Global Harmonization--now some of you got this before and I want to leave one more for one of you.

Our experts tell us, and we have some pretty expert exp erts, that when free trade is comple tely imp lem ented, and GATT-and GATT is to complement free trade--a nd the Meech Lake was ori ginally desig ned to weaken the federal Government as part of the free trade deal, which is being forced on every country in the world under the International Monetary Fund by the multinational corporations; we know that as well as Elijah Harper.

Though when free trade comes in and the new GATT is signed, almost any major effort you make is going to cost the company money to protect the envir onm ent, can be coun terv ei led and Mr. McGinnis and his sustainable development centre there is waltzing around in circles like a ballerina, totally non-pr oductive impossible project because we will not be able to save our environment under free trade and GATT.

You look what has happened to the countries around the world where the corporations have a free rein, and I am trying to talk a place now-a good example would be a place called, there is a little city up in northern Manitoba called Manfor which a corporation up there in the pulp and paper business for 1 0 years, they ran wild. We have 83 of 12 0 corporations in Canada, we are breaking all the laws. on pulp and paper mi lls.

The Environment Min ister in B.C. just resigned recently when they brought in imitation regulations to pretend to regulate the pulp mi lls. lt is all a fraud, we know it is, we get confirmation every day. . . So I beg of you, ladies and gentlemen, please hst�n to the people here that know what they are talking about. You may think I do not know what 1 am talking about because I just talk about vague generalities, but there are not vague generalities in the literature. We have documentation a mile high and so have all these people, and I work with some of them. You would not believe it.

I do not say so out in public to name them and embarrass them, but there are a lot of us trying to work to help you save your country because you may not believe it. Some of the people killed in the Gulf may be children of people that we know. There is a kind of book about people that are talking about the future. Frances Moore Lappa has 25 colleges in the U.S.A. talking about culture and lifestyle and democracy, and people power. Imagine that, people power in a managed demo cracy. :eople are doing incredibly innovative things; that IS why I gave you your clippings. Thank you for your time. Mr.

Chairm an: Thank you very mu ch, Mr. Emberley, for a very interesting presentation. Any questions of Mr. Emberley? Mr. Emberley: Thanks very much. Mr. Chairman: I would like to now call upon Mr. Bill Hunter, as a private citizen. He does not have a brief to be passed around. You may proceed, Mr. Hunter. Mr. Bill Hunter (Private Citizen): If you would like I could give you a copy of my presentation later. 1 have just finished it recently, but I could type one up and submit it to you if that would help you out. Mr. Chairman: You may present your presentation then. If there is any question, it will be at the end.

Okay? Proceed.

157 LEGISLATIVE ASSEMBLY OF MANITOBA January 17, 1991 Mr . Hu nter: Good evening , Mr. Chairman, comm ittee Members. I would like to start off by making you aware that at this moment, the doors to the Legislature are locked; access to these public hearings are being severely affected. I came in around 40 mi nutes ago, and I had to push past a guard to get into the Legislature. I would like to ask you to free the access to the Legislature and these hearings. If these people are not allowed access, the effectiveness and integrity of these hearings will be severely compromised.

There are presently 30 to 35 people awaiting to gain access to these hearings. I would like you to look into this before I go on. Mr. Chairman: I will have the Clerk check on that for you. Proceed. Mr. Hunter: If you do not mind, I would like to wait till I hear a decision. Mr. Chairman : She is going to check on that. I do understand that there was a demonstration in the front regarding the situation in the Middle East, and I believe- Floor Comment: High school kids. Ms. Bonnle Greschuk (Clerk of Committees) : University students. Mr.

Chairman : Yes, university students regarding the war in the Middle East, I believe it was. I was not aware that there were demonstrations regarding The Environmental Act. Floor Comment: I think they are against the war in Iraq. I believe .... Mr. Hunter: Yes. All I have been informed of this is that they would like to speak at these hearings; that is ali i have been told. "( 21 20) Mr. Chairman: I believe they were wanting to make presentation on their concerns regarding the war; they were also there this afternoon, too. You may proceed with your presentation on this. Mr. Hunter: Very good. Mr.

Chairman : Thank you. Mr. Hunter: For a long time we have been in direct conflict with the natural environment; it is as though everything we see we need to destroy. Channels have been set up by Governments, and it is my understanding that these channels have been set up to make sure that human im pact on our natural environment will be minimal and that a sustainable working environment be maintained. They have failed. The evidence is in our atmosphere and stratosphere which are disappearing. lt is in our water which is becoming a global em barrassment.

I do not think there is a single aspect of our natural environment that has not been compromised. The problems with our preventative assessme nts are pretty well the problems of a lot of legislation. They are full of holes and very ineffective. From what I have seen, decisions by groups responsible for the environme ntal assessments do not make sense. I think it is pretty well accepted that these decisions have been dictated from the political standpoint. Environmental assessments are quite often influen ced successfully by business or industry as well.

There is also a great problem with what the panels can look at. The terms of reference are set by the Minis ter and politically influenced. The Mini ster has a lot of people pressuring him or her to let the economic things go through, and I think that is the reason why the terms of reference are so often very narrow. We know from experience what the problems are, and we have not attempted to fix them. At the very worst, our planet is going to die. At the best, we are going to have to spend a lot of money to fix what we have destroyed, if we can fix it at all. A good example of the cost is medical expenses.

There are a lot of adverse health effects that are being created by our environme ntal damage.

This is very expensive. lt is my opinion that these flaws can be fixed by a number of measures: The Act must make sure that Manitoba plays an active role in any joint jurisdictional assessments and not, for example, rely solely on federal data; The Act must make sure the panels are free of political influence of any sort and have no conflict of interest; The Act must specify the use of panel members with some personal knowledge and experience in the area in question; The Act must allow the panel to set its own terms of reference; The Act must facilitate public involvement and provide financial aid for citizens groups at the onset of joint assessment;

January 17, 1991 LEGISLATIVE ASSEMB LY OF MANITOBA 158 The Act must give the panel the responsibility of determ ining the criteria for grants to citizens groups; The Act must make sure the public is involved in any changes to the environmental policy with adequate notification. Thank you. Mr. Chairman: Thank you very much for your presentation. I would like to now call upon Ms. Jenny Hillard of The Consumers' Association of Manitoba. Mr. Chairman: If you could wait one moment, I believe the Clerk is coming right now.

