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.

[The Chair, Conservative, James Bezan]

I call this meeting to order.

We're having meeting number 35. We are televised, and we're dealing, of course, with Bill C-469, an act to establish a Canadian Environmental Bill of Rights, sponsored by Linda Duncan.

Joining us for the first hour is Matthew Firth, senior officer of health, safety, and environment, from the Canadian Union of Public Employees.

Welcome, Mr. Firth. I'll ask you for your opening comments. And please, if you could stay within ten minutes, we would appreciate that.

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

Thank you, Mr. Chairman.

If the bill is here in committee, it is because a majority of parliamentarians supported its principle. Not just on this side of the table, but also on the other side. This means that in principle, parliamentarians unanimously want to see the right to a sound environment recognized. That is reality. I think that the majority of MPs want to work on the bill before us. I agree with Mr. Scarpaleggia: we do want to prevent frivolous legal action.

There are two problematic elements in the bill. Firstly, there is the whole issue of simply alleging environmental harm. Secondly, there is the possibility of breaching a law. I think that that is what we have to work on in this bill.

I'd like to get back to the issue of guidelines. I think that the legal opinion submitted by the Canadian Association of Petroleum Producers is quite interesting. For instance, on page 5, they tell us that “Unlike comparable provisions in the CEPA and the Ontario Environmental Bill of Rights, 1993, a person does not need to apply for an investigation before bringing an environmental protection action or civil action under Bill C-469”.

And so I'd like to get back to my original questions. Can't we bring in guidelines so as to avoid legal actions that would have unfavourable economic consequences as well as unacceptable social repercussions? For instance, isn't there an investigation procedure that we could include before people could institute legal action?

Some people may ask for the bill to be tossed into the dustbin, but the fact is that parliamentarians want to work with it. Are there constructive amendments that could limit this civil action access, so as to ensure that what a majority of parliamentarians want will be expressed in an upcoming piece of federal legislation?

[Scott Armstrong, Conservative, Cumberland—Colchester—Musquodoboit Valley, NS]

Thanks to all of you for being here. I've enjoyed your testimony.

I think this bill's heart is in the right place, without a doubt. I think we've heard several people testify that they agree with this: that all Canadians deserve to have a sound and clean environment. However, I think there's been a lot of discussion on clause 23, the judicial remedies. I think that's where a lot of the concern is from all the witnesses today, so I want to give an example and then have some comments from you about my example.

Yesterday, in Parrsboro, Nova Scotia, which is in my riding, the Minister of National Defence and I announced an undersea cable project that will connect tidal power generators to the Nova Scotia power grid. It was a $20-million announcement. It was the largest announcement from our green fund for any project across the country.

As for the capacity of the cable—and Mr. van't Hof, you'll understand a lot of the technical details more than I will—it is a 64-megawatt cable. It eventually will be able to produce enough power to power at least 20,000 homes. That's enough to power almost every household in my riding.

Could you see Bill C-469 potentially having a negative impact on the progress of this project?

[Mark Warawa, Conservative, Langley, BC]

Thank you, Chair.

Thank you to the witnesses for being here.

What we're heard today is actually quite eye-opening and shocking. This is our third meeting of witnesses. During the first two meetings we heard primarily that Bill C-469 would be used as a big stick, a threat to avoid litigation. The witnesses thought there might not be an increase in actual court cases but that the threat of litigation would encourage government, business, or whoever to take action.

I'm hearing that Bill C-469 would create great uncertainty, and that the financing of projects would grind to a halt because of the threat not only that action would be taken but that the appeal process would never end. I'm hearing that it's not likely, because whatever the decision, if some resident of Canada didn't agree with it, they could initiate an action and have this big stick. So would anything ever happen, or would things grind to a halt? So your testimony today is really important.

At that first meeting we heard that some believe there should be a carbon tax in Canada. Canadians have said no to a carbon tax, but then we've heard that this could be the Trojan Horse that would make that possible. The blank cheque that one of you mentioned could be used by the courts as a way of imposing a carbon tax on all Canadians, all industry.

