Bill C-377 (Historical)

Climate Change Accountability Act

An Act to ensure Canada assumes its responsibilities in preventing dangerous climate change

The purpose of this enactment is to ensure that
Canada meets its global climate change obligations
under the United Nations Framework Convention
on Climate Change by committing to a long-term
target to reduce Canadian greenhouse gas emissions
to a level that is 80% below the 1990 level by
the year 2050, and by establishing interim targets for the
period 2015 to 2045. It creates an obligation on
the Commissioner of the Environment and Sustainable
Development to review proposed measures to meet the
targets and submit a report to Parliament.
It also sets out the duties of the National Round Table on the Environment and the Economy.

[Maurice Vellacott, Conservative, Saskatoon—Wanuskewin, SK]

You bet. Absolutely. For sure. That's crucial, Mr. Chair, and I endeavour to do that. I've got some pretty crucial key things, new insights for all of us here, in the remaining minutes that we have.

Budget 2008—again, we're contrasting this, the practical, pragmatic kind of approach that we're taking as a Conservative government, with Bill C-377, which Mr. Layton got together quickly and which needs some significant amendment.

The measured, thought-through kind of plan, the progress that can be made with new measures to strengthen and to ensure effective implementation of Canada's eco-action plan, provides funding actually to implementing regulations that will lead to those significant reductions in greenhouse gas emissions and improvements in air quality, and proposes additional incentives that will advance progress in cleaner energy generation and use.

It also improves Canada's capacity to enforce—

[Maurice Vellacott, Conservative, Saskatoon—Wanuskewin, SK]

Thank you.

Again, that cooperative approach is far and away the better approach, instead of just mandating things and hitting from the top down provinces like Quebec, or whatever province it has to be. I think the approach our government is attempting to take in respect of the provinces and in respect of their authority is the better approach.

My province is going to benefit in a significant way from clean air, and from the climate change funding announced by Prime Minister Harper.

Under the trust fund initiative, Saskatchewan will receive something like $44 million to support provincial projects. That results in real reductions in greenhouse gas emissions and air pollutants in the province. So money is being spent, as opposed to not knowing exactly what the costs will be and the dollars spent in Mr. Layton's bill, Bill C-377.

Some of the activities planned in our regulatory approach include continuing development of near-zero carbon dioxide emission electrical generation projects, and implementing measures to improve energy efficiency and conservation, including promotion and support for energy reduction by homeowners, businesses, farms, and communities. All of that is very commendable.

I was quite excited to hear the chair relate to me last week the good stuff he's done with solar power just recently, and how, I think, he now puts power back into the grid in Alberta as a result of that. So in his retirement years, I guess he has a little business going there and will do very well. In a significant way he is contributing to cleaning up the environment across the country, but particularly in his own home province.

So I think that developing and utilizing renewable and alternative energy sources, as he's doing, and as I want to do with geothermal--including biofuels, solar energy technologies that some others are doing, and doing effectively as well....

The regulations would continue to encourage us to lead efforts in carbon capture, including sequestration, which we talked about here, and particularly through the international test centre for carbon dioxide capture.

So the clean air and the climate change funding for Saskatchewan is part of a national $1.5 billion initiative to protect Canadians from the consequences of climate change and air pollution. Those initiatives will ensure that we protect our environment, that we clean up our air, and that we make real progress toward reducing greenhouse gases.

I believe in this different approach, as opposed to the one in Mr. Layton's Bill C-377, which is going to punish our province very significantly and very adversely affect us. If we take the approach our Conservative government is proposing, the regulations and regulatory approach we have indicated, we will implement this plan in a way that ensures our economy can continue to grow and prosper. In fact, these measures will bring economic benefits to some sectors. For example, Saskatchewan's forestry and agricultural sectors will benefit from the reduced impact of acid rain and smog. New industries, such as those that produce energy from renewable resources like the wind and sun, will also benefit and create jobs. So there is also something in terms of the economic opportunity there.

So I think this means, not only for Saskatchewan residents but beyond them as well, that tough regulations will have real and tangible health and environmental benefits for everyone, as well as positive economic benefits.

In Saskatchewan, my home province, where I advocate from and advocate for, these benefits are invaluable. They include cleaner communities and natural spaces; healthier children; fewer emergency room visits and fewer hospital admissions and premature deaths; and also, obviously, more sustainable natural resources.

So for the first time since Canada signed the Kyoto Protocol nearly a decade ago, Canada is going to be making meaningful contributions to the global effort to control greenhouse gas emissions. But strong actions like these, as opposed to the vagueness and the ambiguity of Bill C-377, come at a cost, and those costs, while manageable, will be borne, at least in part, by individual Canadians and their families.

We must all be prepared to do our part to bear that responsibility to get the job done for the generations ahead, but we have to make a start now. So we have that important role to play, and we can take significant measurable action in our own backyard, in my province of Saskatchewan. I think the citizenry is prepared to do that.

Climate change is a global issue. It requires federal leadership. However, the burden must be shared by everyone, including provinces, territories, industry, and individual Canadians from coast to coast.

I want to refer again, in terms of the contrast that we have in Bill C-377, to some of the very practical things we're doing. I want to refer as well to some of the Hansard records that somebody just took away from me bit ago, some of the good stuff on the record there in terms of the questions, in a few places, to Mr. Hogg, questions raised by Mr. Bigras and Mr. Godfrey, who is not here today, who had raised some issues. Maybe, in fact, I'll turn back to that in a moment as well.

Again, when you look at the suspect constitutionality of the bill before us and then you move on to something substantive, solid, and practical, as recent as yesterday in terms of some of the effect that we have here.... I just refer to a couple of places here.

Mr. Hogg was pretty plain. I think he was pretty clear in terms of the comments he made. Mr. Bigras had some good questions.

[Maurice Vellacott, Conservative, Saskatoon—Wanuskewin, SK]

It was getting a bit distracting, but I'll do my best to carry on here in the midst of that.

We need to take pretty seriously the air emissions in our province and our country and the effects of climate change. If we don't get ahead of that and deal with it in practical ways, it could be pretty serious for our province.

A warming climate is expected to increase both the number and the severity of thunder storms, heat waves, and drought that would cause damage to our crops and endanger life and property as well.

