Environment Committee on Nov. 22nd, 2010

[Mark Warawa, Conservative, Langley, BC]

Mr. Chair, my question to you is whether Ms. Murray's question is in order. I believe it's not in order.

[The Chair, Conservative, James Bezan]

She referenced a notice of motion that hasn't been tabled and is not public yet.

Actually, it is out of order, so I would ask that you ask a different question, Ms. Murray.

[Joyce Murray, Liberal, Vancouver Quadra, BC]

Thank you, Mr. Chair. I apologize for that.

In the testimony of the previous witnesses, there was a discussion about whether there was an overlap with other laws, and I understand the Fisheries Act was one that was mentioned as potentially being a duplication. Is there concern about other areas of overlap with provincial jurisdiction and provincial laws?

[Kathleen Roussel]

I think it's probably worth taking the time to talk a little bit about the overlap with the mandate of the Attorney General in clause 26, but I'll answer your question more generally first.

There are certainly occasionally--because of the shared nature, constitutionally, of jurisdiction over environment--acts that would trigger an offence under both a federal and a provincial statute. That's not to say that the offence provisions are necessarily overlapping, but it does mean that there may be circumstances under this bill in which a citizen could be complaining to both the federal and the provincial governments, and certainly I would leave it to you to work out whether that's a problem.

[Joyce Murray, Liberal, Vancouver Quadra, BC]

Thank you.

One of the members asked whether this would significantly increase bureaucracy and workload for government departments. From your study of this bill, how would you comment on that question?

[Kathleen Roussel]

I'm not going to argue myself out of a job, obviously, but I think really that calls for a lot of speculation. Certainly the bill introduces new avenues of litigation against the government, and it does introduce some remedies that were not previously there, particularly with respect to things like requesting an investigation and review of statutes.

So is it introducing new obligations for government and perhaps new legislation? Absolutely. But it would be purely speculative at this point to say how much work that would turn out to be.

We do have provisions for a request for investigation, with which we're quite familiar under the Canadian Environmental Protection Act. This is almost anecdotal, but I've been in environment for five years, and I think we've had two or three requests, so whether this would bring a large new crop, I don't know.

[Joyce Murray, Liberal, Vancouver Quadra, BC]

My interpretation of what we heard from the Environment Commissioner of Ontario is that this bill would add some positives in terms of public participation and transparency and so on, but it didn't sound like a substantive change in approach to environmental protection.

On the other hand, we had a submission last week, which I'll quote, that said this “would fundamentally change the nature of environmental protection in Canada, increase uncertainty, [and] invite litigation”.

From your review, does this fundamentally change the nature of environmental protection in Canada?

[Kathleen Roussel]

I'm not sure what that means in terms of the nature of environmental protection, so I don't know if I can answer that fairly. It certainly does add remedies that were not there previously and avenues for obtaining further information. In some cases, things like registries of environmental information already exist, so there are some processes that already exist under several federal statutes.

[Joyce Murray, Liberal, Vancouver Quadra, BC]

I'm also interested in your take on the commissioner of the environment's comments—I think it was clause 26 he was talking about—that this would tend to cause his office to do work they're not normally doing. One of our members pointed out some statutes under which the commissioner's office would be commenting in a forward way on potential impacts on the environment.

So how does the justice department see that?

[Kathleen Roussel]

I'll ask my colleague to address that, because I think it's a fairly clear area of overlap with the mandate of the Minister of Justice.

[Joseph Melaschenko, Legal Counsel, Environment Canada, Legal Services, Department of Justice]

Yes, I think there is some overlap in the sense that the Canadian Bill of Rights now imposes an obligation on the Minister of Justice to examine the consistency of both government bills and regulations with the Canadian Bill of Rights.

Now, if this bill passes with the amendment to the Canadian Bill of Rights, that statute will include “the right to a healthy and ecologically balanced environment”. That is the overlap in the sense that under clause 26 of this bill, the Auditor General will have to examine government bills and regulations for compliance with this bill, which also includes the right to a healthy and ecologically balanced environment.

With the passage of this bill, that is something that both the Minister of Justice and the Auditor General would then be looking at.

[Joyce Murray, Liberal, Vancouver Quadra, BC]

Has the justice ministry looked at issues around environmental protection and the right to a healthy environment in reviewing bills under the bill of rights in the past?

[Joseph Melaschenko]

I would have to say no, just because that right is not currently included in the bill of rights.

[The Chair, Conservative, James Bezan]

Thank you.

The time has expired.

Mr. Bigras, please.

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

Thank you very much, Mr. Chairman.

I would like to thank our witnesses for being with us this afternoon.

I will begin with clause 9, which sets out the right to a healthy environment. Subclause 9(1) reads as follows:

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

It seems to me that this is a very vague conceptual right, with no references. Yet some provinces have implemented the same system. I'm thinking of the Quebec Environmental Quality Act which states the following in section 19.1 with respect to the right to a healthy environment:

19.1 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 [...]

What is the effect of this lack of reference to federal legislation? What is the effect of a lack of parameters? It says here that people have a right, but that right does not refer to the Canadian Environmental Protection Act or any other statute. What is the difference between leaving this clause as is and specifically saying “to the extent provided for under existing legislation”?

[Kathleen Roussel]

Mr. Melaschenko has done a comparative study. So, if you have any questions on that, I will let him answer them. I would just like to begin by giving you a more general response.

I would agree that subclause 9(1) is quite broad in scope. In spite of that, however, I think it's important to read it in relation to the remedies available to residents under subsequent clauses of the bill. My reading of it would suggest that we are talking about the remedies set out in clauses 10 to 23. Ultimately, that is probably the way it would be interpreted. Clause 9 would be interpreted in light of the potential remedies set out subsequently in the bill. However, I do agree that it would be easier if this were specified in the clause.

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

Fine. Thank you. Would your colleague like to add anything?

[Joseph Melaschenko]

I would simply say that on the face of it, you're correct. If I understand your comment, that's a limitation you don't find in clause 9. It is in the Environment Quality Act and, as you probably know, it's in Quebec's Charter of Human Rights and Freedoms as well.

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

My second question relates to subclause 23(1), which reads as follows:

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, an Act of Parliament or a regulation made under an Act of Parliament [...]

Please correct me if I'm wrong, but is this recourse to Superior Courts of the relevant province the usual reference in federal statutes? It seems to me that civil matters fall within provincial jurisdiction. Is this a common occurrence? Do you often see this in federal statutes?

[Kathleen Roussel]

I will limit myself to the legislation I'm familiar with. This may not be something we often see, although in those statutes that deal with actions against the federal government, except in areas under the Federal Court's jurisdiction, the provincial superior courts are the appropriate authority. Civil suits are definitely handled by the superior courts as a general rule.

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

Yes, that's clear.

[Kathleen Roussel]

It does not normally have to be specified.

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

It doesn't have to be specified in a federal statute. But isn't that interference?

[Kathleen Roussel]

I think it's more to clarify, although it wasn't necessary perhaps.

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

It's not a common occurrence.