Thank you very much.
I'm delighted to be here. I'm a little surprised that I'm invited. I see a lot of expertise at the table already. I'm presuming that I've been invited because I was the first person to table an environmental bill of rights at the federal level. I also have a copy of my Bill C-202 here, which could be distributed later. It is in both official languages. I apologize that my brief was not already translated, but I think that will be provided to you.
I was also a member of the first team of citizens who worked with the Minister of Environment in the early 1980s in the drafting of the original CEPA. I want to share a little about how it came about that some environmental rights were included in that bill and why it's important to continue to strengthen those rights and opportunities in that legislation.
What do we mean by environmental rights? First, these rights involve the enshrining of the rights of Canadians to a healthy and ecologically balanced environment through amendments to federal laws and the Canadian Bill of Rights. Many have proposed that Canada mirror the precedent set by many other nations who have entrenched these rights in their constitutions.
Second, these rights are considered important in order to enshrine the Government of Canada's public trust duty to protect the environment to the extent of its jurisdiction, including legislating and enforcing environmental protection laws.
Third, specific environmental rights are generally considered to include the right of Canadians to hold their governments accountable by accessing environmental information to become better informed on the potential environment or health impacts of projects, activities, or decisions; having the right to participate in decisions impacting their health and environment; and gaining standing before courts and tribunals to seek intervention where those rights are denied, including requiring effective enforcement of environmental protection laws.
Why is it important to enshrine environmental rights? Directly informing and engaging the public eases suspicions and builds trust in the decisions by regulators. It's important that the process be constructive, and I'll speak to that a bit later and give some examples of some processes that have been more constructive.
Canada committed in 1993, under the North American Agreement on Environmental Cooperation, to the importance of public participation in conserving, protecting, and enhancing the environment; to promote transparency and participation in the development of environmental laws, regulations, and policies; to publish in advance any proposed measures and provide interested persons reasonable opportunity to comment; to extend the right to demand investigation of environmental violations; to provide access to administrative, quasi-judicial, or judicial proceedings for the enforcement of environmental laws, or to file suit for damages or injunctions; and to ensure that all administrative, quasi-judicial, and judicial proceedings are fair, equitable, and open to the public. Canada has already committed since 1993 that it will extend those rights in federal law.
What are the alternative means available to extend environmental rights?
One way is through constitutional reform, which would override all federal environmental laws, but many believe it's also important to extend those rights more specifically in statutes.
A number of jurisdictions have already incorporated or have issued stand-alone environmental bills of rights. The Government of Ontario did, and I think Manitoba was in the process, at least before the last election. Nova Scotia is proceeding. On my part, I have tabled a proposed federal environmental bill of rights several times.
The rights could be incorporated in individual statutes. The statue you're reviewing now is one of the first to incorporate some of those rights. The Canadian Environmental Assessment Act also has, or had, a good number of rights, which were emasculated by the former government. That is why there's been a lot of opposition to resource projects. Alberta, Northwest Territories, and Yukon all have included a variety of environmental rights in their environmental laws.
Rights can also be extended to citizens by petitions to stand-alone bodies. The commissioner for environment and sustainable development already has that power, and citizens are extended the right to petition the commissioner. The North American Commission for Environmental Cooperation has, within its agreement, the provision that anyone in North America can petition when they are concerned that the environmental law is not being enforced. As I mentioned previously, Canada has committed to put in place very many specific environmental rights.
When CEPA was first enacted in 1984, Environment Canada led an intensive public consultation process, including with industry and non-government organizations. An important addition to this consolidation statute was the entrenching of environmental rights and related obligations, now contained in part 2, including the registry of decisions, the right to request the addition of a substance on a priority substance list, the right to make voluntary, confidential reports of violations, the right to seek an investigation of an offence and the duty of the government to respond, the right to bring an environmental protection action, and the right to seek an injunction where a person suffers loss or damage due to contraventions.
An equally important parallel action taken by the then environment minister when CEPA was first enacted was to table an enforcement and compliance policy, thereby disclosing publicly what the responses would be when there is a violation under CEPA. This, again, was a public confidence-building gesture to the public. In doing so, the minister said, “A good law, however, is not enough. It must be enforced—ruthlessly if need be.”
This was a very important aspect of the original tabling of CEPA, and I think it should be given careful consideration by this committee. The public is concerned not only about what is in the law, but also about the law being effectively enforced.
As for constructive public engagement processes, it is not sufficient merely to enact these rights. It is incumbent upon the government to put in place constructive processes to engage the public in implementing the law, which is all the more important where there are concerns about toxic substances entering the environment, as you have heard from other witnesses.
Several good models exist that I encourage the committee to consider and recommend to the department. One is under the Canadian Environmental Assessment Act. My understanding is that the Liberal government is going to re-enact the Regulatory Advisory Committee, wherein all concerned parties—industry, public, and so forth—will have a say in federal environmental assessment legislation and regulations.
Another really good model is the Clean Air Strategic Alliance in Alberta. That was initiated way back under the government of Ralph Klein. It is a tripartite committee, with somebody from the environmental community, somebody from industry, and senior people from government. They can come up with their own reviews, or the government can refer to them matters on air emissions that it wants them to review. As a result of this committee, Alberta now, I think, has the lowest flaring emissions in Canada. As a result of this committee, Alberta is the only jurisdiction in Canada that requires the capture of mercury from coal-fired power. Through that committee, they have issued standards on NOx, sulphur dioxide in particular. I think it is a really good model for the federal government to look at.
Third, the government could consider re-funding the Canadian Environmental Network, which was very effective in bringing together citizens from across the country to effectively and constructively provide comments on everything from pesticides and the Fisheries Act to toxins. There was a very active toxic substances caucus, which regularly met and provided constructive, informed advice to the government. There was also an aboriginal caucus, which provided advice to the government specifically in these matters.
Another one was MERS, the Mercury Emissions Regulatory.... I can't remember what it stood for, but it was a federal body that was looking at the control of mercury. I'm sad to say that it was not effective. It simply issued what was called a Canada-wide standard. I strongly recommend that the committee say that we no longer do a Canada-wide standard. When is a standard not a standard? It's when it is a Canada-wide standard and simply a guideline. It doesn't mean anything. The federal government has never issued any standard for mercury from coal-fired.
A final one is COSEWIC—the SARA advisory committee and the independent aboriginal advisory body.
