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.

[Mark Warawa, Conservative, Langley, BC]

Speaking to that point of order, Mr. Chair, we've heard from testimony today that what's being proposed through Bill C-469 is a price on carbon. How do you achieve a price on carbon? It's through a carbon tax and we know what the Liberals' position is on a carbon tax. I think it's a very relevant question and it came from testimony that we heard.

[Christian Simard]

We will be happy to come back and discuss it. At present, we're considering Bill C-469. I would actually like to take the opportunity to respond to a comment by Mr. Blaney, the member for Lévis—Bellechasse, I think...

[Christian Simard]

I think the bill contains that provision, which is very similar to the brief. That's what we call it. I think you can, in practice, file a complaint with the Commissioner of the Environment and Sustainable Development.

The opportunity to exert influence and participate doesn't exist in the Quebec legislation, but we think this is worthwhile and desirable. Environmental problems are extremely complex. We are dealing with problems associated with climate change that will be increasingly extreme. So we are absolutely going to need the wisdom of the public and the ability to discuss environmental protection policy with the public.

I think that governments are going to come out looking better as a result of this. These problems are very complex and environmental policy should have the support of as many people as possible. We hope that people will be consulted on broad policy, something that is not provided in the Quebec statute.

For example, there could be an Internet registry. I very much like the sound of what you're saying. It is very interesting. I think that Bill C-469 will open the door to measures, while not specifying whether it's on the Internet or not. It opens the door to suggestions from the public about policy and allows for public openness about these things. I welcome that aspect. That's in Bill C-469.

I would sometimes even like it to be taken further. When the provincial governments and the Government of Canada have to decide about doing oil or gas exploration, or are considering legislation about mines, for example, or how to exploit our natural resources, it would be a good thing if they could hold public consultations when policy is to be made. There could be public hearings bureaus on the environment or commissions that would allow for calm debate about the future of oil and gas resource exploitation development, and even for windmill and alternative energy development. If broad public policy is being made, it is important to seek out public wisdom.

In Quebec, there have been a few exercises relating to forestry, through the Coulombe Commission. It has been done for water and hazardous waste, and I think that improved environmental legislation enormously. That kind of commission can do an in-depth study of the issues and propose new policies to our politicians and officials, who often need those ideas themselves. Managing environmental problems is a culture of complexity. It is not easy.

[Christian Simard]

Clause 9(2) of Bill C-469 says:

(2) The Government of Canada has an obligation, within its jurisdiction, to protect the right of every resident of Canada to a healthy and ecologically balanced environment.

Clause 8, which refers to the scope of application, says:

8. The provisions of this Act apply to all decisions emanating from a federal source or related to federal land or a federal work or undertaking.

For environmental assessment processes, for example, there are already administrative agreements between Quebec and Ottawa. In the case of the Hydro-Québec dam on the Romaine River, there was a federal jurisdiction issue relating to the mouth of the river, and specifically to navigation. Generally, it was under the jurisdiction of Quebec, but a commissioner was appointed by Quebec.

In my opinion, it would be difficult to define it more specifically. The environment was never in issue in the British North America Act. However, it is also defined by agreements with the provinces. I do not anticipate there will be a lot of problem situations. Certainly if the federal government takes on a share of responsibility under a particular statute, a member of the public will be able to bring a legal action. I would remind you that it must relate to "decisions emanating from a federal source or related to federal land or a federal work or undertaking".

A federal source may be a regulatory body. Where it gets a bit complicated, though, is when we're dealing with regulatory bodies that wear two hats. There could be problems in cases where the role of a federal commissioner was challenged in a situation with a federal-provincial panel. For those cases, however, I would trust in the wisdom of the courts.

[Christian Simard]

Thank you, Mr. Chair.

Nature Québec thanks the members of the Standing Committee on the Environment and Sustainable Development for inviting us very recently to comment on the nature and effect of Bill C-469 and to answer questions from parliamentarians.

Nature Québec believes that Bill C-429, an Act to establish a Canadian Environmental Bill of Rights, is an important and positive piece of legislation that is within the authority of the federal government.

In the Quebec legislation, there are similar provisions. The Quebec Act recognizes the right to environmental quality. Section 19.1 of Quebec's Environmental Quality Act provides that "[e]very person has a right to a healthy environment and to its protection, and to the protection of the living species inhabiting it". Section 19.2 then provides that "[a] judge of the Superior Court may grant an injunction to prohibit any act or operation which interferes or might interfere with the exercise of a right conferred by section 19.1." In addition, since 2005, section 46.1 of Quebec's Charter of Human Rights and Freedoms has provided that "[e]very person has a right to live in a healthful environment in which biodiversity is preserved, to the extent and according to the standards provided by law."

In concrete terms, including a right to environmental quality in Quebec's Charter of Human Rights and Freedoms opens the door to awards of "punitive damages", formerly called "exemplary damages", for any "unlawful and intentional" interference in that right. That section actually reads as follows: "Any unlawful interference with any right or freedom recognized by this Charter entitles the victim to obtain the cessation of such interference and compensation for the moral or material prejudice resulting therefrom. In case of unlawful and intentional interference, the tribunal may, in addition, condemn the person guilty of it to punitive damages."

