Environment Committee on Nov. 15th, 2010

[Anne Legars]

If the intent of the legislation is the way you stated it, it would mean it is a defence. We would love it. The way we read it is that it wouldn't be a defence, and that's why we have a problem.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

No, it says it's not a defence to a civil action unless you prove that you were within your rights. That's what it says.

So putting it positively, it is a defence as long as you can prove that you were within your rights. It's not fair to say that the defence is removed. Defence is made more difficult, I'd agree; I'd concede.

[The Chair, Conservative, James Bezan]

Do you want to respond to that from a legal perspective?

[Warren Everson]

I'm not a lawyer, so I can speak with the freedom of ignorance here. I would go to court and would say that I was authorized to do this thing and that everybody understood—the people who permitted me understood—the extent of my activities and understood that there would be environmental degradation. The agency that was then on the hot seat would show up and say “We had no idea there would be this damage” and that they were never told. Of course they would say that. And therefore, would it function as an actual defence? Possibly it would, but not a good one, for sure, and it would be a very tortuous situation to find ourselves in.

[The Chair, Conservative, James Bezan]

Thank you. Time has expired.

Mr. Calkins, you're on.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Thank you, Mr. Chair.

I'm just going to put this in some kind of context. Of course, whenever we're discussing environmental things, the discussion is near and dear to my heart. Much of my past has been spent as a national park warden, and I was a conservation officer, I have a zoology degree in fisheries and aquatic sciences, and I spent a lot of my previous life, before I became a parliamentarian, enforcing the law and protecting the environment.

However, when I saw this bill.... At first blush, you read a bill like this and say—I think one of you said it—the road to hell is paved with good intentions. My colleague Ms. Duncan has brought this forward, and I believe that in some way she probably means well by it. But I believe firmly in my heart that this upsets the balance we have in society right now, so much so that it's actually dangerous.

Mr. van't Hof, if I may be so bold, you said this would provide barriers to investment. Well, I would suggest to you that it would rip the guts out of our economy as it exists today. There is no clause in this bill that would prevent them from retroactively going back and undermining any permit that has already been issued, whether it's for an oil sands operation, a current transmission line, or a coal-fired reactor. There's nothing.... God forbid that this bill should ever come to pass in its current form, but if it ever got out there, it would not only put a chill in investment, but anybody who wanted to do so could undo every permit, every regulation, or every regulatory process that's ever been done. We're talking about years' and years' worth of stuff.

I don't know, Mr. Huffaker, whether you can speak to what it takes just to go through.... I know CAPP is broad in its perspective, broad in its application, and in your membership. But in oil sands, to get a permit to even create a tailings pond or a settling pond takes years and years of dotting the i's and crossing the t's.

Mr. van't Hof and Mr. Huffaker, could you elaborate on how much bureaucracy, red tape, and double-checking there already is when going through environmental application permits?

[The Chair, Conservative, James Bezan]

Mr. Huffaker, you can go first, and then Mr. van't Hof.

[Tom Huffaker]

Certainly for those pursuing major projects in Canada, in Alberta, and in other provinces, yes, these are processes that take years and years and years. They're looked at very seriously by a wide range of provincial regulators and bodies, sometimes a wide range of federal regulators and administrative bodies.

This is sort of what we get at when we say we have excellent environmental laws and Canadians have access, when they are directly impacted, to intervene in those processes. I don't know that we have thought through what it could mean for projects already permitted because we've worried so much about what it could mean for the future and what damage it would do to the balance we've tried to take to these projects, and what damage it would do to the investment climate and certainty for operators.

You may well be right that it even could have an impact looking back on projects that already have years and years invested in working through regulatory processes and the law and complying with those requirements, and of course in some cases staking billions of dollars reliant upon that compliance and that legal status in projects that in some cases also created thousands and thousands of jobs and billions of dollars in economic benefit.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Mr. van't Hof.

[Johan van't Hof]

Mr. Chairman, honourable members, I completely concur. It will gut the capacity to finance these projects. Banks will not take litigation and appeal risk because then they have nothing.

In our situation, there are literally decades of detailed regulations, detailed rules, standards, expert witnesses, engineers, environmental people, cultural resource technicians, people who know whether this is a teepee ring or whether it's a pile of rocks. There is an extremely entrenched ability and knowledge base to be able to assess what is an acceptable impact and what is not. And that is ultimately what it is about. When you have 1% or 2% growth rates in an economy, you have impacts, and this is about picking impacts that are acceptable to our society. Ultimately my experience was we had a whole coterie, a whole parade, of deeply expert people there who were able to do that, and in particular deeply seasoned regulators who were able to separate the wheat from the chaff, as it were, and come up with a balanced answer.

So if you take that away, I think it just stops. I think projects stop.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

I just want to touch on one more thing.

I can't read your name there, sir. Mr. Denstedt, could you elaborate on this? It was brought up earlier, the Oldman River Dam case that happened several years ago in the province that I live in, Alberta. Isn't the fact that there was an actual case brought forward and it was actually dealt with through civil action already proof that we don't need to do any more to augment the system? Where there's a gross dereliction of duty by the federal government in any particular case, we already have a broad scope application of civil litigation, do we not, in this country? Why do we need more?

[The Chair, Conservative, James Bezan]

Mr. Denstedt, I'll ask you to be very brief in your reply.

[Shawn Denstedt]

I can be very brief here. First of all, the Oldman River Dam case was under the EARP process, which predated the Canadian Environmental Assessment Agency. Essentially that gave rise to the Canadian Environmental Assessment Act. That's an act under which major projects undergo environmental assessment review. In cases that I've been involved with—for example, in the oil sands or in the offshore or in Newfoundland—we have sometimes hundreds of intervenors participate in the process, file evidence—20-some thousand pages of evidence on Mackenzie, nine years and counting on the process.

