Environment Committee on Nov. 15th, 2010

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

Mr. Chairman, this matter has already been raised. You could have said that in fact this matter of provincial areas of jurisdiction was raised during the first hearing on this bill. It seems to me that it is up to you to reply to Mr. Blaney in this case.

[The Chair, Conservative, James Bezan]

But that's not a point of order. Mr. Blaney is more than welcome to use his time as he sees fit, as long as he is being relevant.

And you have been relevant, Mr. Blaney.

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

If you consider that this is not a point of order, I will ask a real question then: who is going to defend Quebec and the interests of Quebeckers here, when we are studying a bill that encroaches on provincial areas of jurisdiction? This is clear, and several witnesses have said so.

Mr. Chairman, I will continue with a question for Mr. Huffaker.

There is a great deal of talk about sustainable development. In your testimony, you mentioned that this bill would create an imbalance between the environment and the economy. We know that sustainable development is the equilibrium between development and the economy, and you say that this bill will create an imbalance. I'd like to hear your comments in this regard.

You also talk about the intergenerational equity principle, which seems to me to be commendable. However, you feel that it constitutes a threat.

Mr. Chair, I'm going to leave what time is left to the witnesses. If my colleagues wish to raise point of order, I hope that this will not eat into the time left for my witnesses. Thank you.

[Tom Huffaker]

We have spoken and will continue to speak on the question of balance. We think sustainable development is about the economy, it's about social factors, and it's about the environment. Certainly those are the sorts of things the Brundtland commission, for example, talked about--all three--and the importance of balancing them and advancing them all. We feel that by making one value paramount at a quasi-constitutional level, this bill does threaten that balance that we think is very important to the country and that we think Canadians believe is not only important but also possible.

My intergenerational fairness question was just a quick example to make the point that someone might be inclined to intervene against an environmental group but might not have the wherewithal to be there. You could see an individual like that or a family like that unable to intervene on the other side of one of these court actions and yet feeling that they want X, Y, or Z development to go forward because they feel it's in the long-term interest of their family or their children.

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

Thank you very much.

Mr. Everson, you mentioned that this bill could lead to a greater number of legal proceedings in the area of environmental law. I'd like to hear what you have to say on this.

Do you feel that this bill, as Mr. Warawa was saying, will act as a deterrent to businesses and prevent them from breaching regulations, lead to out-of-court settlements, or will it increase the number of environmentally-motivated lawsuits?

[Warren Everson]

I think the bill is established specifically to permit legal proceedings above the regulatory processes that are in place today. As such, of course, we would expect to see a lot of actions. It's an interesting question as to whether or not they would be forward-looking--i.e., about new projects, or even challenges to existing operations and situations that are permitted already. I certainly believe that it would be easy to abuse the law.

Monsieur Bigras asked the key question: Can you make this law better and make it useful? One of the prime considerations would be the possibility of abuse, whether it be someone in Alberta or Ontario who wants to challenge a project running in Quebec because they want to disadvantage that project for as long as possible, or even a business competitor who is already running a permitted project, seeing a new competitor enter and saying “I will just stop them as long as I possibly can with as many actions”, because there is no frivolous defence here.

[The Chair, Conservative, James Bezan]

Thank you very much. Your time is up.

Mr. Tonks, your turn.

[Alan Tonks, Liberal, York South—Weston, ON]

Thank you, Mr. Chairman, and thank you to our witnesses.

As I was listening to your presentations, I was trying to put myself in the place of Canadians who would be following the arguments that have been put forward. It occurred to me--and I do understand the concept of rule of law and predictability through natural justice--that at the front end, in terms of a full airing, all have a right to appear before a tribunal or whatever the body would be that would be dealing with, in this case, an environmental assessment, be it a class or an individual assessment, provincial or federal.

It occurred to me that you've characterized this bill of environmental rights as being draconian in nature. Possibly, the Charter of Rights and Freedoms back many years was viewed the same way. The charter was invoked to bring some closure to that natural justice, that the issue was being dealt with, and would have probably been a human rights or a social issue at the time.

Would it still be your position that if the bill could be changed in some way to be a final tick-off, if you will, that it would conform to the declaration somewhat similar to a charter? I've been at hearings where the final question that's asked is whether it conforms to the charter. So could this bill be improved or changed such that it was a final touch test in principles, as opposed to substantive judicial process? Could that be done?

