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.

Canadian Environmental Bill of Rights

[Linda Duncan, NDP, Edmonton Strathcona, AB]

moved that Bill C-438, An Act to enact the Canadian Environmental Bill of Rights and to make related amendments to other Acts, be read the second time and referred to a committee.

Madam Speaker, there are many in this place who know that I have long awaited the opportunity to debate this bill again. It is Bill C-438, an act to enact the Canadian Environmental Bill of Rights and to make related amendments to other acts, because that includes an amendment to the bill of rights.

This is the fourth time that I have tabled this bill in 11 years in this place over three Parliaments. I believe the first time I tabled it was as soon as I was elected, somewhere between 2008 and 2009. That bill was debated and went through committee, and I will get into that in a minute. Today, in the brief time I am allotted, I hope to say what an environmental bill of rights is, what its origin is, why it is needed, and who has endorsed the need for an environmental bill of rights.

The environmental bill of rights legally extends the right to a healthy, ecologically balanced environment to Canadians. It confirms the duty of the Government of Canada to uphold its public trust duty to protect the environment. It amends the Canadian Bill of Rights to add environmental rights. It extends a bundle of rights and tools to Canadians, including having a voice in decisions impacting their health and environment, having standing before courts and tribunals, and having the power to hold the government accountable on effective environmental enforcement and on the review of law and policies. It extends protections for government whistle-blowers who release to Canadians information that is relevant to health and environmental impacts.

As I mentioned, I have tabled this bill four times over 11 years in three successive governments. My bill actually survived a challenge and gained a speaker's ruling in my favour when the Conservatives tried to crush it in 2009. It did proceed to second reading and on to committee. Sadly, it was essentially shredded at committee. It then died on the Order Paper when the early election was called.

I retabled it again, as I mentioned, in 2011 and 2015 and again in a revised, updated form in 2019.

Why is an environmental bill of rights needed? Community voices, the voices of non-governmental organizations and indigenous voices are absolutely critical triggers for action to protect health and the environment. Federal law and policy is made all the stronger with public engagement, and public rights are absolutely critical to government accountability. That has been my direct experience over the almost 50 years that I have been an environmental lawyer and advocate.

I want to now give a couple of examples of what happens when the public is engaged and their rights are upheld, and what happens when they are not.

One strong example is an engagement that I had, along with a small community organization in Alberta. We were dealing with how to improve air emissions from coal-fired power. Coal-fired power is still the major source of electricity in Alberta and Saskatchewan, and it is huge in Nova Scotia and New Brunswick.

Mercury from coal-fired power is the largest source of industrial mercury in North America, and mercury is a neurotoxin. It was the first substance listed by the federal government under the former Environmental Contaminants Act and was incorporated into the Canadian Environmental Protection Act, yet to this day, the federal government has never regulated mercury from coal-fired power.

I intervened as a volunteer in the review of the standards. It is a consensus process. I dug in my heels. If industry wanted to get their emissions standards for NOx, sulfur dioxide particulate, they had to agree to my recommendation that mercury had to be captured by that sector, and there had to be a law in place. To the credit of the Alberta government, they enacted that law.

That is a clear example showing that had my community not intervened, neither the federal nor the provincial government would have stepped forward, after 40 years of burning coal in Alberta, to actually stop the flow of mercury into our lakes.

Another example that we have been talking about over the last couple of months in this place is the issue of mercury at Grassy Narrows, and there is a different example. If the indigenous community at Grassy Narrows had been directly engaged in decisions on how those industrial operations were going to operate in their community and along the river and had been engaged on the issue of whether or not it was safe to put effluent that had high levels of mercury contamination into the river, and if they had been given the information on the potential health and environmental impacts and a seat at the table to have a say in how that plan should operate, I do not believe that we would be facing the health impacts and the expense of cleaning up that area now.

Those are the two differences in what happens when we have some environmental rights, the opportunity to be at the table and access to information. The other, Grassy Narrows, is an example of where we did not do that and there is a high cost, both health-wise and financially.

A number of times in this place I have raised concern with the impact of emissions on the indigenous community next to the Sarnia industrial complex and the failure of both levels of government to combat those and do proper health studies and control. That community has struggled just in trying to get basic information on what the emissions are, whether controls are in place and whether it is impacting their health.

Ongoing frustration was felt by indigenous communities in northern Alberta when they attempted to finally have a health impact study delivered in their communities on the impact of oil sands emissions on their health, despite the fact that there was a release quite some years ago about the high rate of rare cancers. A lot of work was also done by scientists, showing a buildup of contaminants in the Athabasca River, in the air and on the land.

Just this week, three chiefs in that area published an article in The Hill Times. They said the oil sands is the only activity in their area for employment and economic development. They invest in the oil sands. They demand to have a seat at the table on decisions as to whether or not they are going to allow the draining of the contaminated water in those tar ponds into the Athabasca River. It is going to contaminate the Athabasca River on to Lake Athabasca and on into the Northwest Territories. This has been going on for many years and the government, behind closed doors, has been making these decisions.

This is a perfect example of the need for an environmental bill of rights. If we had an environmental bill of rights, those communities would have the right to all that information, the right to the process that is going on, and the right to have a seat at the table in determining whether or not that is a wise decision.

The Mikisew Cree eventually had to go to UNESCO to demand that there be action on the impact of the Site C dam, the Bennett dam and the oil sands operations on the Peace-Athabasca Delta and the world heritage site. They issued directives, and we are still waiting for the government to act on those directives.

Two other final examples are pipelines. If the former Conservative government had actually listened to its advisers, if it had listened to first nations and if it had listened to the environmental community, it would have known it could not proceed with the northern gateway pipeline until it respected first nations' rights and interests. It was the same issue on the TMX pipeline, but as the court held, there was no consideration under the government obligations with regard to endangered species. Therefore, those projects have been stalled or cancelled.

If we had an environmental bill of rights, it would clarify the right to participate, the right to access to information and the right to access to experts and to legal counsel, so that one could come to the table in a constructive and informed way.

Who has endorsed this concept? Some provinces and territories have enacted an array of environmental rights, and some of those limited rights have been enacted in federal laws. Sadly, a good number of those laws were downgraded by the Harper government. That government downgraded the federal impact assessment process, thereby limiting the opportunities for people to participate and the kinds of projects that would be reviewed, including the expansion of oil sands projects and in situ operations.

The Liberals promised in the 2015 campaign that they would immediately strengthen federal environmental laws. Four years into it there is still no action on the report of my committee on reforming CEPA, which would have expanded environmental rights, and we do not know what the fate of Bill C-69 is. We are waiting with bated breath to know what will happen to all of those regressive amendments proposed in the Senate.

The North American Agreement on Environmental Cooperation was a side agreement to NAFTA. It was enforced by the Commission for Environmental Cooperation, where I had the privilege of working for four years as the head of law and enforcement. Under that agreement, Canada, along with Mexico and the United States, committed to public participation in conserving, protecting and enhancing the environment. It also committed to giving people the opportunity to comment on proposed environmental measures and the right to seek a report on effective environmental enforcement, stand before administrative, quasi-judicial and judicial proceedings, and have access to remedies. Those are exactly the provisions that are in the bill before us today.

Canada already committed years ago to move forward and uphold these rights. Therefore, I have tabled this proposal over and over again to try to encourage the government to respond to the current trade law. In a minute, I will speak about what the government could have done and was asked to do.

There is a side agreement to the proposed new trade law. However, I am sad to say it has been downgraded from the existing one. All of the trade deals that have been signed and sealed since NAFTA have downgraded the environmental rights enshrined in the side agreement.

The United Nations Human Rights Council special rapporteur was asked to look into human rights obligations relating to the enjoyment of a clean, safe, healthy and sustainable environment. He travelled the world for four years. On behalf of the Human Rights Council, he issued an environmental bill of rights framework for all nations to adopt. Guess what. It is exactly the framework in my bill.

Over 90 nations have extended these rights through constitutions, laws, court rulings, international treaties or declarations. Canada is far behind.

In 2009, the Aarhus convention was signed by many countries of the world, by and large by European and Scandinavian nations. It committed the signatories to provide access to information, public participation decision-making and access to justice and environmental matters. Canada said it did not have to sign it because it was already extending those rights. In fact, it has not done that yet.

Recently, to the credit of many in this place, many members of Parliament signed the environmental rights pledge issued by the David Suzuki Foundation through the Blue Dot campaign. We had a big celebration on Monday night, celebrating the fact that so many parliamentarians were committed to enacting environmental rights.

This is something interesting. In 2018, the Liberals held a federal convention and passed a resolution. That resolution reminded the Liberals that in June 2010, all Liberals members of Parliament present in the House of Commons voted in favour of Bill C-469, which was my environmental bill of rights. The convention reminded the members that the United Nations recognized environmental rights as a basic human right. They then passed a resolution, saying that the Liberal Party of Canada urged the Government of Canada to enact legislation establishing a Canadian environmental bill of rights.

I have said all long, since the first day I was elected in 2008, that I would welcome the government of the day to take my bill and enact a full-fledged bill. Here we are with a couple of weeks left in this place and nothing has occurred. That is why I am delighted I can debate the bill, and I look forward to the response of some of my colleagues.

To date, over 3,000 Canadians have signed petitions, both e-petitions and hard-copy petitions, saying that they support the enactment of this environmental bill of rights. Ecojustice, the David Suzuki Foundation and, most recently, the Social Justice Cooperative Newfoundland and Labrador have endorsed this bill and called for action by the government to enact this law.

I look forward to hearing the comments from other parties in the House. It has been my absolute pleasure to work with other members of Parliament on environmental matters. I know there are strong promoters of environmental rights here, and I hope to hear from them this evening.

Opposition Motion--Climate Change

[Mark Warawa, Conservative, Langley, BC]

Mr. Speaker, I listened intently and I want to thank the member for her comments on this very important issue.

She said she wants action. Of course, she is seeing action. Does she disagree with the action that the government has taken, specifically in regard to asking all major emitters to sign on to a new international agreement that will truly reduce greenhouse gas emissions?

With the NDP bill in the last Parliament, Bill C-469, it did not want to have the major emitters participating in a new international agreement. Has the NDP position changed now or did it want to continue on with only 27% of greenhouse gas emissions--

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Thank you, Chair.

I'm just going to fire my questions out there--I've got about four. For those of you who feel comfortable responding, please do so.

The first thing I'm going to talk about is the Species at Risk Act. This committee is undergoing a study of that right now. We've heard from other department officials that the expenditures to date under the Species at Risk Act have amounted to hundreds of millions of dollars, yet not one species at risk has been moved off the various schedules in that act. Can you tell me what's being done in the department, as far as budgetary allocations, on any evaluations to determine dollars versus results, to ensure the taxpayer dollars are being used wisely for species at risk?

Mr. Boothe, you brought up rail. In my constituency there is a rail siding used by CN in the hamlet of Mirror, where CN constantly leaves their motors idling in close proximity to residents. This can't be very good for the environment. Are there any programs or any expenditures through Environment Canada that would either change the regulatory approach in dealing with these large diesel engines idling for excessive hours at a time, or programs that might encourage rail companies to reduce their footprints and their fuel consumption?

Mr. Latourelle, I'm going to come at you with park fees. Right now, if citizens of Calgary or Edmonton who drive west into British Columbia, or vice versa, say at the park gates that they're not going to be staying in the park, they get free passage through. Yet the 7,500 residents of Rocky Mountain House and 1,500 residents of Bentley who head west on Highway 11 are hit with a $20 fee for driving for 20 kilometres on the parkway. They end up driving south to Cochrane or north to Hinton to avoid that park fee. Wouldn't it make more sense for the environment to allow a shorter distance of travel from central Alberta to British Columbia by removing that fee? Frankly, I don't think it's fair, and it is quite punitive to people, depending on where they live.

When it comes to litigation, this committee just examined Bill C-469 a little while ago. Various environmental organizations, like Ecojustice, and so on, assured this committee that the cost of litigation for this bill, which actually.... The clauses in the bill actually create a litigious environment and make it easier for litigation to happen. Has anybody in the department prepared any expenditures to examine, should that bill come to pass, what the cost would be? They assured us that litigation would not happen if the bill were passed, yet we've seen increased budgets for litigation. I'm hearing conflicting stories from groups like Ecojustice that the taxpayers of Canada are going to be on the hook for these lawsuits against the Government of Canada.

[Mark Warawa, Conservative, Langley, BC]

Thank you, Chair.

Thank you, witnesses, for being here. Thank you for sharing the good news and dispelling some of the myths we hear all too often from the opposition members. There is very good work happening, as we've heard. We do have a plan, and we are well on our way to meeting our very aggressive goals of reducing greenhouse gas emissions by 17%. We are a world leader and we're very proud of what Canada is accomplishing.

I'd like to focus on page 116 of the main estimates in my questions, and one of the two issues I want to ask about is aboriginal consultations. We're increasing that by $1.5 million, so I'd like to know what the total amount will be. Also, we're increasing by $1 million to deal with litigation costs. Ms. Duncan's response to the $30 million was, well, do as the activists demand and that way you will save that $30 million--just buckle down and buckle under and do what the activists say. I don't think it's quite that simple. Of course the NDP Bill C-469 brought by Ms. Duncan calls for even more expenses and dramatic increases of litigation if that were to go ahead. Hopefully it never will see the light of day.

Also, under the study of Bill C-469 there was no consultation with first nations, unfortunately. I think it's very important that we do have consultation with first nations. So the aboriginal consultations are going up. What is the total amount now that's being proposed?

The Environment

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Mr. Speaker, Canada committed under the NAFTA environment agreement to directly engage concerned Canadians in decisions impacting the environment, yet Canadians remain shut out.

The government supported my motion for a comprehensive public review of environment and safety risks from unconventional oil and gas development, but it refused to commission the review.

The Conservatives ran on a platform of openness and transparency, but opposed my bill to enshrine Canadians' rights to participate and hold the government accountable.

Will the government finally deliver on these promises and support passage of Bill C-469?

Environment and Sustainable Development

[James Bezan, Conservative, Selkirk—Interlake, MB]

Mr. Speaker, I have the honour to present, in both official languages, the fifth report of the Standing Committee on Environment and Sustainable Development in relation to Bill C-469, An Act to establish a Canadian Environmental Bill of Rights.

The committee has studied the bill and has decided to report the bill back to the House with amendments.

Abolition of Early Parole Act

[James Bezan, Conservative, Selkirk—Interlake, MB]

Madam Speaker, I find it a little rich that the member for Elmwood—Transcona, who was in the Manitoba legislature, would talk about having committee meetings at all hours of the night. A few years ago, the agriculture committee was holding hearings on a moratorium on the hog industry. Those hearings went through the night. Over 300 farmers and people in the community wanted to appear before that committee, but the meeting dragged on and on. People were not able to stay in the middle of the night to make their presentations. It was really unfortunate that people were not provided with a true opportunity.

Different procedural moves and antics are often used by all parties of the House to make sure that debate is not turned into a filibuster. That is essentially what the NDP wanted to do here.

I am chair of environment committee and we just went through this process while studying a private member's bill. The opposition parties worked as a coalition and limited the amount of time that any party could speak on any clause within the bill. If Conservative members were to share their time equally, they were limited to speaking not more than one and a half minutes on a particular clause.

If the member wants to talk about stifling debate, that stifled debate. That prohibited other members from being able to get up and voice their concerns about particular clauses in a troublesome bill, namely Bill C-469.

I am surprised that the member never rose and asked me a question about the importance of bringing this bill to fruition and that we actually get rid of the accelerated parole review.

I want to turn his attention to what some of the victims are saying.

The Earl Jones Victims Organizing Committee actually put out a press release saying:

The elimination of the so-called 1/6th access to early day parole for crimes committed by non-violent offenders not only better protects these victims, but also serves to provide the strongest deterrent in our society against any acts of serious fraud, and theft resulting from such fraud, from white-collar criminals.

One of the victims from Lac-Saint-Louis, Quebec, is quoted as saying:

As a victim of the Earl Jones Ponzi Scheme I know first hand how devastating the effects that white collar crime has had on the lives of the victims, their families and their descendants. Almost every week there is a new Ponzi Scheme discovered in Canada and to date there is little incentive in our current criminal code to discourage criminals from taking this lucrative path. White collar crime is fast becoming the most debilitating crime for Seniors in the country. We have been left without our savings and have been shamed and ridiculed in the press. Time is of the essence in this matter.

Thus we are hearing directly from victims that we must do this, that we must make sure that these fraudsters play by the same rules as violent offenders and every other criminal in our federal penitentiaries. Stony Mountain Institution is in my riding and I have attended parole board hearings. It is a thorough and just process and there is no reason why fraudsters, the people out there stealing money from Canadians and seniors, should not have to go through the same process as every other convict.

[Mark Warawa, Conservative, Langley, BC]

Thank you, Chair.

I wanted to summarize my opposition to the bill.

The Osler analysis of Bill C-469 was that it “encroaches on areas of provincial environmental jurisdiction”; it “does not allow for the social, economic, and environmental pillars of sustainable development to be balanced appropriately”; it overlaps with aspects of existing legislation; and it removes numerous safeguards.

We heard from the witnesses, and they said that it was not good policy for Canada. They believed it was fundamentally flawed and that it could not be amended into good policy.

The Canadian Chamber of Commerce said that the lack of legal clarity will chill any investment consideration, that a fundamental precondition of commercial development, wealth creation, and economic acceleration is..... They said that it had completely failed the test of being a good bill and they don't support it.

We've heard there's been no aboriginal consultation on this. We've heard now that it creates classes of people that the bill will apply to; it limits judicial discretion; it's anti-sustainable-development; it creates American-style litigation; it duplicates, creates red tape, and kills jobs.

So it is not good for Canadians. It's not good for the environment. It is good for special interest groups.

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

This involves amendment BQ-3, which reads: That Bill C-469, in Clause 2, be amended by replacing lines 21 and 22 on page 5 with the following:"principle that there should be a just distribution of environmental benefits".

The amendment would eliminate the principle of consistency. So it would remove the word "consistent" from the section as presented.

That there be some kind of fairness is one thing, but that there be some kind of consistency is another. It is the principle of the associated costs and the burden imposed consistently on all Canadians. We think that this will go against the polluter pays principle.

There needs to be fairness. But imposing a burden that would be consistent across Canada could create concerns in Canada. We think that the polluter pays principle should apply and not the principle of consistency in sharing the environmental burden.

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

Yes, Mr. Chair. I propose amendment BQ-2, which reads as follows:

That Bill C-469, in Clause 2, be amended by replacing lines 33 to 36 on page 4 with the following: "the advantage of two or more provinces."

Disposition of Abolition of Early Parole Act

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Madam Speaker, I have listened to this member go on at great length about how closure is non-democratic.

I wonder if the member is aware that the environment committee right now is subject to a closure rule on an NDP bill that is being considered, Bill C-469, giving every Conservative member on that committee one and a half minutes to speak to each clause of that bill.

Would the member be willing to have his leader instruct the NDP member on the environment committee to abolish that closure rule so that we could have some good discussion about what is really a revolutionary bill in the environment committee, and do it in a nice, democratic way?

In light of the member's comments today about how closure is non-democratic, will he push to open up that debate in the environment committee?

[Mark Warawa, Conservative, Langley, BC]

Again, Chair, this exposes individuals to liability. Of the witnesses we heard speak to committee, those who would benefit if Bill C-469 did pass and become legislation supported it. But again, there would be a personal benefit to them. Every other witness said Bill C-469 was so bad that it wasn't redeemable. It was too badly written, and it wasn't worth the effort to try to amend it. But there have been attempts by the opposition members to amend it, so it moves forward.

The policy implications of adopting the public trust doctrine are not clear, but they could be very, very significant. Depending on how broadly the doctrine is interpreted, this provision could make the government legally liable for inactivity in the face of threats to the environment. It could also be interpreted to mean that the government owes the public legally enforceable fiduciary duties. It could shift the focus of control from elected government to the courts, and we've heard that repeatedly.

It could also increase uncertainty for business in Canada—and we heard that from the witnesses—and the loss of investment and the loss of jobs. This provision would entrench the public trust doctrine in federal environmental law, raising many novel policy questions. The bill defines the public trust as the federal government's responsibility to preserve and protect the collective interest of the people of Canada in the quality of the environment for the benefit of present and future generations. This definition captures many of the components of the doctrine that have been well established in American common law and statutes. In the U.S., the doctrine has been applied by courts for decades to preserve the public interest in a variety of resources, including waters, dunes, tidelands, fisheries, shellfish beds, parks, commons, and wildlife, and it's been invoked by the government to collect damages for environmental harm. We heard my colleague speak eloquently on that and the concern that this is an American-style litigation bill. Actually, we heard that from witnesses too.

In Canada, the doctrine is not well developed. The Yukon Environment Act places the duty on the government of the Yukon to conserve the environment in accordance with the public trust, but this provision has not been judicially considered and its impact on government decision-making with respect to the environment is unclear. In common law, the doctrine has been recognized in Canada to a certain extent with respect to navigation, fishing, and highways but had otherwise received little attention until the Supreme Court of Canada made favourable references to it in its 2004 decision, British Columbia v. Canadian Forest Products Ltd. Since then, academic commentary has focused on the potential of the doctrine as a useful environmental protection tool. As the Supreme Court of Canada expressed in its 2004 decision, recognition of the public trust doctrine raises many policy questions, including the crown's potential liability for inactivity in the face of threats to the environment, the existence or non-existence of enforceable fiduciary duties owed to the public by the crown in that regard, the limits to the role and function and remedies available to the governments taking action in account of activity harmful to public enjoyment of public resources, and the spectre of imposing on private interests an indeterminate liability for an indeterminate amount of money for ecological or environmental damage.

So this poses very serious questions, exposing individuals to a new level of liability, and would not be in the interests of Canadians. I think back to comments made by Mr. Sopuck regarding this being a tool of attack against rural Canadians. I think that's something we all have to take very seriously, particularly with the attacks against Hydro-Québec and BC Hydro. These are a new potential....

Think back to the witnesses who will benefit if Bill C-469 passes. Their hope was not for increased litigation; they wanted Bill C-469 to be used as the stick to intimidate. This is not in the interests of the environment; it's not in the interests of Canadians, all Canadians, including rural Canadians and Quebeckers.

Thank you.

[The Chair, Conservative, James Bezan]

Good morning, everyone.

We're going to continue with our study of Bill C-469.

When we left on Tuesday we were dealing with clause 28. Mr. Sopuck had the floor and had six minutes left.

(On clause 28)

[The Chair, Conservative, James Bezan]

We'll get rocking and rolling and continue flying through Bill C-469.

When we adjourned last week we dealt with the amendments to clause 23, so we're back to the main clause itself.

Are there any speakers?

Ms. Duncan.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Okay.

Mr. Chair, I wish to table an amendment proposing that Bill C-469 be amended by adding after line 4, on page 14, the following new subclauses, 22.1(1), 22.1(2), and 22.1(3).

Maybe it's easier just to read them in.

22.1(1) A plaintiff bringing an application under subsection 22(1) may only be ordered by the Federal Court to pay costs if the application is found to be frivolous, vexatious or harassing.

(2) The plaintiff referred to in subsection (1) may be entitled to

(a) counsel fees—

[Mark Warawa, Conservative, Langley, BC]

Chair, just to support what Mr. Woodworth has said, the witnesses who came to the committee were basically divided up into two groups. There were witnesses who represented industry and Canadians in general, and they opposed Bill C-469. The only groups that supported Bill C-469 were those who were special interest groups, actual groups that would profit from Bill C-469. This supports what Mr. Woodworth has just said.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Okay. I'll just briefly summarize.

I wish to amend Bill C-469 in clause 22 by adding, after line 4 on page 14, new paragraphs 22(3)(a) to (i).

May I speak to that, Mr. Chair?

[Mark Warawa, Conservative, Langley, BC]

Thank you, Chair.