If I could just interject here for a momen t, there are people or groups of people out in the front who would like to come and witness our committee meetings hearing here. There are a number of groups there regarding the war in the Gulf. If there is any disruption during the meeting, the decorum of this meeting will prevail, and they will be asked to leave. There will be some people coming in to witness our proceedings. Ms. Hlll ard (The Consumers' Association of Canada, (Manitoba)) : Does that mean the doors are unlocked again? Mr. Chairman: Then the doors are unlocked again. Ms.

Hlllard: Before I start I would like to say, as I always do when I come here, I really hate giving briefs on environmental issues around a table littered with styrofoam cups. The Consumers' Association of Canada is an independent, non- profit, volunteer organization representing and informing consumers. CAC has about 14 0, 000 mem bers in the na t ional organization, 7,000 of whom reside in Manitoba. We have two local offices and branches, one in Brandon and one in Winnipeg.

CAC (Manitoba) is very supportive of the concept of combined environm ental assessments in as much as it makes economic sense to avoid two similar hearings and prevents conflicting decisions on the same issue. Manitoba is however concerned that the environ mental assessment process may be weakened by Bill 24 and the draft regulations as they now stand. CAC has a national policy that in all co-operative arrangements or harmonization agreements the highest standard must always be maintained. We feel that the environm ental assessment process of the provinces that border Manitoba are weaker than ours.

As Bill C-78 is currently under revision, we would be buying a pig in a poke if we comm itted ourselves to the federal process at this time. CAC Manitoba urges this comm ittee to ensure that Bill 24 guarantees Manitobans the highest possible standards for any environmental assessment. CAC Manitoba is concerned that any assessment panel not only be independent, but be seen to be independent. We feel that it is more im portant that the public, rather than the Mini ster, see the panel as impartial. Panel memb ers must be accountable to Manitobans.

At no time should the responsibility for environmen tal assessments be delegated to a group which contains fewer than three Manitoba members. CAC Manitoba is concerned with the Technical Advisory Comm ittee as outlined in the draft regulations. Many major projects in this province are sponsored by Government, Crown corporations or large companies that have Government support, all in the interest of industrial development. We are, therefore, dubious as to the neutrality of advice the panel would receive from such a T AC that is comprised of Government employees.

CAC Manitoba feels that it is essential that the panel have the ability to hire independent, technical and scientific advisors of their own choosing. CAC Ma ni toba has always been concerned that environmental impact studies are carried out by the proponent of a project. As consumer advocates, we would always advise against making a major purchase without doing one's own research and obtaining at least two independent proposals and quotations. Yet Manitoba buys into projects that have major environmental impacts on the basis of one study provided by the seller of the project.

We find it hard to believe that this makes sense to anyone except, perhaps, the proponent. CAC Manitoba requests that Bill 24 and its regulations ensure that the panel and/or the interveners not only have the authority and financial ability to obtain an independent study, but that such a study is mandatory on major projects. CAC Mani toba is pleased to see a requirement for intervener funding included in Bill 24, but we would prefer to see the mechanisms and eligibili ty requirements included in the regulations and the possi bility for public input into writing of these regulations.

159 LEGISLATIVE ASSEMBLY OF MANITOBA January 17, 1991 Although the system of cost awards as used by the Public Utilities Board is very effective in ensuring productive interventions, it is very difficult for interveners to be without some up-front funding. CAC Manitoba would not like to see the same system written into Bill 24. CAC Manitoba is pleased to see so many opportunities for public participation written into the draft regulations. Any environm ental legislation must include openness if it is to have public credibility.

We are, however, concerned that the public participation and the intervener funding will lead to a lengthy, costly and quasi-legal process. Although we recognize the need for a mor e formalized process than that currently used by the CEC, it is hoped that the purpose of Bill 24 is to economize, not to create a system which keeps lawyers and consultants on full em ployment. CAC Manitoba is concerned that the inclusion of the amendmen ts in Bill24 into The Environment Act in no way creates loopholes that would allow avoidance of a full environmental assessment.

We were very disturbed by the manner in which the Gov ernmen t of the Day pushed through the limes tone hydro-electric project without a full public examination of its environmental impacts. We would like to be assured that such an occurrence can never happen again. * (21 30) We urge this committee to ensure that this Bill and its regulations are re-examined and amended in such a manner as will in no way weaken existing legislation. Thank you. Ms.

Cerll ll: With respect to intervener funding, we have been wondering, Jenny, if you have given much th ought to how that could be handled in terms of the amount of money that can be given to an intervener. Ms.

Hlllard: The system that has been sort of evolving through the Public Utilities Board process but is not in legislation-it has to be done by a special amendment every time it is done-is that they give what they call a cost award, a certain amount of up-front fun di ng whic h gi ves us something when we are out there begging with lawyers and consultants to do this amount of work on spec, and then afterwards there is a cost award based on the bills that we submit.

The little bit of money we get up front is really not adequate to do anything with, but it does at least cover some of the disbursements at the beginning so maybe a combin ation.

This is why I would prefer to see it in the regulations than in the Bill, because if we come up with a system and then find it is not working, if it is in the Bill it takes so much longer to get it changed to something we can all live with than if it is in the regulations. · As I said, the cost-award system at the Public Utilities Board is very effective in maintaining the standards of the interventions, because all the time you are doing one you are very concerned that you be effective.

