Environment Committee on Nov. 22nd, 2010

[The Chair, Conservative, James Bezan]

I call this meeting to order, meeting number 36. We are continuing with our study of Bill C-469, An Act to establish a Canadian Environmental Bill of Rights.

As the agenda shows, I have split this up into two hours. For the first hour we have at the table a person who is no stranger to the committee, Scott Vaughan, the Commissioner of the Environment and Sustainable Development. With him is Anne Marie Smith, the legal adviser. They are out of the Office of the Auditor General of Canada.

The Environmental Commissioner of Ontario, Gord Miller, is also joining us.

Welcome to committee.

I turn it over to you, Mr. Vaughan, to present your opening comments. I would ask that you try to keep them to under ten minutes.

Thank you.

[Scott Vaughan, Commissioner of the Environment and Sustainable Development, Office of the Auditor General of Canada]

Thank you, Mr. Chairman.

I would like to begin by thanking you for this opportunity to appear before the committee today to discuss Bill C-469, An Act to establish a Canadian Environmental Bill of Rights. Joining me today is Anne-Marie Smith, our senior legal counsel.

We have reviewed Bill C-469 with interest, in particular those clauses that establish new responsibilities for the Auditor General and the commissioner. Clauses 13 and 14 of Bill C-469 describe two possible new administrative responsibilities for my office. In both clauses, those new responsibilities assigned to the commissioner entail forwarding a request from a Canadian resident or entity to the minister responsible for a review or investigation—acting as a kind of clearing house. We could perform that function.

As committee members may know, the commission already acts as a clearing house for environmental petitions by tracking the environmental petitions received and reporting to Parliament on the issues raised and the timeliness of ministerial responses.

Turning to clause 26 of the bill, this would, as we understand it, require the Auditor General of Canada to examine all new federal regulations and every bill introduced to the House of Commons to determine whether they are inconsistent with the purposes and provisions of Bill C-469. We have concerns with these responsibilities. Although the goal of ensuring regulatory consistency is important, in our view this is the responsibility of the government rather than the OAG. Indeed, mechanisms already exist designed to ensure consistency and consideration of environmental implications in government policies and programs.

For example, regulatory impact assessment statements must accompany every regulatory proposal submitted for government approval and each statement must include various analyses and justification prior to implementation. Another example is the strategic environmental assessment of policy, plan, and program proposals.

This committee may wish to explore these mechanisms as well as the role of the Department of Justice Canada. That department is the central agency responsible for providing advice on all legal matters, including the constitutionality of government initiatives and activities.

Mr. Chairman, this concludes my opening remarks. We would be pleased to answer any questions.

Thank you.

[The Chair, Conservative, James Bezan]

Thank you, Commissioner. We appreciate that.

Mr. Miller, we welcome you to the table. We were hoping to have some other jurisdictions that already have an environmental bill of rights in place, so it's great to see you, representing Ontario.

[Gord Miller, Environmental Commissioner of Ontario]

It's a pleasure, Mr. Chairman, to be here. In fact, I'm really pleased to appear before this committee, because the Canadian environmental bill of rights reflects many of the experiences we're had in Ontario with our Environmental Bill of Rights.

As the Environmental Commissioner of Ontario, appointed by the Legislative Assembly of Ontario, I'm responsible for monitoring and publicly reporting on the government's compliance with Ontario's Environmental Bill of Rights, or, as we call it, the EBR. As Environmental Commissioner for over 10 years, I would like to share some general comments based on my own experiences with Ontario's EBR for your consideration on the purposes of the CEBR, just by way of general comments.

I believe the proposed CEBR has the potential to become an important and positive piece of legislation. Since coming into force in 1994, Ontario’s EBR has helped to increase accountability, transparency, and public participation in environmental decision-making and ultimately improve environmental protection in the province. In my view, Bill C- 469 has the potential to provide many of the very same benefits--i.e., improved accountability, transparency, public participation, and environmental protection--on a federal level.

In regard to examination of bills and regulations by the commissioner, the proposed CEBR would require the Auditor General, through the Commissioner of the Environment and Sustainable Development, to examine all proposed bills and regulations to ensure consistency with the purposes of the CEBR. Although similar provisions in Ontario’s EBR require me to review and comment on compliance of government decisions with the provisions of Ontario’s EBR, the ECO--my office--has provided an important independent and impartial voice in the public discourse on environmental issues, helping to pave the path for improved future environmental decision-making.

