2011 Legislative Session: Fourth Session, 39th Parliament
SELECT STANDING COMMITTEE ON PUBLIC ACCOUNTS
MINUTES AND HANSARD
SELECT STANDING COMMITTEE ON PUBLIC ACCOUNTS
Wednesday, November 16, 2011
Douglas Fir Committee Room
Parliament Buildings, Victoria, B.C.
Present: Bruce Ralston, MLA (Chair); Douglas Horne, MLA (Deputy Chair); Spencer Chandra Herbert, MLA; Kathy Corrigan, MLA; Guy Gentner, MLA; Randy Hawes, MLA; Vicki Huntington, MLA; John Les, MLA; Joan McIntyre, MLA; Lana Popham, MLA; John Rustad, MLA; Shane Simpson, MLA; Ralph Sultan, MLA; John van Dongen, MLA; John Yap, MLA.
Others Present: John Doyle, Auditor General
Stuart Newton, Comptroller-General
1. The Chair called the Committee to order at 8:05 a.m.
2. The following witnesses appeared before the Committee and answered questions relating to the Auditor General's Report: An Audit of the Environmental Assessment Office's Oversight of Certified Projects (Report 4: July 2011)
Office of the Auditor General:
• John Doyle, Auditor General
• Morris Sydor, Assistant Auditor General
• Amy Hart, Manager
Ministry of Environment:
• John Mazure - Acting Executive Director
• Michelle Carr - Director, Strategy and Quality Assurance
3. Spencer Chandra Herbert, MLA gave notice of motion regarding a request to the Auditor General to report on the process and decision to pay $30 million to Boss Power.
4. The Committee adjourned to the call of the Chair at 10:28 a.m.
The following electronic version is for informational purposes only.
The printed version remains the official version.
REPORT OF PROCEEDINGS
select standing committee on
Wednesday, November 16, 2011
Issue No. 19
Auditor General Report: An Audit of the Environmental Assessment Office's Oversight of Certified Projects
Notice of Motion
* Bruce Ralston (Surrey-Whalley NDP)
* Douglas Horne (Coquitlam–Burke Mountain BC Liberal)
* Randy Hawes (Abbotsford-Mission BC Liberal)
* John Les (Chilliwack BC Liberal)
* Joan McIntyre (West Vancouver–Sea to Sky BC Liberal)
* John Rustad (Nechako Lakes BC Liberal)
* Ralph Sultan (West Vancouver–Capilano BC Liberal)
* John van Dongen (Abbotsford South BC Liberal)
* John Yap (Richmond-Steveston BC Liberal)
* Spencer Chandra Herbert (Vancouver–West End NDP)
* Kathy Corrigan (Burnaby–Deer Lake NDP)
* Guy Gentner (Delta North NDP)
* Lana Popham (Saanich South NDP)
* Shane Simpson (Vancouver-Hastings NDP)
* Vicki Huntington (Delta South Ind.)
* denotes member present
Josie Schofield (Manager, Committee Research Services)
Michelle Carr (Ministry of Environment)
John Doyle (Auditor General)
Amy Hart (Office of the Auditor General)
John Mazure (Ministry of Environment)
Stuart Newton (Comptroller General)
Morris Sydor (Office of the Auditor General)
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WEDNESDAY, NOVEMBER 16, 2011
The committee met at 8:05 a.m.
[B. Ralston in the chair.]
B. Ralston (Chair): The agenda today will see the committee consider a report from the Office of the Auditor General, which is An Audit of the Environmental Assessment Office's Oversight of Certified Projects.
Our second item is a similar report from the Auditor General, Status of Enterprise Risk Management in the Government Ministries of British Columbia.
Is there a motion to adopt the agenda circulating?
S. Chandra Herbert: So moved.
Meeting agenda approved.
B. Ralston (Chair): We'll begin with item 1 on the agenda, and I turn it over to the Auditor General to begin our proceedings.
Auditor General Report:
An Audit of the Environmental
Assessment Office's Oversight of
J. Doyle: Good morning, Members.
British Columbians expect that major projects, such as mines and power plants, are assessed for their impact prior to their actual development. They also expect that potential significant adverse effects — whether they be environmental, economic, social, heritage or health-related — that will flow from these projects should be identified, avoided or mitigated in some way.
I find that the environmental assessment office cannot assure British Columbians that the commitment stated in the environmental assessment certificates are always being met, due to some weak oversight. However, I am encouraged that during the course of our audit, the environmental assessment office introduced some key measures to address some of the noted deficiencies, such as hiring a director of strategy and quality assurance.
Next year I'll look forward to conducting a follow-up on the status of these recommendations and will report out on them in October 2012.
I have with me today Morris Sydor, assistant Auditor General, who is responsible for this work. The executive director responsible has now retired from the office. That was Wayne Schmitz. Also, we have here today Amy Hart, who was the manager, and Tanya Wood, who was the analyst for this particular piece of work. I'll now pass over to Morris and ask him to go over a brief presentation.
M. Sydor: Thank you, John. Good morning, Mr. Chair, committee members. This morning I'll provide you with a brief overview of our audit of the environmental assessment office's oversight of certified projects.
B.C.'s environmental assessment process provides a mechanism for reviewing major projects to assess their potential impacts. The environmental assessment office considers the environmental, social, economic, heritage and health impacts of a proposal.
It works with representatives from provincial agencies, such as the Ministry of Environment; Ministry of Forests, Lands and Natural Resource Operations; Energy and Mines; and also with federal agencies, First Nations and local governments to complete these assessments.
Environmental assessments can take up to two years. On completion, the proponent's application for an environmental assessment certificate is submitted for decision to the two ministers responsible: the Minister of Environment and the other minister responsible.
This audit focused on the post-certification part of the environmental assessment process. We did not evaluate that portion of the process leading up to the approval of a project.
Of the 219 projects that have been or are going through the process, about 115 — that's nearly 53 percent — have been approved. Energy and mining projects account for about 70 percent of the certified projects.
We carried out this audit to determine whether the environmental assessment office is providing sufficient oversight to ensure that the potential significant effects of projects are avoided or mitigated, whether it's evaluating the effectiveness of mitigation measures and making appropriate accountability information available to the public. We determined that the environmental assessment office is not meeting any of these three objectives.
We found that commitments were not always expressed in a way to ensure measurability and enforceability. Numerous commitments contained vague phrasing that may be difficult to implement, measure and enforce. We also noted that the lack of policy guidance for mitigation options affected the ability to set measurable and enforceable commitments.
Now, while the environmental assessment office is responsible for providing oversight of each certified project, monitoring is often delegated to other agencies. We found that agency responsibilities for monitoring compliance with environmental assessment certificates are not always clear. As well, the agencies involved used different methods and systems to track certificate commitments, and these systems were not integrated.
We also noted that the environmental assessment office's compliance and enforcement activities were reactive rather than proactive and did not constitute a comprehensive compliance and enforcement program.
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We had four recommendations in this area: that the environmental assessment office ensure that commitments are clearly written in a measurable and enforceable manner, that it continue to work with the Ministry of Environment to finalize a policy framework on environmental mitigation and that the environmental assessment office clarify the post-certification monitoring responsibility and compliance mechanisms for each commitment.
The fourth recommendation is that the environmental assessment office develop and implement a comprehensive compliance and enforcement program that includes an integrated information management system.
Now, even if the commitments for projects have been complied with, the office had no assurance that the intended environmental outcomes, as well as the benefits of the projects, were being achieved, because effectiveness evaluations are not being carried out. The environmental assessment office recognized this issue and established a position whose responsibilities will encompass this function.
Our recommendation here was that the environmental assessment office conduct evaluations to determine whether environmental assessments are avoiding or mitigating the potentially significant adverse effect of certified projects.
Overall, the environmental assessment office is not providing appropriate accountability information to the public. The environmental assessment office maintains an on-line project information centre to provide project information. This includes the proponents' applications and project monitoring information. The latter is primarily self-monitoring information from proponents and is not consistent or timely.
The environmental assessment office also includes its performance information in the Ministry of Environment's annual report. We found that the measures selected do not address effectiveness as to whether expected outcomes have been achieved. Instead, they focus on process issues.
Our recommendation was that the environmental assessment office provide appropriate accountability information for certified projects.
To summarize, we had six recommendations — four covering oversight issues and one each in the areas of effectiveness evaluation and accountability.
That concludes my presentation, Mr. Chair.
B. Ralston (Chair): Thanks very much Mr. Sydor.
We'll hear from John Mazure, who is the acting executive director of the environmental assessment office. I believe he is assisted by Michelle Carr, who is the director of strategy and quality assurance.
Over to you, Mr. Mazure.
J. Mazure: Good morning. I would just like to take a minute to introduce a couple of other staff here. I've got the acting executive project assessment director. That position is primarily responsible for all the people that actually conduct our environmental assessments. That's Archie Riddell. I also have the manager of policy and project assessment, which reports to Michelle Carr and has led a lot of the work that I'm going to kind of outline that we've done over the past year. That's Tim Hicks. Then we also have Lisa O'Connor, who provides administrative support to Michelle's group.
Starting off with our first slide. First of all, I'd like to thank the Auditor General for his work. I actually thought that the process we went through was very constructive and would like to thank Morris, Amy and Tanya in that regard. We acknowledge the work that was done, and we support the recommendations that the Auditor General has put forth.
We've been going through a strategic planning process prior to the audit happening. As a result of the audit, I think it has accelerated the work that we were going to be doing anyway, provided some focus to it, and it is one of our top strategic priorities going forward. Just a bit of background there.
Just in general, we recognize — and this is part of our culture — that we're continually trying to improve the integrity of the environmental assessment process, and this certainly fits into that category.
I'm going to go through the first few slides here just to provide a summary of our overall response to the recommendations, put it in the context of some work we were doing before the audit started and also put it in the context of the overall EA process.
First of all, I'll apologize because there's a little repetition, obviously, from the previous presentation. The audit focused on the post-certificate part of our process and basically was based on a sample of projects that were certified since the office was established in 1995 through to the present. The audit found deficiencies in the areas of compliance and effectiveness management and in providing that information to the public, so in terms of public accountability as well. As you're aware, the report provided six recommendations.
Moving on to the next slide. More specifically, I guess there were three main themes that arose out of that. While we were doing some work in terms of compliance and enforcement, it wasn't sufficient to ensure potential significant adverse effects were avoided or mitigated.
