Environment Committee on Nov. 15th, 2010

[Warren Everson]

I'm not in a position to comment on how the civil actions work within the provinces, but I am aware they do exist in a number of provinces. It begs the question of whether or not you would need a federal statute on top of that to allow additional layers of citizen involvement.

I will say that I believe the work that you would need to do to make this bill workable is excessive compared to the value of the bill. For example, there isn't in the bill even any guidance to a court. It's hard to justify being too sympathetic to the bench, perhaps, but some judge somewhere is going to be served with a case and is going to look for a frivolity clause that could be invoked, or for a repetition clause.

When the access to information legislation was enacted in the federal House—I was working on the Hill at the time—we saw a number of petitioners after several years bring case after case after case towards the same defendants, or those who effectively became defendants. No one in Parliament intended it to be that way, but the way the bill was worded allowed it.

So giving the courts some tools to work with to reject frivolous claims, for example, would be a useful piece of work. But I do think the bill requires so much work that it's just not beneficial.

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

What do you say to those who claim that the same type of model, being used in some provinces and elsewhere in the world, has not increased the number of litigations? That is the case in Quebec. The claim that these famous activists are going to rise up and launch lawsuits for more or less groundless reasons has not been borne out. That is because there were guidelines. You say that you are afraid of this bill because it does not set out any limits, any guidelines. However, the models that were put into effect did not in fact lead to an astronomical increase in the number of lawsuits. That is not what happened.

[Warren Everson]

I think that's an extremely good point, and I can hear Johan wanting to get into this conversation.

I'm not a lawyer, and I can't comment on the difference between a civil action in the federal House and the common law. There is certainly a jurisdictional issue this committee would have to confront in the case of a spill, but saying that a statute exists at a provincial level and has not been abused is not by itself a rationale for introducing it in the federal House.

[Johan van't Hof]

Mr. Chairman and honourable members, I speak to you as a finance person. I'm a project finance person and I get projects done: I get them financed and I get them built. I can tell you that you will not get projects financed until they are beyond the risk of appeal. Bankers will not take the risk of appeal. Therefore, the very threat of being able to persistently and consistently take things beyond some level.... We have one group in Alberta on our case that's now on their eighth try in the Federal Court of Appeal. It's a case of res judicata, for those of you who are lawyers, so we are able to defeat it every time.

But the simple fact is that if there is a threat of litigation chill, these projects do not get financed; and accordingly, nothing gets done. We absolutely need to know what the test is, to know what the clarity is. If we haven't met it, then by all means, we should be forced to meet it. But I can tell you that the threat of appeal is sufficient to stop a project.

[The Chair, Conservative, James Bezan]

Thank you very much. Your time has expired.

Ms. Duncan, you have the floor.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Thank you, Mr. Chair. And I'd like to thank the representatives for presenting on my bill.

Mr. Broad, your association, the Shipping Federation of Canada, and the Canadian Merchant Service Guild, the International Ship-owners Alliance of Canada, and the International Transport Workers' Federation all intervened against the government's enhanced enforcement bill, Bill C-16, did you not?

[Michael Broad]

Yes.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Thank you.

[Michael Broad]

It was for one reason: that the bill introduced the possibility of criminalizing seafarers.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Thanks.

Mr. Huffaker, it's nice to meet you.

I've had a long association with your predecessor organization, the Canadian Petroleum Association, and did some work with CAPP when I was on the board of the Clean Air Strategic Alliance. I really have enjoyed working with CAPP members.

Can I ask you, does CAPP support the position taken by the Canadian Petroleum Association in my time in the 1980s and early 1990s that once laws are enacted, whether federal or provincial, they should be effectively enforced?

[Tom Huffaker]

Obviously there are questions of rules and regulations and how those are promulgated, but yes, we support the enforcement of the law.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

And would you support the position...? My understanding has always been that the position at the provincial table is that all persons who are concerned or impacted by an environmental law, policy, or regulation should have the opportunity to also have input into the making of that law.

[Tom Huffaker]

I think the law has generally been that the people who are impacted.... We believe that under existing procedures, both federally and provincially, Canadians do have robust opportunity, if they're impacted by a project, to be engaged.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

I have to admit, Mr. Huffaker, that I'm shocked by a statement in your brief where you seem to suggest the public shouldn't be delving into these matters, that we should be leaving the making of law and the monitoring and the enforcement and the litigation to the government. And yet when we look at the list of people and organizations who have met with the Minister of the Environment, 99% of that list is industry, and a lot of them oil and gas.

So are you suggesting that industries should be able to influence environmental policy-making and law, and not the public?

[Tom Huffaker]

Of course not. We're suggesting that people who are directly impacted should obviously have the ability to intervene or be involved in projects where they are impacted, as they've been very liberally under NEB and other sorts of hearings. We're suggesting it is a bridge too far to give standing to everyone who perceives themselves as interested in their own minds the right to intervene and bring actions on any decision of government relating to environmental policy.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

So you're only saying we should restrict the rights of the public when it comes to litigation. Because your presentation says we should leave these decisions to the government, including the making of law. So could you just clarify that?

[Tom Huffaker]

I think we refer in our testimony to the fact that the public and interested parties, those who are impacted, have broad rights now to be involved in these matters in various Canadian federal and provincial processes.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

I'm not surprised by the presentations to do with duplication by the intervenors here, because that has been the practice of industry: to argue that we should be getting rid of the federal government in environmental regulation because we have the provinces.

One of you had tabled a legal opinion by Osler and company, I think. It was interesting, there was a selective quote from what is an extremely historic case, and that's the Friends of the Oldman. Is it not true that the reason the Friends of the Oldman is an important case is that the Supreme Court declared that the federal government has jurisdiction over the environment?

[Tom Huffaker]

I'm going to ask if Mr. Denstedt wants to respond to that. It's on his legal opinion.

[The Chair, Conservative, James Bezan]

Mr. Denstedt, please.

[Shawn Denstedt, Partner, Litigation, Osler, Hoskin, and Harcourt LLP, Canadian Association of Petroleum Producers]

Thank you, Mr. Chairman.

Ms. Duncan, I would disagree with the narrow interpretation you've put on that case. One of the propositions of the case is that it indeed shares jurisdiction, and because the environment is, in its essence, intertwined, both the province and the federal government will be involved in decisions that affect the environment, and they should cooperate.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Correct. And was not that case launched because the federal government had failed to do a federal environmental assessment and the court held they should have?

[Shawn Denstedt]

That's correct.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Thank you.

I have one more quick question to Mr. van't Hof.

Mr. van't Hof, you raise concerns in the MATL line that you're being taken to court. Is it not true that the reason you're being taken to court is that a good number of the farmers had been, in their view, excluded from the review processes and felt it necessary, unfortunately, to have to go court to get the right to participate in those reviews?

[Johan van't Hof]

Mr. Chairman, Ms. Duncan, that's quite inaccurate. Both the Alberta Utilities Commission and the NEB have made it clear, and the court of appeal made it clear, that the degree of consultation was acceptable.