I have another concern about Hydro-Québec. I'm not going to go into detail on that, because I'm sure Mr. Blaney from Quebec would want to ask questions on that. But I'm from British Columbia, and hydroelectricity is very important in those two provinces. If a resident of Canada--and I'm not sure of the definition of “resident”--was living in Canada legally, they could initiate an action and it would give them the big stick to infringe on or maybe turn aside permits for operations of hydroelectric companies if they didn't like what was happening and in their opinion they deemed that there could be environmental harm.

The common thing I've heard is that there was great effort, years of consultation, to try to find a balance of sustainability in which everything would be considered--the environment, the economy, ecosystems--and to create a balance after consultation. After you achieve that and permits are issued, there still is an opportunity for appeal and Bill C-469 could shut everything down.

Is that kind of a fair analysis?

[Warren Everson, Senior Vice-President, Policy, Canadian Chamber of Commerce]

Thank you very much.

My name is Warren Everson. I'm the senior vice-president of the Chamber of Commerce.

As you know, the Canadian Chamber of Commerce is the organization that is the most representative of business people in Canada. Thanks to our network of more than 400 local chambers of commerce, we speak on behalf of 192,000 businesses of all sizes, active throughout the country.

Bill C-469 would create a Canadian environmental bill of rights. The intention of the bill is to safeguard the right of present and future Canadians to a healthy and ecologically balanced environment. That's a laudable goal, but this bill is not the correct approach. In our view, it would fundamentally change the nature of environmental protection in Canada, increase uncertainty, invite litigation, and create a new barrier to investment.

We oppose Bill C-469 in principle and we have numerous specific concerns with the bill. In particular, the principle is that Bill C-469 dismisses decades of work done by parliamentarians to establish national agencies to protect the environment. It proposes to replace a predictable process, whereby the provinces and the federal government are responsible for environmental regulation, with an endless litigation process brought by private parties. It would in effect turn the Federal Court into an environmental protection agency.

The new rights afforded to the bill do not have to be exercised for environmental purpose. They could be used for commercial benefit. They could be used to impose a private agenda onto a large population's agenda.

Currently, the federal government has broad discretion to balance the needs of environment with other societal concerns. This bill would take away that discretion and permit the courts to continuously challenge the decisions made by government or even by Parliament. Not very many people would want to invest in a situation in which any resident or entity could take them to court even if they were following all the rules.

Mr. Chairman, as I mentioned to you, I have a brief and a whole series of specific issues with the bill, but in light of the fact that I was able to persuade one of the members of the Chamber of Commerce who has direct involvement with these matters to testify, I'd like to just very briefly conclude and then submit my brief to the committee for its use and introduce my colleague.

It will come as no surprise to the committee that my conclusion is that Bill C-469 should be set aside. People can certainly take issue with environmental laws and they can say we don't have enough of them or that we're not enforcing them adequately, but if that's the case, then citizens should be dealing with Parliament, not going around the legislative process to the courts.

The bill before you today seems to us to be a statement of frustration with current process. What it is not is a working law. It's a blank cheque and it asks the Federal Court to fill in the blanks. Courts have said over and over again in the past that it's not the job of the court to make policy, and you politicians have said many, many times that it is not the prerogative of judges to make law in Parliament's place.

Thank you very much.

[Tom Huffaker, Vice-President, Policy and Environment, Canadian Association of Petroleum Producers]

Thank you, Mr. Chairman and committee members.

We are pleased to have this opportunity to comment on Bill C-469 today.

I am Tom Huffaker, vice-president for policy and environment at the Canadian Association of Petroleum Producers.

As many of our concerns with this bill are legal in nature, we have provided a separate legal opinion. I am pleased to have with me the author of that analysis, Shawn Denstedt, a partner at Osler, Hoskin and Harcourt. He is available to assist me in answering your questions today.

I will make a few high-level comments on our overriding concerns with the bill rather than focusing on the many points of detailed objection that would arise from a line-by-line review. We provided a copy of our full statement last week, and I will make a slightly shorter statement today.

CAPP represents companies large and small that explore for and develop Canada’s natural gas and oil resources. We are part of a large, growing, and technologically advanced industry that contributes greatly to the wealth of the country, with over 500,000 Canadians directly or indirectly employed in the industry, annual investments of $110 billion, and payments to government exceeding $15 billion per year.

