Environment Committee on Nov. 17th, 2010

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

Okay, I have one minute left.

[The Chair, Conservative, James Bezan]

No. I gave you three minutes. We only have one minute to the bottom of the hour and we have to change witnesses. I'm going to cut it off here in the interest of time.

I'm sorry, Mr. Ouellet.

Mr. Firth, thank you so much for appearing on behalf of CUPE. If the lawyer for CUPE can provide us with a response to a couple of the questions that were given, we would appreciate it.

I'm going to suspend the meeting quickly so that we can change witnesses.

We are suspended.

[The Chair, Conservative, James Bezan]

We'll call this meeting back to order.

We welcome to the table now as witnesses for our second hour the Canadian Hydropower Association. Joining us is Mr. Jacob Irving, who is the president, and Mr. Ian Kerr, who is the vice-president in charge of development of Canadian operations in Brookfield Power Services.

We'll turn it over to you. If you can keep your opening comments to less than ten minutes, we'd appreciate it. Then we'd have more time for conversation after your opening comments.

Mr. Irving.

[Jacob Irving, President, Canadian Hydropower Association]

Thank you, Mr. Chair.

I am bilingual, but since my first language is English, I would like to make my presentation in English. Then, I could answer questions in French.

Again, thank you, Mr. Chair.

My name is Jacob Irving and I'm the president of the Canadian Hydropower Association. With me here today is Ian Kerr, vice-president of development for Brookfield Renewable Power, a member of the Canadian Hydropower Association and a private developer and operator of hydropower projects across Canada.

The Canadian Hydropower Association, or the CHA, is the national trade association dedicated to representing the interests of the hydropower industry. Our members are hydropower producers, manufacturers, developers, engineering firms, organizations, and individuals. The CHA members represent more than 95% of the hydropower production in Canada. Hydro power provides 60% of Canada's electricity, making ours one of the cleanest and most renewable generation systems in the world. We have the ability to more than double our current hydropower capacity, providing Canada with the solid opportunity to fight air pollution, climate change, and global warming. Hydro power has over 120 years of history in Canada. We are pioneers and world leaders in this form of energy and our future is even more promising than our past.

I'd like to provide you with a perspective on Bill C-469 from a clean and renewable energy industry perspective, where environmental stewardship is always top of mind. It is important to mention from the outset that we support many of the goals and intentions of the bill. We believe the aim of the bill is laudable; however, we have serious reservations with the more detailed and procedural aspects of the proposed legislation.

The CHA believes Bill C-469 would be harmful and potentially destructive to the current system of environmental regulations that we have all worked so hard to adopt and improve. We are concerned that without significant amendments this bill will create unacceptable levels of uncertainty, invite unproductive and vexatious litigation, and reduce industry's ability to proactively engage in additional environmental stewardship initiatives. It would ultimately frustrate the development of clean and renewable energy not only from hydro power, but also from other renewable sources, such as wind and solar as well. These clean, renewable energy sources are some of Canada's best options for fighting air pollution and climate change.

The greatest challenge to unlocking Canada's hydro power lies in the amount of regulation we must manage both at the provincial and federal levels. It already takes eight to fourteen years to build a hydropower project. We have to devote much of this time to ensuring projects meet the environmental goals of various pieces of federal and provincial legislation. It's interesting when you consider that non-renewable and higher-emitting thermal generation projects in Canada can generally be built in three to five years, as they generally face lighter regulatory requirements.

A new hydropower project takes up to fourteen years to permit, build, and authorize. Having proved itself against current rigorous environmental regulations, the project would then begin operating in a new, even more uncertain context. If Bill C-469 were to pass in its current form, all the permits and authorizations that took up to fourteen years to obtain would suddenly be unreliable and an entirely new avenue for legal challenge would be opened. For hydropower developers, this truly represents an “out of the frying pan and into the fire” scenario. Indeed, it is our commitment to environmental principles that compels us to urge this committee to thoroughly assess Bill C-469 and all of its implications. We maintain that the bill's stated purpose is cohesive with existing regulatory schemes, but the mechanisms fundamentally are not.