Going back to our plan, our regulatory framework, Bill C-288 I think would have been a much superior approach to be taking. We should have had some pretty good cooperation with that, instead of this Bill C-377, which wasn't properly costed and is constitutionally suspect. Others around the table are aware of that as well.

In our approach--as opposed to this Bill C-377, again--there were mandatory targets, real results. We don't see that here. And Mr. Hogg has pointed that out, the vagueness and the ambiguity of it.

In our approach, which would have been the better one to go with, reducing emissions of greenhouse gases, air pollution.... It's not a matter of choice for industry. You can't leave it up to them to decide if they want in or not. It is compulsory. It has to be. Our plan, our regulatory framework, would set that kind of compulsion, the mandatory targets for reduction of industrial greenhouse gases that cause climate change. Those targets were stringent and were going to be tightened every single year, so as a result we would start to see those absolute reductions. Again, with Bill C-377 we don't have that, we don't have the preciseness. It's vague, it's ambiguous, and it gives far too much power and too much reach in respect to its constitutional intrusion, as well, whereas these industrial emission targets, the ones from our plan, combined with other actions, practical actions announced to date to fight climate change, would put us on track for that 20% absolute reduction of Canada's greenhouse gases compared to 2006 levels by the year 2020.

I appeal to Mr. Cullen to look in terms of the seriousness and the practicality and pragmatism of those kinds of regulations. That would reduce the emissions of pollutants that cause smog and acid rain by up to 55% as soon as 2012--compared to 2006 levels. As well, I think when you're looking at a plan—and that's not at all anywhere here in Bill C-377—you need to have flexible tools for compliance. You don't get there overnight, but you need to make it mandatory, compulsory, and allow the kinds of creativity--I guess I would say--and the flexibility in terms of the tools of compliance to get the job done.

There's no doubt that in any of these measures, and in terms of our regulatory measures, as well, there would be a period of adjustment for industry, because this is pretty hard stuff, it's tough stuff, but it's required. You need then an achievable plan that does not sacrifice jobs in Saskatchewan.

The concern with this particular Bill C-377 is that in fact we will have significant economic hurt and impact. Counter-intuitively, if you will, we'll hurt the economy such that we won't be able to do the good things in terms of the environment, the clean up, and the good clean water, land, and air that we need.

By way of the regulatory regime that we were proposing, giving industry the flexible tools to meet their targets, companies being able to choose the most cost-effective way to comply--which includes making real reductions in their own facilities, taking advantage of emissions trading, and investing in new technologies--all of those things are within the basket of what they can do to get the job done and to meet their targets.

Companies will also be able to invest in a technology fund that will deliver greenhouse gas reductions, now and in the future. I think technology is pretty crucial to ensure that we make the progress against climate change, and the confirmed guiding principle of that fund is that it will not be used as a mechanism for the inter-regional transfer of wealth and resources. That's a big concern to us in our province.

Moreover, the provincial technology fund may be accredited as compliant as long as they meet the federal requirements. That fund will be used to finance further research on carbon capture and storage technologies that show a lot of promise in Saskatchewan.

I was very pleased about the progress we're going to be able to make as a result of the budget announcement yesterday of some $240 million for carbon sequestration. For my province, that was a major, significant step forward, not only for us but for our country. The benefits will accrue to elsewhere across this nation. Some critics might complain about the cost of these measures for Saskatchewan's industry, but they are more forward-looking measures. Some see the glass as half full and some as half empty, but we need to be looking for and recognizing those new opportunities in Saskatchewan. And it's come our way already in terms of the $240 million for carbon sequestration.

In some sectors, it's going to mean that industry will have to seize the opportunity to improve competitiveness by becoming more innovative. For Saskatchewan's oil and gas sector, that's the case. It will mean their developing and adopting cleaner technologies, and so be it. They do it, and the job gets done. The oil and gas industry--or as Mr. Layton likes to refer to it, big oil and big “ass”, I think that's what he calls it—in my province has thrived on competition. The entrepreneurial spirit along our border with Alberta, down in the south of the province in the Estevan and Weyburn area and across through Swift Current, as well, has driven its growth and has responded to challenges by finding those necessary innovative solutions.

In our regulatory regime, as opposed, again, to Bill C-377, Saskatchewan's electricity generating industry will also have to make changes, which we acknowledge, to achieve the required reductions by adopting cleaner technology to improve its competitiveness. And we'll probably be able to market that abroad, as well.

We've already seen those two sectors cooperate on an exciting and innovative project in Weyburn, where the carbon dioxide emissions from an electricity generating station that uses clean-coal technology are injected back into the ground. And as I said, with some $240 million in the budget yesterday, they can explore that and develop that even more. That's one of the largest climate change research projects in the world. It will help us understand how we can use underground storage of greenhouse gases to address climate change for our nation.

Some of the other measures that I think are significant and that, again, are omitted and not referenced in any way in Bill C-377, we're taking action on. Our approach is to reduce the emissions causing air pollution from cars, recreational vehicles, trucks, trains, and marine engines. We are taking action to use products, such as light bulbs, dishwashers, refrigerators, air conditioners, and commercial boilers, that use energy much more efficiently. We want to have efficient energy, because as a result, we'll have less wasted energy and less air pollution. I think we need to, without question, for any and all and for those that suffer allergies and those that have other air-related ailments.

We need to work to improve that, especially, as well, for indoor air. Saskatchewan is a cold enough province that a good many months of the year we spend inside. Consequently, for the air we breathe inside our homes, our places of work, our businesses, the malls, and so on, it's crucial that we also deal with that and have the regulations that will address that issue. In Saskatchewan we spend a lot more time indoors than they do, maybe, even in some other provinces. So actions to improve indoor air quality are very important for us. Again, this bill has nothing specific in respect of that.

I think the federal government needs to be doing that careful collaborative work with the provinces, recognizing the significant actions the provinces and territories are taking. They need to be acknowledged and credited or applauded for all they do to promote clean air and to address climate change. Those efforts and initiatives need to be encouraged.

Again, from the federal point of view, there is nothing referenced to this in Bill C-377; but we need to have that kind of partnership, that working together, with the provinces and territories to avoid duplication of effort and to ensure we get maximum environmental benefits with minimum administrative and cost burdens for the industry.

Mr. Chair, I think the noise level is getting up a little bit. I'm finding it a bit uncomfortable again.

