Environment Committee on April 28th, 2008

[Prof. Glen Toner]

There'll be some point to the sustainable development strategies.

Over the years, a perverse incentive occurred. The departments that tried to push forward and do some interesting things were audited and assessed and critiqued. So in those departments, there developed an incentive to lower expectations, to avoid committing to anything they couldn't easily do, so that they wouldn't be audited and criticized. The new bill, presumably, would create quite a different dynamic. Departments would be competing with one another to contribute to the national strategy as part of their departmental work.

[Pierre Sadik]

You're absolutely right about the common objective. The other thing we've seen, however, is that the departmental SDSs were often driven by nothing more than a deputy minister's committee on the departmental SDSs. The committees changed and had a series of long, convoluted names. Sometimes the words “sustainable development” were in there and sometimes the terms “economic” or “prosperity“ were in there as well. In any event, this bill mandates that there will be a central body, namely, a cabinet committee with a secretariat out of PCO overseeing the creation and performance of the departmental SDSs. This has a ring of effectiveness about it—more so than we've seen before.

[The Chair, Conservative, Bob Mills]

Thank you.

Mr. Newman, I apologize for giving you the wrong time.

If you wanted to make a brief statement, we could do that now.

[Warren Newman, Senior General Counsel, Constitutional and Administrative Law Section, Department of Justice]

Thank you, Mr. Chair.

I have a brief statement to make. As I understand it, it may have been distributed.

Mr. Chairman, it is a pleasure for me to appear today before your committee and to respond to questions from members of the committee with regard to the constitutionality of Bill C-474, as concerns the division of legislative powers between Parliament and the provincial legislatures.

Before getting into the subject matter, I should express a few words of caution. I am a constitutional lawyer in the Department of Justice of Canada, and as such, I advise the government of Her Majesty in Right of Canada on constitutional issues. I am thus a law officer of the federal Crown and not of the institutions of Parliament.

Moreover, Bill C-474 is a private member's bill, not a governmental measure, and you understand that I will abstain from commenting upon the wisdom of such a piece of legislation, or from rendering, on behalf of the committee, a legal opinion on the scope of the provisions it contains.

That said, I have read with interest the Hansard report of the debates on this bill and notably, the federal-provincial concerns expressed by the honourable Member for Rosemont—La Petite-Patrie, Mr. Bigras.

I shall be happy to respond, to the extent possible, to your questions concerning the division of legislative powers and the constitutionality of this bill.

Thank you.

[The Chair, Conservative, Bob Mills]

Thank you very much, Mr. Newman.

We'll go to Mr. Bigras, please.

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

Thank you, Mr. Chairman.

The least we can say is that it was a nice segue.

If the federal and provincial governments sat down with the Canadian Council of Ministers of the Environment, I think they would likely spend more than four meetings discussing a bill the scope of which, to my mind, goes well beyond that of the usual federal initiative.

I have been an MP in Ottawa for 11 years. Although I am accustomed to seeing the Liberal Party table bills with a centralist bent, rarely have I seen a bill... When I look at the schedule which lists areas affected by the implementation of the sustainable development strategy set out in clause 8, I find that it takes in quite a bit, Mr. Chairman. Some of the items listed include recycling rates, as well as water, materials and energy consumption. Mention is also made of agricultural land. It is rather unusual for a federal bill to make mention of this. There is also a reference to urban land consumption—no small issue—and to public transit, not to mention livestock density and fertilizer and pesticide use in general, not just on federally-owned lands.

My question is for you, Mr. Newman. Do you find it unusual for a bill on sustainable development and the environment to include references to these specific items? For example, do you believe that recycling rates and targets should be set by Ottawa? Is it common to find such things in a federal bill?

[Warren Newman]

As I said, I cannot speak to the wisdom of this bill, the scope of which appears to be quite broad. That being said, given its pith and substance, so to speak, the bill primarily applies to federal institutions. Having read through the bill, my view—and again I am not giving a legal opinion— is that it applies to federal departments and agencies, even though broader objectives are identified. Parliament is at liberty to enact legislation that applies to federal departments, Crown corporations and so forth.

