Environment Committee on Feb. 26th, 2007

[The Vice-Chair, Liberal, Geoff Regan]

I call this meeting to order.

Good afternoon, and welcome to this sitting of the Standing Committee on Environment and Sustainable Development. This is pursuant to Standing Order 108(2), a study on strengthening the role of the Commissioner of the Environment and Sustainable Development.

We have four witnesses this afternoon.

Three of them are here with us, while the fourth is in New Zealand.

From the office of the Parliamentary Commissioner for the Environment for New Zealand, we have Mr. Morgan Williams, Parliamentary Commissioner for the Environment. Thank you for joining us, Mr. Williams.

We also have, as an individual, Ms. Dyane Adam, former Commissioner of Official Languages.

From the Privy Council Office, we have Roberta Santi, assistant secretary to the cabinet, machinery of government; and Mr. Patrick Hill, director, strategic policy, machinery of government.

Good day and thank you for joining us.

We will begin with short presentations. I believe each person has seven minutes. Correct?

[The Clerk]

No, ten minutes has been allocated for each presentation.

[The Vice-Chair, Liberal, Geoff Regan]

I'm sorry, each person will have ten minutes to make a presentation.

Did you get that, Mr. Williams? Is the simultaneous translation working?

[Morgan Williams, Parliamentary Commissioner for the Environment, Office of the Parliamentary Commissioner for the Environment for New Zealand]

Yes.

[The Vice-Chair, Liberal, Geoff Regan]

We'll begin with Mr. Williams, followed by Ms. Adam, Ms. Santi and Mr. Hill.

Mr. Williams, please, if you don't mind, we'd like to hear from you, to begin with. And thank you very much for joining us today, all the way from New Zealand.

[Morgan Williams]

Good morning. Greetings from Aotearoa. It's a pleasure to be online. It's a balmy 21 degrees here in Wellington, a little warmer than where you are. Thank you very much for the opportunity to share.

I'm not going to spend ten minutes talking to you. Having read many of the transcripts of the last few weeks on what you're working on, I think it would be much better to have a dialogue. But perhaps I could just start by being very brief in terms of the background to my office, the Parliamentary Commissioner for the Environment, the oldest office of this type in the world, which was established under the Environment Act 1986. I assume that members of the committee will have access to this and perhaps have a look at it.

I think it's also really important to understand the context in which this was born, because it was born very much pre-Brundtland. It was born as a concept in the early eighties, when there was growing concern in New Zealand about the lack of independent voice representing environmental matters—that is, independent of government. That concern came both from civil society in New Zealand and also from the first OECD environmental audit of New Zealand in 1981. So there's a fair history that went into the evolution of the office and the reforms of many aspects of our governance, which you'll all be rather familiar with, right through the 1980s.

There have been two commissioners in the role in 20 years—Helen Hughes from 1987 to the end of 1996, and me since 1997.

I think what you're really interested in is the nature of the office—its relationship, obviously, to Parliament and government. As I think you all understand, I'm an officer of Parliament. I report to the Speaker of our House of Representatives. I have exactly the same relationship as does our Auditor General and our ombudsmen.

If you look at the key in the act, which I assume you will have access to, you would look at the functions and powers in section 16 and you would look at section 17, matters to which regard be given. I can come back and talk about the details of those, but I think in terms of the functions, I will just read subparagraph 16(c)(1)(i), because it really is the heart of the way this office operates in our core function. It says that the commissioner shall be able to:

Investigate any matter in respect of which, in the Commissioner's opinion, the environment may be or has been adversely affected, whether through natural causes or as a result of the acts or omissions of any person or body, to an extent which the Commissioner considers warrants investigation;

In that, if you go on and look at matters to which I can give regard, that includes policy matters, which seem to be an area of a lot of discussion.

So how has that played out in terms of the actual way we've gone about our work, and how has that evolved over the 20 years? We've evolved a work program that really falls into five areas.

The first one and the one that I, in the last 10 years, have put over 60% of my effort into is what we call systems guardian work. In essence, it's doing quite large investigations of the way we're managing, thinking, researching, advancing whole pieces of the system of our society. We've looked at oceans, we've looked at cities, we've looked at agriculture, and we've looked at water. Those are our big systems studies.

