Environment Committee on Nov. 15th, 2010

[Shawn Denstedt]

Maybe I can help you a little bit. Certainly a number of other countries have environmental bills of rights. What I can't help you with, though, are the various safeguards and parameters built into that legislation or the regulatory processes those countries go through. Because if the regulatory process is such that you can proceed through it, in many cases and in many countries in 12 to 18 months, which is about half the time it takes in Canada, it could accommodate action later on. But again, I'm not sure of the parameters.

What I do know is that in the UN declaration of principles it is much more a balance of the economic aspects of a healthy environment. It definitely intertwines those two objectives, and that's what seems to be lacking here.

[Colin Carrie, Conservative, Oshawa, ON]

Thank you very much.

[The Chair, Conservative, James Bezan]

Thank you.

Before we start our third round, I want to get a clarification from Mr. Broad.

When you were answering a question from Monsieur Ouellet, you were talking about the amendments you're proposing in your brief, but then it sounded like you're almost saying that the bill in its present form would be best set aside. I simply wanted to get a clarification from you on whether you'd prefer it if the bill were set aside, or if it's the amendments that you want to see go through.

[Michael Broad]

I'd prefer it to be set aside, but if it has to go through, those are the amendments we would propose.

[The Chair, Conservative, James Bezan]

Okay. Thank you for that clarification.

We're going to go with our third round of five minutes per party.

Mr. Scarpaleggia, you're the first one.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Thank you, Mr. Chairman.

First of all, I'd like to refer to a point raised by Mr. Blaney. And that is the matter of Hydro-Quebec finding itself subject to a federal law. Currently both Hydro-Quebec and BC Hydro and Ontario Power Generation are subject to the federal Fisheries Act. That means that federal legislation already applies in all of the provinces in the area of natural resources.

I would like to talk, rather, about this fear we all have of this bill, should it be passed, giving rise to frivolous legal actions. Since we are starting to think about amendments, I'd like to know whether it would be possible to amend this bill so as to prevent such frivolous lawsuits. Since I am not a lawyer, I don't know how we would go about doing that. And so I am asking you.

Moreover, you say that the industry does not like being exposed to the possibility of multiple litigation and that this increases the risk from the point of view of business. You know your market and you know what you are talking about. I respect your opinion. Regarding the oil sands, many migratory birds have gotten caught in the tailings ponds. This situation could give rise to endless legal action. This will not prevent the oil industry from creating tailings ponds. So the risk of being sued will always be there. Certain environmental problems are recurrent and expose the oil industry or other industries to potential and endless litigation. That has to be taken into account. I don't know if you'd like to comment on this.

[Warren Everson]

I'll take the plunge.

It seems that in every parliamentary committee hearing somebody, somewhere, has to say “If it's not broken, don't try to fix it.” So it falls to me to say that here.

It's not clear to us. Your colleague compared this legislation to the charter. What the charter did was establish an individual right in excess of the collective power of the state. We don't see that as a useful approach to this legislation.

You asked if the legislation could be altered to take away the danger of continuous litigation. I'm almost tempted to ask Ms. Duncan to answer the question. The bill is set up to allow private parties to bring litigation, even if state agencies have made themselves content with a project or a situation. As such, we consider that the danger of frivolity or inappropriate use of the act is considerable. And it's not all targeted at business; an individual could run to a federal statute to set aside a provincial land decision. Land planning legislation could be trumped by a person accessing the federal legislation.

I don't believe there's a compelling enough reason to justify this kind of legislative adventure.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

I don't know if you are in a position to answer me. How can a federal bill — we aren't talking about the Canadian Constitution, nor of the Charter of Rights or the Fisheries Act — lead to interference in fields that are clearly under provincial jurisdiction? I have a lot of trouble understanding how this aspect of the bill would not be amended by the courts. I don't know if you can enlighten me on this.

You are no doubt aware that even if there is a democratic process surrounding the adoption of bills or regulations, a lot of citizens are frustrated by the fact that even if there are regulations, there are exceptions that crop up. For instance, this morning, we learned that a tailings pond in Alberta, even though the Alberta Energy Board gave its approval, is leaking and contaminating a stream and some wetlands. It is the frustration over such incidents that gave rise to this bill, in my opinion.

Since I am out of time, I will yield the floor.

[The Chair, Conservative, James Bezan]

Your time is up.

Does anybody want to respond? I'm going to give you only 15 seconds.

Mr. van't Hof.

[Johan van't Hof]

In the United States, quite often if somebody's going to bring an action they have to put up security for the costs they are inflicting, and that's in the millions, as it should be. Otherwise litigation is just intended to litigate you into the ground, and quite often the security is.... It's only real actions that happen.

[The Chair, Conservative, James Bezan]

Thank you very much.

Mr. Bigras, you have the floor for five minutes.

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

Thank you, Mr. Chairman.