Otherwise you are not going to be paid, but you really need something ahead of time to be working with. lt is incredibly difficult to persuade lawyers and consultants to work for you not knowing whether or not you are going to be able to pay them at the end. Mr. Paul Edwards (St. James): Ms. Hillard, given your experience at the recent PUB hearings looking into the Conawapa project and the comments you have made tonight, the terminology suggested by the Government is that there be intervener funding for major projects.

I am not sure what that means, but maybe you can shed some light on what projects you think would require inter ve ner funding specifically. I do not know if you are familiar with the way The Environment Act sets up Class 1 , 2 and 3 projects and whether or not any and all assessments under the proposed 13 .1 , that is joint assessments, in your view would requir e some participant assisted funding program. Ms. Hlllard: I would think that anything that warranted a joint assessment would certainly require intervener funding. Under the other projects, I really do not know enough about it.

You know we are a consumer group, we are not an environmental group. We would and do only inter vene at environmental hearings where we feel there is a direct impact on the consumer. The environment groups are special interest groups. They have far more time and far more expertise in this area than we do, so we would only intervene where we felt there was a direct consumer impact. Mr. Cummlngs: I wonder if you have any thoughts on what you consider independence of panel members. I realize you did not bring it up in your presentation, perhaps--- Ms. Hlllard: Well, I did.

I said they should be independent to the public rather than to you.

January 17, 1991 LEGISLATIVE ASSEMBLY OF MANITOBA 160 Mr. Cummlngs: Well, that was my concern. There is one word that has caused a fair bit of discussion the last couple of nights, and that is, the terminology of whether they would be free of bias, whether they would be free of political bias and if you had any thoughts on that. Ms. Hlllard : I know what I would like to see. J do not know how you are going to choose them .

I would not like to see the panel be made up completely of experts, but on the other hand if you use experts one would hope that their professional credibility would keep them honest and independent. I think it depends mo re on the character of the people you choose. The Public Utilities Board is a Government appointed board, but we have been quite happy and quite confident in their Jack of bias and their ability to make independent decisions. Even if we do not get one we like, we still think they look fairly at the evidence and assess it fairly.

I think it depends more on the character of the people who are chosen than setting a particular criteria for choosing them. That is something that can only be done by the wisdom of the people who choose them. Mr. Chairman: Thank you very much, Ms. Hillard. I would like to call upon Wayne Neily, the Manitoba Environmen tal Council. The presentation is just being distributed so you may proceed, Mr. Neily. Mr. Wayne Nelly (Ma nitoba Envir onmental Council): Mr. Chairman, Honourable Members, we welcome this opportunity to make a presentation on the Bill 24.

I expect most of you are aware of the Environmental Council, have some idea of what it is. For any who are not, just briefly it was a body established in 19 72 consisting of about 10 0 members representing all the regions of Manitoba and a variety of sectors in Manitoba's society, including the urban municipalities, the City of Winnipeg, a variety of professional organizations the Teachers' Society, the Canadian Institute of Forestry, things like that-and attempts to have input from a wide range into its deliberations.

Now it happens that the council does view the environmental impact assessment process as one of the keys to sustainable development, and we favour anything that will improve the process. We have had a strong interest in this subject for a numb er of years, and one of our stan ding com m itte es spec ifi cally deals with the environme ntal im pact assessment process, so I regret that our brief is so brief. You may not feel that way having had a number of lengthy ones over the past few weeks, but we would have liked to have had a more in-depth analysis of this proposed legislation and regulations.

Unfortunately, it has been a bit of a moving target. As you may recall, it was originally introduced as draft regulations in November and October, then the legislation came out a little later as a Bill. Then, after we get back from Christmas holidays, there was another set of regulations. Because of the number of constraints that we have been operating under, we have not been able to analyze it as a council in any depth. As you heard allusions to the limitations of budget and so on, we have not been able to meet monthly as a board of the council.

One of the mem bers whose nomi nation has not been reappointed-his membership expired last time was the chair of our en viron men tal imp act assessment committee. All of these things have limited our input; however, we did in our December meeting make some recommendations specifically with respectto the Bill as we had it at that time, Bill24.

I will present those to you, and I do want to say as a preface to that, that we commend the Governme nt's initiative to try and improve the process and we recognize the need to have co-ordination of the processes between the Gov ernm ents where there is mo re than one involved. lt may be that in some cases when we see a particularly bad project that looks as though it is going to get improved, we would rather have it go through several processes and have a better chance that it is rejected, and yes, that can even happen in as enlightened a place as Manitoba.

We recognize that in the long run it is probably in the best interests of the environment to have a process that is co-ord inated and as efficient as po ssi ble. Indeed that was one of the re commen dations of the Asse mb ly of Environmental Councils that met here last year, that co-operation between jurisdictions should be encouraged including co-operative and joint EJA processes as long as this does not dilute the quality of these processes. That of course is a big concern here. We support the concept of Bill 24, but with amendmen ts to it. We do not consider that the regulations are adequate in this respect. *

(2140) 161 LEGISLATIVE ASSEMBLY OF MANITOBA January 17, 1991 There are some things that need to be included in the Bill itself, particularly the requirement to ensure public input into the terms and conditions of the specific joint process agreement and the joint panel terms of reference. Those things are sort of fundamental; they should be right in the Bill.

How they are done can be put in the regulations but even more important perhaps, that the Bill be amended to ensure that the joint process established include the more or most open, and the more or most com prehensiv e provisions of the two or more processes inv olved. That should not be too complicated to simply state that right in the Bill. You can put all the details of how you are going to do that in the regulations, but if it is in the Bill then there is something to fall back on if there is a question about the process or if it is challenged.

That is essentially the presentation that has been approved by the board of council. Our committee has looked at the regulations. There has not been a complete agreement among the executive and the comm ittee on other points, and we have not had an opportunity to discuss it with the board. One thing which I think we do have a consensus on is that the panel should be seen as the primary controlling mechanism for most of these thin gs that have been delegated to a Technical Advisory Comm ittee here. In

Section 3(

b) of the regulations, there are a lot of things in ther e which, under the present legislation, The Environment Act, I believe the power of the director or, for Class 3 projects, of the Min ister, that they seem to be given to a Technical Advisory Comm ittee here, which may or may not be an improvement, but we would suggest that they should be under the direction of the panel. I am working on the assumption that this panel would apply to all projects that come under this joint process.