The Auditor General just mentioned it, but it's very important when we talk about adverse effects to recognize that those are defined in our legislation, the Environmental Assessment Act. So we are required not only to look at environmental effects; we're required to look to economic, health, social and heritage effects as well.
The second theme arising out of this was evaluating the effectiveness. Even if proponents are complying with
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all the measures that are included in the certificate conditions and related commitments, are they leading to the outcomes that we're expecting? That's a piece of work we will be working on, I would suspect, later on, probably early in the new year. We're kind of taking a phased approach to implementing the recommendations.
Then, finally, the EAO is not making the information we have on this part of the process available to the public. I would argue that the information we do have available and the work we have been doing have been posted, but as the Auditor General has pointed out, I don't think it's been done in a comprehensive manner. We haven't followed, necessarily, a framework to ensure we're doing it consistently.
In terms of our overall response, as I've said, we agree with the Auditor General's recommendations. Before the audit began, we were already looking at this. I joined the office in January 2009, and since that time several projects were referred to ministers for a decision. It became quite obvious to us that those projects were going to start to actually be constructed and everything, so we were turning our minds to this issue in early 2010 — that while we were doing some work in this regard, there was certainly a need to enhance what we were doing.
The executive director at the time issued a policy statement so that all staff were aware of the activities that they should be doing in terms of post-certificate monitoring and compliance. We actually assembled a team that started to look at how we could enhance that. I first met with Morris and Amy in, I think, the summer of 2010, August 2010. Even at that time we were beginning to think about having some dedicated resources in the office to provide oversight to that particular part of the process.
Then during the audit, which began in October, we were well on our way to creating a position, which is now filled by Michelle, the director of strategy and quality assurance, which is quality assurance across the whole process but in particular a focus on compliance and effectiveness — definitely over the short term, given that was an area where we ourselves recognized we were deficient. It was certainly highlighted once we had discussions with the Auditor General's office.
I think it's fair to say that since the audit Michelle has done a ton of work, particularly in terms of working with other agencies within the provincial government that will have a role in this. She'll speak to this in greater detail in her part of the presentation, in particular clarifying roles and responsibilities between the EAO and those other agencies.
Before I move to the next slide, I just want to clarify one thing. It's that, as the Auditor General has noted, they focused on that latter part of our process. In some early discussions with the Auditor General's office, we really felt — and I think this is the case — that when you talk about particularly certificate conditions and commitments, those are really the result of the front end of the process — in other words, the actual assessment itself leading to a decision by ministers.
So just by the very nature of our process, that front-end work — in terms of identifying what issues are, where there might be potential adverse effects, the particular mitigations or design changes to the project that are done — is just as important in terms of leading to outcomes that we're expecting as the back end of the process, the post-certificate monitoring. So that front end of the process, with the exception of kind of dealing with the certificate conditions and commitments, wasn't looked at, but I think it is important.
Moving on to the next slide, this is just a very simplistic slide that shows our process, which obviously has a lot more detail to it than we're showing here. Really, the compliance and effectiveness piece, or the post-certificate piece of it, is at the very bottom of this chart. But the front end of the process, particularly pre-application and application review, is just as important in terms of leading to outcomes that we're expecting.
During the pre-certificate stage we obtain information from proponents on their proposed mitigation measures. Those measures — many of them find their way into the certificate conditions and commitments. So that's happening at that middle box stage. Then during the application review stage, the latter part of that is where the real fine-tuning happens, and we actually begin to translate those measures into actual commitments and conditions that will be legally binding on the proponent, should a certificate be issued.
What doesn't necessarily get captured in the commitments and the conditions is the fact that as you go through the process, there are design changes to the project as well. For example, you may not see it in a commitment or a condition, but the project design may be modified. For example, for a linear project like a transmission line, we may move a segment of the line to avoid a wetland area. That's captured in the project design changes. Those types of things result through the process as well.
In addition to this process, what this doesn't show are the different parties involved in the process. That's important as well, because the information that we get, which helps define the conditions and commitments, comes from several sources.
I'd like to highlight just a couple of things. One is that our process is very comprehensive and inclusive, and secondly, it's transparent. I've already indicated that we basically have to look at five potential adverse effects. In terms of comprehensiveness, we definitely look at those.
Many of the reviews that we work on, particularly on major projects, also involve the federal government, and we coordinate our reviews with them as well. We
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typically lead that process. We do it jointly, but we lead that process.
We actually produce an assessment and a report that not only addresses provincial requirements but also addresses federal requirements. That report is used by provincial ministers when they make their decisions and also by federal ministers when they make their decisions. So in terms of comprehensiveness, that's an important fact.
We also form a working group which includes expertise from all federal and provincial agencies that have an interest in the project or may be required to provide a permit or an authorization later on in the regulatory approval process. For example, with a typical mine, we involve 17 federal, provincial and local government ministries and agencies in that process. They bring their technical expertise to the table. Particularly with environmental conditions and commitments, that's where their expertise comes to bear, and the commitments reflect their input.
We also get input, obviously, from the other parties to the EA process. We consult with First Nations. They can participate as part of that working group, or we deal with them directly. So they have input to those conditions and commitments.
The proponent has their technical experts and consultants. We work with them. They provide advice as well.
Finally, we engage the public at particular points in the process. Just to make it really easy, we engage them at the application information requirement stage — which is the top box on the chart — in terms of what information it studies and the scope we should be looking at in terms of this project. We also engage them, once the proponents provide an application, to get their input on the application itself and the mitigation measures proposed.
Once we've completed this process, we provide an assessment report. We also provide a draft certificate with the conditions and commitments included, and also recommendations from myself to the ministers for decision. Should they choose to approve a project, it is they that sign the certificate, and they set the conditions. Now, we've obviously drafted them for them, but they're ministers that make that decision.
That kind of addresses the comprehensiveness inclusiveness that I mentioned. In terms of transparency, our process is quite transparent. We, at the front end of the process, provide all our information on our e-PIC website. Upon decision by ministers, the information behind those decisions is posted on our Internet site as well.
I will stop there, and I'll turn it over to Michelle. She'll get into more detail in terms of our compliance and effectiveness program that we're developing and how that addresses the specific recommendations from the Auditor General.
G. Gentner: Can I have a point of information, Mr. Chair? How long are we going to have this presentation? We have a whole series of questions here today. I'm just asking the Chair how much further this presentation will continue.
B. Ralston (Chair): Well, I'm looking at the slides that we have copies of. There are responses to the specific recommendations. I'm sure the committee is interested in hearing those, and I expect that presenters will get to the point fairly shortly.
M. Carr: Before addressing the Auditor General's recommendations, what I'd like to do is give you an overview of our overall conceptual framework so that when I talk about the response to the specific recommendations, you will have the context of our comprehensive program.
This figure highlights how EAO is building a comprehensive program that continues work EAO was doing on compliance management prior to the audit. It uses a coordinated interagency approach and addresses the opportunities for improvement as noted in the audit.
Developing our enhanced compliance and effectiveness program is a significant undertaking requiring coordination and collaboration with a number of other government agencies that have responsibilities and expertise relating to overseeing certified projects. We are in the process of refining this conceptual model in collaboration with these partners and taking into consideration the key learnings that we have developed.
I'm just moving to the diagram now. The EA process has three main stages, which are shown on the slide: assessing the effects, identifying requirements to avoid or mitigate effects and ensuring that effects are avoided or mitigated. Items 1 and 2 relate to the first two recommendations as outlined in the Auditor General's report respecting measurability of commitments, etc.
The third stage, ensuring effects are avoided or mitigated, is achieved through compliance management and effectiveness management, which are two key areas of focus for our program. Compliance management begins with setting avoidance and mitigation requirements, and effectiveness management begins with predicting and assessing effects.
Compliance management focuses on the requirements — i.e., our certificate conditions and commitments — to ensure that the rules are being followed. To do this, we verify using three main strategies: comprehensive and intensive monitoring by qualified professional monitors who are hired by proponents or the government; compliance inspections carried out by government agencies such as the Forests, Lands and Natural Resource Operations compliance and enforcement branch, who've already been inspecting certified projects in coordination
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with our office — so it's both proactive and reactive inspections; and comprehensive audits to verify compliance in relation to every aspect of projects.
For projects that are out of compliance, investigation activities are carried out to gather the facts about non-compliance to support remedial actions. Enforcement measures are used to remediate non-compliance situations, using measures that are appropriate to the particular situation.
In terms of effectiveness management — moving to the right-hand side of the slide — the purpose of this is to follow up on the actual effects caused by projects to determine whether the mitigation measures that we set out are effective and whether the effects predictions during the EA are accurate. Effectiveness management involves monitoring and analysis, which is carried out by qualified professionals such as biologists.
As part of this whole process, there's a feedback loop around accountability and continual improvement. So we are going to be tracking our findings and making reporting information available to the public. In addition, observations from reporting information will be used by our quality assurance program to support continual improvement of EA practice in British Columbia.
Interagency coordination and collaboration is key. It's been the foundation and the principle by which I've focused the work that we've done since the audit. Similar to the assessment process leading up to ministers' decisions, compliance and effectiveness is also necessarily collaborative. We've led interagency efforts to develop and implement this program. Experts from other government agencies are playing a key role in helping us develop our model.
In terms of the next slides, I'm going to give you an overview of how we're making progress on addressing each of the recommendations.
Recommendation 1 focused on ensuring that commitments are clearly written in a measurable and enforceable manner. This is an essential component of compliance management which begins well before assessments are referred to ministers for decisions.
We had implemented policy guidance in 2009 and again in 2010 on how to write measurable and enforceable certificate commitments. In the same month that the audit began, we implemented additional policies to ensure that commitments are measurable and enforceable.
Our policy is that commitments should be clear in terms of the standard or action that is required and its time frame; measurable or readily ascertainable as to whether the commitment has been met; clear about who will decide, in the case of uncertainty, whether the required standard or action has been met; and flexible, where appropriate.
In addition to policy guidance, we routinely obtain legal advice on the measurability and enforceability of draft certificate commitments.
More recent strategies that we've implemented to further address this issue include: in June 2011 we initiated a process to revise the format of our draft environmental assessment certificates in order to further improve the measurability and enforceability of certificate conditions, including commitments — for example, by attaching a revised project description to the certificate, reflecting changes to the project that occur as a result of EA, therefore providing clarity around legally biding conditions pertaining to project components and activities.
