We will now go to Mr. Warawa.
Evidence of meeting #21 for Environment and Sustainable Development in the 40th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was cema.
Evidence of meeting #21 for Environment and Sustainable Development in the 40th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was cema.
2:55 p.m.
Conservative
Mark Warawa Conservative Langley, BC
Thank you.
To begin, I have just a couple of comments. Thank you for being here.
You initially touched on carbon capture and storage, on the impacts of the direction in which Canada and the United States are heading, and on some of the transboundary water issues.
The two countries in the world that are proceeding with and investing heavily in that technology of carbon capture and storage are Canada, at a little over $3 billion, and the United States, at about $3.5 billion.
Also, with the clean energy dialogue that's ongoing with the new Obama administration--it's moving very quickly, preparing for Copenhagen in December but also on harmonizing an approach--Canada and the U.S. will be on a parallel path to meeting a number of environmental issues. I'm sure you're aware of it.
There was a question, I think, on what power this committee has. Our committee is on a fact-finding trip. We will debate, when we get back to Ottawa, what we've heard over the three days. The committee meets twice a week. The committee has a very busy agenda. We are scheduled to discuss the water issues and the oil sands in the fall. It may be the fall or it may be sooner; we'll see.
We hopefully will reach consensus. If we do reach consensus--there are diverse opinions around this table--then recommendations could be made. Those recommendations then would be forwarded on to the House of Commons, where it would be debated. Those recommendations could go to government for changes.
That's just in answer to your question.
I want to thank both of you for your presentations. They were thought-provoking. We'll see where we go from here.
Thank you.
3 p.m.
Liberal
The Vice-Chair Liberal Francis Scarpaleggia
Do any other members have questions? No? Then I have a couple of brief questions.
I was under the impression, from some of the testimony, that the framework was voluntary and not just for the companies that received their licences before 1977. Obviously I missed something.
So is it only voluntary for those who've been grandfathered, or...?
3 p.m.
Professor, Faculty of Law, University of Calgary, As an Individual
The framework is completely voluntary for everyone. Of course, that worries me greatly, because the provincial government is hanging, and so is the federal government hanging, so much on it. Those in-stream flows are only going to be protected if this voluntary arrangement stays in place. I think in the public interest it's better to have something better than voluntary.
The 1977 matter has to do with the Fisheries Act. That's when the section 35 provisions on the harmful alteration, disruption, or destruction of fish habitat were added to the act. The framework states that those provisions will not apply to pre-1977 water licences. That would be Syncrude's licence and one of Suncor's licences. That's when I argued that there is no reason in law for that exemption.
3 p.m.
Liberal
The Vice-Chair Liberal Francis Scarpaleggia
Right.
So that's an exemption that could be taken away, and probably that would be held up in court? Or you don't know; it's hard to say, I suppose.
3 p.m.
Professor, Faculty of Law, University of Calgary, As an Individual
I don't think it should be, because the Department of Fisheries and Oceans recently issued a policy stating that the HADD provisions do apply to pre-1977 structures and frameworks. By extension, then, they should apply to pre-1977 water licences as well.
3 p.m.
Liberal
The Vice-Chair Liberal Francis Scarpaleggia
So there's no need for legislation. The government has stated the policy.
3 p.m.
Professor, Faculty of Law, University of Calgary, As an Individual
It would be an amendment to the framework, in the phase two.
3 p.m.
Liberal
The Vice-Chair Liberal Francis Scarpaleggia
Okay.
In terms of interprovincial disputes, let's say one province's actions were depleting an aquifer and having an impact on another province, or even, let's say the oil sands were having a deleterious effect on watersheds in Saskatchewan. How could the federal government get involved in mediating a dispute like that? Would there first have to be some kind of framework legislation, or some kind of agreement arrived at beforehand, such as the Mackenzie River basin agreement? Does it go to Federal Court?
Just how does it get resolved?
3 p.m.
Executive Director, Canadian Institute of Resources Law, University of Calgary, As an Individual
It might not get resolved at all. The tendency in Canada is not to litigate, of course. There is a remarkably sparse history of interprovincial litigation--or, for that matter, federal-provincial litigation. That's partly because of the nature of our Constitution. Unlike the United States, we don't have a Supreme Court that has original jurisdiction over disputes between different levels of government. That's one of the reasons why we have never developed a history of litigation that would resolve some of these issues.
In the United States, for example, many of these water issues have been litigated for well over a century now. Some principles have evolved. In Canada we just don't have that history of litigation. There's the interprovincial cooperatives case, which didn't say very much. That was not a case of the federal government getting involved, although there was sort of a suggestion that maybe they should have been.
How would the federal government be involved? Of course it could be invited in. But that's not something the provinces typically do with respect to the federal government, I think.
One of the most useful suggestions that I have seen in terms of asserting a general federal role as opposed to dealing with this on an ad hoc basis was offered by the Pearse inquiry, which was almost 25 years ago now. It suggested that the federal government pass legislation that essentially would make it the default place to go if provinces just could not agree on an interprovincial water dispute. The system there was sort of a staged situation: you would have attempts to reach an agreement, and, ultimately, if they failed, arbitration.
I should say that arbitration, given the Canadian context, would probably never take place, just as the provision for dispute resolution, the ultimate hammer in the prairie provinces agreements, which is the Federal Court, has never been used. The very possibility of having that tends to mean that you'll push the parties to an arrangement that accounts for both interests as opposed to a possible result that no one would like from an arbitral tribunal or from the Federal Court.
3:05 p.m.
Liberal
The Vice-Chair Liberal Francis Scarpaleggia
One more question, and then I'll leave you be.
If we got to a situation where the river was very low, would the Alberta government have the power to start suspending or withdrawing water licences?
3:05 p.m.
Professor, Faculty of Law, University of Calgary, As an Individual
No. Under the Alberta Water Act, there is no right of the government to expropriate a licence. What they could do is declare an emergency, if there truly was an emergency. But that's a rather radical power, and the courts will not allow that kind of power, or at least not allow it to be declared for too long.
There are provisions in the Water Act, when human health is at risk, that allow the government to step in. But if the issues are just aquatic ecosystem issues--i.e., there are fish dying--then, under our Water Act, the government can step in for licences issued after 1999 if the effect on the aquatic ecosystem wasn't foreseeable when that licence was issued.
The Water Act is a unique act because it just continues on legislation that started in 1894, when there were no water issues. Although the Water Act has improved a lot of the situations, still, it's the water rights holders who are truly ruling here.
3:05 p.m.
Liberal
The Vice-Chair Liberal Francis Scarpaleggia
Thank you.
Thank you so much for your testimony. It was a great way to end our sessions.
Members, just for your information, the next meeting of the committee will be on May 26 at 9 a.m., in Ottawa, with the Commissioner of the Environment and Sustainable Development.
I'd like to thank you all for your participation, and we'll see you in Ottawa.
The meeting is adjourned.