Apart from the possibility of obtaining an injunction, the Quebec Act does not have as detailed and clear an enforcement mechanism as the one set out in Bill C-429. The bill is more complete, and its mechanisms are better balanced. In addition, recognition of the right to environmental quality islamite to Quebec, for instance by the numerous constraints in legislation regarding access to the records of public bodies and the protection of personal information, which dramatically limit its effect. In a way, there are so many exceptions that there is less transparency. In Quebec, the provisions of the Environmental Quality Act, the Charter of Human Rights and Freedoms or the Sustainable Development Act do not provide for public participation in setting broad public policy, and this also limits their effect. Nor are there any provisions to protect government employees who blow the whistle on their employer, as is the case in clause 25 of Bill C-429.

That being said, we are naturally not arguing, and we do not want Bill C-429 to replace the provinces' legislation in any way. It will be administered by the federal government, and that is fine.

In Bill C-429, there are enforcement mechanisms that are missing from the Quebec legislation, apart from injunctions, only. Those mechanisms are also, to our knowledge, missing from the legislation of most of the other provinces. I am referring in particular to the power of individuals to go to court when the government does not comply with its own laws. That kind of measure, to enable individuals to make sure that the government acts in accordance with those laws and makes sure they are enforced, is very important.

It would be worthwhile for the provinces to follow the model proposed in Bill C-429, in the federal sphere, a model that we would not hesitate to support, if that were done. A number of proposed measures simply do not exist in the legislation of Quebec and the other provinces. What is interesting is that Bill C-429 can be used as a reference point or benchmark for provincial legislators, and even better, does not decree national standards or standardizing legislation that would somewhat impinge on areas under provincial jurisdiction. It also would not seem to risk creating confusion or duplication.

These types of measures, although their objectives are often broad and expansive, are not consistent with the principle of subsidiarity, to do what it is possible to do at the best level, to act at the best level so it will be as effective as possible. So these types of measures are not consistent with the principle of subsidiarity and the effectiveness of environmental legislation. Federal legislation has been enacted in the past, for example on threatened species or protected areas, that contain these kinds of pitfalls, that have consequences opposite to the intended aim, particularly when, for example, it comes to creating protected marine areas. When a government acts unilaterally in areas under other governments' jurisdiction it is generally not effective, it is not the right way to proceed.

Fortunately, Bill C-429 does not repeat that mistake, it respects the division of powers and aboriginal rights. This bill is much more worthwhile, in that sense, and can be used as a model or inspiration, but does not impose anything on the provinces, which work within the areas under their jurisdiction.

We should note some other important measures. Bill C-429 provides that the security that may be required in the case of an injunction, for example, in an environmental protection action, may not exceed $1,000.

At Nature Québec, in 2005, in the case of an injunction to stop the construction of an oil pipeline in Oka National Park, in order to enforce the judgment we had obtained and have the construction stopped, we had to deposit $50,000 security under the Quebec Parks Act. Unfortunately, we did not have that money, and we could not enforce the injunction.

It should be noted that Quebec's Environmental Quality Act, which unfortunately did not apply in the case I referred to, provides that the security required may not exceed $500. The maximum of $1,000 proposed in Bill C-429 therefore seems to us to be entirely reasonable and entirely in order. We also welcome the provisions for counsel fees to be paid if there is no abuse of process. We should also point out that in Quebec, when the right to a healthful environment was incorporated in the Charter of Human Rights and Freedoms, the government refused to fund the Centre québécois du droit de l'environnement, which was the only legal organization that the public could use to exercise their right to a healthful environment. That component is essential, in that it is easy to grant rights on paper without anyone ever being able to exercise them, for lack of resources. Access to justice is still a problem in all situations.

On the other hand, Nature Québec is not afraid that if Bill C-429 is enacted there will be a surge of legal actions with the effect of clogging up the system. I know this is a fear among some parliamentarians, that the legal system might be choked, that this opens the floodgates to all sorts of potentially far-fetched actions.

The Quebec experience, after the enactment of the Sustainable Development Act, which in fact contains very broad principles, does not show that there have been abuses of process. We have no reason to think it would be different with Bill C-469. In fact, we will be providing the committee with information in that regard. The chair of the board of directors of Nature Québec, Michel Bélanger, has done a brief overview of legal actions used, or proceedings in the courts, relating to Quebec's sustainable development and environmental protection legislation and under Quebec's Charter of Human Rights and Freedoms. It seems there have been absolutely no problems in that regard, but we will provide you with that information.

In closing, we would like to point out, once again, the fundamental nature of the proposed Act. From a legal perspective, it is well drafted and is based on solid principles, and at the same time respects provincial powers. There can be no society or development, or even economy, if we do not ensure that resources are conserved and the ecosystems essential to life are preserved. The right to a healthy environment and balanced ecosystems must be recognized as a fundamental right that must not be subject to the vagaries of battle in politics and the media. Bill C-469 proposes a social contract, within the limits of federal powers, between citizens and the federal government, to ensure that there can be no loss of control in future, no evasion or abandonment of this fundamental right, without the public having a means of recourse. As in many countries, we have environmental legislation that may look good on paper, but unfortunately, if the inspectors and the will to enforce these laws do not exist, there is no real environmental protection. Bill C-469 provides balance and enables the public to make sure the government abides by the laws it enacts.

Nature Québec invites all parties to unite behind this legislation, which has all it takes to become an inspirational model in a world where cynicism and indifference all too often rule.

[Dr. David Boyd]

I think what you have to consider when you're thinking in broad terms about the right to a healthy environment is that it's really like any other human right, whether it's the right to freedom of expression or the right to freedom of religion; it's a broad concept and it's actually easier to define in terms of its violation than define exactly what it entails.