My unit that I head up, the strategy and quality assurance unit, has been facilitating the review of commitments of project staff to ensure they are measurable and enforceable. In addition, the Ministry of Forests, Lands and Natural Resource Operations compliance and enforcement branch have agreed to review our draft certificate conditions and provide recommendations on making them measurable and enforceable. That has occurred for the three projects that have been referred since the audit was released.
Recommendation 2 focuses on continuing to work with the Ministry of Environment to finalize a policy framework to provide provincial guidance on environmental mitigation. The audit report acknowledges that EAO had been participating in the development of the Ministry of Environment's environmental mitigation policy since March 2010. This work is being led by the Ministry of Environment's environmental sustainability and strategic policy division.
EAO representatives sit on three policy teams that are developing aspects of the policy. The manager of policy and project assessment from the strategy and quality assurance unit sits on the interagency policy advisory committee, which advises on policy development and reviews and comments on drafts and policy development strategies.
The policy and legislation adviser from the strategy and quality assurance unit participates as a member of the policy development team, which contributes to policy drafting, and we have a project staff member who is participating on the mitigation procedure development team, which is one of several teams developing proposed procedures for implementing the policy.
This policy has been under development since 2010, and it is expected to continue into 2012. Currently, the work is being focused on developing operational procedures to guide a trial application in the next fiscal year. A second phase of engagement with First Nations and stakeholders that will be completed in March 2012 will also inform refinement of the policy.
The Auditor General's report indicates that there is an absence of provincial legislation or policy concerning options for mitigation, including offset of environmental impacts resulting from major projects. As part of the
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environmental mitigation policy development process, EAO is supporting the Ministry of Environment into looking into this matter by funding a review of provincial legislation and other legal instruments, such as court decisions, to identify existing legal provisions pertaining to environmental mitigation.
It is important to note that the Environmental Assessment Act itself provides a means to create legally binding mitigation requirements. Under the act, deciding ministers can attach legally binding conditions to EA certificates. EAO supports this policy, looks forward to recommendations guided by it and is looking forward to the consistency that will be provided across the province for avoiding, reducing and offsetting adverse effects.
We will fully take into account the environmental mitigation policy as we work with proponents, First Nations, the public and other government agencies to develop project-specific mitigation and compensation measures.
Recommendation 3 relates to clarifying the post-certification monitoring responsibilities and compliance mechanisms for each commitment. We've been focusing on this since before the audit was conducted, and further significant progress has been made since we received the recommendations.
As highlighted in the conceptual model slide that I showed you earlier, monitoring of certified projects carried out by qualified professionals is an important aspect of compliance management. Monitoring is already a standard requirement for certified projects. Various types of monitoring are prescribed in EA certificates, typically using a professional reliance approach to ensure the integrity of monitoring and reporting activities.
In terms of interagency collaboration, as I previously noted, EAO is working closely with other government agencies that have the expertise, resources and responsibilities relating to compliance and certificate commitments to develop a comprehensive enhanced management program.
Clarifying monitoring responsibilities has been our policy since 2010. Our policy is consistent with this recommendation, which specifies that commitments should identify the agency responsible for determining if the commitment has been carried out.
Since we received the report, we've been working with other agencies to further clarify monitoring responsibilities and mechanisms for responding to non-compliance.
For example, the Forests, Lands and Natural Resource Operations compliance and enforcement branch is carrying out compliance inspections on certified projects to verify compliance with certified commitments. They had already been inspecting certified projects before the audit, but our new coordination efforts are creating a planned, consistent framework for their inspections across the province by developing standards procedures that clearly identify roles and responsibilities.
We are close to signing a memorandum of understanding with the Ministry of Forests, Lands and Natural Resource Operations compliance and enforcement branch to carry out compliance inspections of our projects in coordination with other agencies that carry out inspections, such as the Ministry of Environment and the Ministry of Energy and Mines.
Recommendation 4 focuses on developing and implementing a comprehensive compliance and enforcement program. As I noted earlier, when I showed you the conceptual model, we've made significant progress in developing our program for certified projects that builds on the work that had previously been underway. We believe this work will address all of the Auditor General's recommendations.
What I'd like to do is provide some details around some progress in key areas. In terms of….
B. Ralston (Chair): Ms. Carr, if I just might interrupt. This is meant to be a relatively brief summary of your response to the recommendations, and then there'll be questions from the committee. I hesitate to interrupt you, but I think you're providing a level of detail that may be better explored during questions from members.
We have your response to recommendation No. 4. You're implementing a system that's going to get there.
Can I suggest that you move on to the other recommendations.
M. Carr: In terms of conducting post-certificate evaluations, as John Mazure mentioned earlier, we're using a phased approach to develop this component of the program. What we want to do is ensure that the key learnings that we're developing and learning from and the experts that we're engaging, as we develop the compliance management component, inform this particular aspect of the evaluation piece.
Just in the interest of time, I'm trying to move forward.
In terms of recommendation 6, EAO's website makes an extensive amount of information available to the public about certified projects. We will continue to make this information available to the public, including new types of information gained from our compliance and effectiveness program.
In addition, we are working with other agencies in the natural resource sector to identify opportunities for publishing compliance and effectiveness information, such as interagency compliance and effectiveness reporting systems that are being developed by the Ministry of Environment and the Ministry of Forests, Lands and Natural Resource Operations to ensure a consistent approach in the natural resource sector.
B. Ralston (Chair): Thanks very much.
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G. Gentner: I begin today seeing that TransCanada pipeline has made some changes because of an aquifer in the Midwest. This shows a little integrity in how things work in the States versus a freeway running amok through Delta called the South Fraser perimeter road. I really have to tell you that that's a travesty.
I bring it up again, as a beginning, to remind the Auditor General that perhaps — just perhaps — he should take a little look at what's going on in Delta.
I have to begin by saying, in many ways, I thank both the Auditor General and, of course, the ministry for their detail, though I do think the Auditor General sort of let this EAO off the hook, so to speak. I'd like to say to Mr. Mazure that I really feel for the office. I think you've worked hard and you're trying to work hard, but there is a culture within that really began in 2002, with what happened and changes to your performance level by a particular government that sits opposite to me.
Why I have some criticism, as well, with the Auditor General is that we focus strictly on the post-certification, seen on page 6 of the Auditor General's report, and not the process leading up to the approval of the project. Maybe I get that, because the Auditor General is not necessarily interested in policy matters. The decisions to amend and change the assessment act and the process of approval…. I mean, how can you ignore it? One process leads to the other — the effects of performance.
The base. You need a preamble of what's happened before — a baseline looking at what happened before 2002 versus where we are today and how much is due to not only a lack of oversight, which I think is a flaw within the statute itself.
Therefore, we hear the apologies from the ministry, who I think have been strapped in their ability to perform, but you have to blame not the office per self but the government that changed the legislation. So very briefly, how much is due…?
B. Ralston (Chair): Guy, this is just a….
G. Gentner: Well, hon. Chair, we spent 30 minutes listening to an apology, and I have a question to ask.
B. Ralston (Chair): Yeah, it is.
The meeting will come to order.
G. Gentner: So how much is this because of the — to the Auditor General — lack of funding or oversight? Or how much is due to the inefficiencies, and how much is due to lack of integrated coordination among various ministries or agencies, and how much is actually due to a very poorly written statute?
B. Ralston (Chair): Well, within your jurisdiction you can respond.
J. Doyle: Thank you, Chair.
First of all, I may remind members that in doing my work, I'm not allowed to comment on the merits of policy or objectives of a program, and I refuse to do so.
We identified this particular component of the work of the environmental assessment office as being the outcomes of the office and a major factor for protection, if you like, across a number of different areas of activity that is afforded to citizens in regard to major projects. So I think it's quite important.
If the words that are used to be included in a certificate which permits a project to go forward are not enforceable, unclear, difficult to understand, waffly or whatever phrase it is that you want to use, I think that's an important finding, and I think the environmental assessment office is quite right to spend some time and effort in actually tightening up those words so that the intended effects and consequences in regard to mitigation are, in fact, brought through properly as we go forward. I don't think anyone in this room would disagree with that perspective.
When it comes to accountability, I'm often asked why I make comments on accountability. I'll draw your attention to the Auditor General Act, which makes it quite clear that I should comment on what accountability is made available to the Legislative Assembly in regard to the performance of any government program.
Again, in this particular case I found weaknesses in the accountability that's being made, and I drew them to the attention of the Legislative Assembly and to this committee via my report. So I'm not quite sure what I've done wrong, in that I think I'm doing my job properly and I think I'm doing it in a way that is open and fair and within the constraints that I have in my legislation.
I am, however, quite happy to sit down and discuss that in detail if it is an issue and I'm welcomed to do so.
J. Yap: From our perspective, you are doing the job properly, Auditor General.
You have six recommendations, and I assume they're in no particular order of importance. They're just listed sequentially. To the environmental assessment office, after six…. Well, first of all, you've said unequivocally that you accept them all and that they will form a part of the strategic direction for the EAO, and I think that's terrific. This is the value of the audit process and taking up recommendations that come from the audit to improve outcomes.
You gave us an outline of what you're doing with each of the recommendations. But after six, which one or two — let's say two — are probably the most important to
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you and that you're putting resources to get at to resolve the shortcomings?
J. Mazure: I guess my response to that would be I'm not so sure that there's any one of the six or a group of them more important than the other.
I do think that in terms of where we're at in that process, we've probably made further inroads to the actual wording of the commitments, which was the first recommendation. We're probably further along there than we are with, for example, effectiveness auditing.
I do think we're taking a deliberate approach here, which is to develop a compliance and effectiveness program, and within that program, I think it makes sense to get out there and be doing compliance monitoring and taking remedial action where we need to. Based on the information and learnings we get from that process, that will help us inform where we may want to do effectiveness auditing.
I think we're taking a phased approach, a deliberate approach. We want to make sure, within the resources that we and others in the provincial government have, that we're focusing, for example, effectiveness auditing on where we think the most risk may be.
It's a bit of, I think, a targeted approach. We definitely have a view to implementing all six recommendations. It's just that some, I think, will precede others. But we definitely want to get there in totality.
S. Chandra Herbert: Thank you to the Auditor and the EAO. It's not E-I-E-I-O, but it's morning. I'm sorry. I'm a bad comedian. Again, I'm glad I am not doing that for a living.
