Environment Committee on Nov. 17th, 2010

[The Chair, Conservative, James Bezan]

Thank you.

Mr. Scarpaleggia, you can kick us off on the five-minute round.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Thank you, Chair.

I'm trying to sort out this issue of whether this bill can require the suspension of a permit or not. I believe, if I'm not mistaken, Ms. Duncan said it doesn't and someone else here said it does. I think I found the clause that talks about suspending or cancelling permits, and it's subclause 19(2).

I was told, however, by a lawyer that in fact this should be removed, because it doesn't really make sense, because we're talking about judicial review with respect to the Government of Canada, and the way this clause is worded it's really referring to defendants other than the Government of Canada. Anyway, I'm going to be proposing an amendment to remove this clause.

Mr. Irving, if we were to remove this clause, would you feel more comfortable?

[Jacob Irving]

According to the analyses I've had from my members, I'd say that would increase our comfort.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

That's good to know.

The other amendment I will be proposing is to remove subclause 23.(3), which is causing a lot of consternation among industries that have contacted us about the bill. It says it is not a defence to civil action under subclause 23.(1) that the activity was authorized by an act or a regulation. In other words, as I understand it, removing this would take a lot of the uncertainty away. Industry feels that even if it conforms to regulations and laws it's still vulnerable. If we took that out, would it make the bill more acceptable to you?

[Jacob Irving]

Yes, that's another complicating clause.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Great.

As to frivolous lawsuits, do you feel there's sufficient protection? I'm sure you've been asked this question before, but maybe you could just revisit it with me. Do you feel there is sufficient protection against frivolous lawsuits in the bill as it is currently drafted?

[Jacob Irving]

No, according to our reading, we see next to no protection. We see a desire to open the courts to more actions based on environmental protection or improvement.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Subclause 21.(1) seems to say that people found to have brought frivolous, vexatious, or harassing lawsuits may be ordered to pay court costs.

[Jacob Irving]

Yes, but we are concerned that our projects could be adversely affected by the uncertainty arising from the amount of time it takes these suits to get to court and be resolved.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

You might have to go to court and pay a lawyer, but you're representing big industries that can afford that.

In addition, you may be underestimating environmental NGOs. I don't think they have any interest in bringing frivolous lawsuits and having to pay costs. They do not have a lot of money at their disposal. So they tend to pick and choose cases that can be won and that are significant in case law.

I think there's a problem under the civil action clause. Clause 21 is not referred to under the civil action clause. So I'm going to bring in an amendment to add something like clause 21 under the civil action clause. That would add some protection for you. I imagine that would make you feel more comfortable.

[Jacob Irving]

Improvements are always appreciated.

For us, however, it's not so much a matter of money and having to pay to go to court. Rather, it's the time involved and the uncertainty surrounding it. As for predicting who would bring suits against us, we can't determine that. I'm not trying to prejudge any of that.

[The Chair, Conservative, James Bezan]

Time has ended. It goes by so fast when you're having fun.

Mr. Armstrong, you're on.

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

Thank you, Mr. Irving, for your presentation. I found it interesting. It supports what we've heard from several of the witnesses who have been here.

I'm from Atlantic Canada, and we like to think that Atlantic Canada will become a green-energy superpower in the next couple of decades. Would you agree that there's huge green-energy potential in my region of the country?

[Jacob Irving]

Yes, we benefit from membership in Nalcor, the crown corporation that develops all forms of energy in Newfoundland, hydro power in particular. Newfoundland has huge hydropower potential. It's known to many. I think there's some exciting potential there that could be brought to the benefit of many.

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

Of course you're aware of the Lower Churchill Falls project, which probably has one of the highest potential yields of clean green energy, perpetual energy, in this country for the next generation. Would you agree with that statement?

[Jacob Irving]

By all accounts, we have seen that there's a lot of potential there, and it could bring a lot of benefits.

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

Do you feel that if this bill is passed unamended, as it sits now, the project could be impeded by someone intervening from Alberta, for example, or British Columbia or Ontario or other provinces, which would slow down this green energy potential in Atlantic Canada?

[Jacob Irving]

My understanding is that yes, this really does open up quite widely the opportunity for others to second-guess, I would almost put it, permits or authorizations that were put in afterwards. And I see no restriction on who could do it from within Canada.

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

It says “every resident”. Could you see that foreign citizens who happen to reside in Canada could throw a wrench into the Lower Churchill project in Atlantic Canada?

[Jacob Irving]

That's an interesting piece that I actually hadn't clued in on. Yes, “resident” does seem to be a key word.

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

If you were working for some other sort of energy producer that would see Lower Churchill coming into competition over the next 25, 30, or 40 years.... Do you think there is a potential for this bill to be abused by some foreign energy producer that could send residents in to actually challenge that? I'm not saying that it would happen, but would the potential be there if this bill were passed unamended?

[Jacob Irving]

Actually, that probably is a follow-up to the last question. You know, when you talk about vexatious lawsuits, there is that potential. I followed some of the comments made by the Canadian Chamber of Commerce earlier this week, and it would seem to me that there is that likely potential.

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

People could abuse the bill in its current form to actually derail clean, green, perpetual energy projects and hold Canada hostage to being tied to fossil fuel production.

[Jacob Irving]

It sounds like an example of vexatious litigation, yes.

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

In the end, this bill could actually harm the environment in the long term in this country, not help it.