Bill C-16 (Historical)

Environmental Enforcement Act

An Act to amend certain Acts that relate to the environment and to enact provisions respecting the enforcement of certain Acts that relate to the environment

This bill was last introduced in the 40th Parliament, 2nd Session, which ended in December 2009.

Sponsor

Jim Prentice  Conservative

Status

This bill has received Royal Assent and is now law.

Elsewhere

All sorts of information on this bill is available at LEGISinfo, provided by the Library of Parliament. You can also read the full text of the bill.

February 1st, 2011 / 9:20 a.m.
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NDP

Linda Duncan Edmonton—Strathcona, AB

Very good.

Mr. Armstrong, I hear your issues and concerns. I didn't hear the same issues and concerns being raised when the Government of Canada brought to our committee their Bill C-16, which was an omnibus bill to amend the environmental enforcement provisions to make them more effective for the Government of Canada.

A very similar provision exists in the Canadian Environmental Protection Act under section 17. The experience has been, over the life of that act since 1984, that there have not been monumental requests for investigations. In fact, it has not provided overwhelming work or red tape. That provision and this provision in clause 14 are consistent with the North American agreement on environmental cooperation, under which Canada has committed to make provisions to enable citizens to be involved in the enforcement process and request investigations.

If you read on to subclause 15(2), it very clearly says that the investigation will not proceed if it is frivolous or vexatious. So that has already been thought through and dealt with.

On the issue of foreign entities, it's my understanding that in our last meetings we already clarified and redefined the provision on entities. So I'm not really sure where this issue of foreign entities arises. They would not be qualified to apply here, given the definition of entity in the bill. It's simply a provision that would extend the rights and opportunities accorded by the government under the Canadian Environmental Protection Act to other environmental statutes.

It simply provides for a consistent opportunity, where information comes to the attention of the public, to file a request for an investigation of a suspected violation. There is no obligation to proceed. It's in the hands of the department to take a look at it. If they're already proceeding with an investigation, then so be it. It's my understanding, from my years of working with enforcement officers, that they appreciate people bringing these matters to their attention.

This provides that if you want to bring a complaint forward to the government about an alleged violation, you have to do it in a very organized way and provide certain information. In fact, it avoids wasting time. Right away you provide this concise statement on what provision of the act you think is violated and your evidence supporting that.

I appreciate your input, but the provision already exists in law. The intention of this provision in my bill simply accords that right and opportunity across the board to all environmental statutes, which is appropriate and would be consistent.

February 1st, 2011 / 9:20 a.m.
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NDP

Linda Duncan Edmonton—Strathcona, AB

While I find the input by Mr. Calkins very interesting, last year the government brought forward Bill C-16, an omnibus bill to amend environmental enforcement provisions of federal environmental statutes. It appeared that there was a very careful review of all the enforcement provisions. In their wisdom they did not bring forward any amendment to rescind section 17 of the Canadian Environmental Protection Act, which provides for citizens to apply for the investigation of an offence.

So Mr. Calkins may feel this way, but it doesn't appear to be the position--

December 13th, 2010 / 3:45 p.m.
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NDP

Linda Duncan Edmonton—Strathcona, AB

I think it would say “to the extent of any conflict”, or it could be “any alleged conflict”. I don't know.

My suggestion is that we're close to it, and we might want to pursue more legal opinion and get back to that, maybe at the next meeting. That is what I'm suggesting. I think--I'm trying to find similar provisions, and I just haven't had a chance to find any--that is a good amendment. I appreciate that being brought forward. I think that should assuage some of the concerns raised by particularly the shipping industry. We certainly went through all of this when we did the amendments to Bill C-16 and endeavoured to bend over backwards to address any of their issues.

On the issue raised by Mr. Woodworth, I don't really see it as a relevant comment. That part of the bill is the purpose, and new subclause 6(2) is simply another stand-alone subclause that clarifies the purpose of the bill. I don't see necessarily that it's intended to clarify what will become subclause 6(1). I think it's a good clarification that has been tabled.

