Bill C-30 (39th Parliament, 1st Session) Committee on March 29th, 2007

[Mark Warawa, Conservative, Langley, BC]

Thank you, Chair.

I'll begin with amendment G-4: that Bill C-30, in clause 5, be amended by replacing lines 4 to 5 on page 4 with the following:

(a) provisions, the effects of which will demonstrably provide an equivalent or superior level of protection of the environment and human health based on, amongst other factors, the quantifiable effects of the regulation and the effective enforcement and compliance of the federal regulation;

That's amendment G-4.

[The Chair, Conservative, Laurie Hawn]

Do you have that? Is there debate on amendment G-4?

Mr. Cullen had his hand up first.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Thank you, Chair.

The language that we began with has been changed somewhat, but not, we believe, in the spirit and general substance of what we're trying to accomplish with this equivalency. We appreciate that the government moved it. We hope there is support around the committee table to place this one in and have something that the provinces and the federal government can understand when they enter into agreements or when they make subsequential pollution laws to keep pollution below certain levels. We think this equivalency can work for us.

[The Chair, Conservative, Laurie Hawn]

Okay. Mr. McGuinty.

[David McGuinty, Liberal, Ottawa South, ON]

We appreciate what the government is trying to do here, Mr. Chair. In layman's language, what we're trying to do here is to make sure that equivalency of effect is clarified, as opposed to equivalency of regulation--I think this is what this is trying to do--and to make sure that not only is it clarified, but that provinces, through something like equivalency of effect, cannot beg off or beg out of their obligations, which would otherwise apply to them under regulation.

I have a couple of concerns about this. I just want to hear from the officials. The first thing that jumps out is that when I see language like “will demonstrably provide”, I see judicial review written all over this. I'm not sure how this would be seen. The second concern is when we talk about the quantifiable effects of the regulation, I don't know what that means at all. I'm wondering if the officials who would be responsible for enforcing this can help us to understand.

[The Chair, Conservative, Laurie Hawn]

Mr. Moffet.

[John Moffet]

Mr. Chair, perhaps I could just start at the beginning and explain the initial rationale for the amendment to Bill C-30, in clause 5. It is indeed as all three members who have spoken have emphasized.

To make explicit the desire that the test for equivalency be an effects-based test, CEPA, since 1988, has had an equivalency agreement authority in it. Since 1988, the federal government has only entered into one equivalency agreement with provinces and territories. We believe the rationale for that is at least twofold.

One reason is that, quite frankly, there has not been a lot of overlap and duplication, and therefore not a lot of need for equivalency yet. However, once we enter into the realm of air regulation and greenhouse gas regulation, we are certain to be into a world of potential overlap and duplication. So we see that dynamic changing.

The second reason we have not had a lot of interest in equivalency agreements—and this is told to us by the provinces—is that they perceive, or at least some of them perceive, the test that is in CEPA now to be a form-based test. In other words, they read the test to mean that they need a regulation where we have a regulation. Of course, in the world of air pollution, most provinces don't regulate air pollution by means of regulation. They have statutory authority to issue permits, licences, certificates of approval, into which they impose conditions on air emissions. So if you don't have a regulation and the test says you need a regulation, then no matter how stringent your rules are, you can't qualify. It's our view that the existing test doesn't actually require provincial regulations. Nonetheless, that's the perception. So what we tried to do in Bill C-30 is clarify that we're looking for equivalent outcomes or equivalent effects. That's what Bill C-30 does.

I read the government's amendment, as Mr. McGuinty and Mr. Cullen are also reading it, as an attempt to clarify what we mean by “effects” and an attempt to clarify that we're looking for equal or better for the environment or human health. So I think we're all on the same page in terms of the objective.

Mr. McGuinty asked about some of the wording here. In the wording in Bill C-30, in proposed section 10, the test is that “the Ministers and the government agree” that there are provisions, “the effects of which are equivalent”. So whereas this says “the effects of which will demonstrably provide”, “demonstrably provide” is a legal term of art that establishes a much higher test than “the Ministers...agree”. As Mr. McGuinty has suggested, that would make any decision to enter into an equivalency agreement much more open to judicial review, and once being judicially reviewed, a judge would have more rights to dig into the rationale for the agreement. If the legal test is one of essentially ministerial discretion, the courts tend to pay a good deal of respect and give the minister a good deal of leeway.

Once you start establishing a test like “demonstrably provide”, and “quantifiable effects”, then you're inviting a court to dig into the rationale for the agreement. So yes, I think it's our view that this would open an agreement to more judicial review. It's clearly up to you to decide whether that's what you want or not.

