Natural Resources Committee on June 5th, 2014

[Jeff Labonté]

I'll have to defer to my legal expert, who might be able to provide that to you.

Generally, I think, his proposal was that there be a regulation-making authority that would follow passage of the bill, that would enunciate the value of a coastline, the value of a species, the value of a habitat, and enunciate how one would calculate a cost to return, or the impact to society. The very difficulty with environmental damages is that they're typically called “non-use” value. They're typically things you can't buy or sell. A fairly rigorous determination would need to be done up front and a number of factors would have to go into that.

My counsel can speak to where we would change, but I think the logic behind it was that in the event that it was necessary, given that once you put the regulations in place they need to be regularly updated, the courts are better served to look at the evidence base and to provide a role to determine what the value would be to the crown and to society more generally.

[The Chair, Conservative, Leon Benoit]

Ms. Kellerman, can you answer the specific question that was asked?

[Joanne Kellerman, General Counsel and Executive Director, Legal Services, Department of Natural Resources]

Proposed section 14 provides that “damage to property” is a compensable head of damage under this legislation. Non-use value is in fact a form of damage to property. It's damage to the property of the crown, whether it's the provincial crown or the federal crown.

Proposed section 18 deals with the reasonable costs of remedial measures to repair, reduce, or mitigate “environmental damage”.

Again, within Canada, in proposed section 18, and then in states outside Canada, they are both compensable heads of damage. The restriction is that the remedial measure has to be ordered by a competent authority.

While I did not hear Mr. Amos' intervention, I think I'm familiar with the general point he is making. My response would be that the bill you have before you does contemplate that a remedial measure for environmental harm is a compensable head of damage, both within Canada and outside Canada.

[Geoff Regan, Liberal, Halifax West, NS]

I'm not necessarily sure that Mr. Amos' prescription is the right way to go. But the notion that people should have to go to court and let the courts figure these things out is, at least for most Canadians, unattainable. It's unaffordable.

So I guess the question is this: is there no other approach to deal with this problem, rather than to say let the courts figure it out, when most Canadians can't afford to go to court? They can't afford to spend thousands and thousands of dollars on lawyers.

[Jeff Labonté]

I appreciate that point. The bill actually provides for only an attorney general from a provincial government or an attorney general with the federal government to bring forward the case to court. Individual Canadians would not be expected to, nor would they be able to bring forward said case to court. It would be the crown on behalf of Canadians that would make that determination, recognizing your point about—

[Geoff Regan, Liberal, Halifax West, NS]

Access.

[Jeff Labonté]

—access, as well as whether you wanted multiple iterations of the same action being brought forward and having challenges of traffic management, if you will, in courts.

[Geoff Regan, Liberal, Halifax West, NS]

I'll go on to my next question.

[The Chair, Conservative, Leon Benoit]

Thank you, Mr. Regan.

[Geoff Regan, Liberal, Halifax West, NS]

I would go on to my next question.

[The Chair, Conservative, Leon Benoit]

Your time is up.

We go now to the five-minute round, starting with Mr. Trost, followed by Ms. Block and then Mr. Rankin.

Go ahead, please, Mr. Trost, up to five minutes.

[Bradley Trost, Conservative, Saskatoon—Humboldt, SK]

Thank you, Mr. Chair.

As, I believe, the only member of the committee when this portion of the bill was originally introduced, I'm very much looking forward to it finally getting passed. There's a rumour I can't get off this committee until it finally gets passed.

One of the aspects you pointed out of why this bill needed to be ratified has to do with the Convention on Supplementary Compensation for Nuclear Damage. Could you elaborate on, one, why that is important for Canada to ratify, and two, how that helps to protect Canadians in the event of accidents not in our jurisdiction?

[Jeff Labonté]

I'll address this broadly, and then turn to my colleagues.

Broadly, joining the international convention provides us more protection in the sense that there's a community of countries that have similar circumstances and basically have the same frameworks. So it provides legal certainty.