[Maurice Vellacott, Conservative, Saskatoon—Wanuskewin, SK]

Exactly.

It is an issue in terms of the provinces, for sure. He says that the matter has to be “sufficiently distinct to distinguish it from matters of provincial concern”. In his view, it does not.

So, “the vagueness and breadth of Bill C-377 has the potential to reach deeply into many fields of provincial authority”. That's a concern for Saskatchewan. It's a concern for every province. It's obviously very much a concern, I would think, for Quebec, as well. It reaches into no end of areas of provincial authority.

“Without more careful definition of the kinds of regulations that are contemplated,” he says, “the bill is outside the national concern branch of peace, order, and good government.” His conclusion is that “the Parliament of Canada lacks the power”, clearly lacks the power “to enact Bill C-377, and if Parliament were to enact the bill it would be struck down by the Supreme Court of Canada”.

That was the respectful submission of Peter W. Hogg, a distinguished legal authority in our country.

I'll come back to that a little bit later, in terms of the constitutionality, because I think it's a big one. It's probably reason enough to do some further study of this and to get this thing right. But in its present form, even with many amendments, it needs to be started all over from scratch. I think that would be the better approach.

As a member of Parliament for just about eleven years now from the province of Saskatchewan, I saw the impact that this particular bill would have in a disproportionate way on my home province. It's a province that for the first time is coming out of the have-not status, coming to a point where we're doing well, and we will do so in more significant ways.

Compared even to places like Alberta, we have a greater breadth, if you will. We have uranium, we have diamonds, we have the potash there, and we've got fairly diversified. We could have a much more diversified economy than some of the other provinces. So that stands us in pretty good stead.

But I'm speaking of the impact of Mr. Layton's bill, and as I said once before in a meeting here, I'm not exactly sure what Mr. Layton has against that province, the birthplace of the NDP or CCF. The only thing I can figure is that it's because they've turned the NDP out on its heels just recently. As of last fall, we have a Saskatchewan Party government in place.

Typically, in our province of Saskatchewan, it's kind of ironic. Whenever things are looking up, looking a little better, we don't figure we can trust the NDP, the socialists, to carry it from there, so we turf them out. If we get down on our luck and things go unfortunate, then sometimes we'll allow them back for a short period of time.

That's the typical and historic pattern in the province of Saskatchewan. If things are looking up and looking good, we don't trust the NDP to steward that economy and steward things for the days ahead. We've just had to evict them, I guess, for the present, and they've been relinquished by a fairly significant majority.

Rather than the bill before us, we should go back to C-377, the common-sense approach that our government was taking, which is far superior and supercedes all of the attempt of the bill here by the leader of the NDP and advocated by Mr. Cullen here in this committee on his behalf. I think anybody who is fair and objective would want to admit that this government is serious about tackling climate change and about doing it in practical ways, in terms of clean water, clean land, clean air.

It's been in our budgets, it's gained significantly in the budget 2008. For my province, there is a big impact in terms of what we can do now by way of carbon sequestration.

The government is serious about tackling climate change and protecting our environment, cleaning up the air Canadians breathe today and down the road, as well as looking to the future, for my children, for my soon to be six grandchildren. We need that kind of thing, and we want to do that in Saskatchewan.

This Bill C-377 will simply not do that. In fact, as opposed to this bill before us, back in October 2006 we were already moving to regulate greenhouse gases that caused climate change, as well as air pollution. We've proceeded on that with the necessary implementation.

Some of the effects of climate change in Saskatchewan are pretty serious, pretty severe. That's why we need to move on it. I think all of us around this table would be agreed on that.

We're not immune as a province to the effects of climate change. Environmental impacts of climate change on Saskatchewan include challenges for agriculture. That's a big thing in our province. It's not as much a percentage of the gross domestic product for our province, but it's still significant. It's still a huge percentage. It will impact pretty significantly on agriculture.

My province of Saskatchewan is a fairly cold place sometimes, but too warm a climate would create droughts. We've faced some of that in the past and could in the future. It would also produce the kinds of conditions for weeds and insects, which would reduce crop yields, and cause some summer heat stress in livestock as well.

So that's a concern for those who farm, for my constituents, and for me. We've just bought a little farm there outside of Saskatoon, so we'll be directly involved in experiencing that, and hopefully not too many of the serious adverse effects of that.

The severe weather is something we need to take seriously in our province. A warming—

[Maurice Vellacott, Conservative, Saskatoon—Wanuskewin, SK]

Mr. Laforest said:

What Parliament is doing...is making provision for carefully tailoring the prohibited action to specified substances used or dealt with in specific circumstances. This type of tailoring is obviously necessary in defining the scope of a criminal prohibition, and is, of course, within Parliament’s power.

This passage makes it clear that, in a complex area like the environment, there can be some administrative discretion in the creation of criminal offences, but the role of the discretion has to be “carefully tailored” by Parliament, meaning that has to be defined and limited by the act.

He goes on to say:

Based on this ruling, it is my opinion that the provisions of Bill C-377 are not carefully tailored in a fashion that could be upheld as a criminal law.

This is where we're getting to the unconstitutionality of it.

It is true that the Bill, by s. 12, provides that the contravention of a regulation is an offence punishable by fine or imprisonment. But the regulation-making power is so broad and vague that any prohibition in the regulations is left by the Act to be designed by the executive within the ill-defined limits set by s. 7 (described earlier in this opinion). The range of conduct that contributes directly or indirectly to the emission of greenhouse gases is vast. Under Bill C-377, it is all subject to regulation, depending entirely on the discretion of the federal cabinet. From the Act it is impossible to discern what conduct the federal cabinet will actually decide to prohibit. Indeed, even the amount of any penalty is left to the federal cabinet: by 12, any fine or imprisonment for breach of the regulations is “as prescribed by the regulations”.

Then he says:

In my opinion, Bill C-377 does not contain a “carefully tailored” prohibition or penalty of a kind that would qualify as an exercise of Parliament’s criminal law power. The Bill would not be upheld by the Supreme Court as a criminal law.

Then under the section of peace, order, and good government he says:

The Constitution Act, 1867, by the opening words of s. 91, confers on the Parliament of Canada the power to make laws for the “peace, order, and good government of Canada” (pogg). The branch of that power that can authorize environmental legislation is the “national concern” branch, under which Parliament has authority to make laws on topics of national concern.