I understand, having talked to the drafters, that the numbers are automatically adjusted. I had asked that question myself to the drafters.

November 29th, 2010 / 4:45 p.m.
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NDP

Linda Duncan Edmonton—Strathcona, AB

Thank you, Mr. Chair.

I have a few brief comments. I don't think I want to belabour this. A lot of the witnesses dealt with these issues far more eloquently than I possibly could.

I do want to touch immediately on the issue of first nations. I in fact added the Assembly of First Nations to the recommended list of people to appear. Unfortunately, the timing just did not work for them. I certainly will, when I leave this meeting, encourage them to submit a written brief.

I was of the view that once we had ended our hearings, we would not be soliciting further briefs and witnesses. If we're still welcoming them, I'll certainly encourage those who have not contributed to do so. In fact, I've spoken to a number of people who said they would have happily submitted written briefs. They didn't realize it was still possible. So I'm glad to hear that the Conservative members of the committee want to encourage additional people to submit their views. I will do so as well.

The government has done a good job of endeavouring to present the viewpoints of one group of witnesses, and that was from industry. Not surprisingly, they are coming in and opposing a new environmental law, particularly one that would enable impacted communities to participate in environmental decision-making. I've dealt with this kind of opposition for 40 years, so it comes as no surprise. I fully expected that, although I have to say I was disappointed that.... There are a good number of senior representatives of industry in Alberta who, had they appeared, I think would have put forward a somewhat more measured perspective as they've been participating multi-stakeholder groups with people across Alberta for five decades.

So we've heard a wide array of viewpoints. Yes, we heard from some industry saying it would open the floodgates for litigation. On the other hand, we heard from a good number of witnesses saying, contrary to that, in both the U.S. and Canada there had not been a floodgate of litigation. We heard that most strongly from the Environmental Commissioner of Ontario, who very clearly said that the most valuable result of their provincial Environmental Bill of Rights is that it has encouraged and facilitated more members of the public to step forward and express their views on any new environmental law or policy.

Some intervenors, some witnesses, in fact called for even stronger expanded citizen rights, and were disappointed that my bill did not go far enough. Everybody has those proposed amendments before them. I did not choose to bring forward those amendments. I stuck to my guns and tried to keep the bill more measured. Of course, it's open to any member to represent all of the witnesses who testified. So far, we've only heard from a certain perspective.

I'm a little taken aback that the government would criticize committee members who've gone to the effort to sit down and actually submit amendments that they think will strengthen the bill. We may have different perspectives on these amendments when we finally get to them, but I respect them. I respect that they take the time with their colleagues and their staff to sit down and go through the bill and come forward with amendments.

I would have welcomed a number of friendly amendments, frankly. I would have happily accepted amendments, as the government has spoken to, on amending the “precautionary principle” definition. I would be happy to accept any amendments. But they've chosen not to strengthen the bill and provide that it be more measured; that's their discretion.

I want to thank the witnesses and our analysts for their hard work in expeditiously turning around that material and reviewing the various environmental bills of rights that exist in Canada. I note that pretty well every other environmental bill of rights uses the term “resident”, so I'm a little puzzled why we couldn't use that in the federal bill when in fact that's the term used at the provincial level. That remains puzzling to me, having heard the evidence and having received that useful information from the analysts.

On the matter of redundancy, far from being redundant, the bill simply makes rights consistent under all federal environmental laws that are already extended under CEPA, and in some cases extends them somewhat. In fact, that's what Bill C-16 did, and we all worked assiduously to assist the government in processing that bill, which they still have not seen fit to put into effect. And that's in fact what this bill does: it extends equal rights under whatever manner that we're reviewing in the environment.

As far as impacts to permits and revision of legal approvals are concerned, the government always has the power to revise any regulation, any law, any policy, any permit, any approval, any authorization. That's allowable under the law. All this bill does is to give the public a right to be at the table when those decisions are made, or to ask that such a review be undertaken.