So over time, what we've seen in the countries where there is legal recognition for the right to a healthy environment is that it acts as a stimulus to raising standards, to raising air quality standards, raising water quality standards, and raising protection for biological diversity in a way that happens in a systemic fashion. One of the problems we've had in Canada is that we have been upgrading our environmental laws in an ad hoc fashion, and that's why some of the advanced features of the Canadian Environmental Protection Act, for example, are not found in other Canadian environmental laws, like the National Parks Act or the Fisheries Act.

I think another thing that this act will do in terms of stimulus is that we already have some very progressive Supreme Court of Canada decisions recognizing in fact that there is a basic value that Canadians have, which is protection of the right to a healthy environment. The Supreme Court of Canada has stated that on two different occasions. But what has really been Canada's Achilles heel is not so much the legal framework; it has been the implementation and enforcement of the legal framework.

I recently did a quick calculation: if you add up all of the fines, penalties, convictions, and prosecutions under federal Canadian environmental law over the past three decades, you get less environmental enforcement than there is in a single year of enforcement by the federal Environmental Protection Agency in the United States. We haven't given enough resources, we haven't had strong enough penalties, and we haven't applied the political will to enforce the laws we have.

One of the most important things about Bill C-469 is that it facilitates the enforcement of Canadian environmental laws and, by so doing, increases respect for the laws that Parliament has enacted.

[Dr. David Boyd]

If I could, I will just add one thing to what Professor Elgie has said.

Another significant distinction between a private prosecution and the environmental protection actions that are available under this environmental bill of rights is that a private prosecution is always after the fact, after the environmental damage has been done, but the way Bill C-469 is drafted, it would actually allow environmental protection actions to be brought to prevent the environmental damage from occurring, which is of course in line with the objective of preventing damage.

Again, to return to Professor Elgie's point, it's much more efficient economically to prevent damage than it is to do cleanup and restoration.

[Dr. David Boyd, Adjunct Professor, Resource and Environmental Management, Simon Fraser University, As an Individual]

That would be a pleasure.

First of all, thank you for the invitation to appear before you today.

Why does Canada need an environmental bill of rights? I believe there are four compelling reasons.

The first is Canada' s poor environmental record.

This record has been demonstrated by studies from the Conference Board of Canada showing Canada ranking 15th out of 17 wealthy industrialized nations on a range of 15 environmental indicators. A study by my colleagues at Simon Fraser University shows us finishing 24th out of 25 wealthy OECD nations on a range of 28 environmental indicators. A study by Yale and Columbia Universities shows 45 countries ranking ahead of Canada. And of course, studies from the World Health Organization and the Canadian Medical Association show that thousands of Canadians are dying premature deaths each year because of exposure to air pollution and other environmental hazards.

As Prime Minister Harper put it so succinctly in his December 2006 year-end interview:

Canada's environmental performance is, by most measures, the worst in the developed world. We've got big problems.

The fact that we have major environmental problems means that we have to consider taking important steps forward, such as introducing an environmental bill of rights.

The environmental bill of rights is a concept that has many potential benefits, including: stimulating the passage and enactment of stronger environmental laws and policies; improving the enforcement of environmental laws and policies; and increasing citizen participation in the environmental decisions that have an impact on their daily lives. It's actually these potential benefits of recognizing the right to a healthy environment that have resulted in an incredible uptake and recognition of this right around the world.

Ms. Duncan referred to 130 countries where there is legal recognition. My research, which I've conducted over the past five years, shows that the number is actually 170 out of 192 UN member nations, nations that have legally recognized the right to a healthy environment, either in their constitutions and their environmental legislation, or through signing legally binding international agreements. That's 89% of the countries of the world, leaving only 22 laggards, of which Canada is one.

In light of that widespread uptake, I've done research looking specifically at the 100 countries where there is a constitutional right to live in a healthy environment. I'd like to share the results of some of that research with you, because I think it indicates the extent to which the potential advantages that I mentioned earlier are in fact being realized.

Close to 80% of the countries that I studied have improved their environmental laws since recognizing the right to a healthy environment. There has been a significant increase in enforcement in a majority of those countries. Perhaps most importantly, what we're seeing is cleaner air, improved access to clean water, and overall improvements in environmental performance. I can provide some statistics to back up those anecdotal references.

I looked at the ecological footprints of 150 nations--116 with constitutional environmental rights and responsibilities, 34 without--and globally the ecological footprint of nations that recognize environmental rights and responsibilities in their constitutions is significantly smaller. I also looked at performance indices, such as those done by the Conference Board of Canada and those comparing OECD nations, and in all cases there is a statistically significant difference, to the good side, in countries that have environmental provisions in their constitutions.

Third, in terms of the performance, what we've seen is that since 1980--and this is just looking at the wealthiest industrialized nations, the 17 countries that are studied by the Conference Board of Canada--the countries with environmental rights and responsibilities in their constitutions have decreased nitrogen oxide emissions 10 times faster than the countries without. They have reduced sulphur dioxide emissions by an average of 85%, versus 52% for those countries without. They've reduced greenhouse gas emissions eight times faster than those countries without.

So there is a powerful set of empirical facts demonstrating that legal recognition of environmental rights and responsibilities provides exactly the kinds of advantages that we're looking for in terms of having introduced those legal provisions.