The second role is in effect being an environmental ombudsman with a small “o”; that is, taking on board concerns from society—and we get hundreds a year. We tend to look at the systemics behind them—what is this concern telling us about wider issues?

The third area is, in fact, environmental management order, where we look at specific pieces of management. To give you a very recent example, it could in fact be by a state-owned enterprise of government. We did an environmental management systems and performance assessment of Solid Energy, our state-owned coal company, quite recently.

The fourth area is to be an adviser to parliamentary select committees such as yours. In that capacity, I want to be absolutely clear that we're acting as an adviser to Parliament. We're acting as an independent adviser to the committees when they're considering bills or other matters before them, such as petitions. We also act as an adviser when committees are charged with the task of assessing other government agencies, such as the Ministry for the Environment or the Department of Conservation. We frequently do that in close cooperation with the Audit Office.

In the fifth area, we operate as an information provider, a facilitator, a catalyst. In other words, we're out there very much advancing the concept of environmental sustainability in an education realm, in a societal realm, and in a business realm. This highlights the fact that we go to a lot of effort to actually market our reports quite widely, because we believe our findings and our assessments need to be taken to as wide an audience as possible, as often as possible.

Just to sum up, Mr. Chairman, what I'd like to leave the committee with is perhaps a starting point for some discussion. The way we work in thinking about environmental sustainability is very forward-focused. It's recognizing that we're actually trying to advance something in our societies and economies that is extraordinarily complex. It needs an enormous amount of linking between the components of governance, of law, of policy, of investment, and so on.

For twenty years now, our work has aimed to do what we say is tilling the thinking and the landscape ahead of policy formation. Policy formation is absolutely and clearly the job of elected governments, and we go to a lot of effort to make sure we don't get, as we say, sucked into the process of being a policy adviser. By golly, we are out there to shape and help and amplify the ripples of many others who are trying to do just that, but we stay very clear of that role ourselves. With the demarcations we've been making over those five functionalities, we don't believe we've ever really gotten into conflict in over twenty years.

On that, I'll close, Mr. Chairman. I think there's a pretty rich canvas on which to have a discussion about how we work. We admire the work Canada is doing, and we have learned a lot from the evolution of your office in Ontario and the one in the federal system.

Thank you.

[The Vice-Chair, Liberal, Geoff Regan]

Thank you very much, Mr. Williams.

I hope colleagues will indulge me for one moment while I ask you whether Don Elder is still the CEO of the state-owned coal company in New Zealand.

[Morgan Williams]

Absolutely, Don is, and we've had a great working relationship with Don in our most recent piece of work looking at his enterprise. He's been a very good CEO to work with.

[The Vice-Chair, Liberal, Geoff Regan]

I should tell you that his wife is a native of Sydney, Cape Breton Island, Nova Scotia, and is an old friend. If you're talking to him, please tell him hello from Geoff Regan.

Forgive me, colleagues, for that indulgence.

[Morgan Williams]

It's a small world.

[The Vice-Chair, Liberal, Geoff Regan]

It is indeed a small world, yes.

Now we'll go on to our next witness, Ms. Adam.

[Dyane Adam, Former Commissioner of Official Languages, As an Individual]

Mr. Chairman, committee members, good afternoon.

In the past few years, it has been my pleasure, as Commissioner of Official Languages, to take part in a number of round tables and conferences concerning the role and nature of the various officers of Parliament. If any consensus has emerged from those debates, it is that there are notable differences among these parliamentary organizations in their history, mandate and size, that make any generalization a difficult proposition. I would nevertheless venture to say that, of all those officers, it is the Commissioner of Official Languages who, under the act governing his or her actions, has the broadest range of tools to enforce full compliance with the objects of the legislation for which he/she is responsible, the Official Languages Act. Like Mr. Williams did, I will be presenting to you, in broad outline, the role and major characteristics of the Commissioner of Official Languages.

As most of you know, in passing the OLA in 1969, Parliament created the Office of Commissioner of Official Languages. As the Co-Chairs of the Royal Commission on Bilingualism and Biculturalism wished, the various commissioner have acted as the “active conscience” of the Canadian public in language matters, since, when the first act was passed, language rights were more an ideal than a reality.

