Environment Committee on Nov. 1st, 2010

[The Chair, Conservative, James Bezan]

I call to order meeting number 32.

Ms. Duncan.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Yes, Mr. Chair. I think it's a point of order. You have provided to us a new agenda for Wednesday. I'm hoping that at the end of this meeting we could have five minutes to discuss where we're going with the review of my bill.

[The Chair, Conservative, James Bezan]

Yes. As you know, Wednesday's meeting—

[Linda Duncan, NDP, Edmonton Strathcona, AB]

I'm not suggesting that we discuss it now, but at the end of the meeting.

[The Chair, Conservative, James Bezan]

Okay. Just for information, I think everybody's received the notice. Wednesday's meeting agenda had already been circulated ,and all of the witnesses that we had lined up declined or backed out over the weekend. The last one backed out this morning. We'll talk about it at the end of the meeting. I'll try to save five minutes.

Okay. With that, we have a motion by Mr. Armstrong.

Mr. Armstrong, can you put that motion back on the floor?

[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.

[The Chair, Conservative, James Bezan]

We were discussing this at our last meeting. Is there more discussion on the motion?

Not seeing any discussion on the motion, I will call the question. All in favour? Opposed?

(Motion negatived)

The motion is defeated.

Mr. Warwara.

[Mark Warawa, Conservative, Langley, BC]

Mr. Chair, while we're discussing this, I'm not sure why the opposition would want to stall a very important continuation of SARA. My understanding is—

[The Chair, Conservative, James Bezan]

There's a point of order by Mr. Kennedy.

[Gerard Kennedy, Liberal, Parkdale—High Park, ON]

Have we not just disposed of the question?

[The Chair, Conservative, James Bezan]

The question has been put and was defeated. Discussion is to take place before the motion, so we should move on with our agenda, Mr. Warawa.

[Mark Warawa, Conservative, Langley, BC]

My question then, Chair, is regarding the appropriateness of changing the motion to read, “on Wednesdays”.

Would it be sufficiently different to change it to Wednesdays? Maybe the opposition is concerned about having meetings on SARA on Mondays. Would it be in order now to move another motion just changing “Mondays” to “Wednesdays”?

[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.

[Mark Warawa, Conservative, Langley, BC]

Thank you for that clarification. That's it from me.

[The Chair, Conservative, James Bezan]

Okay. That's it.

We're going to suspend just quickly. I'll ask that all witnesses in the room please come to the table so we can get set up.

I believe we have Mr. Amos in the room, along with Beatrice Olivastri, from Friends of the Earth, and Jamie Kneen, and then we have a couple of witnesses by video conference.

We're suspended.

[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.

[Professor William Amos, Director, University of Ottawa - Ecojustice Environmental Law Clinic, Ecojustice Canada]

Thank you very much.

Thank you to the members of this committee.

It's a really happy day for Ecojustice to see this bill being discussed. I'd like to congratulate—

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Excuse me, Mr. Chair, but I'm not getting the translation.

[The Chair, Conservative, James Bezan]

The French channel is working. Are we okay now, Ms. Duncan?

We're good.

Back to you, Mr. Amos.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

I'm sorry. Go ahead.

[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]

Thank you, Mr. Amos.

We'll move on to Friends of the Earth and Ms. Olivastri.

[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.

[The Chair, Conservative, James Bezan]

Thank you.

Mr. Kneen, could you make your opening comments, please?

[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.