If the bill is here in committee, it is because a majority of parliamentarians supported its principle. Not just on this side of the table, but also on the other side. This means that in principle, parliamentarians unanimously want to see the right to a sound environment recognized. That is reality. I think that the majority of MPs want to work on the bill before us. I agree with Mr. Scarpaleggia: we do want to prevent frivolous legal action.

There are two problematic elements in the bill. Firstly, there is the whole issue of simply alleging environmental harm. Secondly, there is the possibility of breaching a law. I think that that is what we have to work on in this bill.

I'd like to get back to the issue of guidelines. I think that the legal opinion submitted by the Canadian Association of Petroleum Producers is quite interesting. For instance, on page 5, they tell us that “Unlike comparable provisions in the CEPA and the Ontario Environmental Bill of Rights, 1993, a person does not need to apply for an investigation before bringing an environmental protection action or civil action under Bill C-469”.

And so I'd like to get back to my original questions. Can't we bring in guidelines so as to avoid legal actions that would have unfavourable economic consequences as well as unacceptable social repercussions? For instance, isn't there an investigation procedure that we could include before people could institute legal action?

Some people may ask for the bill to be tossed into the dustbin, but the fact is that parliamentarians want to work with it. Are there constructive amendments that could limit this civil action access, so as to ensure that what a majority of parliamentarians want will be expressed in an upcoming piece of federal legislation?

[The Chair, Conservative, James Bezan]

Mr. Huffaker.

[Tom Huffaker]

I'm happy to start.

Obviously the governing political bodies in Canada, represented in part by this group here, will make decisions on whether this becomes law or some part of this becomes law. It's our place here not to try to intervene in that role but to express our opinions on what the consequences have been. I think this group has been fairly clear--most of us--that we don't believe this particular version is amendable into something that, in our view, would be healthy for the Canadian economy or helpful to the Canadian environment. We've all said that we believe in environmental protection, that Canada has very, very high standards, but a law that mostly expands environmental rights by expanding who has standing to bring actions is perhaps not the right answer to the environmental needs of the country. We continue to be of the view that we don't see how it can be amended into being an appropriate piece of legislation, for our part.

[The Chair, Conservative, James Bezan]

Mr. van't Hof.

[Johan van't Hof]

I can just give you the examples that we had. The same group has litigated us eight times--three times after the Supreme Court denied leave to hear it. We've been awarded costs, which approximate 1% of our costs, by the court. We've paid millions of dollars. We've been awarded about $40,000 of costs. They've not been ordered to pay it. Three of those court cases are now after the Supreme Court has denied it, and the courts keep denying it on the principle of res judicata.

The simple fact is that the courts are cluttered with people who want to stop projects on the basis of litigating these things into the ground. That is the deep abiding concern I continue to have with this. I don't see anything that doesn't allow people who have legitimate standing. If people have legitimate standing, the existing rules allow them to get in, and it obligates people like me to notify them in writing, with registered mail, so that they have an opportunity to do exactly that. This gives people 4,000 kilometres away the ability to say “I disagree with the decision in Newfoundland”. I just think that's inherently wrong.

[The Chair, Conservative, James Bezan]

Thank you, your time is up.

Ms. Duncan.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Thank you, Mr. Chair.

We've heard a lot of testimony here today about the need to balance and that the representatives for industry in Canada strongly believe in the need to balance. I put before you that this is exactly what this bill is setting out to do, to begin to redress the imbalance that's already there. For example, we have the NAFTA agreement. We have a trade agreement with Colombia. We have a trade agreement with Panama. We have a trade agreement with Chile. The government has a process of negotiating a trade agreement with the European Union. Since the negotiation and signing of the NAFTA agreement, the side agreements on environment have been seriously watered down, to the extent where there are practically no environmental rights whatsoever. In these trade agreements industry has lots of enforceable, litigatable rights: just claim compensation if the government makes a decision that, for environmental reasons, it can't proceed with the project in any of the three countries. Yet in the environmental side agreement, those rights aren't enforceable.

I hear a lot about the need to redress the imbalance. We now have the MPMO in the government because industry feels the CEAA process is not considering enough the needs of industry to streamline. We have the new Budget Implementation Act of the government, saying they intend to streamline all the regulatory processes to enable northern development.

I put this to you. If you truly believe in the balancing, why are you so against a bill that by and large has nothing to do with litigation but for the most part would provide the rights and opportunities to the public, who feel very strongly that they have not had an equal voice in decision-making, that they have not been given standing in a lot of federal reviews?

Yes, indeed, there are a lot of opportunities at the provincial level. I come from a province that I think has one of the best energy boards and review processes. Unfortunately, for transmission lines, now the government, in their wisdom, have decided they will not allow public hearings for a good number of those hearings, so we're regressing. Previous to that, we had a very good review process.