That is not absolutely clear from the legislation, but the assumption that I have from reading it is that if there is going to be a joint process there will be a panel. So the idea would be to have this panel appointed as early as possible and to have it supervising the development of the various things that the Technical Advisory Comm ittee would be dealing with under the proposed regulation. I have a number of personal comm ents which I could give on this as well, if you wish, with respect to the details of the legislation.

I think the only other general comment I would like to make on behalf of the council is in response to some of these discussions about the panel criteria. At the assembly in September, one of the things that was recognized across Canada as being a problem with environmental im pact assessments is generally the lack of knowledge of the biophysical data base and the need for more understanding of that by the panels, whether they be a comm ission or whatever. Now in the federal one they normally have someone with biological expertise on the panel.

I certainly do not think that everyone on the panel should have to have scientific expertise, but I think it is important if we are going to be assessing environmen tal impacts to have someone with a good knowledge or a basic understanding of ecology and ecosystems on any such panel as well as the chem ical impacts which are represented in our current commis sion's expertise. Okay, should I proceed with the individual commen ts, or do you want to just question on this first? Mr. Chairman: We can take questions if you like. Mr. Cummlngs: Let him finish.

I am just going to ask one question for clarification. ! just wanted to ask Mr. Neily. I am quite prepared to proceed whatever way he is comfortable with. When you said individual commen ts, were you referring to the various sections of the Bill? Mr. Nelly: Yes. Mr. Cummlngs: Oh, that is fine. Mr. Nelly: Yes, I am not going to go off too far away from the specifics here.

One thing I must comment on, as I do not often get an opportunity to address the Law Amendmen ts Com mittee, is that I would urge you to have someone with a good command of the English language to review all of these things before they come before the Legislature. If you look through this, there are all kinds of dangling clauses, verbs without subjects, subjects without verbs, and punctuation which does not make any sense. I find it very hard to understand. I do not know how a judge would interpret it if it ever came to court. That is one thing I noticed.

I do not mean to im pugn the particular authors of this, but with a lot of legislation one of the great benefits of having the French versions is that they are written by somebody who is an expert in the language as well as in law. They are quite legible and they are correctly written. Unfortunately I do not

January 17 , 19 91 LEGISLATIVE ASSEMBLY OF MANITOBA 162 have the French version of these regulations, so sometimes it is a bit difficult to understand. I can give you some examples on that if you want to, but I do not want to go into details on such picky items. lt is just em barrassing to me as a Manitoban to see legislation come out that is mutilating the language. I used to think that it was necessary for legalese, and I have since learned that it is not. lt just needs more review. Just for one example, this

Section (

c) of Regulation 3 says, "appoint representatives from the participating jurisdiction ... "W ho or what is the subject of that? Mr. Cummlngs: That was why I asked my question earlier, Mr . Neily. You are refe rring to the regulations, which were not the subject of what we were wanting to get into. Mr. Nelly: Oh, okay, you wish me to restrict myself to the Act. Mr.

Cummlngs: In defenc e of the way the regulations are written, I am quite prepared to indicate that in preparing them and amending them and repreparing them for public discussion, as you are aware that they were done in that fashion, the staff was sometimes under some considerable time constraints to get them out. Mr. Nelly: I can understand that, and I see it is marked "draft." Mr. Cummlngs: Is there something specific about the regulation? I do not mi nd entertaining one question, but I hope we can stick mainly to the Bill and take it from there. Mr. Edwards: Mr.

Chairman, I object to the censure by the Minis ter of discussion on the regulations. These have been circulated as draft regulations. This Bill is a Bill which the Government is seeking to get vast powers to make regulations, and they have put this forward. Let us discuss the regulations, and let us discuss them all the time that Mr. Neily wants us to discuss them. Mr. Steve Ashton (Thompso n): Yes, I want to indicate my own concern too.

Perhaps the Minister hopes there will not be questions on the regulation, but I believe it is well within the mandate of this committee for comm ittee Members and member s of the public to address the regulations that have been distributed in conjunction with the Act. They are certainly relevant to the Act. I would just hope that while the Min ister may not wish to discuss the regulations that there would not be any im pression left with the presenter or mem bers of the public that they cannot make reference to the regu lations.

As a com mit tee member, not only do I think it is their right, I think it is their obliga tion to make comments on the regulations as well as the Act itself. I sugges t, Mr. Chair person, we allow the presenter to proceed. In fact, some of us as commi ttee Members may very well have some que stions on his comm en ts rela ted to the regulations. Mr. Cummlngs: I think the last person whom I would restrict would be Mr. Neily. Let us get that straight. The issue, however, of the validity of the regulations, we all know that they are going out for public discussion and revision.

They are not written in stone here tonight. Advice that is received from all of the presenters that is relevant to the operation of this Bill and which could be included in regulation is advice that we are prepared to receive. I simply was indicating that ultimately when we get down to clause-by-clause discussion, as we will I hope later tonight, that primarily will be a question of what is in regulation and what is in the Act.

The department has prepared draft regulations, and obviously they are not all here tonight. lt is really the incom plete aspect of that, that I want to make sure we all understand what it is we are referring to, because there is much more work to be done on the regulation side. * (21 50) Mr. Nelly: Thank you, Mr. Chairman. I appreciate the Minis ter's clarification on that and especially the understanding that there will be a further opportunity for input into the regulations at a later time.

The one thing with respect to the Act that we had difficulty in understanding is to what extent the rest of the legislation of The Environment Act would apply to projects that come under this joint process. lt would appear from the regulations that are drafted here that some aspects of it at least will be changed. There are some things indicated in the regulations here, such as the requirement to advertise the proposal and file a summ ary of it in the registry and things like that, which are already in the Act if the rest of the Act is to apply to them.

