Evidence of meeting #31 for Environment and Sustainable Development in the 40th Parliament, 3rd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was right.
A recording is available from Parliament.
Professor, Faculty of Law, University of Ottawa, Associate Director, Institute of the Environment, As an Individual
It's actually a fiscal process.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Okay. What about other fiscal approaches, like increasing resources toward environmental monitoring?
Professor, Faculty of Law, University of Ottawa, Associate Director, Institute of the Environment, As an Individual
Yes, increasing environmental monitoring and.... There are sort of two parts of the equation, right? As David Boyd said, you need to have effective standards and economic incentives and you need to enforce them. So you want to have both sides.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Would you have suggestions for us about how to improve other existing environmental legislation like CEPA or CEAA, to use the acronyms?
Professor, Faculty of Law, University of Ottawa, Associate Director, Institute of the Environment, As an Individual
How long do you have?
Conservative
Conservative
The Chair Conservative James Bezan
Thank you, Mr. Woodworth.
Time has expired, and because we don't have enough time to do another round, I think what we'll do is we'll just move into our final witness for today.
I want to thank both Professor Elgie and Professor Boyd for joining us this afternoon.
We'll suspend while we switch up to our next witness.
Conservative
The Chair Conservative James Bezan
We're back in session. We're now going to welcome as our witness Christian Simard, who is with us by video conference from Quebec City.
Bienvenue.
You have the floor.
Christian Simard Executive Director, Nature Québec
Good evening.
May I start?
Executive Director, Nature Québec
Thank you, Mr. Chair.
Nature Québec thanks the members of the Standing Committee on the Environment and Sustainable Development for inviting us very recently to comment on the nature and effect of Bill C-469 and to answer questions from parliamentarians.
Nature Québec believes that Bill C-429, an Act to establish a Canadian Environmental Bill of Rights, is an important and positive piece of legislation that is within the authority of the federal government.
In the Quebec legislation, there are similar provisions. The Quebec Act recognizes the right to environmental quality. Section 19.1 of Quebec's Environmental Quality Act provides that "[e]very person has a right to a healthy environment and to its protection, and to the protection of the living species inhabiting it". Section 19.2 then provides that "[a] judge of the Superior Court may grant an injunction to prohibit any act or operation which interferes or might interfere with the exercise of a right conferred by section 19.1." In addition, since 2005, section 46.1 of Quebec's Charter of Human Rights and Freedoms has provided that "[e]very person has a right to live in a healthful environment in which biodiversity is preserved, to the extent and according to the standards provided by law."
In concrete terms, including a right to environmental quality in Quebec's Charter of Human Rights and Freedoms opens the door to awards of "punitive damages", formerly called "exemplary damages", for any "unlawful and intentional" interference in that right. That section actually reads as follows: "Any unlawful interference with any right or freedom recognized by this Charter entitles the victim to obtain the cessation of such interference and compensation for the moral or material prejudice resulting therefrom. In case of unlawful and intentional interference, the tribunal may, in addition, condemn the person guilty of it to punitive damages."
Apart from the possibility of obtaining an injunction, the Quebec Act does not have as detailed and clear an enforcement mechanism as the one set out in Bill C-429. The bill is more complete, and its mechanisms are better balanced. In addition, recognition of the right to environmental quality islamite to Quebec, for instance by the numerous constraints in legislation regarding access to the records of public bodies and the protection of personal information, which dramatically limit its effect. In a way, there are so many exceptions that there is less transparency. In Quebec, the provisions of the Environmental Quality Act, the Charter of Human Rights and Freedoms or the Sustainable Development Act do not provide for public participation in setting broad public policy, and this also limits their effect. Nor are there any provisions to protect government employees who blow the whistle on their employer, as is the case in clause 25 of Bill C-429.
That being said, we are naturally not arguing, and we do not want Bill C-429 to replace the provinces' legislation in any way. It will be administered by the federal government, and that is fine.
In Bill C-429, there are enforcement mechanisms that are missing from the Quebec legislation, apart from injunctions, only. Those mechanisms are also, to our knowledge, missing from the legislation of most of the other provinces. I am referring in particular to the power of individuals to go to court when the government does not comply with its own laws. That kind of measure, to enable individuals to make sure that the government acts in accordance with those laws and makes sure they are enforced, is very important.
It would be worthwhile for the provinces to follow the model proposed in Bill C-429, in the federal sphere, a model that we would not hesitate to support, if that were done. A number of proposed measures simply do not exist in the legislation of Quebec and the other provinces. What is interesting is that Bill C-429 can be used as a reference point or benchmark for provincial legislators, and even better, does not decree national standards or standardizing legislation that would somewhat impinge on areas under provincial jurisdiction. It also would not seem to risk creating confusion or duplication.
