Environment Committee on Nov. 17th, 2010

[Jacob Irving]

Our worry constantly, as the Canadian Hydropower Association, is our ability to bring clean, renewable energy to bear on the global problems of climate change and air pollution. I think what you're saying isn't entirely unreasonable.

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

Thank you.

I'm going to cede the rest of my time to my colleague, Mr. Calkins.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Thank you.

If you've reviewed the previous testimony, you'll know the question I'm about to ask, because I've asked it several times.

I used to be a member of the Standing Committee on Fisheries and Oceans. A few years ago, a couple of Bloc Québecois members on that committee brought the Chisasibi First Nation to the committee to talk about the massive ecological damage they're claiming happened on the east side of James Bay as a result of the James Bay hydroelectric projects. They say that the eelgrass has disappeared, the migratory birds no longer come there, and the fish and all the other aquatic species have changed.

If this legislation were to pass in its current form, according to the test that is provided for in clause 16, which is about a balance of probabilities, and the paragraphs in clause 19, which are about the powers of the Federal Court, do you read paragraphs 19(1)(b) and 19(1)(e) and paragraphs 19(2)(a) and 19(2)(b) the same way I do? Should the first nation find a judge that would agree with them, the judge could actually order a permit that was granted years ago to Hydro-Québec to stop, cease, and desist. From the clauses I see here, a judge could “suspend or cancel the permit for authorization”, “order the defendant to provide financial collateral”, order the defendant to restore or rehabilitate any part of the environment, or “grant an injunction to halt the contravention”.

Do you see this potentially happening if this bill were to become law?

[Ian Kerr]

I think that is certainly one of the issues we've identified and that I think Mr. Irving spoke to in his opening remarks. It is a significant concern. At the moment, given the development timeline for new hydroelectric facilities, the risks associated with operating them, and their capital-intensive nature, a very limited number of organizations have the technical and financial capacity to undertake and operate these facilities.

I think some additional layering on of risk associated with the operation stage would reduce that group even further and would certainly eliminate some people from the pool of competitors.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Thank you.

[The Chair, Conservative, James Bezan]

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

Go ahead, Mr. Ouellet.

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

I yield the floor to Mr. Bigras.

[The Chair, Conservative, James Bezan]

Go ahead, Mr. Bigras.

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

Thank you, Mr. Chair.

In response to my questions, Ms. Duncan took the time to specify that her bill's area of jurisdiction is strictly federal. After analyzing the bill, do you feel that it is interfering in provincial areas of jurisdiction?

Section 23, which sets out civil action recourse, states the following:

23. (1) Every resident of Canada or entity may seek recourse in the superior 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 [...]

Does this not imply a conflict with provincial areas of jurisdiction? I believe that civil issues usually fall under provincial jurisdiction.

[Jacob Irving]

We think that if the federal courts were to force the federal government to change our projects in the provinces more substantially, this might well cause some friction between the relevant province and the federal government. According to the Constitution, the management of natural resources falls under provincial jurisdiction. If the federal courts were to force the federal government to assume greater control, take on new powers or powers that could be seen as new, tensions could erupt. We anticipate this turn of events.

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

Okay.

I have no further questions.

[The Chair, Conservative, James Bezan]

Merci.

Mr. Preston, it's your turn.

[Joe Preston, Conservative, Elgin—Middlesex—London, ON]

I have nothing, thank you.

[The Chair, Conservative, James Bezan]

You can pass it off to Mr. Calkins, if you wish.

Yes, go ahead.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

That would be great. Thanks, Joe.

Just following up on some lines of questioning, I think this may have already been brought up, but I can see some other issues with this bill, not to mention the rampant opportunity for judicial activism. This is being sold and trumpeted by members of Parliament, all of whom I think love to go home and wave the bill saying that we have an environmental bill of rights. But this isn't about the environment; these are the rights of environmentalists. In my opinion, this skews the balance of sustainable development, as talked about by my colleagues in the Liberal Party, and of a sustainable future.

The three pillars of sustainability are social factors, economic factors, and environmental factors. Does this bill throw out of balance those three pillars?

[Ian Kerr]

I don't know to what extent it would throw it out of balance. I guess it's perhaps favouring the social side. That's where I think we've seen some examples of obstructionist practices and vexatious litigation in areas. We develop not only hydroelectric power but also wind power. Certainly in wind power developments in Ontario, we have seen, I think, obstructionist behaviour that perhaps favours the social side, despite the fulsome environmental, social, and economic reviews these projects have undertaken through a lot of the existing processes and assessments.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

The fact that some others around this table have already brought up the fact that some of the provisions already exist, doesn't that speak to the redundancy and unnecessary application of this proposed legislation?

[Ian Kerr]

Again, in my experience in multiple Canadian jurisdictions, I've yet to see an instance when legitimate concerns have not had the opportunity to be aired and be addressed through the existing approval processes.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

If this legislation were actually brought to bear, I can see it being an opportunity for competing business interests. I think we've already discussed that a little bit at this table. But I'm thinking that if a solar company doesn't get a permit or a capital grant through the government, or various levels of government, and let's say that a wind project or hydro project did, isn't this legislation providing a perfect opportunity for the solar company, through this legislation, to try to block that permit and get an injunction for purely competitive reasons?

In looking at this bill, how hard would that be, if it were passed, with the various tests? The main test is the balance of probabilities, which is not a really tough test to pass. But how hard would it be to get a temporary injunction, or to halt the development of any project?

[Ian Kerr]

From our reading of it and the advice we're getting, it would not be very hard at all. It appears that's quite a likely outcome.

[The Chair, Conservative, James Bezan]

Thank you, Mr. Calkins. Your time has expired, and so has our time for this meeting.

I just want one clarification as chair. In your presentation and in your responses, you definitely had reservations about the bill. Would the Canadian Hydropower Association prefer that the bill be set aside or be amended?

[Jacob Irving]

There is probably opportunity for amendment, but it depends. Ideally one would like to see amendments come through that deal with all of our issues, and then that's fine. But if those amendments don't come to the fore, setting the bill set aside would have to be the logical choice.

[The Chair, Conservative, James Bezan]

Mr. Kerr.

[Ian Kerr]

Just to build on that, the amendments that we feel are needed to make this workable and to have the intended impact would be significant.

[The Chair, Conservative, James Bezan]

Thank you very much for appearing today on behalf of the Canadian Hydropower Association. Your testimony today, Mr. Irving, and Mr. Kerr, will help us form our decisions as we get into clause-by-clause consideration next week.

With that, I will have a motion to adjourn, please.