Bill C-469 (Historical)

Canadian Environmental Bill of Rights

An Act to establish a Canadian Environmental Bill of Rights

This enactment establishes the Canadian Environmental Bill of Rights whose provisions apply to all decisions emanating from a federal source or related to federal land or a federal work or undertaking. The purpose of this enactment is to
(a) safeguard the right of present and future generations of Canadians to a healthy and ecologically balanced environment;
(b) confirm the Government of Canada’s public trust duty to protect the environment under its jurisdiction;
(c) ensure all Canadians have access to adequate environmental information, justice in an environmental context and effective mechanisms for participating in environmental decision-making;
(d) provide adequate legal protection against reprisals for employees who take action for the purpose of protecting the environment; and
(e) enhance the public confidence in the implementation of environmental law.

[Bernard Bigras, Bloc, Rosemont—La Petite-Patrie, QC]

But do you agree that under the Ontario Charter, there are quite a few more limitations than under Bill C-469, even though the spirit of the legislation is essentially the same? We recognize that the spirit of the legislation is the same—a process open to the public, the ability to bring civil actions—but, ultimately, the Ontario Charter contains more limitations than Bill C-469.

[Gord Miller, Environmental Commissioner of Ontario]

It's a pleasure, Mr. Chairman, to be here. In fact, I'm really pleased to appear before this committee, because the Canadian environmental bill of rights reflects many of the experiences we're had in Ontario with our Environmental Bill of Rights.

As the Environmental Commissioner of Ontario, appointed by the Legislative Assembly of Ontario, I'm responsible for monitoring and publicly reporting on the government's compliance with Ontario's Environmental Bill of Rights, or, as we call it, the EBR. As Environmental Commissioner for over 10 years, I would like to share some general comments based on my own experiences with Ontario's EBR for your consideration on the purposes of the CEBR, just by way of general comments.

I believe the proposed CEBR has the potential to become an important and positive piece of legislation. Since coming into force in 1994, Ontario’s EBR has helped to increase accountability, transparency, and public participation in environmental decision-making and ultimately improve environmental protection in the province. In my view, Bill C- 469 has the potential to provide many of the very same benefits--i.e., improved accountability, transparency, public participation, and environmental protection--on a federal level.

In regard to examination of bills and regulations by the commissioner, the proposed CEBR would require the Auditor General, through the Commissioner of the Environment and Sustainable Development, to examine all proposed bills and regulations to ensure consistency with the purposes of the CEBR. Although similar provisions in Ontario’s EBR require me to review and comment on compliance of government decisions with the provisions of Ontario’s EBR, the ECO--my office--has provided an important independent and impartial voice in the public discourse on environmental issues, helping to pave the path for improved future environmental decision-making.

On the point of access to information and public participation in environmental decision-making, the proposed CEBR would require the federal government to provide information to the public on environmentally significant decisions as well as provide a right for the public to participate in environmental decision-making. In Ontario, the high level of public engagement in environmental decision-making under the Ontario EBR has been one of the greatest successes of the statute. Through the use of a dedicated web-based environmental registry, each year provincial ministries now post thousands of public notices relating to proposed and final environmental decisions, including convenient links to background documents. Through this same registry the public can provide informed comment, which is considered by the ministries in their final decision-making.

By posting proposals for new environmentally significant acts, regulations, and instruments on the environmental registry for public notice and comment, the government has increased transparency and accountability in its decision-making, which has resulted in improved environmental decision-making, and in many cases, greater public buy-in to government decisions.

While the proposed language of Bill C-469 includes the key components of public engagement--i.e., access to information and the opportunity for effective public participation--I strongly encourage the use of a single dedicated registry, such as is used in Ontario, to maximize public access to government proposals and decisions, as well as mandatory minimum standards for consultation.

On the point of the right to request a review of a federal policy, regulation, or law, the proposed CEBR would provide a right for a member of the public to request a review of a federal policy, regulation, or law. Ontario’s EBR includes a similar right, but requires that two applicants request a review. I believe that requiring the collaboration of two applicants encourages thoughtful, well-documented applications.

In Ontario approximately 10 to 25 applications for review are submitted each year. These applications contribute insights and new perspectives that might not be raised by the usual mix of civil servants and stakeholders talking around the table. Of the requests submitted, about 13% lead to some direct action, such as a review of and/or improvements to the law, or regulation, or policy. Moreover, in many cases where a review is not formally undertaken the application nevertheless helps push the agenda forward, throw light on the issue, or trigger some other indirect action.