These types of measures, although their objectives are often broad and expansive, are not consistent with the principle of subsidiarity, to do what it is possible to do at the best level, to act at the best level so it will be as effective as possible. So these types of measures are not consistent with the principle of subsidiarity and the effectiveness of environmental legislation. Federal legislation has been enacted in the past, for example on threatened species or protected areas, that contain these kinds of pitfalls, that have consequences opposite to the intended aim, particularly when, for example, it comes to creating protected marine areas. When a government acts unilaterally in areas under other governments' jurisdiction it is generally not effective, it is not the right way to proceed.
Fortunately, Bill C-429 does not repeat that mistake, it respects the division of powers and aboriginal rights. This bill is much more worthwhile, in that sense, and can be used as a model or inspiration, but does not impose anything on the provinces, which work within the areas under their jurisdiction.
We should note some other important measures. Bill C-429 provides that the security that may be required in the case of an injunction, for example, in an environmental protection action, may not exceed $1,000.
At Nature Québec, in 2005, in the case of an injunction to stop the construction of an oil pipeline in Oka National Park, in order to enforce the judgment we had obtained and have the construction stopped, we had to deposit $50,000 security under the Quebec Parks Act. Unfortunately, we did not have that money, and we could not enforce the injunction.
It should be noted that Quebec's Environmental Quality Act, which unfortunately did not apply in the case I referred to, provides that the security required may not exceed $500. The maximum of $1,000 proposed in Bill C-429 therefore seems to us to be entirely reasonable and entirely in order. We also welcome the provisions for counsel fees to be paid if there is no abuse of process. We should also point out that in Quebec, when the right to a healthful environment was incorporated in the Charter of Human Rights and Freedoms, the government refused to fund the Centre québécois du droit de l'environnement, which was the only legal organization that the public could use to exercise their right to a healthful environment. That component is essential, in that it is easy to grant rights on paper without anyone ever being able to exercise them, for lack of resources. Access to justice is still a problem in all situations.
On the other hand, Nature Québec is not afraid that if Bill C-429 is enacted there will be a surge of legal actions with the effect of clogging up the system. I know this is a fear among some parliamentarians, that the legal system might be choked, that this opens the floodgates to all sorts of potentially far-fetched actions.
The Quebec experience, after the enactment of the Sustainable Development Act, which in fact contains very broad principles, does not show that there have been abuses of process. We have no reason to think it would be different with Bill C-469. In fact, we will be providing the committee with information in that regard. The chair of the board of directors of Nature Québec, Michel Bélanger, has done a brief overview of legal actions used, or proceedings in the courts, relating to Quebec's sustainable development and environmental protection legislation and under Quebec's Charter of Human Rights and Freedoms. It seems there have been absolutely no problems in that regard, but we will provide you with that information.
In closing, we would like to point out, once again, the fundamental nature of the proposed Act. From a legal perspective, it is well drafted and is based on solid principles, and at the same time respects provincial powers. There can be no society or development, or even economy, if we do not ensure that resources are conserved and the ecosystems essential to life are preserved. The right to a healthy environment and balanced ecosystems must be recognized as a fundamental right that must not be subject to the vagaries of battle in politics and the media. Bill C-469 proposes a social contract, within the limits of federal powers, between citizens and the federal government, to ensure that there can be no loss of control in future, no evasion or abandonment of this fundamental right, without the public having a means of recourse. As in many countries, we have environmental legislation that may look good on paper, but unfortunately, if the inspectors and the will to enforce these laws do not exist, there is no real environmental protection. Bill C-469 provides balance and enables the public to make sure the government abides by the laws it enacts.
Nature Québec invites all parties to unite behind this legislation, which has all it takes to become an inspirational model in a world where cynicism and indifference all too often rule.
Executive Director, Nature Québec
I would like to add one thing, Mr. Chair. In the French version of the bill, the expression "principe de prudence" is used. Ordinarily, in French we talk about "principe de précaution". I don't know whether this is what is found in all legislation, but I think it's important to make sure that it is consistent with the term used in the French-speaking world.
Conservative
The Chair Conservative James Bezan
Okay.
We're going to go with our second round of questions. To kick us off, we have Ms. Murray.
You have five minutes.
Liberal
Joyce Murray Liberal Vancouver Quadra, BC
Thank you, Mr. Chair. I would like to thank the witnesses for being with us.
The goals and principles of this bill are important, and I think we all support the principles of justice and environmental protection.
I would like to know, and the member for Edmonton—Strathcona may have some ideas about this, whether the bill proposed might have an impact on other federal legislation. If so, what will that be?
With SARA, for example, how might this intersect if a citizen is not satisfied with the political decision on whether to list a species being proposed by COSEWIC? Is this the kind of place where a citizen might take action? If so, how might that overlap, or contradict, or make more complex the processes under SARA?
For me to have a practical understanding of this law, another example would be the Taseko Mines application. The panel, in its environmental assessment, made some determination of damage to the environment and to fish species, but it is the cabinet that decides, on the balance of economic, social, and environmental issues, whether to go ahead with that project. Would this law intersect with those processes, and if so, how?