Canadians expect safe, reliable, and responsible energy development and delivery. Meeting high environmental standards is part of that expectation. We embrace those expectations. Canada has among the highest environmental standards in the world. Development is subject to numerous licensing and approval processes. Environmental considerations form part of all the decisions on whether to approve developments that could have an environmental impact. The Canadian Environmental Assessment Act provides a rigorous process for assessing environmental effects.

The provinces where we operate have their own high environmental standards and rigorous regulatory regimes. These standards operate within a careful balance of federal and provincial law. There is no bright line where federal environmental jurisdiction ends and provincial jurisdiction begins. Respect for the rights and responsibilities of the differing jurisdictions is, of course, fundamental in Canada. We need wise and experienced policy-makers and politicians to ensure that a balance and respect for provincial jurisdiction is maintained.

The oil and gas industry, like many other industries here, is regulated from cradle to grave. The regulatory framework is open and transparent. Canadians who are affected by energy projects have robust opportunities to participate in regulatory processes. The National Energy Board conducts itself in a fully transparent manner, and all relevant input and opinion from any person or entity with a reasonable interest is accepted.

This bill is an appeal to the rising environmental sensibilities of Canadians. We are all acutely aware of the importance of environmental performance and the need for industry to meet high standards. However, we frankly do not see what problem this bill is trying to solve. Canadians already enjoy open and transparent environmental decision-making. This bill will only burden responsible development, while providing new avenues for those seeking to discourage development, growth, and job creation.

This bill would allow any resident of Canada to go to court, claiming that the Government of Canada has failed to carry out its duty as a trustee of the environment. And courts could grant a wide range of remedies. So the delicate art of politics on which the respect for federal and provincial powers now depends will become subject to rulings by federal courts brought by environmental activists.

Bill C-469 imposes a quasi-constitutional obligation, in our view, on the government to place environmental protection above all else. We embrace the need to place high priority on environmental protection, but environmental protection does not stand alone as a priority. The economy and energy security also rank high. More practically, Canadians want high environmental standards, but they also expect government and regulators to emphasize worker and public safety, jobs, and energy to heat their homes and power their vehicles.

Our own polling confirms that the overwhelming majority of Canadians believe it is not only important to balance environmental protection, energy security, and economic priorities, but possible. This bill threatens the very balance our public demands and believes in, and which is already codified in the federal Sustainable Development Act.

The Canadian legal system is a leader globally in protecting individual rights. However, it is one thing for the law to give me a right to protect the things I own by suing someone who trespasses on my rights, and it is quite another for every single Canadian resident to have the legal right to take environmental questions to court. These are questions of public policy that are for governments to decide through legitimate democratic processes. Every adult Canadian citizen can vote. Can every Canadian adult afford to go to court?

When activists bring cases to court under this bill, can every Canadian go down to the courthouse and ask to have their voice heard, maybe to protect the economic opportunity for their children in the future? Of course not.

This bill would undermine the proper role of elected officials. We believe that we need to pause, and think long and hard before we choose to diminish the ability of our democratically elected leaders, such as those in this room, to address complex problems.

Under this bill, no industry large or small can operate secure in the knowledge that they are on safe ground as long as they comply with the general law and any permits and licences they have been issued. Under this bill it does not matter whether those permits and licences have been issued under federal, provincial, or territorial law.

In a civil action, under clause 23 of this bill as we read it, a Canadian or resident or entity, whether or not they have any direct interest in the matter, need only claim contravention of an act of Parliament alleging significant environmental harm. The entities that can bring such action include environmental organizations that specialize in taking actions to court. All they need to do is open an office in Canada. Where the money to fund it comes from can be anywhere.

Businesses large and small need predictability to invest and provide the jobs that Canadians need. We look to government to provide that predictability, not only through laws and regulations that are enacted but also through the policies that guide implementation of those laws and regulations as well as the practical wisdom that is brought to bear when decisions are made to take enforcement action.

There will be no predictability, in our view, if Bill C-469 becomes law. The carefully balanced policies of government and the wise counsel of public servants will be held hostage to the court actions of single-interest groups. The bill will significantly increase the risks and costs of doing business in Canada, in our view. The result will be a loss of competitiveness for Canada, with reduced investment in economic opportunities and fewer jobs.

