Environment Committee on Nov. 1st, 2010

[Theresa McClenaghan]

Yes. We do suggest that adding a specific requirement for a registry would be a good amendment to the bill. We said it could also be done by regulation, but we would far prefer to see it in the statute as a statutory provision.

It has been fundamental to the experience of the average Ontarian who has anything to do with the Ontario bill of rights and who does so by way of the registry. It gives the type of access that's very specific, helpful, and germane, but also unparalleled, compared to what happened before.

For citizens of Ontario, in terms of being able to go in through a portal, a library, or their own computer and see proposals that affect them.... It could be they could search by proposals in their community. They can search by proposals that have something to do with water. They can look for new laws that a variety of ministries are introducing, and then there are comment opportunities. Similarly, when there are specific instruments for a factory in their community and there will be a certain type of emission, for example, they can comment.

So it's quite an important provision, I think, for most people. As I said, apart from when you get into some of the others, the requests for investigation and review are other parts of our bill, too, but most people would have encountered the registry if they've encountered the bill. Yes, it is very fundamental to the success of the bill here, I would say.

I want to add that many federal tribunals provide very good registries. We really like the fact that they do that, we point clients to them, and we help people access them. What should happen, in our opinion, is there should be a registry, and then, for those places where there are already registries, they should provide a gateway or point to take people over to that other venue.

It's very difficult for people--the ordinary person--to maintain a watching brief across all kinds of different decision-makers, departments, boards, and tribunals federally. A registry in one place, where they could keep an eye out for the things they are interested in and that then would divert them into the specific decision-making process, would be very helpful.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Thank you.

I noted the testimony by Mr. O'Connor. I'd like to put the question out to all the witnesses, including Mr. O'Connor. Bill C-469 provides not only opportunities for the public to be engaged in existing law, treaties, conventions, policy, and practice, but also the opportunity to participate in any future legislation.

I just participated in the three-day meeting on the Arctic held by the Canadian Council on International Law. Coming out of that meeting, it's sounding to me like we are going to have a lot of new policy and practice, and possibly legislation, at least to do with the Arctic, and possibly the other oceans. Do the witnesses not think that it's important for the public, particularly those communities who are directly affected in the case of the Arctic, and certainly the Arctic communities, to have the right to participate in these critical decisions?

[Beatrice Olivastri]

Absolutely.

[John O'Connor]

Certainly I would agree with what you've just said, in the sense that as the new legislation comes into force, we, the Canadian Maritime Law Association, are very interested, for example, in the Arctic and in developments in the Arctic. But we have no objection to there being public participation in the legislation as it comes about.

I don't want to repeat myself, but I think our problem is simply one of priorities. It's one of where do we turn and how we can tell the international community what we're doing with international conventions while at the same time we're applying general legislation such as this, creating remedies to the marine environment.

[Beatrice Olivastri]

I just want to say that it is absolutely necessary for people to participate in work going forward and in new opportunities. I'd have to say that the current collection of opportunities is very fragmented. You can do the search and hunt them out, but as I said earlier, I would see this bill as providing coherence to an electronically wired collection of people in Canada.

I think the opportunity to engage people more fully up front in the positive consultation periods on the development of policy is really well served by this bill. I think the opportunity then to seek recourse is also well served. But I really want to focus on the fact that we have many avenues. Just dealing with something once it's gazetted is fine, but it's not really speaking to the imaginative, creative, and positive kinds of contributions people will make if they know in advance.

The Arctic is one of those areas where we need and should have all the best energy people have around the collection of issues we're going to have there. I think this bill would certainly support that.

[The Chair, Conservative, James Bezan]

Sorry, but your time has expired.

It goes by fast when you're having fun, I know.

Mr. Woodworth, you have the last seven minutes.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Thank you, Mr. Chair.

I want to give my thanks to all of the witnesses for attending.

In particular it's nice to see you again, Ms. McClenaghan. I'm sorry that we don't have more opportunity to chat.

In the interests of time, I'd like to address my questions to Professor Amos if I may, just to put a focus on things.

First of all, do I understand correctly that the Ontario Environmental Bill of Rights and the Yukon Environment Act both have a pre-litigation procedure whereby an interested party, before going to court, must request an investigation and the government is given an opportunity to resolve the issue at that stage? Are you aware of that?

[Prof. William Amos]

I'm aware of that. That's also the case for CEPA 1999. The reason these provisions haven't been used is that the individual who has a problem will say that the request for investigation was—

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

You'll find that what we have to do here, unfortunately, is ask you to answer the question, and if there's time, I'll let you add additional information. But right at the outset, at least, I don't have a lot of time.

My next question to you is this: do you see any benefits from allowing the possibility of resolution before judicial proceedings are instituted?

[Prof. William Amos]

There are benefits to it, but if it precludes the use of the stick at the end of the day, then no, it's not useful.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

So what do you think would be the benefits of allowing the possibility of a resolution before a matter goes to court?

[Prof. William Amos]

Settlement of a dispute and protection of the environment ultimately are going to be goals of this.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

What you've been pointing out is in fact that this opportunity for the government to step in and resolve issues before litigation has actually held back the numbers of litigation. Am I understanding that correctly?

[Prof. William Amos]

To the point of nullifying their utility.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

All right. So in fact the complaint is that those existing provisions don't really encourage or allow enough litigation, correct?

[Prof. William Amos]

It's not a question of encouraging litigation; it's a question of ensuring that the objectives of the statute are achieved. In this case, it's environmental protection.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Yes. So what I'm understanding is that these existing provisions--I think I heard you say--are discouraging people from moving forward with litigation. Did I not hear you correctly?

[Prof. William Amos]

I think “discouraging” might be a bit kind. It's rendering literally useless the provisions.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

So the idea with removing the opportunity for the government to resolve issues before court is in fact that more of these sorts of lawsuits will see the light of day, correct?

[Prof. William Amos]

I think it's a false question. I think that at the end of the day you're going to have settlement processes that occur prior to any litigation. The point is that you need to ensure that the potential for litigation actually affects the behaviour of the litigants.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

I don't regard it as a false question. In fact, it was raised in the paper that we were given by Professor Boyd. In fact, he felt that these things were obstacles, procedural obstacles, and by removing them there would be no procedural obstacle to litigation. I'd just suggest to you, sir, that in fact it's those kinds of opportunities for resolution that have resulted in a history of not so much litigation in Canada. Don't you agree?

[Prof. William Amos]

I would agree there is a non-litigious culture that has developed in Canada, primarily because of the difficulties associated with standing and the difficulties of actually bringing an action to court.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

I've heard you say two different things. I've heard you say that this bill won't increase litigation significantly, and then I've heard you say that Ecojustice might assist citizens to participate more effectively and that this bill opens more doors to access to justice for average citizens.

I heard another witness say that the Ontario legislation is vastly underutilized due to the high thresholds. I'm going to take all of that as being authentic evidence and the notion that more litigation won't be resulting from this bill as not quite so authentic.

But I have another issue I'd like to ask you about, and that is coming out of subclause 23(3) of the bill, which has to do with civil actions. I read subclause 23(3) as a presumption that authorization by another act will not be a defence to an action under clause 23. It's a rebuttable presumption, but am I reading that correctly?

[Prof. William Amos]

That's my understanding of it. The issue of statutory authorization as a defence is a very live issue that's being debated in the courts these days.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Correct. And I notice that, unlike subclause 23(1), which refers to “an Act of Parliament”, subclause 23(3) just refers to “an Act”. May I take from this that subclause 23(3) would apply equally to provincial acts as well as to federal acts since it doesn't specifically refer to acts of Parliament?