Environment Committee on Nov. 15th, 2010

[Linda Duncan, NDP, Edmonton Strathcona, AB]

I'm not disagreeing with the decision. I know the determination of the court. But is that not the reason the farmer went to court, that he had been excluded from the proceedings?

[Johan van't Hof]

No. The reason he went to court was to stop the project.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

A lot of the briefs raised the issue that we don't really need this federal law, because people have the opportunity at provincial levels. But is it not true that we also have a lot of federal laws on the books, and is it not true that federal law has paramountcy?

[Michael Broad]

And there's an opportunity under federal law for people to bring forth different opinions too.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Precisely. And isn't the purpose of this bill to ensure that those rights are available under all laws, certainly under the Canadian Environmental Protection Act? It's a very modern act, to the credit of the last few governments. They've bent over backwards to update and modernize that law.

But unlike Bill C-16, for which the government did an omnibus bill and amended a lot of statutes, they have not taken similar action in updating equal rights, for example, under the Arctic waters protection act, the Migratory Birds Convention Act, or the Fisheries Act. Is it not correct that the level of rights and opportunities is not the same under all federal environmental statutes?

[Michael Broad]

I thought just the contrary, that everybody had an opportunity to express their views on any piece of legislation that came about under federal law.

[The Chair, Conservative, James Bezan]

Thank you very much, Ms. Duncan. Your time has expired.

Mr. Warawa, can you wrap us up on the seven-minute round?

[Mark Warawa, Conservative, Langley, BC]

Thank you, Chair.

Thank you to the witnesses for being here.

What we're heard today is actually quite eye-opening and shocking. This is our third meeting of witnesses. During the first two meetings we heard primarily that Bill C-469 would be used as a big stick, a threat to avoid litigation. The witnesses thought there might not be an increase in actual court cases but that the threat of litigation would encourage government, business, or whoever to take action.

I'm hearing that Bill C-469 would create great uncertainty, and that the financing of projects would grind to a halt because of the threat not only that action would be taken but that the appeal process would never end. I'm hearing that it's not likely, because whatever the decision, if some resident of Canada didn't agree with it, they could initiate an action and have this big stick. So would anything ever happen, or would things grind to a halt? So your testimony today is really important.

At that first meeting we heard that some believe there should be a carbon tax in Canada. Canadians have said no to a carbon tax, but then we've heard that this could be the Trojan Horse that would make that possible. The blank cheque that one of you mentioned could be used by the courts as a way of imposing a carbon tax on all Canadians, all industry.

I have another concern about Hydro-Québec. I'm not going to go into detail on that, because I'm sure Mr. Blaney from Quebec would want to ask questions on that. But I'm from British Columbia, and hydroelectricity is very important in those two provinces. If a resident of Canada--and I'm not sure of the definition of “resident”--was living in Canada legally, they could initiate an action and it would give them the big stick to infringe on or maybe turn aside permits for operations of hydroelectric companies if they didn't like what was happening and in their opinion they deemed that there could be environmental harm.

The common thing I've heard is that there was great effort, years of consultation, to try to find a balance of sustainability in which everything would be considered--the environment, the economy, ecosystems--and to create a balance after consultation. After you achieve that and permits are issued, there still is an opportunity for appeal and Bill C-469 could shut everything down.

Is that kind of a fair analysis?

[Johan van't Hof]

Yes, exactly; that's precisely what it is.

We experienced a very seasoned regulator in the Alberta Energy and Utilities Board. We had three to four weeks of hearings, we had several dozen witnesses, we had several hundred pages of analysis and expert testimony, and the tests we had to meet were known. The tests at the NEB were known and we still got taken to the Supreme Court.

It's my understanding of this particular legislation that even though you meet those tests—and it cost us several million dollars to meet those tests—if somebody didn't like it, they would be able to say, “I think there's another impact that you haven't thought of”.

So the years and decades of regulatory certainty that had been developed.... I'll give you an example now. We have to move our centre line 20 feet, because we are in a road allowance. We have to go to the Alberta Utilities Commission to move it 20 feet and we have to invite comment from anybody within 800 metres—and we are doing that, because that is the test today, 800 metres.

It's highly unlikely, but it's possible that even though the Alberta Ministry of Transportation is telling me, “move it, because you're in our road allowance”, and it's only 20 feet, we could have our permit held up on appeal of that move under this thing.

