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.
4:20 p.m.
Conservative
4:20 p.m.
NDP
Linda Duncan NDP Edmonton Strathcona, AB
Thank you, Mr. Chair.
First of all, I want to thank both witnesses for taking the time to testify. I know you're both very busy working on exactly this kind of work and I know Canadians appreciate it.
You're of course being put on the spot because of my bill, and my committee members chose not to ask the questions of me, so I'll help you with the answers to some of them.
On the issue of whether or not private prosecution is affected by this bill, I'd be interested in your response to this. Certainly this bill would enable private prosecutions, because it allows people under any environmental law to request an investigation and also to access information. So while it does not do so directly, it does indirectly.
The Yukon bill does specifically accord the right to file a private prosecution. The Criminal Code already allows that. I had actually preferred that this be in the government's Environmental Enforcement Act and consistently across the laws, if we're being consistent. I want to thank Dr. Boyd for bringing to our attention the fact that the government's Environmental Enforcement Act is not yet proclaimed. So thank you for that.
On the whistle-blower protection, the question is whether or not this is necessary. The whistle-blower protection measures are under CEPA, but the purpose of the environmental bill of rights is to apply to all environmental statutes. It would extend those kinds of protections to officials under all those statutes. Perhaps you might want to comment later on whether that's worthwhile.
I wanted to thank you for your recommendations on amendments and just clarify those that are brought to my attention. There are drafting errors in the course of many drafts of the bill and your recommendations are very welcome.
I wanted to ask this of both of my witnesses. I mentioned in my presentation that among the purposes of this bill one of them is to actually provide the domestic federal mechanism to implement, in domestic law, many of the obligations and commitments made by Canada for access to information and for participation in environmental decision-making, for example, under the North American Agreement on Environmental Cooperation, under NAFTA, under the more recent agreements that have been signed, and under commitments made through the G-8 on biodiversity.
Would you comment on that? Do those international laws and commitments not become fully binding and enforceable--for example in our courts--unless they are implemented in domestic law?
4:25 p.m.
Adjunct Professor, Resource and Environmental Management, Simon Fraser University, As an Individual
I'll tackle that. I actually have several pages in my brief talking about all of the international declarations and resolutions that recognize the right to a healthy environment. When you combine those international resolutions and declarations with the state practice of 170 out of 192 UN nations now, the right to a healthy environment is very close to becoming a principle of customary international law or a general principle of international law, in which case it becomes binding on Canada regardless of whether we have domestic recognition of it.
In some ways, the Canadian environmental bill of rights that is being put forward represents a recognition of what is very close or may already be an international obligation to recognize this right.
4:25 p.m.
Professor, Faculty of Law, University of Ottawa, Associate Director, Institute of the Environment, As an Individual
David Boyd probably knows this issue better than anyone, so I won't add much except to say that there have been cases. For example, the Town of Hudson case took the precautionary principle, which is one of the principles referenced here and incorporated it as a customary principle into Canadian law. it was the first domestic recognition, and I think the second anywhere in the world, of that international environmental principle.
Over time, as David said, these principles get adopted in enough places around the world so that they do get incorporated into customary law. But none of that would be anywhere near as effective as this. Its only purpose is as an interpretive aid. When a court was interpreting a federal statute, they would use that as an aid to interpreting what was there. It wouldn't of course, as you know, create the right if it didn't exist. Having this bill is vastly more effective than waiting for courts to interpret provisions of bills that only touch on some of this.
4:25 p.m.
NDP
Linda Duncan NDP Edmonton Strathcona, AB
Thank you.
Dr. Boyd has recommended that it would be useful to add a provision that all Canadians have a duty to protect the environment. I'm trying to recall if that is in the Canadian Environmental Protection Act, but I think it might be in at least one of the provincial or territorial statutes. It was controversial to some extent.
I'd be interested in having either or both of you elaborate on that. Are you suggesting that the reason it would be useful to have that in here would be...? For example, in the case of the ducks killed in the Syncrude pond several years ago, as I understand it, there was an individual working there who wasn't necessarily responsible for monitoring and who reported that. Would that be one of the effects of having that provision in the environmental bill of rights?
4:30 p.m.
Adjunct Professor, Resource and Environmental Management, Simon Fraser University, As an Individual
No. The intention of recognizing that Canadians have a responsibility to protect the environment is actually not meant to be enforceable.
It's meant to be encouraging and hortatory, if you will. There are 80 national constitutions that include a citizen's duty to protect the environment. In not a single one of those 80 countries has there been any enforcement or attempt to try to make that legally binding.
As Professor Elgie was talking about earlier on, it's part of the symbolic nature of the law to say, “Look, this is an important Canadian value, and with rights must come responsibilities”.
4:30 p.m.
NDP
Linda Duncan NDP Edmonton Strathcona, AB
Professor Elgie, I know that you've moved from being a litigator--and a very effective litigator--to working more in the area of the interface between economics and environment. In the course of the work that you're doing with economists and so forth and in trying to move forward on development polices that actually incorporate environment, do you think this kind of bill would have an influence on that? What kind of influence do you think it might have?