16 3 LEGISLATIVE ASSEMBLY OF MANITOBA January 17, 1991 I would appreciate some clarification. If there are some sections of the Act that would not apply to these joint processes, which sections? There is nothing in this amendment as far as I can see that says all other aspects of The Environment Act would apply to them. As far as the specifics here, we do not have any specifics other than what we have identified in the resolution with respect to the Bill. Mr.

Cummlngs: Yes, unless there is some nuance, there is some wording that I am not aware of, there certainly is not any intent to restrict other parts of the Act with this Bill. Mr. Nelly: The sections then that apply to the evaluations right now would also apply to these joint pr oces se s. I assu me there mu st be some exceptions, since there are regulations that would give certain powers to the panel and so on. Except for those exceptions is that the intent? Mr.

Cummlngs: A joint agreement with the federal jurisdiction would obviously have some imp act, but not at the subrogation of our Act nor at the subrogation of theirs. Subrogation is probably the word-make it subjective to I guess is the word I am looking for, not subrogating. Mr. Nelly: Okay, I think we have covered the commen ts on the Act, if I could just briefly mention some points with respect to these draft regulations, which you may have already taken in to consideration.

I had some difficulty understanding just what developments would be included. lt says, for which a Manitoba regulation or federal and provincial Min is ter of Envir onm ent dete rmin es that a co-oper ative assessment review is necessary. Does this mean that there is going to be a regulation that will specify what sort of things are necessary? Ms. Cerllll : Mr. Neily, it would really help the people on this side of the table if you would explain where you are reading from so we can follow along better. Mr. Nelly: Okay, I am sorry. I am in the draft to the regulation,

Section 1 , the definition of development. Mr. Cummlngs: If I understand correctly what you are referring to, it is my understanding-the intent is that we are trying to say that there is nothing that says there must be a joint review. lt would be a decision that it would be an option, not that there must be. I think that is what that wording is meant to say, unless I picked up wrongly on what area you are referring to. Mr. Nelly: I just wanted to clarify that

section for which a Manitoba regulation determines that it is necessary. I thought perhaps there is the intent to have the regulation that would specify certain areas, or maybe some such regulation already exists. Mr. Cummlngs: The word is referring to what would be our existing class. Mr. Nelly: I see. Okay. I assume this joint process could apply to any of the three classes. Is that correct? Mr. Cummlngs: That is possible, but the fact is that the intent behind this is that it is an option that is available, not something that is mandatory. Mr. Nelly: Thank you. I had a number of things in here indicating that they seem to be required by the Act, if the Act applies, such as

Section 3(a)(

i) and 3(a)(iv). They are basically good ideas, but they may already if the Act applies anyway be redundant. I do not know. The 3(a)(ii), I did not quite understand, reading the whole thing after, follows: (

a) Public input into the process will be encouraged through; (ii) opportunity for public involvement in the scoping of issues, where applicable. Does that mean the scoping of the assessment? I assume it means providing an opportunity to go with what will be encouraged. You can just note these if you like and respond later, they are just commen ts on the way through. Mr. Cummlngs: Woul d you repeat your last question? I got the first one, but the second one, I was seeking an answer at the moment. Mr. Nelly: Okay. This 3(a)(ii), to follow through with the sentence: will be encouraged through.

I assume that should be: providing an opportunity for public involvement in the scoping, and I assume that means scoping of the assessment, determining the scope of the assessment or in the scoping of the issues. Mr. Cummlngs: That is correct. Mr. Nelly: Under

Section 5. Opportunity to comment on the TAC. I assume we are talking about Techn ical Advisory Com mittee here , I would suggest that it would be a good idea to include the T AC review on the public registry as well and to specify that there. As you may know that is one of the corn plaints that a lot of people have had with the existing processes. We do not have general access on the public registry to the T AC reviews and in some cases those

January 17, 1991 LEGISLATIVE ASSEMBLY OF MAN ITOBA 16 4 are the only reviews that are done of projects under the existing licensing system. Then, of course, there is this famous major development in

Section 8. We think it is a good idea, the provision of participant assistance program, how major developme nts are defined. I would agree with the last speaker that if a project is signi ficant enough that it requires a joint review then probably it should be significant enough that it should have independent interveners who are funded. Perhaps you could simply delete the major there, say any developmen ts that come under this section.

The incorporation of the Technical Advisory Comm ittees into the regulations, we have no problem with the principle of that, but as suggested earlier we would prefer to see them-most of these things that are in here are actually done by the panel, perhaps with the recommendations of the TAC as well as the public. Alternatively if there is not a desire to have the panel do the things that are identified in here as duties of the TAC, that is reviewing the proposal, scoping issues, et cetera, then there should be some non-Government representatives on the TAC. I think I will leave it at that. There are details under

Section ( c )(i), it says so long as the Minis ter appoints or approves the appointment of the chair or eo-chairs that seems to apply that the Minis ter would not appoint the other mem bers. I am not sure if that was the intention. Those are just some detailed commen ts for your consideration. Thank you for this opportunity. •

(2200) Mr. Edwards: Mr. Chairperson, I know the Mini ster will want to respond to some of your questions. While he is speaking to his officials, I want to go back to your Manitoba Environment Council part of your presentation, which you were speaking on their behalf. You indicate that the council supported Bill24 with an amendmen t, that the Bill be amended to ensure public input into the terms and conditions of the specific joint process agreement. How did the council envisage that actually occurring in practice?

Would the Governments who were entering into the joint assessment process construct an agreement and then take it for public review each time that they wanted to enter into that type of a joint assessment process? Mr. Nelly: I think in most cases-it is hard for me to generalize that because you are going to get some perhaps that are class types where you may have several projects of the same type. lt may not be necessary to have each one of those opened up for review agai n, but whenev er a new type of agreement is esta blished, there should be a requirement for it to have public input.