What should be in this clause is a balance, including sustainable development. It's missing. It's missing in every clause of Bill C-469. On the matter of sustainable development, the House voted on December 1, two months ago. The NDP--every member of the NDP--voted against sustainable development. I have it right here in Hansard. I'm not questioning motives, but I'm sharing facts that the NDP did not support sustainable development.

They do support, though, changes to Canadian legislation that would permit special interest groups to profit, and this is actually providing an incentive for them to take action. It removes the Federal Court's existing discretion.

What is the result of this? Well, it's anti-sustainable development. As we've heard, it creates American-style litigation. It empowers special interest groups and activists trying to intimidate. We heard from the witnesses that the reason they supported Bill C-469 was that they wanted to have a stick to bully and intimidate.

It will be bad for the environment. Why? Because it creates duplication. It creates red tape. You have this government trying to eliminate red tape and the coalition trying to increase red tape and duplication. It will increase administrative and legal costs for government and industry. It will threaten existing first nations agreements.

It'll threaten existing facilities like Hydro-Québec, and that's why Hydro-Québec is against Bill C-469. That's why Mr. Woodworth brought this up with members of the Bloc. I too am puzzled about why Bloc members would be supporting something that would be bad for Quebec. They're supposed to be standing up for Quebec, and it seems that this government is the only one standing up for Quebec, for all Canadian provinces, for all territories, for all Canadians. It'll threaten B.C. Hydro, and B.C. is my province. I'm very concerned about this.

We heard from the witnesses that it will kill jobs. How will that happen? It will create uncertainty in existing permits, uncertainty in existing legislation, and the economy is the number one thing for Canadians right now. This government is committed to improving the economy and creating jobs, and Bill C-469 will kill jobs.

Clause 21 is one of the important clauses within the bill. It creates an incentive for certain residents or entities within Canada to seek profit. They will be able to receive costs for counsel even if they don't have counsel. That's why I'm hearing clearly from Canadians that this is a bad bill. Clauses 19 and 20 carried, even though members of the coalition wanted to amend them, acknowledging that they were bad. Yet they supported them even without having them amended.

This bill moves forward. Our time is limited, which is also a shame in that we can't speak adequately.

Chair, I think I've made my points. Clause 21 is bad and we will not support it.

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

No. But I'd simply like to make a small comment, in response to Mr. Woodworth. I have read and reread the memo that we were sent by the Conseil patronal en environnement du Québec about Bill C-469. In fact, some clauses of the bill, including clauses 16, 22 and 23, bother that organization a little, but I see nothing in the brief that the organization presented to us that indicates a problem with the clause that we are currently looking at.

When Mr. Woodworth claims that this clause is so important that Quebeckers would tear their hair out, I don't know what he's referring to. I'm also trying to find mention of clause 20 in the speaking notes of the witness from the Canadian Hydropower Association. Of course, they mention clauses 16, 19 and 23, but there's nothing in clause 20.

We would support the clause that was presented to us.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Thank you, Mr. Chair.

For clarification, although we can't talk about the next amendment, the agreement simply is that I proceed with mine and we can deal with the next one later. I was going to withdraw mine, but I will speak to this proposed amendment.

The proposal is that for Bill C-469, in clause 19, to be amended by deleting lines 22 to 38 on page 12.

Could I speak to that, Mr. Chair?

Environment and Sustainable Development

[The Speaker, Liberal, Peter Milliken]

The House will now proceed to the taking of the deferred recorded division on the motion to concur in the fourth report of the Standing Committee on Environment and Sustainable Development concerning the extension of time to consider Bill C-469, An Act to establish a Canadian Environmental Bill of Rights.

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

Mr. Chair, I am moving amendment BQ-6, which states the following:

That Bill C-469, in clause 16, be amended by deleting lines 5 to 9 on page 11.

I would first like to remind you of the subject covered by this clause, that is, the fact that the federal government being given the power to authorize an activity that may result in significant environmental harm does not constitute a defence.

Many groups, stakeholders and witnesses have told us that Bill C-469 is lacking safeguards and pointedly ignores existing laws and regulations. Under this amendment, the government will not be able to authorize an activity, regardless of what it is, that may result in environmental harm. This would limit the government's decision-making power and its activities.

In addition, there are some issue with the interpretation of the bill. I want to point out that the Canadian Environmental Assessment Act does exist. In defining environmental effects, the act's provisions use the wording “significant adverse environmental effects,” while Bill C-469 states the following:“significant environmental harm” includes, but is not limited to, harm whose effects on the environment are long lasting, difficult or irreversible, widespread, cumulative, or serious.

The fundamental issue is deciding which legislation will apply when this clause is adopted. We are opposed to subclause 16(4) and we propose its deletion.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Mr. Chair, I wish to table an amendment that Bill C-469be amended by replacing the heading “JUDICIAL REVIEW”, before line 24 on page 10, with the following: “ENVIRONMENTAL PROTECTION ACTION”.

Mr. Chair, if I could speak to that--

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Thank you, Mr. Chair.

Just for the record, I'd like to clarify that I think that Mr. Warawa is comparing apples and oranges. Clause 14 of Bill C-469 is not comparable to the Auditor General Act, it's comparable to the Canadian Environmental Protection Act. The timelines set forth in clause 15 of this bill before us now are identical to the timelines set forth in CEPA for reviewing and responding to investigations. So they are, in fact, completely consistent. There isn't duplication. In fact the two provisions can stand if they are consistent and don't conflict.

The purpose of the provision in this bill is to provide for consistency of rights and opportunities to Canadians across all environmental statutes. Why should Canadians only have the right to file a request for investigation of the Canadian Environmental Protection Act to do with a toxin and not be able to file an investigation under, for example, the endangered species act, or the Fisheries Act, or any other environmental statute?

The discretion lies 100% with the government. Simply because somebody files information suggesting that a potential alleged violation should be looked into necessitates no specific response. The responses by the Government of Canada are set forth in their enforcement compliance policy with each of their statutes. This in no way interferes with that. This right to file a request for investigation in no way automatically leads to a prosecution. In many cases it may simply lead to a warning. It may lead to reassurance that in fact there is no violation. It may lead to a discussion with provincial authorities saying maybe they'll proceed with the matter; it's more relevant under their legislation. We don't know what the end result will be.

The whole purpose of setting forth these provisions in one bill is to make it a user-friendly opportunity for the public to know what their rights and opportunities are to participate in the environmental protection process.

My concern is that we don't have enforcement officers, inspectors, and investigators in every little community in Canada. We have the vast Arctic. The Auditor General of Canada reported that she was concerned that there wasn't sufficient monitoring going on in the Northwest Territories on compliance with federal laws. So what this provision does is it gives a very clearly prescribed process whereby members of communities can be watchdogs and can pass on the information in an orderly way to the enforcement officers.

[Mark Warawa, Conservative, Langley, BC]

Thank you, Chair.

Clause 15 sets out the timelines applicable to the request for investigation under clause 14 that just carried. Regarding the timelines, this clause would require the minister to acknowledge receipt from the commissioner within 20 days of receipt and give notice of a decision not to conduct an investigation within 60 days of receipt. Otherwise, the minister must report on progress every 90 days.

As we've heard repeatedly, the government is supportive of providing opportunities for residents of Canada to seek investigations of environmental offences. Such opportunities are already provided under the Auditor General Act, the Canadian Environmental Protection Act, known as CEPA 99, and the Species at Risk Act. The provisions allowing the public to request investigations would create significant overlap of those opportunities.

Over the last number of weeks, as we approach the budget, the spring budget, all Conservatives have been asking Canadians—jobs is number one, the economy is number one—“Do you have any suggestions how we can do better?” One of the common messages that I've heard is eliminate waste, that there is only one taxpayer, that you can't keep going back to the taxpayer for more taxes—more, more, more. They want us to eliminate waste.

Sadly, what is being proposed in Bill C-469 is increased waste, not removing red tape. Bill C-469 creates red tape; it creates duplication of what already exists. To jump to the front of a parade that's already in progress and say “Look at all the people following me, look at all the support I got” is disingenuous. We need to find out where the problems are and eliminate red tape.

We've heard repeatedly from witnesses that Bill C-469 is creating duplication. Duplication creates waste. If you have one entity or one resident within Canada who puts in a request through what already exists, and then under Bill C-469 could initiate the same thing, you could have in the same office the same exercise repeated numerous times. Does that create efficiency? No. That creates waste.

We also heard that Bill C-469 will kill investor confidence. It creates uncertainty. Does it increase the protection of the environment? No. When you have limited resources, again, only one taxpayer, limited resources of tax revenue, and you try to do the same thing again, where do those dollars come from to actually duplicate the same thing over again? Well, those dollars have to come from somewhere, so it would have to come from what is already been allocated to that ministry, to that department, and to that commissioner's office, making that office and that department even less effective and efficient.

We've also heard that there will be an increase in litigation. Where do those funds come from? Again, they come from those departments. We've heard that Hydro-Québec and B.C. Hydro increased litigation, to their costs. Those costs for increased litigation, where are they going to come from to protect themselves? Well, it will have to come from Canadians, the taxpayers.

Bill C-469 creates uncertainty, duplication, and waste, and that's not what Canadians want.

We've also heard that it's very directly related to a possible court-directed tax, a carbon tax, which could be attached to this.

So what we have in clause 15 is a timetable, or timelines of what there would be under Bill C-469 for requests for investigations. For example, the requirement for the minister to give notice of a decision not to conduct an investigation under Bill C-469 is 60 days from the minister receiving it. Under the Species at Risk Act, the minister is not obligated to a timeline imposed. Under the Auditor General Act, it's 120 days. So there are inconsistencies there too, duplication and inconsistencies.

For the minister to acknowledge receipt of a request for investigation under Bill C-469, it's 120 days from receiving it from the commissioner. What already exists under the Auditor General Act is 15 days from the minister receiving it. Again, it's creating confusion. Which request will take priority? When you have a department doing the same thing twice, which takes priority? Or should it be the same person and we do a cut-and-paste? Well, why would we do a cut-and-paste?

So I guess this is further evidence of the duplication and the lack of need for Bill C-469. If this already exists, why would you introduce Bill C-469?

Thank you.

[The Chair, Conservative, James Bezan]

We'll call this meeting to order. We're at meeting No. 44, and of course everybody knows we're continuing our study of Bill C-469, an act to establish a Canadian environmental bill of rights.

I welcome all of you back from your winter break. I hope you're all recharged and ready to rock and roll.

Now, as you recall, we were considering clause 12. At the last meeting we had just passed an amendment to clause 12, moved by Mr. Scarpaleggia, which read, “and registered, Canadian-controlled entities, the Government of Canada shall”. So that is inserted on line 22 in the English version on page 8 and line 24 in the French version on page 8.

We left on clause 12, and this is how much time is left: the Conservatives have used up all their time on clause 12; the NDP has five minutes left; the Liberals have six minutes left; and the Bloc have the full eight minutes available to them.

There is no time left on the full motion for the Conservatives. The time had completely ticked away.

So is there any further debate on clause 12?

I'm going to call the question.

[James Bezan, Conservative, Selkirk—Interlake, MB]

Mr. Speaker, I have the honour to present, in both official languages, the fourth report of the Standing Committee on Environment and Sustainable Development respecting the request for an extension of 30 days to consider Bill C-469, An Act to establish a Canadian Environmental Bill of Rights.

[Mark Warawa, Conservative, Langley, BC]

Actually, every witness that we heard from that did not have...would not be benefiting from Bill C-469. Every witness said the bill should be set aside.

You, Chair, clarified that when we had the Canadian Hydropower Association. You asked Mr. Jacob Irving. And they also represent Hydro-Québec.

You said:I just want one clarification as chair. In your presentation and in your responses, you definitely had reservations about the bill. Would the Canadian Hydropower Association prefer that the bill be set aside or be amended?

Mr. Jacob Irving responded, saying: There is probably opportunity for amendment, but it depends. Ideally one would like to see amendments come through that deal with all of our issues, and then that's fine. But if those amendments don't come to the fore...And that's what we're seeing already here. They're creating a bill that is not based on expert advice. They're not wanting a clause to be set aside, but they want to move forward.

So then he went on to say, “...setting the bill aside would have to be the logical choice.”

And Chair, yet we forge ahead. I think we should have listened to the advice of the witnesses and set the bill aside. It is so badly flawed. Clause by clause by clause, Mr. Chair, the bill is turning out to be a Frankenbill.

I think at the first opportunity--

[Mark Warawa, Conservative, Langley, BC]

Chair, we heard from the analyst that she could not provide guidance on this. And what we see being developed here is a “Frankenbill”.

I went back and reviewed some of the testimony we had. We were told by the experts that this bill should be set aside. Why? Well, because it was so badly flawed that it was not amendable.

Who said that, Chair? It was the vice-president of policy and environment for CAPP. He said, “In our view, Bill C-469 is not good policy for Canada.”

[Mark Warawa, Conservative, Langley, BC]

Chair, in my comments I brought up two points. One, normally the courts have discretion on whether or not to grant standing. We heard that from the analyst. So that is the norm, that the courts would have that discretion. Then we heard that the Canadian Environmental Law Association--which spoke in favour of Bill C-469, possibly having a bias in favour of this bill--wants to make this bill better.

The clock is ticking, so perhaps Mr. Woodworth can speak on this.

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

I'm just going to finish some of the comments I started at the end of the last meeting.

Despite the amendment, clause 10 of Bill C-469 remains redundant, and given the extent to which access to environmental information is already provided in existing federal statutes and other government initiatives, I believe this amendment does nothing to help that.

I am going to stop my comments at that point.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Thank you, Mr. Chair.

My understanding of the agreement to withdraw the provision is that had it been included, it would have nullified other provisions in Bill C-469. It would have nullified clause 13 and clause 26. Clause 13 deals with the right to propose any new act, regulation, or instrument; and clause 22 with the power given to an auditor to review any draft regulations in the bill. So it would have nullified the later provisions and it would have been nonsensical to include.

It is true it's in the Quebec statute, which I believe was enacted quite some time ago. On reviewing the bills of rights of other jurisdictions, I see they do not include such a limitation.

So the agreement was to withdraw it; otherwise it would have made nonsensical a good part of the bill.

Contrary to what the Conservative members of the committee are alleging, there are many substantive provisions in this bill, including extending the right of access to information, the right to participate, the right to review any existing law or policy, and the right to propose improved laws and policies.

If that amendment had gone through, it would have taken away those rights and opportunities, so the Bloc very graciously agreed to withdraw their amendment.

[Mark Warawa, Conservative, Langley, BC]

Mr. Chair, as you've laid out the amended motion, this includes decisions by federal bodies, including the departments, crown corporations, crown agencies, and decisions related to all federal-related industries, such as banks, shipping, and interprovincial railways. It will also apply to decisions that affect federal land, including reserve land.

Bill C-469 is about taking actions, so it's a litigation bill. Any resident or entity in Canada will be able to take legal action against federal lands, shipping, banking, railways, and on and on it goes. That's what we heard from the witnesses. The concerns they raised are now being exposed. The witnesses were correct in their concerns.

The bill would apply to decisions by the federal government on such things as environmental assessments. After substantial environmental assessments, action could be taken if a permit is issued to industry, to first nations. Other decisions—

[Mark Warawa, Conservative, Langley, BC]

Thank you, Chair.

I'm going to make a couple of comments on this amendment that has been presented by the NDP.

As Linda said, she's adding the words “aboriginal land” after “federal land”. We heard from the witnesses that there's concern about the uncertainty Bill C-469 creates and the possibility, with that uncertainty, of lost investment and lost jurisdiction. Saying “federal land” was not adequate for the NDP. They now are ensuring that the uncertainty is also expressed in “aboriginal land”, which is why this side of the table had expressed concern that we did not hear from aboriginal and first nations witnesses. It is so important to hear from them, and we have yet to hear from them. To add these words adds uncertainty.

By expanding the scope of the application of the bill to aboriginal lands, this amendment increases the concerns, as I said, that we heard from the witnesses.

So I will be voting against it, and I hope all members will too. Thank you.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

I will explain why I've brought forward this amendment. It was brought to my attention after the tabling of my bill that in the Canadian Environmental Protection Act, 1999, they chose to change the definition of “federal land”. This change to the definition of “federal land” is what I'm proposing to bring forward, so that it's consistent.

The definition is separate. We haven't dealt with the definitions yet because we wait until we go through the substantive provisions. Later, we will get to where I will have changed the definition of “federal land” and added a definition of “aboriginal land”. That will define this provision.

We can choose to leave the definition as it is or we can choose to change it. I'm fine either way, but I think it's important to be consistent. Interestingly, the government changed the definition in CEPA, but not in CEAA. I don't know what that's about.

The definition I have put in my Bill C-469 is, I believe, the same one that is in CEAA. Maybe they just haven't caught it, and maybe it will come up when we start reviewing CEAA.

So that is why I've added that in. It's simply a decision that was made by the government of the day that those should be defined separately. Aboriginal people may have said they didn't want to be included under that subhead. Maybe in CEPA there were provisions related to aboriginal land and not to federal land or vice-versa.

But generally speaking, until a first nation under the First Nations Land Management Act actually issues a land code that allows them to exercise a certain measure of environmental regulation in resource development on their land, the only environmental laws that apply to first nations lands are federal laws.

In federal environmental statutes, the reason we talk about federal land and aboriginal land is that provincial laws don't generally apply. It may well be that they made that change when the first nations final agreement started to be signed off. Constitutionally, first nations, as opposed to band councils on reserve, had additional powers. Now, under the First Nations Land Management Act, there is potential for the promulgation of bylaws by a first nation.

So this is my amendment. I'm tabling it to make it consistent with the Canadian Environmental Protection Act. If it's rejected, it's not the end of the world, because it will be consistent with CEAA.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Thank you.

The problem I perceive here—and I'll try to make it a little clearer because I alluded to it in my previous comments—is that we now have, clearly, two different purpose clauses. And in a way, I'm grateful that Ms. Duncan has made her amendments, because it really highlighted that fact.

Her amendment would read in subclause (2), “This Act is intended to ensure consistency with Canada's rights and obligations under international law”. If we were using the same formula as in the existing clause 6, we would say, “The purpose of the Canadian Environmental Bill of Rights is to ensure consistency with Canada's rights and obligations under international law.”

Now we have two purpose clauses. It's not at all clear to me that those two purposes are necessarily consistent with each other. In other words, in the new subclause (2), with this subamendment, we are saying that the purpose of this act is to ensure consistency with Canada's rights and obligations under international law, but in what will become subclause (1), we're saying that the purpose of this act is to “safeguard the right of present and future generations...to a healthy and ecologically balanced environment”, for example. There are others there, too, but I just picked that as an example.

What does a court do if confronted with an argument that an obligation or a right of Canada has been implemented under an international convention that happens to contradict safeguarding the right of present and future generations of Canadians to a healthy and ecologically balanced environment? Well, the section says that if there's a conflict, the international convention will prevail. To a certain extent, I find that reassuring, because it would at least enable the effect of this Bill C-469 to be somewhat gutted if we can arrange an international convention on the subject, which would, in effect, overrule some of the more outlandish and extreme provisions of Bill C-469.

But it's not at all clear to me that subclause (2) will have the effect of overcoming what will become subclause (1) here, because subclause (1) doesn't say that it's subject to subclause (2).

There are two stand-alone purpose clauses. They may well come into contradiction with one another. There is nothing in the bill that gives a judge any guidance about whether the judge should follow what will be subclause (1) or should follow what would be subclause (2). Personally, I'd like him or her to follow subclause (2) and really gut subclause (1) in such a case, but I have no assurance that's what will happen with this amendment, even with the subamendment.

It's very difficult to discuss these things, Mr. Chair, in isolation. One would almost have to find a concrete example. That's where I was going a moment ago when my time ran out. I do thank my Conservative colleagues for allotting to me their one and a half minutes each on this debate.

I was getting to the Marine Liability Act because it might serve as a concrete example of how this will work. I regret that I'm not as familiar with the Marine Liability Act as I would like to be. As with my colleague, Ms. Duncan, across the way, I just didn't have the time to really sit down and work it through. But my impression, generally speaking, is that the Marine Liability Act would limit in certain circumstances the liability of a shipowner responsible for an incident of pollution in Canadian waters. I may be wrong.

I also want to say--along with my colleagues--I am by no means an internationally trained lawyer, so I don't ask you to accept what I say on that basis. I'm only trying to look at this as a lawyer who has some facility with the interpretation of statutes.

Let's suppose that under the Marine Liability Act, pursuant to an international convention, we are passing a law that limits the liability of shipowners in polluting incidents in Canadian waters. I suppose as long as the Marine Liability Act, as passed pursuant to the international convention, duplicates the provisions of the international convention, this new subclause 6(2) as amended would kick in and would indicate that shipowners are only going to be liable up to the maximum of their liability under the Canadian implementation of the international convention on marine liability.

But subclause 6(1) will say that the purpose of this act 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;

I think those are the two that apply.

So what if a judge decides that the liability limitation in the Marine Liability Act does not adequately safeguard the right of present and future generations of Canadians to a healthy and ecologically balanced environment, and therefore the purposes enumerated in subclause 6(1) are not being met if we are meeting the purpose enumerated in subclause 6(2)? What will a judge do?

In the absence of some qualification of subclause (1) to say that it's subject to subclause (2), it's not at all clear to me that a judge would say that he or she was going to apply subclause (2), rather than disregarding it in favour of subclause (1).

That, to the best of my ability, articulates why I believe it's not sufficient to simply tack on subclause 6(2) with a new purpose, rather than integrating it somehow as a superordinate safeguard that would, in appropriate cases, really gut subclause 6(1).

[Kristen Courtney]

Maybe. But I think this relates to what we alluded to at the end of the last day, that an international convention that imposes duties on a party is different from an international convention whose domestic implementing legislation—such as the Marine Liability Act, which we enacted for some international conventions that we signed—affords protection to parties against liability.

So when you're talking about “inconsistency”, it's not exactly clear how that will play out. In this case, it's especially not clear how it will play out because we don't yet know what orders can be made as a result of a civil action that someone would bring against a shipper. The Marine Liability Act and the convention it relates to provide for liability only in certain circumstances. Unless we know what kinds of orders can be made pursuant to Bill C-469, then we can't know whether there are any inconsistencies or not.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

I'll recap what I said last time about there being something problematic in referring to inconsistencies rather than conflicts. An inconsistency can mean something other than a conflict. In my experience, it hasn't been the case that statutes refer to inconsistencies, but rather to conflicts, where one prevails and one does not.

Secondly, this amendment talks about the provisions of international conventions in force in Canada. Although I stand to be corrected on this, it's my general expectation that even though one might say that an international statute that has been ratified by Canada is in force in Canada, if there hasn't been any legislative implementation of it, it won't be something that could conflict with Bill C-469. If that's the case, one has to wonder where one would find the inconsistency or the conflict if there hasn't been any implementation of an international convention in Canada.

Beyond that, the part that's supposed to be added doesn't fit, in a grammatical or drafting sense, with the part it's intending to modify. Clause 6 simply says that the purpose of the Canadian Environmental Bill of Rights is to do certain things. There is no subclause 6(1). I suppose one would have to make the existing clause 6 a subclause 6(1) in order to add this subclause 6(2). If one were to do that, it's still uncertain whether subclause 6(2) would overcome anything in subclause 6(1). That is to say, if the “purpose of the Canadian Environmental Bill of Rights is to (a) safeguard the right of present and future generations of Canadians to a healthy and ecologically balanced environment” and it happened that subclause 6(2) came into operation as a result of a conflict or an inconsistency between the act and an international convention, it's not clear that simply adding a subclause 6(2) would override anything that would be in subclause 6(1), which would outline the purposes of the act.

If one wanted subclause 6(1) to be read subject to subclause 6(2), then I suppose one might say that in subclause 6(1). One might say that subject to subclause 6(2), the purpose of the Canadian Environmental Bill of Rights is to do certain things. In the absence of that, it's not clear to me that either of those subclauses would have any control over the other.