On the point of the right to request an investigation, the proposed CEBR would provide the right for a member of the public to request a government investigation of a suspected violation of a federal environmental law. Again, Ontario’s Environmental Bill of Rights includes a similar right allowing any two applicants to request an investigation. In Ontario approximately 10 to 20 such applications for investigation are submitted each year. Of these, about 36% of the requests have led to investigations with some sort of enforcement action arising out of them. In many other cases, even where the government has denied the application for investigation, the ECO has found that the application has resulted in some other indirect action.

I believe this right provides a particularly valuable tool. With limited government staff and financial resources to regularly inspect all regulated facilities, this tool empowers the public to play a role in helping to identify potential environmental violations. Without this right, a number of violations identified in Ontario may not have been uncovered.

On the point of legal actions, the proposed CEBR would provide the public with access to additional legal recourses. First, the CEBR would ensure that concerned residents are not denied standing before the courts in environmental actions solely because they do not have a private or special interest in the matter. Second, the CEBR would allow the public to seek judicial review of a government action or inaction that has resulted or is likely to result in significant environmental harm. Third, the proposed CEBR would provide a right to commence a civil action against a person who has contravened a federal act or regulation that is likely to result in significant environmental harm.

Ontario’s EBR provides the public with a different but comparable set of legal rights. We have appeal rights. Where an appeal right already exists for an instrument-holder, for some company that has a permit or licence, for example, the Ontario EBR provides a right to third parties to request permission from the relevant tribunal, usually the environmental review tribunal, to appeal a ministry decision on certain environmental instruments, such as licences and permits. Permission to appeal will be granted only if the applicants are able to successfully demonstrate that they have an interest in the decision in question, that no reasonable person could have made the decision, and that the decision could result in significant harm to the environment.

On the matter of public nuisance claims, the Ontario EBR provides members of the public with a right to sue for damages for direct economic or personal loss that has resulted from a public nuisance that has harmed the environment, without the approval of the Attorney General. Prior to this act being passed, claims for public nuisance in Ontario had to be brought by, or with the leave of, the Attorney General.

On the matter of “harm to a public resource” claims, the Ontario EBR gives members of the public the right to sue any person who is breaking, or is about to break, any environmental law, regulation, or instrument that has caused, or will cause, harm to a public resource.

In Ontario, these legal actions have been used very sparingly. While public participation mechanisms through other mechanisms--i.e., commenting on government proposals and submitting applications for review and investigation--have been used extensively, use of these legal actions has been minimal. In the 16 years since the Ontario EBR was enacted in 1994, Ontario has seen only one claim for public nuisance—and in that case, public nuisance was just one of many causes of action relied upon—and only one court action under “harm to a public resource”. In addition, about five to ten “leave to appeal” applications are filed each year. Clearly, the legal actions have been reserved as a last resort, which was the intent of the drafters of our legislation.

On the matter of legal costs, the proposed CEBR would allow a court to order a plaintiff of a judicial review to pay costs only if the action is frivolous, vexatious, or harassing. The proposed CEBR would also authorize the court to award a plaintiff counsel fees and/or an advance cost award in certain circumstances. I strongly support these provisions. I have identified the chilling effect of potential cost awards as a serious barrier to public interest legislation, and I have intervened in two separate court proceedings to speak to this issue. The proposed provisions in the CEBR should help address this barrier to meritorious environmental legal cases.

In closing, I would like to reiterate my opinion that the proposed CEBR would be an important and positive piece of legislation that would enhance government accountability, transparency, and public participation in environmental decision-making. In these ways, the CEBR would encourage better environmental decisions and in turn ensure a better-protected environment for future generations.

Thank you.

[Scott Vaughan, Commissioner of the Environment and Sustainable Development, Office of the Auditor General of Canada]

Thank you, Mr. Chairman.

I would like to begin by thanking you for this opportunity to appear before the committee today to discuss Bill C-469, An Act to establish a Canadian Environmental Bill of Rights. Joining me today is Anne-Marie Smith, our senior legal counsel.

We have reviewed Bill C-469 with interest, in particular those clauses that establish new responsibilities for the Auditor General and the commissioner. Clauses 13 and 14 of Bill C-469 describe two possible new administrative responsibilities for my office. In both clauses, those new responsibilities assigned to the commissioner entail forwarding a request from a Canadian resident or entity to the minister responsible for a review or investigation—acting as a kind of clearing house. We could perform that function.