I think that was the intent; it just is not stated in the Act. Mr. Edwards: The other, sub 2: The council also recommends "That the Bill be amended to ensure that the joint process established include the most open and comprehens ive provisions ... " and you have suggested that those very words could simply be included. My only concern about that is the same concern I have about people saying that they want to ensure the highest standard.

That is, that words like "highest" and "comprehen sive" and "open", as we all know, are subject to very differing opinions as to what they actually mean in practice, and the words connote to us perhaps tonight what we may be aspiring to, but in the context of a specific pr oposal and the tech nic al details and the comparing of one act to another act, it strikes me that those terms are subject to the same type of discretionary ability to bypass what really may be the highes t standards that we are seeking to get rid of. Do those words strike you as sufficiently strong to ensure the highes t standards? Mr.

Nelly: We had a fair amount of discussion about this, and it is very difficult undoubtedly to put something like that into legislation. lt is fine to state that your intention is to have the better of the two processes, and then it comes down to, how do you decide which one is the better? lt might be useful simply to state in a

Preamble to this Act that the intent is that the better of the two processes apply, but that would be very difficult to enforce in a court because it is a matter of judgment as to which is better in most cases. We came up with these two aspects of the process which we felt were key to determining which one is better or which is a higher one; one is the extent to which it is open to public involvement, the other one is the extent to which it is comprehensive and looks at all aspects of the question.

I think that using those is better than simply saying the joint process should adopt the best of the two processes involved. lt does give more direction. Perhaps you can come up with something that is better still, but

165 LE GISLATIVE ASSE MBLY OF MANITOBA January 17, 1991 that was the best that we could come up with on short notice. Mr. Edwards: I appreciate that. I appreciate the restrictions that the Environment Council has had placed upon it which you have talked about. Would it not be better and more secure to include in our own Act the very-pe rhaps detailed-but the very provisions which guarantee us that openness and that comprehens iveness?

Would it not be better when we are embarking upon this type of a major change in the way we are going to be doing these assessme nts and the major projects affecting this province, to take the time to put into the Act the detailed provisions which are going to make it open and make it comprehensive? Put those in detail so that we are sure that any joint assessment we get Into has those specific criteria included in it. Mr. Nelly: Yes, there is certainly a fair amount of sym pathy for that position in the counci l.

Our consensus was that it would be almost impossible to predict all of the situations that might come up and to plan them in the kind of detail that you might want and put it in the legislation; then if you did put it in the legislation it would be difficult to change it, and that it might be better simply to state the principles in the legislation or the basic requirements and to leave the details of the process to the regulations. So that is why we did include that

Section 1 , that those two particular points would be required by the legislation: to have public input, any agreeme nts that are developed, and the terms of reference for each panel. The rest of it, the details, we ended up not recommending that they go into the legislation. Mr. Edwarda: Just one final question and feel free to speak for either the council or yourself, because we appreciate your own personal advice as well.

As you know, both in the Province of Ontario and federally, there has been quite a bit of setting out of detailed criteria with respect to intervener funding, with respect to what is expected of a panel, much more so than there has been in Manitoba. Those details have been worked out in law, albeit the regulations. We do have some guidelines therefore to look to as to what we might want to include to make it more open and more comprehensive.

Do you not think that we might look to those examples, attempt to Improve upon them, but look to thooe , not no on exhnuotive liot perhaps of what we want, but nt least hove something that we con put In that would guarantee us minimal standards of openness and com prehe nsiveness in this legislation? We are front runners I am sure you are aware, and I certainly keep in mind throughout this, we are front runners in the country in doing this. I think we want to set a standard that others can look to and try and match in terms of the very principles you are talking about-openne ss and comprehensiveness. Mr.

Nelly: Yes, I am sure we would not object to having any good, sound, general criteria in there that would im prove the process. I recognize that Ontario and, as a matter of fact, several of the other provinces have developed some quite useful regulations that could and probably have served as guidelines for the people who were drafting these to some extent, and I think a lot of im provement to the regulations could be done. Now whether you can do that within the legislation as well or not, I leave that to you. An Honourable Member: We will certainly try. Ms.

Cerllll: I want to clarify something that you said at the beginning of your presentation. I understand that you said initially you thought the intention of this Bill was going to be covered just in regulations. What was the basis for that understanding? Mr. Nelly: In October, public meetings were held with draft regulations that would cover this, and it was only later that it was decided to bring it before the Legislature as a Bill. Ms. Cerll ll: So at those meetings there was no mention made that there would be a Bill that would also be brought in. Mr. Nelly: Yes, that is correct. Ms.

Cerllll: When did you realize that there was also going to be some legislation? Mr. Nelly: When we heard the legislation introduced in the Legislature. Ms. Cerllll: Was there a meeting with the Manitoba Environmental Council and the Minister to review this Bill? Mr. Nelly: Not yet. This Is it maybe. Ms. Cerllll: Did you not find that odd or troubling? Mr. Nelly: I was a little surprised when we heard of the meetings with the other groups that we had not had a meeting, but I assume there must have been a good reason for it. Mr.

Cummlngs: Well, I do not think I am going to get into a debate with how many times this Minis ter

January 17, 1991 LEGISLATIVE ASSEMBLY OF MANITOBA 166 has met with MEC and how many times previous Minis ters met. I do not think that would be too useful, except it might be beneficial to my reputation. An Honourable Member: Come on, let us hear it, let us hear it. Mr. Cummlngs: The Member says he wants to hear it. I will let him ask Mr. Neily himself if he wants to, but the issue that I wanted to give Mr.

Neily and MEC some comfort on, on the subsequent development of regulations, it gave me some concern that you felt a little bit surprised that there would be further public discussion and consideration of the subsequent regulations. That certainly has always been my understanding, and in fact I think it is mandated by the Act. We certainly will be taking the draft reg ulations you see bef ore you plus dra ft regulations on intervener funding.