There are other things that I might say in relation to the main provision, but I'll forego those for the moment. When I talk about this amendment, I have in mind the Marine Liability Act, which contains a statutory implementation to discern how liability will attach to international shippers.

[The Chair, Conservative, James Bezan]

I will call the meeting to order.

We're continuing with our consideration of Bill C-469. When we were at this last Monday we were on clause 6, Liberal amendment number 1, which is on page 9 of your amendment packages. The Conservatives were speaking to it.

As you know, we have our time allocation of eight minutes per party per clause, amendment, or subamendment. When we left there were four minutes and twenty seconds left for the Conservatives.

It's my understanding, Mr. Woodworth, that you're on for four minutes and twenty seconds.

(On clause 6--Purpose)

[Mark Warawa, Conservative, Langley, BC]

Thank you, Chair.

I appreciate the input from my colleague. It's nice to have a lawyer here who is passionate about the environment too.

This amendment from the Liberals doesn't address the issue of vagueness we have found throughout Bill C-469. Unfortunately, the clause sets out vaguely defined concepts, such as the “right to a healthy and ecologically balanced environment”, which have those uncertain implications.

The amendment does not address the issue of duplication, and the issue of duplication was raised by every witness we heard. The purpose of the proposed bill includes ensuring access to information and effective public participation, goals that have already been supported by existing laws, policies, and programs. What the amendment seeks to--

[Mark Warawa, Conservative, Langley, BC]

Thank you, Chair.

I want to thank my colleague, Mr. Woodworth, for not using up his full eight minutes. I thought that was a very good example, Chair.

This clause refers to aboriginal rights. It says:

For greater certainty, nothing in this Act shall be construed so as to abrogate or derogate from the protection provided for existing aboriginal or treaty rights of the aboriginal peoples of Canada by the recognition and affirmation of those rights in section 35 of the Constitution Act, 1982.

Chair, in our discussions over the last few days, what came up was the shock that we had not heard from first nations. This greatly impacts first nations. It impacts agreements with first nations. It possibly affects treaties, because we heard that Bill C-469 would retroactively go after agreements and treaties. So if any resident or entity is felt to be in violation, or if this concerned any Canadian--excuse me, “resident” or “entity”--an action could be launched.

Chair, what clause 4 makes clear is that nothing in the act affects existing aboriginal treaty rights protected under the Constitution Act. Therefore, clause 4 is a common practice in federal statutes.

What it does do is create uncertainty. As I said, it's common in federal statutes that reiterate that Parliament does not intend to narrow, extinguish, or otherwise interfere with constitutionally protected aboriginal rights or treaties. If it's already there and it's dealt with, then this creates uncertainty. It's not needed, because any law that is inconsistent with the constitution is invalid. So the moment that you place this in Bill C-469, it creates uncertainty. It's unnecessary and it shouldn't be there. It should be struck. That would be the appropriate way of dealing with this.

Now, in the interests of time, I could move a motion that it be struck, or we can leave it in place and vote against it. But we do not want to create uncertainty with aboriginal rights so therefore, in the interests of time and given our desire to see this be reported back to the House before the Christmas break, my question for the member, through the chair, is, would she accept that this be struck from her bill, Bill C-469?

[Mark Warawa, Conservative, Langley, BC]

I would say to Ms. Duncan, in light of what Ms. Murray has reminded us of, that there is a short period of time and a lot of work to do. We possibly have Monday and Wednesday of next week. Today is almost burned up. Unfortunately, we did not get into clause-by-clause as we had hoped to.

Will Ms. Murray accept a friendly amendment that Bill C-469 be reported back to the House before the Christmas break?

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Thank you, Mr. Chair.

As I was contemplating this issue, I realized that some of the comments I would like to make regarding the motion apply to the amendment also. I got a little concerned in thinking about it in that if I didn't put my hand up and make them now, in fact, there might be some procedural tactic employed to shut down debate on the motion later, and I won't get my chance to make these comments.

So because my comments really apply overall to the question of how much time we should spend debating Bill C-469, I'm going to make them now.

I'll mention that I've now sat on this committee for well over two lovely and enjoyable years, and I cannot think of any time in the last two years or so when we have been faced with a motion like this to shut down and limit debate.

Historically, we have had a lot of lengthy debates on this committee. There were many times when I might have wished that I could shut down debate, but it would never have occurred to me to do that, because I do respect the right of members and in fact the duty of members to speak their mind. In fact, I don't think that in the two years that I've sat on this committee I have ever seen a Conservative member move for a limitation of debate.

I think the question has to be asked: why now? Why, after two years of considering a great many important bills, like Bill C-311--not important because I agreed with it, but important because of the consequences it would have inflicted on our country--like the SARA study, and like the oil sands and water study? During the hours and hours we spent debating those things, never once did anybody suggest that we should limit our comments, presumably because we all wanted to have a full and fair debate that the public could listen in on. I think that's the way that we should operate.

So why now would the NDP member want to stop debate on her bill? Is it because she doesn't want people to know how bad this bill really is? Is it because she doesn't want some of the problems that are inherent in this bill to be exposed to the light? We have had literally pages and pages of submissions. We have had hours and hours of testimony. Why would the NDP member want to straitjacket our debate at this time, rather than letting people express themselves?

Even when we don't agree with ideas, and in fact especially when we don't agree with ideas, we should let them be heard and let people decide for themselves. If you don't, if you try to shut down debate, if you try to hide the facts and opinions, you leave yourself open to the accusation that your bill is flawed because it didn't cover all the bases.

I heard someone say that this is an important bill and that's why we should truncate debate. I would say that it's just the opposite: this bill is so important that we owe it to Canadians to have a full hearing and to take the time to understand what the terms in the bill mean, what the implications are, and what the legal aspects are. It's important because there are jobs at stake. There is development at stake.

I've heard people say that this is just about industry, but the reality is that it's not just industry that will suffer as a result of this bill. There are hunters, there are trappers, there are people who want to build houses, and there are people who want to rehabilitate their land. All of these people are going to be affected by what's in this bill and, quite frankly, they won't know what any of it means because I'm willing to bet that most of the people around this table don't know what most of it means.

I will mention one specific issue that bothers me a lot. Every time I look at this bill, I see something new. When we come to discuss clause 3 of the bill, I'm going to point out that it says this bill has to be interpreted in accordance “with existing and emerging principles of environmental law”. Well, who around this table knows what “emerging principles of environmental law” means? I venture to suggest that the drafter of the bill doesn't know what “emerging principles of environmental law” means.

I'll reserve the rest of my comments...well, actually, I won't have the time. I won't have the time to talk about my concerns, because if this motion passes unamended, at most I will have five minutes to speak for the whole Conservative Party.

So maybe I should just take a moment and say, for example, that I don't know whether that means principles of law that are emerging today when we pass the bill, or principles of law that are emerging when a matter happens to get to court, whether that's five, or ten, or twenty years from now.

I don't know whether it means principles of law that are emerging in Canada or whether it means principles of law that are emerging in North America, or indeed, whether some Hungarian environmentalist can propose a principle and this bill will need to be interpreted in accordance with that. In fact, I don't know whether it means principles of law that are emerging only in the courts or also academically.

It really behooves us as legislators when we pass laws to pass them with sufficient precision such that everybody knows what we mean. And it doesn't even help, quite frankly, if all of us around this table know what we mean, because you have to be able to read a law and know what it means.

I can guarantee you that no one will know what it means when we say, “emerging principles of environmental law”. At the very best, this is what I would describe as a lawyer's nightmare--or maybe it's an environmental lawyer's dream, because that clause can mean whatever you want it to mean.

There's a line from Alice in Wonderland to that effect. I don't know if it was the Red Queen...it might have been Humpty Dumpty who said, “Words mean what I say they do”. The point is that “emerging principles of environmental law” has no meaning and all meaning, and that concerns me.

And as I mentioned a moment ago, every time I put my eye to paper and look at this bill, I see something more like that, which gives me great concern. I have taken a little bit of time to speak about that particular one because if Ms. Duncan's motion passes--in fact, even if it passes with the amendment that I have proposed--there won't be enough time to talk about all of these issues. We would be delinquent, derelict, and shamefully disregarding our duties as legislators.

Thank you very much.

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

Thank you very much, Mr. Chair.

I will not take as much time as my government colleagues, but I can tell you that what we are hearing today is far from helpful.

As Mr. Warawa saw fit to quote from his encyclopedia, let me quote in turn from my dictionary. The definition of “dilatory“ is “describes an action intended to delay the outcome of a trial or the passage of a piece of legislation…“.

That is exactly why we have Ms. Duncan's motion before us today. Mr. Warawa is a gentleman, as, generally, all hon. members are. The problem is that those hon. members are falling in line with their party's petty strategy, as we have seen in recent sessions. This committee of Parliament is becoming less a forum for debate and change and more a partisan tool.

For two sessions—Mr. Benoît was not here to comment on the other sessions—Mr. Warawa has monopolized the time in order to talk about one single clause. if that does not meet the dictionary definition of “dilatory“ that I just quoted, I don't know what does.

In my opinion, each party's time must be limited. We want to work on, and possibly amend, the bill. The way to move the work forward is to limit the time.

In the last two years, the Standing Committee on Environment and Sustainable Development has in fact been noted for its endless study of the matters referred to it. The tar sands study and the Species at Risk Act are examples, and we are now doing the same thing with Bill C-469. And it's not the opposition that has decided to delay our work.

So I think we have to limit the time provided to each political party. That is why we are going to support Ms. Duncan's motion.

[Steven Blaney, Conservative, Lévis—Bellechasse, QC]

Thank you very much, Mr. Chair.

First of all, I must say that I am shocked by the motion on the table. Although the motion has been made by the New Democratic Party, it seems totally undemocratic and totally irresponsible to me, removing as it does the right of members of this committee to speak.

As a Quebecker, I can provide a very specific example. You will remember that, in his testimony at one of the first sessions, William Amos, from the University of Ottawa, raised some major problems with two clauses of Bill C-469. First, he mentioned clause 23, which could expose Hydro-Québec to lawsuits. The same witness also said that clause 16 of the proposed federal bill would allow injunctions to be brought against Hydro-Québec's activities.

Mr. Chair, do you think it makes sense to have no more than a minute to speak to amendments that are so significant and so fundamental that they are shaking the foundations of Canadian environmental law? I see that as quite irresponsible and, frankly, I have to say that members would appear completely ridiculous.

Clearly, I support Mr. Warawa's proposed amendment, not only because it is important for all members to have their say, but also because it is important to study this motion in the context of the time that members will be allowed to give their opinion on other motions to come.

I have some other comments. Some remarks have suggested that members on this side do not trust industry. I have to tell you that nothing could be further from the truth. We have a good deal of trust in industry. We are studying this bill with an open mind.

For example, we could mention the Conseil patronal de l'environnement du Québec, CPEQ. It was founded in 1992 by representatives of the major industrial and business sectors in Quebec. CPEQ's mission is to represent its members' interests on environmental and sustainable development matters…

[Mark Warawa, Conservative, Langley, BC]

Thank you, Chair.

I have shared some of our concerns, particularly last meeting's concerns about the development and lens through which that needs to be looked at. I was very concerned that Bill C-469 would change all of the good work of Parliament, both in this House and in the Senate, in passing through--with unanimous support--a definition of sustainable development, a strategy, and an act.

What we saw last Thursday, Chair, shockingly, was the NDP voting against the motion in the House and opposing sustainable development. They were the only party that did that.

But I have to give them credit, in that they are being consistent. They want to change the definition of sustainable development through Bill C-469, but they also voted against sustainable development in the House, so there appears to be a plan by the NDP regarding sustainable development or the extinguishment—

[Mark Warawa, Conservative, Langley, BC]

Chair, what I would like to clarify is that I lament that we are not finishing SARA. I think we had a moral responsibility to finish that, but we haven't. We've moved on to Bill C-469 and now I think the record will clearly show that we have opposition members repeatedly interrupting as important points are being made.

We have had interruptions using the tactic of points of order and stall tactics, so it's been quite disheartening, and now we have this motion. To say there should be an allocation of “a maximum of five minutes per recognized political party for debate in relation to consideration of each clause or amendment” is just unrealistic.

Ms. Duncan has one member, Chair. One member--so what she is proposing that she would get five minutes. Now, on this side of the table, we have me and my four colleagues. We have five members. So she is suggesting that we would share those five minutes. She is suggesting that the Liberals would share their five minutes and the two Bloc members would share their five minutes, but she would have the sole five minutes, because there is only one person, herself, from the NDP. It seems patently unfair and impractical.

If there were a fairer way of dealing with this—for example, if she wanted to say that we limit it to five minutes per individual—I think that would sell around here in the spirit of fairness, if she wants to move things along, but that may not be realistic either. I look forward to hearing from other members around this table on whether or not five minutes would be adequate.

But in the spirit of fairness—and again, I hope this was not a deliberate attempt by the NDP to stifle healthy debate—I would move an amendment to her motion that the five minutes be “per member” instead of “per recognized political party”. That would be my amendment.

[Mark Warawa, Conservative, Langley, BC]

Oh, the motion is. Well, thank you, I appreciate that clarification.

So Ms. Duncan's motion is in order, but ethically.... I don't question her motives, but to me it appears to be in the form of a conflict in that on the one hand it's the responsibility of Parliament to debate this bill, Bill C-469, and to hear from witnesses.

And we should have heard from first nations. We've said that. We've now had a deluge of additional briefings and Ms. Duncan unfortunately doesn't want to hear from them, it appears: doesn't want to hear from first nations and doesn't want to hear from witnesses. This deluge of e-mails and briefings we're getting is again reminding Canadians how bad Bill C-469 is.

Chair, the other irony in this, besides the NDP trying to stifle debate and hearing from other Canadians, from other witnesses, is that it's the NDP that stopped SARA, the Species at Risk Act, with the help of opposition members. We had, I believe, a responsibility to do that. My recommendation was that we finish SARA—

[Mark Warawa, Conservative, Langley, BC]

Thank you, Chair.

Quite frankly, I am shocked by the motion. I guess the first question I have for you would be whether or not a motion like this in order, on the grounds that Bill C-469 is Ms. Duncan's own bill, which she introduced in the House and which has now come to committee to be debated. Is it appropriate for her to move a motion to stifle debate?

[Linda Duncan, NDP, Edmonton Strathcona, AB]

I move:

That the Committee, in conducting its clause by clause review of Bill C-469, An Act to establish a Canadian Environmental Bill of Rights, allocate a maximum of five minutes per recognized political party for debate in relation to consideration of each clause or amendment.

May I speak to my motion?

Environmental Bill of Rights

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Mr. Speaker, I am pleased today to stand and present to the House petitions signed by more than 12 communities in Alberta: Edmonton, Lloydminster, Calgary, Birchcliff, Sherwood Park, Lethbridge, Fort Saskatchewan, Fort McMurray, Camrose, Spruce Grove, Grand Prairie, Red Deer and Valleyview, all calling on the government to pass Bill C-469, An Act to establish a Canadian Environmental Bill of Rights.

They state in their petition that as Canadians value a healthy and ecologically balanced environment, they call on the government to afford the rights and opportunities to Canadians to participate in decision-making, and the opportunity to hold the government accountable to protect those rights.

[Mark Warawa, Conservative, Langley, BC]

Thank you.

Chair, I think it's imperative that Bill C-469 have that balance, and that is what's missing.

What I'm actually shocked to see is that members of the Bloc would be supporting a bill that doesn't have that balance, that would actually attack their own province. I'm shocked that the Bloc is supporting U.S.-style legal actions against Hydro-Québec. That is shocking.

I'm surprised that the Bloc, using clause 3 and its lack of definition, would want massive tax increases against people living in Quebec, including a tax increase on heating oil, a massive tax increase on natural gas costs, a tax increase on electricity costs, a massive tax on iPods and on cars, and on it goes.

[Mark Warawa, Conservative, Langley, BC]

Thank you. I will read that. It says:

“sustainable development” means development that meets the needs of the present without compromising the ability of future generations to meet their own needs.

Chair, what is missing in there—and this is the point I've been trying to make—is defending the principle of balance, which is what we've heard about from every witness. That is what's missing in Bill C-469. Just because something is called “the environmental bill of rights” doesn't mean it is an environmental bill of rights. It could very well be a Trojan horse that would be used by special interest groups to attack a balance. That is our concern. That's what we heard from the witnesses: that there needs to be a balance.

Chair, am I hearing interruptions again or...?

[Mark Warawa, Conservative, Langley, BC]

Thank you, Chair.

I think the record will show clearly that I am referring to paragraph 3(c), which speaks to the “principle of sustainable development”. I will read clause 3. It says:

This Act must be interpreted consistently with existing and emerging principles of environmental law, including but not limited to

(a) the precautionary principle;

I'm trusting that others will speak to paragraph 3(a).

Paragraph 3(b) is the polluter pays principle; 3(c) is the principle of sustainable development; 3(d) is the principle of intergenerational equity; and 3(e) is the principle of environmental justice.

I'm speaking specifically to paragraph 3(c) and I'm perplexed that my defence of the importance of that principle of sustainable development, and my sharing of the importance of protecting recently passed legislation.... I'm sharing my concerns with the way Bill C-469 would, through the window dressing of clause 3, just mention the principle of sustainable development, but then within the bill have nothing to support it. That's the end of it. It just makes a window-dressing comment.

We heard from witnesses that the principle of sustainable development will be set aside and all legislation will be looked at through the lens of the environmental bill of rights, which would give any resident or entity the ability to launch an action. So I think it's very important.

As I said, clause 3 indicates in the bill that it is to be interpreted through the principle of sustainable development, but what does that mean? At the World Summit on Sustainable Development in 2002, eight years ago, all countries endorsed the concept of sustainable development as comprised of the three pillars: economic, social, and environmental protection. Yet the bill is silent on how the right of a healthy environment is to be balanced with the economic and social realities.

That's what we heard from the witnesses, Chair, that this is missing, other than for the window dressing.

We should have heard from the agricultural community. We should have heard from first nations.

[Mark Warawa, Conservative, Langley, BC]

Thank you, Chair.

I also want to thank Ms. Murray for her interruption.

Chair, we heard that it's very important that Bill C-469 create a balance; this is what we heard. And we heard that we have the principle of sustainable development mentioned in the bill, but in fact, it's not in the bill. Bill C-469 would usurp the principle of sustainable development; in spite of it being this clause, in clause 3, it does not address sustainable development.

Now, sustainable development is a term that we've heard often, particularly over the last couple of years, as this committee unanimously supported the Federal Sustainable Development Act and, as recently as earlier this year, the strategy. The commissioner had an opportunity to comment on the strategy from the government. Actually, this committee did too, and it was a good strategy: we now are looking at all legislation--all new bills, permits, everything--through the lens of sustainable development.

That would end if Bill C-469 were to become the law of Canada. The lens would change from sustainable development to a lens that is entitled an environmental bill of rights, but is anything but, and that's the other concern. It has the title, “environmental bill of rights”, but does it have that balance? It does not. We've heard that from the witnesses.

[Mark Warawa, Conservative, Langley, BC]

Thank you, Chair.

Thank you, Ms. Duncan, for the interruption.

The focus was on the principle of sustainable development. I was referring to the Commissioner of the Environment and Sustainable Development, who was here, and to the appropriateness of a commissioner making comments on a bill before us. The commissioner was very careful not to comment on whether the bill was good or bad. The commissioner was commenting on--and will only comment on--performance of the government and assessments in that way.

Unfortunately, Bill C-469 will change the focus of sustainable development. We heard that very clearly. The focus changes from sustainable development to litigation, the big stick. I believe we need to hear from more witnesses, Mr. Chair. What we heard from the witnesses so far, as I had said in response to comments from Ms. Murray, was that, overwhelmingly, this bill should be set aside. Now, unfortunately, through some manoeuvring--

[Mark Warawa, Conservative, Langley, BC]

It says: “including, but not limited to...the principle of sustainable development”. I want to focus on that.

What we heard from the commissioner is that all legislation is looked at through the lens of the Federal Sustainable Development Act. We also learned that if Bill C-469 should become law, it would set aside the principle of sustainable development, which has its four pillars of social, economic, and environmental impacts. It would primarily focus on the environment, setting aside the social and the economic.... This government is committed to protecting the environment, but also protecting jobs in a balanced way. This bill, this clause, does not permit that.

We've also heard from the witnesses, Chair, and we've heard from a number of the witnesses who have suggested that this bill be set aside. Ms. Murray, before she moved her motion to move us away from discussing whether or not this bill should be set aside.... She has moved the dilatory motion to take away that discussion, to take away that opportunity for a decision, and we find ourselves moving to clause-by-clause, against what the witnesses had recommended.

Ms. Murray referred to Mr. Miller, the commissioner for Ontario. When I questioned the commissioners, both Mr. Vaughan and Mr. Miller, I began my comments by reminding the federal commissioner...I confirmed with him that his responsibility as the commissioner of the environment is to provide parliamentarians with objective independent analysis--not critiquing bills and legislation, but to critique existing legislation, existing law in Canada--and to provide an analysis as to whether or not we are living up to the responsibilities and focusing on the environment. So it is to provide parliamentarians with objective independent analysis and recommendations on the federal government's efforts--not recommendations on bills but on the government's efforts to protect the environment and foster sustainable development.

There it is again: sustainable development. This is the lens through which we now look at Canadian law--the lens of sustainable development.

The commissioner did confirm that it would be very inappropriate for the commissioner of the environment to be commenting on a bill, so he did not. He made that very clear.

Now, when that issue came up, it was actually Mr. Scarpaleggia who talked to Mr. Miller, and he said, “Going back, I guess, to Mr. Warawa's point--”. Mr. Miller responded, “You didn't quite put it the way it's done”. Again, I'm again referring to legislation and comments by a commissioner on the legislation. This is my understanding of what he was talking about. This is what he said: For instance, let's say we're talking about a piece of legislation. If there's an issue going on, I may...on my own initiative bring forward an issue on such things. But once it has progressed to the posting of a proposal on the environmental registry, and especially a proposal pursuant to a law, I cease comment until after it has gone through the entire consultation process and the legislature and is passed. It's only afterwards that I review it.

That is consistent with what we have with Mr. Vaughan, Canada's commissioner of the environment: that a commissioner of the environment does not critique legislation. The commissioner assesses whether or not the government is performing its responsibilities.

So what was left is--and hopefully that answers Ms. Murray's comments--

[The Chair, Conservative, James Bezan]

We'll have a recorded vote. All those in favour?

(Motion agreed to [See Minutes of Proceedings])

The motion is carried, so we can go to clause-by-clause consideration of Bill C-469.

Pursuant to Standing Order 75(1), consideration of the preamble and clause 1 are postponed, so I will now call clause 2.

(On clause 2)

I have been advised by our legislative clerk that I'm going to stand clause 2 because there are things later on in the bill that will affect clause 2. Since there are some repercussions down the road, we're going to stand clause 2 and move to clause 3.

(Clause 2 allowed to stand)

(On clause 3--Interpretation)

[Joyce Murray, Liberal, Vancouver Quadra, BC]

Thank you, Mr. Chair.

I was speaking to the motion of Mr. Warawa. I have plenty more to say, but I think the best time and place to do that is in a clause-by-clause debate, so I'd like to move that the committee proceed to clause-by-clause consideration of Bill C-469.

[The Chair, Conservative, James Bezan]

The motion Mr. Warawa has put on the floor at every meeting for the last three meetings now is that the committee recommend to the House that it does not proceed further with Bill C-469.

[Mark Warawa, Conservative, Langley, BC]

All I'm going to do is read it into the record and call for the vote. I move:

That, pursuant to Standing Order 97.1(1), and after concluding hearings, the Committee recommends that the House of Commons do not proceed further with Bill C-469, an act to establish a Canadian Bill of Rights, because the Bill: will enable any resident of Canada to challenge any regulatory standard, at any time, thereby trumping the existing regulatory process, creating regulatory and investment unpredictability; will encroach on areas of provincial environmental jurisdiction; does not allow for the balance of the Social, Economic and Environmental pillars of Sustainable Development; overlaps with aspects of existing Federal legislation and policies which give rise to redundancy or conflict; removes numerous safeguards which ensure that environmental rights do not overwhelm government capacity and judicial resources.