The third thing I go into some detail on in my brief is the history of the right to a healthy environment in Canada, which dates back close to 40 years. The legal recognition of the right to a healthy environment has been proposed by both Liberal and Conservative governments in the past in Canada, but as of today, no federal legislation, regulation, policy, or program explicitly recognizes that Canadians enjoy this fundamental human right.

As Ms. Duncan alluded to, there are four provinces and territories that do have legislative recognition of the right to a healthy environment. There is one modest correction in that in 1978, Quebec was actually the first province, with their Environment Quality Act, to recognize the right to a healthy environment.

Canada is lagging behind the majority of nations in the world by failing to recognize the right to a healthy environment. That's why this bill, Bill C-469, is so important for us as we move forward and attempt to improve our environmental performance.

Ms. Duncan reviewed the main provisions of the bill, so I won't go through those in detail other than to say that the general effects that we're likely to see from the enactment and implementation of Bill C-469 are improvements to the health of Canadians, improvements to the health of Canada's environment, and improvements to the health of Canada's democracy.

You have my brief. I have a few specific recommendations for minor improvements to the bill, which include shifting the responsibility for responding to requests for reviews from the minister to the Commissioner of the Environment and Sustainable Development. That would simply make the mechanism more effective. Another recommendation is to add a provision to the bill recognizing that Canadians not only have the right to live in a healthy environment but also have a responsibility to protect the environment. The third one is adding some rules that would actually expedite legal procedures--for example, strict timelines, so that cases don't drag on for years. Another specific change would be to add specific legal remedies to the section on civil actions.

I've also provided some recommendations that are slightly outside the clause-by-clause parameters of Bill C-469, such as actually bringing into force the Environmental Enforcement Act, which was passed in 2009, so that we have stronger environmental penalties. That's a step forward. I think it's important to understand that Bill C-469 actually works hand in glove with the government's Environmental Enforcement Act by allowing citizens of Canada to contribute to the improved enforcement of our environmental laws.

As well, if Canada wants to improve its reputation internationally with respect to human rights and the environment, then we need to ratify the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters. It's also long overdue for Canada to ratify the American Convention on Human Rights and the associated San Salvador protocol, which recognizes the right to a healthy environment.

The last thing I would say is that my research, as I mentioned, looks at constitutions and constitutional environmental rights and responsibilities. An analogy can be drawn here with human rights legislation, which we had in Canada for many decades and which didn't result in an improvement in the protection of human rights in Canada. Also, I would note that ultimately we're going to require constitutional amendments so that we have a constitutional right to a healthy environment and constitutional obligations to protect that environment. That really represents the gold standard and, as we've seen from my research, it results in positive outcomes in terms of health, the environment, and democracy.

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

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Thank you, Mr. Chair. I will try to be succinct, and I know you will hold me to that.

I'm delighted to be here. It's a great privilege to have tabled this bill. It is a bill that many individuals and organizations across the country have been working on for decades, and that includes me.

I'm looking forward to hearing from all the witnesses that all of the parties have put forward. I think we're going to have a really good dialogue on the bill and I'm looking forward to it. We have two particularly outstanding witnesses following me, and I'm delighted that they're been available to testify.

Briefly, the purpose of the bill is to implement the right to a clean, healthy environment, an ecologically balanced environment for all Canadians, and it imposes the duty on the government to uphold those rights. Interestingly, this is a bill that we should have no problem whatsoever to find unanimous consent for, because all four parties that have been elected to our federal House have espoused support for these principles.

I could give one example. The 2008 Conservative Party of Canada policy declaration commits to a “belief that the quality of the environment is a vital part of our heritage to be protected by each generation for the next”. That, of course, is one of the principles that this bill is founded upon.

The whole purpose of this bill is to provide a legislative measure to implement the accountability measures that all four parties of the House have espoused and have said they support. The purpose of this bill is to give them the mechanism so that we can implement those principles.

Nowhere is that principle more important than in environmental protection. We have signed treaty after treaty and international agreement after international agreement committing to public participation and transparency in environmental decision-making. What this bill does is provide the legal framework to implement those commitments and duties.

This bill is grounded in a number of international principles that the Government of Canada has endorsed. One of those is the precautionary principle. A second is the principle of environmental justice, and that includes both the substantive and procedural rights that are included under the justice principles. It also endorses the polluter pays principle. Finally, the bill is based on the premise that it is the responsibility of the government to preserve and protect the environment in the collective interest of current and future generations of Canadians.

As has been pointed out several times--and I know we're going to have witnesses today speaking to this matter--more than 130 nations, as far as I've been recently updated, have enshrined the right to a clean, healthy, ecologically balanced environment either in their constitutions or in their national laws. For example, a number of nations that we are in the process of signing trade agreements with--or that we have signed with--have incorporated those rights. They include: Colombia, Panama, Cuba, Kuwait, Indonesia, Afghanistan, Mexico, Germany, Russia, Ukraine, United Arab Emirates, Sweden, Switzerland, and South Africa. The list goes on and on. Thus far, unfortunately, Canada is one of the countries that hasn't done that, even though it has happened at the provincial level.

A number of Canadian provincial and territorial governments have already taken action, and quite some time ago; I think it was as far back as 1988 that the Northwest Territories was the first off the plate. It enacted the right to a clean, healthy environment and imposed the duty on its government to uphold those rights, and included the bundle of rights that are included in this bill that I've tabled. Ontario followed suit with a separate environmental bill of rights. The Government of the Yukon has included that bundle of rights within its environmental statute, and Quebec has also enshrined those rights.