Those will all be going out for further public consultation, and I am sure people such as yourself and your organization and a lot of others will have considerable comment at that time. One thing I would like you to give us some comment on because of your background and your interest is what your thoughts are on criteria for appointment of panelists. * (221 0) Mr. Nelly: That is an interesting question. I think the criteria for appointment of panels are probably the same as they should be for appointment of the Clean Environment Commission, perhaps even for appointment of the Environme ntal Council.

They should be of persons who are going to make a worthwhile contribution. I think in each case there should be a certain basic level of knowledge of the environment, some comprehension of functioning of ecosystems, not necessarily everybody a scientist. As a matter of fact, not everybody a scientist. Very often local knowledge is important. Expertise, as one of the previous speakers mentioned, comes in various forms. lt may be local knowledge, it may be scientific expertise of one type or another.

How the appointments are selected is always a problem because whatever Min ister is in power is going to have to make these appointments, and with bodies such as the commis sion or the council which are standing, there is always a suspicion if they are not on recomme ndations of some independent body . 1t ma y be tha t som eth ing lik e the recomme ndations of the Bar Association for judges would be a useful factor in having appointments, standing appointments at least, for such bodies, recomme ndations from some existing independent group. lt is a little more difficult to find a professional association for environmentalis ts, but you do not really want a professional necessarily anyway.

I think it is important to have some expertise in the biological field, some in the chemical field for most projects, some in others, depending on what the · project is, plus some general knowledge, local knowledge of special interests, for a particular panel. Now, if you have all of that in a commis sion that is a standing body as well, so much the better, and they can pick and choose as to panels for the Manitoba projects. Does that answer the question? Ms. Cerllll: I wonder, Mr.

Neily, if you could comment on how that criterion matches up to the mem bers who are now available for the Clean Environment Comm ission hearings. Mr. Nelly: I think I would rather not corn menton that. I could comment individually; I certainly could not on behalf of the council. We have expressed to the Minister over the years the im portance of having certain expertise on the commission which does not exist. I mentioned that earlier, the speciali zation in biology or ecology.

There are some other expertises which are very good on the commis sion and a number of people with good general knowledge who have shown their concern for the environment over the years. Mr. Edwards: I just have one further question about the process.

You have talked about the regulation which was floated back in October of last year, and I have a copy of that in front of me. lt came with a covering letter from the Min ister. ! appreciate you do not have a copy in front of you, but in reviewing that, what it talks about is a co-operative process in which a co-operative report would be issued at the end of the day by a jointly appointed panel, and that is all it talks about.

When I first got Bill 24 and saw what is proposed in 13 .1 (b), that is, the power for the Government not only to establish that joint process, but, in effect, to abdicate its responsibility to another jurisdiction and provide by executive authority for the use of that other jurisdiction's assessment process in its entirety, that struck me as fundamentally different than what was conte mplated in the October hearings, which is purely one of a co-operative joint

167 LEGISLATIVE ASSEMBLY OF MANITOBA January 17, 1991 process. The document floated in October said nothing, on my reading of it, about one jurisdiction doing the process for the other jurisdiction. Did that strike the Environment Council at all as a surprise when it came forward in Bill 24, and did the council have any thoughts on sub (

b) specifically? Mr. Nelly: Yes, we had some concern about that. I beli eve we discussed it with memb ers of the department and got their explanations as to why it was there. I think that it is probably unnecessary in any case. A joint process could be identical to either of the others as far as that is concerned, and it probably would be politically advisable simply to delete that, but that is your decision as Memb ers of the Legislature. I cannot see that it serves any useful purpose from the point of view of the Environmen tal Council. Mr. Edwards: Just one further question on that.

Do you contemplate-and I am not asking for a political assessm ent, I want your assessment as an environme ntalist. Can you contem plate any down side to leaving it in, any potential for abuse by whatever administration, that power in effect in the executive authority of Government? Mr. Nelly: Certainly if the other amendmen ts we have suggested are not put in place, there is that potenti al.

That is one reason why we are so anxious to have this statement that the joint review process should be at least as comprehensive, require as thorough an impact assessment and should have at least as much public input as the more open and more comprehensive ones involved. If that is in there, then I think you have a safeguard; if it is not, you do not. I am trying to-there was another point I wanted to make in relation to that, and it has escaped me at the moment. Oh, well. Mr. Cummlngs: I would like to ask Mr.

Neily, the question that he just answered, relevant to the use of another jurisdiction's assessment process, an area that I see this being something that is due some consideration is if you have a project where the federal Government has a very large interest on Native lands with navigable waters where 80 to 90 percent at least of the work would be required by that jurisdiction, regardless of provincial interest. Do you have any concern if the province then uses that information as part of its decision-making process, because imme diately after

Section (

b) in 13 .1 , it says: for the purpose of gathering the information necessary to make a decision to issue or refuse a licence. Nowhere is the decision-making process being delegated, it is only for the collection of information, which is the assessm ent process. Does the scenario that I describe give you any other comfort in terms of how this could be a reasonable approach? Mr. Nelly: First, the point that I had intended to mention in relation to that is that was one reason why I was asking whether the rest of our existing legislation applied to everything that came under this Act, because that is not entirely clear, and that is a safeguard as long as it does. *

(2220) If someho w that could be interpreted by a lawyer as excluding something from some aspects of our Act, I would be much more concerned. As to the question of the use of that jurisdiction's assessment process, if the sem icolon were deleted there that would be appropriate. lt seems to be in a separate clause. That semicolon there ends this one, and it may be unintentional, but that is just a dangling phrase at the end there. If that were part of

Section (

b) then I could see that. I am not sure just-but gathering the information is not I think the same as the environm ental impact assessment process. If it is only intended for the information-gath ering part of that process, fine, but the understanding of the way it is written there that we had is that it would be utilizing the whole process including a panel from the other jurisdiction, et cetera. If you delete that semicolon and put the additional words into that section, I do not have any particular problem with it.