It is within this context that I'd like to offer a few high-level comments on our overriding concerns of the bill. One of the reasons we can confidently state that CHA supports the intention and goals of the bill is that the current regulatory scheme already advances responsible environmental decision-making and reflects many of its principles. For example, the precautionary principles, sustainable development principles, and polluter pays principles are woven into many of the existing acts and permeate the entire federal environmental regulatory regime. We believe concentrating energy and resources on improving existing laws, such as the Species at Risk Act and Canadian Environmental Assessment Act, is preferable to adopting an entirely new approach to protecting and enhancing the environment. This bill creates a wholesale change in the way we would approach environmental regulation in Canada.

CHA has serious concerns regarding several of its proposed mechanisms. Perhaps the most significant change to the current regulatory system would be the fact that under Bill C-469 the courts would be required to decide on environmental protection actions against the federal government, environmental civil actions, and judicial reviews relating to environmental protection. We are very concerned that this would essentially bypass the system of environmental regulations described above by handing over the final decision-making to federal courts and private litigants.

[The Chair, Conservative, James Bezan]

Mr. Irving, can I ask you just to slow down a bit for our interpreters so they can keep up?

[Jacob Irving]

Sure. Sorry.

We believe this represents a regression in environmental law for the following reasons:

It effectively takes decision-making authority out of the hands of the subject-matter experts in the agencies such as Environment Canada, Fisheries and Oceans Canada, and Natural Resources Canada, and transfers it to judges. The parameters of judicial review set out in the bill ignore the fact that such decision-making requires careful balancing of environmental, economic, and social considerations, which is the proper purview of parliamentarians and civil servants, not judges.

Additionally, we are concerned that it ignores the careful balance and recognition of the shared provincial and federal jurisdiction over the environment by vesting this authority in the federal courts. We anticipate that allowing any entity or resident of Canada to seek recourse in federal courts will open the floodgates to vexatious, obstructionist, and interminable legal challenges.

Finally, granting federal courts the power to suspend or cancel a permit or authorization and making injunctions substantially easier to obtain could have significant and far-reaching effects on the reliability of Canada's hydropower supply. This in turn will lead to negative impacts on Canadian consumers and businesses.

We do not perceive enough safeguards to ensure that antagonistic lawsuits are not brought against projects. At any rate, we believe these changes should not be accepted merely on the basis of the obvious good intentions of the bill. CHA would recommend to this committee that it carefully review the legal analysis of the effect of these changes on judicial resources.

I am not a lawyer, but my members have advised me that a very serious problem runs throughout part 2 of Bill C-469. Although entitled "Judicial Review", it actually isn't. Clause 16 under part 2 creates an environmental protection action and allows the plaintiff to prove its case on a balance of probabilities basis. This means that every time an individual or entity disagrees with an authorization or permit under any environmental legislation, they could file a claim, which would result in a trial to see if the court agrees with the government's action or inaction.

In a judicial review, the court is determining whether the official acted within the powers allowed by the statute and with a correct understanding of the law. In an action file, according to the provisions of Bill C-469, any individual or an entity could attack a decision based on a brand-new, vague standard even though the decision was correct according to the applicable statute. The courts currently exercise significant powers of judicial review over agency decision-making. This all adds up to a fundamental change to both the application of administrative law and to Canada's entire approach to environmental stewardship. The nature of this sea change approach demands more in-depth consideration than I believe has occurred. These are obviously complex issues that need to be better explored by legal experts.

But let me return to Canadian Hydropower Association's fundamental concern. Based on our reading of this bill, this legislation would mean that no business, no industry large or small, could operate securely in the knowledge that they are on safe ground even if they're fully compliant with the general law and any permits and licences that have been issued. An action can still be brought before the federal courts, and compliance with permits and licences is not a defence. It does not matter whether those permits and licences have been issued under federal, provincial, or territorial law. We believe this makes Bill C-469 substantively different from other jurisdictions that have adopted an environmental bill of rights approach.

For example, Quebec's Charte des droits et libertés, which specifies that everyone has the right to live in a healthy environment, includes the presumption that this right is met whether or not relevant environmental authorizations and permits have been acquired. It does not allow individuals to challenge the permits themselves and in this way avoids the potential for vexatious litigation that Bill C-469 would create. We believe this type of necessary safeguard is missing from Bill C-469.