Past federal governments have enshrined some of the rights that are included in Bill C-469. For example, there is the right to seek an investigation of an environmental offence and, in some cases, to initiate legal proceedings, but for the most part that is only in the Canadian Environmental Protection Act. Despite some measures taken by the current federal government to provide consistency across environmental statutes--for example, through its enforcement bill tabled last year--it has not provided consistency in this arena and has not incorporated the same kinds of rights and opportunities in CEPA.

In the federal government, there is no comprehensive stand-alone law yet to incorporate these very principles that all four parties have espoused, despite the fact that there has been broad support by Canadians across the country.

What are the key purposes? As I've mentioned, the environmental bill of rights grants every resident of Canada the right to a healthy and ecologically balanced environment and, most importantly, imposes the obligation on the Government of Canada, within its jurisdiction, to protect those rights. The bill would also amend section 1 of the Canadian Bill of Rights to include the right to a healthy and ecologically balanced environment.

What new rights and duties, specifically, are created through this bill?

First is the protection of the public trust. Under existing law, some federal ministers are obligated to do a number of specific actions to protect the environment. For example, under CEPA, the federal Minister of Health has a mandatory duty to look into information about any health impacts associated with toxins that comes to her attention.

Generally speaking, these kinds of rights and duties are not imposed in other federal laws. For the purpose of consistency, because we always talk in our House about the need to be consistent and to respect provincial jurisdiction, it only makes sense that we follow consistently and prescribe these same duties in our federal law: the right to protect the public trust and the obligation of the government to protect that trust.

Second, Bill C-469 would ensure access to environmental information. We do, of course, have the Access to Information Act, but we've been having some problems with that act. Bill C-469 would compel the government to provide effective access to information in a reasonable, timely, and affordable manner.

All three of those categories are very important. Across the decades, Canadians have had problems in all three categories when accessing federal documents. We brought to your attention, as noted in my brief to the committee, the fact that just last year the Information Commissioner gave Environment Canada and Natural Resources Canada a grade of F on making environmental information available to the public. So clearly we need a strong regulatory measure to make sure the federal government responds in a timely fashion to these requests.

Third, the bill would provide a right to participate in environmental decision-making. That includes the right to participate in decision-making by the Government of Canada and also the right to appear before the courts. It would remove that extra barrier and cost for concerned members of the public, who actually have to go to court and prove standing before they bring this substantive matter before the courts. It would provide them the opportunity both to participate in environmental decision-making and to raise a serious matter before the courts, despite the fact that they lack a private or special interest in the matter. In other words, the whole point is to provide an opportunity for the public to step forward and represent the public interest.

By enacting this right and duty, Canada's commitments and obligations under numerous international laws and agreements would be enshrined in domestic law. By way of example, Canada has committed to extensive participation rights and access to information under the Rio Conventions, Agenda 21, the North American Agreement on Environmental Cooperation, and, more recently, the U.S.–Canada Clean Energy Dialogue. Consistent with this participatory right, the bill entitles any Canadian resident to apply to the Commissioner of the Environment and Sustainable Development for a review of law, policy, regulation, or statutory instrument.

Fourth, the bill provides for the right to compel the investigation of an environmental offence. Again, as I mentioned, this right and opportunity already exists under the Canadian Environmental Protection Act, as it exists under most provincial law. This bill will accord that right to all environmental statutes, whether they deal with toxins, fisheries, wildlife, migratory birds, climate change, or environmental assessment.

Fifth, the act extends the opportunity to the public for basic access to legal remedies. There are three categories of environmental remedy. One is an environmental protection action. Another is access to seek judicial review of a federal law. The third is civil action. I won't go into the details. I could answer questions about them during questions.

Sixth, the act would provide whistle-blower protection. Essentially, that means that federal employees who are scientists or technicians, or who have scientific or environmental information and who step forward to participate in decision-making, initiate an investigation, provide information, give evidence, or in good faith refuse to act, would be protected under this statute.

Finally, there is the examination of bills and regulations. Similar to the laws enacted by the provinces and territories, this bill would mandate 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 and intent of the Environmental Bill of Rights.

In closing, I wish to express my deep appreciation to all the people who helped me in drafting this bill. That help came from ordinary citizens. It came from communities across Canada. It came from legal experts. I am indebted to them for the extensive work they've done in this field, and we're going to hear from some of them as witnesses.

I believe that Canadians are deserving of a legal right to a healthy and ecologically balanced environment and the opportunities to pursue those laudable goals, and I think the government should be accountable for delivering those rights and opportunities. I'm open to questions.

[The Chair (Mr. James Bezan (Selkirk—Interlake, CPC)), NDP, Linda Duncan]

We'll call this meeting to order. We have quorum.

We are starting a little bit late and we do have votes tonight, so we have to try to stay on schedule as much as possible.

As you know, we're at meeting number 31 of the Standing Committee on Environment and Sustainable Development. We're going to study Bill C-469, An Act to establish a Canadian Environmental Bill of Rights, pursuant to the order of reference that we received back on June 16. We're going to do this in three different mini-panels today.

The sponsor of the bill, Ms. Duncan, member of Parliament for Edmonton-Strathcona, will introduce the bill to committee.

Linda, the floor is yours.

Canadian Environmental Bill of Rights

[The Speaker, Liberal, Peter Milliken]

The House will now proceed to the taking of the deferred recorded division on the motion at second reading stage of Bill C-469 under private members' business.

The House resumed from June 15 consideration of the motion that Bill C-469, An Act to establish a Canadian Environmental Bill of Rights, be read the second time and referred to a committee.