I found the recommendations interesting but also a little surprising — the suggestion that there needed to be a clarification of the monitoring responsibilities and that the EAO has responded by saying they will now make this policy and have done so since 2010, to clarify who's doing what. That, to me, seems like a pretty obvious thing that most organizations would do when we're signing contracts or we're making plans — that there would be an understanding of who exactly was doing what.
I'm glad that the EAO has made that their policy since 2010. I'm just surprised that it wasn't from the beginning.
My question relates to the certificates. There have been no penalties, certificate suspensions or cancellations necessary. That's what the EAO has determined. Yet it has talked about finding ways to enforce compliance to ensure that certification is actually worth something.
I'm curious. Since the EAO has started to take a more active stance in monitoring compliance and doing those kinds of things, are we going to start seeing fines? Are we going to start seeing actual accountability when people make mistakes as opposed to just saying: "You need to clean up your act"? Is there actually going to be some way to penalize people who are breaking the rules?
In addition to that question, how many compliance audits are going to be done — effectiveness audits, those kinds of things? Is it going to be once in a while or…? What can we expect, and what are you budgeted to do?
J. Mazure: I'll answer, I think, a couple of those questions and then turn it over to Michelle for some of the details on the work we've actually been doing.
Our act actually has a section in it that provides us the ability to provide sanctions for non-compliance. We would definitely…. Given we have those tools, we would use those tools. In our experience, we have found that where we've found issues of non-compliance, we've taken a progressive approach, which is to work with the proponent to give them the opportunity to actually remediate. We have found thus far that that usually works.
Based on the work that we've been doing — and I'll let Michelle speak to this in terms of inspections — where we find situations where a proponent is not complying and not showing an interest in doing so, that we be prepared to sort of move along that spectrum in terms of sanctions which could, at the end result, lead to a suspension of a certificate.
In terms of inspections, we've done — what?
M. Carr: Seven.
J. Mazure: We've done seven inspections. We've generally found that they're compliant, but there probably are a few issues that we need to look into. We're working, as Michelle outlined, with folks at FLNRO that are more experienced and have conducted such inspections, and then we'll have to rely on other folks if there is non-compliance — for example, biologists or others — to determine what that remedial action may need to look like.
There is some work being done on that, and this gets to the credibility of the process. It's just as important for us as anybody. I guess, in a nutshell, we've got the tools under our act to do so, and we're getting out there. We're looking at some of these places. We're taking, I think, a targeted approach, and we're going to learn from what we're finding.
S. Chandra Herbert: Just a quick follow-up, I guess, on the question of accountability and enforcement and those kinds of things. How do you plan to enforce environmental certificates where the language may be pretty difficult to enforce because it may be "may do this" or "may not do that," where the language is unclear what it really means when they were given the certificate?
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J. Mazure: Well, I think we can certainly work with the proponent to get them to understand the implications of that. It ultimately comes down to potential adverse effects. If we find something that can lead to an adverse effect, we'll certainly use the powers we have under the act to — like I said, through a progressive approach — encourage remediation from the outset and, if that isn't working, move along that spectrum towards more harsher sanctions and ultimately — hopefully, we don't get to that point — suspension of a certificate.
R. Sultan: I see in the presentation that in fact, it appears that we have two compliance offices in this province reporting to two separate ministries. We have the compliance activity that you represent reporting to the Ministry of Environment, ultimately, and we have the Ministry of Forests, Lands and Natural Resource Operations with a compliance and enforcement branch as well.
The presentation points out that that branch is carrying out inspections of certified projects to verify compliance with commitments, so my question is: do we need two separate government departments with what appears, to this lay observer, as an identical mandate?
M. Carr: I'd like to respond to that. What we've been doing is working very closely with the experts that are in the compliance and enforcement branch of Forests, Lands and Natural Resource Operations. We're not setting up a duplicate program within EAO. We don't have 126 compliance and enforcement officers out on the ground. We're relying on the experts.
This is consistent with the approach that's been undertaken in the natural resource sector around one project, one process. What we're doing is fully linking in to the rationalization and ensuring that we're not duplicating effort. We're similarly coordinating with the Minister of Environment, who also had some inspection duties under, for example, the Environmental Management Act.
I don't think there are two separate processes. I think that within the natural resource sector, around the one process, all of the key areas relating to compliance and enforcement are coordinating and collaborating with each other.
R. Sultan: But my point is that…. You say they're not two separate processes, and that's precisely the point. We seem to have one process here. Why do we have two departments doing one process? That's, again, my question. I think you've done your best to answer it.
But you're doing it through cooperation. I suppose "You take that one, and I'll take this one" seems to be the modus operandi. Am I correct?
J. Mazure: If I could just respond. Although we are part of one process, the environmental assessment process leading to certificate conditions and commitments, some of those commitments, in order to ensure that they're complied with, are a responsibility of our office. Others rely on expertise from other agencies. But you have to differentiate EA certificate conditions and commitments, which are earlier on the process, from permitting issues and commitments. FLNRO issues permits for these projects as well. They conduct inspections, and they take necessary action related to those permits.
All we're saying is that we are going to harness, for EA certificate condition and commitments, that inspection power that already exists. Why would we create…? We simply don't have the resources to create our own field team. We have 55 staff in our office. They're all located in Victoria. Those other ministries have a regional presence. If they're already doing the activity, it just stands to make sense that we would rely on them.
I don't think there's overlap. I think there are two different sets of conditions and commitments in the regulatory process, and we have to be responsible for the ones coming out of the EA process. They have to be responsible for their own permitting. We're simply trying to work together to use government's resources effectively to cover both of those.
R. Sultan: If I may make a comment, Chair. You've precisely made the point that I am trying to make. We don't have the resources to do things twice. There was reference earlier in the presentation, actually, to 17 different agencies involved. I appreciate the stresses — and in some cases, I'm sure, overwhelming demands — of what you're asked to do, but some days I wonder how we get any projects built in this province if you have to serve 17 masters. End of my speech.
S. Simpson: I'll be interested to know — my questions are primarily to the Auditor General's office — what the timeline was in terms of the review and what years or period of time was reviewed with this audit. It's interesting, the comment that all of this work was post-certificate work, and whether there was any consideration, or there is any consideration now, about going back and looking at that pre-assessment period that came before the post-certificate work that's looked at in this review. And those are questions….
But my more clear question, really, is this: in the assessment or the determination of the Auditor General's office, does the office, the EAO, have the budget and resources today to be able to meet the objectives and the recommendations that the AG has put forward as being necessary in order to take us to the point of compliance for the office that's there?
Then, just as a second…. One of the things, I know, when we were looking at this…. Some of it's very theoretical in many ways, these, and I'd be interested…. Maybe if there were any real examples. Like, how does
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this actually apply on the ground with a real project and a real example, in terms of how you determined that objectives weren't being met, as you saw them, in order to be effective?
J. Doyle: I think I've got three questions.
S. Simpson: Maybe four, even.
J. Doyle: Maybe four.
The first one is…. I'll draw your attention to page 16 of the report. It details when we conducted the work and over what period of time we took our sample of projects. The period of time was from 1995 to 2010, and that's what the graphs reflect in the body of the report. We actually conducted the work between October 2010 and April 2011.
In regard to the budget question — which I think is something along the lines of: is the environmental assessment office set up to succeed? — we never got any response, from my recollection, that said they had any different budget problems than the rest of us in regard to the conduct of their work. I think it's actually quite hard for any office to determine how much they need if they haven't got the clarity around what it is that they're doing. And if you haven't got the right words in the certificates in the first place, it's pretty hard to figure out how much compliance and testing and monitoring is required to make sure those words actually carry through and mitigate the risks that are identified.
I think that's a good question, but it's one that is perhaps best answered by the environmental assessment office and also as we go forward. Did you want an actual example of…?
S. Simpson: It would be positive, because when I look at the recommendations and then if I was to look at any given project, it's kind of like: give me a sense of how do these…? What did you find as it relates to any project of significance? Pick the one you looked at that says: "Here's where we identified these problems on the ground and with a real project."
J. Doyle: Well, if I could draw your attention to page 17 where we look at measurable and enforceable certificate language. "The proponent will maintain a high level of integrity with regard to environmental communications and reporting." I don't know what that means.
Another one is: "The proponent has agreed to explore daycare options for local employees." Okay. How do you enforce that? "Okay, I've explored it." Thank you, and you move on. "Vegetation clearing will be minimized, and clearing in old-growth forests will be avoided wherever possible and kept to a 15-metre maximum right-of-way width as much as possible."
All of these things rely on a level of trust between counterparties that may or may not exist. I'm not sure how they fit into the criteria used by the environmental assessment office in regard to mitigating risks and so on. But they're worded in a way that's actually quite difficult, afterwards, to come along and have a look and say: "Well, did that mitigate the risk? Did that achieve the objectives of the certification? Did that achieve the issues that were identified during the assessment process and actually come up with a mitigation that's responsible and appropriate?"
If we wanted to go through…. Oh, sorry. There was one other part of your question.
If you go back to page 22, you'll find some good examples of environmental monitoring — some good practices. So what we've done is balanced some of the issues we found with some good things that we found as well when we actually conducted the work. But overall, the conclusion was that there needs to be a tightening up, going forward, of the wording and the conditions that are placed within the certificates, which are legally enforceable if you could figure out what they meant.
The good question was: well, what do you do with all the stuff that's already happened? I think you've already heard the answer from the environmental assessment office that they're going to do their best in regard to those.
I can't remember what your fourth question was.
S. Simpson: It's okay. If I could just take the guidance of the Auditor General on answering that question about budget matters. He suggested the EAO officials might be better suited to answer that, so I'll take his advice and maybe just turn that question over to them. Do you have the budget to be able to make the kinds of changes that have been recommended, that you have embraced, and to do the things that the Auditor General has suggested have to occur?
J. Mazure: I think the short answer to that is yes. Even before Michelle arrived on the scene and that position was created…. We have a focus on continuously improving our process, basically from the moment we get a project description to the compliance and effectiveness part of the process at the other end.
We've created some efficiencies and reallocated some resources to this function, primarily the creation of the director of strategy and quality assurance. Within that quality assurance piece, our focus and priority over the next little while is compliance and effectiveness. I believe we're going to be going out fairly shortly to recruit two positions that will be reporting to Michelle, which deal specifically with compliance and effectiveness. The rest of her position and other positions in the organization that report to her deal with policy and quality assurance more broadly, but we'll have two positions there.