4:30 p.m.
Professor, Faculty of Law, University of Ottawa, Associate Director, Institute of the Environment, As an Individual
It's a good question, and one that I won't pretend I've thought of in great depth, but as a lawyer, I'll give you an opinion anyway, of course.
4:30 p.m.
Professor, Faculty of Law, University of Ottawa, Associate Director, Institute of the Environment, As an Individual
The thing that comes to mind is this--and I think there are two steps. One is that I think, for the reasons I gave, that this bill is likely to lead to meaningful improvements in environmental outcomes. Then the question becomes whether improved environmental performance links with improved economic performance. This builds a little bit on the earlier question by Mr. Scarpaleggia as well.
I've given you the basic statistic that, according to the World Economic Forum, nine of the top 15 countries find themselves ranked highly for both environmental and competitiveness performance. To answer Mr. Scarpaleggia's question, Michael Porter has done an analysis correlating those two--the guy who does the global competitive analysis for the Davos forum, a business professor at Harvard--and he's found a very strong statistical correlation between the environmental performance outcomes and the competitiveness performance outcomes--which isn't to say it's a one-to-one. Obviously, good environmental performance is not the only variable that affects your economic performance, but it's among that short list of significant variables that's an indicator of strong economic outcomes.
Will this alone create stronger competiveness? No. But what it does is create an incentive for innovation, more productive use of natural capital. If you think of it, the economy of the future is going to reward countries that are energy efficient, low polluting, and use their natural capital wisely. We're already seeing that. If you look at where the growth is around the world, it's in things like clean energy, hybrids, electric cars, fuel-efficient vehicles, local food, organic food.
Those sectors and other kinds of green sectors are growing much faster than traditional sectors of the economy and have been for a decade. So in terms of where the economy of the future is going, Canada positions itself well by creating conditions that will encourage clean innovation and encourage effective, productive use of our natural capital. We should get the greatest--
4:30 p.m.
NDP
4:30 p.m.
Conservative
The Chair Conservative James Bezan
Thank you very much.
Moving right along, we'll hear from Mr. Woodworth.
October 27th, 2010 / 4:30 p.m.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Thank you very much, Mr. Chair.
My thanks to the witnesses for attending today.
I'd like to ask some questions of Mr. Elgie and take advantage of his legal background.
However, I am going to try to restrain my usual legal propensity for fulsome questions and would ask you to restrain your propensity for fulsome answers. We have such a little time, we have to be concise.
The first question is whether you are aware of what the usual standard of proof is in Canadian legal actions.
4:30 p.m.
Professor, Faculty of Law, University of Ottawa, Associate Director, Institute of the Environment, As an Individual
It depends on the action. If it were a civil action, it would be on a balance of probabilities; if it were a criminal action, it would be beyond a reasonable doubt.
4:30 p.m.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Thank you.
In civil actions, the balance of probabilities is the usual standard in most advanced democracies. Are you aware of that?
4:30 p.m.
Professor, Faculty of Law, University of Ottawa, Associate Director, Institute of the Environment, As an Individual
I'm aware only of common law countries, so certainly in common law countries, but I'm not aware of the others.
4:30 p.m.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Thank you.
Are you aware that this standard is not required in the clause 23 litigation proposed under the bill that we're studying today?
4:30 p.m.
Professor, Faculty of Law, University of Ottawa, Associate Director, Institute of the Environment, As an Individual
You're talking about paragraph 23(3)(b), I take it, right?
4:30 p.m.
Conservative
4:30 p.m.
Professor, Faculty of Law, University of Ottawa, Associate Director, Institute of the Environment, As an Individual
Okay. Well....
4:35 p.m.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
A prima facie case is all that's required, not a balance of probabilities case. Is that correct? I don't need you to explain it; I only need you to tell me if I'm reading it correctly.
4:35 p.m.
Professor, Faculty of Law, University of Ottawa, Associate Director, Institute of the Environment, As an Individual
I guess I would say no, but let me actually explain why. This is really an onus of proof, I guess, rather than a burden of proof, and this is fairly common in the kinds of public regulatory prosecution standards coming out of R. v. Sault Ste. Marie in Canada.
So in this case, there's an onus on a plaintiff to put forward enough evidence that a court could find on a balance of probabilities. So if a plaintiff doesn't meet that, doesn't get to the 51% standard--that's what prima facie means in this case--then the other side doesn't have to say anything and they won't win. Once the plaintiff meets that standard, in the absence of the defendant saying anything, they're going to lose.
4:35 p.m.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Have you ever heard that good lawyers will say it's virtually impossible to prove a negative?
4:35 p.m.
Professor, Faculty of Law, University of Ottawa, Associate Director, Institute of the Environment, As an Individual
It depends on what the negative is.
4:35 p.m.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Well, if I asked you to prove to me you've never been in Spain, isn't that an impossible burden of proof?