[Jim Maloway, NDP, Elmwood—Transcona, MB]

Mr. Speaker, I must admit that I am enjoying this debate a lot and I have not even started speaking to the bill.

I want to point out for the voters in the riding of the member for Edmonton—Strathcona that they certainly got a bargain when they chose her as their member. She is extremely energetic. I do not think she ever sleeps. She constantly works and puts top effort into it.

It is interesting to note that the government has used every means at its disposal to try to derail this bill. On May 6, the Parliamentary Secretary to the Leader of the Government in the House of Commons told the Speaker that the bill required a royal recommendation. That is a government manoeuvre to slow down a bill because a private member's bill cannot call on the government to expend money. Governments draw long bows in many cases and look for obscure arguments to try to get bills ruled out of order on the basis that they need a royal recommendation.

Like the road runner in the cartoon, the member for Edmonton—Strathcona has gone through the government's defences. The Conservatives lost their request to the Speaker. The Speaker ruled in favour of the member for Edmonton--Strathcona, so it is now onward and upward with this bill. I believe the Liberals, the NDP and the Bloc are all united in support of Bill C-469. The government's best laid plans have gone awry and that is good news.

Bill C-469, An Act to establish a Canadian Environmental Bill of Rights, would be a first for Canada. I support this historic federal bill, which would enshrine the right of all Canadians to a healthy environment.

Rights are a reflection of what matters most to a society. At this point in history, few things pose a greater risk to the health and well-being of individuals and communities than the health of our planet. We only have to look at what is happening in the Gulf of Mexico right now. If that is not a wake-up call, then I do not know what is.

Recognition of environmental rights is a global phenomenon. National governments are stepping forward to recognize some form of right to a healthy environment in national constitutions. It has been pointed out that 130 countries recognize the right to a healthy environment in their constitutions.

We only have to look back to the recent past to see what happened after the fall of the Soviet Union. Rivers were polluted and the Chernobyl meltdown caused much devastation. We discovered that the military was dumping nuclear waste into the ocean. Even the American military has done such things in the past.

People demanded changes. They realized we cannot sustain ourselves in a toxic environment. There have been rising cancer rates among farmers across this land. There have been increasing movements to restrict cosmetic pesticides, to identify chemicals in things like perfume.

People are taking a positive approach to the environment and holding industry to account, and that rankles the Conservatives. Big business dislikes any type of tough environmental regulations because it hits it on the bottom line. Many businesses would like to move all production to the Third World, and they have certainly done a lot of it, but they cannot just pack up and take everything away. They will fight all attempts to hold them accountable in terms of tough environmental laws.

International bodies, regional authorities, and local municipalities all over this planet are declaring the right to clean air, clean water, and uncontaminated land. In fact, our environmental rights are enjoyed in over half the countries in the world, through either international agreements or the provisions of national constitutions.

The first document in international law to recognize the right to a healthy environment was only written in 1972, just a short time ago. The Declaration of the United Nations Conference on the Human Environment, also known as the Stockholm Declaration, was adopted June 16, 1972 at the 21st plenary meeting of the United Nations.

The first principle of the Stockholm Declaration states:

Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations.

Since the adoption of the Stockholm Declaration, the world has seen a huge shift toward confirming environmental rights. Today a proliferation of international law agreements and at least 85 national constitutions recognize some form of right to a healthy environment. Environmental rights are also enshrined in the sub-national constitutions of many nations, such as state constitutions and provincial charters.

I might point out that it is disasters like the BP experience in the United States that will actually drive the agenda. We cannot see a lot of good coming out of a disaster like this, but it will actually set the legislative agenda, certainly in the United States, and probably in other countries around the world. It will pull a lot of people, a lot of politicians who are in the middle, onside and will make them recognize that we have to take a very tough position against the corporations.

In many respects, we cannot blame the corporations for wanting to maximize profits, as long as we have a system in our country that rewards the maximization of profits at all costs and rewards the executives with bonuses based on how efficient the system is and how lean and mean they run the company. They lay off the inspectors. They lay off the professionals. They operate with skeleton staff at the lowest possible cost to maximize profits so that they can get bigger bonuses. Any kind of environmental consideration is basically thrown by the wayside. Clearly, appealing to their good sense and corporate responsibility is not going to work. To rein in these corporations, they have to be legislated, and the legislation has to be followed up with proper enforcement and proper penalties.

These rights are further upheld by the national and sub-national legislation of many nations as well as by the declarations of countless local governments. Despite this global trend, environmental rights remain largely unconfirmed in Canada. The Canadian Charter of Rights and Freedoms does not address environmental protection or environmental health. In fact, environmental rights are recognized by only four provincial and territorial laws: Quebec, Ontario, Northwest Territories, and Yukon.

Environmental rights recognize and seek to protect the quality and health of the environment that is essential to human life and dignity. For example, the constitution of Argentina recognizes that all inhabitants should enjoy the right to a healthy and balanced environment that is fit for human development so that productive activities satisfy current needs without compromising those of future generations. They also have the duty to preserve the environment. Damaging the environment generates the obligation to repair it, and as a priority, in the manner established by law.

I had another example from the Philippines. A court in the Philippines has ordered a cleanup of the highly polluted Manila harbour, based on the constitutional right to a balanced and healthy ecology. There is also a case from Costa Rica, where a constitutional court ordered a halt to the unsustainable sea turtle fishery based on the constitutional right to a healthy and ecologically balanced environment.