He then says, as Mr. McGuinty will remember:

In R. v. Crown Zellerbach (1988), the Supreme Court of Canada upheld the federal Ocean Dumping Control Act under the national concern branch of pogg. The law in issue prohibited ships from dumping any substance into the sea without a permit. The Court upheld the law, taking the view that marine pollution was a matter of national concern that was distinct from matters of provincial jurisdiction and beyond the capacity of the provinces to control. But, as in Québec Hydro, the Court was narrowly split, in this case four-three. The split was over the requirement of the national concern branch that any matter of national concern had to have “a singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern”. For Le Dain J. speaking for the majority, the topic of marine pollution did have sufficiently ascertainable limits to meet this requirement of distinctness. For La Forest J. speaking for the dissenting minority, the topic of marine pollution was not sufficiently distinct, because it could lead to federal regulation of industrial and municipal activity, resource development, construction, recreation and other matters that contribute to marine pollution but are within provincial jurisdiction.

In Crown Zellerbach, the majority upheld the law, but the issue of difficulty was the requirement of distinctness. Although the law merely prohibited dumping at sea, the split of the Court made clear how close the decision was. In the case of Bill C-377, no attempt has been made to place limits on what Parliament can do to reduce greenhouse gases; the Bill appears to authorize any regulation that would have the effect, direct or indirect, of reducing greenhouse gas emissions. On the face of it, the Bill represents an assertion of federal authority (coupled with a massive delegation to the executive) over a huge range of matters that are now within provincial jurisdiction. While there can be no doubt that the reduction of greenhouse gases is a matter of national concern, legislation has to be drafted that focuses on a distinct matter, such as industrial air emissions, to have any prospect of being upheld by the Court under the national concern branch of pogg.

Of course, “pogg” is peace, order, and good government.

In my opinion, Bill C-377, while clearly directed to a matter of national concern, is too broad and sweeping to satisfy the requirement of distinctness that the Court has imposed as a limitation on the national concern branch of pogg. The Bill would not be upheld by the Court under that head of federal power.

He then gives his conclusion with respect to his perception of the unconstitutionality of Bill C-377:

The constitutional problem with Bill C-377 is that it leaves the reduction of greenhouse gas emissions solely to a regulation-making power vested in the executive. The only direction given to the Governor in Council as to the nature of the regulations is that they must be “to carry out the purposes and provisions of this Act” and “to ensure that Canada fully meets its commitment under section 5 [to achieve the targets for reduction of emissions]”. This extraordinarily broad and sweeping regulation-making power purports to authorize any regulation that would have the effect of reducing greenhouse gas emissions. Such regulations could reach into every area of Canadian economic (and even social) life. The Bill enacts no restrictions as to the kinds of laws that are contemplated or the kinds of activities that can be regulated. Such a sweeping grant of authority to the executive is unprecedented outside of wartime—and should be a matter of grave political concern quite apart from constitutional issues. However, the constitutional issues are enough by themselves to defeat the legislation. Bill C-377 is outside Parliament’s power over criminal law, because that head of power, in addition to a criminal purpose, requires a prohibition and a penalty. If the prohibition and penalty are to be delegated to the executive to design and enact, the delegation must be “carefully tailored” so that Parliament at least provides the guidelines for the creation of the new criminal offences. Bill C-377 provides no guidelines of any kind. Bill C-377 is outside Parliament’s power over criminal law, because that head of power, in addition to a criminal purpose, requires a prohibition and a penalty. If the prohibition and penalty are to be delegated to the executive to design and enact, the delegation must be “carefully tailored” so that Parliament at least provides the guidelines for the creation of the new criminal offences. Bill C-377 provides no guidelines of any kind. Bill C-377 is also outside Parliament’s power over peace, order, and good government, because the national concern branch of that power authorizes laws relating to a matter of national concern only if the matter is sufficiently distinct to distinguish it from matters of provincial concern

So I would think that my Quebec colleagues, Mr. Lussier and Mr. Bigras, would be particularly concerned about this, and particularly that last part, where he judges it to be....

Pardon?

[Luc Harvey, Conservative, Louis-Hébert, QC]

We are talking about the possibility of sending industrial production out of Canada. When we invite witnesses here, it is not just to give them a free trip and a lunch. We are politicians, not scientific experts. We bring the most competent people we can to discuss these matters. Unless we are bringing witnesses here just to pass the time, I think that we should be more aware of what is going on and, above all, of what they are telling us.

The "blues" tell us that we are going to cause ourselves problems if all we do is export our manufacturing, that is, Canada's industrial production, without protecting it or knowing the true costs. If we ship our manufacturing out of the country, not only do we just move the problem somewhere else, we make it worse. Nor will we have solved the greenhouse gas emissions problem because, after all, emissions from outside Canada affect the climate inside Canada. They play a significant role.

It seems to me that Bill C-377 causes problems both constitutionally and in application. We presently have a law that seeks a 20% reduction in greenhouse gas emissions by 2010. Not only has this been tabled, it has been passed and costs have been calculated for manufacturing, for all Canadian production and for industry as a whole. The calculations were thorough.

I find it hard to believe that Mr. Jack Layton came here to the committee to table Bill C-377 and blithely told us that he had no idea what it would cost. For someone who aspires to be prime minister, that is beyond disrespectful. Earlier, Mark used the word hypocrisy. I am disappointed that someone who wants to become prime minister can table a bill with so little regard for its effects on the Canadian economy. Honestly, it makes me sad. He went so far as to say that it was the government who should be calculating the impact of his bill.

Then, Ms. Donnelly tells us about the costs reaching 25% of the gross domestic product, using present economic models. I have talked with economists, that is to say, to officials who are responsible for budget projections, about what effect a bill should have. It seems that the financial models used by Ms. Donnelly are well recognized and they show that 25% of gross domestic product should be calculated as the effect of meeting the objectives of Bill C-377.

At a cost of 25% of gross domestic product, Saskatchewan would have to assign 99% of its gross domestic product to BillC-377. The NDP should have the sense to wait until at least one economic study has been conducted. I am not saying that we should conduct that study. If we did, you would want no part of it. We should find an economic study that everyone recognizes and accepts in order to determine whether it is or is not valid.