As the Official Languages Act, which was revised in 1988, expanded the scope of the Commissioner's mandate to include development of the official language communities and the advancement of English and French in Canadian society, the role of the Commissioner went beyond being an “active conscience” to become that of an agent of change. In my view, the Canadian Charter of Rights and Freedoms of 1982, which made the Official Languages Act a quasi-constitutional statute, since it refers to language rights, also reinforces this agent of change concept. It refers to advancing “the equality of status and use of English and French”.

But coming back to the OLA, section 56 of the Act is central to the mandate of the Commissioner of Official Languages, and it is appropriate to cite it in full:

56.(1) It is the duty of the Commissioner to take all actions and measures within the authority of the Commissioner with a view to ensuring recognition of the status of each of the official languages and compliance with the spirit and intent of this Act in the administration of the affairs of federal institutions, including any of their activities relating to the advancement of English and French in Canadian society.

Three main points emerge from this section. First, the general nature of its wording gives the Commissioner broad leeway in determining the scope of his/her mandate. Second, the expression, “it is the duty of the Commissioner to,” has a character than an expression such as “the Commissioner may or is entitled to...” would not have. Third, this clause sets out the Commissioner's twofold role, to protect and promote the language rights of Canadians. I feel this dual role is specific to the mandate of the Commissioner of Official Languages as compared with those of the more conventional officers of the Parliament of Canada.

The Commissioner has a certain number of powers with which to carry out his/her mandate. To ensure compliance with the Act, the Commissioner conducts investigations into complaints received from citizens and employees and recommendations where those complaints are founded. The Commissioner may also conduct investigations of his/her own initiative, often in the form of more general audits or evaluations. The Commissioner has the power to conduct follow-up to the implementation of his/her recommendations, to report to the Governor in Council if any problems persist and to table a special report in Parliament where he/she believes any matter requires its immediate attention. The Commissioner is required to table an annual report in Parliament on his/her activities.

With a complainant's consent, the Commissioner may also file court remedy proceedings in Federal Court, if other measures have not corrected departures from the Official Languages Act. Commissioners have done so repeatedly during the history of the Commissioner's Office.

Under subsection 78(3) of the OLA, the Commissioner may also appear as a party to any court proceedings concerning the status or use of English and French. The Commissioner has accordingly intervened in the cases involving Montfort Hospital in Ontario, municipal mergers in the Montreal region and the bilingual status of Canada's capital. In some instances, this has led some to say, wrongly, that the Commissioner intervenes in areas that are not under federal jurisdiction. However, the Commissioner does so based on his/her mission, which includes the development of official languages communities and the advancement of English and French in Canadian society. As already noted, that mission is not based solely on the OLA, but also on subsection 16(3) of the Canadian Charter of Rights and Freedoms, which refers to the role of Parliament and the legislatures in advancing “the equality of status or use of English and French”. These instruments thus establish Canada's supreme statutory framework for language rights.

Whether it be through these court appearances, research work on various language issues or educational and media activities, all successive commissioners have promoted this fundamental value that is Canada's linguistic duality. In so doing, they have promoted, in particular, minority language education rights, the learning of English and French as second languages by young Canadians and exchanges between language communities. In a way, they have sought to create the conditions for advancement toward equality, not only in federal institutions, but in Canadian society as a whole.

Lastly, one final power that establishes the Commissioner's role as an agent of change and promoter in language matters is his/her authority to review any regulations or directives made under the OLA or any other policy that affects or may affect the status or use of the official languages. This is an innovative role that enables the Commissioner to act upstream of legislative changes so as to ensure that proposed legislation that may have a significant impact on language rights takes the principles of the OLA into account.

During my term, I exercised this monitoring function in a number of areas, in particular immigration, air transport and sport. Also during my term, I recommended that the government clarify the scope of Part VII of the OLA, which the Parliament of Canada ultimately did by passing the bill introduced by Senator Jean-Robert Gauthier. In so doing, the Commissioner exercises his/her mandate proactively to assist the government and Parliament in putting in place legislation and policies that comply as fully as possible with the spirit and letter of the OLA.

In my view, this approach is more constructive than criticizing after the fact. The Commissioner of Official Languages has an obligation to take all measures, in the context of his/her mandate, to overcome difficulties and roadblocks before the rights of citizens and the official language communities fall victim to planning or administrative errors.