On the point of access to information and public participation in environmental decision-making, the proposed CEBR would require the federal government to provide information to the public on environmentally significant decisions as well as provide a right for the public to participate in environmental decision-making. In Ontario, the high level of public engagement in environmental decision-making under the Ontario EBR has been one of the greatest successes of the statute. Through the use of a dedicated web-based environmental registry, each year provincial ministries now post thousands of public notices relating to proposed and final environmental decisions, including convenient links to background documents. Through this same registry the public can provide informed comment, which is considered by the ministries in their final decision-making.

By posting proposals for new environmentally significant acts, regulations, and instruments on the environmental registry for public notice and comment, the government has increased transparency and accountability in its decision-making, which has resulted in improved environmental decision-making, and in many cases, greater public buy-in to government decisions.

While the proposed language of Bill C-469 includes the key components of public engagement--i.e., access to information and the opportunity for effective public participation--I strongly encourage the use of a single dedicated registry, such as is used in Ontario, to maximize public access to government proposals and decisions, as well as mandatory minimum standards for consultation.

On the point of the right to request a review of a federal policy, regulation, or law, the proposed CEBR would provide a right for a member of the public to request a review of a federal policy, regulation, or law. Ontario’s EBR includes a similar right, but requires that two applicants request a review. I believe that requiring the collaboration of two applicants encourages thoughtful, well-documented applications.

In Ontario approximately 10 to 25 applications for review are submitted each year. These applications contribute insights and new perspectives that might not be raised by the usual mix of civil servants and stakeholders talking around the table. Of the requests submitted, about 13% lead to some direct action, such as a review of and/or improvements to the law, or regulation, or policy. Moreover, in many cases where a review is not formally undertaken the application nevertheless helps push the agenda forward, throw light on the issue, or trigger some other indirect action.

On the point of the right to request an investigation, the proposed CEBR would provide the right for a member of the public to request a government investigation of a suspected violation of a federal environmental law. Again, Ontario’s Environmental Bill of Rights includes a similar right allowing any two applicants to request an investigation. In Ontario approximately 10 to 20 such applications for investigation are submitted each year. Of these, about 36% of the requests have led to investigations with some sort of enforcement action arising out of them. In many other cases, even where the government has denied the application for investigation, the ECO has found that the application has resulted in some other indirect action.

I believe this right provides a particularly valuable tool. With limited government staff and financial resources to regularly inspect all regulated facilities, this tool empowers the public to play a role in helping to identify potential environmental violations. Without this right, a number of violations identified in Ontario may not have been uncovered.

On the point of legal actions, the proposed CEBR would provide the public with access to additional legal recourses. First, the CEBR would ensure that concerned residents are not denied standing before the courts in environmental actions solely because they do not have a private or special interest in the matter. Second, the CEBR would allow the public to seek judicial review of a government action or inaction that has resulted or is likely to result in significant environmental harm. Third, the proposed CEBR would provide a right to commence a civil action against a person who has contravened a federal act or regulation that is likely to result in significant environmental harm.

Ontario’s EBR provides the public with a different but comparable set of legal rights. We have appeal rights. Where an appeal right already exists for an instrument-holder, for some company that has a permit or licence, for example, the Ontario EBR provides a right to third parties to request permission from the relevant tribunal, usually the environmental review tribunal, to appeal a ministry decision on certain environmental instruments, such as licences and permits. Permission to appeal will be granted only if the applicants are able to successfully demonstrate that they have an interest in the decision in question, that no reasonable person could have made the decision, and that the decision could result in significant harm to the environment.

On the matter of public nuisance claims, the Ontario EBR provides members of the public with a right to sue for damages for direct economic or personal loss that has resulted from a public nuisance that has harmed the environment, without the approval of the Attorney General. Prior to this act being passed, claims for public nuisance in Ontario had to be brought by, or with the leave of, the Attorney General.

On the matter of “harm to a public resource” claims, the Ontario EBR gives members of the public the right to sue any person who is breaking, or is about to break, any environmental law, regulation, or instrument that has caused, or will cause, harm to a public resource.

In Ontario, these legal actions have been used very sparingly. While public participation mechanisms through other mechanisms--i.e., commenting on government proposals and submitting applications for review and investigation--have been used extensively, use of these legal actions has been minimal. In the 16 years since the Ontario EBR was enacted in 1994, Ontario has seen only one claim for public nuisance—and in that case, public nuisance was just one of many causes of action relied upon—and only one court action under “harm to a public resource”. In addition, about five to ten “leave to appeal” applications are filed each year. Clearly, the legal actions have been reserved as a last resort, which was the intent of the drafters of our legislation.

On the matter of legal costs, the proposed CEBR would allow a court to order a plaintiff of a judicial review to pay costs only if the action is frivolous, vexatious, or harassing. The proposed CEBR would also authorize the court to award a plaintiff counsel fees and/or an advance cost award in certain circumstances. I strongly support these provisions. I have identified the chilling effect of potential cost awards as a serious barrier to public interest legislation, and I have intervened in two separate court proceedings to speak to this issue. The proposed provisions in the CEBR should help address this barrier to meritorious environmental legal cases.