[Shawn Denstedt]

Thank you, sir. An excellent question.

When we looked at this, for our review of CAPP, certainly one of the concerns we had was that it had a charter-like appearance and the preamble certainly indicated that it could rise to that status. That gave us pause to ask, is this an attempt to bolster up this legislation to a charter-level authority? This is fine, and if Parliament decides that's important, it should do that and proceed through the amending process accordingly.

But where we see this as a problem is that Canada has built up detailed regulatory processes to conduct environmental assessments that look at very detailed technical data, and they arrive at conclusions that look at disadvantaged groups and the job opportunities provided, development of infrastructure in the north--for example in Mackenzie--all building to a decision that rests on whether there's a likely significant effect.

The problem with this bill, from our legal perspective, is that the definitions in this act do not line up with the tests in the Canadian Environmental Assessment Act, so there's a different standard.

[Alan Tonks, Liberal, York South—Weston, ON]

Okay.

I have just a final question, Mr. Chairman.

I think Mr. Huffaker mentioned the Federal Sustainable Development Act. Inasmuch as that act is up for review, would there be an opportunity, should this bill fail in terms of its principles...? I was interested to hear that someone was quoted as asking what is the reason behind the bill. Let us infer that there is a reason behind the bill and that the bill is a sort of protection of all citizens in a complex society. Would it be more appropriate, as part of the review, to look at the federal sustainability act and deal with some of the issues that have been raised in this particular bill?

[Tom Huffaker]

I'd be happy to briefly answer that. I'm not deeply involved with that particular act and I have not been involved in commenting on the review.

There are a number of pieces of environmental legislation, of course, that are in the course of review now, as this House knows: the Species at Risk Act, CEAA, etc. We are involved in those, and of course in some ways it's an example of the access that a broad number of Canadians have to these processes. These types of associations are involved in commenting and testifying on those reviews, as are a number of environmental and other groups.

I'm pleased to say that in some cases around some aspects of SARA a broad group of energy and other industries have submitted joint submissions with a range of environmental groups. I think it just underlines that there is a lot of access to the process and a lot of opportunity in this democratic society for people to put their views out on the table inside the legislative process, which tends to be where we think these sorts of rules--the law--should be made.

[Alan Tonks, Liberal, York South—Weston, ON]

Thank you, Mr. Chairman.

[The Chair, Conservative, James Bezan]

Thank you, Mr. Tonks. Your time has expired.

Mr. Armstrong, you have the floor.

[Scott Armstrong, Conservative, Cumberland—Colchester—Musquodoboit Valley, NS]

Thanks to all of you for being here. I've enjoyed your testimony.

I think this bill's heart is in the right place, without a doubt. I think we've heard several people testify that they agree with this: that all Canadians deserve to have a sound and clean environment. However, I think there's been a lot of discussion on clause 23, the judicial remedies. I think that's where a lot of the concern is from all the witnesses today, so I want to give an example and then have some comments from you about my example.

Yesterday, in Parrsboro, Nova Scotia, which is in my riding, the Minister of National Defence and I announced an undersea cable project that will connect tidal power generators to the Nova Scotia power grid. It was a $20-million announcement. It was the largest announcement from our green fund for any project across the country.

As for the capacity of the cable—and Mr. van't Hof, you'll understand a lot of the technical details more than I will—it is a 64-megawatt cable. It eventually will be able to produce enough power to power at least 20,000 homes. That's enough to power almost every household in my riding.

Could you see Bill C-469 potentially having a negative impact on the progress of this project?

[Johan van't Hof]

Absolutely, I can see that, depending on whether it's direct current or alternating current, DC or AC. If it's AC, it will have EMF. If it's EMF, it will have an impact on fish species.

You'll have issues with trenching. You'll have issues with icebergs possibly coming through and ripping it up, so you'll have to trench it down a hundred feet to get below where the icebergs get tipped over and scour it up.

So at some point there's the impact of that and whether or not you have scallops or other kinds of species that you're going to be disturbing, and also whether there are maintenance issues. If it's an AC line, it will have an oil-cooled thing, and you may have environmental leaks on the oil. I mean, it goes on and on.

But in fairness, the regulators know exactly what these issues are, and there is an entirely competent consulting crowd out there that knows exactly what the right tests are and what the right safety standards are. That's my point: I'm not sure that this bill is fixing a problem that I understand. On that particular project, I would know exactly how to assess it, and I would know as an operator exactly what to propose, because I know what the tests are.

