Environment Committee on Oct. 27th, 2010

[The Chair (Mr. James Bezan (Selkirk—Interlake, CPC)), NDP, Linda Duncan]

We'll call this meeting to order. We have quorum.

We are starting a little bit late and we do have votes tonight, so we have to try to stay on schedule as much as possible.

As you know, we're at meeting number 31 of the Standing Committee on Environment and Sustainable Development. We're going to study Bill C-469, An Act to establish a Canadian Environmental Bill of Rights, pursuant to the order of reference that we received back on June 16. We're going to do this in three different mini-panels today.

The sponsor of the bill, Ms. Duncan, member of Parliament for Edmonton-Strathcona, will introduce the bill to committee.

Linda, the floor is yours.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Thank you, Mr. Chair. I will try to be succinct, and I know you will hold me to that.

I'm delighted to be here. It's a great privilege to have tabled this bill. It is a bill that many individuals and organizations across the country have been working on for decades, and that includes me.

I'm looking forward to hearing from all the witnesses that all of the parties have put forward. I think we're going to have a really good dialogue on the bill and I'm looking forward to it. We have two particularly outstanding witnesses following me, and I'm delighted that they're been available to testify.

Briefly, the purpose of the bill is to implement the right to a clean, healthy environment, an ecologically balanced environment for all Canadians, and it imposes the duty on the government to uphold those rights. Interestingly, this is a bill that we should have no problem whatsoever to find unanimous consent for, because all four parties that have been elected to our federal House have espoused support for these principles.

I could give one example. The 2008 Conservative Party of Canada policy declaration commits to a “belief that the quality of the environment is a vital part of our heritage to be protected by each generation for the next”. That, of course, is one of the principles that this bill is founded upon.

The whole purpose of this bill is to provide a legislative measure to implement the accountability measures that all four parties of the House have espoused and have said they support. The purpose of this bill is to give them the mechanism so that we can implement those principles.

Nowhere is that principle more important than in environmental protection. We have signed treaty after treaty and international agreement after international agreement committing to public participation and transparency in environmental decision-making. What this bill does is provide the legal framework to implement those commitments and duties.

This bill is grounded in a number of international principles that the Government of Canada has endorsed. One of those is the precautionary principle. A second is the principle of environmental justice, and that includes both the substantive and procedural rights that are included under the justice principles. It also endorses the polluter pays principle. Finally, the bill is based on the premise that it is the responsibility of the government to preserve and protect the environment in the collective interest of current and future generations of Canadians.

As has been pointed out several times--and I know we're going to have witnesses today speaking to this matter--more than 130 nations, as far as I've been recently updated, have enshrined the right to a clean, healthy, ecologically balanced environment either in their constitutions or in their national laws. For example, a number of nations that we are in the process of signing trade agreements with--or that we have signed with--have incorporated those rights. They include: Colombia, Panama, Cuba, Kuwait, Indonesia, Afghanistan, Mexico, Germany, Russia, Ukraine, United Arab Emirates, Sweden, Switzerland, and South Africa. The list goes on and on. Thus far, unfortunately, Canada is one of the countries that hasn't done that, even though it has happened at the provincial level.

A number of Canadian provincial and territorial governments have already taken action, and quite some time ago; I think it was as far back as 1988 that the Northwest Territories was the first off the plate. It enacted the right to a clean, healthy environment and imposed the duty on its government to uphold those rights, and included the bundle of rights that are included in this bill that I've tabled. Ontario followed suit with a separate environmental bill of rights. The Government of the Yukon has included that bundle of rights within its environmental statute, and Quebec has also enshrined those rights.

Past federal governments have enshrined some of the rights that are included in Bill C-469. For example, there is the right to seek an investigation of an environmental offence and, in some cases, to initiate legal proceedings, but for the most part that is only in the Canadian Environmental Protection Act. Despite some measures taken by the current federal government to provide consistency across environmental statutes--for example, through its enforcement bill tabled last year--it has not provided consistency in this arena and has not incorporated the same kinds of rights and opportunities in CEPA.

In the federal government, there is no comprehensive stand-alone law yet to incorporate these very principles that all four parties have espoused, despite the fact that there has been broad support by Canadians across the country.

What are the key purposes? As I've mentioned, the environmental bill of rights grants every resident of Canada the right to a healthy and ecologically balanced environment and, most importantly, imposes the obligation on the Government of Canada, within its jurisdiction, to protect those rights. The bill would also amend section 1 of the Canadian Bill of Rights to include the right to a healthy and ecologically balanced environment.

