Evidence of meeting #36 for Environment and Sustainable Development in the 40th Parliament, 3rd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was rights.
A recording is available from Parliament.
November 22nd, 2010 / 4:45 p.m.
Senior General Counsel and Executive Director, Environment Canada, Legal Services, Department of Justice
No, it's not a common occurrence.
Bloc
Bernard Bigras Bloc Rosemont—La Petite-Patrie, QC
My second question deals more with subclause 16(1) of the bill, which reads
16. (1) Every resident of Canada or entity may seek recourse in the Federal Court [...]
That type of recourse can be sought in relation to any action or inaction by the Government of Canada that has in whole or in part resulted, or is likely to result, in significant environmental harm, but without the party that is the subject of the action having the right to be heard.
Isn't that a breach of the principles of natural justice?
Senior General Counsel and Executive Director, Environment Canada, Legal Services, Department of Justice
I believe you're asking me for a legal opinion which I am not in a position to provide.
Bloc
Bernard Bigras Bloc Rosemont—La Petite-Patrie, QC
But is that standard practice? Would that change the right to seek this kind of recourse?
Senior General Counsel and Executive Director, Environment Canada, Legal Services, Department of Justice
Some laws, particularly those dealing with injunctions, do from time to time provide an opportunity to seek an injunction without the opposing party being represented. We normally see this in emergency situations, and the party against whom the injunction is granted normally has access to some sort of appeal or review.
So, this is not something that is part of our corpus of laws. We may see this less often, and usually only in very specific situations.
Bloc
Bernard Bigras Bloc Rosemont—La Petite-Patrie, QC
Is it your view that any action or inaction that has in whole or in part resulted, or is likely to result, in significant environmental harm is an emergency?
Senior General Counsel and Executive Director, Environment Canada, Legal Services, Department of Justice
Without having the facts, I can't answer that. I have no example in mind at this point.
Bloc
Bernard Bigras Bloc Rosemont—La Petite-Patrie, QC
Who would be responsible for determining whether something was likely to cause…? Isn't that a little vague?
Senior General Counsel and Executive Director, Environment Canada, Legal Services, Department of Justice
It will be up to a court of law to determine whether it's something which is covered by the legislation and what action they are able to take.
Conservative
The Chair Conservative James Bezan
Merci beaucoup.
It's been a while since we've had some witnesses from the department here. I'll quote from chapter 20 of O'Brien and Bosc, page 1068, as follows:
Particular attention is paid to the questioning of public servants. The obligation of a witness to answer all questions put by the committee must be balanced against the role that public servants play in providing confidential advice to their Ministers. The role of the public servant has traditionally been viewed in relation to the implementation and administration of government policy, rather than the determination of what that policy should be. Consequently, public servants have been excused from commenting on the policy decisions made by the government. In addition, committees ordinarily accept the reasons that a public servant gives for declining to answer a specific question or series of questions which involve the giving of a legal opinion, which may be perceived as a conflict with the witness’ responsibility to the Minister....
So I do excuse Madam Roussel from answering those questions put by Mr. Bigras. I just want to remind everyone that there is a responsibility that public servants do have.
With that, we're going to move on to Ms. Duncan.
NDP
Linda Duncan NDP Edmonton Strathcona, AB
I mean, you didn't say that because you're afraid of what I might say.
Conservative
Conservative
NDP
Linda Duncan NDP Edmonton Strathcona, AB
Yes, sure.
Mr. Melaschenko, I want to take issue with the reply you gave about the potential for duplication of the power or responsibility of the Department of Justice to review consistency with the Canadian Bill of Rights. That's fine, and I take that on the face of it. That's good. It would be nice in fact if that's being delivered. That might be something we'll be “watchdogging”.
But what clause 26 deals with is not consistency with the bill of rights but consistency with the environmental bill of rights. Would it not be fair to say that is not necessarily an overlap? It may be the case for clause 28, but it's certainly not the case for the remainder of the bill. That responsibility is not prescribed anywhere else specifically.
I'm not saying that the role of Justice is to be looking at consistency and so forth, and hopefully that happens when legislation is tabled. But I want to seek your clarification on that.
Legal Counsel, Environment Canada, Legal Services, Department of Justice
Thank you. It's a fair question.