My hope is that we move right to the vote and that we have a recorded vote.

[Mark Warawa, Conservative, Langley, BC]

It was the Conservative government that actually made the decision and provided the funding that the Liberals only talked about. This is a government of action that gets things done. There are no more dark years where nothing is happening.

We need to hear from witnesses. The motion is appropriate. Let's call the witnesses. Let's not rush Bill C-469 through. Anything that is this bad, where Ms. Duncan herself.... In spite of all the tactics going on and trying to rush this through, Canadians want a good discussion on Bill C-469.

This side is committed to making sure those witnesses have an opportunity. No more gagging from the coalition.

[Mark Warawa, Conservative, Langley, BC]

Mr. Speaker, I heard Ms. Duncan say that she supports hearing from more witnesses--I think....

She's shaking her head no. That's unfortunate. I thought I heard her say that if more people are presenting testimony in written form, then...and referred to the hearing from first nations. So I'm disappointed. I thought there was consensus or agreement to hear from witnesses.

I think it's very important to hear from more witnesses. I was quite shocked that there was a procedural manoeuvre used by members across the way. It was well organized. They had their meeting on the side, and they came here prepared to gag and stifle healthy debate as soon as they got a chance.

They used the word “filibuster” when we are sharing what Canadians, what business, and what industry have shared. There are huge concerns across this country, including in Quebec.

I'm glad that we have Mr. Blaney here, standing up for Quebec. What would happen if the Bloc had its way? I shudder to think.

Do we need to hear from more witnesses? Absolutely. Canadians have now heard of what Bill C-469 would do.

Chair, we heard from Michael Broad of the Shipping Federation of Canada. What did he say in November? Well, he said that they can easily foresee clause--

[Mark Warawa, Conservative, Langley, BC]

Mr. Chair, thank you.

The letter continues:

The Federal Court, in turn, would have access to a range of remedies. Legal advisers inform us that the sweeping scope of this provision could end up impinging on provincial authority in respect of the environment, thus setting the stage for intergovernmental conflict and discord.

That applies directly to one of the points in the motion that it would encroach on areas of provincial environmental jurisdiction.

It goes on:

Because the Bill in its present form puts environmental protection above all other public policy goals, there is no room for the weighing and balancing of interests and the exercise of careful judgment that are the essence of policy-making in our democratic legislative system. While environmental protection is a very important consideration, policy-makers have a responsibility to take other goals and factors into account, including economic development, jobs, energy security, and the need for predictable rules governing business activity. Bill C-469 basically treats all public policy goals, apart from environmental protection as illegitimate or, at a minimum, decisively subordinate. The Courts, instead of democratically accountable public policy-makers, would be empowered and indeed encouraged to continuously challenge the decisions made by Government agencies or even Parliament.

That is a huge concern that we heard over and over again. Should Parliament be making the decisions or should that be usurped and given over to the courts? That's not what Canadians want, Mr. Chair.

Section 22 of the Bill envisages that any “plaintiff,” even someone far removed or completely unaffected by a specific matter (such as issuance of an individual permit), may apply for judicial review of a Government decision. This provision, if implemented, would be certain to lead to a marked increase in litigation around environmental assessments, approvals and permits issued by responsible Federal Ministries and regulatory bodies.

Under section 23, we note that compliance with the terms of a permit or license is not a defence to a civil action that may be brought under this provision--and the current language appears to contemplate that it would apply even to matters falling within provincial/territorial jurisdiction. Needless to say, this would cause a high degree of uncertainty for many business operators while also setting the stage for conflict between levels of government. In our view it is wrong in principle for a piece of Federal legislation to openly encroach on provincial jurisdiction or purport to limit the exercise of legitimate provincial powers in this way.

Section 10 is intended to ensure effective access for the public to “environmental information,” but there is no reference to protecting confidential commercial information. While we are not opposed to measures that increase public access to environmental information, we believe that safeguards are needed so that confidential business information is protected from disclosure.

Section 13 contemplates that any entity or resident of Canada could ask for a review by the Minister in respect of any policy, Act or regulation relating to or having an impact on protection of the environment. This far-reaching provision would be sure to result in a significant increase in the administrative burden on Federal departments and agencies and cause a slowdown in governmental decision-making processes affecting a wide range of projects and investments.

Then there are the closing comments saying that Bill C-469 should be set aside.

Again, that's another example: it should be set aside. And that is the motion before us today.

I believe, Chair, the question before us is this: does the committee support, as I believe it should, setting aside Bill C-469?

There are two other options. We could call for more witnesses. We've heard from this side repeatedly on the importance of hearing from witnesses. There is this deluge now of new testimony that we're receiving from the clerk, with the vast majority raising concerns about how bad Bill C-469 is. Should we hear from those witnesses? That is an option that we could consider.

What about first nations? We've heard that first nations have not been consulted. I'm actually quite surprised that first nations have not been consulted, when in fact this could affect them. It could affect treaties right across this great country and destabilize the good relations we have. I'm quite surprised that we're moving forward so quickly without hearing from witnesses.

Basically the third option, Chair, is that we quickly get this out of here, and through the House, and get it through Parliament so nobody will really notice what is being proposed. Hopefully that is not what is going to happen in this committee.

At this time, I think we need to be very careful. The prudent and logical thing is to set it aside.

I think it was one of my colleagues here, maybe Mr. Woodworth or Mr. Calkins, who suggested that maybe we start again. This bill is so badly flawed that we need to set it aside and start again.

I'm done. Thank you.

[Mark Warawa, Conservative, Langley, BC]

Thank you, Chair.

I've been very careful to make sure that what I'm presenting today has not yet been presented by any of the witnesses to this committee or from any of my colleagues on this side or that side. This is all new information. The message continues to be that Bill C-469 is a bad bill. I will continue to make sure it's all relevant and not repetitive.

Mr. Speaker, may I continue?

[Steven Blaney, Conservative, Lévis—Bellechasse, QC]

Mr. Chair, I wanted to come back to the question that I asked the witness from the Shipping Federation of Canada. This is what he said, “I don't see the reason for this law.”

Mr. Chair, is it really the committee's job to play the sorcerer's apprentice with Canada's environmental laws? That is what we need to ask ourselves when considering Mr. Warawa's motion. That is the question I put to you, Mr. Chair, and to myself. My answer is “no”. I have no intention of wreaking havoc on Canada's environmental regime with a bill that would create regulatory unpredictability, according to all the stakeholders. Mr. Chair, we heard from a number of witnesses that this bill would make life very unstable for them.

Obviously, I want to start by talking about a witness who, in my view, is extremely important, Mr. Irving, the president of the Canadian Hydropower Association. As we all know, Hydro-Québec is a member of that association, Mr. Chair. These people ran out of adjectives to describe just how disastrous this bill would be for the hydroelectric industry, Mr. Chair. This is a bill they described as “harmful” and “destructive”, Mr. Chair. This is a bill that would have extremely detrimental and disastrous ramifications for the country's hydroelectric development, a jewel in Canada's renewable energy crown. This is a bill that would harm the development of green energy sources, Mr. Chair. And that is nothing to scoff at.

Not only did we hear about the redundancies the bill would create, Mr. Chair, but we also heard a lot about the uncertainty this bill would create, particularly in terms of the legal actions it would expose developers to. We know that this kind of legislation would totally discourage investors from undertaking any sustainable development projects, Mr. Chair—the people who have plans, the people who truly want to pursue sustainable development initiatives—because they would have to operate within a process that would open them up to legal action. Their position is clear. This is a bill that would hinder sustainable development by creating a climate of uncertainty. I think the Canadian Hydropower Association made its view abundantly clear.

But theirs was not the only evidence we heard. We received a legal analysis covering five points, which, to my mind, are extremely relevant, and that analysis is even more reason to support Mr. Warawa's motion, especially if members care about respecting federal and provincial jurisdiction.

Mr. Chair, you know that we are committed to the principle of open federalism. That means that we accept that the environment is an area of shared jurisdiction. So we must ensure that the federal government's legislative agenda respects areas of provincial jurisdiction. Bill C-469 clearly infringes upon provinces' jurisdictional authority over the environment, as I just mentioned. As we all know, under the Constitution Act, 1867, the environment is an area of shared jurisdiction. We also know that since that time, environmental law has come a long way. And that has been possible because we have been able to maintain a balance, Mr. Chair. Under this bill, anyone would be able to challenge a bill at any time, but only after it had gone through all the legal, administrative and environmental channels.

We know, for instance, that Quebec has instruments such as the Bureau d'audiences publiques sur l'environnement (BAPE) in place. We also know that the Canadian government works alongside the BAPE. When a situation arises requiring intervention under the law, Canadian legislation stipulates that an assessment be done, and that assessment is carried out jointly, Mr. Chair. That brings to mind a project that was subject to a joint assessment by the Canadian Environmental Assessment Agency and the BAPE—the LNG terminal project, to name just one.

So, as you can see, there are already mechanisms in place. Once the process has been completed, once a decision has been reached, Mr. Chair, and reasonable and necessary adjustments have been made, we have to live with those consequences.

Under this bill, anyone could turn everything upside down and create a climate of legal uncertainty. That is totally unacceptable. That infringes upon the provincial domain.

For that reason alone, the bill should be withdrawn, reviewed and reworked to make sure that it respects jurisdictional authority, one of the tenets of Canadian federalism.

As I mentioned, by jeopardizing the future of hydroelectric projects, the bill creates an imbalance in terms of sustainable development, an area that seeks to align the interests of the environment, the economy and society. At the end of the day, this bill throws that balance out of whack. It duplicates existing legislation, as we saw, Mr. Chair.

Of course, one of the most important points was raised by the officials from the Canadian Chamber of Commerce. They told the committee that we could not move forward with this bill because it did not make any sense. It does not take into account decades of work on the part of parliamentarians to set up national environmental protection agencies.

Mr. Chair, we have clearly seen that this bill truly creates considerable legal uncertainty, for all sorts of reasons. That is why we absolutely must take the time to discuss Mr. Warawa's motion at length and to carefully consider our role as parliamentarians. And as such, we have a duty. We must do the responsible thing and defeat the bill.

In conclusion, I would remind you of what the Canadian Hydropower Association said. Stakeholders in other industries shared those same concerns with us.

For those reasons, Mr. Chair, I intend to support Mr. Warawa's motion. And through you, as always, Mr. Chair, I urge my colleagues across the way and my Quebec colleagues to stand up for sustainable development in Quebec and to put a stop to this bill.

Thank you.

[Steven Blaney, Conservative, Lévis—Bellechasse, QC]

Thank you very much, Mr. Chair.

Right off the bat, I want to say, Mr. Chair, that I intend to support the motion moved by the parliamentary secretary, Mark Warawa. It is an extremely important motion.

It is true, Mr. Chair, that I am looking at the bill with new eyes, because I had the opportunity to be present when the bill was introduced and when the witnesses had their say. And that involvement has led me to throw my full support behind Mr. Warawa's motion. I am now genuinely and deeply convinced that this bill goes against Quebec's best interests and threatens one of the cornerstones of its energy sector: hydroelectric development.

Mr. Chair, we have heard from a number of witnesses. I do not mean to harp on what my colleagues have already made very clear, but we have heard that this bill could have extremely serious economic ramifications for the maritime provinces. My colleague, Blaine Calkins, who has been on the environment committee since 2006, if I am not mistaken, also took an objective look at the bill with the noble intention of getting it through.

But the fact of the matter is that amendments are not what is in order. Instead, this bill should be scrapped for the sake of Canada's environmental regime.

Mr. Chair, the House of Commons document that was given to us at the very beginning talks about Bill C-469, An Act to establish a Canadian Environmental Bill of Rights. It also talks about the bill's two key elements, one of which is the substantive right stipulating that every Canadian resident has the right to a healthy and ecologically balanced environment. That, in itself, is a commendable principle.

However, various Supreme Court of Canada decisions also refer to the substantive right to a healthy environment, which may mean that certain aspects of the substantive right to environmental quality have already made their way into Canadian law.

So the bill and its substantive right component are, to a certain extent, redundant, if you take Canada's existing body of environmental authority into account.

But where things really get complicated is in terms of procedural rights. And, in fact, we heard from a number of witnesses who were most opposed to that aspect of the bill. I have here an excerpt from the brief submitted by the Shipping Federation of Canada regarding Bill C-469, which was submitted to the committee on October 21:

[...] we are concerned that Bill C-469 would enable anyone to challenge any regulatory standard at any time, thereby trumping the existing regulatory process and creating regulatory unpredictability.

So I would ask the honourable members of this committee, through you, of course, Mr. Chair, the following question: Are we here to create unpredictability—

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Thank you, Mr. Chair.

Many of my colleagues have already spoken to this motion. At the risk of repeating, I'll try to do my best to focus on what I think the concerns are.

I'd like to, first of all, just congratulate my colleague from Alberta for tabling this bill and for trying to move this agenda forward. It's a laudable goal, to be sure. You know, she and I have both spent a large portion of our lives working in the environmental field protecting and defending the environment. So I don't doubt, in my own heart, her motives for trying to do what she thinks is in the best interests of the environment.

But I also understand reality. And the reality is that not everything is about the environment. There are social factors. There are economic factors that need to be brought into play. We've heard from witness after witness after witness, other than environmental groups, which stand to benefit the most from this legislation, that it's not the environment that stands to benefit the most from this legislation; it's environmental lawyers and judicial activists who stand to benefit from this legislation.

This bill is so fraught with problems in its original drafting that I'm concerned about the number of amendments we've seen. It's quite unusual to see a private member's bill of this size and scope actually brought forward. I actually don't recall, in the years I've been here as a member, a private member's bill quite this large, quite this broad, and quite this comprehensive even getting this far. I'm not sure that it's even within the rules, but I assume that it is, because it has gotten this far.

I just wanted to speak for a few minutes and hopefully change the minds of some of my colleagues across the way. I'd first of all like to set the stage by saying that I would actually welcome this bill coming back again in the future, after any member of this committee or any member of the House of Commons has had an opportunity to look at the testimony, look at the original drafting of the bill, and look at the various amendments.

Mr. Chair, I don't know how many there are now. I guess more are coming in all the time. Is that right? I think we have 30 or 40 proposed amendments. That's not even counting the ones that may come from the floor.

I think all members of this committee would actually like to come out of here and go back to our constituencies and say, “You know what? We've done something good. We have an environmental bill of rights.” That's an easy thing to say in front of a microphone, and most Canadians would think it's a great thing. Of course, the devil's always in the details.

Due to the way the bill is structured, clause 16 relates to clauses 19 and 20 and so on. Given the intertwining of the various clauses of the bill, if we were to try to go down the road of trying to amend this bill 30 different times, not to mention all the suggested friendly amendments that would come from the floor, and we make an amendment here and we don't make the following amendment in the following clauses of the bill, we could end up with--I think somebody else coined the term--a “Frankenbill”. I think somebody said that. I don't think that would do any justice to anyone.

We've had a good, healthy, wholesome debate about this. I think there is probably room for discussion on a bill that would circumscribe some of the limitations we see in provincial legislation, such as the environmental bills of rights in Quebec or Ontario or the various territories.

There is no circumscription to the limits of this bill. It's so broad and comprehensive and allows so many opportunities for other interests to intervene in Canada--using the environment as smoke and mirrors--and to basically attack us economically through this environmental bill that I think we really need to proceed cautiously and really, really think this through.

I'll give you some examples of some of the problems I see. I'm quoting from the Conseil patronal de l'environnement du Québec.

I hope I said that right. I'm doing the best I can with my French. I'm better in Polish.

We've seen the reverse onus in legislation in Canada before, in human rights legislation. Somebody can have, however frivolous or vexatious the accusation may be, all of the resources provided to them, while all of the onus is then put on the defendant to prove a negative, which is a virtually impossible thing to do. My friend Ezra Levant would probably speak to that.

We've had some issues there, where these reverse onus...in this particular case, it would give all of the weight.

There is a clause in the bill that would actually allow compensation, I believe, to anybody who is actually filing a complaint.

Subclause 21(2) reads as follows:A plaintiff bringing an action under subsection 16(1) may be entitled to (a) counsel fees regardless of whether or not they were represented by counsel

Well, that sounds like money for nothing. There was a song about that back in the eighties, but I don't want to go down that road.(b) an advanced cost awarded upon application to the court

Basically, the court and the taxpayers of Canada are now funding environmentalists who want to bring action, whether or not they're represented by counsel.

The clause of the bill is quite rightly called “Entitlement”. Well, taxpayers are I think getting a little bit tired of entitlements. I'd like to know when the taxpayers get some entitlements. They're entitled to getting their tax dollars used in good order.

So when I see these reverse onus clauses and I see clauses like this as far as entitlement is concerned, it starts to concern me that we're basically creating or expanding the legal industry to take over the environmental management of our country, which I think completely undermines the democratic process.

We have a government that's elected, we have policies brought forward, we discuss and debate these things at length, and to have all of that basically become redundant in the hands of a judge who may or may not get it right....

We've seen lots of decisions in the history of our country that, looking back, some members would say, I wish that was a different decision. But once you have that decision, you're stuck with it.

I would just like to say, you know what? We need to seriously look at this. I think it's so broken that I don't know if we can actually save it.

On that particular point, I would just urge members to basically consider setting this bill aside and have a future member at a future date take this bill, go back through the testimony, take a look at the amendments that were proposed, and come up with something a little more accurate at a starting point. We're just too far off on the starting point.

I would also like to talk about the Canadian Energy Pipeline Association's submission.

I have the submissions here. There seems to be a case here where we're trying to move to clause-by-clause so quickly to...in order to block it, I think the rest of Canada is just catching up to what the environmental movement is doing here. We're starting to get some fairly coherent and knowledgeable submissions.

The Seafarers' International Union of Canada states:...we believe some clauses of C-469 could be revised in order to clearly state that Canadian seafarers cannot and will not be held responsible if an incident occurs when applying the actual international and national standards of the current legislation. In our over-regulated industry we have to be able to rely on the framework provided by regulations to know what actions we are or are not authorized to perform.

We've heard in testimony after testimony—this one included—that basically everything that a government agency does, whether it's Environment Canada or the Department of Fisheries and Oceans or whoever authorizes a permit, can be second-guessed by any entity. Just imagine the potential opportunities for outside interests to use this legislation to beat us about the head for any reason that they deem necessary—economic, social, whatever the case may be.

I kind of like the approach they've taken in their last part, saying we have enough legislation, we have enough rules, we have enough information out there, but “considering there are actually very stringent regulations to be met by the crewmembers I strongly believe that we will all gain in choosing education and information” instead of basically criminalizing people for carrying out their duties as authorized under a permit.

The Canadian Energy Pipeline Association says, “We see no gap in the current regulatory and environmental framework that requires a far-reaching bill such as C-469.”

Chair, our committee just went through the exercise a little while ago of taking a look at water and the oil sands. We looked at that for months. It has spanned two parliaments now—under the 39th Parliament and into the 40th Parliament. We heard from numerous witnesses that every regulatory permit, every project, takes upwards of seven years and millions and millions of dollars in engineering and research and mitigations, plans for reclamation, and all of that now can be second-guessed by Bill C-469.

CEPA also said this:

As proposed, Bill C-469 would change many fundamental principles and relationships that currently underpin Canada's legal and governmental system--a system that has functioned for nearly 145 years on the sound foundation of “peace, order, and good government”. Well, there's a group here in Canada that seems to think that this bill will upset that peace, order, and good government. I happen to agree with them.

They went on to say:

This is not the way to improve and protect our environment. Adversarial action destroys trust and increases costs and process burden to all sectors of society, including the federal government and indirectly tax payers.

We hear this constantly in the House of Commons. For example, I believe there's a mine closure in northern Manitoba or Ontario. I think the whole case behind the mine closure is that regulatory burden is so severe it give the mine an economic disadvantage. Of course, those regulations have been put in place for reasons being pushed by watchdogs. But the same members who push for these regulations also push for aid to bail these same companies out, propping them up with government subsidies. This is the kind of situation that we're getting ourselves into, and it just doesn't make any sense to me.

The Canadian Energy Pipeline Association went on to say that, “Civil actions brought so easily under Bill 469 could be used inappropriately to delay projects or to leverage positions in negotiations with proponents.”

Imagine if you were applying for a federal grant, going through this whole process that clause 16 would apply to. Say you were going to produce some type of energy. Your company, Company X, goes and bids. My company, Company Y, makes a bid for the same project. Your company wins the bid. My company loses. I immediately file an action under Bill C-469, delaying your project, not because it's not good for the environment, but simply because I don't want to give you, as one of my competitors, the financial advantage of the grant that you rightfully applied for and won.

These are the kinds of short-sighted things that just haven't been thought through in this piece of legislation, and they cause me no end of concern.

We heard from the Canadian Energy Pipeline Association, and we have the National Energy Board. In Alberta, we have the Alberta Energy and Utilities Board. We have all of these experts and knowledgeable people making decisions. They're appointed to make these decisions in the best interests of Canadians, the best interests, in my case, of Albertans. To have them second-guessed constantly at every stage by somebody who may not even be a resident of the province, may not be directly affected by the proposed undertaking, is simply going too far.

We've heard from numerous witnesses. I think Johan van't Hof was here, and he said that he has no end of trouble already, under the existing environmental legislation, securing funding for projects. The banks are so risk-averse these days. To throw any added uncertainty into the process, particularly when the risks are as large as those proposed by Bill C-469, would simply put a freeze on the entire thing.

We heard from the environmentalists who testified that they were looking for that very hammer. They said that very few actions would be brought forward through this legislation, but that all they wanted was the hammer hanging high over the head. Well, that hammer would result in an investment freeze. It would create a paralysis within a bureaucracy that is already taking too long to make some of its decisions. We're just paralyzing the decision-makers, creating a system where everybody is covering his tracks and nobody is willing to make a decision. When that happens, we get arguments for more government, more involvement, and less and less gets done. So I'm very concerned.

Also, I think the world is moving back towards the model of sustainable development, the three pillars of sustainable development. I think that this bill, at this time, is heading in the wrong direction.

The timing of this bill was probably about 20 years ago, when it should have been brought forward to Parliament when conditions weren't so well. I worked for years in the wintertime—I was a park warden in summertime--as an oil patch worker in Alberta. I loved it. It was great for my family. It provided an economic environment that was important for my family. Talking to my colleagues, I heard stories about how dirty the oil patch used to be in the 1960s and 1970s and so on, and how much it's matured to this point today. This legislation is 20 years too late, in my estimation.

However, Mr. Chair, I see I've already used 15 minutes of the committee's time. I thank my colleagues. It looks like they might be listening through the earpiece. Bernie listened to me anyway.

Thanks, Bernard, I appreciate that.

Colleagues, just to sum up, again, there is no harm in putting this aside, taking a look at it in the future. Let's have this bill brought back. If we already have 30 proposed amendments, let's take a look at this legislation. Obviously there are concerns from around the table, if there are that many amendments that are already tabled. Let's just put it aside. The bill can be brought back forward, re-authored based on those amendments and brought back forward. We'll have a much cleaner starting place to work from, and I think that's a smarter course of action.

From that perspective, Mr. Chair, I'll be voting in favour of the motion.

[Mark Warawa, Conservative, Langley, BC]

I said:

Did the witness say that he represents people in Hydro-Québec?

Mr. Ouellet said “Yes”.

Now, Chair, we heard from Mr. Jacob Irving, and this was your question to him:

I just want one clarification as chair. In your presentation and in your responses you definitely have reservations about the bill. Would the Canadian Hydropower Association prefer that the bill be set aside or be amended?

Mr. Jacob Irving said:

There is probably opportunity for amendment, but it depends. Ideally one would like to see the amendments come through that deal with all of our issues, and then that's fine. But if those amendments don't come to the fore, then being set aside would have to be the logical choice.

