Environment Committee on Nov. 1st, 2010

[Jamie Kneen]

I believe so.

[The Chair, Conservative, James Bezan]

Thank you.

Your time has expired.

Monsieur Bigras.

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

Thank you very much, Mr. Chair.

The questions raised by my colleague Mr. Woodworth bothered me a lot, particularly in regard to the interpretation of subsection 23(1).

I am trying to come up with a typical case that could happen in Quebec. Let's say Hydro-Québec decides to build a dam in northern Quebec. They have to build a road so that trucks can get to the site, but, unfortunately, that has to be done right next to a fish spawning ground.

So, inevitably, the hydroelectric project, which would result in a reduction of greenhouse gas emissions, could lead to people filing lawsuits because the Fisheries Act, which protects fish habitat, has been contravened.

How do you think that a bill of this kind could help the lawsuit against Hydro-Québec, for example, which is trying to make sure that the fish habitat is protected?

Subclause 23(1) reads as follows:

23. (1) Every resident of Canada or entity may seek recourse in the superior courts of the relevant province to protect the environment by bringing a civil action against a person who has contravened, or is likely to contravene, an act of Parliament or a regulation made under an act of Parliament or other statutory instrument, if the contravention has resulted or will likely result in significant environmental harm.

The act of Parliament in question could very well be the Fisheries Act.

Do you think that Bill C-469 would make a lawsuit easier if people wanted to protect the fish habitat, as in the case of the hydroelectric project?

It's a valid question.

[William Amos]

It's a good question. I believe the answer is yes. It is possible that it would increase the ability of members of the public, or of any kind of group, to go before the courts to ask that measures be put in place to protect the environment.

You should also know that clause 23 on civil action is only one possibility in a wide range of possibilities. In that situation, the defendant could be Hydro-Québec or anyone else.

But under clause 16, there would also be the possibility of bringing an environmental protection action against the government. So there could also be an action against the federal government for failing to enforce the Fisheries Act.

So various scenarios could happen. The important point is that significant environmental harm must be shown. It could not be done for any reason.

It is the same situation as with the Environment Quality Act in Quebec. Subsection 19.1 gives Quebeckers the right to a healthy environment. They may be granted an injunction and, if they want, they may use that section to challenge measures taken by Hydro-Québec as well.

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

Has there been an increase in lawsuits under the Fisheries Act in recent years?

[William Amos]

No, not at all. But all this discussion leaves me a little afraid, and I come back to the point Mr. Warawa raised. History tells us that, despite the various provincial and territorial statements in favour of environmental legislation, there have not been many lawsuits. We are talking about less than ten cases in Ontario. In the Northwest Territories, there have been two cases.

So this is not a situation in which public policy and the legislation would be derailed by lawsuits. They are only one possibility. The object of this bill is not to encourage citizens and civil society groups to sue in court. Having read the questions that the government members asked Mr. Boyd and Mr. Elgie, my fear is that they are afraid that it will make Quebec and Canada into more litigious societies. In my opinion, that is not the case at all.

[The Chair, Conservative, James Bezan]

Your time is up.

Mr. Calkins, you have the floor.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Thank you, Mr. Chair.

I was so enthused and inspired by the line of questioning from Mr. Woodworth that I think I'll give my time to him. If there's any remaining, I would appreciate using it.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Thank you.

Although I'm going to go to a different line of inquiry this time, I will still ask my questions directed to Professor Amos. That is, regarding section 16 and the idea of the Government of Canada as trustee of the environment, and a review to determine if the Government of Canada has failed to fulfill its duties as trustee of the environment, would you consider that one of those duties would be to control or reduce greenhouse gases entering the environment from Canada?

[Prof. William Amos]

Yes.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

In the remedy section for that, I notice that if the court determines that the Government of Canada has failed in its duties as trustee, it can order the defendant--that is, the Government of Canada--to take specified preventative measures in relation to that.

I'm wondering if you know of any precedent or principle that would prevent the court from ordering the Government of Canada to control or reduce greenhouse gases by means of putting a price on carbon.

[Prof. William Amos]

I don't think to this date the courts have done so; however, in the litigation referred to previously, the Kyoto Protocol Implementation Act litigation, the principle of justiciability was raised. It would be an interesting question to see how the courts dealt with that in the context of interpreting this bill.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

I understand that this is a new bill, in Canada at least, so of course it hasn't been done before, but your agency or organization--correct me if I'm wrong--is pretty highly interested in the issue of controlling or reducing greenhouse gases. Isn't that correct?

[Prof. William Amos]

That would be part of our mission, yes.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

All right. So do you think that, had you the opportunity to go to the court and complain that the Government of Canada had not fulfilled its duty to reduce or control greenhouse gases, you might consider asking the court to require the Government of Canada to put a price on carbon in order to prevent greenhouse gases?

[Prof. William Amos]

I think it's speculative. And at the end of the day, we would probably prefer not to go court, and we would probably prefer to enter into a dialogue with the government as to what appropriate policies could be enacted to make sure that we didn't need to go to court.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

We've been doing that for years, right?

[Prof. William Amos]

That would be a matter of some interpretation.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

I guess what I'm getting at is there are some good things in this act, but one of the concerns I have is the fact that it seems to allow the possibility for a group like yours to go to court and complain, for example, that the Government of Canada is not dealing with greenhouse gases, and to ask the court to impose, as a preventative measure, or indeed in the words of paragraph (i) in subclause 19(1), “any other order that the court considers just”, to ask the court to come up with a solution around greenhouse gases and carbon taxes.

That's my concern. Or are you telling me that your group would never ask the court to do such a thing?

[Prof. William Amos]

No. What I would say is that this bill isn't about carbon taxes. That's transparent. However--

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

I never said it was.

[Prof. William Amos]

No, but I mean this is a line of questioning that is consistent with the previous meeting, which goes to this politically contentious issue of carbon taxes. What I would say is that I would agree that the enactment of this bill would reflect a legislative commitment, on the part of parliamentarians, to the worthiness of environmental issues for adjudication and the recognition that environmental protection concerns are deserving of judicial time and resources. So there's a recognition that--

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

And judicial resolution...?

[Prof. William Amos]

On occasion, but not necessarily. There--

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Not necessarily, but quite possibly.