In closing, I'd like to reiterate that the intentions behind the bill, as we understand them, are laudable from an environmental protection standpoint. As I mentioned before, CHA is an association populated by developers who approach and discharge their environmental responsibilities with the utmost seriousness. Again, CHA values the intentions and goals that guide this draft legislation. While Bill C-469 may offer more procedural mechanisms to allow more people to engage in environmental protection efforts, from a practical perspective it is destined to duplicate and functionally replace numerous aspects of existing federal legislation and policy.

Moreover, from the CHA's perspective it inappropriately transfers environmental decision-making authority from the executive and legislative branches of government to the judiciary while introducing a suite of ambiguous terms and concepts into an already complex environmental regime.

From the point of view of Canada's hydropower producers, this bill would create massive uncertainty for the operation of our facilities. Our members would experience a disincentive to undertake programs or measures that would have an overall positive effect on ecosystems. Instead, developers would be compelled to focus solely on minimizing specific impacts directly linked to their activities. Moreover, it presents a high potential for frustrating the future development of clean and renewable energy, thereby depriving Canadians of proven methods for fighting air pollution and climate change.

No form of energy development is perfect, but I am confident in saying that for Canada hydro power is our best option. From both a socio-economic and an environmental perspective, hydro power can offer Canada a sustainable net benefit. Hydropower developers are naturally concerned by any measure that might further complicate, obstruct, delay, defer, or defeat hydropower development, and we believe Canadians should be concerned as well. It is for this reason that although we respect the goals and intention of Bill C-469, we must voice our strong concerns regarding the institutional change and negative consequences it could create.

Thank you very much, and I'd be happy to take any questions at this time.

[The Chair, Conservative, James Bezan]

Thank you, sir.

We're going to go with a seven-minute round that kicks off, again, with Mr. Kennedy.

[Gerard Kennedy, Liberal, Parkdale—High Park, ON]

Thank you, Mr. Chair.

Thank you for your testimony. I have a sympathy for the quick talking. We're a limited option here, but I think you'll find you'll have more than enough time to elaborate.

I want to go a bit to the heart of your presentation, to the idea that everything is good, that there is not anything further needed. We were told by other witnesses that 160 of 192 countries have some form of rights for environmental protection frameworks. Presumably, that's where either your members are also operating or potentially competing with operations. I wonder if there's something specifically about this framework, compared to some of those other ones, some of which seemed to bear real constitutional and therefore hierarchical legal authority. Why would this one be so much more difficult, more onerous, and unacceptable, as you seem to be saying to your members?

[Jacob Irving]

Thanks for the question.

I think our members are focused on the constant improvement nature of environmental regulation and legislation, and I think many of them would never contend that we be complacent by any stretch. Environmental protection is an evolving issue and we must stay vigilant on it. Our members are dedicated to this.

When you mention that there are many other countries around the world that have this form of protection or legislation, true, from our understanding, and indeed even at the provincial level, as was mentioned, the province of Quebec, at a provincial level, has a component of this in their charter of freedom and liberties.

The difference is that in our reading of the bill and examining it, we do not feel there are enough safeguards to prevent obstructionist attempts through litigation to our projects or to any other projects, and that's the part that concerns us, I think, most gravely in this. In the Quebec context, as I was mentioning, there's a provision there that you can bring challenges but you can't challenge the permits that have been issued, for example. You can challenge other aspects. Our member companies operate within that. They operate comfortably within it. But this piece seems to be missing some of that.

[Gerard Kennedy, Liberal, Parkdale—High Park, ON]

Thank you for focusing our attentions.

If you believe that it is obstructionist in potential, are there regimes where you've seen this to be the case--in other words, where we know these kinds of provisions will bring on that behaviour? I know you're saying in the alternative Quebec restricts that.

I can understand the business case--you don't want anything to be slowed down, deferred, and so on. But if we're going to reconcile our environmental obligations to the next generation, the best way of understanding that is we're ripping off a generation if we despoil the water, the air, and the land in a way that they get it in damaged form. That's sustainable development. Most of your members would probably subscribe to that. So the question is what does this add to or detract from our consideration of those kinds of things? Invariably, we need to slow down long enough to understand that, and it is posed here that this is an infill. This will fill in where we don't have protection.