During question period, one of the things that people wanted was a budget for families, money for everyone, especially to protect the manufacturing industry. You still brought up a number of matters related to the budget today. As to Bill C-377, I am not saying that we should accept what Ms. Donnelly said lock, stock and barrel, but I am in favour of finding an acceptable way to calculate its impact.

Passing a bill that requires us to reduce our greenhouse gases by 25% below 1990 levels, or, in other words, to reduce our present emissions by 50% by 2020, in 12 short years, that is, is simply not reasonable. I ask that we agree to find someone who can calculate the precise costs of Bill C-377, so that we are in a position to make an informed decision.

We asked witnesses to come before this committee. We also asked for advice, and the most significant advice that we received was to calculate the costs that would be incurred. I think that everyone would benefit from that. This document we have here has been published. We are aware what a reduction of 20% by 2020 means because of the act now in force. As to health, we know that it costs $6 billion annually to care for people with respiratory problems due to greenhouse gases, smog, and other things like that.

I would ask Mr. Cullen to move that we officially ask an outside, independent group to cost out this bill before we go any further. I am not talking about whether it is constitutional; that is another issue. At least we would have some answers. I think that everyone is looking for answers. The Liberals have come here today with a list that exceeds Kyoto targets by 33%. They are no more stupid or more intelligent than anyone else; this is a pretty difficult topic. The challenge is not just Canada's, it is worldwide. So it affects Europe just as much as it affects the other countries of the world. The challenge is significant.

When our Liberal friends signed the Kyoto Protocol in 1997, I do not believe that they expected that, about ten years down the road, we would be so far from meeting the protocol's objectives. Setting objectives means incurring costs. We know that the world economy is undergoing major changes. There is talk of a significant global recession spreading both from the United States and from Europe. At the moment, we are all going through an economic slowdown that is not only major, but it is also predictable. Since the mortgage crisis, in fact, everyone has been expecting problems in industrial production and manufacturing. All this should be quantified. I believe that it would be wise, and would constitute due diligence for the members of Parliament around this table.

Thank you very much, Mr. Chair.

[Mark Warawa, Conservative, Langley, BC]

Thank you.

I appreciate the concerns expressed by Mr. Cullen. I was actually just about ready to quote Mr. Layton, so I'd like to continue to do that. He said, in his testimony, “I think of the people who thought about connecting one end of the country to another with a railroad.” This is an analogy he used to help us understand what his vision was for Bill C-377. He went on to say:

Do you think they had it all figured out as to how they were going to pull it off? Do you think they had figured out how they were going to pay for it all? Did they do it perfectly? The answer to all those things would be no, but they had a dream about where they wanted our country to be, and they took on the impossible and they focused on it.

What Mr. Layton has admitted is that he has no idea how it's going to be paid for. He has no idea on the substance of the bill. He even describes it as an impossible dream. And the Liberals break out in song.

We heard in testimony after testimony that this bill should be costed, and there should be an impact assessment. We heard that from every group of witnesses, including Mr. Layton himself. He said that the government should cost it.

The next witness after that was Mr. Bramley, and Mr. Bramley also said that it should be costed. When he was asked about it being costed, he said, “To my knowledge, that hasn't been done, and it needs to be done”, referring to the costing.

And then it was actually Mr. Vellacott who said, “So you personally have not done any of the economic modelling that specifically focuses on Canada?”, to which Mr. Bramley answered, “No”.

So we're not making up anything here. It's well documented in the blues that the bill hasn't been costed. It's void of substance. It will not stand a constitutional challenge. I believe it was even a member from the Bloc who said that this bill needs to be totally rewritten.

One of the greatest hypocrisies that the NDP could put on us is if they wanted to substantially amend their own bill, because a substantial number of witnesses who came before our committee said it was fraught with problems, and I've just touched on a few. So they brought to committee a bill that is poorly written, not costed, which will not stand up constitutionally, and now they want to totally rewrite the bill.

The motion I made is relevant because I think the bill needs to be totally redone before it comes back here.

I personally believe that Canada does have a turning-the-corner plan, which is supported by Parliament. It was part of our Speech from the Throne, and it was supported by this government and this Parliament. That is the Canadian plan, the turning-the-corner plan, which has very definite targets of absolute reduction of 20% by 2020, and 60% to 70% reductions by 2050. And those are the toughest targets in Canadian history.

During the hearings on Bill C-30 the NDP tried to write in medium- and long-term targets that appeared in Bill C-377. The Liberals opposed them by saying those targets were too tough. You can check the record.

The fact is, I have a quote from Mr. McGuinty here saying,

I think we'd have some difficulty, Mr. Chair, in increasing this number for fear that it would not fit with so many of the achievable outcomes that we heard about from different expert witnesses.

And then he went on to say, “We do not accept the friendly amendment.”

That was on March 27 of last year in the committee studying Bill C-30.

I have another quote here, and it was from Mr. Godfrey. On March 27 he said,

Like previously, we certainly wish to be ambitious, but also we want to be realistic. But concern and prudence for giving ourselves a bit of room to manoeuvre, as we have done on the 2020 target, means that we can't accept this, much as we'd like to, as a friendly amendment.

He was referring to the amendment from the NDP. That was again at the committee studying Bill C-30 on March 27.

Yet four weeks later, on April 30 of last year, the Liberals voted to support those targets in the House of Commons. Do they now disagree with the targets that they wrote into Bill C-30? I'm not sure. There appears to be a flip-flop from the leader of the opposition and also from his environmental critic.

Mr. Chair, I want to talk about the NDP hypocrisy on the environment. Just what is the position of the NDP leader in short-, medium-, and long-term targets on greenhouse gas reductions?

Recently Mr. Layton and the NDP have supported two different positions: the targets they wrote with the Liberals into Bill C-30, which could have cost Canadian families and businesses 275,000 jobs and sent gasoline prices soaring to $1.60 a litre, and now even tougher targets on this bill that would harm the economy even further. The NDP are being hypocritical by supporting two different positions. When will they come clean with Canadians about their real position on greenhouse gas emission targets?

Mr. Chair, the turning-the-corner plan is the first time ever that the federal government focuses on mandatory requirements for industry to reduce greenhouse gases and air pollution. We will take immediate action by implementing mandatory targets on industry so that greenhouse gases begin to come down. The turning-the-corner plan takes us in the right direction.