As committee members may know, the commission already acts as a clearing house for environmental petitions by tracking the environmental petitions received and reporting to Parliament on the issues raised and the timeliness of ministerial responses.

Turning to clause 26 of the bill, this would, as we understand it, require the Auditor General of Canada to examine all new federal regulations and every bill introduced to the House of Commons to determine whether they are inconsistent with the purposes and provisions of Bill C-469. We have concerns with these responsibilities. Although the goal of ensuring regulatory consistency is important, in our view this is the responsibility of the government rather than the OAG. Indeed, mechanisms already exist designed to ensure consistency and consideration of environmental implications in government policies and programs.

For example, regulatory impact assessment statements must accompany every regulatory proposal submitted for government approval and each statement must include various analyses and justification prior to implementation. Another example is the strategic environmental assessment of policy, plan, and program proposals.

This committee may wish to explore these mechanisms as well as the role of the Department of Justice Canada. That department is the central agency responsible for providing advice on all legal matters, including the constitutionality of government initiatives and activities.

Mr. Chairman, this concludes my opening remarks. We would be pleased to answer any questions.

Thank you.

[The Chair, Conservative, James Bezan]

I call this meeting to order, meeting number 36. We are continuing with our study of Bill C-469, An Act to establish a Canadian Environmental Bill of Rights.

As the agenda shows, I have split this up into two hours. For the first hour we have at the table a person who is no stranger to the committee, Scott Vaughan, the Commissioner of the Environment and Sustainable Development. With him is Anne Marie Smith, the legal adviser. They are out of the Office of the Auditor General of Canada.

The Environmental Commissioner of Ontario, Gord Miller, is also joining us.

Welcome to committee.

I turn it over to you, Mr. Vaughan, to present your opening comments. I would ask that you try to keep them to under ten minutes.

Thank you.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Thank you, Mr. Chair.

I thank the witnesses for their testimony.

Mr. Irving, in making your presentation have you familiarized yourself with other federal environmental laws? Are you aware that many of the rights and opportunities accorded under Bill C-469 are already accorded under CEPA?

For example, section 22 provides for an environmental protection action. Section 39 provides for any individual to seek an injunction. Section 40 allows for any individual to seek an action for civil damages, which Bill C-469 doesn't. It precludes damages and simply seeks an order for restoration, and so forth. Section 17 of CEPA allows any resident--not citizen--to seek an investigation.

Are you seeking changes to those laws to take away those rights from CEPA as well?

[Bernard Bigras, Bloc, Rosemont—La Petite-Patrie, QC]

I would like to focus on another component concerning civil action. I'm talking about the bill's subclause 23(1), which states the following:

23. (1) Every resident of Canada [...] may seek recourse in the [courts] of the relevant province to protect the environment by bringing a civil action against the person who has contravened, or is likely to contravene, an Act [...]

The provision does explicitly state: "or is likely to contravene, an Act."

I would also like to draw a parallel between the bill and the Ontario Environmental Bill of Rights. Section 84(1), which concerns right of action, states the following:

[...] any person resident in Ontario may bring an action against the person in the court in respect of the harm and is entitled to judgment if successful.

Section 83 of the bill of rights specifies that section 84 applies only in respect of a contravention of an act. It says nothing about people likely to contravene an act. So, an act must be contravened in order for someone to bring an action against a person in the court.

Is this not an example of another parameter contained in the Ontario charter, but absent from Bill C-469?

[Bernard Bigras, Bloc, Rosemont—La Petite-Patrie, QC]

Thank you very much, Mr. Chair.

First, I want to thank the association representatives for their testimony. We now have a better idea of the bill's scope. At the beginning of your presentation, you said that the bill's aim is laudable, and we agree. Despite that fact, the bill's scope seems to be problematic. From the outset, the bill has been compared by some of our witnesses to the legislation of certain provinces. Quebec legislation, and Ontario and Yukon charters, have been mentioned. It appears that the further our study progresses, the easier it becomes to make these comparisons. However, the fact is that the legislations differ in scope.

I will start with clause 9 of the bill, which concerns the right to a healthy environment. Subclause 9(1) of Bill C-469 states the following:

9. (1) Every resident of Canada has a right to a healthy and ecologically balanced environment.