Do you have any places that would lead us to believe that these kinds of provisions will lead to obstructionist behaviour? And I'll add a second question so that you can just answer. If you want us to continuously improve our existing thing, where are the gaps that should be addressed that your association believes exist in environmental protection? And what laws and so on would you like us to look at as the alternative in terms of closing some of the gaps?

[Jacob Irving]

I can't say that it's for the Canadian Hydropower Association that I have done a global review of different jurisdictions in the in-depth manner you're asking for. So I'd have to say that I can't give you the examples you're looking for off the top. Ian may have some ideas from the global operations of Brookfield Power. Of course many of our operators, as you know, are provincially based, so they are not really able to draw on international expertise in hydropower development around the world. In general, Hydro-Québec generates and produces projects in Quebec, Manitoba Hydro produces projects in Manitoba, etc.

But our reading is that there is a potential for this to occur. So I think it is a legitimate concern. This is a proposed law, a bill that's speculating on outcomes by definition. It's a proposed piece of work. We of course are then brought in to speculate a little ourselves. We're not usually in the business of speculating. But this is a proposed piece of legislation, and we're trying to provide some possible outcomes that we see as worrisome to us. So I think that's where the comments come from largely, at a general level.

To the second question, of where we would like to see improvement and where we think improvement can be achieved in terms of environmental legislation overall, I would say that being involved with this committee in the past on the Species at Risk Act review and the seven-year review of the Canadian Environmental Assessment Act, these are all things that our industry is actually quite encouraged by. We appreciate that a lot of what I would call the “newer” pieces of environmental legislation that have come to the fore—again the Species at Risk Act and the Canadian Environmental Assessment Act—have built-in processes for review that acknowledge that this is a whole new area and that we all need to get together every so often, every five or seven years, to check on the intended and unintended consequences of the legislation.

So I think focusing our efforts there, as we have in the past, is quite productive and helpful in that respect. We believe that we have achieved some changes, some practical changes at the enforcement level, and we've also had a great opportunity to present our concerns at the legislative level to this committee as well in the past. So I would say that's where there's great opportunity for great improvement.

[The Chair, Conservative, James Bezan]

Your time has expired.

You have the floor, Mr. Bigras.

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

Thank you very much, Mr. Chair.

First, I want to thank the association representatives for their testimony. We now have a better idea of the bill's scope. At the beginning of your presentation, you said that the bill's aim is laudable, and we agree. Despite that fact, the bill's scope seems to be problematic. From the outset, the bill has been compared by some of our witnesses to the legislation of certain provinces. Quebec legislation, and Ontario and Yukon charters, have been mentioned. It appears that the further our study progresses, the easier it becomes to make these comparisons. However, the fact is that the legislations differ in scope.

I will start with clause 9 of the bill, which concerns the right to a healthy environment. Subclause 9(1) of Bill C-469 states the following:

9. (1) Every resident of Canada has a right to a healthy and ecologically balanced environment.

However, section 19.1 of the Quebec Environment Quality Act, in Division III.1 on environmental quality, states:

Every person has a right to a healthy environment and to its protection, and to the protection of the living species inhabiting it, to the extent provided for by this Act and the regulations, orders, approvals and the authorizations issued under any section [...]

I want to draw your attention to the last point, as it's probably important to you.

So, is it wrong to claim that the scope of the bill before us is not the same as the scope of the Quebec act, since the provincial legislation sets out a number of parameters, which are absent from the bill?

[Jacob Irving]

There you have it. The bill before the committee and the current Quebec act are slightly different. The main difference is that the Quebec legislation provides clear directions for hydropower project developers and for other projects as well.

We feel that this is the main difference. This approach is somewhat rigorous, and so people are given the opportunity to get involved in provincial environmental policies a little more. In addition, contractors can undertake with confidence hydropower, mining or other projects.