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In some ways, it's early days in terms of knowing whether we'll need additional resources in addition to what I've just indicated. But we are working with all the other agencies in government that have a role in this, and we're trying to maximize efficiencies in that regard. So at this point in time I don't have any concerns in that regard.
V. Huntington: I have a couple of brief comments and then two or three brief questions. Firstly — and this is with respect to the work you're undertaking now in an attempt to reform the process — I would like to say to the Auditor General that your report is really nothing more than a vindication for the many hundreds of people out there who choose to participate in various environmental assessments. Over the years they have constantly been saying that there is no effective monitoring of projects; that there is no enforcement; that the language in commitments is too vague, and so vague that it's an impossibility to enforce and monitor; that there's no real objectivity in the EAO.
I think a comment made on page 18 of the report just said it all for me and for all those people that have been involved and critical over the years. That is that the EAO accepts…. A complete report from the proponent "is accepted as proof of compliance." I think, really, all of this lends itself to an accusation, rightly or wrongly — certainly the perception — that the EAO is a captured agency of the proponents on major projects.
If the work you're doing can reform that understanding or sense of the public, then you will go a long, long way to getting back the trust that is needed during these assessment processes, in my mind. So I'm really interested in how you complete this work.
I do have two questions for the Auditor General. One goes back to Shane's comment. Auditor, I would like to get some sense of whether you will or could consider an audit of the pre-certification process. I think that's where you will find in the working group a tendency towards consensus, a working group led by the proponent in many respects, where the language to receive consensus must be vague.
The other area that I think would be important to look at is that a lot of the monitoring and a lot of the pre-certificate assessment — all of it, really — is done by the proponent. I think that to provide some neutrality and objectivity in the EAO, there should be some consideration given to having the proponent finance studies that are undertaken by the EAO. That will give you a sense of objectivity. So I would like to know whether there will be any consideration of Shane's question about a pre-certification audit.
J. Doyle: As far as the proponent role is concerned, it obviously did concern us that the documentation was provided by third parties who may or may not be as independent. Certainly by my definition of "independent," they would not be independent of the process, although many of them do pay for experts who are at arm's length from the project.
Provision of the dollars to actually conduct the work is something, perhaps, that should be addressed to the environmental assessment office as to how they feel about that. But it seems to me, just thinking about it very briefly, that that would be a sensible way to go, rather than actually receive the report from someone who is on the payroll, or similar, of the organization with the most to gain.
In regard to any other work that we may do, we've always left it on the table that we would consider how this fits into our future plans. It's of importance to us that this work is done well, and I think it's in the public interest that this kind of work is monitored. But we're more likely to wait until after we've seen the responses — and how they've been played out — to these recommendations before we build it into an actual work program, although it will be in our planning, as you can imagine, from now on.
V. Huntington: Thank you very much for that answer.
To Mr. Mazure. I think most of us know that there are flaws in the legislation. Have you the latitude you need to engage in international best practices? Has the office the independence it requires to regroup and actually operate within the scope of best practice?
I mean, if you just take the Environmental Law Centre's report out of the University of Victoria and look at that report, it's a devastating indictment of the assessment process in British Columbia. What I am curious about is whether the EAO itself feels it has the independence it needs to undertake some of that change in attitude and process.
J. Mazure: I feel like we have the ability. I certainly feel this way myself and have felt this way since I joined the organization. We have, under our legislation, the ability to conduct objective assessments. The act really clearly defines roles for the offices versus the minister.
I think the act gives us flexibility to design a process that largely…. I mean, there are key requirements under the act, but within those key requirements we have the flexibility to tailor the process to fit the circumstances we see. So I think we have the means within our act to conduct objective, comprehensive assessments.
We have certain requirements for public consultation. We certainly view those, in the office, as minimum requirements, and we'll make adjustments to that where we think it's warranted in order to get meaningful public engagement. We can make those changes. We are trying different things with certain projects to improve our process. It doesn't necessarily mean they will always work out, but we certainly have that flexibility.
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I'd like to just comment on a couple of points you made earlier, just to clarify. Our working group is led by the environmental assessment office. We manage those meetings. We have technical experts from other ministries around the table. The proponent is asked to make presentations and provide information to that group. But it is led by the environmental assessment office, not led by the proponent.
In terms of information that's going to that group, as I indicated in one of the slides, at the application information requirement stage, we have input from all stakeholders to the environmental assessment process in terms of what studies, what methods, should be used to assess the project. We ask the proponent to draft those, but we have final approval on those. We make that final approval based on input from others.
The proponent is expected to…. If they want to provide an application, they have to provide that information so that we can actually assess adverse effects and their proposed mitigation measures and make recommendations to ministers. So I just wanted to clarify a couple of things in terms of the process.
J. McIntyre: Thank you, both to the Auditor General and the ministry, for your response. Actually, as to John Yap's point earlier, I think that's the benefit of these audits. We can find how to improve.
Before I ask my question, I would like…. Actually, Vicki, when you talk about….
B. Ralston (Chair): Member, we don't really engage in cross-debate here, although I know the temptations are sometimes overwhelming.
J. McIntyre: Sorry, I'll rephrase. Thank you for catching me. My apologies.
B. Ralston (Chair): I'm the good cop.
J. McIntyre: I would just like to say…. With all that's being said today, I have had firsthand experience of a major process going on in my area. I just want to put on the record that it has been very, very professional. I don't think anybody would say that this agency is a captured agency. I just wanted to put that on the record.
My question is actually more about the process. To the ministry: I was wondering if you could explain, especially because we're talking about accountability — and we're accountable as legislators to our constituents….
I was interested when you were talking about where the public has an opportunity to participate, either pre- or post-certificate. I'm just wondering if you could expand, both from the public and also local government's perspective. How do citizens and local government play a significant role pre and post to ensure that this goes forward with high standards?
J. Mazure: Well, I'll probably defer to Michelle on the post side of things, but in the process leading up to a decision by ministers, we typically — and this varies depending on whether the federal government is doing a review as well, because they have their own public consultation requirement…. Sometimes we may not be planning to do a public consultation at a point in the process, but they are. We typically will be involved in that as well.
Right now we have two particular points in the process where the public can actively engage in the project. One is, as I mentioned, when we are developing what we call the application information requirements. It's really a terms of reference for the review. When we're looking at the studies, the issues that need to be addressed, the scope of the project, typically we hold a public comment period that's a minimum of 30 days — typically longer, depending on the time of year and the level of interest in the project.
We also hold open houses in locations that are in the vicinity of those projects, where local governments and others will be quite interested in it. We also hold a public comment period once we've received the application. After the working group has kind of had a look at it, we'll have a public comment period so that the public can comment on the application itself and the proposed mitigation measures.
The federal government, under their comprehensive study process, often has a third public comment period that is very early on, basically after you get a project description, just to introduce the project, introduce their process, and we will introduce our process.
That's something that for certain projects, where the federal government is doing that process…. We're going to end up doing three public comment periods for those. In terms of local government involvement, they are typically invited to participate as part of our working group. They typically do participate, so we get that perspective coming to bear.
The working group is basically constructed very early on in the process and will run through to very late in the process, often just prior to referral to ministers. We will circulate our draft assessment report, for example, to working group members so that they can provide feedback on that.
So that's in terms of the front end of the process.
I'll defer to Michelle in just a second. But I do know that there are certain examples — and this is something I think is certainly worth exploring more in terms of best practice — where we've had very active local engagement, community engagement, in a project and there's a desire to be involved in the post-certificate part of the project — that we look at that.
One example I'm aware of is related to a project where First Nations were particularly interested in the monitor-
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ing aspect of the project. As one of the commitments for that particular project, the proponent committed to providing training in that regard. So they're actually actively involved in that part of it. That's an example. It's something that I think, at least in my mind, is worth exploring. Sometimes, you know, the best folks for keeping an eye on things are when it's in your backyard — right?
I don't know if you have anything to add, Michelle.
M. Carr: No, I would just concur with that. In the particular example that John is talking about, Tim Hicks, our manager of policy and project assessment, actually went out and met with the particular First Nation that's doing active environmental monitoring, independent environmental monitoring. They're interested in working with us further.
I just wanted to go back to an earlier question from Vicki around best practices. One of the things we're doing in developing our comprehensive program is we've solicited the expertise of a third-party consultant who's doing some research on our behalf of best practices of other jurisdictions internationally and across Canada. Specifically, Australia, the U.K. and the Netherlands we're looking at, as well as some jurisdictions in Canada.
One of the things I did in early September was present on the audit and the work that the environmental assessment office is doing at a cross-Canada meeting of environmental assessment administrators. They were very keen to see the work that we're doing. In some respects, we're leading the best practices in some areas, but we're also learning from our colleagues in other jurisdictions in Canada as well. So we're bringing that back in terms of how we're moving forward.
B. Ralston (Chair): Pages 18 and 19. I think, to my mind, this is the guts of the Auditor General's recommendations — recommending clarification of "post-certification monitoring responsibilities and compliance mechanisms."
What you say in that report is that there are no site visits. There was a program, 2002 to 2004, that's been terminated, and there has never been any enforcement action of a penalty, certificate suspension or cancellation.
I take from what you say that there were formal letters issued. I'd be interested in knowing how many. But my question is: is it realistic to expect that a compliance program can operate without site visits and without a form of enforcement that includes penalties, certificate suspensions or cancellations, given that there are 115 certificates issued and that they've been issued over the last 15 years?
To say that there has never been a penalty at any point suggests to me that there really is no compliance monitoring at all, and without those mechanisms, it seems to me the process is just merely academic and window dressing. I'd be interested in your comments on that and any response that there might be from the office.
M. Carr: Previously, for the most part, the compliance and monitoring took the form of required compliance and monitoring plans that were submitted to the office, and we would do verification and checking on that.
We have, as I mentioned, entered into a memorandum of understanding, or are about to sign off on that, with the Ministry of Forests, Lands and Natural Resource Operations to conduct compliance inspections on our behalf. Seven have occurred to date. Tim Hicks, the manager of policy and project assessment, has participated in a number of those.
The key thing that we'll be doing moving forward is working with the compliance and enforcement branch to plan out inspections on a yearly basis, to prioritize those inspections based on the types of projects and the level of risk. We will have boots on the ground, for lack of a better term, in terms of people going out and verifying and checking.