However, section 19.1 of the Quebec Environment Quality Act, in Division III.1 on environmental quality, states:

Every person has a right to a healthy environment and to its protection, and to the protection of the living species inhabiting it, to the extent provided for by this Act and the regulations, orders, approvals and the authorizations issued under any section [...]

I want to draw your attention to the last point, as it's probably important to you.

So, is it wrong to claim that the scope of the bill before us is not the same as the scope of the Quebec act, since the provincial legislation sets out a number of parameters, which are absent from the bill?

[Jacob Irving]

Sure. Sorry.

We believe this represents a regression in environmental law for the following reasons:

It effectively takes decision-making authority out of the hands of the subject-matter experts in the agencies such as Environment Canada, Fisheries and Oceans Canada, and Natural Resources Canada, and transfers it to judges. The parameters of judicial review set out in the bill ignore the fact that such decision-making requires careful balancing of environmental, economic, and social considerations, which is the proper purview of parliamentarians and civil servants, not judges.

Additionally, we are concerned that it ignores the careful balance and recognition of the shared provincial and federal jurisdiction over the environment by vesting this authority in the federal courts. We anticipate that allowing any entity or resident of Canada to seek recourse in federal courts will open the floodgates to vexatious, obstructionist, and interminable legal challenges.

Finally, granting federal courts the power to suspend or cancel a permit or authorization and making injunctions substantially easier to obtain could have significant and far-reaching effects on the reliability of Canada's hydropower supply. This in turn will lead to negative impacts on Canadian consumers and businesses.

We do not perceive enough safeguards to ensure that antagonistic lawsuits are not brought against projects. At any rate, we believe these changes should not be accepted merely on the basis of the obvious good intentions of the bill. CHA would recommend to this committee that it carefully review the legal analysis of the effect of these changes on judicial resources.

I am not a lawyer, but my members have advised me that a very serious problem runs throughout part 2 of Bill C-469. Although entitled "Judicial Review", it actually isn't. Clause 16 under part 2 creates an environmental protection action and allows the plaintiff to prove its case on a balance of probabilities basis. This means that every time an individual or entity disagrees with an authorization or permit under any environmental legislation, they could file a claim, which would result in a trial to see if the court agrees with the government's action or inaction.

In a judicial review, the court is determining whether the official acted within the powers allowed by the statute and with a correct understanding of the law. In an action file, according to the provisions of Bill C-469, any individual or an entity could attack a decision based on a brand-new, vague standard even though the decision was correct according to the applicable statute. The courts currently exercise significant powers of judicial review over agency decision-making. This all adds up to a fundamental change to both the application of administrative law and to Canada's entire approach to environmental stewardship. The nature of this sea change approach demands more in-depth consideration than I believe has occurred. These are obviously complex issues that need to be better explored by legal experts.

But let me return to Canadian Hydropower Association's fundamental concern. Based on our reading of this bill, this legislation would mean that no business, no industry large or small, could operate securely in the knowledge that they are on safe ground even if they're fully compliant with the general law and any permits and licences that have been issued. An action can still be brought before the federal courts, and compliance with permits and licences is not a defence. It does not matter whether those permits and licences have been issued under federal, provincial, or territorial law. We believe this makes Bill C-469 substantively different from other jurisdictions that have adopted an environmental bill of rights approach.

For example, Quebec's Charte des droits et libertés, which specifies that everyone has the right to live in a healthy environment, includes the presumption that this right is met whether or not relevant environmental authorizations and permits have been acquired. It does not allow individuals to challenge the permits themselves and in this way avoids the potential for vexatious litigation that Bill C-469 would create. We believe this type of necessary safeguard is missing from Bill C-469.

In closing, I'd like to reiterate that the intentions behind the bill, as we understand them, are laudable from an environmental protection standpoint. As I mentioned before, CHA is an association populated by developers who approach and discharge their environmental responsibilities with the utmost seriousness. Again, CHA values the intentions and goals that guide this draft legislation. While Bill C-469 may offer more procedural mechanisms to allow more people to engage in environmental protection efforts, from a practical perspective it is destined to duplicate and functionally replace numerous aspects of existing federal legislation and policy.

Moreover, from the CHA's perspective it inappropriately transfers environmental decision-making authority from the executive and legislative branches of government to the judiciary while introducing a suite of ambiguous terms and concepts into an already complex environmental regime.