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

That is precisely the point!

[Warren Newman]

The key ruling on such matters is the 1975 Jones decision handed down around the time of the passage of Canada's Official Languages Act which specifically applied to federal institutions and the Government of Canada. Mindful of the residual power under the Constitution to enact laws for the peace, order and good government of Canada, Justice Laskin held the following:

No authority need be cited for the exclusive power of the Parliament of Canada to legislate in relation to the operation and administration of the institutions and agencies of the Parliament and Government of Canada. Those institutions and agencies are clearly beyond provincial reach.

This particular clause of the bill ultimately applies to federal departments and agencies. It creates the position of commissioner and other agencies responsible for ensuring the enforcement of the act's provisions, but these agencies come under federal jurisdiction. Admittedly, if there was an attempt made to have the regulations apply more broadly, problems and questions could arise. In my opinion, even the regulatory authority does not provide access to a broad range of measures likely to have a direct impact on the actions of provinces, municipalities or municipal agencies. We are not dealing with regulations arising from criminal law, for example. This act is not based on criminal law.

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

If the interpretation was such that this strategy applied to federal departments, then I would not have a problem with that. I think it is indeed time for some departments to embrace a sustainable development strategy. Rarely do federal departments have such a strategy in place and this is a major shortcoming.

However, clause 8 of the bill calls for the implementation of a national sustainable development strategy that includes “ targets with respect to each item listed in Column 2 of the schedule;”.

One of the items listed in Column 2 of the schedule is “urban land”, not “federal land”. Subclause (b) proposes an implementation strategy for meeting each target and penalties for non-compliance.

[Warren Newman]

There may be a passing reference to them, but neither the bill nor the regulations create any prohibitions or impose any penalties.

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

In your opinion, does urban land come under federal jurisdiction?

[Warren Newman]

No, it does not, but that does not mean that a federal act cannot contain a reference to urban land. The bill can refer to cooperation with municipalities or some other initiative to oversee spending power, for example. It is not unusual to mention items that do not fall under federal jurisdiction.

Having read the bill informally, I would say that it does not... Since this is not a government bill, you would have to ask the sponsor to explain the scope of the proposed legislation. As far as I can tell, this bill does not contain any provisions to regulate these areas. A commissioner will certainly report on whether or not the targets have been met, as the case may be, but no provision is made for direct penalties.

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

The bill does not set out specific penalties for non-compliance.

[Warren Newman]

That is correct.

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

That is your opinion.

[Warren Newman]

Yes, based on my initial reading of the bill.

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

And yet, the following is noted on page 7:

8(2)(b) the implementation strategy for meeting each target, which may include, but is not limited to,

(iii) penalties for non-compliance [...]

[Warren Newman]

A strategy cannot be used to create a criminal law provision. It is up to Parliament to draft a criminal law provision that imposes a penalty. Even then, the penalty might be along the lines of a prohibition against dealing with agencies or corporations that do not comply with the targets.

From what I can see, the bill does not provide for criminal law sanctions, such as prohibitions or penalties for non-compliance. That would alter the substance of the bill. In pith and substance, this bill applies to federal institutions.

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

Would you please repeat what you just said? In your opinion, this bill applies to federal institutions and does not go any further than that.

[Warren Newman]

Basically, yes. Of course, while I did read through the bill fairly carefully, it is not up to me to issue a legal opinion.

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

However, your initial assessment is that this bill applies only to federal institutions.

[Warren Newman]

In my opinion, by virtue of its pith and substance, this bill applies to federal institutions. Of course, there could be some spin-off effects that will require some adjustments in the way the act is applied.

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

What kind of spin-off effects are you talking about?

[Warren Newman]

I do not want to speculate because I have not looked at the implementation process as such. I still do not know the strategy that will be employed. I do not know if it will spill over or not into other jurisdictions.