What new rights and duties, specifically, are created through this bill?

First is the protection of the public trust. Under existing law, some federal ministers are obligated to do a number of specific actions to protect the environment. For example, under CEPA, the federal Minister of Health has a mandatory duty to look into information about any health impacts associated with toxins that comes to her attention.

Generally speaking, these kinds of rights and duties are not imposed in other federal laws. For the purpose of consistency, because we always talk in our House about the need to be consistent and to respect provincial jurisdiction, it only makes sense that we follow consistently and prescribe these same duties in our federal law: the right to protect the public trust and the obligation of the government to protect that trust.

Second, Bill C-469 would ensure access to environmental information. We do, of course, have the Access to Information Act, but we've been having some problems with that act. Bill C-469 would compel the government to provide effective access to information in a reasonable, timely, and affordable manner.

All three of those categories are very important. Across the decades, Canadians have had problems in all three categories when accessing federal documents. We brought to your attention, as noted in my brief to the committee, the fact that just last year the Information Commissioner gave Environment Canada and Natural Resources Canada a grade of F on making environmental information available to the public. So clearly we need a strong regulatory measure to make sure the federal government responds in a timely fashion to these requests.

Third, the bill would provide a right to participate in environmental decision-making. That includes the right to participate in decision-making by the Government of Canada and also the right to appear before the courts. It would remove that extra barrier and cost for concerned members of the public, who actually have to go to court and prove standing before they bring this substantive matter before the courts. It would provide them the opportunity both to participate in environmental decision-making and to raise a serious matter before the courts, despite the fact that they lack a private or special interest in the matter. In other words, the whole point is to provide an opportunity for the public to step forward and represent the public interest.

By enacting this right and duty, Canada's commitments and obligations under numerous international laws and agreements would be enshrined in domestic law. By way of example, Canada has committed to extensive participation rights and access to information under the Rio Conventions, Agenda 21, the North American Agreement on Environmental Cooperation, and, more recently, the U.S.–Canada Clean Energy Dialogue. Consistent with this participatory right, the bill entitles any Canadian resident to apply to the Commissioner of the Environment and Sustainable Development for a review of law, policy, regulation, or statutory instrument.

Fourth, the bill provides for the right to compel the investigation of an environmental offence. Again, as I mentioned, this right and opportunity already exists under the Canadian Environmental Protection Act, as it exists under most provincial law. This bill will accord that right to all environmental statutes, whether they deal with toxins, fisheries, wildlife, migratory birds, climate change, or environmental assessment.

Fifth, the act extends the opportunity to the public for basic access to legal remedies. There are three categories of environmental remedy. One is an environmental protection action. Another is access to seek judicial review of a federal law. The third is civil action. I won't go into the details. I could answer questions about them during questions.

Sixth, the act would provide whistle-blower protection. Essentially, that means that federal employees who are scientists or technicians, or who have scientific or environmental information and who step forward to participate in decision-making, initiate an investigation, provide information, give evidence, or in good faith refuse to act, would be protected under this statute.

Finally, there is the examination of bills and regulations. Similar to the laws enacted by the provinces and territories, this bill would mandate the Auditor General, through the Commissioner of the Environment and Sustainable Development, to examine all proposed bills and regulations to ensure consistency with the purposes and intent of the Environmental Bill of Rights.

In closing, I wish to express my deep appreciation to all the people who helped me in drafting this bill. That help came from ordinary citizens. It came from communities across Canada. It came from legal experts. I am indebted to them for the extensive work they've done in this field, and we're going to hear from some of them as witnesses.

I believe that Canadians are deserving of a legal right to a healthy and ecologically balanced environment and the opportunities to pursue those laudable goals, and I think the government should be accountable for delivering those rights and opportunities. I'm open to questions.

[The Chair, Conservative, James Bezan]

Thank you. Because Ms. Duncan is a member of this committee, I believe that with private members' bills it's standard practice that the member introduce the bill and that the only questions we really would direct at her right now are for clarification. We have till about quarter to or so. We do want to get on to our other witnesses and panels and we started a bit late.

Is there any burning issue from committee members for clarification by Ms. Duncan? If not, we can just move on to our next panel.

Seeing none, we'll suspend to allow our next panel to get set up.

[The Chair, Conservative, James Bezan]

Continuing with our next panel of witnesses, we are welcoming to the table Dr. Stewart Elgie, who is a professor in the Faculty of Law at the University of Ottawa. He's also the associate director of the Institute of the Environment. Joining us by video conference all the way from Vancouver, B.C., is Dr. David Boyd, adjunct professor at the School of Resource and Environmental Management at Simon Fraser University.

