Evidence of meeting #28 for Environment and Sustainable Development in the 39th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was provincial.
A recording is available from Parliament.
Senior General Counsel, Constitutional and Administrative Law Section, Department of Justice
Any time an institution is given a mandate...
Senior General Counsel, Constitutional and Administrative Law Section, Department of Justice
Any mandate must take into account the fact that we live in a federation made up of provinces and that municipalities fall under provincial jurisdiction. Even federal documents must sometimes refer to the country as a whole. Nevertheless, I do not think we can go beyond the scope of this act, because we do not have the authority to do that. The constitutionality of such a move could perhaps also be challenged, although I do not want to get into that. This issue is already being debated in the case of bills C-377 and C-288.
How far can the federal government go in terms of intervening in areas under provincial jurisdiction? I do not think this bill attempts to do that. Rather, it applies more to the workings of federal institutions. It is up to Parliament to enact legislation for the peace, order and good government of Canada and its federal institutions.
Conservative
The Chair Conservative Bob Mills
Mr. Bigras, your time is up. You can have a second round.
Mr. Cullen, please.
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
Thank you, Mr. Chair.
That was very interesting.
If I were to focus my questions, there would be a question of consequence and a question of focus. Let me start with the latter first.
In reading through this bill, I'm trying to understand the implications of what it would mean on the ground if this law were to exist today...or five years ago. What types of decisions would have been affected, and how? While I support this bill, my fear might be similar to Mr. Bigras' in terms of what we need to tighten up about this legislation to allow it the focus to give it consequence.
Let me be specific. I'll take subparagraph 8(2)(b)(iv) on implementation. This is similar to what Mr. Bigras just spent some time on. Ecosystem-based management--or EBM, as it is known in the industry--one of the foundations of the Great Bear Rainforest agreement in western Canada, is still being debated. It's still being contrived and trying to be understood by environmental groups, government, first nations, and logging interests, but there's no clear legal understanding of what it is, from my perspective.
What does it mean to put it into a piece of legislation if it is still a moving target in terms of regularly making decisions, provinces making decisions, and anybody involved being implicated under this bill? How can we allow for these uncertainties to be written into law?
Mr. Sadik, you can start off.
Senior Policy Advisor, Sustainability Specialist, David Suzuki Foundation
Paragraph 8(2)(b) lists a panoply of tools that would be available to the government to help meet the targets. Are you saying in essence that there is an absence of a clear definition of EBM, or are we unable at this point to define what the parameters or EBM are in the specific context of the Great Bear Rainforest agreement? I think EBM is an understood concept.
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
It's like sustainable development: there may be some definitions that are generally accepted, but the actual on-the-ground application is not. Therefore, if what we are doing is writing law and making the government available to a suit in court if in contravention of the law, I'm always wary of presenting law that is not defined. When we were working through Mr. Layton's bill there was a prescription to greenhouse gas emissions. We defined it to know exactly what it is, so if the government breaks the targets, the law, Canadians have a clear course for direct action.
I'm worried that in the motherhood statements of this bill--the general prescriptions for sustainable development enshrined into law--what dangers do we run in not having it prescriptive and defined? I'm worried that if it's too broad its application will be meaningless, which is certainly not the intention of Mr. Godfrey. In trying to cast such a wide net....
I want to get into a specific. If the tar sands were an undeveloped resource right now--just a known quantity, but we were unsure of its potential and full development--and Bill C-474 existed, how would we do it differently, or would we do it differently? Is there anything in here that would direct the hand of government in setting out the regulations for industry with respect to a project like that?
Senior Policy Advisor, Sustainability Specialist, David Suzuki Foundation
Well, this is a legislative framework for sound environmental governance. It stipulates very little--with the exception of establishing a framework--and this paragraph 8(2)(b) is not an exhaustive list. It lists, by way of example, a suite of tools the government can avail itself of. Some of the tools may not even be known yet. They may not even be conceived of yet, so to speak, to the extent that policies are invented. But that's the nature of environmental management. The environment is constantly changing, and we have to use adaptive management even in managing and protecting the environment.
Nathan Cullen NDP Skeena—Bulkley Valley, BC
Is there any danger in that? Take the example of greenhouse gases, where government says that they will regulate industry and they will set targets. Both of those terms, if left to broad definition, may give the public some assurance, though the government may choose regulations and targets that are virtually meaningless by being so lax and loose.
Senior Policy Advisor, Sustainability Specialist, David Suzuki Foundation
Here's the beauty of this act. This act simply says that in some instances the government will have to regulate in connection with targets. And regulation could mean economic instruments; it could mean a cap and trade system, or a price on pollution. I think a lot of us would agree that's probably a sensible proposition. But then the act also says that the environment commissioner--an arm's-length, independent, credible body in our system--will assess the sustainable development strategy--
Senior Policy Advisor, Sustainability Specialist, David Suzuki Foundation
--before it is tabled in the House. The environment commissioner will assess it and will therefore be able to comment, bringing that perspective that she or he has on the anticipated efficacy of this action. And that may go some way toward your concern.
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
It's interesting, and this might be something my Liberal colleagues may address when it comes to their round of questioning, because this is something that's met with great resistance from the Auditor General's office, in terms of looking into government plans and giving some comment as to where they're going.
I'm going to lose time here, and there is a question of consequence I would like to ask Mr. Toner. When we look back to the nineties, when government gave prescription on the deficit, when it gave direction to government administration to go out and clip such-and-such a percentage off of their total spending, it was effective in terms of achieving the end results. One could debate whether it was an effective government policy overall in certain instances.
How was that effectively done? What was the encouragement through the civil service that the results were proven, as opposed to--as you commented--so many reports from the Commissioner of the Environment suggesting that when we do it environmentally, the effects are found to be wanting?
Prof. Glen Toner
It's a bad comparison, in that it was crisis-driven. We were frightened--IMF threats of things--and it was extremely closely held from the centre. And basically the Minister of Finance and the President of the Treasury Board allocated the cuts to other ministers.
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
What if ministers and deputy ministers just didn't follow through? What happened?
Prof. Glen Toner
--including from the environment minister and deputy, who argued back that in fact because all of the cuts were supposed to be from pre-green-plan A-base funds.... There was one department that was able to make the argument that their ongoing operations were so intertwined with the green plan funds--which had been integrated into the department's activities over the previous four or five years--that they couldn't separate them out. The only department where that argument carried was Environment Canada, and it was--
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
But government-wide, it would seem to be that when the directive was given from the centre, people followed through with the instructions. We didn't get auditor reports coming back two or four years afterwards that said the government promised to cut spending and the government failed on its effort to cut spending. I don't remember reading any auditor reports like that. How were they able to do it?
Prof. Glen Toner
Prime ministerial and cabinet support, and the ministers were all onside and willing to do what they had to do in their own departments to ensure they met their reduction targets.
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
It's interesting that you mention crisis, because oftentimes when we have witnesses before us here, with respect to issues like climate change or toxins in the environment, they do speak in terms of crisis, that inevitability of the momentum of the thing.
Is this bill meant to compensate for the lack of power that Environment Canada generally has when trying to apply broad, sweeping government initiatives like sustainable development?
Prof. Glen Toner
I think it's trying to change the locus of authority to the cabinet, to the cabinet committee, and to the PCO secretariat, in terms of getting the whole government marching in the same direction, so you have--