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

I would like to focus on another component concerning civil action. I'm talking about the bill's subclause 23(1), which states the following:

23. (1) Every resident of Canada [...] may seek recourse in the [courts] of the relevant province to protect the environment by bringing a civil action against the person who has contravened, or is likely to contravene, an Act [...]

The provision does explicitly state: "or is likely to contravene, an Act."

I would also like to draw a parallel between the bill and the Ontario Environmental Bill of Rights. Section 84(1), which concerns right of action, states the following:

[...] any person resident in Ontario may bring an action against the person in the court in respect of the harm and is entitled to judgment if successful.

Section 83 of the bill of rights specifies that section 84 applies only in respect of a contravention of an act. It says nothing about people likely to contravene an act. So, an act must be contravened in order for someone to bring an action against a person in the court.

Is this not an example of another parameter contained in the Ontario charter, but absent from Bill C-469?

[Jacob Irving]

This analysis leads me to believe that we need clear directions to promote projects. If we make things too difficult and if there's too much uncertainty in our project planning, it will be more difficult to carry out energy projects that could help tackle greenhouse gases and other related problems. That's something that hasn't been taken into consideration.

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

If the person sponsoring the bill decided to amend it by including parameters and safeguards as the provinces have done, would you be more likely to recommend that we support the bill? Would you be more likely to make that recommendation if you were given some assurance about not only the two components I just talked about, but also other aspects I had no time to get to?

[Jacob Irving]

We are obviously able to carry out projects in provinces where similar legislation and parameters apply. Logically speaking, if federal legislation with similar parameters were adopted, it would be easier to be even more supportive of the bill we are currently studying.

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

I have nothing further, Mr. Chair.

[The Chair, Conservative, James Bezan]

Thank you.

Ms. Duncan.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Thank you, Mr. Chair.

I thank the witnesses for their testimony.

Mr. Irving, in making your presentation have you familiarized yourself with other federal environmental laws? Are you aware that many of the rights and opportunities accorded under Bill C-469 are already accorded under CEPA?

For example, section 22 provides for an environmental protection action. Section 39 provides for any individual to seek an injunction. Section 40 allows for any individual to seek an action for civil damages, which Bill C-469 doesn't. It precludes damages and simply seeks an order for restoration, and so forth. Section 17 of CEPA allows any resident--not citizen--to seek an investigation.

Are you seeking changes to those laws to take away those rights from CEPA as well?

[Jacob Irving]

No, we haven't been seeking those types of changes. Indeed, I think elements of this bill that can be found in existing legislation throughout are not areas of contention for us. It's the sum total of the bill that gives us cause for concern after we've received our permits, after we've complied with all those existing pieces of legislation that we must deal with and that we do operate within.

This is another after-the-fact opportunity for our projects to be potentially delayed, and we do believe there is a potential for obstructionist approaches to be taken. For us, as I mentioned earlier, it's eight to fourteen years under current legislation. We do abide within it. We do manage to build projects under that framework, for sure. Now that it can be after the fact, the question we have is what this will potentially represent in terms of further delay. We see many different new avenues and opportunities for that. That's our concern.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

So I guess what I'm understanding is that you don't object to those rights being accorded to citizens under CEPA; you just object to those rights being accorded under other environmental laws.

Can you share with the committee examples of where frivolous and vexatious litigation has been taken against operations in say British Columbia, Manitoba, Yukon, or Quebec, where they have an environmental bill of rights?

[Jacob Irving]

I can't. I don't have those listed. But again the way we read and understand those frameworks is quite different from the way we read and understand the one we're studying here today. That's where our speculation comes from.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

I guess I'm still waiting to hear which details are different.

One thing I would bring to your attention, regarding your reply to the question raised by my colleague Monsieur Bigras, is that in fact this bill before us, which you are speaking to, does provide a constraint right up front under clause 8. I would encourage you to take a look at that where it says,

The provisions of this Act apply to all decisions emanating from a federal source or related to federal land or a federal work or undertaking.

So in fact it provides a very close constraint on the application of the bill, which might give you a little level of comfort.

You did raise a matter that has been raised by some of the other industrial witnesses. You testified that the courts have no ability to consider scientific evidence. Are you then suggesting that the courts are also incapable of considering environmental evidence, including under prosecution of environmental laws?