B. Ralston (Chair): When you say "boots on the ground," will this work be done, then, by the new amalgamated natural resource officer that's going to reduce the position to a single position from a number of ones in different ministries? Or are those people who have some training and some understanding of the act that they're administering?
M. Carr: There are two pieces. The two compliance and enforcement officers that we plan to have within our office will both work with our office, with our project staff, to prioritize, plan. They'll be receiving and tracking the compliance reports that come in. They will also be working with the compliance enforcement officers that are part of the Ministry of Forests, Lands and Natural Resource Operations.
I may caucus with Tim for a second to find out how many of those folks they have on the ground. But we have actually authorized the staff of that other branch, under section 33 of our act, to be able to enter into a reviewable or certified site and conduct inspections on our behalf. So we will be harnessing the power of that branch, in collaboration with our folks in the office as well. There will be a number of people.
B. Ralston (Chair): Just one last question. Is it accurate to say that there have been no formal site inspections since 2004?
M. Carr: I wouldn't say that's accurate, because we've undertaken seven since the audit.
B. Ralston (Chair): Seven since June of 2011, then?
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J. Mazure: I'm aware of inspections in addition to the ones that Michelle has mentioned. To use the Auditor General's words earlier, I think that largely in the past our process has been reactive rather than proactive. So in addition to the reports we get from the proponent, where we've heard from other agencies or letters from the public where there have been issues, we have done site inspections to go out and confirm what we've been told or what we're hearing from others. So in that sense, it has been reactive in the past.
But I think definitely since Michelle has joined us, there's a much more deliberate approach to doing so. I know because I counted the names or number of people that Michelle was referring to in the compliance and enforcement branch in the other ministry. There are 130 of them. So that's how many folks that branch has that we will be working with to look at the 115 projects that were mentioned.
Just to clarify, for some of those projects, in terms of reporting, we don't typically require reporting until they're getting fairly close to the point where they actually have plans to implement the project, and then just prior to construction and then in operation. Many of the projects that have been certified haven't hit that stage yet. Not to say that there's a good chunk in that 115 that have, but just to clarify.
B. Ralston (Chair): Just arising out of what you said, you mentioned complaints. The report says: "The EAO does not formally track these complaints." So do you now track them?
J. Mazure: I'll have to defer to Michelle.
M. Carr: Yes, we've been tracking them.
B. Ralston (Chair): Since June of 2011.
M. Carr: We've certainly been tracking the inspections and investigations and complaints that have come in since June. In terms of developing a formalized process for doing that, that's part of the work that we're doing in terms of developing our program.
J. van Dongen: I want to focus on recommendations No. 1 and No. 3. I think there's been a lot of good discussion — good questions and good feedback — on compliance and enforcement, but I always try and boil down what the nuts and bolts really are, moving forward. I think ensuring "that commitments are clearly written in a measurable and enforceable manner" is one of them. Then the third one — ensuring that monitoring responsibilities are clear and that there are compliance mechanisms — to ensure that we get the desired effect.
I've been a student of compliance and enforcement for a long time. I think it's very important, if you've got a law on the books or if you've got a policy or if you've got a commitment by a proponent, that they're absolutely enforceable and that they will be enforced in what I like to describe as an efficient and effective manner. I think that if we're going to be proactive about this, that really has to be designed into the approval and the commitments at the front end.
Following up on some of Ralph's questions — the idea of a couple of different agencies besides the EAO. There are always hazards, and despite what maybe looks obvious, my experience is that when you've got multiple agencies, you've got the risk of a lack of clarity about who's going to do what. Sometimes you have overlapping responsibilities, and sometimes, despite having MOUs, there are difficulties. I've experienced that.
I'd like to ask both the EAO and the Auditor General: wouldn't it be good practice, when you're designing commitments for a proponent to commit to, that you also design in at the front end what the authority is for monitoring and in fact enforcing it? What is the authority for that, and which agency is going to do it?
I think page 17, which the Auditor General cited, cites some very good examples of where language should be more clear, should be designed with enforcement in mind. It's sort of like the guys that design automobiles. Sometimes they're not thinking about the mechanic that has to fix it. I think in these commitments we need to be thinking about and designing in efficient and effective enforcement and designing in at the front end who is going to do it and what their authority will be.
I'd appreciate your comments.
J. Mazure: I'll let Michelle address it, because I think she's already indicated a couple of things.
I just want to be really clear. In the front end of the process the draft commitments that we put in front of ministers, should they wish to issue a certificate, would form part of that certificate. That is the responsibility of this office. We get input from these other agencies, but it's on us.
Now, within that — and Michelle can speak to this more broadly — we now have a table, because we've got a couple of projects going to be going to ministers within the next little while, that clearly identifies what the issue was, what the mitigation measure was, who will be enforcing it, just to be really clear. Some of those will fall to our office. Others will fall to other agencies.
The MOU that Michelle was speaking to really deals with post-certificate. As Michelle indicated, we are actually having the folks that will be enforcing the commitments looking at those commitments before we provide them to the ministers.
As you say, we want to make sure that what we've got there is something that we can rely upon and take action on if we have to.
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M. Carr: The only thing I would add is that as part of developing our program, I've struck a director-level committee to help advise us as we're developing these programs. I've got the experts on compliance and enforcement from across government assisting the EAO.
This is an issue that we are actively looking at in terms of ensuring both that the language is clear but that there's an adequate handoff per se. The folks from the ministries who may have been participating in the working group may or may not be the people that are then responsible for following up on the certificate commitments and conditions, so it absolutely is an area that we're focusing in on.
B. Ralston (Chair): Randy Hawes.
J. van Dongen: I just wanted to get the Auditor General's comments on that, Chair.
B. Ralston (Chair): Oh, pardon me. I didn't want to cut you off.
J. Doyle: Very quickly, one and three are excellent. But if you look at four, it also talks about the comprehensive compliance and enforcement program that should be in place.
One of the problems that we detected when we went through this work is that there are conditions that are associated with the certificate. Then as the project goes further on, there are permits that are issued by different ministries. There can be differences, conflicts, between those two documents.
What I think is probably required — only it doesn't come out as well as I would like in the report — is that if the red tape is going to be removed from this process, if it's going to be open and accountable and manageable, then there's got to be a congruency from the beginning right the way through to the end of the entire exercise, which includes compliance and enforcement programs, so that it is quite clear, and not frustrating, to proponents what it is that is going to be expected of them.
It's also got to be quite clear that the work or the activity that is going to be undertaken is clearly and carefully considered by the province, so that mitigation can be put into place to ensure that the best interests of citizens are in fact achieved.
In order to make this one smooth process, I think some work, which is not part of the report, needs to be done which actually says: how do you get one process to deal with this whole exercise in a way that ensures that the outcomes are what's expected from the beginning and that is clear?
At the moment we have, if you like, too many players in the process that have different views. By the way, the ministries, when they issue permits, have the right to put whatever conditions they want on those permits — but they just happen to be different than the environmental assessment office, in some respects. There is an example in the report where this has actually occurred.
So the answer to your question, Member, is actually recommendation 4 — which is yes.
J. van Dongen: It's a big exercise.
B. Ralston (Chair): Just before I go to the next questioner, we do have people waiting to do the next report, the Status of Enterprise Risk Management. It's quarter to ten. We're going to adjourn at 10:30. I have about seven questioners still on the list, so I think we can ask those people, if they wish, to stay.
But if you wish to leave, I don't think we're going to get to you this morning. I think we'll continue on with this report until the end. I've conferred with the vice-Chair, and I think that's our educated guess as to the time remaining. You're free to go if you choose to, and we'll be back in touch as to rescheduling your next appearance here. I apologize for bringing you here and not getting to your report, but that's the way it's gone this morning.
R. Hawes: I think what I'd like to do is just lay out what my understanding of this is, and then ask if I'm correct in what I'm saying.
First, the certificate is not a permit, as the Auditor has just said, but it points a direction. It's more of a high-level look, is my understanding, of: is this project feasible? Can it be done, mitigating and avoiding, and meet the environmental standards that the province of British Columbia has and all of the other factors you consider — social, etc.?
Once the certificate is issued, the proponent has to apply for various permits, often many permits. We are working to a one-window approach so that all of that permitting can be piled up, although it still goes through all of the separate considerations by the permitting people, who are experts in their field.
So the generalized nature of some of your comments, like avoid old growth as much as possible…. Surely the actual minutiae of the application — where exactly the lines of access, for example, would be — wouldn't be done at the stage that you're looking at. That would be done at the permitting stage, but the guidance for the permitting officers would come from your comments. They would make sure that, as much as possible, old growth is avoided — or as little as possible is having to be cut. That would be my understanding.
As the permitting process takes place, it does, in my view, clean up a lot of what I think have been referred to as fairly general comments in the certificate. They become very, very specific at the permitting stage, and in that permitting stage there are ecosystems people, forestry people, mines people — if it's a mining application, etc.
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Oversight is done on a going-ahead basis by the permitting offices and by, at this point, FLNRO. I am aware of some stop-work orders, for example, that have taken place through that process, not involving your office, the environmental assessment office, but rather the permitting side where there have been sometimes unanticipated things that have occurred, and there's a stop-work until mitigation can be put in place.
So it's not that you're issuing a permit or a certificate, and people just automatically proceed willy-nilly, and there's havoc wreaked upon the landscape. That's not happening at all, and there is significant oversight. I think what's missing, and maybe you can correct…. I am going to be looking for confirmation here that I'm correct in this.
It isn't that there's no oversight, because there is very, very significant oversight, but there hasn't been a link between your process and the oversight that takes place through the permitting side of government. There hasn't been the reporting back, and there hasn't been a requirement for that reporting back at the end of the construction of the project.
There is even ongoing monitoring by actually quite a number of agencies within government and outside government. The federal government, actually, does some monitoring as well. DFO often has people in the field, and they're doing their job as well. Oversight actually is being conducted.
When I read this and I hear the questions and some of the comments that are being made, it worries me that the impression is being left that you issue a certificate that's kind of loosey-goosey, and then proponents just rush off and do whatever they feel like doing. That's not the case. Am I correct in what I'm saying here?
J. Mazure: You covered several points there, so I'd like to address each of those if I could. I don't have it with me, but there was a chart that we included in our response to the Auditor General's report. Bear with me here, but that chart showed basically how the EA process fit into the overall approval process for a project.
