Thank you. I am going to speak in English today, since I don't speak French very well, as I've already demonstrated. However, if you speak slowly, I will try to answer questions in French.
I don't believe I've been before this committee for over one year or so. It's my pleasure to be back here on this particular bill. This is an important day for Canada, and a day that's long overdue, I would say.
You have my bio in front of you. Let me say briefly that I've practised and taught environmental law for 20 years in Canada, and for two years in the United States along the way. I have had the privilege of working with all of the environmental bills of rights in Canada and several of them in the U.S., so I have some experience on this, but no doubt I have a lot to learn.
Let me start with why we need this law and then move on a little to what I think one can anticipate the effects of this law will be.
Why do we need it? As Professor Boyd has said, the starting point for me is that Canada is blessed with a rich and diverse natural environment, perhaps more so than almost any other country on earth. Not only is it important ecologically, but it's a deep source of pride for Canadians and an important part of our identity. For example, a poll done a few years back showed that after the Charter of Rights and Freedoms, our connection to nature is the most prominent identity symbol for Canada--ahead of even hockey and poutine, shockingly enough.
Not only is it a source of importance to our identity, it's the fundamental basis for our health and the fundamental basis for our quality of life. As Bobby Kennedy Jr. says, the economy is a wholly-owned subsidiary of the environment, so it's hard to think of a more important and more fundamental right that we could be looking to protect.
As David Boyd said, Canada has not always done a great job in its stewardship of the environment. I won't repeat his statistics, except to say that you could go to many other sources and see that Canada's ranking among OECD countries on environmental performance has traditionally been near the bottom for years. That should be troubling environmentally, but also troubling economically.
If you look at the environmental performance index that Professor Boyd referred to, put out for the World Economic Forum at Davos each year, we ranked 46th. You'll see there a very strong connection between the environmental performance and the economic performance of the countries. Of the top 15 countries in environmental performance, nine of them rank in the top 15 in competitiveness as well. So this isn't just about our environment; it's ultimately about our long-term economic wealth as well.
In a larger sense, getting away from the periods and the i's and t's, what will this bill do for Canada? I think three main things.
One of them is that it will make a statement that a healthy environment is a core value, a fundamental value for Canadians. Second, it will empower individual Canadians to participate more in environmental decision-making. Thirdly, and perhaps most importantly, it will lead to increased government accountability and, with that, strengthened environmental protection. All of these are important.
Professor Boyd has gone over the fact that 89% of countries in the world have such an environmental right already. The very first environmental bill of rights that I'm aware of was passed by the State of Michigan in 1970. Canada's first environmental bill of rights came out of the Northwest Territories in 1988-89. Ontario, Quebec, and the Yukon have now followed suit. As he said, even before its current charter of rights, Quebec had a provision recognizing an environmental right. These provincial bills of course vary in their strength and their form. We can get into that in questions, if people want to talk about some of the specifics.
At the federal level, an environmental bill of rights has been either discussed or promised by a variety of Conservative and Liberal governments going back to 1991. I've counted at least five different commitments that have occurred since that date by the two parties, but it's yet to have happened, for a variety of reasons, so this is a very welcome day indeed.
What would this bill do? You have the bill before you, but obviously this is a new and weighty piece of legislation. It would do basically six things at a fairly high level.
Obviously, the first thing it would do is establish a right to a healthy environment. With that right, it would establish a public trust obligation on the government as the steward of the environment for the present generation and also for future generations. These are fairly standard provisions that one finds in environmental bills of rights around the world.
Second, it establishes a right to participate in environmental decision-making, particularly in regulatory and legislative decisions of the government. Again, such a right exists under certain statutes—CEPA and SARA, for example—but does not exist across the board under environmental land use and resource statutes generally. This would be an important expansion.
On access to information as a basic right, again, that exists, more or less, under ATIP already.
On the right to request review of federal policies, regulations, and laws, currently a similar power exists under the Commissioner of the Environment and Sustainable Development act, and I'll talk in a minute about what its effect has been. But again, this also exists under Ontario's Environmental Bill of Rights.
On the right to request an investigation, when citizens have information about a violation of environmental law, they can play a sort of crime stopper role--but an eco-crime stopper role--by providing that information to the authorities. You'll have a set of eyes and ears all around the country trying to pick up environmental violations.
On access to justice, there's no point in having a right if you don't have anything to do with that right: you need a remedy. This will create a right to bring a legal action either against the government for a violation of an environmental right or against a private party for infraction of an environmental statute when the government is not enforcing the law. Without such a remedy, the right of course would be hollow.
I should distinguish, by the way, that this right is not the same as a government prosecution. It couldn't lead to jail time or heavy fines. The main remedies are restoration and cleanup, basically to put people back where they started; the rule of punishment occurs under the criminal law power.