As we can see, it can be done if we have a will to do it, and I think that we are getting there, little by little. We are getting there.

[Mark Warawa, Conservative, Parliamentary Secretary to the Minister of the Environment]

Mr. Speaker, I appreciate the opportunity to speak to Bill C-469.

Surveys with Canadians regularly rank environment and economic issues as number one or number two and what they want the government to place on the government's agenda. It is their high priority, as it is with this government.

These two issues, the environment and the economy, also have an important link in C-469.

First, we understand that the bill's intention is to ultimately provide better environmental protection in Canada. However, although it is a good objective the effectiveness of these rights compared to those which already exist still need to be proven. Canadians have watched as Parliament and successive governments have passed several laws and regulations to protect the environment. However, without a serious enforcement of the laws and regulations, environmental protection remains theoretical.

To achieve real goals in environmental protection, we need to have better enforcement of the laws and regulations that we already have. Our government is proud to have concentrated its efforts in the area of enforcement, notably through the adoption of the Environmental Enforcement Act nearly a year ago. We are already seeing a positive effect from that legislation.

As I mentioned in my introduction, Canadians also place an importance on the economy. In particular, Canadians expect the government to manage public funds effectively and with the greatest of care. However, we see that the impact of the rights proposed in Bill C-469 on Canada's economic growth and especially on the government's budget have not yet been documented.

With the perspective of sustainable development, it is imperative to evaluate each legislative measure so as to ensure the best possible synergy between environmental objectives and economic security. However, the creation of individual environmental rights could, depending on how they are written, lead to high cost and significant delays resulting from legal battles that would unduly delay the achieving of the planned objectives.

Furthermore the litigiousness of the environmental protection caused by Bill C-469 should in our view be questioned. The creation of individual rights to a healthy environment could cause in the transfer of environmental decisions from elected members of the government to non-elected members of the judiciary branch, who are not required to report to Canadians.

It should be remembered that Bill C-469 essentially proposes the creation of three types of environmental rights.

First, the bill proposes the creation of a right to a healthy and ecologically balanced environment for each Canadian resident in addition to creating a corollary obligation of the government to protect this right and to act as a trustee for Canada's environment. Legal actions would allow Canadians to enforce the execution of the obligations.

Second, the bill proposes a series of procedural environmental rights, including measures for the public's participation in the decision making process and the right to demand inquiries and access to information rights.

Third, the bill proposes civil action where any Canadian resident can ensure environmental protection from another person who has violated or who may violate the law, regulation or any other federal regulatory test.

In the first hour of debate, my opposition colleagues placed a lot of emphasis on the first type of right in Bill C-469 as proposing to create; that is to say the right to a healthy and ecologically balanced environment. The opposition colleagues gave a grim picture of the current situation in Canada. It was mentioned several times that, unlike Canada, more than 130 countries had included environmental rights in their constitution. The member for Edmonton—Strathcona notably quoted the example of India and Bangladesh, which have incorporated such rights in their constitutions. Given the serious impact of this bill, this comparative analysis needs to go a bit further.

First, it should be remembered that Bill C-469 would do nothing to amend the current lack of environmental rights in the Canadian Constitution. Rather the bill proposes to add the right to a healthy and ecologically-balanced environment to the Canadian Charter of Rights and Freedoms and to add this right to the new Canadian charter of environmental rights.

Second, it should be pointed out that of the 31 member countries of the OECD, 19 have not included any explicit right to a healthy environment in their constitution. Among the countries that have not explicitly recognized environmental rights, there are Australia, Denmark, Germany, Mexico, The Netherlands, Sweden, the U.K. and the United States. Furthermore, even in the number of OECD countries that have inserted explicit environmental rights in their constitution, this right is sometimes subject to limitations.

When we take a closer look at Bill C-469, we realize that it is an original proposal, different from most environmental right instruments being used currently around the world. For example, the obligation that would be given to the government to protect the right to a healthy and ecologically balanced environment and the corollary recourse by which legal action could be taken against the government because it did not ensure the enforcement of its law in a specific case is unprecedented. The discretion to enforce a law usually rests with the government.

During the first hour of debate, the member for Ottawa South referred to the Yale-Columbia environmental performance ratings. The ratings have countries, such as Bangladesh and India, ranked 139th and 123rd respectively in terms of environmental performance. In contrast, other countries which do not have environmental rights included in their constitution are countries such as Iceland, Switzerland, Sweden and the U.K. and they are ranked first, second, fourth and fourteenth in the report.

Without making any statements on the accuracy the Yale-Columbia rankings, it is obvious to me that whether environmental rights are included or not in the constitution is not in itself a determining factor on the state of the country's environmental protection measures. That is why we think we need to be very careful making a comparative analysis of Bill C-469 with the environmental rights placed in other jurisdictions.

Bill C-469 is unique because it is placed within a specific context, the Canadian legislative system, a system that already includes several environmental laws and several environmental protection measures. A thorough analysis of Bill C-469 requires participation from legal and scientific experts in order to evaluate the true impact of the bill on environmental protection, economic growth and social fairness in Canada.

By comparison, it should be pointed out that in France, the adoption of the environmental charter in February 2005 was done after four years of preparation from the Coppens commission, a commission composed of two committees, one legal, the other scientific. The commission also consulted more than 55,000 stakeholders during the course of its work.