I'm a little puzzled at all of this speaking on and on about the lack of certainty. In fact those in industry are themselves often calling for government to open up and relax laws. There's been a major campaign orchestrated from this country by industry for the United States to relax their environmental laws. So there are lobbyists on both sides. All this bill does is ensure that the public have a right. The reason it's in there....

Frankly, as the tabler of this law, I have to tell you that if there's anything in this bill that I would want to survive, it would be those provisions. I'm saying that for a very specific purpose. I had the pleasure of serving as the first head of law and enforcement for NAFTA's environment commission. That commission operates under the North American Agreement on Environmental Cooperation. Under that agreement, signed by Quebec, Alberta, and the federal government, as well as counterparts in the United States and Mexico, all of our Canadian jurisdictions who have signed on have undertaken to enable advance notice and opportunity for the public to be engaged in the development of any environmental law and policy. All this bill is doing is enacting that at a domestic level.

I'm kind of astounded that I haven't heard on this from the parties on the other side, who are usually great defenders of NAFTA—and the NAAEC is a side agreement to NAFTA.

So that's precisely what the bill does. It simply takes an international agreement and implements it domestically, which is the way the system works in Canada.

I don't want to elaborate any further. I think we have clearly heard that certain members of our committee like what they heard from industry. Probably there's a variety of opinions around the table about how they would weigh the evidence heard, and that's why we tried to hear from as broad an array as possible.

In closing, Mr. Chair, I want to move that this debate now be adjourned.

November 15th, 2010 / 4:20 p.m.
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NDP

Linda Duncan Edmonton—Strathcona, AB

Precisely. And isn't the purpose of this bill to ensure that those rights are available under all laws, certainly under the Canadian Environmental Protection Act? It's a very modern act, to the credit of the last few governments. They've bent over backwards to update and modernize that law.

But unlike Bill C-16, for which the government did an omnibus bill and amended a lot of statutes, they have not taken similar action in updating equal rights, for example, under the Arctic waters protection act, the Migratory Birds Convention Act, or the Fisheries Act. Is it not correct that the level of rights and opportunities is not the same under all federal environmental statutes?

November 15th, 2010 / 4:10 p.m.
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NDP

Linda Duncan Edmonton—Strathcona, AB

Thank you, Mr. Chair. And I'd like to thank the representatives for presenting on my bill.

Mr. Broad, your association, the Shipping Federation of Canada, and the Canadian Merchant Service Guild, the International Ship-owners Alliance of Canada, and the International Transport Workers' Federation all intervened against the government's enhanced enforcement bill, Bill C-16, did you not?

November 1st, 2010 / 4:15 p.m.
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Chair, Committee on Pollution and the Marine Environment, Canadian Maritime Law Association

John O'Connor

Thank you, Mr. Chair.

I am speaking to you from Quebec City. I was not able to be with you in Ottawa today.

I would like to thank the committee for allowing me to participate in this session by teleconference.

My name is John O'Connor, and I am the chair of the environmental committee of the Canadian Maritime Law Association.

Unlike some of our colleagues here, the Canadian Maritime Law Association has been around for many years, long before the federal Department of the Environment was commenced. In the marine field, as a matter of fact, one of the more important years was 1967. That was the year of the huge pollution, the very large oil pollution, in Europe that led to an international convention that is enforced today in Canada. This very important convention, which we call the civil liability convention, is enforced in this country. Canada is a member to this convention.

That was in 1967, and we, the Canadian Maritime Law Association, commenced our environmental committee immediately after that accident. We participated with the Government of Canada in the adoption of that convention, or at least in having input into the adoption of that convention, in 1969.

Canada did not join the convention, by the way, until 1989, but we did eventually become a member.

In the meantime, in 1973, Canada put together what was then part XX of the Canada Shipping Act, which was the very first piece of federal legislation in the marine field that had anything to do with civil liability and oil pollution.