From the point of view of Canada's hydropower producers, this bill would create massive uncertainty for the operation of our facilities. Our members would experience a disincentive to undertake programs or measures that would have an overall positive effect on ecosystems. Instead, developers would be compelled to focus solely on minimizing specific impacts directly linked to their activities. Moreover, it presents a high potential for frustrating the future development of clean and renewable energy, thereby depriving Canadians of proven methods for fighting air pollution and climate change.

No form of energy development is perfect, but I am confident in saying that for Canada hydro power is our best option. From both a socio-economic and an environmental perspective, hydro power can offer Canada a sustainable net benefit. Hydropower developers are naturally concerned by any measure that might further complicate, obstruct, delay, defer, or defeat hydropower development, and we believe Canadians should be concerned as well. It is for this reason that although we respect the goals and intention of Bill C-469, we must voice our strong concerns regarding the institutional change and negative consequences it could create.

Thank you very much, and I'd be happy to take any questions at this time.

[Jacob Irving, President, Canadian Hydropower Association]

Thank you, Mr. Chair.

I am bilingual, but since my first language is English, I would like to make my presentation in English. Then, I could answer questions in French.

Again, thank you, Mr. Chair.

My name is Jacob Irving and I'm the president of the Canadian Hydropower Association. With me here today is Ian Kerr, vice-president of development for Brookfield Renewable Power, a member of the Canadian Hydropower Association and a private developer and operator of hydropower projects across Canada.

The Canadian Hydropower Association, or the CHA, is the national trade association dedicated to representing the interests of the hydropower industry. Our members are hydropower producers, manufacturers, developers, engineering firms, organizations, and individuals. The CHA members represent more than 95% of the hydropower production in Canada. Hydro power provides 60% of Canada's electricity, making ours one of the cleanest and most renewable generation systems in the world. We have the ability to more than double our current hydropower capacity, providing Canada with the solid opportunity to fight air pollution, climate change, and global warming. Hydro power has over 120 years of history in Canada. We are pioneers and world leaders in this form of energy and our future is even more promising than our past.

I'd like to provide you with a perspective on Bill C-469 from a clean and renewable energy industry perspective, where environmental stewardship is always top of mind. It is important to mention from the outset that we support many of the goals and intentions of the bill. We believe the aim of the bill is laudable; however, we have serious reservations with the more detailed and procedural aspects of the proposed legislation.

The CHA believes Bill C-469 would be harmful and potentially destructive to the current system of environmental regulations that we have all worked so hard to adopt and improve. We are concerned that without significant amendments this bill will create unacceptable levels of uncertainty, invite unproductive and vexatious litigation, and reduce industry's ability to proactively engage in additional environmental stewardship initiatives. It would ultimately frustrate the development of clean and renewable energy not only from hydro power, but also from other renewable sources, such as wind and solar as well. These clean, renewable energy sources are some of Canada's best options for fighting air pollution and climate change.

The greatest challenge to unlocking Canada's hydro power lies in the amount of regulation we must manage both at the provincial and federal levels. It already takes eight to fourteen years to build a hydropower project. We have to devote much of this time to ensuring projects meet the environmental goals of various pieces of federal and provincial legislation. It's interesting when you consider that non-renewable and higher-emitting thermal generation projects in Canada can generally be built in three to five years, as they generally face lighter regulatory requirements.

A new hydropower project takes up to fourteen years to permit, build, and authorize. Having proved itself against current rigorous environmental regulations, the project would then begin operating in a new, even more uncertain context. If Bill C-469 were to pass in its current form, all the permits and authorizations that took up to fourteen years to obtain would suddenly be unreliable and an entirely new avenue for legal challenge would be opened. For hydropower developers, this truly represents an “out of the frying pan and into the fire” scenario. Indeed, it is our commitment to environmental principles that compels us to urge this committee to thoroughly assess Bill C-469 and all of its implications. We maintain that the bill's stated purpose is cohesive with existing regulatory schemes, but the mechanisms fundamentally are not.

It is within this context that I'd like to offer a few high-level comments on our overriding concerns of the bill. One of the reasons we can confidently state that CHA supports the intention and goals of the bill is that the current regulatory scheme already advances responsible environmental decision-making and reflects many of its principles. For example, the precautionary principles, sustainable development principles, and polluter pays principles are woven into many of the existing acts and permeate the entire federal environmental regulatory regime. We believe concentrating energy and resources on improving existing laws, such as the Species at Risk Act and Canadian Environmental Assessment Act, is preferable to adopting an entirely new approach to protecting and enhancing the environment. This bill creates a wholesale change in the way we would approach environmental regulation in Canada.

