Thank you very much.
I would echo the thanks for the opportunity to appear before the committee. I also very much appreciate the opportunity to appear by video conference.
We too, unfortunately, did not have an opportunity to prepare our remarks in advance. We will ensure that they are provided to the clerk so that a written copy will make its way to you in due course. Our remarks are prepared by me and by Richard Lindgren, a long-standing counsel with CELA. His contribution was especially valuable because he was one of the people directly involved in the creation of the Ontario Environmental Bill of Rights a decade and a half ago.
Let me offer a word about CELA. CELA is a federally incorporated not-for-profit corporation with a mandate to use law to advance environmental protection and advocate for environmental law reform. We're also funded as a legal aid specialty clinic on the topic of the environment. We have a particular interest in the rights of the public to participate in environmental decision-making, to obtain information about activities and decisions that affect their environment, and to ensure that this participation is available to all Canadians, no matter what their income and no matter how removed they may be from direct contact with those who make the decisions.
In our view, then, not only are the provisions of Bill C-469 important for environmental protection, but they also deal with matters of fundamental justice and equity in the provisions to better involve Canadians in the environmental decisions that affect them and provide statutory remedies.
I would note in passing that it's CELA's 40th anniversary this year. I've had occasion to be reviewing our archives and noted just the other week that 40 years ago CELA was calling, along with others in Canada, for an environmental bill of rights. Calls for an environmental bill of rights have surfaced in Parliament at least every decade since. We would submit that now it is time to proceed and that, furthermore, we now have the benefit of much experience with other EBR systems, such as that of Ontario, to help design a very good Canadian federal environmental bill of rights system.
I would echo the comments made earlier that we should have access to these kinds of rights regardless of where in Canada we happen to live.
Here are a couple of general comments. We strongly support Bill C-469 and we urge all parties to ensure its timely passage and implementation. We would still advocate that substantive environmental rights should be incorporated into the charter, but we support Bill C-469 because unless and until such amendments are made, it places long-overdue environmental rights and substantive procedural protection on a statutory basis. Even if we eventually were to obtain such charter amendments, in our view Bill C-469 would become an important adjunct to those constitutional rights.
As I mentioned, CELA has been advocating a bill of rights for the past 40 years, but in the early 1990s we were very involved in the drafting of Ontario's Environmental Bill of Rights. We've made extensive use of the legal tools under Ontario's law since then, and we think there are lessons learned from the Ontario law that will help with assessment of the federal proposed bill.
I have some specific comments. I'll just touch on them, and then perhaps there will be an opportunity for elaboration later, during questions and answers.
The first comment is that we support the current version of the proposed bill, but we think there are also opportunities to improve and strengthen the bill, should the committee see fit—in particular, having regard to Ontario's Environmental Bill of Rights experience to date.
First of all, clause 3, the interpretive section of the bill, says that the bill should be interpreted in accordance with various principles, such as the precautionary principle and so forth. We would say that these should not merely be interpretive aids, but should also be included in clause 6, which is the purpose of the legislation, and therefore should form part of the federal government's affirmative duties under the legislation. They should not just be interpretive aids, but also purpose statements.
We also note that in clause 10 there's a right to access environmental information. As others have noted, there are some other statutes that provide those types of access, although it's patchwork in terms of both rights and practice. We think this is an important addition here, but we also think it should be clarified that these rights would be additional to other existing broad federal access-to-information provisions, not replacements for them.
Furthermore, to echo the comments made by Mr. Kneen and others, the provisions under this bill would have to provide for a very timely access, because if the purpose in part is to allow the public to comment on decisions that affect them, then they need this information in a very timely way. We had some litigation in Ontario around that very point, with the commissioner for information provision here in Ontario saying that it's inappropriate to hold up public access to environmental decisions under the FOI statute when there's a consultation happening under the EBR.
We also support the standing provisions in clause 11. We would make a technical note that this should be broadened because it's generally the courts who make standing decisions. So we should specify that the federal government would not deny, oppose, or otherwise contest the standing of residents interested in environmental protection.
We also like the positive duty created in clause 12 to ensure meaningful public participation. We would strongly submit that this has been in practice one of the most important aspects of Ontario's EBR, and we strongly encourage similar provisions at the federal level. It's a major discrepancy right now that citizens in this province in particular--Ontario--can access postings of decisions, policies, and laws and make comments on them before the decisions are made when it's much less certain whether they have that opportunity federally.
We think it might be useful to include specific sections as to how the participation would be undertaken; for instance, by way of maintenance of electronic registries, mandatory public notice, and minimum comment periods, either in the statute itself or in regulations that should be provided. Let me say that the provision of a registry in Ontario has been a very important piece of the success of the EBR in Ontario, in that although the various provisions may well be subject to other notice opportunities, at least there's one place that Ontario residents can access to see a variety of instrument proposals or a variety of ministries' policy proposals and see which ones they're interested in commenting on.
In terms of the right to seek a review in clause 13, we note that it should be broader, to be consistent with the purposes section of the act. It is somewhat narrower than the purposes section of the act.
We also very much support the public right to request investigations, but we would note that one of the experiences in Ontario is that the official may confirm that an offence has been committed and then isn't actually obligated to undertake any action to address it. This is something that should be done in the federal bill, and we also think it should be done in the Ontario bill, for that matter: that there would be a positive duty to institute appropriate legal action in the case of a finding that an offence has actually been committed.
Similarly, we are very pleased to see the proposal in clause 16 establishing a public right to seek judicial review. We think it would be an extremely important mechanism, particularly in light of the remedy specified in the clause. But we would echo the point others have made, which is that judicial review is only used by our clients, environmental groups, and citizens' or ratepayer groups as a last resort. Normally, people pursue all the non-litigious methods they can, and only when they are not achieving any success and it remains an important matter do they proceed to judicial review action.
We also think that the limited undertaking as to damages and special cost rules are quite important. The fiscal barriers are otherwise very important. As I noted, we see this statute as an important access-to-justice statute that would take away access differences, such as how much money you have to spend on litigation.
The civil right in clause 23 would be an important additional right. We, too, do not anticipate that clause 23 would result in a floodgate of frivolous or vexatious civil actions, because of the cost, complexity, and uncertainty associated with environmental litigation.
Finally, we also support the proposed amendment to the Canadian Bill of Rights. As we said, we would like to see substantive environmental rights included in the charter, but in the meantime, given the difficulty and complexity of achieving a charter amendment, the Canadian Bill of Rights amendment should be undertaken as an interim measure and should remain in place.
Finally, we would echo that we strongly support enactment of the Canadian Environmental Bill of Rights. We think it would help ensure access to environmental justice in Canada. We would submit that the committee should recommend its passage in an expeditious manner, either in its present form or in accordance with the recommendations for change that we and others have made.
Again, we thank you for the opportunity to provide these comments and we look forward to further discussion this afternoon.