Our committee has been around for a long time. I personally have chaired it for many years, and we have spoken to many bills. I must say that today is a fun experience for me. I'm always somehow in the group of the industry people who are usually speaking negatively about bills. Today, to hear all these committees speak positively about it, it's heartening. We too support much of the bill.

Our view is that many of the frustrations and problems that other areas of the environment have encountered are less present than in the marine field. In the marine field, when there is an unfortunate accident, or pollution, it's often very high-profile. The government does not sit back and do nothing. On the contrary, our experience is that not only is the Department of Transport very active but also even the Department of the Environment itself has taken a great interest in marine activities over the years.

Just as reference, you may think of Bill C-15 in 2005 and Bill C-16 in 2009. I was flattered to be asked to speak to those bills in both the House and the Senate, by the way.

I think what I would like to do, in the time I have, is simply underline that our association is in favour of anything that will assist in reducing pollution or improving the environment. The bill, then, certainly is not something we're against. However, there are three points I'd like to raise, because I think there are three flaws in the bill and I just want to bring them to your attention. Perhaps this committee will be able to address some of these problems.

First, you have to understand how the bill is divided. Clause 16 creates the environmental protection action. Clause 19 talks about remedies. Clause 22 talks about a true judicial review under the Federal Courts Act in section 18.1. Finally, clause 23 creates a new civil action.

It's a bit complex, the way they've done it, but I've heard people today talking about “patchwork” application. To my mind, patchwork application means that in different parts of the country there are--or there are not--different pieces of legislation available for use in environmental matters. But patchwork doesn't just mean horizontal. It can also be vertical. The problem we have in Canada is that with all the good faith we have in trying to settle these problems, we have built overlapping levels of legislation. This is a problem that the CMLA has spoken to before.

In other words, we adopted these international conventions, which are very strict and very clear. We tried to create clear and obvious remedies for when environmental problems involve vessels. Then we'd go and adopt Bill C-15 and Bill C-16, which give almost overlapping remedies without any clarity as to whether the convention should overrule or be overridden by the legislation.

I'm sure you know that Parliament is sovereign enough that if it enacts a piece of legislation, the fact that it may have adopted an international convention does not mean that the convention overrules. It's the contrary: Parliament is so sovereign that it can decide not to respect its international obligations, if it wishes.

Our view is that we should have some clarity on how the conventions and the legislation fit together. To do so, we have addressed three points.

The first is in clause 19 of the bill. Where we're talking about the remedies under clause 16, there seems to be something that I personally do not understand. Subclause 19(2) says, “If the Federal Court finds that the plaintiff is entitled to judgment”, it may “(a) suspend or cancel a permit or authorization” of the defendant.

Yet clause 16 clearly states there's only one defendant; ìt's called “the Government of Canada”. The Government of Canada does not hold permits, so I'm wondering how subclause 19(2) fits into the scheme. I think it may be a bit of an oversight, unless I'm misunderstanding something.

My second point has to do with clause 23. Clause 23 creates a civil action. The Canadian Maritime Law Association feels that the civil action that is created in the marine field is not necessary, for the simple reason that we already have civil actions under our CLC, the civil liability convention. Then they added civil actions under the environmental legislation that was amended under Bill C-16 and Bill C-15, notably the Canadian Environmental Protection Act, 1999, and the Migratory Birds Convention Act, 1994, both of which allow a civil action that seems to overlap the CLC action, which is enacted under the Marine Liability Act. Now we're adding a new civil action.

We do not speak out for any environmental section except marine: we don't believe it's necessary to have a new additional civil action in clause 23 for the marine world. But again, we're not speaking about other sectors of the environment.

We noted that subclause 23(3) clearly states that it “is not a defence to a civil action” that the activity was authorized by an act of Parliament or a regulation. This is in contradiction to the Ontario legislation and frankly seems a bit surprising. If there is federal legislation on the table saying you are supposed to or you are enabled to do something, and it somehow comes into a pollution question, at least in the marine field, it's difficult to understand how this would work. You would say that you're going to have someone taking a civil action and that you cannot set up a defence that it's permitted by legislation.