Thank you.
Executive Director, Nature Québec
Excuse me, I misunderstood. Could the member who spoke identify herself?
Liberal
Executive Director, Nature Québec
Thank you for our question, Ms. Murray. The Bill provides for these things. If you check, the section is not a substitute for existing remedies under environmental legislation. It says just one thing. To improve that legislation, the bill provides that an individual will have the power to suggest potential changes to environmental policies and participating in making policy. It also provides that the Minister will have the power to respond to that request if it is not frivolous, and may also respond to the public. The body of legislation applies, the laws apply, this bill is not meant to replace environmental legislation. However, if the government systematically failed to enforce federal legislation, for example, it provides that an action could be brought.
However, it is not possible that just because an individual wants it, or because someone is not satisfied with a decision of a court under an environmental statute, they will be able to act like a court of appeal or the Supreme Court. That is not consistent with the spirit of the legislation. The bill of rights included in the bill allows for legal action. It also allows, in a fairly circumscribed way, for the public to suggest improvements to environmental legislation.
However, if certain existing laws are not enforced at all, there is an opportunity to go to court to compel the government to enforce its own laws. Why have laws if we aren't going to enforce them?
So that places some value on it, a fundamental right to environmental quality. It is a right that cannot just be put on ice, as circumstances change, or abandon or evade or enforce only in part. It is like a social contract among the public. There is recognition, in legislation, of the right to the environment, and the opportunity for individuals to have access to remedies if the federal government abandons its fiduciary role. If it abandons its role as protector of the environment, remedies are provided by legislation.
Conservative
Bloc
Bernard Bigras Bloc Rosemont—La Petite-Patrie, QC
Good afternoon, Mr. Simard. I am Bernard Bigras, member for Rosemont—La Petite-Patrie.
You gave us a big of the background for the incorporation of the right to an environment in Quebec legislation, and in particular you talked to us about sections 19.1 and 19.2 of Quebec's Environmental Quality Act. You also reminded us of section 46.1 of the Quebec Charter of Human Rights and Freedoms. So I would like to know what the real effect of recognizing a right to a healthy environment is in relation to other existing rights, in particular the rights and certain concessions that some companies might have in the mining or other industries.
Are there examples of decisions of a court where the right to the environment has actually been considered in relation to other laws? Are there judgments that have established that this right is real and may be enforced?
Executive Director, Nature Québec
There are judgments relating to environmental legislation. I'm not a lawyer, and Mr. Bélanger may be able to give you additional information. However, we know that municipalities' ability to take action to protect the environment, in particular against the destruction of wetlands to protect riparian and costal setbacks, is increasingly been recognized by the courts. The possibility of preserving natural woodlands or conservation parks in urban areas is now recognized as a right that may limit property rights.
The fact that someone owns a woodlot along a lake does not mean, for example, that they can cut down all the trees along the edge of a watercourse or lakes. The municipality can pass bylaws, and there is now provincial legislation that governs this in a case like that. Sometimes, it is in fact confirmed on the ground. There are a number of documents about this.
Bloc
Bernard Bigras Bloc Rosemont—La Petite-Patrie, QC
As well, you seem to be proud that this legislation reflects the division of powers, that's quite clear. It also seems that this bill talks about application to areas under the jurisdiction of the federal government.
We know that there is often shared jurisdiction when it comes to the environment. On that point, how do you envision this bill being applied?
I will have to reread the bill, but it seems to me that the word "exclusive" doesn't appear in this bill. It talks about federal responsibility, but in a case where there is shared jurisdiction, how do you envision this bill being applied?
Executive Director, Nature Québec
Clause 9(2) of Bill C-469 says:
(2) The Government of Canada has an obligation, within its jurisdiction, to protect the right of every resident of Canada to a healthy and ecologically balanced environment.
Clause 8, which refers to the scope of application, says:
8. The provisions of this Act apply to all decisions emanating from a federal source or related to federal land or a federal work or undertaking.
For environmental assessment processes, for example, there are already administrative agreements between Quebec and Ottawa. In the case of the Hydro-Québec dam on the Romaine River, there was a federal jurisdiction issue relating to the mouth of the river, and specifically to navigation. Generally, it was under the jurisdiction of Quebec, but a commissioner was appointed by Quebec.
In my opinion, it would be difficult to define it more specifically. The environment was never in issue in the British North America Act. However, it is also defined by agreements with the provinces. I do not anticipate there will be a lot of problem situations. Certainly if the federal government takes on a share of responsibility under a particular statute, a member of the public will be able to bring a legal action. I would remind you that it must relate to "decisions emanating from a federal source or related to federal land or a federal work or undertaking".
A federal source may be a regulatory body. Where it gets a bit complicated, though, is when we're dealing with regulatory bodies that wear two hats. There could be problems in cases where the role of a federal commissioner was challenged in a situation with a federal-provincial panel. For those cases, however, I would trust in the wisdom of the courts.