You also asked, Mr. McGuinty, about the test of “quantifiable effects”. I think there's a little vagueness here, because it's not clear on what—the quantifiable effects of the regulation on what? Is it on the regulatee, or on the ultimate objective, the environment or health? So that is something that is vague at the moment.

Frankly, I'm not sure what the final clause means. On what we're getting at here, when we have policies on how we will look at equivalency, we want to know the likelihood that a rule will be complied with, not just that you have it on the books.

The example I've given many people is that some time ago--as anybody knows who has driven in the United States--the U.S. passed a law that the speed limit would be 55 miles an hour on all highways. Some of the northwestern states are major thoroughfares for truckers, and at least one of them said, “Fine, you're telling me I need to have 55 miles an hour on my highway. I'll do that, but the fine will be $10.” So they meet the test, they have the law, but they're not going to enforce it.

We would want to know that the province not only has a law on the books, but will enforce it. I'm not sure this test puts that criterion into law effectively. At any rate, in the department to date we've chosen to leave that as something we will look at as a matter of policy, rather than trying to codify it.

I believe that's the intention here--to get at that issue of likelihood of compliance. If it is, there may be a way to clarify that.

[The Chair, Conservative, Laurie Hawn]

Monsieur Bigras.

[Bernard Bigras, Bloc, Rosemont—La Petite-Patrie, QC]

Thank you, Mr. Chairman.

It is good of Mr. Moffet that he give us a little bit of the history of equivalency, because that is at the very heart of the debate today. The reality is that the provisions of the Canadian Environmental Protection Act, as they are presently drafted, have not convinced the majority of provinces to sign equivalency agreements. Perhaps I am mistaken — you did not mention this —, but to date, Alberta is the only one to have signed an equivalency agreement with the federal government. What is fundamental in this, is that you must take into account systems that are sometimes, and even very often, different in the provinces. Without being a brake, this is a reality that prevents the enforcement of the provisions of the Canadian Environmental Protection Act that provide for regulatory equivalency. These differences between systems make it difficult to establish equivalency agreements.

When we read the changes with regard to equivalency outlined in Bill C-30, at the outset we wondered if we were on the right track. This allows, precisely, for not enforcing rules that would be directly imposed and copied in a province. This will not necessarily deliver the results you might expect under the Canadian Environmental Protection Act. At the same time, we are aware of the fact that environmental groups want to see results and there was perhaps some fuzziness with regard to these simple effects related to equivalency. This is why we believe that even more benchmarks should be established. This was not our original position, but we wound up rallying to the idea that it is indeed necessary to better define this equivalency based upon the effects, taking into account the results, and that these results should also be quantifiable. In our view, tying the equivalency of effects to the fact that they must be quantifiable is a step in the right direction and gives us more flexibility. It is also a way of ensuring that equivalency will not apply without some guarantee of concrete results on the part of the provinces. I believe that this is the spirit of the amendment brought forward by the government and, it is to my mind a good compromise between the two schools of thought.

[The Chair, Conservative, Laurie Hawn]

Mr. Cullen.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

When we look at what exists right now on the books in CEPA, as Mr. Bigras has pointed out, subsection 10(3) says: “subject to subsections (4), (5) and (6), where the Minister and a government agree in writing that there are in force by or under the laws applicable”. The language that exists right now on equivalency in CEPA, as has been said, is not that strong.

On Mr. McGuinty's question about quantifiable effect, when we're talking about greenhouse gas emissions and air pollutants, we think that can pass a pretty clear test--the quantifiable effect of the government trying to lower greenhouse gas emissions across an industrial sector. A province can understand the quantifiable effect of so many tonnes of greenhouse gas emission reductions, quantify that back, and try to meet an equivalent law or regulation at the provincial level.

We think the language goes a long way toward actually tightening up what's available for provinces and the federal government to agree upon, which is the thing we're trying to get done. We've seen provinces go ahead with their own so-called Kyoto or climate change plans, and the question is how they dovetail into what the federal government might be trying to do. It's an important question, because we do not need to be duplicating efforts. We don't have enough effort as it is. We definitely don't need to be running over top of each other.

We're comfortable with the language. It may not yet be perfect, but it's definitely an evolution from what we have right now. We think it deserves support and we should call the vote.

[The Chair, Conservative, Laurie Hawn]

Mr. Godfrey, do you wish to comment?

[John Godfrey, Liberal, Don Valley West, ON]

Sure. I have a question for Mr. Moffet.

The challenge is to be able to measure these effects in a way we can all agree about. If we simply refer to the idea that in the opinion of the ministers it's equivalent or superior, how the heck do you prove that? In other words, it seems like a fairly open door to any kind of negotiation at all.