In closing, I want to emphasize that, as an officer of Parliament, the Commissioner must display a high degree of rigour and responsibility in all his/her work, in both monitoring and promotion. Since the Commissioner's various reports support and contribute to the work of parliamentarians, the latter must have assurances that the research and analyses underlying the Commissioner's actions and recommendations are sound. The credibility of the position and of the institution itself are at stake.

Thank you for your attention. I will be happy to take your questions.

[The Vice-Chair, Liberal, Geoff Regan]

Thank you for your comments, Ms. Adam.

Before I turn the floor over to Ms. Santi and to Mr. Hill, I would just like to mention that all members have received a copy of Ms. Santi's remarks.

Go ahead, Ms. Santi.

[Roberta Santi, Assistant Secretary to the Cabinet, Machinery of Government, Privy Council Office]

Good afternoon, Mr. Chair, and members of the committee.

Good afternoon everyone.

I would first like to introduce my colleague, Patrick Hill, who is the Director of Strategic Policy in the Machinery of Government Secretariat of the Privy Council Office.

We are very pleased to be here today as the committee studies the role and function of the Commissioner of the Environment and Sustainable Development.

I would like to begin by briefly setting out the role of the Machinery of Government Secretariat and then turn to the role and function of the Commissioner as set out in the Auditor General Act.

One of the key roles of the secretariat is to provide the Clerk of the Privy Council and the Prime Minister with public service advice on the broad structural issues of government organization. This includes providing public service advice on changes to the organization of the government, including the creation, alteration, or wind-up of governmental bodies. These responsibilities are largely discharged in two ways: by developing options and proposals for the Prime Minister's consideration, and by exercising a challenge function in assessing proposals for the Prime Minister that are brought forward by others.

As members know, the legislative framework establishing the commissioner and setting out that officer's functions is found in the Auditor General Act.

The Commissioner's position was established by Parliament through statute in 1995 as a senior officer appointed by the Auditor General and forming part of the Office of the Auditor General.

The act sets out that the mandate of the commissioner is to provide monitoring and reporting on progress of government departments toward sustainable development. It also provides that the commissioner shall, on behalf of the Auditor General, report annually to the House of Commons concerning anything that the commissioner considers should be brought to the attention of the House related to environmental and other aspects of sustainable development. This includes the extent to which departments have met the objectives and implemented the plans contained in their sustainable development strategies, the number of petitions related to the environment, their subject matter and status, as well as the exercise of Governor in Council authority regarding sustainable development strategies.

The commissioner is a statutory officer within the Office of the Auditor General and has the same independence as the Auditor General herself. That is to say the commissioner, like the Auditor General, discharges his or her role independently of the government of the day and reports to the House of Commons. As an agent of Parliament, the office performs an oversight function of the executive and is accountable directly to Parliament for the manner in which it delivers on its legislative mandate.

We look forward to the deliberations of the committee, including the perspectives of the witnesses appearing before it on the issue at hand. In addition, we await the results of the Auditor General's internal review of her office's environment and sustainable development audit practice.

We would be pleased to answer questions you may have. Thank you.

[The Vice-Chair, Liberal, Geoff Regan]

Thank you very much, Ms. Santi.

I also want to bring to the attention of members that we have written submissions from both the former Commissioner of the Environment and Sustainable Development, Johanne Gélinas; and the Privacy Commissioner of Canada. I think you have those in both official languages.

Now we'll go to the first round of questions. Mr. McGuinty.

[David McGuinty, Liberal, Ottawa South, ON]

I have a couple of pointed questions, and I'd like to turn to Ms. Santi first.

You say toward the end of your brief, on page 2 of the English version, that:

The Commissioner, as a statutory officer within the Office of the Auditor General, has the same independence as the Auditor General herself. That is to say, the Commissioner, like the Auditor General, discharges his or her role independently of the Government of the day, and reports to the House of Commons. As an Agent of Parliament, the Office of the Auditor General performs an oversight function of the Executive and is accountable directly to Parliament for the manner in which it delivers on its legislative mandate.

From a machinery of government perspective, would you not agree that one of the fundamental differences between the Auditor General's position and the commissioner's position, as presently constructed, is that the Auditor General of Canada can fire the commissioner?

[Roberta Santi]

Well, I think what I said is that the office as a whole isn't in it from the executive. But the Auditor General does have the power to hire the commissioner, and she has responsibilities under the Public Service Employment Act with respect to that employee.