So the concern we heard from the witnesses is this: will the bill be adequately amended or will there be unintended consequences? The concern I've heard is that Bill C-469, entitled the “environmental bill of rights”, in actuality is anything but. It's a Trojan horse that would attack the rights of business, of Canadians. It would attack the rights of the foundation of fairness, of law. It would attack permits. It would attack the confidence within Canadian business and facilities in that everything could be up for an action against them, against appeal. Uncertainty would reign, and that would mean the loss of investment.

So the consequences of this Trojan horse...called Bill C-469. The fact is that every witness, other than the ENGOs, do not support this bill. Their number one recommendation is that it be set aside.

That's what the motion is. As I said before, the points that are in the motion are points that are provided by a legal counsel for the witnesses, and were incorporated into it. I believe they got those points right. I believe they are accurate.

Now, some may not disagree. Some may be willing to take a chance and think they can amend Bill C-469 adequately.

Chair, we momentarily will be looking at a lot of amendments. Some of those amendments came in at 2:13 today. In the spirit of fairness, I don't think amendments should be coming moments before this committee starts. How can we properly prepare when we have amendments from the Liberal Party arrive by e-mail at 2:13 today?

Chair, we have....

Is there a point of order?

[Mark Warawa, Conservative, Langley, BC]

Thank you, Chair.

Again, I do not want to cut down any of my colleagues across the way. I'm very concerned...and that's why I've used the word “coalition”, which is what I believe it is. Not to individually demean anybody here, but it's a coalition that's voted--all the opposition members have voted--in favour of Bill C-469 and have defended the text of Bill C-469, which includes a text that could very seriously jeopardize Quebec's hydroelectric. It could jeopardize the oil sands.

So I think the term “coalition” is deserved in that it's not derogatory, it's a fact, and it raises a lot of concerns not only on this side of the table, Chair, but also with Canadians.

[The Chair, Conservative, James Bezan]

I want to thank all of our witnesses for coming in today. I really appreciate your expertise and input as we wrap up our study on Bill C-469.

Mr. Melaschenko, Madam Roussel, and Mr. Nielsen, thank you very much.

Not all committee members have gotten their amendments in. I request that you get them in by first thing tomorrow morning so that we can circulate them to other committee members for due consideration and give our clerk and analyst time to put together the packages so we can have a fruitful debate as we go through the clause-by-clause study, which begins on Wednesday.

Is there a motion to adjourn, please?

Thank you, Mr. Woodworth.

We're out of here.

The meeting is adjourned.

[Joseph Melaschenko]

Thank you. It's a fair question.

Both Bill C-469 and the Canadian Bill of Rights would include this right to a healthy and ecologically balanced environment. My point was that there's some subject matter overlap there.

[The Chair, Conservative, James Bezan]

I call the meeting back to order.

We will continue with our second hour on Bill C-469, An Act to establish a Canadian Environmental Bill of Rights.

Joining us now from the Department of Justice we have Eric Nielsen, counsel with the public law policy section, and Kathleen Roussel, the senior general counsel and executive director of Environment Canada legal services. She is joined by Joseph Melaschenko, legal counsel of Environment Canada legal services.

Thank you all for coming.

Madame Roussel, could you kick us off with your opening comments?

[The Chair, Conservative, James Bezan]

Merci beaucoup.

We are at the bottom of the hour and we want to switch witnesses.

I want to thank Commissioner Vaughan and Ms. Smith from the Auditor General's office, and Commissioner Miller from the Ontario government, for coming in and sharing your points of view on Bill C-469.

We are suspended.

[Mark Warawa, Conservative, Langley, BC]

Thank you.

Thank you to each of the witnesses for being here.

As we heard testimony this afternoon it became evident very clearly that the roles and responsibilities of the two offices, the Commissioner of the Environment federally and the office of Mr. Miller, have quite different mandates. I'm going to focus on the federal aspect. And thank you, Mr. Miller, for the comments that you've made.

The Auditor General of Canada and the Commissioner of the Environment provide parliamentarians with objective, independent analysis and recommendations on the federal government's efforts to protect the environment and foster sustainable development.

Mr. Vaughan, you talked about the FSDS. That is a very important piece of legislation. Everything federally now is looked at through the lens of sustainable development, and there are three legs to that stool. There are economic impacts, social impacts, and environmental impacts, and there's that balance that government tries to reach. So it's through that lens. My questions are going to focus on a new lens, and that's the environmental bill of rights.

Now, do we use the lens of sustainable development or do we use the lens that you do your audits through, the environmental bill of rights? Which lens do we look through? Which is the dominant lens? Will all legislation now be looked at through the environmental bill of rights?

We've heard testimony for the last couple of weeks. In the first couple of meetings we heard primarily from NGOs, non-governmental organizations, and the term “stick” was used a number of times. They wanted a piece of legislation, like Bill C-469, that would be a stick that could aggressively encourage the government to move in a certain direction. The issue of litigation has come up time and time again. The question was asked whether there would likely be an increase in litigation. Mr. Miller touched on that. I'd like to read what one of those witnesses, Jamie Kneen, said: “The entire point is that the threat of litigation is a very strong motivator.”

I think most of us interpreted that to mean it may not necessarily increase the number of actions against the government, but it would be a very strong motivator to move in a certain direction.

So my question then was whether it's the threat of legislation that is the stick, to which he said, “I believe so.”

After the NGOs we heard from industry--the Chamber of Commerce, business--and we heard about the chill that Bill C-469 could provide, again, through this threat of litigation. We also received a letter from the Quebec Business Council on the Environment, and they shared some concerns that there's no circumscription on Bill C-469, no restrictions. It's unlimited. We had also heard through the previous testimony that there was an unlimited uncertainty, that there was no end to appeal, that appeal could go on and on, and that any resident could take an action. So I think that has been a concern around this table.

Are there any limits or is it unlimited? If it is unlimited, then it would provide unlimited uncertainty and loss of investment.

This is what the Quebec Business Council shared in their conclusion:

This bill calls into question the power of the federal government to give legal authorization for projects or actions likely to have environmental impacts and grants the courts very broad ordering powers. It includes many vague concepts, such as a right to a healthy and ecologically balanced environment, which is not circumscribed, contrary to what is found in Quebec’s legislation, for example.

How much time do I have left, Mr. Chair?

[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.

[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?

[Mark Warawa, Conservative, Langley, BC]

Okay.

Were you consulted regarding the drafting of Bill C-469?

[Mark Warawa, Conservative, Langley, BC]

Thank you, Chair.

To each of the witnesses, thank you for being here.

Mr. Amos, I'm going to begin with you. You mentioned that you met with Ms. Duncan and with Nathan Cullen, I believe. To what extent was Ecojustice involved in the drafting of this Bill C-469?

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Thank you.

I noted the testimony by Mr. O'Connor. I'd like to put the question out to all the witnesses, including Mr. O'Connor. Bill C-469 provides not only opportunities for the public to be engaged in existing law, treaties, conventions, policy, and practice, but also the opportunity to participate in any future legislation.

I just participated in the three-day meeting on the Arctic held by the Canadian Council on International Law. Coming out of that meeting, it's sounding to me like we are going to have a lot of new policy and practice, and possibly legislation, at least to do with the Arctic, and possibly the other oceans. Do the witnesses not think that it's important for the public, particularly those communities who are directly affected in the case of the Arctic, and certainly the Arctic communities, to have the right to participate in these critical decisions?

[John O'Connor]

I share the point of view that seems to be at the crux of the matter. At federal level, unlike in Ontario and the other provinces, I find the focus to be on a relatively limited number of sectors of the environment. I feel that putting various laws on top of each other, layer after layer, creates confusion, whether it is Bill C-15, Bill C-16, or this current Bill C-469. In my field, we are left confused. We wonder what is a priority for enforcement and what is not.

I understand that my colleagues are interested in seeing, or even are anxious to see, the bill before us become law. Perhaps they are afraid of losing one, two or three years if the choice is for consolidation. But I think it would be a good idea. No provisions would disappear; they would be included in a clear act in which the priorities would be laid out. That is one of the major problems we face in the maritime law sector.

Thank you.

[Theresa McClenaghan, Executive Director and Counsel, Canadian Environmental Law Association]

Thank you very much.

I would echo the thanks for the opportunity to appear before the committee. I also very much appreciate the opportunity to appear by video conference.

We too, unfortunately, did not have an opportunity to prepare our remarks in advance. We will ensure that they are provided to the clerk so that a written copy will make its way to you in due course. Our remarks are prepared by me and by Richard Lindgren, a long-standing counsel with CELA. His contribution was especially valuable because he was one of the people directly involved in the creation of the Ontario Environmental Bill of Rights a decade and a half ago.

Let me offer a word about CELA. CELA is a federally incorporated not-for-profit corporation with a mandate to use law to advance environmental protection and advocate for environmental law reform. We're also funded as a legal aid specialty clinic on the topic of the environment. We have a particular interest in the rights of the public to participate in environmental decision-making, to obtain information about activities and decisions that affect their environment, and to ensure that this participation is available to all Canadians, no matter what their income and no matter how removed they may be from direct contact with those who make the decisions.

In our view, then, not only are the provisions of Bill C-469 important for environmental protection, but they also deal with matters of fundamental justice and equity in the provisions to better involve Canadians in the environmental decisions that affect them and provide statutory remedies.

I would note in passing that it's CELA's 40th anniversary this year. I've had occasion to be reviewing our archives and noted just the other week that 40 years ago CELA was calling, along with others in Canada, for an environmental bill of rights. Calls for an environmental bill of rights have surfaced in Parliament at least every decade since. We would submit that now it is time to proceed and that, furthermore, we now have the benefit of much experience with other EBR systems, such as that of Ontario, to help design a very good Canadian federal environmental bill of rights system.

I would echo the comments made earlier that we should have access to these kinds of rights regardless of where in Canada we happen to live.

Here are a couple of general comments. We strongly support Bill C-469 and we urge all parties to ensure its timely passage and implementation. We would still advocate that substantive environmental rights should be incorporated into the charter, but we support Bill C-469 because unless and until such amendments are made, it places long-overdue environmental rights and substantive procedural protection on a statutory basis. Even if we eventually were to obtain such charter amendments, in our view Bill C-469 would become an important adjunct to those constitutional rights.

As I mentioned, CELA has been advocating a bill of rights for the past 40 years, but in the early 1990s we were very involved in the drafting of Ontario's Environmental Bill of Rights. We've made extensive use of the legal tools under Ontario's law since then, and we think there are lessons learned from the Ontario law that will help with assessment of the federal proposed bill.

I have some specific comments. I'll just touch on them, and then perhaps there will be an opportunity for elaboration later, during questions and answers.

The first comment is that we support the current version of the proposed bill, but we think there are also opportunities to improve and strengthen the bill, should the committee see fit—in particular, having regard to Ontario's Environmental Bill of Rights experience to date.

First of all, clause 3, the interpretive section of the bill, says that the bill should be interpreted in accordance with various principles, such as the precautionary principle and so forth. We would say that these should not merely be interpretive aids, but should also be included in clause 6, which is the purpose of the legislation, and therefore should form part of the federal government's affirmative duties under the legislation. They should not just be interpretive aids, but also purpose statements.

We also note that in clause 10 there's a right to access environmental information. As others have noted, there are some other statutes that provide those types of access, although it's patchwork in terms of both rights and practice. We think this is an important addition here, but we also think it should be clarified that these rights would be additional to other existing broad federal access-to-information provisions, not replacements for them.

Furthermore, to echo the comments made by Mr. Kneen and others, the provisions under this bill would have to provide for a very timely access, because if the purpose in part is to allow the public to comment on decisions that affect them, then they need this information in a very timely way. We had some litigation in Ontario around that very point, with the commissioner for information provision here in Ontario saying that it's inappropriate to hold up public access to environmental decisions under the FOI statute when there's a consultation happening under the EBR.

We also support the standing provisions in clause 11. We would make a technical note that this should be broadened because it's generally the courts who make standing decisions. So we should specify that the federal government would not deny, oppose, or otherwise contest the standing of residents interested in environmental protection.

We also like the positive duty created in clause 12 to ensure meaningful public participation. We would strongly submit that this has been in practice one of the most important aspects of Ontario's EBR, and we strongly encourage similar provisions at the federal level. It's a major discrepancy right now that citizens in this province in particular--Ontario--can access postings of decisions, policies, and laws and make comments on them before the decisions are made when it's much less certain whether they have that opportunity federally.

We think it might be useful to include specific sections as to how the participation would be undertaken; for instance, by way of maintenance of electronic registries, mandatory public notice, and minimum comment periods, either in the statute itself or in regulations that should be provided. Let me say that the provision of a registry in Ontario has been a very important piece of the success of the EBR in Ontario, in that although the various provisions may well be subject to other notice opportunities, at least there's one place that Ontario residents can access to see a variety of instrument proposals or a variety of ministries' policy proposals and see which ones they're interested in commenting on.

In terms of the right to seek a review in clause 13, we note that it should be broader, to be consistent with the purposes section of the act. It is somewhat narrower than the purposes section of the act.

We also very much support the public right to request investigations, but we would note that one of the experiences in Ontario is that the official may confirm that an offence has been committed and then isn't actually obligated to undertake any action to address it. This is something that should be done in the federal bill, and we also think it should be done in the Ontario bill, for that matter: that there would be a positive duty to institute appropriate legal action in the case of a finding that an offence has actually been committed.

Similarly, we are very pleased to see the proposal in clause 16 establishing a public right to seek judicial review. We think it would be an extremely important mechanism, particularly in light of the remedy specified in the clause. But we would echo the point others have made, which is that judicial review is only used by our clients, environmental groups, and citizens' or ratepayer groups as a last resort. Normally, people pursue all the non-litigious methods they can, and only when they are not achieving any success and it remains an important matter do they proceed to judicial review action.

We also think that the limited undertaking as to damages and special cost rules are quite important. The fiscal barriers are otherwise very important. As I noted, we see this statute as an important access-to-justice statute that would take away access differences, such as how much money you have to spend on litigation.

The civil right in clause 23 would be an important additional right. We, too, do not anticipate that clause 23 would result in a floodgate of frivolous or vexatious civil actions, because of the cost, complexity, and uncertainty associated with environmental litigation.

Finally, we also support the proposed amendment to the Canadian Bill of Rights. As we said, we would like to see substantive environmental rights included in the charter, but in the meantime, given the difficulty and complexity of achieving a charter amendment, the Canadian Bill of Rights amendment should be undertaken as an interim measure and should remain in place.

Finally, we would echo that we strongly support enactment of the Canadian Environmental Bill of Rights. We think it would help ensure access to environmental justice in Canada. We would submit that the committee should recommend its passage in an expeditious manner, either in its present form or in accordance with the recommendations for change that we and others have made.

Again, we thank you for the opportunity to provide these comments and we look forward to further discussion this afternoon.

[Jamie Kneen, Communications Coordinator, MiningWatch Canada]

I also would like to thank you for this opportunity to share our observations on Bill C-469.

I apologize for not having had the opportunity to prepare a more detailed written brief in advance. However, we see this bill as an important step and one that we're pleased to address. This bill touches on several aspects of our work and would greatly improve environmental governance at the federal level.

MiningWatch Canada is a pan-Canadian coalition of environmental, aboriginal, social justice, and labour organizations that researches and advocates for responsible mining practices and policies in Canada and by Canadian companies abroad. We work directly with communities affected by all phases of mining activities, from prospecting and exploration to closed and abandoned mines, supporting their efforts to make regulatory measures and planning processes useful and accountable.

We also do research and policy analysis and advocate for improvements in Canada's legislative and regulatory framework to support sustainable development and environmental justice. This bill clearly supports this objective, providing tools that we would have found useful in several instances.

I'm a biologist by training, not a lawyer, although I do know some very good lawyers, and MiningWatch does not do legal work per se. We rely on the expertise and experience of organizations such as Ecojustice, which has provided us with superlative representation in the two lawsuits that we have undertaken in our 11-year existence. I will therefore defer to the expert commentary of others when it comes to the technical details of this bill and possible improvements or amendments to it, but I would specifically endorse Professor Boyd's submission and his comments, among others.

In general terms, this bill addresses weaknesses in the way existing legislation deals with fundamental aspects of environmental governance: access to information, enforcement of existing laws, and participation in decision-making.

Access to information is critical to all of the areas covered in this bill. Without information, it is impossible to know what environmental conditions may be changing as a result of what activities, how those activities are supposed to be regulated, and who is supposed to be responsible. Federal authorities should maintain the most complete information they can and make as much of it as possible as accessible as possible in the most timely and accessible manner. This is not currently the case.

We've been told by federal agencies, for instance, that they do not need to provide us with information since we can get it through access to information. Not only is this an abuse of the access to information system, which is apparently already overloaded in light of its reported diminished responsiveness, but it also represents an irresponsible delay in providing that information.

MiningWatch and Great Lakes United had to undertake legal action to address the federal government's refusal to enforce existing legislation and regulations that require the mining industry to report data on the millions of tonnes of toxic materials that are dumped into waste rock and tailings management areas. We won that case, thanks to able representation by Ecojustice lawyers, but also in recognition of the absurdity of the situation.

Prior to taking court action, we had already engaged with government and industry through years of multi-stakeholder consultations and debates convened by the federal authorities. Despite our efforts to insist the law be applied equally to the mining industry, federal bureaucrats consistently failed, in the face of a determined mining industry resistance, to apply the requirements of the national pollutant release inventory under the Canadian Environmental Protection Act.

Why is this information important given that the releases in question have to do with the dumping or stockpiling of contaminated material within an operating licensed mine site? First, “operating” is a key word. Mines do not operate forever, and tailings dumps that are actively monitored and managed now will eventually become public liabilities. We need to know what's there. Second, spills and accidents do happen. Whether those spills are small or massive, appropriate contingency plans need to be in place and securely funded, and we cannot evaluate the adequacy of those plans without knowing what's there.

This example is important for several reasons. It illustrates the fact that when existing laws are not enforced, legal action remains the last resort for citizens and watchdog groups. This is incredibly time-consuming and costly in terms of organizational resources, if not in cash outlay, not only for the plaintiffs, but also for the government.

By the same token, it illustrates the need for a more specific legal cause of action, such as this bill would provide. If this bill had been law, it is possible that we could have gone to court and resolved this situation sooner or--more likely and more desirable--that the clear potential for legal action would have prompted compliance on the part of Environment Canada without us having to actually go to court.

Public participation in decision-making is also important, whether from a sustainable development and democratic governance perspective or a purely technocratic perspective. Environmental decisions should not be made without public involvement on principle.

Sound environmental decisions cannot he made without public involvement, especially in view of the progressively diminished budgets and capacities for scientific and technical work within federal departments, which are also increasingly trying to keep their work focused within their jurisdictions and mandates. The external factors and complex considerations involved in sound environmental decision-making cannot come solely from government or private proponents.

In addition to improving the final decision, ensuring effective public involvement also improves the public acceptance of decisions, minimizing the likelihood of a public backlash. For better or worse, it seems that people tend to accept decisions that they were involved in even if their interests or input were not well represented in the outcomes.

This is why public participation is a cornerstone of environmental assessment, at least in theory. Yet even after the Canadian Environmental Assessment Act, CEAA, was revised in 2003 to make public involvement mandatory in comprehensive studies and to expand and clarify the opportunities for public involvement in screenings, the federal government still resisted.

One extreme case was the proposed Red Chris copper/gold mine in northern B.C., which, at 30,000 tonnes per day milling capacity, was clearly over the 3,000 tonnes per day threshold of the comprehensive study list.

MiningWatch was preparing to intervene in the federal environmental assessment process on that project when we were informed that the Department of Fisheries had decided that the mine itself was not part of the assessment--just the tailings dump that would destroy fish habitat. It should be noted that the proposed mine would turn the headwaters of three creeks in northwestern B.C. into a tailings dump, destroying fish habitat and risking contamination of the entire Stikine watershed.

But since tailings impoundments are not on the comprehensive study list, the assessment would proceed as a screening, and public participation was not deemed appropriate for the screening either. To make a long story short, we contacted Ecojustice, which agreed that this seemed wrong. We eventually won the case in the Supreme Court of Canada earlier this year. The ruling cemented the role of the public in decision-making under CEAA.

This situation lasted barely three months before the government used the Budget Implementation Act to amend the CEAA to give the Minister of the Environment or his designate the power to make discretionary decisions on the scope of a proposed project, replicating precisely the conditions that the Supreme Court had rejected.

It is important to note that the Supreme Court had rejected this discretion on the basis of the logical and consistent functioning of the environmental assessment process, not just the letter of the law. We now no longer have a guarantee of a public role in the environmental assessment process. This bill would provide a strong measure of remedy.

To sum up, MiningWatch strongly supports the stated purpose of this bill: to extend to every Canadian resident the right to a clean, healthy, ecologically balanced environment and the right and the tools to hold the government accountable to enforce the laws. This bill clearly serves the public interest, specifically in the areas that MiningWatch works in: access to environmental information, enforcement of environmental protection laws and regulations, and the protection of public participation in environmental decision-making.

To quote Winston Churchill, “Give us the tools, and we will finish the job”.

Thank you.

[Beatrice Olivastri, Director, Friends of the Earth Canada]

I'd like to echo Will's comments that we appreciate very much the chance to have this time with you and also the fact that you are assessing and studying this bill. As someone of long standing in the environmental movement or--I don't know if I should say this--with grey hair, it's great to see this on the table and being actively discussed. So thank you for this opportunity and for your work together.

As Will has said, this bill of rights, Bill C-469, is seeking to improve access to information, public participation in decision-making, and access to justice. I think we're all going to tell you that it's very timely. I especially want to emphasize it's timely to advance the interests of all residents of Canada in undertaking their responsibilities and exercising their rights to protect the environment.

I'm emphasizing this notion of residents, because not all people living in Canada at this point who are interested in the environment are citizens yet, or perhaps won't be citizens, but I would like you to consider that we want to and seek to--in so many ways--foster shared Canadian values with all who reside in Canada. So we're suggesting you consider one of several text changes and move from using “Canadians” to “people of Canada”. We offer you a definition of resident at the end of our page; it's a bit of housekeeping to help you along in your work.

Friends of the Earth's detailed analysis of environmental rights in Canada, which we reported on in something called “Standing on Guard, Environmental Rights in Canada”, finds that there are grave inequities in the provision of environmental rights when you look across all the jurisdictions. We like to think--and we'd like to think you agree--that residents in Newfoundland or P.E.I. should have access to the same environmental rights as someone who lives in Ontario, the Yukon, or Quebec. We think they should be entitled to the same provisions when it comes to information and notice, public participation, and the requirement for government response. Those are just three of the 10 indicators we used when we looked at the provision of environmental rights in Canada.

One of the things that interests us very strongly about this bill is the opportunity to bring some coherence in bringing together what is right now a patchwork of provisions and procedural opportunities under the laws of Canada. To be clear, we're not saying that this is going to affect what happens in Newfoundland, necessarily, unless we continue to work with all of our colleagues in Newfoundland.

So we're not saying that by adopting and passing this bill we will affect the work of Newfoundland or any other jurisdiction's own work. But we can provide a bar. We can raise the bar from what Canada now has as a patchwork to something very comprehensive, with some leadership. Those of us who are in the field will continue to show that leadership to those in other jurisdictions.

Friends of the Earth will continue to work with our colleagues and supporters in the different provinces to encourage them to raise their bars. I'll refer to Newfoundland in a couple of situations, because we have a very compelling experience taking place there right now that is instructive in what you can accomplish with this bill.

The other thing I want to note is the time perspective of 40 years, because next year it will be 40 years since the Department of the Environment was established, in advance of the UN Conference on the Human Environment in Stockholm in 1972. So we have 40 years of history, with all kinds of activities and important pieces of work put forward, and opportunities and rights, but as I would characterize it, it's very much a patchwork of opportunities.