Capital is mobile, and while it is drawn to countries that have advanced environmental, regulatory, and legal systems, such as Canada, those systems have to be predictable and reliable for countries to be attractive to investors. We support good policy that holds industry to high standards of environmental performance.

In our view, Bill C-469 is not good policy for Canada. We believe it is fundamentally flawed and we respectfully submit that it cannot be amended into good policy.

Thank you very much. I look forward to your questions.

[Michael Broad, President, Shipping Federation of Canada]

Thank you, Mr. Chairman.

Ladies and gentlemen, members of the committee, thank you for having agreed to hear us today on Bill C-469. You received the English and French version of our short brief several weeks ago already. My intent today is not to reread out loud a document you have probably already looked at.

The Shipping Federation of Canada is federally regulated and represents international maritime transport headed for or leaving Canadian ports. Our members are listed at the end of our brief and they operate ships that carry Canada's international trade. Our industry is regulated by a broad spectrum of regulations that cover all of our operations, whether we are referring to the ship, its equipment, its cargo, its crew, its containment material, processes or management. These regulations are based in large measure on international conventions Canada subscribes to.

The position we wish to share with you today is that of operators who wonder how the new act will impact the stability of the regulatory framework that governs their activities, and whether the new civil action remedy may be invoked against operations that are in full compliance with regulations.

Our concern is that at this time, we still don't know how the two new remedies introduced by the legislation will apply, i.e. the judicial review and the civil action, and what their implications are for federally regulated industries.

Although we have read with interest the speeches delivered by the various political parties when the bill was introduced and discussed at second reading, they have not furthered our understanding of how the new act, and its new remedies in particular, will actually work, nor has the parliamentary library yet produced any background research that would contribute to our comprehension of this bill. We have also read the transcripts of the November 1 hearing before this committee, but the discussion addressed the government's lack of action rather than its regulatory production. As a result, our concern about the impact that the new remedies will have on federally regulated industries such as our own remains as acute now as when we first read the bill. This is why we are here before you today to clarify the legislator's intent with respect to this bill and hopefully find a response to our questions and concerns.

Our fundamental question with respect to Bill C-469 is as follows. Will a federally regulated operator be safe if he complies with all of the relevant federal regulations, or will he remain exposed to the civil action remedy introduced by the bill? Clause 23 of the proposed bill provides that every resident of Canada can seek recourse in Superior Court against a person who has contravened, or is likely to contravene, an act of Parliament or a regulation, if such a contravention has resulted or will likely result in significant environmental harm.

The Canadian Environmental Bill of Rights is an act of Parliament, and clause 9 of the act guarantees the right to a healthy environment. Therefore, Bill C-469 makes it possible for anyone to initiate court proceedings against a federally regulated company and claim that the company infringes on his or her right to a healthy environment. We are especially alarmed by subclause 23(3), which, if we have read it correctly, simply implies that regulatory compliance is not a defence. This is of paramount significance for us, because regulatory compliance is the necessary safe haven for doing business. Without a guarantee that regulatory compliance will make it safe for you to conduct business, business becomes an activity that is too risky to undertake.

Related to this concern is our other question: how reliable will the regulations adopted under the current regulatory process be? Will anybody be able to challenge them at any time under the new judicial review remedy, on the basis that another standard should have been adopted instead? If so, all of the operators who rely on that particular standard would face nothing but confusion and uncertainty. The wording of clause 16 of the bill, which deals with the judicial review process, is so wide that we can easily foresee this section being used to challenge the government on any environmental regulatory standard at any time. This runs exactly counter to the regulatory predictability that is so essential for our industry to operate within.

Does regulatory compliance still have any relevance and value? Does the regulatory process still have any relevance or value? These are the questions that we cannot answer based on what we have read in the bill.

In view of the foregoing, we respectfully submit that if it is not your intent that the remedies introduced by Bill C-469 be applicable against regulatory standards and regulatory compliance—clauses 16 and 23 respectively—this should be stated explicitly. We have suggested wording towards this end in our brief.

Although our brief focuses on the issue of regulatory standards, because it is a key consideration for federally regulated operators, our reading of the bill raises other questions as well, including its consistency with international conventions on maritime liability. This is a point that was raised in the presentation of the Canadian Maritime Law Association on November 1, which, needless to say, we support.