In closing, I would like to reiterate my opinion that the proposed CEBR would be an important and positive piece of legislation that would enhance government accountability, transparency, and public participation in environmental decision-making. In these ways, the CEBR would encourage better environmental decisions and in turn ensure a better-protected environment for future generations.

Thank you.

[The Chair, Conservative, James Bezan]

Thank you, Mr. Miller.

We're going to go to our seven-minute round, and kicking this off is Mr. Kennedy.

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

Thank you both for your presentations and the work that you're doing.

Mr. Vaughan, could I ask you for a little bit more elaboration? I don't want to paraphrase, but it sounded as though you didn't think there was potential for duplication in the potential new role being contemplated for the Office of the Auditor General. I wonder if you could give us a little bit more of the “whys” of that.

In other words, I think the intent of the legislation--maybe the drafter can speak to it in her round—is independence, and an independent opinion about how well that's being done. We all know there are various other efforts and onuses on federal government deputy ministers. There's a ministerial directive, and there's the new sustainable development, but I think the general context for this bill is that we've not succeeded as much as people would like us to have.

So could you address that, maybe just briefly for us, to give us a little bit more of the practical part of that?

[Scott Vaughan]

Thanks very much for the question.

I think you can see from the opening statements between the two the contrast of the mandates between Mr. Miller's work and the work that we do through the OAG.

In a nutshell, most of the work that we do in providing reports to Parliament are through assurance engagements, meaning that we won't say something until we are absolutely certain of what we are saying. That assurance is based on looking at implementation to a fixed date. So trying to speculate, for example, or doing an ex ante forward assessment on what might be an area of potential regulatory inconsistency....

We certainly will do whatever Parliament wants, but it seems to me, and I was trying to suggest, that there already are mechanisms in the government. I think they certainly can be strengthened, they can be clarified. Regarding the strategic environmental assessment, there's been a new cabinet directive which requires ministers to ensure consistency among all the policies government-wide, and to ensure consistency within the context of environmental goals and sustainable development. And there are others. I mentioned the regulatory impact assessment.

The second part of this, though, is that if, for example, we did do that forward-looking ex ante type of assessment on what might happen in the future, it's important for Parliament to be able to rely on the OAG to go back and say, “Well, what has been the performance? Has the government done what they've said they were going to do?” Our recommendations are, by nature, forward-looking. If we see something that's broken, we will make recommendations to the government, hopefully, to fix it. We will go back and audit them and provide additional clarification to Parliament on saying, “Is it working? No. How best to fix it? Is it fixed?” The government will say what it is going to do.

So part of it is duplication, but it also gets in part to the different mandates between what we do and what Mr. Miller's office does.

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

I appreciate that.

Mr. Miller, welcome. Good to see you again in different context.

I appreciate your testimony. I think it's really important. You have one of the biggest mandates of the provincial governments that have this. But there are differences between the law that you're implementing and the one that's contemplated here.

Some observers have told us that the implementation mechanism here is more significant than the Ontario one. I think you've been very helpful to point out differences in how things work, and to draw on your experience to say whether things have been working, and what to expect, and so on.

Do you see important differences here? Some people coming before the committee have said that this takes it too far, if I can overgeneralize, and that there are new powers and new things here that we would perhaps be surprised by the results of.

[Gord Miller]

It's interesting; the way I look at it is that it brings your proposal.... I mean, there is a very big difference between the federal commissioner and my office in terms of the way we're structured and the way we are intended to report to the legislature.

I see the provisions in this bill bringing in some of the better elements—well, what I would call “better elements”—in terms of public participation and the public's ability to access decision-making in the government and improve the role of the federal Commissioner of Environment and Sustainable Development in that the request for review and request for investigation allows the public to have a more direct and intimate relationship with the office, as they do with my office.

I don't think it fundamentally changes the main structure and difference, which is that the federal commissioner's office is primarily an audit office and my office is a policy office. But I think there's some tremendous value in allowing the public a little more “in”. With all due respect, an auditor's job is not a great public involvement job, although traditionally a valuable job. This allows the public to engage a little more, which I think would be an enhancement without actually undermining the structure and intent of the model that they work with.

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

Just to be clear, then, you don't see any really new and adventuresome parts to this act, based on your experience?

[Gord Miller]

Well, one part of new and adventuresome is the cost funding in the legislation. That clearly is new and cutting-edge. The reverse of that, which is to use cost awards in proceedings before tribunals and courts has been used punitively, in my opinion, in Ontario. It becomes punitive not only in the magnitude of the award, it becomes so costly to fight the possibility of a cost award, that in itself.