I will ask that both witnesses keep their opening comments to 10 minutes or less, and then we can have some time for discussion from our committee members.

Dr. Boyd, could you kick us off, please?

[Dr. David Boyd, Adjunct Professor, Resource and Environmental Management, Simon Fraser University, As an Individual]

That would be a pleasure.

First of all, thank you for the invitation to appear before you today.

Why does Canada need an environmental bill of rights? I believe there are four compelling reasons.

The first is Canada' s poor environmental record.

This record has been demonstrated by studies from the Conference Board of Canada showing Canada ranking 15th out of 17 wealthy industrialized nations on a range of 15 environmental indicators. A study by my colleagues at Simon Fraser University shows us finishing 24th out of 25 wealthy OECD nations on a range of 28 environmental indicators. A study by Yale and Columbia Universities shows 45 countries ranking ahead of Canada. And of course, studies from the World Health Organization and the Canadian Medical Association show that thousands of Canadians are dying premature deaths each year because of exposure to air pollution and other environmental hazards.

As Prime Minister Harper put it so succinctly in his December 2006 year-end interview:

Canada's environmental performance is, by most measures, the worst in the developed world. We've got big problems.

The fact that we have major environmental problems means that we have to consider taking important steps forward, such as introducing an environmental bill of rights.

The environmental bill of rights is a concept that has many potential benefits, including: stimulating the passage and enactment of stronger environmental laws and policies; improving the enforcement of environmental laws and policies; and increasing citizen participation in the environmental decisions that have an impact on their daily lives. It's actually these potential benefits of recognizing the right to a healthy environment that have resulted in an incredible uptake and recognition of this right around the world.

Ms. Duncan referred to 130 countries where there is legal recognition. My research, which I've conducted over the past five years, shows that the number is actually 170 out of 192 UN member nations, nations that have legally recognized the right to a healthy environment, either in their constitutions and their environmental legislation, or through signing legally binding international agreements. That's 89% of the countries of the world, leaving only 22 laggards, of which Canada is one.

In light of that widespread uptake, I've done research looking specifically at the 100 countries where there is a constitutional right to live in a healthy environment. I'd like to share the results of some of that research with you, because I think it indicates the extent to which the potential advantages that I mentioned earlier are in fact being realized.

Close to 80% of the countries that I studied have improved their environmental laws since recognizing the right to a healthy environment. There has been a significant increase in enforcement in a majority of those countries. Perhaps most importantly, what we're seeing is cleaner air, improved access to clean water, and overall improvements in environmental performance. I can provide some statistics to back up those anecdotal references.

I looked at the ecological footprints of 150 nations--116 with constitutional environmental rights and responsibilities, 34 without--and globally the ecological footprint of nations that recognize environmental rights and responsibilities in their constitutions is significantly smaller. I also looked at performance indices, such as those done by the Conference Board of Canada and those comparing OECD nations, and in all cases there is a statistically significant difference, to the good side, in countries that have environmental provisions in their constitutions.

Third, in terms of the performance, what we've seen is that since 1980--and this is just looking at the wealthiest industrialized nations, the 17 countries that are studied by the Conference Board of Canada--the countries with environmental rights and responsibilities in their constitutions have decreased nitrogen oxide emissions 10 times faster than the countries without. They have reduced sulphur dioxide emissions by an average of 85%, versus 52% for those countries without. They've reduced greenhouse gas emissions eight times faster than those countries without.

So there is a powerful set of empirical facts demonstrating that legal recognition of environmental rights and responsibilities provides exactly the kinds of advantages that we're looking for in terms of having introduced those legal provisions.

The third thing I go into some detail on in my brief is the history of the right to a healthy environment in Canada, which dates back close to 40 years. The legal recognition of the right to a healthy environment has been proposed by both Liberal and Conservative governments in the past in Canada, but as of today, no federal legislation, regulation, policy, or program explicitly recognizes that Canadians enjoy this fundamental human right.

As Ms. Duncan alluded to, there are four provinces and territories that do have legislative recognition of the right to a healthy environment. There is one modest correction in that in 1978, Quebec was actually the first province, with their Environment Quality Act, to recognize the right to a healthy environment.

Canada is lagging behind the majority of nations in the world by failing to recognize the right to a healthy environment. That's why this bill, Bill C-469, is so important for us as we move forward and attempt to improve our environmental performance.