Over that 40-year period, many of us have been involved in the collection of work that Canada provides leadership on. Canada is on the leading edge of so many files and is dealing with everything from stratospheric ozone protection to biodiversity, transport, management of hazardous substances, persistent organic pollutants...you name it. There's a whole litany there. I probably don't have to repeat it for you.

While this was happening globally with developed and developing countries, I want to point out this very important development of a consultative culture here in Canada. It started around the management of chemicals. It started around dealing with chemicals from cradle to grave.

As someone who was at that time spending a lot of time with colleagues in other countries, I found it interesting. Partly, it's the scale and size of the country and the number of players we have that allowed us to create this consultative culture, but it's also the goodwill to figure out how to work together. Also, as I've said, it was growing out of a cradle-to-grave management around chemicals at the time, but extending, then, into many other areas of consultation--not just about the environment. It definitely was affecting the overall federal consultation culture or policy.

So I think we'd like to convince you--and add our voice to others--that it's a really important time now to take the 40 years of experience around that and put it into something as compelling as the Environmental Bill of Rights. The consultation culture, to me, is the front end of the experiences people have in access to information, in participating in committees and providing their input in advance of conflict, and in trying to be engaged in decision-making in a way that is constructive and positive.

I wanted to mention to all of you that Friends of the Earth is not a legal organization. Having said that, we benefit from the counsel and assistance of the environmental law organizations in Canada and many wise legal practitioners who provide their support individually to us. But in the delivery of our mission, which is to work to restore communities and the earth, we use a whole set of tools. We use research, education, and advocacy, and especially we insist through our work on the enforcement of laws and regulation.

So over the 10 years that we've been able to work with Ecojustice, as one example, we've had the privilege of obtaining standing in many cases that have gone to the Supreme Court. That standing was in the interests of providing fresh insights, of providing expertise that allowed for the development of moving from principles to practise: such as the polluter pays principle and moving that into Canadian law in terms of shaping the use of environmental class actions. It's a whole range of things.

I wanted to say that for those who are concerned that this bill would open the floodgates of litigation, there is a wide body of experiences that show how you can move from the different avenues or rights available into engagement and into productive experiences. For example, they have a very interesting experience in calling for a factual record on the lack of enforcement of Canada's pulp and paper effluent regulations. This was in the early 2000s.

It was an area of great concern because, as a sector, pulp and paper was the largest single user of water, and we were very concerned about what we saw as the impact of that effluent on the reproductive capability of fish. We were successful in having that factual record performed. That was through the Commission for Environmental Cooperation. It took five years. It's always a test of stamina, but with very useful results.

What I would point to, and the point I'm trying to make here, is that through that process we then moved into a working opportunity with Canada's Forest Products Association, with leading scientists in this field, with other environmental organizations, and with Environment Canada itself, to work--for the past six years now--on various ways and means of reducing the endocrine-disrupting impact of effluent on fish. So that opportunity to use a very important environmental right, the petitioning opportunity there, opened up transparency, first of all, but it also opened up the opportunity to work constructively together.

Increasingly, we at Friends of the Earth are called on to help individuals and communities navigate their way through this patchwork, this rather complex collection of environmental rights and responsibilities. The example I wanted to share with you is that of the retired fisherman in New Harbour, Newfoundland, and it is about working with him to help him exercise his rights on an investigation--just recently delivered--and assessing that using section 17.

What he really wanted us to do was use the Fisheries Act. There was nothing available to him to use that. Instead, it was the new PCB regulation under CEPA. That's still in play, but I'd have to say that Newfoundland is a place that could add some amazing, some important, environmental rights to their portfolio of procedural rights. We're happy that there were federal rights available for this gentleman and happy to be able to help him use that.

Finally, I just wanted to say that, with the history and experience I was talking about over the last 40 years, we want to see that Canadians are able to call on Parliament for accountability. We've offered some text as well that would add a provision saying that “Every obligation imposed on the Government of Canada, a Minister, the Commissioner or a federal source in the Act is justiciable”--I can never say that word “justiciable”.

With that, I will say thank you again for your attention. In terms of drafting, I have two pages of specific suggestions for you that I'd be happy to talk about later.

[Prof. William Amos]

That's okay. You're always allowed to interrupt your own congratulations.

We at Ecojustice feel that Bill C-469 is a major step forward, and we're happy it's being debated, so thanks to all of you for the invitation.

Ecojustice, for those of you who don't know, has been practising as Canada's leading public interest and environmental law organization, or at least the largest one, since 1990. We've stood side by side with groups like the Canadian Environmental Law Association and West Coast Environmental Law, which have been working on a pro bono basis for groups around the country that are deserving of our assistance. By “deserving”, I mean that they have cases of the utmost importance in terms of protection of the environment and don't have the means to pay. This is something that has been worked at for many years.

The Canadian Environmental Law Association in particular has been very involved in establishing environmental rights in Canada. Ecojustice has been working more recently on this issue and we're very happy to have been engaged on this bill in particular. I'm going to talk a bit about that.

However, I won't be talking today about litigation that in all likelihood you will have seen on the front pages of the newspapers with respect to a charter challenge being brought by members of the Aamjiwnaang First Nation, who are seeking an interpretation of sections 7 and 15 of the Canadian Charter of Rights and Freedoms that would allow for the annulment of a pollution permit granted by the Ontario government.

That's not what we're discussing today. Obviously this is not about changing the constitution or seeking an interpretation of the constitution. This is about a federal law, and a federal law that respects federal jurisdiction, so we're squarely within that realm.

Ecojustice is very keen to see all parties working together on Bill C-469. We don't see any reason why this shouldn't be the kind of legislative initiative that can be supported both by opposition parties and by the government.

In particular, with our partners Friends of the Earth Canada and the Sierra Club, we started working on our model environmental bill of rights, which was released publicly back in June 2008. As we did this, we ensured that all parties received a copy of the model law and were offered the opportunity to be briefed on the model law.

To that effect, we sent letters to the leaders of each party. In fact, we did have the opportunity to meet with Monsieur Bigras and Monsieur Duceppe. We met with the Liberal environment caucus, and of course we met with the NDP, with Nathan Cullen at that time, and subsequently with Linda Duncan.

Unfortunately, we didn't have the opportunity to meet with any members of the government. Our letter wasn't responded to, unfortunately, but that doesn't mean to us that this can't be achieved in a collaborative fashion across the aisle. We think this is an issue that should be dealt with by all parties together in recognition of the fact that this is just such an important issue.

For Ecojustice, Bill C-469—I'm going to give you a big picture here and I'll leave the specifics to questions—prioritizes the values of transparency, public participation, and accountability. Accountability, I think, is the real word to follow here. At the end of the day, Canadians are concerned that governments, whether those are municipal governments, provincial governments, or the federal government, have not fulfilled their obligations with regard to being accountable to enforcing the law. That's a serious issue.

I think all politicians of all stripes have to understand that a majority of Canadians out there really feel as though governments are letting them down regarding their accountability on environmental enforcement. That's not withstanding the great initiatives that may have been put forward, and I commend the federal government on their work in regard to the environmental enforcement act, which has yet to be brought into force, but credit where it's due....

Secondly, the bill would bring about consistency and equity for public participation across the board on all federal environmental statutes. Right now, what we have is a mishmash. The participation and access that Canadian citizens have depend on the statute and it simply isn't conducive to solid engagement by our citizenry.

Third, Bill C-469 will enhance access to justice. In our opinion, that will lead to better and more accountable decision-making. The easy analogy that could be used is the carrot and the stick. Just because avenues of litigation are available to citizens, it doesn't mean they will necessarily use them. What it does mean, though, is that it changes the calculus in incentives for behaviour that would lead to more enforcement; that is, behaviour on the part of those whose activities would be enforced and the behaviour of those who would be engaged in the enforcement activity itself.

I won't go into the argument that Bill C-469 will bring Canada into line with the international community; it's fair to say that Dr. David Boyd did a remarkable job of that last week. He is Canada's foremost authority on the issue of environmental rights across the world. I hope his testimony was carefully considered.

Bill C-469 also reflects carefully considered analysis of other provincial jurisdictions. We recognize that in Canada it's not about the federal government taking control or reinventing wheels. It's a matter of learning from experiences of other jurisdictions--and there's a lot to be learned. There's a lot to be learned from the Yukon and from the Northwest Territories in regard to the establishment of environmental rights. It's the same with Quebec, which has the most impressive record and the longest record in terms of legislative protection for rights.

I should have said earlier that I will not speak in French today, but I am very willing to take questions in French. I apologize for having neglected to tell you that earlier.

We looked at the Northwest Territories in developing this model legislation. We looked at the experiences of Yukon, of Quebec, and in particular of Ontario, where it has been 20 years since they enacted their legislation. I look forward to hearing more about that from my colleague, Ms. McClenaghan.

In terms of the key provisions, it's fairly clear that we need the establishment of an environment right and a corresponding public trust duty. This isn't anything new or radical. This has been done before. It has been done in various states. It has been done in various provinces. The public trust doctrine is also not unfamiliar to the common law.

With regard to access to environmental information and participation in environmental decision-making, there would be some major steps forward in this regard, particularly vis-à-vis a right to request investigation and a right to request a review. These are key provisions. They're available in Ontario. The system works in Ontario. The citizens feel more engaged. They participate more. Usually that means that better decisions are made. At the end of the day, there is a judicial stick available.

In various Canadian jurisdictions where environmental rights are protected and where there are opportunities to engage the judiciary in ensuring environmental enforcement, the experience is that they're not used extensively. I'd be happy to discuss this issue. We're very concerned that Canadians would be misled that there is a floodgates sort of concern with this kind of legislation, when in fact history has demonstrated that there is no such concern. It doesn't matter whether you're looking in the Northwest Territories, Ontario, or Quebec.

I'm sure I'm getting to the end of my time, so I'll conclude by simply saying that I think it's high time we enact a bill that reflects the values of Canadians. This isn't just about the nuts and bolts of rights of review, rights to request investigation, and the greater ability of citizens to use the judiciary to ensure environmental accountability.

What is it really about at the end of the day? It's about asserting our values as Canadians. It's my belief and it's Ecojustice's belief that this bill does just that.

Thank you.

[The Chair, Conservative, James Bezan]

We're back in order and in session.

We're going to continue with our study of Bill C-469, An Act to establish a Canadian Environmental Bill of Rights.

We're welcoming to the table, from Ecojustice Canada, William Amos; from Friends of the Earth Canada, Beatrice Olivastri; and from MiningWatch Canada, Jamie Kneen. By video conference, we have, from the Canadian Environmental Law Association, Theresa McClenaghan, the executive director and counsel, and as well, from the Canadian Maritime Law Association, John O'Connor.

I'm going to ask all of you to keep your opening remarks to 10 minutes or less, and that will provide us with enough time for committee members to ask our witnesses questions.

We're going to kick it off with you, Mr. Amos.

[The Chair, Conservative, James Bezan]

We just dealt with it. Essentially, the purpose of the motion was to split the time, regardless of days, between SARA and Bill C-469. We discussed this at the previous meeting, we just called the question, and it was defeated.

I don't believe there's any appetite at committee to provide for work both on SARA and on Bill C-469 at the same time, so we'll continue with the agenda we have.

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

Sure, Mr. Chair.

I'd like to move:

That the Committee continue working on the Statutory Review of the Species at Risk Act (SARA) on Mondays until it finishes providing direction to the analysts for the writing of the SARA draft report. The Committee will continue hearing from witnesses on Bill C-469, An Act to establish a Canadian Environmental Bill of Rights, on Wednesdays.

Preventing Human Smugglers from Abusing Canada's Immigration System Act

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

Mr. Speaker, my question for the member is, why do they not listen to Canadians? Why are they blindly going ahead and not listening to Canadians?

Canadians do want to have this problem solved. It was one of the major things I heard this summer. Canadians were not happy.

Canadians also said to the NDP, Bloc, and Liberal coalition, “no” to a carbon tax. Now they are trying to sneak through the carbon tax, through a litigation bill also known as Bill C-469, a Trojan Horse that wants to bring a carbon tax on every Canadian. It is a job-killing tax.

I would like to know from the member why they do not listen to Canadians. Why do they try to do things sneakingly? The message from Canadians is clear. Why are they not listening to Canadians?

[Mark Warawa, Conservative, Langley, BC]

Thank you, Mr. Chair.

To protect the species that are at risk that have been identified through COSEWIC, we need to have an improvement to SARA. We heard from witnesses---and we had witnesses on SARA--and it's been quite a while since we've had a report that we've been able to forward to the government, back to the House. If we're close to doing that, why would we abandon that responsibility? We had a legislative responsibility to review SARA. Legislative responsibilities are our number one priority--as is Bill C-469, a private member's bill.

So when we're close to finishing with SARA, why would we abandon that responsibility? I think the motion is very appropriate. It strikes a balance that we meet that responsibility of finishing SARA and that we do it in a balanced approach--one day SARA and one day Bill C-469.

Now, my question to Mr. Armstrong is on the point that if we were to finish SARA in a couple of meetings, we wouldn't be meeting on Mondays on SARA anymore. My understanding is that we would then go back to both days on Bill C-469. That's my question, through you, Mr. Chair.

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

I support the premise of Bill C-469, but I have concerns with Ms. Duncan's fifth point, the judicial remedies. I was particularly concerned with the legal implications and the civil litigation impact contained within the bill.

Therefore, seeing the good progress we've made in working together on the Species at Risk Act over the past couple of meetings, I believe that we should work on SARA on Mondays and continue with Bill C-469 on Wednesdays, seeing as now we're looking at the possibility of opening the door for nuisance lawsuits potentially overriding provincial rights, and now we've brought in the carbon tax implications. So I think it's going to take several meetings to get through Ms. Duncan's bill.

I think all of us have had meetings with NGOs that are encouraging us to continue with SARA and speed it up. I think we're working very well together on pushing SARA through. I think it's a very reasonable request, a very reasonable motion, that we work on SARA on Mondays and work on Bill C-469 on Wednesdays.

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

Thank you, Mr. Chair.

I'm going to pick up where I left off: The Committee will continue hearing from witnesses on Bill C-469, An Act to establish a Canadian Environmental Bill of Rights, on Wednesdays.

[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.

[Christian Ouellet, Bloc, Brome—Missisquoi, QC]

Mr. Speaker, I am very pleased to speak to Bill C-469, introduced by my colleague, the member for Edmonton—Strathcona. I congratulate her on this excellent bill. I will start by saying that we are very happy with this bill and we will support it.

I hope that all members in this House will support this bill, even though the member for Papineau just told us that this bill will unite Canada, using the phrase from coast to coast.

We think that the provisions of this bill should apply in every region of the country. In Quebec, we think this bill would be a good idea because of the principles it sets out, which I will be discussing. I think it is important to talk about what is in this bill.

I will be a bit more down-to-earth than the member for Papineau. I will hold back on the rhetoric, but I will talk about this bill that would create a Canadian Environmental Bill of Rights.

This bill states:

Whereas [people] understand the close linkages between a healthy and ecologically balanced environment and [Quebec's and all of] Canada’s economic, social, cultural and intergenerational security;

Whereas [people] have an individual—it is good to clarify that—and collective right to a healthy and ecologically balanced environment;

Whereas action or inaction that results in significant environmental harm could compromise the life, liberty and security of the person and be contrary to section 7 of the Canadian Charter of Rights and Freedoms;

Mr. Speaker, it is quite interesting that in your ruling on the royal recommendation, you also tied this bill to the Canadian Charter of Rights and Freedoms. It seems that doing so makes this already interesting bill stronger.

I will continue to read:

Whereas the Government of Canada has consistently made commitments to the international community on behalf of [everyone] to protect the environment for the benefit of the world;

We know how much this government just ignores these agreements. The previous Liberal government did more or less the same thing and put things off as long as possible in order to do nothing at all.

I will continue:

Whereas the Government's ability to protect the environment is enhanced when the public is engaged in environmental protection;

That is essential and I am pleased to see that it is in the bill.

This bill defines the term “environment” and I would like to look at that, because it is truly well done.

The bill says:

“environment” means the components of the Earth and includes (a) air, land and water;

(b) all layers of the atmosphere;

(c) all organic matter and living organisms;

(d) biodiversity within and among species; and

(e) the interacting natural systems...

I truly applaud my colleague's work on this definition of the environment. I think it is excellent.

Another interesting thing about this bill is that it defines the principles. There is the principle of environmental justice. The bill also defines the precautionary principle. In my opinion, the French translation is not quite right. The French should read, “principe de précaution”. That is the more commonly used term.

This is how the precautionary principle is defined:

“precautionary principle” means the principle that where there are threats of serious or irreversible damage to the environment, lack of full scientific certainty should not be used as a reason for postponing action to protect the environment.

Including such a principle in legislation is unprecedented. Currently, in my own riding, we are wondering about the potential impact of the Trailbreaker project, which would carry oil from the oil sands to the United States.

Such a provision would clearly indicate whether decisions should be made immediately, because of the potential threats.

The bill goes on to talk about the principle of intergenerational equity. We know how important it is that future generations have the resources they need and that life on earth be worthwhile. The bill also refers to the polluter pays principle, which we are quite familiar with. It would finally be written into this legislation, which is extremely complex. We admire how well drafted the bill is. There is one last principle I have not mentioned, and that is the principle of environmental justice.

So there are these five principles. Then there is the conclusion of part 5, which is a masterpiece, in my opinion:

the right of the individual to life, liberty, security of the person, including the right to a healthy and ecologically balanced environment, and enjoyment of property, and the right not to be deprived thereof except by due process of law;

We find this charming. We vote for what is good for Quebec, and we are certain this bill is good for Quebec, so hon. members can be sure we will support the bill.

In conclusion, I want to say that this bill can be applied in very practical ways. Look at what the Secretary-General of the United Nations suggested to the leaders of all countries in 2008: they should adopt a green New Deal, meaning head in the direction of new energies. We, with a Conservative government like our current one, have continued with a brown Old Deal. It is too bad. Many countries responded to this appeal and devoted a considerable share of the funds in their economic recovery plans to green investments.

The Bloc Québécois made some very practical suggestions. None of them was taken into account. In other countries such as Korea, though, 70% of the economic recovery package was devoted to green energy. The United States spent five times as much per capita on green energy in its recovery plan. That is not what was done in Canada because they are not really convinced.

Take the example of Europe. It has something called the 20-20-20 plan. It is amazing. No one believes that the Conservative government might some day adopt this kind of program and align itself with Europe. This 20-20-20 plan means 20% more energy efficiency, 20% more renewable energy, and a 20% reduction in greenhouse gases by 2020. It is realistic, it is doable and we really could set this target.

Bill C-469 could underpin some regulations of this kind. I am sure we could be doing something other than developing nuclear energy and coal-fired plants in Canada. If we set off in the direction of a green New Deal, we would be showing a lot more respect for Bill C-469.

I hope all members of the House will want to defend this bill and everyone will be proud of passing it because it is essential for our environment.

[Justin Trudeau, Liberal, Papineau, QC]

Mr. Speaker, I am pleased to rise today to speak to Bill C-469, An Act to establish a Canadian Environmental Bill of Rights.

Since the beginning of the 21st century, we have become increasingly aware that we can longer claim to keep the economy and environment separate. We understand that the two go together and should be considered as a single element to create prosperity for our country, our citizens and our communities. I would even go further and say that human civilization can no longer be separated from this planet and from this environment that nourishes us.

More of us are living in cities and taking for granted that which nourishes and sustains us. Our food comes from the supermarket. We turn on the tap and the water runs. For energy, we need only go to the gas station and use the pump to get gas or plug in our appliances and use the electricity. We take all of that for granted.

We have taken for granted, to a really troubling level, our planet's capacity to sustain us, to enable us, to give us the means to live these rich and fulfilling lives that we all have. We have done this because over the centuries our planet's capacity has seemed infinite to renew itself, to replenish itself, to heal itself from ills, natural disasters or from human-made shifts and changes.

However, things have changed now in the 21st century and through the latter half of the 20th century. We have begun to fill up our planet, not necessarily with human beings yet, although we are on our way to 10 billion, but with our footprint.

In this chamber right now, all the different members of Parliament sitting here in the clothes that they are wearing, the electronics on their wrists and in their pockets and in the food that is in their bellies, we are now drawing on every corner of this planet for things that seem very local.

We can no longer pretend that we are not deeply connected to the land. We can no longer simply assume what we have up until this point, two basic assumptions we tend to make that we no longer question and that no longer hold true in our civilization and in our society in the 21st century.

The first we have is about space, that we will always have enough space, that there will always be enough room to grow, that there will always be more resources to find and that there will be no consequences once we throw something away because it will just degrade and disappear into the environment. We think this way because we have been successful in thinking this way because we have been successful in thinking this way for the centuries and the millennia that humans have been organized into cities and even before. However, the reality is that we can no longer ignore the consequences of seemingly small actions because, added together, all of our individual actions have tremendous consequences.

Similarly, in our regard to time, we always feel like there is enough time for the planet to replenish itself, there is enough time for us to shift in our behaviours and there will be enough time for us to respond to whatever crisis comes by and react to it. We have always been this way because we have succeeded in this way. We have always felt that nothing we could do collectively would have much of an impact on our planet as a whole.

However, that has now changed. We now can no longer hold to those assumptions. We have to begin respecting and understanding our links to the land.

Canada is an extraordinary country that is defined by its land as much as anything else. We are a vast country that stretches from coast to coast to coast. Our capacity to imagine ourselves and to define ourselves hinges on recognizing the vastness that surrounds us, the size and the distances between communities, and the extraordinary variances we have across this country from the top of the mountains to the forests to the prairie plains to the muskegs and the tundra to the coastal communities.

Everywhere we go in this country we are surrounded by our land and yet in our cities we forget about that. We need to remember that we are linked to the natural processes, to the ecosystem services that sustain us and permit us to live these full and enriching lives. That is something that we could take for granted for an awfully long time but we now no longer can.

If we are defined by our land, we are so, too, defined by the principles and the values that we set forth in our core documents, like the Constitution or our Bill of Rights. The idea that 100 years ago or 500 years ago one would have to enshrine the right to fresh air or clean water would have seemed silly. Obviously everyone has a right to that, there was no need for it. It would be like trying to legislate that people have to obey the law of gravity.

Unfortunately, the reality has changed. We need to take a moment in this space to look at articulating and enshrining these principles that we have always taken for granted that we no longer can.

This discussion on the proposal brought forward by the member for Edmonton—Strathcona is one that is extremely worthy of our fullest consideration. It is a shame to me that we would have to be discussing this, that somehow it would be possible that as a governing body, as a federal government, as a Parliament we would be putting forward laws and bills that would not take into account human beings' rights to live in a healthy, ecologically balanced environment.

Unfortunately, we must consider it now. When we look around the world at the different countries and the different jurisdictions that have brought forward initiatives such as this, stood forward on the possibility and the requirement to consider environmental rights, environmental responsibilities in every piece of legislation passed, we see that there are a number of positive consequences to this. We end up with stronger laws, better implementation, a more engaged public, more active courts and an increased accountability.

Those are the things that we need to start looking at. We need to begin to understand that the environment is not something that happens out there. It is not just about trees, birds and butterflies. It is about human beings who breath, eat, drink, build, dream and hope, and we can only do that if we are building on a strong foundation that respects the world around us.

The Liberal Party is pleased to see this bill come forward so we can discuss it and look at the best ways to implement this, discuss it in committee and ensure that Canada starts founding all of its laws and principles on a healthy respect for a strong environment.

[The Deputy Speaker, Conservative, Andrew Scheer]

I am now prepared to rule on the point of order raised on May 6, 2010, by the Parliamentary Secretary to the Leader of the Government in the House of Commons concerning Bill C-469, An Act to establish a Canadian Environmental Bill of Rights, standing in the name of the hon. member for Edmonton—Strathcona.

I would like to thank the parliamentary secretary for having raised this matter, as well as the hon. member for Edmonton—Strathcona for her comments.