CHA has serious concerns regarding several of its proposed mechanisms. Perhaps the most significant change to the current regulatory system would be the fact that under Bill C-469 the courts would be required to decide on environmental protection actions against the federal government, environmental civil actions, and judicial reviews relating to environmental protection. We are very concerned that this would essentially bypass the system of environmental regulations described above by handing over the final decision-making to federal courts and private litigants.

[Mark Warawa, Conservative, Langley, BC]

Thank you.

We heard from witnesses, esteemed lawyers, who provided input that Bill C-469 encroaches on provincial environmental jurisdiction and would cause a dramatic increase in litigation. Some of the special groups that were here in support of Bill C-469 were looking at it as a big stick that would intimidate, and although it maybe would not necessarily cause a legal action, there would be the threat of that.

We heard from business. Business creates jobs. They said uncertainty over the possibility that even existing legislation could be challenged--permits could be challenged, everything could be challenged--would remove certainty. Along with the loss of certainty, there's always another appeal option from any resident on any facility, which would cause a loss of investment, which would cause a loss of jobs, which would mean creating worker uncertainty and loss of protection for workers.

I'll come back to my example of an existing permit for the oil sands or for Hydro-Québec. If Bill C-469 gave that kind of power for an unending appeal process to any resident in Canada, would you want to see that amended so as to provide a balance?

[Mark Warawa, Conservative, Langley, BC]

You used the word “citizen” a number of times. Bill C-469 uses the term “resident”. Would you support a resident retroactively challenging existing regulations or permits?

Do you I understand my question?

[Mark Warawa, Conservative, Langley, BC]

Were there any suggested amendments to Bill C-469?

[Mark Warawa, Conservative, Langley, BC]

Was there any type of consultation to determine their position on Bill C-469?

[Mark Warawa, Conservative, Langley, BC]

Thank you, Mr. Chair.

Thank you, Mr. Firth, for being here. You mentioned that you represent 600,000 members of CUPE, and you would like to improve the quality of life for your members. How did you determine the position of your members on Bill C-469?

[Matthew Firth, Senior Officer, Health, Safety and Environment, Canadian Union of Public Employees]

Thank you very much for the opportunity to speak before the committee.

As stated, my name is Matthew Firth. I am a senior officer in the health, safety, and environment branch of the Canadian Union of Public Employees, CUPE, which is Canada's largest trade union, with approximately 600,000 members.

CUPE's national president, Paul Moist, wanted to meet with the committee today but could not because he's overseas at Public Services International meetings, so I am here in his place.

CUPE is a socially active union, and this social action extends to environmental issues. CUPE works to improve all facets of our members’ quality of life. We see that enhancing the natural environment augments the quality of life of our members and, by extension, all Canadians. Therefore, CUPE supports Bill C-469.

Specifically, CUPE will put its support in context by pointing to the timeliness of this bill with respect to the state of the global natural environment and with respect to an emerging trend to enshrine environmental rights as a response to ecological stressors.

Secondly, CUPE supports the need for the bill because of Canada’s declining environmental record, as shown via various indicators, as a way to improve Canada’s protection and enrichment of the natural environment.

Lastly, CUPE will highlight the importance of certain key points of the bill that it supports.

Presently, the state of the Canadian and global natural environment is perilous. Various environmental factors show that more protection is called for due to decades of environmental degradation and exploitation of the planet’s natural resources. Climate change, diminishing biodiversity, deforestation, deteriorated water and air quality, as well as other environmental problems show the timely need for an environmental bill of rights.

There are indications that the world is moving toward enshrining the rights of the planet. For example, in April 2009 the United Nations General Assembly proclaimed April 22 to be International Mother Earth Day, a step up from Earth Day. Speaking to the declaration, Bolivian President Evo Morales said the world body had “taken a historic stand for Mother Earth”. The UN declaration states that “the Earth and its ecosystems are our home” and “it is necessary to promote harmony with nature and the Earth”. Furthermore, Morales dubbed the declaration a first step toward making the 21st century the “century of the rights of Mother Earth” in the same way the 20th century was characterized as the century of human rights.