It should also be mentioned, by the way, that the French environmental charter stipulates procedural environmental rights, such as access to information and participation in public decisions that have an impact on the environment, but only under conditions and limits defined by law. This type of express limitations is reminiscent of the environmental rights inserted into Ontario and Quebec law, which were defined within the limits stipulated by law.

We believe the measures included in Bill C-469 are unique and complicated, making it a bill whose consequences on the environment and the economy are not known. It would therefore be essential to wait for the stakeholders involved in this bill, including legal and scientific experts and economic stakeholders before making a final judgment.

[Megan Leslie, NDP, Halifax, NS]

Mr. Speaker, I am so thrilled to rise in the House today and speak to Bill C-469 that would create an environmental bill of rights.

This bill was tabled by my friend and colleague, the MP for Edmonton—Strathcona, herself a tireless advocate for the protection of the environment for all Canadians, but in particular for future generations. Thanks to her vision, we have a bill that addresses not just a solution for one environmental issue or another, not just a policy position on climate change or toxins or land protection, but a true bill of rights, a historic federal bill that would enshrine the right of all Canadians to a healthy environment. I applaud my colleague for her efforts which have been crystallized in this piece of legislation.

As the NDP health critic, I want to use my time to talk about the links between environment and health because the two issues are so inextricably linked that I actually consider this to be somewhat of a bill of rights for health as well.

The purpose of the Canadian environmental bill of rights is to safeguard the right of present and future generations of Canadians to a healthy and ecologically balanced environment, to confirm the Government of Canada's public trust duty to protect the environment under its jurisdiction, and to ensure that all Canadians have access to adequate environmental information, justice in an environmental context, and effective mechanisms for participating in environmental decision-making.

I see this bill of rights as linked to health because, according to the World Health Organization, one-quarter of all preventable illnesses can be avoided through environmental management programs because those illnesses are directly linked and directly caused by environmental factors.

The health risks resulting from damage to the environment include the exposure to physical, chemical and biological factors. If we look at, for example, just air quality, human health is affected by air pollution, ranging from mild changes in respiratory function to increased mortality from respiratory and cardiovascular morbidity. For children, air pollution is of particular concern, as it raises the risk for acute lower respiratory infections, asthma and even low birth rate.

When our water, our air or our soil is affected, it in turn affects our bodies in terms of the development of illness and disease, the spread of illness and disease within populations and our ability to fight them off. Think of what it could mean for people's lives if the air, the water, and the soil that they interacted with, that their food grows in, and that their children play in was toxin-free and pollution-free.

Food production is also an incredibly important part of the environment and health. Biodiversity has to be a goal of ours, as well as sustainable food practices. This is how we can look at both the environment and health, and protect them both. We need to start thinking about the interaction between climate and health, and the negative effects that climate change renders on our planet and the health of our population.

According to the World Health Organization around the world, 13 million deaths annually are due to preventable environmental causes. Preventing environmental risk could save as many as 4 million lives a year in children alone, mostly in developing countries. This is a piece of Canadian legislation, but this bill shows leadership and it would set an example around the world.

We have heard quite a bit about this bill in the House already, but there are two parts of the bill that I would in particular like to highlight.

First, this bill provides legal protections for employees who exercise their rights under the bill in the name of environmental protection, potentially by providing evidence contrary to commercial interests or of their employer. This is incredibly important, as we want to encourage people to protect their fellow citizens, and not allow corporations and industries to make decisions and take actions that are dangerous and contrary to the public good, something that has been going on for years with disastrous consequences.

Second, this bill mandates that the Auditor General is obligated to review bills and regulations for violations of the environmental bill of rights, and to report any such violations to Parliament. This is exactly the accountability that is required to protect the health and the environment of Canadians.

Not too long ago in Halifax, I met with some amazing young people who live downstream of the tar sands. They were in Halifax raising awareness about their situation and the realities of living downstream from the largest industrial project on the planet.

Jada Voyageur is a young mother and activist who lives in Fort Chipewyan, a community that has been hit hard by cancer and other health impacts linked to contamination of water and wildlife. Simon Reece is the downstream coordinator for the keepers of the Athabasca, a group dedicated to uniting peoples in the Athabasca River and lake basins to secure and protect lands in the watershed. I met with both of them when they were in Halifax.

Ms. Voyageur and Mr. Reece were in Halifax to talk to people about how the operation and development of the tar sands is driving our national agenda on climate change. It comes at a very high cost to the surrounding environment and their people. They pointed out that as the G8 and G20 meet this summer in Toronto to discuss, among other matters, maternal and child health, our leaders are ignoring the health of mothers and children right here at home in Canada.

I was touched by their stories, moved by their passion, and inspired by their courage to take on the economic and political power of tar sands developers. When my colleague from Edmonton—Strathcona told me about her bill, the environmental bill of rights, I thought about Ms. Voyageur and Mr. Reece. I thought about the calls I have received in my office from people living around the Sydney tar ponds and dealing with the health impacts of that.

I thought about the people in Sydney who have been fighting for justice for decades. I thought about the Hillside-Trenton Environmental Watch Association in Nova Scotia, who are crusaders in linking health to the coal fire power plant in the middle of the community. I thought about mercury in our fish and toxins in our water. I thought about my hometown, a town built on a lake that does not exist anymore, a lake that was filled in with mine tailings just like so many lakes around it.

I thought about how this bill would change everything and I was very hopeful. It is with great pride and hope that I support the environmental bill of rights. I strongly urge all members of the House to do the right thing, to do the just thing, and support it with me.