At the very front end of that process often projects…. They'll be doing investigative work, which will require permits from certain agencies. Once they think they have a project and it triggers our act, or it's brought into our act by the minister, or the proponent opts into the process, then we take that information, and we run it through our process. If the project is certified, you are correct. This is noted in our act.
If a project has to go through our process, no other permitting agency may issue a permit until that particular project has a certificate under our act. But the act was written and contemplates the fact that there is permitting and licensing that will follow the EA process.
The point of the diagram was to indicate that at the environmental assessment stage — I like to use the term because I think it's applicable — we're basing our conclusions and everything on a conceptual design, if you will. Later on in the process, should the project be approved, those permitting agencies will require more detailed information, and that more detailed information will become available.
A proponent, if they get a certificate issued to them, then they will move on to the next stage, and they will begin to develop their plans in a more wholesome way. The permitting agencies will require a more detailed level of information, and yes, they will issue permits, and they are responsible for monitoring compliance with those permits. So you are correct in that regard.
What we have to be very mindful of is — you used the word "guidance," and this is a discussion we had with the Auditor General through the process too, because it was an issue that they raised — that in setting our certificate conditions and commitments, we cannot fetter a subsequent decision-maker.
We can't be too prescriptive in what we're saying in those commitments. It has to be measurable. We need to be able to enforce it. But if it's related to a line of business where a subsequent decision-maker is going to be making a decision, we have to provide for that. We can't fetter that decision-maker. There's a bit of an art to that. So that's important.
Let me get to the last point, I think, regarding oversight. I think what you said I generally agree with. I think that it's the linkages between our office and other agencies that that oversight may have been lacking.
The use of the word "oversight" here relates to our oversight of all the commitments that are in there. Some of those commitments will rely on other agencies and subsequent permitting, and they are our partners in that.
This is a discussion we had with the Auditor General as well. He said: "Well, you're focusing on outcomes here, in terms of adverse effects for a project." You shouldn't just be looking at our office. There are other players in this — the permitting agencies. But there are commitments and conditions that…. There are no other agencies that will be doing that.
For example, if we commit to having a First Nation accompany the independent monitor when they're doing inspections, there's no one else in government to rely upon for that. We have to enforce that. We have to make sure that happens. There's a mix there.
In terms of oversight, it's oversight of those commitments and conditions. Yeah, we'll have partners on some of them that subsequent permitting will happen, but there are others that it does fall upon us.
I think I've addressed everything.
R. Hawes: Just one last clarification, then, to what you said, and that was that you're looking at a conceptual proposition. If we were to require — which seems to be the inference in some cases here — that the proponent
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come with a completely detailed, engineered project so that you could give very, very specific approvals, would you not agree that the cost, perhaps in some cases tens of millions of dollars for a project that might not get approved at all, would deter investment totally in this province? Would you agree with that?
J. Mazure: I'm not going to comment, in general, on that. I do know that there are…. I mean, in terms of the types of proponents we work with, there are some that, you know, have financing issues. I hear about those when the projects that we have aren't proceeding as quickly as they would like.
That to me suggests that certain proponents…. If they're having difficulty meeting the requirements of the process as it exists right now, in terms of the type of information we require, it would suggest to me that if we required more detailed information, it would be a problem for them.
Now, what I can comment on is that where the federal government is involved, they typically — because their process is different than ours — do a…. It's the permitting agencies themselves that do a self-assessment that's coordinated by the Canadian Environmental Assessment Agency. But because they are a permitting agency — and DFO is a very good example — they will typically ask for more detailed information for the purposes of their environmental assessment than we do.
R. Hawes: Because they are issuing a permit.
J. Mazure: Yeah. And from our perspective, this is a challenge. Where we do try to coordinate our reviews is that they will often require more detailed information than we do. Our argument is that we are not issuing a permitting-level decision. We're issuing an environmental assessment–level decision.
J. Doyle: If I could draw the committee's attention to page 15, which talks to the question that has just been raised, an assessment certificate is a legal document and the legal document that the proponent must adhere to for the life of the project. If you read through that section, it's quite clear that the expectation from the process is that there is a good deal of detail that goes into it, but there is a lot more that needs to be done later in regard to the issuance of a permit. So the process that was described by the member is described in that page.
Now, the key issue that I take out of this is that any conditions or commitments that may be in the certificate are legally enforceable. That's the requirement of the legislation, from my understanding of it. If you can't understand what the condition is because of the way it's worded, then it's not going to be legally enforceable, and that's one of the problems we were raising. So it wasn't an issue about whether or not more work needs to be done later, as in fact it should be as clear as possible at the point when the certificate is issued.
The second thing is that when the certificate is issued, it's the environmental assessment office's role and responsibility to ensure that those conditions and those commitments are adhered to for the life of the project. The point we raised there with one of the recommendations was that, in our view, that requires some kind of monitoring and enforcement program to ensure that that actually is occurring on a regular and timely basis as we go forward.
The last thing I'd mention, for the assistance of members, is that on page 24 of the report there are some examples of the monitoring responsibilities and compliance mechanisms for different parts of commitments. It also includes permits. You'll see there, for example — at the top half of the diagram — that some provincial agencies do issue permits of various kinds, and they then become the responsibility of those ministries or agencies to monitor. But you'll also see there that the compliance mechanism in regard to the environmental assessment certificate stays with the environmental assessment office on an ongoing basis.
The question is: what if there is a gap or a difference between a permit and a certificate? Well, my argument would be to go back and revisit the certificate and have a look to see if it's appropriate or to ensure that there are no major variances between the two documents, which I think is part of the oversight of transition from commitment to permit process, which is at the top of the page — the top part of that diagram.
So there's an interactive process that does take place. If there are conflicts between the two sets of documents, then I think there needs to be a mechanism which actually corrects that conflict so you don't have a proponent that's frustrated with one set of rules from one piece of documentation and a different set of rules or requirements from another piece of documentation. We're talking again back to a previous question about how to make sure that this is one process as we go through and that proponents aren't frustrated by the red tape that may exist.
L. Popham: I'd like to address the compliance and enforcement recommendation as well. We've touched on some of it, but I'm still not quite clear on what would lead to a certificate suspension or cancellation. Right now I'm sort of led to believe that is a value judgment rather than a strict guideline on when you would be suspended or your certificate would be cancelled, but perhaps I'm wrong. That's the first part of my question.
The next part of my question. The reviews have just started. How long would it have been since a project started — the length of time before a review, the longest length of time you can see? As you're still tackling
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the projects that need to be reviewed, what's the longest time that could have gone between a review and a certificate being issued?
M. Carr: Thank you for your question. One of the things we have been doing is working with… The Ministry of Environment has a specialized area that is on compliance policy, so the Ministry of Environment has an approved policy respecting compliance and enforcement. The environmental assessment office is looking at that policy and identifying which key components will work for us in terms of our specific components under our act as we move forward with looking at having more planned inspections, etc. As well, our act does provide the framework in terms of a scale of enforcement mechanisms that have guided us thus far.
Thus far, my understanding is that when we've had issues of non-compliance, we've been able to resolve those in a cooperative manner. But in terms of a specific policy, that's one of the things that we're actively working on in terms of implementing it so that it's consistently applied in every situation moving forward.
J. Mazure: If I could just clarify your second question. Are you asking how long it typically takes a project to get through to referral to ministers for decision?
L. Popham: No, I'm actually asking, I guess, the time span between a certificate being issued and a review — the longest time that could pass before you review a project that has had a certificate issued.
J. Mazure: In terms of how fast a project proceeds, it's really up to the proponent. I'm going to miss one of them, and I'll have to rely on Tim or Michelle for it. We typically require them to report out to us shortly in advance of construction. Then, once they're operating, we require them to report on a periodic basis.
I've nailed the two that actually come to our office. But even prior to construction and prior to coming to us to report, when they're developing their various environmental mitigation plans, we require those plans to be sent to the agencies that will be monitoring those.
That's typically what's built into the certificate and condition in terms of when they have to come, but I don't have a good sense on what the average length of time would be from the time a certificate is issued to a time that actually happens. That varies on economic conditions and a host of factors.
M. Carr: The other piece to that is that they may be getting permits from other agencies as well, which also have oversight in terms of ensuring compliance with subsequent permits, which often take into consideration the requirements that were set out in the EA certificate. So it varies by project.
L. Popham: I think what I'm asking, and I might not have been clear, is that…. In the Auditor General's comments he states that follow-up evaluations were not being conducted at the time of the report. My question is: how long could it have been from the time when a follow-up should have been done to when it's actually being done?
J. Mazure: Well, his conclusions were based on a sample of projects that he took. To be honest with you, it's been a while since we looked at that sample. It's something I'd have to get back to you on, in those specific instances.
Just in general, there's obviously some work we have to do for those projects that have already been certified. I mean, the sample that they took obviously identified some issues. That'll be a big chunk of the work that Michelle is going to be doing — to look at what has already been certified. We've got a bit of a backlog — I guess it's a way to characterize that — that we need to go back and look at.
L. Popham: Okay. Could I just do one follow-up with Ms. Carr? It'll be quick.
So that I have a better understanding of how the suspension or cancellation of a certificate would work — not specifically to a certain project but an example: what would lead to a suspension or cancellation? What's an example of why that would happen?
M. Carr: What I'll do is provide an overview of the sliding scale in terms of the different actions and different tools that we have, and then John will provide a specific example.
A key principle throughout is that we need to ensure administrative fairness when we're looking into responding to non-compliance. So where it appears that a proponent is non-compliant, the first thing we have is discussions with the proponent to seek to achieve compliance through notification and education around the certificate compliance requirements. That's the goal in any compliance management program — to focus in and address things at that stage.
If things are not resolved at that stage, we would then progress to writing a formal letter directing the proponent to comply with their certificate. The next stage would be recommending that the minister issue an order to cease and desist the non-compliance activity. The next stage is recommending that the minister issue an order to suspend or cancel the certificate, and finally that the minister would pursue any other such remedies as specified in the act, such as fines or imprisonment. Then John will have the example.
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J. Mazure: The action we'd be taking would be commensurate with the level of risk or the potential for an adverse effect coming out of that. This is just off the top of my head. This isn't based on any project that's been certified in our system. With — I'll call them run-of-river projects — small power projects, the key issue in those projects usually is leaving enough water in the stream to protect fish and fish habitat — right? In order to run a power project, they need to divert water. Working with DFO, we typically have strict commitments and conditions regarding the amount of water they will be able to take out of a stream.