Another relevant piece I would like to introduce is a letter addressed to you, Mr. Chair, from Sheila Fraser. This is in response to Bill C-377 and what the NDP did in drafting this poorly written bill. This is the response from Sheila Fraser:

I am writing to provide you with comments on Bill C-377, which I understand is currently before your committee. In preparing this letter, I have consulted with the Interim Commissioner of the Environment and Sustainable Development, Mr. Ron Thompson. Although we appreciate the confidence shown in the work of our Office by the drafters of the bill, we do have serious concerns with section 13. Put simply, this section would require the Office of the Auditor General of Canada to undertake two types of work that are inconsistent with both its legal mandate and accepted practice for Canadian legislative auditors. First, paragraph 13(l)(a) would require us to determine the likelihood of certain measures attaining results in the future. Our audit mandate is different and requires us to examine and report on what has happened, rather than what may or may not happen. Second, paragraph 13(l)(b) would require us to give policy advice to the Minister or the Governor in Council. This is inconsistent with our legal mandate and accepted practice for Canadian legislative auditors. Our role is to provide Parliament with objectively determined and credible audit findings. I hope that these comments will be helpful to you and your committee. I would be pleased to elaborate on them at your convenience.

I think that might be helpful.

I'd like to share with the committee a few of the other comments. As I said, I asked each group whether there should be an economic analysis on this, and every group said yes.

These are some of the comments that I have highlighted from Professor John Stone:

I certainly have been very encouraged by the words that I've heard from the present government, Mr. Warawa, of their intentions to tackle the issue.

He was referring to our turning-the-corner plan.

Of course, we need to cost whatever plans they have from whatever party we have and in whichever country we're talking about. That's only good public policy. I will just have to assume that whatever plans are presented to Parliament and to the Government of Canada and to Canadians are properly costed. Yes, I agree with you.

So there's another example of Dr. Stone saying that it has to be costed.

We've heard from Jack Layton that it wasn't costed and that he wants it costed. He's recommending that it be costed.

So we're really putting the horse before the cart by going ahead without it being costed.

I brought this up a number of times, Chair, that it should be costed, and yet we're moving ahead. They're wanting to move ahead. It takes time to do this properly, but no, there's not an appetite to do this properly. They want to greenwash this bill.

Dr. Stone went on and said the following:

I don't see that Bill C-377 is necessarily inconsistent with where our present government is going, nor indeed with the aspirational statements I've heard from other parties. My sense is that slowly—and I emphasize slowly—we seem to be coming to a consensus amongst parties in Canada that in fact this is an issue we cannot afford not to tackle. I've been encouraged by what the present government is saying in its levels of targets and the like.

So we have, again, support for our turning-the-corner plan. Parliament has taken a position that the targets of 20% reduction, absolute reduction, by 2020—and these are post-Kyoto, post-2012 targets—and 60% to 70% reduction by 2050 are realistic and achievable, and they have been costed. The position of Parliament is that this is the plan of Canada.

For the NDP to introduce Bill C-377, a bill that hasn't been costed, that will not stand up constitutionally, that has no policy attached to it.... These are just vague, meaningless targets. The bill has to be totally rewritten. We've heard that it would give the federal government sweeping and unlimited powers over the provinces, which would raise real concerns provincially and constitutionally.

So it's a poorly written bill. I think my motion that it not proceed, which would result in it going back to the House, is the right motion.

I look forward to other comments, particularly on the costing aspect and the constitutionality of this.

[Luc Harvey, Conservative, Louis-Hébert, QC]

Perhaps you are aware of the bill that has been tabled on that issue. It is Bill C-377, which asks for a 53% reduction by 2020. We asked Mr. Layton whether he had done any financial feasibility studies.

What do you think of that?

[Andre Turmel, Secretary, National Environmental, Energy and Resources Law Section, Canadian Bar Association]

Thank you.

Good afternoon, Mr. Chairman and all members.

My name is Andre Turmel. I'm a partner at the law firm of Fasken Martineau in Montreal. I'm going to address you in French in the following presentation.

Bill C-377 addresses Canada's non-compliance in implementing international treaty obligations, specifically in regard to climate change. The CBA Section is certainly concerned about the serious consequences of climate change, and about Canada's failure to implement the Kyoto Protocol as a breach of Canada's international obligations. However, we believe that Bill C-377 should not be passed in its current form. Rather than the proposed legislated targets, the CBA Section urges the government to take immediate steps to meet Canada's international environmental legal obligations to address climate change.

International treaties are the primary tool used by the international community to promote collective action on global environmental problems. Canada is a party to the Vienna Convention on the Law of Treaties, which provides in article 26 that, “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.” International customary legal norms from as long ago as 1938 recognize a duty among nations to prevent transboundary pollution and environmental harm.

More recently, there was the Teck Cominco case which was decided by a U.S. court of appeal. It ruled that the United States had administrative responsibilities with respect to a Canadian company that was emitting on American soil.

At this time, Canada is entering into an increasing number of international agreements addressing environmental issues. The CBA has urged federal, provincial and territorial governments to cooperate to implement these international agreements in a timely and complete manner, according to their respective areas of jurisdiction. Implementation of international conventions and obligations under international law is a matter of support for the rule of law.

I would now like to make a few comments about Bill C-377. This bill is intended to rectify Canada's non-compliance with the Protocol. It would introduce ambitious, and on the basis of current experience, likely unattainable, deferred targets. If legislated targets are to be adopted, they should be linked to, and coherent with current targets in international law. The existence of two, unrelated and incommensurate standards would likely create confusion as to the role of international law in domestic environmental law, and would downplay the importance of Canada's legal obligations under the protocol and other international treaties.

I would now like to list some of the legal consequences should Canada fail to comply with the Kyoto Protocol.

The protocol's Marrakesh Accords address non-compliance with article 3.1. The accord provides, in particular, that the enforcement branch of the compliance committee—that is how it is called—which is responsible for compliance, must ensure that Canada fulfils its obligations.

It must declare Canada to be non-compliant if it deducts from Canada's assigned amount for the second commitment period a number of tonnes equal to 1.3 times the amount in tonnes of excess emissions. It will require Canada to develop a compliance action plan including information provided in the letter that we sent to you. Finally, it can suspend Canada's eligibility to make emissions trading transfers under article 17 of the protocol.

