Evidence of meeting #32 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 court.
A recording is available from Parliament.
Prof. William Amos
That's a really interesting question of interpretation, and I'm not sure I know the answer to that.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
My concern, for example, is that if the Government of Alberta passed legislation that allowed the taking of water from the Athabasca, for example, subclause 23(3) would indicate there's a presumption that this is not a defence to a clause 23 lawsuit. Do you think that's a reasonable interpretation?
Prof. William Amos
I don't imagine that the Federal Court would have jurisdiction over the interpretation of provincial acts. However, since clause 23 indicates that the judicial forum available is not simply the Federal Court but also the provincial superior courts, it would be my understanding that paragraph 23(3)(a) is worded broadly so as to give those provincial courts that jurisdiction.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Sure. Well, my concern, for example, is that the Province of Quebec might have legislation that authorizes a hydroelectric establishment, but that under this federal legislation the court would have to impose a presumption that the provincial act did not save the operator from section 23 civil action. Does that sound like a reasonable interpretation of this act?
Prof. William Amos
I'm not sure, because at the end of the day you can have an activity that's authorized through a variety of statutory and regulatory mechanisms. One statutory authorization is not going to give a free ticket; it's going to depend on what law is applicable.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
I agree with you that it's complex, and I'll take your answer that you're not sure.
Conservative
Conservative
The Chair Conservative James Bezan
We'll go to our five-minute round.
Starting us off will be Mr. Scarpaleggia.
Liberal
Francis Scarpaleggia Liberal Lac-Saint-Louis, QC
I'm intrigued by this discussion. I was wondering if you could tell me as succinctly as possibly, Mr. Amos.... It is difficult now for citizens and citizens groups to take court action. That's what we were saying. We're saying that this bill will make it easier.
Could you just tell me very quickly why it's difficult and why this bill will make it easier?
Prof. William Amos
That's a complex question, but I'll try to be as quick as possible.
Number one, it's going to make it much simpler to obtain standing before the courts. Often that's a threshold issue, as the courts will say that you simply don't have standing to bring this forward.
Second of all, it will increase the opportunity for them to engage in proceedings without the same concern, or with a lesser degree of concern, about the potential costs at the back end. There are options here. There are options provided for in the legislation that would reduce adverse cost awards or where litigants could seek reduction or elimination of potential adverse cost awards.
So there are all sorts of hurdles, and we could get into the issues of causation—
Liberal
Francis Scarpaleggia Liberal Lac-Saint-Louis, QC
No, that's clear.
Mr. Kneen, I'm really interested in how this bill would strengthen the environmental assessment process. You were talking about the Red mine. Is that what it's called? What is the proper name of the mine?
Communications Coordinator, MiningWatch Canada
The case is referenced as MiningWatch.
Liberal
Francis Scarpaleggia Liberal Lac-Saint-Louis, QC
Yes, I'm familiar with it. Could you tell me again how this bill, if it were passed into law, would change that situation? Then we can go on from there to talk about environmental assessment more broadly.
Communications Coordinator, MiningWatch Canada
The guarantee of access to information and public participation is what we missed, especially missed the public participation in that process. That was what we missed and what we ended up taking to court.
Liberal
Francis Scarpaleggia Liberal Lac-Saint-Louis, QC
Going now to environmental assessments in general, would passage of this bill mean that there would be no such thing as a screening, the minimal level of screening that is one kind of environmental assessment? In other words, would all screenings become similar to comprehensive reviews, with public participation? Is that what it means?
Communications Coordinator, MiningWatch Canada
I don't think so. That certainly wouldn't help anybody. What would be useful is a more consistent and coherent reporting and public notification system, and then the identification of the public participation that is supposed to take place.
The difficulty we're in right now is that, with the changes in the law, the pre-existing guarantees no longer function. We're looking to this legislation to essentially reinstate those as a baseline.
Liberal
Francis Scarpaleggia Liberal Lac-Saint-Louis, QC
Could you elaborate on that? We know now that the minister, through the federal budget legislation, has given himself the power to define the scope of projects.
Would this bill, if it had been in law then, have changed anything? Would it have constrained the government's power essentially to give itself this ability to define the scope of projects in such a way as to avoid environmental assessment?
Communications Coordinator, MiningWatch Canada
No. That determination does not prevent an environmental assessment; what it allows is a change in the project description so as to bypass the comprehensive study list, which is the guaranteed public participation mechanism. This wouldn't affect that determination, so the project description could still be changed by the minister.
What would remain, however, would be the guaranteed public participation, and that's essentially one of our key interests here. Whether or not the minister decides to simply look at one aspect of the project, it would still be subject to that public notification and participation.
Liberal
Francis Scarpaleggia Liberal Lac-Saint-Louis, QC
In terms of reviews and investigation, apparently there are no criteria for the minister to follow in deciding whether to perform a review. Do you think criteria should be specified?
Communications Coordinator, MiningWatch Canada
Yes. I think that would be useful.
Conservative