In raising his point of order, the parliamentary secretary set out two grounds on which he considered Bill C-469 to infringe the financial prerogative of the Crown. First, he argued that the bill creates potential new legal liabilities for the government because it allows the Federal Court to order that the government pay for the restoration or rehabilitation required by environmental harm or for the protection or enhancement of the environment generally. He pointed out that not only procedural authorities but also a number of previous Speakers' rulings make it quite clear that the imposing of liabilities on the Crown requires a royal recommendation.

His second point dealt with the role which the bill assigns to the Auditor General. He noted that clause 26 of the bill would require the Auditor General to review every regulation or government bill in order to determine whether or not they were consistent with the provisions of Bill C-469. This role would, according to the parliamentary secretary, shift the role of the Auditor General from one of simply auditing to that of reviewing policy proposals that have not yet been approved. He regarded this as an inadmissible expansion of the Auditor General's mandate. In support of his view, he noted that, in a ruling given on February 11, 2008, Debates pages 2853-4, concerning Bill C-474, the Federal Sustainable Development Act, an expansion of the role of the environment commissioner to include a national sustainability monitoring system had been found to represent a change of mandate that required a royal recommendation.

In addressing the point of order, the member for Edmonton—Strathcona argued that the bill does not create a new liability for the government, but merely provides legal standing for actions to be brought should the government fail to assert its existing jurisdiction and legislated powers. She also drew the attention of the House to the fact that statutory authority to make payments exists under the provisions of the Crown Liability and Proceedings Act, should the government fail to carry out its duties.

With respect to the mandate of the Auditor General, the member for Edmonton—Strathcona pointed out that the Office of the Commissioner of the Environment and Sustainable Development falls under the authority of the Auditor General. She indicated that a broad mandate is given to the commissioner and that, in her view, none of the requirements of Bill C-469 went beyond the authority already provided to the commissioner by the Auditor General Act. She also noted that any increased expenditure would be operational in nature and would not involve a new activity or function.

The Chair has examined Bill C-469 carefully, as well as the authorities and precedents cited. There are essentially two points which the Chair is asked to address: first, does the bill authorize new expenditures of public funds by creating new or contingent liabilities for the Crown and, secondly, does the bill alter the role of the Auditor General by expanding her mandate beyond that currently provided for in the Auditor General Act.

In his remarks, the parliamentary secretary cited two cases in which an extension of Crown liability was ruled to require a royal recommendation. In one case, concerning the Farm Improvement Loans Act, it was proposed to raise the loan ceiling from $25,000 to $40,000. In the other case, a bill sought to amend the Bankruptcy and Insolvency Act in a way which would have increased the government's liability under the Canada Student Loans Act. In both of these cases, the government, as guarantor of the respective loans, would have been exposed to increased liability.

While the requirement for a royal recommendation in cases concerning loan limits and loan guarantees is well established, not all types of liability are subject to the same requirement. It is important in this context to distinguish between a liability for new payments under an existing program and a liability arising by reason of a court judgment rendered against the Crown. The rulings to which the parliamentary secretary has referred relate to a liability of the first kind. Erskine May, 23rd edition, at page 888 states that no recommendation is required from the Crown where: “—such a liability arises as an incidental consequence of a proposal to apply or modify the general law.”

The parliamentary secretary has argued that new liabilities are created by Bill C-469. The Chair is not convinced of this. The bill provides a new means by which the Crown can be proceeded against where it has failed to meet its legal obligations. This is simply a new means of being called to account, not to a creation of a new responsibility for which additional expenditures of public funds will be required.

The Chair is also of the view that creating a new basis for legal actions against the Crown does not extend the Crown's liability as it currently exists under the Crown Liability and Proceedings Act. In the absence of an expansion of a liability for the new payments under an existing program, there does not appear to be a basis for the claim that the objects and purposes of that act are being extended to where an authorization is being given to make new expenditures of public funds.

The Chair would now like to turn to the question of whether or not Bill C-469 seeks to expand the mandate of the Auditor General.

As the member for Edmonton—Strathcona pointed out, the Office of the Auditor General includes the position of Commissioner of the Environment, who reports to Parliament through the Auditor General. The Commissioner is given a broad mandate with respect to the content of that office’s reports, as set out in paragraph 23(2) of the Act, which reads, in part:

The Commissioner shall, on behalf of the Auditor General, report annually to the House of Commons concerning anything that the Commissioner considers should be brought to the attention of the House in relation to environmental and other aspects of sustainable development—

The provisions of Bill C-469 concerning the Auditor General are limited to the examination of federal bills and regulations. Here again, it does not appear that the bill broadens the mandate of the commissioner, nor does it require the commissioner to undertake any work not already within his purview.

In conclusion, the Chair is unable to find any authorization for a new expenditure of public funds in Bill C-469, nor does the bill appear to assign any function to the Office of the Auditor General that goes beyond the existing mandate of that office. I therefore rule that Bill C-469 does not infringe on the financial initiative of the Crown and so does not require a royal recommendation.

I once again would like to thank the parliamentary secretary for having raised this matter, as well as the member for Edmonton—Strathcona for her comments.

I thank honourable members for their attention.

The House resumed from May 6 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.

Bill C-469--Royal Recommendation Requirement

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Mr. Speaker, I wish to reply to the arguments made May 6, 2010 by the Parliamentary Secretary to the Leader of the Government in the House of Commons regarding my private member's bill, Bill C-469, An Act to establish a Canadian Environmental Bill of Rights.

The parliamentary secretary argued that the bill requires a royal recommendation because it would require new spending on the following basis: one, that part 2 authorizes environmental protection actions against the government by enabling Canadians to seek recourse in the Federal Court to protect the environment in relation to any action or inaction by the government which has resulted in significant harm; and two, that part 4 authorizes the Auditor General to review new regulations and bills to ensure consistency with Bill C-469 and to report any inconsistencies to the House of Commons.

I wish first to respond to the argument put forth that part 2, clause 19 of the bill, “would create potential legal liabilities for the government by adding the power to the Federal Court to order the government to pay for the restoration or rehabilitation of the part of the environment, and the power to order the government to pay for the enhancement or protection of the environment generally” and the argument that “clause 19 would result in a potential increase in the government's legal liability since payments resulting from decisions of the Federal Court would be made from the consolidated revenue fund”.

First, Bill C-469 merely establishes standing to bring an environmental protection action against the government. The enactment of this provision would create no immediate or automatic liability on the federal government. In point of fact the overall intent of the law is to encourage action by the federal government to assert its existing jurisdiction and legislated powers to protect the environment in the interests of current and future generations of Canadians.

The bill's purpose is to ensure greater transparency and participation in environmental decision making. The intent is to make the government accountable for the actions it takes or fails to take to protect the environment in the interests of Canadians.

If those broad rights and powers are asserted, then no action would likely be precipitated. Further, if the federal government's powers to protect the environment are exercised with due diligence, then a successful court action against the crown is unlikely. As a consequence, no new liability would arise.

In making his case, the parliamentary secretary referred to, for example, the Senate Speaker's ruling on May 5, 2009, at pages 739 to 740 of the Senate Debates, that Bill S-219, an act to amend the Bankruptcy and Insolvency Act, required a royal recommendation because it would increase the Crown's liability under the Canada Student Loans Act by expanding the range of conditions under which government would have to make good its guarantee of loans under that act.

However, the Senate Speaker in his ruling then went on to quote from the 23rd edition of Erskine May to distinguish those cases that would and would not require a royal recommendation:

While page 888 does state that the Royal Recommendation may not be required if the “liability arises as an incidental consequence of a proposal to apply or modify the general law,” this does not save Bill S-219, since the changes proposed to the student loans regime are not merely incidental to the bill, but its primary purpose.

Based on this analysis, it is submitted, contrary to what the parliamentary secretary has asserted, Bill C-469, which merely provides standing to a defined class of potential litigants to consider seeking a court order would not require royal recommendation. No immediate spending or liability arises from part 2. Any potential liability would arise only as an incidental consequence of an action actually being filed proving failure by the government to fulfill its duties as trustee of the environment, to enforce an environmental law or for violating the right to a healthy and ecologically balanced environment.

Further, the litigant must provide proof of actual or potential significant harm to even file the action. The imposition of new spending by the government is not at all the primary purpose of the bill. No immediate liability arises with the enactment of the bill and most certainly not as a result of part 2.

It may also be noted that Erskine May, 23rd edition at page 888 clearly provides that “Liability on the Crown or local authorities to pay costs, compensation or damages does not require a money resolution if such a liability arises as an incidental consequence of a proposal to apply or modify the general law”.

It is further specified that in the case of widening the jurisdiction of a court, a money resolution is not required even though the proposal may have the incidental consequence of increasing the costs of administration of justice.

The parliamentary secretary referred to the Speaker's ruling on June 12, 1973, that Bill S-5, an Act to amend the Farm Improvement Loans Act required a royal recommendation because it proposed substantial additional liabilities on public moneys.

However, this ruling was subsequently considered by the Speaker on February 12, 1998, on page 3766 in considering Bill S-4, an Act to amend the Canada Shipping Act, who held that there was already statutory authority under the Crown Liability and Proceedings Act to make the payments that Bill S-4 outlined.

It may be noted that many federal environmental laws, including the Canadian Environmental Protection Act, already provide that the Crown is bound. According to Erskine May, 21st Edition at page 717, “No further authorization is required for an expenditure covered by an existing statutory authority, including liability to pay damages covered by existing law”.

By way of example, crown agencies such as the Department of Public Works and the Department of Defence have been held by the courts to be liable to pay damages where they have failed to take appropriate actions to comply with the Canadian Environmental Protection Act.

Further, the provisions in Bill C-469, related to proceedings against the federal Crown, are consistent with the Crown Liability and Proceedings Act, chapter C-5, section 33. Section 3 clearly provides that the Crown is liable for damages for torts committed by a servant of the Crown.

It may be noted that John Mark Keyes in his article, “When Bills and Amendments Require the Royal Recommendation: A Discussion Paper and Guidelines”, Canadian Parliamentary Review, volume 20, number 4, winter 1997-98 at page 8 cites Erskine May, 21st edition, page 717, on cases were a royal recommendation is not needed as including, “Widening the jurisdiction of a court or creating offences although they may have the effect of increasing the costs of the administration of justice”.

Further, any potential liabilities under part 2 of the bill are highly speculative and that they would be substantial is even more so speculative.

For example, government might first avoid a court action or settle such an action if filed by diligently exercising its powers or duties to undertake an environmental assessment or to complete an action plan for a threatened species within the statutorily prescribed timeline or by passing new regulations, or by a myriad of other measures.

Even if an action under Bill C-469 has its day in court, the court is provided a wide range of remedies, including directing the government to implement measures previously announced and budgeted for, or otherwise prescribed by another law. Thus any court-ordered payments under section 19 of the bill are highly speculative and could only occur after the government has made decisions to not avoid or remedy the problem by any other means.

The Speaker similarly rejected such speculation in multiple rulings on September 27, 2006, page 3314; on February 8, 2007, page 6548; and again on February 14, 2007, page 6816. The Speaker found that Bill C-288, the Kyoto Protocol Implementation Act did not require a royal recommendation.

The parliamentary secretary's second argument was based on part 4 of the bill. Section 26 requires the Auditor General to examine proposed regulations and bills for consistency with Bill C-469 and to report any inconsistency to the House. It was the parliamentary secretary's assertion that this role differs significantly from the current duties of the Auditor General under section 5 of the Auditor General Act and would require new government spending.

This section requires the Auditor General, in accordance with such regulations as the governor in council may choose to make, to review any new regulations or bills to ensure consistency with the purposes and provisions of Bill C-469, and to report such findings to the House of Commons.

Let us first consider the mandate of the Auditor General as prescribed in the Auditor General Act. The act also establishes the Office of the Commissioner of Environment and Sustainable Development. Section 21.1 prescribes a broad mandate to the commissioner to provide sustainable development monitoring and reporting including on matters reiterated in the preamble of Bill C-469, inclusive of integrating environment and the economy, protecting ecosystems, and respect for the health of Canadians and the needs of future generations.

Section 23 of that act requires the commissioner to make examinations and inquiries considered necessary to monitor the extent to which specified departments have contributed to meeting sustainable development targets and report to the House actions including exercising the authority of the governor in council. Part of that authority includes the promulgation of regulations, and review and authorization of proposed laws.

The Auditor General Act also requires that the commissioner, on behalf of the Auditor General, report annually to the House of Commons on the progress of the federal government in implementing the federal sustainable development strategy and meeting its targets, which would include consideration of new statutes and regulations.

Thus, Bill C-469 would not create a substantially new or radically different mandate than that already prescribed for the Office of the Commissioner for Sustainable Development within the Office of the Auditor General, as provided in the Auditor General Act.

I further submit that section 26 of Bill C-469 is very similar to that considered in the Speaker's ruling on February 8, 2007, at page 6548 on Bill C-288, Kyoto Protocol Implementation Act. The Speaker in that instance held that the bill did not require a royal recommendation as the new responsibilities placed on the national round table on the environment and the economy by that bill did not meet the test, to quote the Speaker's words, of “whether some entirely new activity or function is being proposed which radically diverges from the activities already authorized in existing legislation”.

It may be noted that in the same ruling, the Speaker also provided, “Now it might be argued that this would increase the workload of the national round table, but even if this were so, an increase to its budget would be sought through existing appropriation arrangements”.

As the Speaker has clearly ruled, it is important to distinguish between an effect of a bill potentially increasing the workload of a department or agency and an effect of establishing distinctly new activity or function. It is my humble submission that the same logic and same conclusion would apply to part 4 of Bill C-469 regarding the role specified for the Office of the Auditor General.

The parliamentary secretary referred to the Speaker's February 11, 2008, ruling on Bill C-474, Federal Sustainable Development Act; however, in that case, Bill C-474, at first reading, originally proposed repealing the sections in the Auditor General Act concerning the Commissioner of the Environment and Sustainable Development and creating a new independent commissioner appointed by the governor in council who would not only assess federal progress on sustainable development but also provincial progress.

At committee stage, Bill C-474 was amended to rely on the existing position of the commissioner established under the Auditor General Act and to add the monitoring and reporting duties on federal progress toward sustainable development granted to the commissioner under that act. The Speaker on June 10, 2008, at page 6819, held that the amended bill no longer needed a royal recommendation. It is that amended Bill C-474 that is analogous to Bill C-469.

Finally, in closing, as a private member's bill can proceed through second reading and committee stage regardless of whether it requires a royal recommendation, in whole or in part, recognizing it may potentially be amended in committee or at report stage, a ruling from the Speaker would be most welcomed in advance of the vote at second reading and referral to the committee. This will inform the committee members whether any amendments may be necessary to be considered to avoid any potential need for a royal recommendation and thus maintain the possibility of a third reading vote.

Environmental Bill of RIghts

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Mr. Speaker, I am rising to table a petition from the citizens of Edmonton, St. Albert, Lac La Biche and Spruce Grove, Alberta.

The petitioners call on the House of Commons to enact Bill C-469, an environmental bill of rights, so as to provide the tools for Canadians to hold their government accountable to protect the environment, including the enforcement of environmental laws, and to act on international conventions and obligations, and to give Canadians the right to participate in environmental decision making.

Canadian Environmental Bill of Rights

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

Madam Speaker, I am pleased to have the opportunity to speak today to the issue of environmental rights and Bill C-469, An Act to establish a Canadian Environmental Bill of Rights.

Bill C-469 proposes to create a number of environmental rights and government obligations related to the protection of the environment. The bill stipulates that five emerging principles of environmental law would guide its interpretation: the precautionary principle, the polluter pays principle, the principle of sustainable development, the principle of intergenerational equity and the principle of environmental justice.

Those principles are already supported and implemented through existing government legislation and policies. For example, the Species at Risk Act, the Oceans Act, the Canadian Environmental Protection Act, 1999, and the Canadian Environmental Assessment Act all refer to the precautionary principle. Through this principle, the government may, in certain situations, where there are threats of serious or irreversible damage, take cost effective measures to prevent environmental degradation even if there is a lack of full scientific certainty.

In 2008, Parliament also passed the Federal Sustainable Development Act, which requires the Government of Canada to develop comprehensive federal sustainable development strategies based upon the precautionary principle.

In March of this year, our government presented to Canadians a consultation paper outlining a proposed federal sustainable development strategy for Canada. That strategy will both strengthen how government promotes environmental sustainability and improve the transparency and accountability of how we do it. The proposed strategy constitutes an effective and balanced approach for the government to meet many of the principles and goals advanced by Bill C-469. These include the precautionary principle, transparency and accountability, and the goal of sustainable development.

The proposed federal sustainable development strategy represents a major step forward for the Government of Canada by including environmental sustainability as an integral part of its decision-making processes. It replaces a system that was established in 1995 when amendments to the Auditor General Act required key federal departments and agencies to table in Parliament their individual strategies and other actions for sustainable development. That system lacked an overarching, government-wide strategy. It lacked the key elements for government-wide goals, targets and common ways to measure federal accomplishments.

The three key elements of this strategy represent the first major improvement in the system since 1995. First, the strategy will provide an integrated, whole of government picture of actions to achieve environmental sustainability in Canada. Second, we are linking sustainable development and planning and reporting with the government's core expenditure planning and reporting system. Finally, we are establishing effective measurement, monitoring and reporting in order to track and report on progress to Canadians.

Our government welcomes this opportunity to improve planning and reporting for environmental sustainability. Taking into account international best practices and the purpose of the Federal Sustainable Development Act, Canada's first federal sustainable development strategy will take a pragmatic approach based on key priorities.

The proposed approach is one of responsible, practical progress. It will deliver a significant advance in terms of sustainable development in Canada and will also allow the government to build on it as we learn over time. It will allow the government to address environmental sustainability in a clear and coherent way, while at the same time placing an emphasis on getting the framework correct. It will help Canadians and Parliament identify whether there are gaps in the system and how effective government has been in hitting the targets it has set. It also will become a valuable tool to help governments set ambitious goals that will lead to a more sustainable Canada.

The strategy will streamline the way departments and agencies report and put sustainable development at the heart of government decision-making throughout the body of government. It will enhance transparency for Canadians, hold government departments and the ministers more accountable and will deliver better results.

Our government is also supportive of another principle advanced by Bill C-469, the polluter pays principle. This principle, also known as principle 16 of the Rio declaration, provides that national authorities should endeavour to promote the internalization of environmental costs and the use of environment instruments, taking into account the approach that the polluter should, in principle, bear the cost of the pollution they create with due regard to the public interest and without distorting international trade and investment.

In June 2009, Parliament passed the Environmental Enforcement Act, an act that amends the offence, penalty and enforcement provisions of nine environmental protection and wildlife conservation statutes. These include the Canadian Environmental Protection Act , 1999; the Migratory Birds Convention Act, 1994; Canada's trade in endangered species legislation; and the Canada National Parks Act.

The Environmental Enforcement Act would ensure that enforcement and sentencing of environmental offences achieve the goals of deterrence, denunciation and, of course, restoration. This last goal reinforces the polluter pays principle by ensuring that offenders contribute to the restoration and remediation of the damage that they have caused to the environment.

Reflecting on the polluter pays principle, the Environmental Enforcement Act introduces minimum fines for offences that involve direct harm or risk of harm to the environment and obstruction of authority, not just the harm they caused but the harm they potentially could have caused. The act also adds a purpose clause to the sentencing provisions of the statutes it amends which would set out the fundamental purposes of deterrence, denunciation and restoration of that harmed environment. The act also emphasizes the importance of accounting for aggravating factors when determining appropriate penalties. It ensures that courts take into account damage to both the use and non-use values of the environment, ensuring that polluters pay the full value of any environmental damage they cause.

The Environmental Enforcement Act also directs environmental fines to the environmental damages fund, a special account in the accounts of Canada, from where they will be available to the community and other organizations for environmental restoration, improvement, research and development, and public education and awareness. This is a suiting penalty for someone who causes such degradation to our environment.

In closing, by its proposed federal sustainable development strategy and by the introduction of the new Environmental Enforcement Act, our government has already shown great support for the key principles of environmental law that Bill C-469 proposes to adopt as its guiding principles.

Therefore, our party, would like to see the debate on Bill C-469 continue in order to see how the bill would complement these and other existing measures and laws.

As an elementary school principal, a new school that I built was environmentally friendly. It was called a green school. It was one of the most modern green initiatives built by any federal or provincial government in Nova Scotia. The children who attended that school were versed in the green abilities of that school: the ability to take rain off the roof and use it to flush the toilets; and the ability to hydrate itself by taking moisture out of the air, reconstituting it and putting it back into the air of the school.

The children who go to school in a building like that will emerge from that school, after years of education, with a sound sense of protection of the environment and what a green school can do, what a green country can do, what a green nation can do and what a green world would do.

The next generation is something we need to concentrate on, which is why we are here in Parliament today talking about the environment and about protecting the sustainable development for the future. Anyone who chooses to ignore the next generation and to pollute our environment will have to pay. They need to ensure that any damage they do to our environment is restored by them. They may also have to pay penalties for the harm, not only that they have committed, but the harm they could have potentially committed. Those are the principles our government has put in place in several pieces of legislation. Those are the principles that are also contained in this bill.

On behalf of our government, we wish to see the debate on this bill continue. There are many good principles in this bill, many principles in this bill that our government supports.

However, there is a question we need answered? Would this bill cause redundancy in the other bills that have already been produced, both by our government and previous governments? How would those redundancies be overcome? Would they put unnecessary issues at work so that our government and future governments would have to deal with redundant statutes, redundant bills and redundant policies?

Not only must we ensure that we support the principles contained in Bill C-469, we also must ensure that any redundancies in current legislation or in current statutes do not impact the future of our environment, our children's environment and their children's environment. It is our responsibility to work together in this House to ensure, not only that the environment is safe and green for this generation and the next, but for all future generations in this country. Stewardship is very important.

As a parliamentarian, I ask us all to take a good look at the--

[Glenn Thibeault, NDP, Sudbury, ON]

Madam Speaker, I am very proud to rise in the House to support a historic federal bill, Bill C-469, An Act to establish a Canadian Environmental Bill of Rights. The bill would give Canadians the legal right to a healthy environment.

National governments across the globe are stepping forward to recognize the right to a healthy environment in their national constitutions. International bodies, regional authorities and local municipalities all over the planet are declaring rights to clean air, clean water and uncontaminated land. Environmental rights are enjoyed in over half the countries of the world, either through international agreement or by provisions of national constitutions.

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 light of the momentous vote in favour of Bill C-311, the climate change accountability act last night, now is the time for Canada to step up to the plate.

Environmental rights are recognized by only four provincial and territorial laws: Quebec, Ontario, Northwest Territories and Yukon. I would like to congratulate these provinces and territories for being ahead of the federal government on this issue. In fact, Quebec's environmental quality act has been in place since 1978. The act recognizes the right to a healthy environment and to effective environmental protection. It allows for Quebec residents to seek an injunction or to stop unauthorized activity that is harming the environment.

The bill would create a federal and therefore national-wide framework to recognize and seek to protect the quality and health of the environment essential to human life and dignity. The bill recognizes that it is simply not enough to tell people that the government will protect the environment on their behalf. Instead, it would compel the government to protect the environment and it would give Canadians the ability to hold the government to account, not only at election time but whenever environmental offences occur.

Specifically, Bill C-469 would require the federal government to take action to protect the right of all Canadians to a healthy environment. It would ensure access to environmental information and grant the right for all Canadians to participate in environment-related decisions. It would compel the government to investigate and prosecute environmental offences. It would give all citizens the ability to take the government to court if it failed to enforce environmental laws. It would provide whistleblower protection to employees who reported environmental offences. These rights and duties are already found in the laws of over 130 other countries.

Let me provide the House and Canadians watching some examples. The constitution of Argentina recognizes that all inhabitants enjoy the right to a healthy, balanced environment which is fit for human development so that productive activity satisfy current needs without compromising those of future generations, and have the duty to preserve the environment. Damaging the environment generates the obligation to repair it as a priority in the manner that is established by law.