Of course, these kinds of provisions exist in almost all environmental rights at the national and provincial levels.
Last but not least is whistle-blower protection. For employees who are making authorities aware of environmental infractions or participating in environmental processes, there cannot be employer reprisals.
In crystal-ball gazing, what might we expect to be the effect of such a law? We can look to other jurisdictions and learn a little bit from what has happened there. Let me offer a few observations based on my experience.
The Ontario Environmental Bill of Rights is probably the closest analogy to what we see before us here, although it's not identical. Has it worked? One, there has been a very significant increase in public participation. Public engagement, notice, and comment around rule-making and regulations have gone up a lot. About 30,000 people a year visit, read, and comment on regulations and instruments posted under the Ontario Environmental Bill of Rights. So democratic engagement gets high marks.
On the power to request reviews, what we've seen in Ontario is that about 20 to 25 times a year a citizen requests a review or an improvement of environmental legislation. The parallel power federally, the commissioner of the environment, sees about 30 to 40 a year. In Ontario, about 13% of those requests lead to some action: some review or upgrading or improvement of the request.
I'll give you an example. The Oak Ridges Moraine Conservation Act passed by the Harris government in Ontario was originally initiated by a citizen request for review about protection of the Oak Ridges Moraine, as was the McGuinty government's overhaul of the Ontario parks act.
I filed one of these requests for the residents of Beckwith, which is out near Perth. They had a toxic substance called TCE leaching into their drinking water from an old abandoned tannery. If you've ever seen the movie A Civil Action, with John Travolta, they had the same thing happening there.
The problem was that Canada's standards for TCE hadn't been upgraded for almost two decades. Under U.S. standards, the level was three or four times higher than acceptable and the residents would have been eligible for things like bottled water so that they didn't have to bathe in this stuff or have their kids bathe in it. But because our standards were outdated, they didn't have that ability. This request led to those standards being upgraded and brought up to where scientists and modern nations say they should be and left the residents of Beckwith not having to drink and bathe in poisoned water.
So there are real effects from this stuff.
What about the requests for investigation? In Ontario, 36% of requests for investigation have led to investigations with some sort of enforcement actions arising out of them. As counsel, when I was practising in Ontario I filed a number of these on behalf of different clients. In almost every case, I would say, the government, even though they may not have taken the exact action my clients wanted, took what would have to be called reasonable action--action that would sort of stand up as reasonable enforcement action.
That included enforcement actions against steel companies in Hamilton for toxic pollution and chemical companies in Sarnia for emissions that were affecting the health of local residents. Again, those were initiated by the citizen process and likely would not have happened without that process. So there have been real improvements.
On legal actions—that will get everyone's attention--the track record is that they've been used very sparingly. The high-water mark is Quebec, which brought in probably the strongest environmental right in Canada in its charter, in 1996, I believe. There have been four actions in four years.
I will conclude.
Ontario has seen only two actions in 16 years, largely because it imposes a number of obstacles—probably unnecessary obstacles—in its statute. If you look to the United States and the equivalent provisions under all U.S. federal environmental statutes, for clean air and clean water particularly you see about 60 lawsuits a year. So if you extrapolate a 10:1 ratio, and recognize as well that in the U.S. they're twice as litigious as we are, a ballpark guess for what you might see under this bill is probably about three legal actions a year in Canada. But there will be far, far more participation through the other mechanisms. This is really a last resort.
I won't go into detail on some of the specific changes I would recommend, but let me at least give you the top lines and we can follow up in questions on them.
As Professor Boyd said, there is I believe perhaps a drafting oversight in the bill, in that the power for citizens to bring a civil enforcement action doesn't have any remedies associated with it. That could be corrected simply by incorporating the remedy section of the act into section 23. I would add a section allowing a court, as a remedy, to order compensation for environmental damages. Right now, if a polluter causes damages and isn't required to compensate the public for them, the public will be left to bear those damages, and that is simply not good economics or good environment.
I would put a maximum on the penalties under this law. If citizens are going to bring an action, it is not like the crown bringing a case. U.S. statutes cap penalties at $30,000 per offence. We're not talking about jail time or multi-million-dollar fines, and I would say that something like that would be appropriate here. The main goal here is restoration.
Finally, last but not least, I would probably even add some provisions to really ensure that litigation is used only as a last resort. One of the most important would be a requirement to give notice to the Attorney General 30 days in advance of bringing any type of enforcement action or environmental bill of rights action, so that the government has a chance to bring an enforcement action or to remedy the violation itself without having to resort to court action. The U.S. has this kind of advance notice requirement, and more than half of the notices get resolved without ever having to go to litigation.
I would hope for friendly amendments in each case.
Thank you very much.