The United Nations Framework Convention on Climate Change, the Kyoto Protocol dictating Canada's international environmental obligations and subsequent negotiated instruments within the framework of the framework convention are likely to remain the primary international legal structures to address climate change, including climate change impacts in Canada, after 2012.

While recourse by a country against Canada before the International Court of Justice is unlikely, domestic litigation against the federal government can be expected. Already, the Friends of the Earth have launched two cases against the Government of Canada with the Federal Court, one under the Canadian Environmental Protection Act and the other under the Kyoto Protocol Implementation Act adopted in 2007.

To conclude, Bill C-377 deals with a subject of profound concern to Canadians and to the international community. However, it would require an 80% target by 2050, a significantly higher target than is currently adopted by most countries, which generally require around 50 or 60% reduction targets by 2050. While high standards are desirable, if attainable, they should be linked to and coherent with target set out in existing international law. The targets in Bill C-377 are not.

We urge the federal government to take immediate steps to honour Canada's international agreements to address climate change before considering the legislated targets proposed in Bill C-377.

Thank you.

[Tamra Thomson, Director, Legislation and Law Reform, Canadian Bar Association]

Thank you, Mr. Chair and honourable members.

I will start for the Canadian Bar Association and then Mr. Turmel will conclude.

I'd like to thank the committee for inviting the Canadian Bar Association to appear with respect to Bill C-377. We appear today on behalf of our national environmental, energy, and resources law section, the members of whom represent a broad range of interests related to environmental law from every part of Canada.

The Canadian Bar Association is a national association representing over 37,000 jurists across Canada. Amongst our objectives are improvement of the law and improvement in the administration of justice. It's in that optic that the section has assessed this bill.

Mr. Turmel is the secretary of that section, and as a lawyer from Montreal, he specializes in energy and climate change law.

You have received a copy of our letter analyzing the bill, and I'm going to ask Mr. Turmel to address that in greater detail.

[Professor Peter Hogg, Scholar in Residence, Blake, Cassels and Graydon LLP]

The constitutional problem with Bill C-377 is that it leaves the reduction of greenhouse gas emissions solely to the regulation-making power vested in the executive. The only direction given to the Governor in Council as to the nature of the regulations is that they must be “to carry out the purposes and provisions of this Act” and “to ensure that Canada fully meets its commitment under Section 5”—the section on the targets for 2020—and there is a later target as well.

This extraordinarily broad and sweeping regulation-making power purports to authorize any regulation that would have the effect of reducing greenhouse gas emissions. Such regulations could potentially reach into every area of Canadian economic—and even social—life. The bill enacts no restrictions as to the kinds of laws that are contemplated or the kinds of activities that can be regulated. Such a sweeping grant of authority to the executive is unprecedented outside of wartime and should be a matter of political concern, quite apart from the constitutional issues. However, the constitutional issues are all that I'm concerned with, and they are, in my view, enough to defeat the legislation.

First of all, to take the two heads of power identified by Mr. Castrilli, Bill C-377 is outside Parliament's power over criminal law because that head of power—in addition to a criminal purpose, which it has, being the prevention of global warming and the protection of the environment—also requires a prohibition and a penalty. What the Hydro-Québec case said was that if any part of the prohibition and penalty is to be delegated to the executive to design and enact, the delegation must be “carefully tailored” so that Parliament at least provides the guidelines for the creation of the new criminal offences. Bill C-377 provides no guidelines whatsoever as to the criminal offences that would emerge from the regulation-making power of the Governor in Council.

To take the second head of power identified by Mr. Castrilli, Bill C-377 is also outside Parliament's power over peace, order, and good government because the national concern branch of that power authorizes laws relating to a matter of national concern—and of course the reduction of greenhouse gases is a matter of national concern—only if the matter is sufficiently distinct to distinguish it from matters of provincial concern. The vagueness—and this is basically the exact same point again—and the breadth of Bill C-377 have the potential to reach deeply into many fields of provincial authority. Obviously, the bill can deal with almost all human activity that contributes to greenhouse gas emissions.

So without more careful definition of the kinds of regulations that are contemplated, so as to make a distinct matter that the bill addresses, the bill is outside the national concern branch of peace, order, and good government.

My conclusion is that unless the bill is changed in the ways that Mr. Castrilli suggested in his closing phrases—and these would need to be quite radical changes—the Parliament of Canada simply lacks the power to enact Bill C-377. If Parliament were to enact the bill, it would be struck down by the Supreme Court of Canada.

That concludes my submission, Mr. Chair.

[Joseph Castrilli, Counsel, Canadian Environmental Law Association]

Thank you, Mr. Chairman, members of the committee.

As we noted in our pre-filed written submissions, the subject matter of Bill C-377 can be characterized as the reduction of greenhouse gas emissions so as to contribute to the protection of the global climate system and to curb the threats posed to it in Canada. The methods by which Bill C-377 proposes to address that subject matter are a combination of regulatory, economic, fiscal, and cooperative measures.

In the time available for our opening comments, I'm just going to focus on two heads of power: peace, order, and good government, and the criminal law power. I will also address briefly certain constitutional questions related to Bill C-377 arising from existing federal and environmental legislation.

With respect to peace, order, and good government, this, as the committee knows, is a residual power reserved to Parliament when a matter does not come explicitly within the classes of subjects assigned to provincial legislatures, or otherwise to Parliament. Therefore, reliance on it to uphold the regulatory limits or emissions trading authorities that are not really spelled out in Bill C-377 could have a major impact on provincial jurisdiction to act in this area, and therefore might not find favour with the Supreme Court of Canada.

However, peace, order, and good government would appear to be the best head of power to rely upon to uphold a more explicit emissions trading and offsets authority than exists in Bill C-377 at the moment, because such a regime might be better capable of being clearly ascertainable through the application, for example, of sector-by-sector measures, and therefore be potentially least intrusive of provincial jurisdiction. Peace, order, and good government would appear to be less likely to find favour with the Supreme Court as a basis for upholding the constitutionality of the regulatory limits authority of Bill C-377 under any circumstances because of the potential for major impact on provincial jurisdiction to act in a host of areas.

With respect to the criminal law power, in light of the Supreme Court of Canada decision in Hydro-Québec, the criminal law power would be the head of power most likely to uphold the constitutionality of the regulatory provisions of Bill C-377. This would appear to be the case even if the regime were complex so long as the bill was amended to make it clear that, like the Canadian Environmental Protection Act, the constitutionality of which was upheld in the Hydro-Québec decision, it is only addressing a limited number of substances--in this context, greenhouse gases.