What you've done here in this bill, for the legal opportunities provided, is you've taken that stigma out and allowed it to be much friendlier to proper intervenors, people who have a legitimate case brought forward.

So that, I think, is cutting-edge. I congratulate you for considering it, because it is an interesting and dynamic part. I wish I had that in Ontario.

For the rest, I see it as being similar to some of the stuff that we've pioneered and added to the existing role. I don't see it as being terribly dramatic, but very worthwhile.

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

I just have a couple of seconds left, but on a scale of 1 to 10, then, how important is getting rid of that chilling effect for public participation?

[Gord Miller]

Oh, it's very important, because it's becoming very dominant in my day-to-day activity.

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

So it's an eight?

[Gord Miller]

I'd give it a nine out of ten.

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

Okay. Thanks.

[The Chair, Conservative, James Bezan]

Thank you.

Thank you, Mr. Chairman.

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

Thank you, Mr. Chairman.

Good afternoon, Commissioners.

Mr. Vaughan, when it appeared on November 17, the Canadian Shipowners Association tabled a brief. On page 4 of that brief, shipowners stated that clauses 14 and 16 of the bill were of great concern to them, and I quote:

[...] our organization is concerned that clauses 14 and 16, as currently worded, could undermine the current environmental petitions process under the Auditor General Act.

Clauses 14 and 16 deal with everything related to investigations.

Do you share the view of the Canadian Shipowners Association that clauses 14 and 16 of the bill could undermine the petitions process under the Auditor General Act?

[Scott Vaughan]

No, not at all. We have reviewed clauses 13 and 14 and, as I mentioned in my opening statement, I believe there is some compatibility between the environmental petitions process currently in place at the Office of the Auditor General and the mechanisms proposed in this bill.

In fact, I have no concerns with respect to the compatibility of the systems currently in place and what is proposed in the bill.

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

My second question is for Mr. Miller.

I imagine you are familiar with the federal petitions process under the Auditor General Act. You also have your own investigative process. How would you compare the two processes currently in place?

[Gord Miller]

Well, I would argue that the right to request an investigation under the Ontario legislation is more powerful, in that it puts an obligation on the two applicants. They have to provide evidence. Their request doesn't have to be a prima facie court case, but it has to provide evidence. Then it goes to the ministry responsible for the enforcement issue in hand. That ministry has 60 days to respond on whether or not they will do that investigation. If the answer is they will not, they have to give reasons, and those reasons are subject to my independent review.

So it is a more formal and structured mechanism of response. It's dealing specifically with what potentially would be a provincial offence. So I think it is more rigorous than the petition process, as I understand it, where people can bring forward concerns and the evidentiary burden is not great, and where people are potentially by their nature less sophisticated. They may know something or sense that things are wrong and they...there's not rigour on that part, so the response from the government ministry may not in fact be as thorough.

It may be the case that the Auditor General's office may comment on those, but again, the interaction of information is not as rigorous because it's not as structured. So I think our system is more structured and, therefore, that it gives a better outcome, even if that outcome is negative and the ministry says no and gives good reasons why they are not doing that.

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

My question is still for Mr. Miller. It has to do with clause 23 of the bill regarding civil actions. You quite rightly point out, in item 6 of your brief that “the proposed CEBR would provide the public with access to additional legal recourses.” A little further on, you say that “Ontario's EBR provides the public with a different, but comparable set of legal rights”. You draw a parallel between civil actions in Ontario and federal actions.

The Canadian Petroleum Products Institute provided a legal opinion that I would like to quote from on page 6:

Unlike similar provisions in the CEPA and the 1993 Ontario Environmental Bill of Rights, 1993, it is not necessary to request an investigation before bringing a civil action to protect the environment under Bill C-469.

So, you say they are comparable, but people in the industry are saying there are not. So, how can you claim that Ontario's EBR provides a different but comparable set of legal rights?

[Gord Miller]

Perhaps I would go so far as to say that perhaps I've overstated that in the sense that when I'm talking about comparability in my comments, I'm talking at a very general level, in that both pieces of legislation invite the public to participate in some kind of civil action.

In fact, to be very clear, and thank you for the question, it breaks down very quickly and it is quite different. The civil action envisaged under the provincial Environmental Bill of Rights is quite focused on allowing public nuisance claims, which is something that is set down in common law and widely recognized. It really releases the block that exists with the Attorney General.

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

That's correct.

[Gord Miller]

The other one is the harm to a public resource claim, which is quite different from what is in your proposed legislation. The only similarity is that they're both civil actions that can be brought.