You know, if we, through our inspections and such, determined that a proponent wasn't following the directions that were given with respect to minimum stream flow and continued to demonstrate that they weren't, that's a situation where I personally would be looking at suspending that certificate. It's commensurate with the level of risk and the potential for an adverse effect. I don't know if that helps you or not in terms of….
D. Horne (Deputy Chair): Thank you for your presentation so far. I have two questions, both of which are along similar lines. One is to the Auditor General, to start, and that has to do with the compliance side and your opinion.
When it comes to financial auditing and financial oversight, professional integrity is a foundation of that. Obviously, in dealing with these types of projects, site visits are one of the arrows in the quiver. But obviously, reliance on professional integrity also has to be something that we do indeed look to.
When it comes to the overall direction of compliance as we move forward, I would like basically both of your opinions as to…. How much can we and should we rely on professional integrity in this type of compliance investigation and ensuring that the proponents are indeed doing what they say and should be doing? And how much reliance should be played on site visits and strictly, basically, oversight?
J. Doyle: You're drawing the analogy, I think, between a financial audit function — which is basically an assessment of assertions made by management — and this particular situation. In order to answer that, you need to be fully aware of the different weight of evidence and how an auditor evaluates evidence.
Evidence that's provided from an independent objective source is rated more highly than evidence that's provided from a source which is dependent upon the outcome or the assertion. So what I would be doing is weigh up the evidence to see just how independent it is, where it's coming from, and what the relative checks and balances are to ensure that it's truly independent.
The second component about evidence is timeliness and relevancy and whether or not it's actually being received at an appropriate time and is totally relevant. I'm assuming those are fine and valid, regardless of who provides the information to the office.
The third component is that if you didn't actually do the work yourself — so if my audit team did not do the work — and someone else did the work, then I'm carrying a risk that in fact that work could be in some way inappropriate for me. How I mitigate that risk, how I came to that risk, is to actually conduct field site visits. So you'll find auditors in the financial audit world going to offices and actually trolling through the documentation on the ground, interviewing people at the place where the work is being done, asking questions — section 16 of my act, basically.
What we found here was that those site visits weren't occurring. So you feel like that control to lift the value of the evidence was not in place or not sufficiently in place. The second component was that on receiving documentation — and it's detailed in the report — there's a review as to the adequacy of that documentation. If it's accepted, then it's accepted. We didn't find necessarily a good deal of checking, if it was a financial audit, to see whether those numbers actually stacked up to reality and whether there was supporting information in regard to them.
Another thing that sort of sits in my mind is that sometimes the evidence that has been received — and it's an issue that was raised by a member previously — is actually written by experts who are being paid for by the proponent. Whilst there is nothing wrong with that per se, it fits in a hierarchy or a spectrum of evidence and how much we would accept from a financial audit perspective.
So it's a bit like the chief accountant coming up to me, looking me in the eyes and saying: "Everything's fine. You don't have to worry. Here's a cup of coffee. You can go now." You know, professional skepticism, which is the concept that I think you're seeking to get me to explain, and the weighting of evidence means that auditors need to go a little bit further than that.
The environmental assessment office is not an audit function, and I don't know whether they've adopted the same kind of principles in regard to the conduct of their reviews or audits — although I saw the word "audit" appear in one of the slides in the slide show that was presented. An audit, for me, means a very, very high level of assurance when it comes to the evidence that's collected. I'm pretty sure, at the moment, that if I were to go in and test that evidence against my criteria for an audit, we might have a long conversation around whether it was adequate or not, although it could convince people at the moment.
So I think drawing the analogy to financial audit actually means that more work should be done, and it's absolutely critical that there's a sample of in-depth audit work conducted on site as part of that regime.
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D. Horne (Deputy Chair): Do you want to comment?
J. Mazure: If the issue is regarding the use of qualified professionals in the post-certificate work, based on my experience…. I've been with the office for three years, and we've referred probably over 20 projects to ministers for decision. I don't have specific numbers, but typically, particularly on the environmental side, we have written into the conditions and commitments the use of an independent or third-party or at least qualified professional as an environmental monitor for environmental management plans.
If you were looking for specific numbers for certificates that were issued prior to my arrival, that would require some digging to determine that. But certainly, more recent practice has been to include that.
D. Horne (Deputy Chair): I was actually just looking more for what the Auditor General was…. In general, dealing with professional integrity…. Obviously, it's a cornerstone of the entire process. You know, it goes to some of the other questions of members earlier, and that has to do with the proponent actually paying some of the cost or a majority of the cost in this whole process.
Obviously, in relying on professional integrity, ensuring that we monitor…. We've talked before about monitoring done by other agencies, permitting agencies as well. In that overall process, the ability to rely on professionals and the professional integrity that they bring is obviously a real cornerstone to making sure that the proponents are actually paying the brunt of the costs.
Just one more sort of quick question, if I can, with your indulgence. That has to do with the effects and mitigating those effects and the slide that we had to do with and, obviously, overall with the compliance. That has to do with your approach and to mitigating effects and concerns as to whether or not a majority of those concerns you seek to address during the design phase or…. Basically, what percentage of them do you look to mitigate in the design of the project, and how many do you leave to, basically, conditions within the certificate after the project, requiring monitoring and assessment on an ongoing basis?
J. Mazure: This is largely determined by the information we require out of the proponent, through our application information requirements. It's very issue-specific, and it's very project-specific. This is why it's very key for us to have the right technical experts from other agencies — whether they will be providing permits or licences later on in the process for that project or not — to get their input to what information is required. But it is — I'll use the word — a conceptual design of the project.
So the information that's required there, once that's been identified, unless there are some surprises down the road, is the information that the working group will use to provide us with their advice and work with the proponent to identify what mitigation measures would be proposed. We also have the other parties that I mentioned — First Nations and the public — providing their comments and feedback on those measures.
It's a bit of an art, depending on the type of project it is. The information we have available allows us to make conclusions on significant adverse effects. Sometimes, particularly with key issues, we may have to go back and identify more information. Often, if an issue is identified where there's a lack of information, we do ask the proponent to go back. They may have to put meters in the stream for another season to actually give us enough information to feed into the modelling that's sometimes done, which helps determine effects. It gets very technical with some of those issues.
From my perspective, it's very important to have the other parties, the other provincial agencies around the table, tell us, "This is what we're going to require at a later stage, and can we rely upon that?" and for ourselves to actually make a conclusion right now — or do we need more information? It gets to the gap, I think, that's been kind of identified here.
I apologize. It's not the most clear answer, but this is a process and a business where sometimes it's really clear what the adverse effects will be. Other times the information is kind of lacking, and we have to rely upon modelling and then the expertise around the table.
K. Corrigan: Maybe what I'll do is just ask my questions. I have a couple of them, and I'll ask them, and then I can get answers.
My first question will be to the Auditor General. Given the timelines of when the audits were carried out, which is October 2010 to April 2011, reviewing a sample of projects certified between 1995 and 2010…. My first question will be to the Auditor General — whether or not the Auditor General believes that we now have the right plan for moving forward with the environmental assessment office, whether we're moving in the right direction and where the concerns are.
My second question. I was wondering if the Auditor General or Mr. Mazure has a comment on whether or not lack of internal resources within the office in the pre-certification process…. I'm thinking of institutional memory expertise as opposed to contracting out some of the work, and whether or not lack of that capacity in any way drives or impacts the deficiencies that were found in this report. In other words, was there a lack there that drove the deficiencies?
My third and final question came up from what the Auditor General just said a few minutes ago about the
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importance of independent evidence. Does the Auditor General have any concern that compliance and enforcement branches from other ministries — I think there are 130 officers — are the ones that are being tasked to oversee compliance and enforcement, as opposed to compliance and enforcement from the environmental office itself?
Those are my three questions.
B. Ralston (Chair): Just before you begin. We're going to adjourn in about three minutes. Members have other commitments at 10:30.
What I'm going to suggest is that I'll confer with the Deputy Chair as to how these answers might be given, whether they might be given in writing or whether we can reconvene briefly. I know I have some other members on the list to ask questions, although I think they've all asked. It would be their second time around.
I really do want to adjourn punctually because I know members have important commitments at 10:30. As I say, the Deputy Chair and I will devise a method to get answers to these questions. So we'll consider this portion of the meeting adjourned.
Before you leave, I do want to make a couple of comments. I just wanted to congratulate, and I'm sure the members will join with me in congratulating, Stuart Newton on being appointed as comptroller general — just in time for the meeting on observations on financial reporting. He's got his stars and is ready to answer the questions of members at that time.
Finally, we are going to have an in-camera meeting — it was raised last time — to deal with some matters which were raised in the committee. It's generally the preference and the preferred practice of public accounts committees not to meet in camera. But I'm assured that the matters that will be revealed there involve something in the nature of personnel, and therefore, it's appropriate that they be canvassed in that way. There will be a report, omitting any identifying details, to the subsequent meeting.
Thank you, Members, for a long morning, and unless there is any other business….
S. Chandra Herbert: Yes. I'd like to move a notice of motion relating to a motion I plan to bring on the Boss Power deal.
B. Ralston (Chair): So you're giving notice of your intention to bring a motion to do what?
Notice of Motion
S. Chandra Herbert: The motion would…. Would you request the wording of the motion?
B. Ralston (Chair): Well, just an indication of your topic area.
S. Chandra Herbert: It would be regarding a request to the Auditor General around reporting out on the process and decision to pay $30 million to Boss Power. It would be a request, not a direction.
B. Ralston (Chair): Thank you for your notice, then.
D. Horne (Deputy Chair): I'd just like to put forward…. Obviously, the Auditor General has been very open to us all, over the time, in that he will accept recommendations for things that members want to look into, at all times. So rather than having this, I think simply a letter to the Auditor General from the member recommending that he do that is probably the better way to be dealing with that.
B. Ralston (Chair): It's simply given as notice here. We're not going to debate it. I think you're correct that the Auditor General has been open, and certainly, his act requires him to receive suggestions and evaluate them accordingly. So that's open as well.
D. Horne (Deputy Chair): With that note, I move that we now adjourn.
The committee adjourned at 10:28 a.m.
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