In 2005 France amended its constitution to include a charter for the environment that recognizes, among other things, a person's right to live in a balanced environment that shows due respect for health.

Most recently Ecuador passed a new constitution that recognizes the individual and community right to a healthy environment as well as direct rights for nature.

Recognizing environmental rights in Canada gives a voice and power to those most vulnerable to the harmful effects of environmental degradation.

For example, the Argentinian court ordered the government to provide drinking water to poor families living along the Suquia River after years of ongoing pollution from a malfunctioning sewage treatment plant. A court in the Philippines has ordered the cleanup of the highly-polluted Manila Harbour based on the constitutional right to a balanced and healthy environment.

There is support from the other opposition parties on this bill, in addition to prominent members of the environmental community who helped author this bill: Ecojustice, the Sierra Club and Friends of the Earth. Let us review what these environmental champions have to say about this legislation.

Margot Venton, an Ecojustice lawyer who played an instrumental role in this legislation, stated:

We are calling on our political leaders to rise above the gridlock of a minority government to embrace this transformative piece of legislation. Passing the Canadian Environmental Bill of Rights is both a rare and urgent opportunity for all parties to show political leadership at a time when it is sorely needed.

Jean Langlois, the national campaigns director of the Sierra Club of Canada, stated:

This is a historic opportunity for Parliament. The interests of individual Canadians are compromised when decisions run roughshod over our common natural legacy. Our legal system currently provides limited and costly opportunities for the public to address such injustices. The CEBR [this bill] would finally give all Canadians the tools necessary to protect their environmental rights.

Beatrice Olivastri, CEO of Friends of the Earth Canada, stated:

It’s time that Canada caught up with the rest of the world in recognizing the rights of citizens to a healthy environment. Canadians, everywhere in this country, deserve protection against environmental destruction and its negative impacts on their health.

We must listen and we must show leadership. It is time we caught up with the rest of the world in recognizing the rights of Canadians to a healthy environment.

By voting against Bill C-311 last night, the government again showed its complete disregard for the environment. The government has already weakened the environmental assessment process, silenced scientists who disagree with it and failed to act to protect species at risk. Yesterday, parliamentarians showed they can act when the government will not.

It is vital that we, as representatives of Canadians from coast to coast to coast, work together to act to protect the environment and pass this bill for the future of all Canadians.

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

Madam Speaker, I am very pleased to participate in today's debate, which is very important—fundamental even. I would like to thank the member for Edmonton—Strathcona for having introduced Bill C-469.

First of all, we support the underlying principle of the bill. We need to thank and congratulate a number of civil society groups, such as Ecojustice, which the Bloc Québécois leader and I met with over a year ago. The group helped us understand how important it is to have a Canadian environmental bill of rights.

We wholeheartedly support the five principles stated in this bill because we need to make fundamental changes to what I would call governance. We need to move toward a new form of environmental governance. Bill C-469 clearly moves us toward that goal because it incorporates the precautionary principle. This principle was developed in 1972 as part of the Stockholm convention, and it took root in 1992 at the Rio summit. This principle is fundamental. Lacking scientific certainty in various fields of human activity, we must act according to the precautionary principle.

This issue has been incorporated into some legislation. We would like to see it included in even more laws. Several environmental laws include the precautionary principle in their preamble, but we would like to see it in the laws themselves. That would force departments to make decisions about issues such as genetically modified organisms, for example. The precautionary principle is therefore fundamental.

The polluter pays principle triggers an important debate about what I call a green tax system. We have to ensure that every dollar spent is invested in renewable economies. That is not what Canada has done in the past. Since 1970, over $60 billion has been spent on tax breaks for the oil industry, while renewable energy has received just a few hundred million. We need changes to taxation in Canada; we need a green tax system.

If we undertake this change, we would respect the second principle in this bill, which is the polluter pays principle, and encourage true sustainable development. We have some tools at our disposition. For one, we have the strategic environmental assessment, which was passed in the early 1990s and which is a directive in the Prime Minister's Office. In theory, it forces each department to evaluate its plans, policies and programs to ensure that more than just economic issues are taken into consideration. Social and environmental aspects must be considered as well.

The third main principle in the bill is intergenerational equity. How can we guarantee that the resources we use today will also be available for future generations? We cannot make decisions based on a short-term outlook. We have to look at each decision and ensure that it will allow us to ensure a future, and better intergenerational equity as well as environmental justice.

We agree with part 1 of the bill, which says that every citizen has a right to a healthy environment. That is obvious. It is the right to life. It is the right to live in an environment where the air and water are of the highest quality so as to ensure human survival.

This is a fundamental right in part 1 of the bill.

Second, we agree with the principle in part 2 of the bill, which would put in place various mechanisms allowing for legal and civil action against the federal government and entities under its exclusive jurisdiction. I want to emphasize that. We support this bill because we believe that it and the bills of rights would apply to areas under federal jurisdiction. That is one of the reasons we are supporting this bill.

The third principle is the protection of employees. Mechanisms to protect employees are clearly set out in part 3 of this bill, and they are important. Why? Because scientists who become aware of a situation have to be able to tell the public about it when it poses a threat to humankind or the environment. Europe and especially France have what are known as “whistleblowers”. These people, who are sometimes ordinary citizens but more often scientists who work in government and become aware of something that could have a negative impact on the environment and humankind, decide to speak out publicly. We have to ensure that these scientists and ordinary citizens are not fired the next day, because in becoming aware of a situation they would run afoul of a government approach or ideological policy. So scientists are protected. I would hope that part 3 also protects these whistleblowers so that the public can find out about the real state of our environment.

Part 4 of the bill ensures greater independence by subjecting the government's messages and policies to analysis by independent parties. The Auditor General has a greater role to play. We have seen this in three bills: first, Bill C-288 on the application of the Kyoto protocol; second, Bill C-311 which aimed at following through on the Kyoto protocol; and finally, the sustainable development strategy that was adopted and that gives the Auditor General a clear mandate to independently analyze and verify the government's policies.

This is important because this independence is not always a given. We saw this with the instructions given to scientists. As we saw, scientists were not necessarily allowed to speak up. So this is about allowing independence. In a new environmental governance, independence is important. The media, businesses and scientists must all be independent in order to really engage in this new approach towards a real vision of sustainable development and to give scientists a chance.

I am thinking of GMOs in particular. Over the past several years, successive governments have refused to ask the Royal Society of Canada, an association of Canada's best and most eminent scientists, to assess the impact of GMOs on health and the environment. A government that valued independent thought and allowed scientists to do their work would have referred the GMO issue to the Royal Society of Canada for a truly independent analysis.

I will close with a brief quote from Albert Jacquard's latest book, entitled Le compte à rebours a-t-il commencé?, or “Has the countdown begun?”

For ages, humans have lived as though their time would never run out, as though progress would never cease to make the world a better place for us, as though humans would always grow richer, more beautiful and more capable, as though we could create an infinite number of nuclear bombs without ever having to use them, as though we had the right to plunder the planet's riches at will without ever making a dent in an endless supply. Those days are past. We now know that our time is running out and that if we continue to work against ourselves, we may well create a planet on which none of us want to live.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Madam Speaker, I was a little puzzled by the answer that my colleague gave to my question. I think her answer to my question was that presumably, if nobody did anything wrong or the government did all it was supposed to do, there would be no cost to the government. This begs the question of why the bill is needed in the first place, but I digress.

I appreciate the opportunity to rise today to speak to the issue of environmental rights and Bill C-469, An Act to establish a Canadian Environmental Bill of Rights.

In 1972, the delegates to the United Nations Conference on the Human Environment recognized the connection between economic development and the environment. Some 15 years later, the World Commission on Environment and Development took this concept further when it defined sustainable development as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs”.

That definition has helped shape public policy, business strategies and individual choices for nearly a quarter of a century. It envisions a world where all decisions, including what we produce, what we buy, where we live and what we value, are informed by the need to take care of our planet. The concept of sustainable development is powerful because it recognizes the need to pay attention to and support three mutually reinforcing pillars: economic, social and environmental.

This is why our government has committed to the protection of the environment while maintaining a balance with the social and economic priorities of Canadians. Particularly in this context of economic recovery, our government wants to ensure that our economy remains one of the strongest in the industrialized world and that Canada is able to succeed in the modern economy. This is why in the last Speech from the Throne our government committed to building the jobs and industries of the future by completing the second year of Canada's economic action plan.

Bill C-469 recognizes in its preamble that Canadians understand the close linkages between a healthy and ecologically balanced environment and Canada's economic, social, cultural and intergenerational security. However, the government is concerned that the bill may not give appropriate emphasis to each of the three pillars of sustainable development. Bill C-469 sets out rights and government responsibilities related to environmental protection and it is not clear whether these are appropriately balanced with other socio-economic goals.

The bill introduces a series of substantive environmental rights. First, it would amend the Canadian Bill of Rights to include the right to a healthy and ecologically balanced environment as an element of the right to life, liberty and security of the person. It would also place an obligation on the government to protect this right. Finally, it would recognize the Government of Canada as the trustee of Canada's environment and oblige the government to preserve it in accordance with the public trust.

Bill C-469 establishes these rights in a much stronger, less balanced way than other similar environmental rights laws. Other Canadian jurisdictions that have adopted environmental rights legislation have taken an approach that allows the government to manage environmental, social and economic priorities together.

For example, the right to a healthful environment in the Quebec Charter of Human Rights and Freedoms is limited to what is provided by the laws of Quebec. Similarly, the protection of the right to a healthful environment, referred to in the Ontario Environmental Bill of Rights is limited to the means provided by the Ontario Environmental Bill of Rights.

In addition to the substantive environmental rights proposed in Bill C-469, the bill proposes a series of procedural environmental rights and obligations meant to improve public participation in environmental decisions and enforcement as well as access to environmental information. These include an obligation on the Government of Canada to ensure effective access to environmental information by making such information available to the public in a reasonable, timely and affordable fashion.

The bill could also oblige the government to ensure opportunities for effective, informed and timely public participation in environmental decision making, the right to request an investigation of an alleged environmental offence, whistleblower protection and the right to take action against offenders who cause environmental harm. It is important to keep in mind that the objectives of public participation in environmental decision making and access to environmental information are already provided for under existing federal legislation and policies.

For example, the Canadian environmental sustainability indicators initiative, renewed in budget 2010, provides Canadians with regular information on the state of our environment.

We have recently passed the Federal Sustainable Development Act, which requires the development of a sustainable development strategy that makes the government more accountable to Parliament for environmental decision-making.

The Canadian Environmental Protection Act, 1999, also provides for many of the rights promoted in Bill C-469, including access to proposed and existing policies, guidelines and regulations through the Canadian Environmental Protection Act, 1999, environmental registry, provisions for public participation in various stages of decision-making under the Canadian Environmental Protection Act, 1999, whistleblower protection and the right to request that the Minister of the Environment conduct an investigation of an alleged offence and potentially to proceed with an environmental protection action against an alleged offender.

The procedural rights provided under existing federal law contribute to the goals of public participation and access to information while recognizing responsible management of government and court resources.

While placing meaningful obligations on government and providing opportunities for recourse to the courts, the existing rights are tailored to ensure that procedural rights do not overwhelm government capacity or judicial resources. In turn, this ensures the three pillars of sustainable development are taken into account.

The procedural rights under existing federal laws are similar to the approach in other Canadian jurisdictions. For example, similar obligations and rights related to access to information and public participation are provided under the Ontario Environmental Bill of Rights.

Bill C-469, on the other hand, lacks similar limitations and could therefore have significant impacts on government resources.

Other procedural rights are also included in Bill C-469. For example, the bill would authorize any resident of Canada or entity that believes that an act, regulation, other statutory instrument or policy should be amended, repealed or made in order to protect the environment, to apply to the Commissioner of Environment and Sustainable Development for a review by the appropriate minister. This raises concerns over the extent and scope of the review to be undertaken, as well as the roles and accountabilities of Parliament, the Commissioner of Environment and Sustainable Development, the governor in council and ministers.

Finally, Bill C-469 would require that government bills introduced in the House of Commons and all new regulations be examined by the Auditor General to identify inconsistencies with the proposed environmental bill of rights. This would fundamentally change the role of the Auditor General by imposing on her a duty to provide legal opinions to Parliament. In contrast, under the Ontario Environmental Bill of Rights the obligation on the government to respond to such a request applies only to prescribed ministers.

In closing, while the government believes in the protection of the environment and the recognition of environmental rights, it is important to stress that the principle of sustainable development includes a balancing of environmental, economic and social goals.

It is also important to stress the existing environmental procedural rights under federal laws. Transparency and public participation in environmental decision-making, access to environmental information, and environmental accountability are already entrenched in our environmental laws in a manner that promotes financial responsibility and access to justice.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Madam Speaker, almost three decades ago, I drafted an environmental bill of rights with the northern Alberta environmental law section of the Canadian Bar Association. Sadly, that bill was squashed by the southern Albert bar.

Since that date, however, more than 130 nations have enshrined the right to a clean and healthy environment in their constitutions. Others have enacted national laws. A number of provincial governments in Canada, to their credit, have enacted environmental rights. Some have enshrined these rights in a stand-alone law, such as the environmental bill of rights in Ontario. Other provincial governments have incorporated an array of rights and duties in their respective environmental laws.

Past federal governments have also incorporated some limited government duties and citizen rights to environmental protection in federal statutes, but no comprehensive law has been enacted at the federal level to accord the right to all Canadians, regardless of where they live in this vast nation, to a clean and healthy environment. Equally rare are any mandatory duties imposed upon federal ministers or officials to take action to protect the environment, or to take precautionary measures to prevent harm to health and the environment.

There have been many public calls for an environmental bill of rights to ensure that all Canadians will receive equal protection for their environment and health. I am appreciative of the many legal experts who helped me in the crafting of this bill. I am also encouraged by the letters of support I am receiving from communities across the country, from Newfoundland to Victoria, from New Brunswick to Saskatchewan, from Alberta to the Northwest Territories.

The key purposes of the bill are the following.

It imposes environmental duties on the Government of Canada and extends clear environmental rights to Canadians. It grants every resident of Canada the right to a healthy and ecologically balanced environment. It imposes the obligation on the Government of Canada, within its jurisdiction, to protect those rights.

What new duties are imposed?

First, the bill imposes a legal duty on the federal government to protect the public trust, defined as the duty to preserve and protect the collective interests of the people of Canada in the quality of the environment for the benefit of present and future generations.

Various federal ministers are currently obligated to take specified actions to protect the environment or to prevent health impacts. For example, under the Canadian Environmental Protection Act, the federal Minister of Health is obligated and mandated to take action when she receives information that toxins may harm human health. Additionally, the federal Minister of the Environment is obligated to take action within specified timelines to protect endangered species.

However, what is groundbreaking about this bill is that it extends the duty to all federal authorities, in all federal decisions impacting the environment, to assert its jurisdiction and powers to protect the environment on behalf of all Canadians.

Where the government knows or suspects that a substance may harm the environment or human health, it should be duty bound to act. Where a species is endangered and in fact listed under federal law, the government should have the duty to act.

Second, the bill compels the government to provide effective, timely and affordable access to environmental information. Clear evidence of the need to make mandatory this duty is found in the recent awarding by the Information Commissioner of an F grade to Environment Canada and Natural Resources Canada.

Just this week, scientists testified before the parliamentary Standing Committee on Environment and Sustainable Development, calling for greater transparency in decisions about recovery plans for threatened species, if only to ensure that scientific information provided is factored into decision-making.

Given timely access to information, potentially impacted communities will be better able to hold federal ministers and authorities accountable to act in their interests to prevent harm or to require action by polluters. Government officials will be obligated to reveal to Canadians the negotiation positions by the government on critical environmental treaties and bilateral agreements.

Associated with this duty is the extension of whistleblower protection for any federal employees who participate in decision-making, who apply for investigations, who provide information, who give evidence, or refuse to act in good faith.

Third, under this proposed law, the federal government must also ensure timely and effective public participation in decision-making on federal laws and policies related to the environment. This enshrines a commitment made by Canada in ratifying the Rio convention and as signatory to the North American agreement on environmental cooperation.

What new rights are accorded or embellished under Bill C-469? The bill enshrines a bundle of environmental rights. It accords the necessary rights and standing to Canadians to ensure access to environmental justice. This includes seeking court intervention where the government fails to comply with legal duties to protect the environment, or human health impacts, or to enforce federal environmental laws.

Any resident of Canada or entity such as an environmental non-government organization will have standing to bring a public trust action against the Government of Canada for failing to meet its duties as trustee of the environment. The courts are accorded broad and innovative powers in a successful action, including restoration, preventive measures, or order for production of a compliance plan, all sensible results. They may suspend or cancel permits or require posting of financial collateral.

Standing is also accorded to bring civil actions against violators of federal environmental laws where the offence has resulted, or may result, in significant environmental harm. Obviously, it adheres to the precautionary principle. This extends the right of standing beyond a more narrow class of persons who may be deemed directly impacted. Any Canadian will have the right to seek the review or enactment of any federal environmental law or policy.

Any resident of Canada will be able to seek the investigation of an offence under any federal environmental law. While this right is provided under some federal environmental laws, such as the Canadian Environmental Protection Act, this would extend that opportunity for all laws, whether related to toxins, fisheries, wildlife, climate change, or environmental assessment.

Recently, the government tabled an omnibus bill to make more consistent enforcement provisions across the law. This would do a similar action in according equal rights and obligations across all environmental statutes. Canadians are also granted the right to seek an interim order to prevent significant environmental harm. Clear criteria are specified for the court to consider in granting such an order. This is consistent with the direction the government has taken in criminal law. Clearly the laws on the environment should also follow a consistent direction. The order may issue a cleanup order, a restoration order, or fines directed to environmental protection for monitoring.

In closing, I would like to share with the House a quote which regularly inspires me in taking action to protect the environment. I have spent more than 35 years in my career as an environmental lawyer representing the interests of the public of Canada and abroad to ensure that they have equal rights and that government is obligated to take action. This is a quote by George Cheever:

The man who can really, in living union of the mind and heart, converse with God through nature, finds in the material forms around him, a source of power and happiness inexhaustible, and like the life of angels.

[Tom Lukiwski, Conservative, Parliamentary Secretary to the Leader of the Government in the House of Commons]

Madam Speaker, I rise on a point of order with respect to Bill C-469, An Act to establish a Canadian Environmental Bill of Rights, sponsored by the member for Edmonton—Strathcona.

Without commenting on the merits of the bill, I submit that it would require new spending not authorized by Parliament. The second edition of the House of Commons Procedure and Practice states on page 834:

—a royal recommendation is required not only in the case where money is being appropriated, but also in the case where the authorization to spend for a specific purpose is significantly altered. Without a royal recommendation, a bill that either increases the amount of an appropriation, or extends its objects, purposes, conditions and qualifications is inadmissible on the grounds that it infringes on the Crown’s financial initiative.

Bill C-469 would establish a Canadian environmental bill of rights. The bill raises problems with respect to new spending in two areas. First, part 2 would authorize environmental protection action against the government by enabling Canadians to seek recourse in the Federal Court to protect the environment in relation to any action or inaction by the government, which has resulted in significant environmental harm.

As a result, clause 19 in part 2 would create potential new legal liabilities for the government by adding the power to enable the Federal Court to order the government to pay for the restoration or rehabilitation of the part of the environment, and the power to order the government to pay for the enhancement or protection of the environment generally. Clause 19 would result in a potential increase in the government's legal liabilities since payments resulting from decisions of the Federal Court would be made from the consolidated revenue fund.

Procedural authorities and precedents indicate that such a measure would require a royal recommendation. The 21st edition of Erskine May states on page 714:

Any proposal whereby the Crown would incur a liability or a contingent liability payable out of money to be voted by Parliament [requires the Queen's recommendation].

On June 12, 1973 the Speaker of the House of Commons ruled that a royal recommendation was required for Bill S-5, an act to amend the Farm Improvement Loans Act. He stated:

It may be said that the proposal in Bill S-5 does not in itself propose a direct expenditure. It does, however, propose substantial additional liabilities on public moneys.

On May 25, 2009 the Speaker of the other place ruled that Bill S-219, an act to amend the Bankruptcy and Insolvency Act (student loans), required a royal recommendation because it would increase the Crown's liability under the Canada Student Loans Act. The Speaker stated:

Bill S- 219 would expand the range of conditions under which the government would have to make good its guarantee of loans under the Canada Student Loans Act. This would change the existing scheme, since payments from the Consolidated Revenue Fund might increase due to the change in possible obligations. As such, the bill should have a Royal Recommendation--

While the Crown Liability and Proceedings Act establishes a general process for settling civil judgments, Bill C-469 would establish a new mechanism for creating civil liability judgments, thereby expanding the objects and purposes of the royal recommendation that accompanied the Crown Liability and Proceedings Act. The sixth edition of Beauchesne's Parliamentary Rules & Forms states on page 183:

—an amendment infringes the financial initiative of the Crown not only if it increases the amount but also if it extends the objects and purposes...expressed in the communication by which the Crown has demanded or recommended a charge.

The second problematic area of Bill C-469 is part 4, which would add additional functions for the Auditor General not currently authorized in the statute, which would require new government spending. Part 4 would require the Auditor General to:

—examine every regulation transmitted to the Clerk of the Privy Council for registration pursuant to the Statutory Instruments Act and every Bill introduced in or presented to the House of Commons by a minister of the Crown, in order to ascertain whether any of the provisions thereof are inconsistent with the purposes and provisions of the Canadian Environmental Bill of Rights and the Auditor General shall report any such inconsistency to the House of Commons at the first convenient opportunity.

Section 5 of the Auditor General Act sets out the powers and duties of the Auditor General. It states:

The Auditor General is the auditor of the accounts of Canada...and as such shall make such examinations and inquiries as he considers necessary to enable him to report as required by this Act.

The act is clear that the Auditor General has discretion in the examinations and inquiries that she wishes to undertake. Bill C-469 would change that by requiring the Auditor General to examine all regulations and bills introduced in the House of Commons.

The role of the Auditor General is an audit function. This means that the Auditor General can examine and inquire into the performance of a program, money spent on a particular program, and examine financial statements. What is not provided for is a perspective analysis of the impact of proposals not yet implemented. Yet, this is exactly what Bill C-469 calls for, to study policy proposals before the House of Commons.

The Auditor General's website is clear on this point. On choosing topics for performance audits, it states:

The Auditor General does not audit topics that fall outside the Office’s mandate. Examples are all policy decisions, which are the prerogative of Parliament and government--

Precedents indicate that substantive mandate changes require a royal recommendation. On February 11, 2008 the Speaker ruled on Bill C-474, National Sustainable Development Act, that:

However, clause 13 of Bill C-474 would modify the mandate of this new independent commissioner to require...the development of “a national sustainability monitoring system...The clause...would impose additional functions on the commissioner that are substantially different from those foreseen in the current mandate....clause 13 thus alters the conditions set out in the original bill to which a royal recommendation was attached.

In conclusion, Bill C-469 would increase spending through provisions to increase government liabilities and through provisions to expand the mandate of the Auditor General, and therefore would require a royal recommendation.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

moved that Bill C-469, An Act to establish a Canadian Environmental Bill of Rights, be read the second time and referred to a committee.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

moved for leave to introduce Bill C-469, An Act to establish a Canadian Environmental Bill of Rights.

Mr. Speaker, I would like to thank the member for Halifax for seconding my bill. She is a tribute to the House, and I am delighted that she is here in the House with us. She strives for justice every day in the House.

The bill, the environmental bill of rights, is being tabled for the purpose of safeguarding the rights of the present and future generations of Canadians to a healthy and ecologically balanced environment. It confirms the Government of Canada's public trust duty to protect the environment under its jurisdiction and ensures that all Canadians have access to adequate environmental information, justice and effective mechanisms for participating in environmental decision making.

It provides adequate legal protection against reprisals for employees who take action for the purpose of protecting the environment, and it enhances public confidence in the implementation of environmental law.

(Motions deemed adopted, bill read the first time and printed)