So yes, there are not only abundant and robust opportunities to participate, they're real and they exist today.

[The Chair, Conservative, James Bezan]

Thank you very much.

Vous avez la parole, Monsieur Ouellet.

[Christian Ouellet, Bloc, Brome—Missisquoi, QC]

Thank you, Mr. Chair.

I would like to start on a lighter note.

While listening to your presentations, especially Mr. Huffaker's, I was surprised that you quoted the amount of money that oil generates in Canada, the number of jobs, the incredible development, etc., but that you did not, even though this is the Standing Committee on Environment and Sustainable Development, mention the quantity of greenhouse gases that you produce; I was also surprised that you did not talk either about your contribution to climate change nor of the quantity of water that you protect, and so on.

Mr. Everson, I am under the impression that you were speaking particularly on behalf of large chambers of commerce. In my riding there are chambers of commerce and their attitude is not the one you described. They are very interested in seeing—and I would say that this is in fact one of their priorities—a very strict law to protect the environment. You see, that is very different. And yet you are a part of the...

I would like to put the same question to all of you. If we set aside what Mr. Calkins said earlier it seems to me that you are not against the principle embodied in this law. If I understood correctly, it is not the principle but the coercive procedures that the law would put in place that are of concern to you. I am not saying that this is groundless, I don't know.

My question is addressed to all of you. Since it is likely that the principle of the legislation is valid and you are in favour of it, would there be some way of amending the bill to make it acceptable from the point of view of its constraints?

I will begin with you, Mr. Broad, but I would like to hear from each one of you.

[Michael Broad]

It's what's in our brief. Basically, we propose two amendments.

[Christian Ouellet, Bloc, Brome—Missisquoi, QC]

You didn't speak loud enough. I have to put on my--

[Michael Broad]

Me too.

The two amendments we are proposing are in our brief.

[Christian Ouellet, Bloc, Brome—Missisquoi, QC]

So you do think that the law could be acceptable. Could you remind us...

[Michael Broad]

Well, I'm wondering what the reason behind the bill is. It's my understanding that before any law is enacted under the federal government, people come, they talk about it, they bring opposing views, and then it goes to first reading, second reading, blah, blah, blah, and it goes on to become law.

This law seems to make the law a moving target. Despite the fact that you bring laws into effect and we abide by those laws, all of a sudden somebody says they don't like it so they're going to take you to court. How can you do business when a country passes a law that you don't know is going to be effective or is going to last? How long is it going to be there? Is it going to be a month, two months, two years, or whatever?

I don't see the reason for this law. We already have a system that provides for discussion and whatever.

At the end of the day, hopefully, the government brings out laws that serve the public. Certainly with respect to environment, I don't think any of us here would oppose any environmental--

[Christian Ouellet, Bloc, Brome—Missisquoi, QC]

I would like to hear what Mr. Huffaker has to say on this matter. Mr. Broad probably has a very important motive: he wants to link this up with the international code.

You do not have this concern; how do you think this bill could be amended or reworked to make it acceptable?

[Tom Huffaker]

Let me start by saying I think we have a premise we agree on. I think your point was that we all agree that environmental protection and environmental standards are important. We do, I think, all agree on that.

We come back to what is the necessity for this provision. We take the view that Canada is a country with very high standards of environmental laws and a lot of opportunity for impacted parties to intervene. To us, the law is not so directly about the environment but about creating a sweeping class of individuals and organizations that would have standing to sue. And from our point of view, that is a very negative development in terms of it reducing the balance around sustainable development, about energy, environment, and social factors. And environmental factors being looked at together creates a tremendous amount of uncertainty and a tremendous amount of lack of balance from where we sit.

As I said, we think in some ways it addresses the wrong thing. It isn't about environmental standards; it's about giving everybody the right to go to court. We're not supportive of that in this circumstance.

[The Chair, Conservative, James Bezan]

Your time is up.

Mr. Blaney, you have five minutes.

[Steven Blaney, Conservative, Lévis—Bellechasse, QC]

Thank you very much, Mr. Chair.

First of all, I would like to read the following sentence:[...] we are concerned that Bill C-469 would enable anyone to challenge any regulatory standard at any time, thereby trumping the existing regulatory process and creating regulatory unpredictability.

This is on page 3 of Mr. Broad's brief.

Good afternoon, and thank you to our witnesses for being here.

I would like to say something to my colleague Mr. Blaine. I too, Mr. Blaine, have worked in the environmental field in the past: I practised applied engineering for 20 years. Unfortunately, I am not a lawyer. I must say that my other colleague Mr. Warawa makes the Quebecker in me sit up and take notice whenever he talks to me about Hydro Quebec and says that a federal act could encroach on fields of provincial jurisdiction and jeopardize hydroelectric development. This concerns me particularly because I was a civil engineer. It really upsets me. I hope that my colleagues from the Bloc will be sensitive to this issue, that is to say this bill's potential interference in fields of provincial jurisdiction.

I am thinking for instance of the flooding that occurs when dams are built. Obviously this has important environmental repercussions. When reading the information provided, it appears to me that any citizen could jeopardize the implementation of a project even if it has been approved at the various regulatory stages. Your testimony is almost shocking. I am quite shaken by what you have to say since the substantive principle of the bill is that any Canadian resident has a right to an ecologically balanced and healthy environment. I think that there is a consensus here on this bill.

We are talking about infringing on areas of jurisdiction, we are talking about...

[The Chair, Conservative, James Bezan]

A point of order.