We need to have some test or quantifiable way of seeing how these effects really are equivalent, and that we're not just trying to buy peace in the valley by signing some deal with folks.

Is there a way we can reduce that apparent element of subjectivity by the ministers so there's some kind of reassurance that what we're trying to get at here, this quantifiable business...? Is there alternative wording that takes us to that place but doesn't leave it entirely to the ministers--something that overcomes your own objections, so to speak?

[John Moffet]

I want to try to be careful. I'm not posing objections. I'm trying to identify implications of the language that may be positive or negative, depending on your view. I'm not taking a position on this.

I commented on three phrases. One is “demonstrably provide”. That is a different legal test. So there's that issue.

The second issue is “quantifiable effects of the regulation”. The main challenge there, in my view, is that it doesn't say on what, whereas the clause starts out saying the effects would provide an equal or superior level of protection in the environment and human health. I think if that's the objective, then you would want to say “the quantifiable effects on the environment and human health of the regulation”. Do you see what I mean? You could interpret it, and you could have a big debate about what the effects are on.

Again, presumably we want to focus on the outcome, as opposed to procedures, reports, or whatever. If you're looking for suggested language to clarify while staying within the intent, I think that would give my colleagues and me some comfort in terms of our ability to interpret this.

The third concern I had was the final clause. I'm not sure I can give you a suggestion there. However, I would like to close with two other points.

First, I think that government has a second amendment. I'm not sure if they're going to move it, but G-6 would say that the agreement shall establish a manner of determining whether the terms and conditions are being fully met. In other words, this would require that each agreement have written into it a customized way of determining, of doing that very measurement. At the moment there is no such obligation on the drafters of the agreement.

In fact, the current agreement does have this, but there's no obligation for us to have that. This would recognize the fact that each agreement is going to be customized and one is going to address pulp and paper effluent, and another is going to address GHG regulations. The way we measure and the kinds of outcomes we're looking at are completely different. This would require that you have that test in the agreement itself.

The second point is that there is an amendment, a further provision--

[The Chair, Conservative, Laurie Hawn]

We're getting ahead of ourselves here.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

Point of order. That's presupposing there's something that there's not. Why don't we just deal with what we have here in front of us?

[The Chair, Conservative, Laurie Hawn]

We need to deal with this amendment. Your comments on the ones that are going to follow it are relevant, but we can't get too far ahead. We're dealing with G-4 right now.

[John Moffet]

I'll take your guidance, but it's a package. The whole clause is a package. You can try to put everything in one single subclause. The final clause that is in here is the authority for the minister to draft regulations, or for the Governor in Council to draft regulations respecting the circumstances and conditions under which equivalency agreements can be entered into.

[The Chair, Conservative, Laurie Hawn]

Mr. Moffet, I recognize it is a package, but we have to take it a bite at a time. I think everybody is familiar with Bill C-30, and they're going to have to read ahead themselves, or think ahead themselves a little. We have to deal with what we're dealing with right now.

Mr. Godfrey, do you have a comment?

[John Godfrey, Liberal, Don Valley West, ON]

Mr. Chair, I sense that we're in the zone and that there are simply some mechanical issues here. I think that if something subsequent might change our thinking or help us out, that would be a good idea. I'm a little concerned about trying to draft in a committee of the whole when we're in quite a close area of agreement here, and it's simply a question of inserting all the right things at the right places.

I think the government has given us some good stuff to work on is what I'm saying here, and I'm not sure we're going to be able to just draft it like that. Maybe we can take a five-minute break and get folks banging heads together or providing their best thoughts.

[The Chair, Conservative, Laurie Hawn]

That's a suggestion.

Mr. Cullen, and then Mr. Jean.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Yes, I get that sense as well, Mr. Godfrey, so what I would suggest is we allow some of our staff to work on this, as we're very near to it, and that we move on to the next piece of the discussion and return with this within 15 minutes of our discussion to clear up the language. That would give us some pace in moving on.

I hesitate, after 45 minutes, to start taking breaks.

[The Chair, Conservative, Laurie Hawn]

Yes, I agree. So we're going to agree to stand amendment G-4 and come back to it.

(Amendment allowed to stand)

[The Chair, Conservative, Laurie Hawn]

It may be helpful to go on to amendment G-5, which may in fact give you some further thoughts on this.

Mr. Warawa.

[Mark Warawa, Conservative, Langley, BC]

Okay, thank you, Chair.

Amendment G-5 would read as follows—and this is adding a new subclause 10(3.1): that Bill C-30, in paragraph 5(1)(b), be amended by adding, after line 9 on page 4, the following:

(3.1) An agreement shall establish a manner of determining whether the terms and conditions of the agreement are being fully met.

I believe that's self-explanatory.