[Scott Armstrong, Conservative, Cumberland—Colchester—Musquodoboit Valley, NS]

All right. So what you're saying is that there are already a lot of regulatory hurdles for that project to get over before it actually comes to fruition—

[Johan van't Hof]

Oh, yes.

[Scott Armstrong, Conservative, Cumberland—Colchester—Musquodoboit Valley, NS]

—and what this bill would do would be to open up this clean, green energy project, which is going to produce up to 3,000 megawatts of clean and green perpetual power, to another hurdle that could be set in the way by any resident of Canada, and maybe not even by a Canadian citizen. That would have negative environmental impacts, because it would slow down the production of this green energy, which is what we're trying to produce as a country on order to get off fossil fuels.

So in the end, this bill actually could damage the environmental future of our country by slowing down many projects. Would you share that opinion?

[Johan van't Hof]

I would. I think that's precisely right. No project ever meets the test of unanimity. And what troubles me about this is that essentially, I, as a developer, have to risk shareholder money trying to find unanimity.

In every project you do you are advised as to who the parties are who have standing. And I can tell you that we were scrupulous in making sure that we sent every party a registered letter, a registered EIS. A registered environmental assessment went to those persons' homes so that we could meet the test of standing. The problem here is that I can't mail it to 33 million people.

Thank you.

[Scott Armstrong, Conservative, Cumberland—Colchester—Musquodoboit Valley, NS]

Mr. Everson, you testified that this opens things up to some sort of abuse of the law by competitors. There are projects going on in my riding. We also have potential for wind energy and shale gas. We have potential for geothermal. We could actually be a green energy producer in the northern part of Nova Scotia.

If you were a company bidding on one of these projects, these government contracts or provincial government contracts, and you didn't get the bid, would you then possibly try to slow that project down? Does it open it up to abuse by people, because of sour grapes because of not getting the contract, if every resident can do it? Does it open it up to abuse by a competitor who may be unsuccessful getting this bid or by another competitor who may see the project coming and a vast amount of competition in his or her own current business? Does it open it up to abuse by other competitors and failed competitors?

[Warren Everson]

As it's currently drafted, the bill has no protection against that, so yes, of course.

You said that everyone in testimony supported the purpose of the bill. But I don't actually agree. The bill proposes to install individual action to the court over the regulatory processes that have been constructed at the provincial and federal levels. And I don't believe that the court is a better equipped agency for evaluating environmental impact, period. I don't believe that judges are trained and resourced to do what can be done today.

[The Chair, Conservative, James Bezan]

Thank you, Mr. Armstrong. Your time has expired.

The final five-minute question in the second round goes to Mr. Carrie.

[Colin Carrie, Conservative, Oshawa, ON]

Thank you very much, Mr. Chair.

I'm just here as a guest today too, but I'm shocked by what I'm hearing. I come from Oshawa, and we compete internationally in the auto industry. My concern is about having a bill that throws us so out of balance internationally and about how it will affect our competitiveness internationally.

Internationally, do any of our competing countries around the world have a law like this?

We talked about domestic competitors. But if foreign competitors had branch offices in Canada and wanted to use frivolous cases for anti-competitive reasons, could that happen?

I have perhaps one more question, Mr. Everson. Do you have any idea what this bill would cost our economy at a time when there is a global economic downturn?

[Warren Everson]

Of course I can't assess what a cost would be, but I would like to point something out. In the current CEPA, the precautionary principle cites cost-efficiency and cost-effectiveness, even in a piece of legislation that was a very significant achievement for environmentalists. The CEPA clause says that “where there are threats of serious or irreversible damage, lack of full scientific certainty is not a reason for postponing cost-effective measures to prevent environmental degradation”. That's a very unusual thing for Parliament to install in legislation. So you don't have to prove your case before you can move to mitigate the damage.

The Canadian Chamber of Commerce is actually quite a strong supporter of that provision, and it's not present in this law. Cost-effectiveness is surely a logical provision in any act, especially if you're giving guidance to judges who are going to issue the order.

[Colin Carrie, Conservative, Oshawa, ON]

Absolutely.

Could anybody else comment? Do other countries have things like this?

What if we had foreign competitors and they had branch offices here? Could they use these frivolous cases for anti-competitive reasons?

Does anyone have any idea?