[David McGuinty, Liberal, Ottawa South, ON]

So the Auditor General can fire the commissioner.

[Roberta Santi]

The government can take action in terms of management responsibility. That person does report to the Auditor General.

[David McGuinty, Liberal, Ottawa South, ON]

Okay. Let's look at some of the wonderful input we've received from different actors in Canadian society.

You may not have seen this, Ms. Santi, but we received a letter from probably the most distinguished Canadian in environment and sustainable development ever, Jim MacNeill , an officer of the Order of Canada, who was the secretary general of the World Commission on Environment and Development, the so-called Brundtland Commission, in the late 1980s.

He says in his letter to the committee—I'd like to get your response to this: “Having dismissed a Commissioner, there can be no doubt in anyone's mind that future Commissioners will serve solely at the pleasure of, and will be simply agents of, the Auditor General.” Would you agree that from a machinery of government perspective, if the Office of the Commissioner of the Environment and Sustainable Development were made fully independent, we would not face this potential problem in the future? Is that right?

[Roberta Santi]

Well, if there were a separate agent of Parliament, that individual would report directly to Parliament.

[David McGuinty, Liberal, Ottawa South, ON]

Thank you for that.

Madame Adam, could I turn to your excellent brief and explore some of these powers that I admit I did not actually know you possessed in your former life. I hope you're feeling as powerful today as you were then.

I didn't know, for example, that the official languages commissioner could file remedy proceedings in the Federal Court. That was quite an astonishing revelation, and I would say quite a power that was invested in that particular office. I didn't know you had intervener status in any court proceedings. You speak directly here about the advancement of English and French in Canadian society. You use words like “the promotion” of the act itself--the Official Languages Act. Then finally, the position has the power to review regulations made under the Official Languages Act prior to their, I assume...what, being passed by Parliament? How does that work in practice?

[Dyane Adam]

I'm not sure that any commissioner really took it upon himself or herself to really review, let's say, the regulations for the Official Languages Act. We could do it. For example, before I left office, I made the recommendation that government should review the regulation on official languages for service to the public. That regulation was passed in 1998, and it has never been reviewed. As you know, society has changed considerably. Demographics change. So we will, and we did, do studies that would help the government and Parliament see the value of reviewing that—what would be the impact for citizens, etc.

But that's usually the level we go to. We let the government, as we say, act on the recommendation. We have no executive function, but we will do the research. We will push it if we strongly feel that the regulation is dépassée and needs to be reviewed by Parliament.

The regulation under the Official Languages Act needs to be passed by Parliament, not solely by the government. Parliament does have a role to play. Again, this is specific to our legislation.

[David McGuinty, Liberal, Ottawa South, ON]

Mr. Williams, in your capacity as commissioner, I assume, in New Zealand, to what extent have you been able to move the agenda forward using a promotional or advocacy type of role? How important has that been to bring people to a deeper and better understanding of the need to act on a more urgent basis--for example, on things like climate change?

[Morgan Williams]

I actually have felt, as my predecessor did, that that's the absolute core of the office. It's a very major education exercise at the end of the day.

I'll give you two examples of ways in which we know we shifted the system or made a major contribution.

The first one was a big piece of work that we did in 1998 looking at cities and their people. That was in fact an unpicking of the way that we were investing in and thinking about the cohesion of the place where 85% of kiwis now live. What we discovered, amongst many things, was, for example, that there were lists on about $1 million New Zealand going through the public science good funding—which at that stage was about $380 million—into what we would call the systems research of cities and settlement. That seemed extraordinary. We knew a lot more in New Zealand about how ryegrass grew than about how our cities were growing.

The result of that and of a number of other parts of that report was to place a major emphasis—and there has been a major growth to many tens of millions of research—on the place where most of us live. So that really shifted the system.

Another piece of work whereby we've created a major dialogue is our examination of the intensification of farming in New Zealand. Our land-based industries basically pay the bills in New Zealand. Through that piece of work, we've created an enormous conversation and debate. It's been pretty rigorous. What it has done is to get many people in the public and private sectors to look at the strategic direction of the primary industries of New Zealand, which are fundamental to our economy and fundamental to our well-being. That's because we got out there and very strongly told our story.