[Mark Warawa, Conservative, Langley, BC]

To get a decision made that everybody in Canada agrees with would be rare. So through consultation, you would have decisions based on the best interest of the majority of Canadians and on the principles of sustainability. You have to both protect the environment and also provide a balance for jobs.

If you do this, which is what I think I'm hearing from you, that would be at risk. It would remove the principle of sustainability, and basically it's a threat of litigation—legislation by threat of litigation. Is that fair?

[Warren Everson]

I'll speak to that, and of course that does summarize our view.

One time many years ago I was in a parliamentary committee, and one of the members of Parliament spoke exactly to this issue of the unanimity of legislation. He called it—he was making an extreme point for the purpose of illustration—the Clifford Olson provision. He said what if only one person in the country didn't want to do something and it was Clifford Olson? He's still a resident of the nation. You could drop Mom Boucher or someone else in there for the purpose of it. The point he made, and I think it's one that always has to be made, is that members of Parliament are being asked to make those decisions.

If I may offer one other point here, in these hearings I would encourage the committee to hear from the Canadian Bar Association or some other organization about the situation that will confront a judge when a case comes forward. It seems to me it's just a common sense observation that it would be extremely difficult for a judge, given the resources available in the Federal Court, to handle an extremely sprawling environmental case, analyze all the motions, compel all the studies and examination, and come up with some kind of conclusion—even then still arriving at the point I raised in my brief, which is that the judges don't want and you don't want them to actually make the law.

[Mark Warawa, Conservative, Langley, BC]

Mr. Huffaker, you mentioned you believed the bill was fundamentally flawed and cannot be amended to become good policy. Do you all agree with that?

[Voices]

Yes.

[Johan van't Hof]

Yes.

[Mark Warawa, Conservative, Langley, BC]

Thank you.

[The Chair, Conservative, James Bezan]

Thank you, Mr. Warawa.

We'll go to our five-minute round, and I'll still be judicious on time.

Mr. Dosanjh, you can kick us off.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

Thank you.

I'm going to be very brief and then I'll share time with my colleague, Mr. Tonks. I'm a temporary member of this committee for today.

You raise some interesting points, particularly you, Mr. Broad. I'm going to ask you a question with respect to your second recommendation. I understand your first recommendation. It has merit, but I think the issue of citizen participation and the issue of certainty—those two issues—are colliding. But I'd rather focus on the second recommendation.

My cursory look at this section tells me that this simply reverses the onus for you, in an eventuality to prove that what happened wasn't beyond the foreseeable, reasonable consequences of your utilizing your rights under the legislation. It reverses the onus for you to actually prove that.

I don't say whether I agree or disagree with it; the question I have is this: can you see a situation in which you as the industry might know of certain consequences that might flow from your actions, within the given set of laws, that might exceed the foreseeable reasonable consequences of that legislation and what was intended under it? Could you possibly foresee that kind of situation?

And then, under those circumstances, would you consider that the industry under those circumstances, knowing what it knew, would have an obligation to cease and desist at that point?

[Michael Broad]

You know, we're being very simple here.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

I thought I was being simple.

[Michael Broad]

All we're saying is that if somebody were to bring a civil action against us, because we were following the law we could say we were following the law, that we were following the regulations.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

But this section simply reverses the onus for you, to prove that you were actually within the law; that you didn't exceed the foreseeable or reasonable consequences of the action. That's not a difficult concept. I'm just wondering whether you can foresee those kinds of circumstances in which you might have an obligation, knowing what you knew, to cease and desist and say, “uh-oh; we're going beyond what was intended.”

[Michael Broad]

Anne, maybe you might....

[The Chair, Conservative, James Bezan]

Ms. Anne Legars is a witness. Ms. Legars is director of policy and government affairs for the Shipping Federation of Canada.

Do you wish to reply to Mr. Dosanjh's question?

[Anne Legars, Director, Policy and Government Affairs, Shipping Federation of Canada]

I don't know whether I understood the question well, but If what you mean is that we can prove that we complied, we have no problem doing that. If it's a defence, we are fine with that. If it's not a defence to demonstrate that we complied, we have a problem. That's basically what our brief is about.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

This particular paragraph in fact says to you that it's “not a defence” that “the activity was authorized by an Act or a regulation or other statutory instrument, unless the defendant proves”—unless you prove—“that the significant environmental harm is or was the inevitable result of” doing a legal activity.

Isn't that a defence? What you're saying is that you don't have a defence, that it removes the defence. I'm suggesting to you it doesn't remove the defence; in fact, it reverses the onus for you to prove that you were within your rights.