We hope that your committee will have the opportunity to hear from other witnesses as well, including representatives of the federal departments that produce and administer environmental regulations, and from specialists in public and administrative law.

There is an old saying that the road to hell is paved with good intentions, and we are concerned that the legislator, buoyed by the enthusiasm surrounding this bill, may fail to adequately consider how the act's mechanisms will actually work within the existing statutory framework. Although our testimony is designed to highlight our industry's concerns regarding the relationship between the remedies proposed by the bill and the regulatory standards by which we are governed, we suspect there are other issues that should be clarified before, rather than after, the bill receives royal assent.

Thank you for your attention. We would be pleased to answer any questions.

[The Chair, Conservative, James Bezan]

We'll call this meeting to order. I want to welcome everyone to our 34th meeting.

As we all know, we're televised today, and we're continuing with our study of Bill C-469, an act to establish a Canadian Environmental Bill of Rights.

Joining us today we have a number of witnesses. From the Shipping Federation of Canada, we have Michael Broad, who is the president. From the Canadian Association of Petroleum Producers, we have Tom Huffaker, vice-president of policy and environment. Joining us from the Canadian Chamber of Commerce we have Warren Everson, who is the senior vice-president of policy, and Johan van't Hof, who is the chief executive officer of Tonbridge Power Inc.

I want to welcome all of you here. As I explained earlier, we do have a ten-minute time limit for your opening comments.

With that, I'd kick it off with Mr. Broad, if you can bring us your opening comments, please.

[The Chair, Conservative, James Bezan]

Those are good points. I would just also say, finally, that since our meeting on Wednesday is changing and we aren't going to hear from more of our witnesses until after we get back from break week, I would suggest to anyone who wants to put forward amendments to Bill C-469 to have them in to the clerk by Wednesday, November 17.

With that, I'll call for a motion to adjourn.

[Mark Warawa, Conservative, Langley, BC]

The point is that on Bill C-469, if Ms. Duncan would like to have us move on to clause-by-clause, that's fine, but if we're going to hear from witnesses, there should be a balanced presentation so that we're hearing not just from ENGOs, which are very important to hear from...but they're the main beneficiaries. They're the ones who have assisted Ms. Duncan and the NDP in writing this legislation. It really appears to be the tail wagging the dog. I'm very concerned that we're not getting a balanced presentation from witnesses.

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

Thank you very much, Mr. Chair.

The questions raised by my colleague Mr. Woodworth bothered me a lot, particularly in regard to the interpretation of subsection 23(1).

I am trying to come up with a typical case that could happen in Quebec. Let's say Hydro-Québec decides to build a dam in northern Quebec. They have to build a road so that trucks can get to the site, but, unfortunately, that has to be done right next to a fish spawning ground.

So, inevitably, the hydroelectric project, which would result in a reduction of greenhouse gas emissions, could lead to people filing lawsuits because the Fisheries Act, which protects fish habitat, has been contravened.

How do you think that a bill of this kind could help the lawsuit against Hydro-Québec, for example, which is trying to make sure that the fish habitat is protected?

Subclause 23(1) reads as follows:

23. (1) Every resident of Canada or entity may seek recourse in the superior courts of the relevant province to protect the environment by bringing a civil action against a person who has contravened, or is likely to contravene, an act of Parliament or a regulation made under an act of Parliament or other statutory instrument, if the contravention has resulted or will likely result in significant environmental harm.

The act of Parliament in question could very well be the Fisheries Act.

Do you think that Bill C-469 would make a lawsuit easier if people wanted to protect the fish habitat, as in the case of the hydroelectric project?

It's a valid question.

[Mark Warawa, Conservative, Langley, BC]

So Bill C-469 would increase the number of court actions against the government and the role of courts in shaping environmental policy.

[Mark Warawa, Conservative, Langley, BC]

You support Bill C-469, but you're not sure what “resident” means.

[Mark Warawa, Conservative, Langley, BC]

In Bill C-469, you used the term “resident”, Canadian resident. Could you define “Canadian resident”?

[Mark Warawa, Conservative, Langley, BC]

Okay. Who do you speculate would be the primary people using Bill C-469 if it became legislation? We have environmental groups, ENGOs, as the primary witnesses here. Would you see them as the primary users of this type of legislation?