More specifically, the United States is a signatory to that convention, one of the charter signatories. Today it's fair to say that both Canada and the United States have nuclear facilities. Many of those are near the border. There is the potential—albeit, as we think or believe, pretty remote—that an incident could be transboundary.

Absent being a member of the convention, there is no treaty, no workable framework with the United States on how to deal with something that might originate in either country and impact the other. Joining the convention, and the convention coming into force, will allow us to have a treaty with the United States that deals with certainty of jurisdiction, certainty on how to deal with damages, and certainty on how to deal with what kinds of issues might arise.

I could certainly turn to Dave first, perhaps, and then Joanne next, to add to your question in terms of what other benefits would come.

[The Chair, Conservative, Leon Benoit]

Go ahead, Mr. McCauley.

[Dave McCauley, Director, Uranium and Radioactive Waste Division, Electricity Resources Branch, Energy Sector, Department of Natural Resources]

Thank you very much.

I think Mr. Labonté has covered it off fairly well. The key elements would be that it clarifies jurisdiction, which operator is liable in the event of damage that was transboundary or in a transportation incident. The convention also has a public fund associated with it, which brings additional compensation to a member country in the event of an incident. And third, by virtue of the fact that countries come together globally to enter into a convention like this, it enhances nuclear safety by allowing more flexibility for international contractors to do work in different jurisdictions.

[Bradley Trost, Conservative, Saskatoon—Humboldt, SK]

To extend on that point, how does it allow our contractors, our industry to go do more work? Explain that a little more fully.

[Dave McCauley]

Certainly. By virtue of the fact that we are members of a treaty, a convention with another country, that member country accepts the terms of jurisdiction, the same rules of liability that we do. So it makes it easier for our contractors or contractors in other countries to do work across boundary.

[Bradley Trost, Conservative, Saskatoon—Humboldt, SK]

I understand the positives behind this. But is there some risk that, in some respects, we could lose rights, if there were an accident on the U.S. side?

You're stating that it provides greater certainty. But the legends about American trial lawyers and what they can get, and so forth, are out there. If somebody wanted to go and sue in the United States, would this limit the ability of Canadian citizens to utilize the American courts in the event there was an accident on the U.S. side that affected Canada? Would it stop Canadians from suing in the States?

[Jeff Labonté]

It doesn't, so it would provide that the U.S. had jurisdiction and it would provide, under the terms of the convention, that compensation would be non-discriminatory so that Canadians would have a right to compensation equal to that which Americans have based on the damages that may have been occurred and they might have been subject to.

[Bradley Trost, Conservative, Saskatoon—Humboldt, SK]

And what advantages or what protections would accrue to the United States? I'm assuming these would be identical, but could we be exposed to more costs if we had a Canadian accident that the Americans would come for?

[Jeff Labonté]

The reverse is true. So Canada would have jurisdiction. Americans would have to seek compensation through Canadian systems and we'd be limited to Canadian systems and limited within the damage liability framework—

[Bradley Trost, Conservative, Saskatoon—Humboldt, SK]

The Canadian law would still—

[Jeff Labonté]

It would apply. So one part of the treaty is the quid pro quo, if you will.

[The Chair, Conservative, Leon Benoit]

Thank you, Mr. Trost.

We go now to the Parliamentary Secretary to the Minister of Natural Resources, Ms. Block, for up to five minutes, please.

[Kelly Block, Conservative, Saskatoon—Rosetown—Biggar, SK]

Thank you very much, Mr. Chair.

Welcome back to committee. It's good to have you here. I appreciate your testimony and the work that has been done on this legislation. As my colleague pointed out, we defer to folks who have been here much longer than I and other newer members have been, because as Mr. Trost pointed out this legislation has been before this committee at least four times. We're discussing it now for the fifth time.

So thank you very much.

My first question has to do with the liability amount. I'm wondering if you could tell me the precise phase-in period for the dollar amounts and the years.