I think you should use information from whatever sources you can get, though I do not know that it needs to be in the legislation. Mr. Cummlngs: Well, I believe that I fairly described what was intended in the writing of this section. I bow to your thoughts on grammatical correctness. I would have to ask our drafters to look at how that changes the intent, and certainly we can look at that. Mr. Edwards: I just want to add, for Mr.

Neily's edification, and he has raised the concern, that in som e way this provision would nullify certain provisions of the existing Environment Act. lt is my reading of it that certainly is the case and that particularly with respect to 13.1 (b), that is to provide for the use of that jurisdiction's assessment process

January 17, 1991 LEGISLATIVE ASSEMBLY OF MANITOBA 168 another jurisdiction's assessment process even if it is for the purpose only of gathering the information. Sections 10, 11 and 12 in our Act do include provisions about the assessment process. They put in specific requirements that the Government has to meet. Now what this purports to do in projects that are involving more than one jurisdiction is it allows the Government to by-pass those sections and in effect give over in entirety the process to another jurisdiction. Ultimately, the political decision rests with our Government. That is true.

Certainly we would not be involved in this debate if we all did not believe that the ultimate decision was intimately linked to the process. You cannot divide the two. If you have a bad process, you will have a bad decision. If you have a good process sometimes you will still have a bad decision, but you have a higher likelihood of having a better decision. So my view is certainly that you are correct in your fears, Mr. Neily. I certainly see no basis on this wording to have any confidence that the Minister's view, albeit put forward with the best of intentions, is correct. Mr. Cummings: Perhaps before Mr.

Neily steps down, and he may not even need to respond to this but I think it is an appropriate juncture to respond, that given the intent of what I said, then I think what we are struggling with is clarification of that intent. I am encouraged by your approach to the Bill. As Members of the committee, it will be our job to wrestle with the question you have raised. Mr. Nelly: Yes, I would like just to comment briefly on that. If the intent is simply to use another process for gathering information, I do not think there is anything in the legislation or the regulations that prevents that anyway.

So it might be possible simply to eliminate that and not have to worry about it. Mr. Cummings: The whole intent behind this Bill is to make sure that the intent is clear, and not after the work is all done, subject to

interpretations other than what the drafters meant, not just this clause but the whole amendment process that we are embarking on with Bill 24. You could argue that almost anything that we want to do under Bill 24 could be done today, but you might not be able to successfully argue it on a technicality. I guess I say to you and to other Members of the committee that is why we have these amendments before us, to make sure that there is a clarity as to the legality and the intent of what could be conducted under the Bill. Mr. Nelly: In considering that, I might make a suggestion then that you simply amend (

a) to say: to establish a joint assessment process which could provide for the use of that jurisdiction's process in gathering informi:ltion-something to that effect. That way you would still have the requirement for a · joint assessment process, but you could use the other ones for information gathering, if you wish. Mr. Cummings: I cannot give you under that an

interpretation of what effect that has, except to tell you that is a suggestion I am sure all Members will want to take a look at. My first thought was that might fundamentally change the intent of (a), but perhaps I am not well-enough trained to realize that. Ms. Cerllll: It seems to me one of the things we are trying to get away from with this legislation is having a proponent do the research and manage the assessment process.

Knowing that we have Government often as the proponent, what if, under what we are considering here, it was a federal Government project or a federal development that was supported by the federal Government? Then I would see that this would be again totally unacceptable. Would you agree with that? Mr. Nelly: This whole question of the proponent doing the assessment is one that we have some concerns about, and exists under our entire Manitoba Environment Act. The proponent always does the assessment by contract and we feel that that is a weakness of the Act.

I do not know if we can change it in this particular amendment, though. That is something that is pretty fundamental through the Act. Mr. Chairman: I would like to now call upon Mr. Dennis Breed, the Canadian Public Interest Organization. Mr. Breed does not have a brief to present. You may proceed. Mr. Dennis Breed (Canadian Public Interest Organization): To start with, I would like to refer to this public hearing, if that is what this is called. It seems you have had a public hearing and not invited the public. There was very little notification of this hearing.

The only one I was able to catch was one television notice, and I think that there should be further notification to the public if you .,er&-w

16 9 LEGISLATIVE ASSEMBLY OF MANITOBA January 17 , 19 91 Point of Order Hon. Ha rry Enns (Mi nis ter of Natural Resources): Mr. Speaker, on a matter of order, I just take the occasion to make note for the record that Manitoba is the only jurisdiction in Canada that provides this opportunity for the public to make presentations of any and all Bills that we intend to pass, so I take some exception to your suggestion. Mr. Ashton: I do appreciate the advice from the veteran Member from the House, but I believe memb ers of the public have the right to express concerns, as this member is, about the lack of notice.

One of the difficulties we do have is that sometimes some of our comm ittee hearings are more publicized than others. Certainly during the Meech Lake crisis, the public hearings were well known to the public, but I believe- Mr. Chairman: If I could interject, I would like to thank the Members for their-t here is not a point of order. Mr.Ashton :Well, Mr. Chairperson, I am addressing the point raised by the individual making the presen tation.

I jus t wanted to comple te my sentence, if I could, to say that I wish that Mem bers of the committee would allow presenters to make comments and not engage in debate with them. That is the role of this comm ittee hearing, to allow members of the public to present their views. • (2230) ••• Mr. Breed: As I say, there was not adequate public notification, in my opinion, and in that respect I think it would be a good idea to put in a legislation requirement specifying the amount of notice of public hearings if they are to be held. Why not?

As I am not exactly familiar with the Act as I have not really be paid to look at it or anything, I will just address some of the pertinent points. I would suggest that the Act, not the regulations, be used to get to some higher standards of environm ental quality, that these standards must be spelled out in the Act and not the regulations. That would make sure that we know exactly what we are dealing with and would have a higher probability of success in improving the environmental quality. In terms of understanding the

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Collection	Manitoba — Debates (Hansard)
Citation	35-1-la5
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Volume / chapter	35th 1st hansardpdf la5.pdf
Language	en
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