Ms. Duncan reviewed the main provisions of the bill, so I won't go through those in detail other than to say that the general effects that we're likely to see from the enactment and implementation of Bill C-469 are improvements to the health of Canadians, improvements to the health of Canada's environment, and improvements to the health of Canada's democracy.

You have my brief. I have a few specific recommendations for minor improvements to the bill, which include shifting the responsibility for responding to requests for reviews from the minister to the Commissioner of the Environment and Sustainable Development. That would simply make the mechanism more effective. Another recommendation is to add a provision to the bill recognizing that Canadians not only have the right to live in a healthy environment but also have a responsibility to protect the environment. The third one is adding some rules that would actually expedite legal procedures--for example, strict timelines, so that cases don't drag on for years. Another specific change would be to add specific legal remedies to the section on civil actions.

I've also provided some recommendations that are slightly outside the clause-by-clause parameters of Bill C-469, such as actually bringing into force the Environmental Enforcement Act, which was passed in 2009, so that we have stronger environmental penalties. That's a step forward. I think it's important to understand that Bill C-469 actually works hand in glove with the government's Environmental Enforcement Act by allowing citizens of Canada to contribute to the improved enforcement of our environmental laws.

As well, if Canada wants to improve its reputation internationally with respect to human rights and the environment, then we need to ratify the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters. It's also long overdue for Canada to ratify the American Convention on Human Rights and the associated San Salvador protocol, which recognizes the right to a healthy environment.

The last thing I would say is that my research, as I mentioned, looks at constitutions and constitutional environmental rights and responsibilities. An analogy can be drawn here with human rights legislation, which we had in Canada for many decades and which didn't result in an improvement in the protection of human rights in Canada. Also, I would note that ultimately we're going to require constitutional amendments so that we have a constitutional right to a healthy environment and constitutional obligations to protect that environment. That really represents the gold standard and, as we've seen from my research, it results in positive outcomes in terms of health, the environment, and democracy.

Thank you very much. I look forward to answering your questions.

[The Chair, Conservative, James Bezan]

Thank you very much, Professor.

Dr. Elgie, you have the floor.

[Prof. Stewart Elgie, Professor, Faculty of Law, University of Ottawa, Associate Director, Institute of the Environment, As an Individual]

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.

Thank you.

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.

[The Chair, Conservative, James Bezan]

Thank you, Professor.

We have about 40 minutes for questions and answers, so we'll kick off our first round.

Mr. Scarpaleggia, for seven minutes, please.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Thank you.

Thank you to the witnesses.

This is a fascinating topic, but also a very abstract issue for many of us who haven't dealt with this kind of legislation before. How would this tie in with the whole issue of private prosecution in Canada?

For example, I'm told that governments can stay private prosecutions. I'm not sure of all the nuances and details, but if an environmental group or a citizen wants to bring action against the government for not enforcing a law--for example, the Fisheries Act--Attorneys General have a right, I believe, to ignore this.

What would this bill do to this right to stay private prosecutions in Canada? I don't know if you have any insights on that. If you don't, we can go on to another question. That would be fine.

[Prof. Stewart Elgie]

That's a good question.

You could ask the author of the book on private prosecutions in Canada, who is seated to my right and who could probably answer better than I can, but I'll take the first cut at it.

First of all, the purpose of a prosecution is primarily to punish and deter. The purpose of an environmental bill of rights action is really to restore and clean up, so the two have different purposes.

You are right that in common law and in statute the crown has a right to intervene and stay any private prosecution. This bill, on its face, would not attempt to change that. You could add a clause doing that. I won't get into the policy arguments for and against that. There are good ones on both sides, I think, but the drafters have chosen not to include it.

But what this does, though, is provide a safety valve power. These suits, called citizen suits, usually get used in two circumstances. One is in offences that aren't serious enough to warrant the crown using up resources for a full criminal prosecution--the Syncrude duck kind of problem and those sorts of things--but which nonetheless are cumulatively very serious in terms of their environmental impact. It allows citizens who want to bring those actions forward to do so, but appropriately, I think, they should have relatively small penalties and allow for restoration and compensation.

The larger cases, the really serious environmental offences, should continue to be dealt with through proper prosecutions.

[Dr. David Boyd]

If I could, I will just add one thing to what Professor Elgie has said.

Another significant distinction between a private prosecution and the environmental protection actions that are available under this environmental bill of rights is that a private prosecution is always after the fact, after the environmental damage has been done, but the way Bill C-469 is drafted, it would actually allow environmental protection actions to be brought to prevent the environmental damage from occurring, which is of course in line with the objective of preventing damage.