The question I would put to you is why are you so opposed to begin to accord some of those rights when in fact the Department of the Environment Act, which gives the mandate to the minister, makes absolutely no mention of a duty to balance? Is it not true that this balance should occur in cabinet, not within the environment ministries or the authorities who are supposed to be enforcing and applying environmental statutes?

[Tom Huffaker]

I'm happy to respond.

I think we would come back to the point that we don't agree with the premise that environmental balance is not already in the equation in Canada. This country has an extensive set of federal and provincial environmental statutes and regulatory bodies, at both the federal and provincial levels, that are charged with addressing those requirements.

I can certainly assure you that when our members go through project approvals at either level, demands upon them, appropriately, are very, very focused on environmental protection. We think that's important, and we think it already has a place. We don't need to effectively add a right to intervene for every resident of Canada to that process, or over that process, to guarantee a high environmental standard in the Canadian legal framework. We think it's already there.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

I'd like to ask a final question, if any of you would like to reply.

We heard testimony that more than 150 nations have enshrined environmental rights, and that many have enshrined them in their constitutions, at the national level. We also heard testimony that similar environmental bills of rights are in place in many jurisdictions in Canada at the territorial and provincial level. The question I would put to you is why you feel the same rights and opportunity should not be accorded under federal law.

[Warren Everson]

I'll take a shot at that.

First, I do think the bill is disrespectful of the jurisdictional relationships between the governments of Canada. A statute that says any Canadian or resident of Canada can seek a review of any policy or regulation is excessive.

In my view, this bill is not well written; it's not a functioning statute. In my opinion, it doesn't stand the test of credulity when you say it's not intended to be about litigation. It Is explicitly a litigation-empowering piece of legislation. That's why it exists.

[The Chair, Conservative, James Bezan]

The time has expired, and we're going to move to our final questions.

Mr. Calkins, please.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Thank you, Mr. Chair.

I'm going to preface my question by highlighting some of the things that I think most members of this committee already know.

Just off the top of my head, I can think of what we have. We have the Canadian Environmental Assessment Act, the Canadian Environmental Protection Act, the Convention on the International Trade of Endangered Species, the Canada National Parks Act, the Species at Risk Act, the Department of Fisheries and Oceans Act, and the Migratory Birds Convention Act, not to mention any others that I may have forgotten. These are just the federal statutes that apply to the protection of the environment. They're all quite long and arduous.

We go through and debate these things quite a bit at this committee when we do statutory reviews. All of these acts and pieces of legislation have their accompanying regulations. You know all about those regulations. They outline the processes companies, organizations, and utilities will go through to get the permits that allow them to conduct business in Canada.

I'm going to talk to you specifically about clause19 of the bill, and I'm just going to read these out.

Paragraph 19(1)(b) would allow a court to grant an injunction to halt any contravention. Paragraph 19(1)(e): “order the defendant to restore or rehabilitate any part of the environment”.

Paragraph 19(2)(a): “suspend or cancel a permit or authorization issued to the defendant or the defendant's right to obtain or hold a permit or authorization”. That means suspending permits that already exist. Paragraph 19(2)(b): “order the defendant to provide financial collateral for the performance of a specified action”.

You'll notice that paragraphs (a) and (b) can be both; there's not one that says (a) or (b). A judge can actually make you clean up everything you've done and order equal payment and restitution at the same time, which is basically getting hit twice for the same thing.

These kinds of clauses really concern me. The problem is that these are brought about by clause 16, which says that every resident of Canada may seek recourse. The actions under subclause (3), if you look at it, are subject to a civil standard of proof, which is on the balance of probabilities, not beyond a reasonable doubt. The balance of probabilities is having a civil test applied to basically what could be considered, in a criminal case, proof beyond a reasonable doubt.

I'm going to ask you very simply.... On the fisheries committee two years ago, Mr. Lévesque and Mr. Blais from the Bloc Québécois--and my colleague Steven Blaney does a great job sticking up for Quebec on this, as well--invited the members of the Chisasibi First Nation, which is located on the eastern shore of James Bay, to appear before the committee to testify on the disappearance of eelgrass, and the massive environmental problems and degradation caused by the James Bay hydroelectric project.

If this legislation were to come to pass, would the members of the Chisasibi First Nation not be able to use this legislation, if they found a sympathetic judge, to basically order Hydro-Québec to undo all they have built in the James Bay hydroelectric project and ask them for financial compensation of the same amount?

[The Chair, Conservative, James Bezan]

Does anyone want to answer that?

Mr. Denstedt.

[Shawn Denstedt]

That would be giving free legal advice, I think, but that is one of the problems. You've identified one of the problems with the legislation. It is unclear whether there is any availability to rely on vested rights to protect your interests. So in the case you gave, because significant environmental harm is defined as being something that's irreversible, if that effect is in fact irreversible, there might be a successful claim under clause 16 here, which would give rise to remedies under clause19. That's all very fact-dependent, but is it possible? Yes. Could a creative lawyer make that argument? Absolutely.