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.

[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…