Again, to return to Professor Elgie's point, it's much more efficient economically to prevent damage than it is to do cleanup and restoration.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

We have a whistle-blower protection act in Canada. How do the provisions in this bill, either explicit or implied, complement or conflict with the current whistle-blower legislation? I remember that when we were studying the whistle-blower act, some of the cases that we looked at involved Health Canada scientists speaking out against this or that, purportedly in the public interest.

Do we need the whistle-blower aspects of this bill or is the current federal whistle-blower legislation sufficient? It seems to me that one might be superfluous relative to another. I don't know. That's a question that came to mind when you mentioned whistle-blower protection.

[Prof. Stewart Elgie]

We're looking at each other across the country--

[The Chair, Conservative, James Bezan]

Dr. Boyd, do you want to answer that question?

[Dr. David Boyd]

I'm not that familiar with the federal whistle-blower legislation, so I'll pass the torch to Professor Elgie.

[Prof. Stewart Elgie]

Unfortunately, you have two environmental law experts here, and this usually falls under the labour law part of the curriculum. I know a little bit about whistle-blower legislation, but not enough to give you a detailed comparison of these two, except to say that I can tell you that Ontario's whistle-blower provision in their EBR has seen only one action in 16 years.

But like a human rights provision, I think its main value is not the cases that get brought, but the ones that never have to get brought because it exists. When a company talks to their labour lawyer and is told that they can't do this, that if they do they're going to be slapped with a legal provision, it's hard to tell statistically how many actions get prevented by that, but you can tell that it would be many of them.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

You mentioned, Dr. Boyd, that there are 170 countries with legally recognized environmental bills of rights. They're not necessarily constitutional rights, are they? They're just bills of rights. Those countries represent 90% of the globe.

I know that our environmental performance has not been stellar, but is it possible that the countries that are doing well economically and environmentally and have these bills of rights have no real cause and effect between having the bill of rights and having good environmental or economic performance? It could be that the country doesn't have a fossil fuels industry, already has a good environmental record, and passes an environmental bill of rights perhaps almost as a way of patting itself on the back. I don't know.

Have you been able to look at the causation rather than just the correlation?

[Dr. David Boyd]

No, I haven't, but there is a very strong pattern of correlation. My research confirms publications of the Organization for Economic Co-operation and Development. They conduct environmental performance reviews of national environmental performance every five years for OECD member nations. Repeatedly throughout those OECD environmental performance reviews are references to the significant impact the constitutional protection of environmental rights and responsibilities has, both in terms of stimulating stronger environmental laws and policies and also in terms of improved implementation and enforcement of environmental laws.

As well, the research I did looking at nitrogen oxide emissions and sulphur dioxide emissions shows that it's not just a correlation. It's a statistically significant correlation between the declines in those air pollutants and the timing of the recognition of environmental rights in those countries.

[The Chair, Conservative, James Bezan]

Thank you very much.

Your time has expired.

Mr. Bigras, you have the floor.

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

Thank you, Mr. Chair.

Mr. Scarpaleggia said earlier that we were in the dark when it comes to the right to a healthy environment. On that point, I am going to take the opportunity offered. I have the impression that the courts are also completely in the dark when it comes to the right of Canadian citizens to a healthy environment. I am trying to understand what the effect of this kind of bill would be in future. As the witnesses have said, some provinces have decided to incorporate this principle in the law. In Quebec, for example, it has been the law since 1978.

Mr. Boyd would probably have preferred a constitutional amendment. We know what that involves. As the constitutional experts say, making that kind of amendment often amounts to opening a Pandora's box. would it not have been preferable to amend the existing legislation, which have stood the test of time in the courts, and in particular in the Supreme Court? Would it not have been preferable to amend the Canadian Environmental Protection Act or other environmental legislation for which there have already been judgments by the Canadian courts, rather than creating a new bill of rights dealing with the environment?

I want to be clear: my goal is not to reject this bill, quite the opposite. I adopt the principle. However, I'm trying to see what would have been more effective, what would have made it able to withstand scrutiny in the courts. This principle is by no means clear, whether for parliamentarians or the courts at present.

[Dr. David Boyd]

I think what you have to consider when you're thinking in broad terms about the right to a healthy environment is that it's really like any other human right, whether it's the right to freedom of expression or the right to freedom of religion; it's a broad concept and it's actually easier to define in terms of its violation than define exactly what it entails.