You will also notice that paragraph 23(3)(b) goes on to say “there is no reasonable or prudent alternative”. Unlike other sectors, you can think of certain pollution in the marine field that is unfortunately absolutely necessary. For example, a vessel is unable to have a propeller that's turning unless there is some lubrication of the propeller shaft.

It's provided for in federal legislation that this small amount of pollution is legal. It has to be. Otherwise, the ship would not be able to function Therefore, it's baffling as to how this would work. You would have someone saying you're polluting because of your propeller shaft. We would be saying that it's provided for under the legislation and under the international conventions and someone would say that's not a defence.

With regard to clause 23, we would suggest that it be limited to fields other than the marine field. At the very least, it would seem that subclause 23(3) goes one step too far.

I would like to conclude by talking about international conventions. We've heard people speaking about international conventions this afternoon, and in our submission to Parliament we have added a suggested clause, which is on page 3 of our submission. It's in English and in French. Simply, why not add a clause to this act stating that it is intended to complement our international convention obligations and rights, not to over-ride them? That way we would at least know that Parliament intends to have the international conventions it has adhered have priority over this act.

As a final point, I would like to say--and this is my own error, as I put this together in great speed and haste to try to get it to the committee in time--that on page 2, I refer to sections 54, 55, and 57 of the Marine Liability Act because I was looking at my own handwritten copy. But in fact that was changed with Bill C-7 in 2009 and should read sections 48 and 78. I apologize for that error; it is entirely my own.

The other thoughts I've expressed are those of my committee.

Once again, thank you for the opportunity.

December 3rd, 2009 / 12:45 p.m.
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Acting Assistant Deputy Minister, Environmental Stewardship Branch, Department of the Environment

Cynthia Wright

I can take that, Mr. Chair.

As the member is aware, with regard to the environmental damages fund more acts will now require payment into that fund when Bill C-16 is brought into force. We're aiming to bring that part of Bill C-16 into force in the spring of 2010. That will bring into force the changing of the actual fines and direction into the environmental damages fund, and some of the other measures that were passed as part of Bill C-16. The part that is yet to come is the part dealing with the creation of the alternative measures, which is another piece of legislation that has to be developed as part of that.

With respect to the funds that are in the supplementary estimates, there are some pieces of legislation that already direct funds into the environmental damages fund, notably under the Migratory Birds Convention Act. It's an authority that can be used under other acts, but the Migratory Birds Convention Act does direct to that fund.

This fund under supplementary estimates (B) is primarily for staffing people to improve the management of the fund. With the increase in fines and more acts using the environmental damages fund, we expect to have a larger fund to manage. This is to put the people in place and make sure they're trained to manage contribution agreements and to do marketing and awareness about it.

We're already doing a lot of work, not only with our own staff enforcement officers but with the judiciary in raising their awareness so that they are aware of what's coming in terms in higher fines and the direction into the environmental damages fund. The $150,000 is mostly directed at people and the training of those people.

This is a four-year funding and it will be ongoing past the four years at about a half-million dollars. The first four years is about $1.6 million. This is the beginning, for hiring the people, training them, etc. We'll be adding more people as we get to the ongoing level at about a half-million dollars.

December 3rd, 2009 / 12:45 p.m.
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Conservative

Peter Braid Kitchener—Waterloo, ON

Thank you very much, Mr. Chair.

I appreciate the opportunity not to close today. My arm was starting to get sore, as the closer.

I thank all of our officials for being here this afternoon.

I wonder if I could start with a question from the supplementary estimates. There is an amount of $184,000, I believe, with respect to funding for the environmental damages fund. I have a couple of questions with respect to that amount and the fund itself.

Could you start by clarifying what the $184,000 funding is for? Could you update us and clarify whether this is the new Bill C-16 version of the fund that is now in effect here? Third, have any fines been assessed under Bill C-16 as of this point?