Natural Resources Committee on June 10th, 2014

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

May I speak to that, Mr. Chair?

[The Chair, Conservative, Leon Benoit]

Go ahead, please, Ms. May.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

If you go to line 16, we're picking up from the line above, which is hyphenated after “deter”. So that is actually not “mines” but “determines”.

Sorry about that.

[The Chair, Conservative, Leon Benoit]

Shall we go to the vote on amendment PV-7?

All those in favour of PV-7, please raise your hands.

Ms. May, you're not allowed to vote.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

I know.

[The Chair, Conservative, Leon Benoit]

There was a mischievous....

Those opposed to amendment PV-7, please raise your hands.

(Amendment negatived [See Minutes of Proceedings])

Amendment PV-8 is withdrawn.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Yes.

[The Chair, Conservative, Leon Benoit]

We go now to amendment PV-9, and we're still on clause 20.

Ms. May, go ahead and speak to amendment PV-9.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Thank you very much.

Again, this is an attempt to remove absolute liability from the bill. If people want to go back to find the committee testimony that led to this amendment, it was from part 4, recommendation 4 in the Ecojustice brief. As you can see, the amendment adds after line 31 on page 16:

(2.1) In determining the amount under subsection (1) or (2), the National Energy Board shall assess the potential liability of the applicant in the event of a severe incident with extreme and significant environmental effects and consequences.

It creates more specificity around what the National Energy Board should review before determining the amount of liability commensurate with potential liability following a catastrophic spill.

Thank you.

[The Chair, Conservative, Leon Benoit]

Seeing no further discussion on that, we'll go to the vote on PV-9.

(Amendment negatived)

Still on clause 20, we now go to NDP-3, the proposed amendment by the official opposition. Go ahead, please, Ms. Moore.

[Christine Moore, NDP, Abitibi—Témiscamingue, QC]

This amendment gives the minister the authority to allow the National Energy Board to take environmental degradation and laws of non-use value into consideration during the assessment process. I'll add a quote from Mr. Amos that supports this amendment:

However, there are no regulation-making powers associated with non-use values, damages, and that really does ultimately restrict the government or the crown in how it can move forward to enunciate specifically what types of non-use damages will be claimable under what conditions. There's a lack of specificity in the legislation itself, which isn't necessarily problematic, but the fact that there's no regulation-making power around it doesn't enable that specificity to come into play. I think that additional aspect should be entertained.

That's why the official opposition tabled that amendment.

[The Chair, Conservative, Leon Benoit]

Thank you, Ms. Moore.

Is there any further discussion on NDP-3?

Seeing none, we'll go to the vote.

[Niki Ashton, NDP, Churchill, MB]

I'd like a recorded vote, please.

[The Chair, Conservative, Leon Benoit]

(Amendment negatived: nays 5; yeas 4 [See Minutes of Proceedings])

We have one more proposed amendment to clause 20, and that is PV-10. Ms. May, would you like to speak to PV-10?

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Chair, yes, I would like to speak to PV-10.

Again, this is consistent with earlier efforts to amend the act, in this case returning to the discussion we had earlier of non-use values. In subclause 20(3) of C-22, in determining the amount of liability and proof of financial wherewithal to deal with potential damage, the National Energy Board is specifically directed:

When the National Energy Board determines an amount under subsection (1) or (2), the Board is not required to consider any potential loss of non-use value relating to a public resource that is affected by a spill or the authorized discharge....

My amendment is very straightforward. It alters the paragraph 180 degrees to say that as an affirmative responsibility, the National Energy Board is required to consider any potential loss of non-use value. This amendment also comes from the brief by Ecojustice and was presented as their fourth recommendation.

Under Bill C-22, we're asking that the industries that operate within these new liability limits have proof of financial resources to pay for damages up to the absolute liability. We're not requiring them to show that they have financial resources to deal with the potential for unlimited at-fault liability, which of course remains, as we've heard from the officials.

When you don't have to consider potential costs associated with environmental losses, or so-called non-use losses, damaged ecological systems, and so on, when determining whether they have the financial wherewithal to pay, you've left out a significant part of what the ultimate damages may be.

I think the effect of my amendment is clear. If the act is to be serious about suggesting there will be liability for non-use values, environmental values, and loss of cultural and traditional rights within the act, then we really should be removing the “not” that appears in subclause 3.

Thank you, Mr. Chair.

[The Chair, Conservative, Leon Benoit]

Thank you, Ms. May.

Seeing no further discussion, we'll go to the vote on PV-10.

(Amendment negatived [See Minutes of Proceedings])

Shall clause 20 carry unamended?

(Clause 20 agreed to on division)

Clauses 21 to 50 have no proposed amendments. As per our agreement at the start of the meeting, shall clauses 21 to 50 inclusive carry?

(Clauses 21 to 50 inclusive agreed to on division)

(On clause 51)

First of all, on clause 51, we have proposed amendment G-1. Would someone like to speak to that proposed amendment?

Ms. Block.

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

Mr. Chair, this amendment we are proposing is to clause 51. We propose adding after line 6 the following: “It includes any physical activity that is incidental to the physical activity described in paragraphs (a) to (d).” This amendment is technical in nature to correct an omission that occurred during drafting.

In the text, the words “incidental activities” are unintentionally omitted from the description of what the respective offshore boards would consider in an environmental assessment. The amendment ensures that the accord acts are consistent with the Canadian Environmental Assessment Act, 2012. The inclusion of incidental activities ensures that the environmental assessment considers the activities or structures related to or required for the proposed project, as per the Canadian Environmental Assessment Act, 2012, as well. It also is a prerequisite to provide the offshore boards with all of the powers necessary to be designated as responsible authorities for environmental assessments under the act and with the ability to assess the entirety of a project.

[The Chair, Conservative, Leon Benoit]

Thank you, Ms. Block.

You've heard the proposed amendment and the reason for it.

I'll go first to Ms. Duncan and then Mr. Trost.

Go ahead, please, Ms. Duncan.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Mr. Chair, through you to Mrs. Block, I don't understand how this fits in the legislative drafting. You're sort of throwing in a sentence after all the criteria. Is that what you're proposing, or is it additional criteria? We have proposed paragraphs 138.01(2)(a), (b), (c), and (d), and then we have this sentence. I don't understand what it relates to. Does it relate to all of the above?

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

It relates to physical activity that is described in proposed paragraphs (a) to (d).

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Is that all right? It seems like odd drafting. Maybe the officials would like to explain it.

[The Chair, Conservative, Leon Benoit]

Mr. Trost has a....

Are you going to the officials and asking them? We'll go to Mr. Trost, then.

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

Mr. Chair, my basic question was, could the officials give—we were going in the same direction—a more fulsome and complete description?

[The Chair, Conservative, Leon Benoit]

Go ahead, please, Mr. Labonté.

[Jeff Labonté]

This is a drafting omission, so it's ours in terms of missing something that we wanted to ensure. It is an “all of the above”.

To the honourable member's question, proposed subsection 138.01(2) describes the physical activity in question and lays out four elements. The insertion of this amendment says that any incidental activity related to those four elements is also in scope for the environmental assessment.