A next step would be taking up this opportunity in Canada by laying out a declaration for an environmental bill of rights and for the planet. We use this example to show that Bill C-469 is in step with what is an international trend to integrate human rights with ecological rights to ensure human prosperity. Adopting Bill C-469 would be a progressive environmental move by Canada and would help further the movement toward linking ecological well-being and health with social and economic prosperity, rather than seeing the natural environment and the economy as being separate and/or at odds, which is an outdated viewpoint inadequate for the 21st century.

Closer to home, Ontario, the Northwest Territories, Quebec, and other jurisdictions have environmental statutes that call for environmental rights, as do dozens of other jurisdictions across the world.

Numerous environmental performance indices point to Canada’s faltering environmental record. For example, Yale University's environmental performance index for 2010 assessed 163 countries on 25 performance indicators measured across ten policy categories, covering both environmental public health and ecosystem vitality. The indicators provide a gauge on a national government scale of how close countries are to meeting their established environmental policy goals. Overall, Canada ranked in 46th place out of 163 countries, with a score of 66.4%, a percentage score equivalent to a C grade. The ranking puts Canada in the middle of the pack, behind developing nations such as Mexico and Romania, and well behind other industrialized nations such as Switzerland and Sweden. Canada scored well on its water quality index, access to sanitation, access to water, and on indoor air pollution levels. Canada received failing grades on ecosystem vitality, fisheries, climate change, and air pollution.

Canada scores worse when environmental indicators are narrowed to, for example, climate change, which is presently the most serious global threat to environmental stability.

The social research centre Germanwatch, along with Climate Action Network International, issues yearly reports on the nations that are responsible for more than 90% of global energy-related carbon dioxide emissions. Countries are assessed on their emission levels, emission trends, and on their national and international climate policies. Canada’s national climate change policy was assessed as “very poor” and is centred out for specific comment in the 2010 report. The report points to Canada’s rising emission levels: 34% above its Kyoto target level. Overall, the report ranks Canada second to last, in 56th place of 57 countries, a ranking that is unchanged from the 2009 index. These results highlight that Canada needs to do more to improve its environmental performance, something Bill C-469 would help ameliorate.

Specific aspects of Bill C-469 will help strengthen and expand Canada’s environmental performance. For example, the bill confirms that the Government of Canada has a public duty to protect the environment. The bill also takes a long-term, multi-generational approach by stating that future generations have a right to a healthy and ecologically balanced environment. Moreover, the bill recognizes the inherent value of essential ecological processes, meaning natural systems are viewed as vital, not simply from a resource or commodity perspective but implicitly and fundamentally. This marks a shift in thinking about the natural world, which will benefit all Canadians.

Another key facet of the bill is the precautionary principle, which is deemed a basis on which actions can be taken to address environmental wrongs. Too often, actions on environmental problems are shackled by what is construed as conflicting evidence. The precautionary principle would improve this standoff by allowing actions to be taken to preserve the integrity of the natural world simply by virtue of the fact that a threat is very likely apparent and/or imminent. Such an approach is proactive and progressive. Likewise, the principle of environmental justice described in Bill C-469 provides a democratic view of the natural world.

The foundation of this bill is the right to a healthy environment for all Canadians, another key point that CUPE supports. Ensuring accountability via making environmental information available to the public in a reasonable, timely, and affordable fashion also shows the strength of the bill.

The process by which this bill would be enforced is credible, through investigations, judicial review, and subsequently through various remedial actions. The bill’s language on reprisal could be bolstered to prohibit reprisals so that no employer or person acting on behalf of an employer or in a position of authority in respect of an employee of the employer shall dismiss, discipline, penalize, coerce, intimidate, or harass an employee because that employee has applied to the commissioner for an investigation under the terms of the Canadian environmental bill of rights. A provision like this would fully ensure worker protection.

Lastly, the proposed amendment to the Canadian Bill of Rights to ensure consistency with an environmental bill of rights indicates a more holistic perspective that is in step with current movement toward reintegrating humanity with ecology, as witnessed in the UN Mother Earth Declaration, other laws in other jurisdictions, and other actions.

In summary, Bill C-469 would expand the scope of environmental protection of the Government of Canada, which would help improve our country’s environmental record and help advance the rights of the planet at a time of major ecological challenges.

Thank you very much for the opportunity to speak before the committee this afternoon.