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—