Good afternoon, Mr. Chairman and committee members. Thank you for the opportunity to address you this afternoon on these issues of public participation and enforcement.
I will be dealing with two matters that no one else, as far as I know, has dealt with in these hearings. The first is the environmental protection action that is found in part 2 of the act; and the second is the offences and penalties section, and in particular, I'll be recommending a provision like the Fisheries Act fine splitting provision.
Our interest at Sierra is that we are considered a watchdog on the environment. We deal only with legal matters. We have offices in Toronto and in Vancouver, and soon to be in Ottawa. We look at the legal aspects to these environmental issues.
My background is 20 years of commercial litigation in private practice in Toronto, so I've seen both sides of the fence. I've spent in the last six years in public interest litigation.
There has been a lot of talk, as there should be, about voluntary programs. Mr. Lloyd talked about them. We think those are great, but we also think you have to balance that with enforcement.
I submitted a written brief, which I understand some or most of you have. In that, I highlighted these two issues of public participation.
The public participation section of the act really deals with five things. It has an environmental registry; an application for investigation; the environmental protection provision, which is the action I've been talking about; an injunction you can bring if harm is going to occur; and last, the civil action in section 20. So it talks about harm before it occurs, with the injunction; and it talks about it after it occurs, with the environmental protection action or with the civil action for damages.
As far as the environmental protection action goes, it's modelled after the provision in the Ontario Environmental Bill of Rights. It has a reasonableness standard, and one has to show significant harm. There is a limitation period of two years, and the onus is the balance of probabilities as opposed to the criminal onus.
So one would hope, or think, that this would have been used in the past. It has not. It has been used only once or twice. It has not met the need of the public to participate through this environmental protection action. I mentioned the other possibilities, one of which, outside the act, is private prosecution. Another is acting under other statutes such as the Fisheries Act. It's very clear that this environmental protection action is not working.
Why is it not working? I suggest that there are a couple of reasons, but frankly, I don't have the answer. I think that requires more study. However, I would note that even the Environmental Commissioner of Ontario has commented on this provision and on the fact that it has not been used. In fact, the Ontario provision has not been used often either. Part of the reason is the cost, the potential of costs that can be put on a person using the environmental protection action. There's no environmental protection action if the defendant engages in any kind of mitigation. There's no emergency provision in the environmental protection action.
I'd like to read out just the government's own conclusions on the environmental protection action and the public participation, which are contained in a document at tab A of our material. It's called the Formative Evaluation of CEPA 1999, and in that, at paragraph 2.2, the expected outcome of this action was that Canadians would have “the opportunity to initiate investigations of alleged offences, recover personal damage and economic loss, make personal claims and file citizens' suits”.
Well, it hasn't happened. As they note, “The public participation provisions have not yet been triggered, as no relevant public applications for investigation or public environmental protection actions have been received (One environmental protection action was initiated under a Section 22 request, but this was dismissed by the Minister)”.
Under their issues and challenges, the government itself commented again that very few public applications for investigations have been made. It talks about the barriers to increased public participation and their not having been formally examined.
Again, I said I don't have all the answers. I think I would have some of the answers because we engage in activities under the Fisheries Act, i.e., private prosecutions. We've never done it under CEPA. If we haven't done it, it's unlikely that anyone else will do it, because we're one of the few organizations in the country that do this sort of thing.
To conclude, this is reading from the government document again: “The expected outcome related to Canadians initiating investigations of alleged offences, recovery of personal damages and economic losses, making personal claims and filing citizens' suits is unlikely to be achieved without further actions by the Department. Work needs to be done to identify and address barriers before the opportunity provided through the public action provisions of the Act can be fully realized”.
We make a few suggestions in our document. We laid it out by showing the CEPA provision. We've laid out suggested amendments and we had a comment column as to why that was necessary. There are provisions in numerous U.S. statutes that provide for citizen actions. We feel we can do a better job.
We've also included a section on enforcement. We suggest there should be a Fisheries Act-like provision. The Fisheries Act is the main pollution prevention provision that we use--the federal one, in any event. It is not CEPA. CEPA is anemic regarding individuals beginning and constituting actions for harm to the environment.
One of the advantages of the Fisheries Act is that it has a fine splitting provision. It's been around a long time. It has not opened the floodgates to these kinds of private prosecutions. It is very useful. It takes some of the sting out of the bringing of private prosecution under the Fisheries Act, because you can recover half the fine if you initiate a private prosecution.
Our main recommendation in that regard is there's nothing comparable at the moment in CEPA. As I said, in the other main pollution prevention statute, the Fisheries Act, we have one. So why not have one in CEPA? I throw that challenge out to you.
To conclude, I think you have an opportunity here to really give valid and real public participation, as was intended by the act. Pretty well every poll out there shows the environment is near the top or at the top of concerns of Canadians. You have an opportunity here to bring laggards into line. Mr. Lloyd was talking about good performers, high performers. They're doing the job, and others are not. This would be a good club to bring them into line. I think any socially responsible corporation would concur with the suggestions made under both our headings of public participation with the protection action in the fine splitting provision of the Fisheries Act.
Finally, this is an opportunity to put CEPA on level with the Fisheries Act. Why not? Why shouldn't we protect our citizens as well as we protect our fish?
Thank you very much.