Moreover, greater particulars would be necessary in Bill C-377 in order to determine whether, or the extent to which, the regime of regulatory limits--or emissions trading, for that matter--could be placed squarely within the line of cases decided by the Supreme Court since the mid-1990s that have upheld complex federal regulatory regimes under the criminal law power.

The last matter I wish to deal with very briefly is constitutional questions in light of existing federal environmental law. Bill C-377 is meant to be a stand-alone law and is silent on any relationship that might exist between it and the Canadian Environmental Protection Act, 1999, relating to substances causing or contributing to climate change. However, whereas CEPA 1999 lists in schedule 1 of that act--that list is known as “List of toxic substances”--the six greenhouse gases that are identified in the Kyoto Protocol, Bill C-377 is silent on which greenhouse gases it might apply to and how these substances are to be characterized.

In the circumstances, some reconciliation of Bill C-377 and CEPA 1999 should or could be considered. This could include making Bill C-377 a series of amendments to CEPA 1999 rather than a stand-alone statute. This would allow Bill C-377 to take advantage of the constitutional testing to which CEPA has already been subjected. This reconciliation also could avoid some of the jurisdictional confusion that might otherwise ensue if Bill C-377 were enacted as is, in light of the fact that greenhouse gases are already identified as toxic substances under CEPA 1999.

In the alternative--lawyers always like to have an alternative--and as we've suggested above, greater particulars should be considered in Bill C-377 itself if the preference of Parliament is to keep the bill as a stand-alone law. In this regard, I'd suggest three broad areas, and I suspect that in the questions that follow I will have a chance to elaborate: first, identify the greenhouse gases the bill applies to; second, define precisely the situations or activities where emissions are to be controlled or prohibited; and third, make the prohibitions subject to penal consequences.

I'd be happy to answer any questions the committee might have at the appropriate time. Thank you.

[Maurice Vellacott, Conservative, Saskatoon—Wanuskewin, SK]

Thank you, Mr. Chair.

Just off the top, I need to correct the record from Mr. Cullen here because our party's position was alleged incorrectly there. We have in fact committed to absolute reductions of 20% by 2020, just so our witnesses are well aware of that. But we do need to get everybody involved if global emissions are to go down. It's just so that we have the record corrected there.

I'd like to ask the question first to Vicki and then to James as well with respect to their particular spheres in their countries.

If a bill came to your parliaments, the European and the British, a bill like C-377 that we have before us today, a bill like that which was not costed, had no economic analysis, what would you as an adviser be recommending your parliament do with that bill?

Bill C-474--National Sustainable Development Act--Speaker's Ruling

[Olivia Chow, NDP, Trinity—Spadina, ON]

Mr. Speaker, it is critically important that we deal with the issue of having sustainable development. If Canada continues in the way it has been proceeding in the last 30 years, the climate change and greenhouse gas emissions will go sky high.

In the last 20 to 30 years there has been a dramatic increase of greenhouse gas emissions. We have heard a lot of empty promises. I recall in 1993 in the former Liberal government's road map, the red book, there was a promise to reduce greenhouse gas emissions by 20% by 2000. Of course, that did not happen. They went up by 25% instead of going down by 20%. We have lost a lot of time. However, that does not mean we should not take action on the environmental file.

We absolutely have to deal with the oil sands development. We have to look at putting a moratorium on oil sands development so that we can control our greenhouse gas emissions.

It would be totally unfair if our generation and the Conservative government did not take action on the environmental file, because we would leave a terrible environmental legacy for future generations. It would not be fair to our young people in Canada and elsewhere on the planet.

We have to deal with the oil sands development, because the majority of greenhouse gas emissions comes from that development, but we also have to deal with the whole question of the building code.

For years many provinces have been saying that it is really important for Canada to take a leadership role and define what is sustainable development.

In my riding in downtown Toronto a lot of condominiums are being built. Often ordinary Canadians, the folks downtown, ask why these new developments are not state of the art, and energy efficient. They want to know why are we continuing to build buildings that are not energy efficient and why we are not putting in solar panels or wind devices to capture solar and wind energy. The building code is a provincial jurisdiction. If we were to raise the point of energy efficient buildings with the territorial and provincial governments, they would say it is not being done because the federal government has not determined the guidelines for a green building, a building that is energy efficient.

There is a tremendous amount of buck passing between different levels of government. As a result any of the new housing that is being built is not necessarily energy efficient. There is a great deal of concern and desire among ordinary Canadians to live in buildings that are energy efficient.

There has been a lot of discussion regarding targets and goals. Instead of focusing on this bill, I want to talk about how we can lock the Bali targets into what the government does.

We need to have 80% reduction below the 1990 levels by 2050. We have to develop medium term targets of 25% below the 2020 targets. The world came together at the Bali conference and said that has to be done. We have to find ways to lock the government in, but this bill does not do that, unfortunately.

There is another private member's bill, Bill C-377. I hope the House will debate that bill because it certainly would lock in the government with specific targets.

With respect to targets and transparency, it is important to have a reporting mechanism. A progress report is needed every five years on how the government is performing. Within six months of a bill being passed it is really important that a road map be established. Also, if the government does not meet the targets we have to ensure there are offences and penalties in place. The other aspect that is very important is that there be regular reviews. There need to be independent outside coordinators to say that the government is performing and is on the right track so that the people of Canada know that the government is taking the right route to deal with greenhouse gas emissions.

Mr. Speaker, thank you for allowing me to talk briefly about the importance of sustainable development. I certainly hope that the government focuses on the environment as one of its prime priorities.

[David Sawyer]

Thank you. One of the observations was that the targets in Turning the Corner and Bill C-377 are not that far off. One is 35% off BAU in 2020, and one is 50% off BAU.

So my quick observation is that if someone is saying that the one target is going to reduce GDP by 50%, while the other plan is going to reduce it by 36%, I don't think those are credible numbers. I think most numbers indicate that at these deep targets, you're talking about an annual growth. You're dropping annual growth down in half or by three-quarters of a point or something. So it's sort of in the range of 1%, certainly well within the growth rate.

Again, that masks sectoral and regional implications, and there are issues there. But 45% seems crazy.