So over time, what we've seen in the countries where there is legal recognition for the right to a healthy environment is that it acts as a stimulus to raising standards, to raising air quality standards, raising water quality standards, and raising protection for biological diversity in a way that happens in a systemic fashion. One of the problems we've had in Canada is that we have been upgrading our environmental laws in an ad hoc fashion, and that's why some of the advanced features of the Canadian Environmental Protection Act, for example, are not found in other Canadian environmental laws, like the National Parks Act or the Fisheries Act.

I think another thing that this act will do in terms of stimulus is that we already have some very progressive Supreme Court of Canada decisions recognizing in fact that there is a basic value that Canadians have, which is protection of the right to a healthy environment. The Supreme Court of Canada has stated that on two different occasions. But what has really been Canada's Achilles heel is not so much the legal framework; it has been the implementation and enforcement of the legal framework.

I recently did a quick calculation: if you add up all of the fines, penalties, convictions, and prosecutions under federal Canadian environmental law over the past three decades, you get less environmental enforcement than there is in a single year of enforcement by the federal Environmental Protection Agency in the United States. We haven't given enough resources, we haven't had strong enough penalties, and we haven't applied the political will to enforce the laws we have.

One of the most important things about Bill C-469 is that it facilitates the enforcement of Canadian environmental laws and, by so doing, increases respect for the laws that Parliament has enacted.

[Prof. Stewart Elgie]

The simple answer to your question is--

Excuse me. I'm hearing myself talk and we don't want to do that.

That will be possible, certainly.

You could do it by amending the Canadian Environmental Protection Act and the Species at Risk Act. But it seems to me that there are probably two reasons for not doing it that way.

One of them is that in a way that would almost hide the changes. I think that, much like a human rights act or something, there's a communication or a national pride value in having something called an environmental bill of rights. This is something that I would think we would actually want to kind of hold up proudly for Canadians rather than interspersing it through as subsection 112(13) in a variety of other acts.

Secondly, just from an efficiency viewpoint, you would have to amend a lot of acts. This bill will probably apply to, I would guess, something like 15 to 20 different federal statutes dealing with environment, land use, and resource management. You would essentially be grafting these exact provisions onto 15 or 20 different statutes, and it may actually be more efficient just to do the one. I do note that it does actually amend the Canadian bill of rights, but it only deals with one part--just the right.

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

Another option might have been an omnibus bill, that would have amended a number of acts. That being said, clause 3 of the bills says "This Act must be interpreted consistently with existing and emerging principles of environmental law". I see that it's talking about a principle that again seems to create legal uncertainty: the concept of environmental justice.

I don't know whether there is cassel on that principle, but, and I want to stress this point, it is defined in the bill as "the principle that there should be a just and consistent distribution of environmental benefits and burdens among Canadians...".

We are told that we must act in a way that is consistent with a principle other than polluter pays. The Supreme Court has already stated a legal opinion and ruled on the polluter-pay principle. The polluter-pay principle, on which there is a judgment of the Supreme Court, holds that the one that pollutes must pay. The environmental justice principle then says that for the environment, there must be a just and consistent distribution of the burden among Canadians. I don't see how those two principles can be compatible.

Am I to understand that if a company in the oil sands industry polluted the environment and was then responsible for an environmental burden, all Canadians, whether they be in Quebec or in Alberta or another province, should shoulder that burden in a just and consistent way? Is there not some inconsistency between the principles being presented to us?

[The Chair, Conservative, James Bezan]

We may only have time for one of you, actually.

[Prof. Stewart Elgie]

That's a very good question.

I think that part of any bill of rights or charter kind of document is that it contains principles that when you stretch them to their limit begin to collide with each other or overlap. So the Charter of Rights has freedom of speech and freedom of religion. I could be exercising my freedom of speech by criticizing religion. I could be exercising freedom of speech by criticizing equality. So you could ask the same question, right? There are principles that in an absolute way are separate, but when you stretch them to their limit, you can in fact find situations where they conflict.

What this is really getting at is something like this: let's say we were to bring in a carbon regulation in Canada. The idea would be that the burden is the cost, basically, of bringing in carbon regulation, and it should be shared with all regions and people across the country. It shouldn't be that one region or one particular sector has to bear the disproportionate share of the problem.

If I were arguing the case, I would argue that this doesn't apply to those who are actually engaged in polluting, that the burden applies to the public burden of bringing in legislation, but where a particular company or individual has been engaged in polluting behaviour, that the polluter pays trumps environmental justice.