Both Bill C-469 and the Canadian Bill of Rights would include this right to a healthy and ecologically balanced environment. My point was that there's some subject matter overlap there.
NDP
Linda Duncan NDP Edmonton Strathcona, AB
Yes, and it's a fair point. Thanks for pointing that out.
I don't want to steal Mr. Scarpaleggia's question, but I thought I might ask it because many of these questions were not put to me when I spoke to my bill. I want to give you the chance to clarify, and he can follow up additionally.
There seems to be a bit of confusion by some of the committee members and some of the witnesses on the difference between the rights to bring civil actions and private prosecutions, which of course are completely separate. The Attorney General has the power to intervene to stay a private prosecution. But this bill does not deal with private prosecutions, it deals with standing to file civil actions--environmental protection actions--and judicial review.
I'm wondering if you might clarify that a bit. Is it not also the case that the rules of standing to file civil actions are bound by common law and precedent, and in many cases statutes? The Canadian Environmental Protection Act actually specifies that you can have standing. In fact, it clarifies that so you don't have to fight in the courts about standings on cases.
Senior General Counsel and Executive Director, Environment Canada, Legal Services, Department of Justice
First of all, I agree with the premise of your question. When we're dealing with private prosecutions, the Attorney General has the authority to step in to either stay the prosecution or to conduct the prosecution on behalf of the private prosecutor. When we're dealing with civil actions, whether we're dealing with judicial review, as you do in the bill, or a civil action writ large, the Attorney General does not have a role unless he's one of the litigants. The Attorney General would not have any role in a civil action between two other parties.
In terms of standing, there are some statutes that have some standing provisions, but it is something that's otherwise largely codified in case law and common law.
NDP
Linda Duncan NDP Edmonton Strathcona, AB
Thanks.
The issue has been raised, by a number of witnesses, about the scope of the bill. Some of the committee members have been concerned about whether or not the scope of the bill is clear, which would be apparent if you heard the questions to the previous witnesses. I would welcome your opinion on this. I guess you can't give legal advice, but it is something the committee might look at.
In the way it has been drafted, this act, as I understand...it's quite different in our law than in the codified Quebec law, where it may be more specified per provision. It's quite common, is it not, in common law statues, I guess we would call them, at the federal level, in provinces other than Quebec, to clarify the scope of the legislation at the very beginning?
In fact, clause 8 sets out immediately to clarify the scope of application to “decisions emanating from a federal source or related to federal land or a federal work or undertaking” . Then subclause 9(2) clearly places the obligation on the Government of Canada within its jurisdiction. In clause 13, it's only the review of federal instruments, and clause 14, acts of Parliament.
Are there not in fact many measures in this bill that set forth to constrain the ambit and scope of the bill?
Senior General Counsel and Executive Director, Environment Canada, Legal Services, Department of Justice
I can't answer that directly, because it will be verging on legal advice, but I think I can answer at least the beginning of your question.
Certainly it's not unusual in federal statutes, particularly in areas of overlapping federal and provincial jurisdiction, to have clauses at the beginning of a bill that set out the ambit of the federal authority. It often is referred to, particularly if you look at environmental statutes, as federal lands, undertakings, etc. Those types of things are not unusual in federal statutes.
I think the other part of your question did look like legal advice, so I'll stop there.
NDP
Linda Duncan NDP Edmonton Strathcona, AB
Yes, it's hard to generalize that.
It was suggested by some witnesses that this bill would cause great legal uncertainty because citizens could request a review of the adequacy of current legislation, statutes, or regulations.
Is it not the case that under a good number of federal laws, such as CEPA and the Canadian Environmental Assessment Act, the law itself requires that the law be reviewed every five years or so to make sure it is current? Is it not the practice that laws are regularly reviewed and updated? All this bill does is provide that the public would have a role in any such processes.
Senior General Counsel and Executive Director, Environment Canada, Legal Services, Department of Justice
It is certainly not unusual for statutes to have what we call statutory review provisions. They are, as far as I'm aware, all reviewed by Parliament. Certainly the examples are the Canadian Environmental Protection Act, the Canadian Environmental Assessment Act, and the Species at Risk Act, all of which I think this committee has or will be dealing with shortly.
What I think is unique here, and I certainly have not seen it in federal statutes, is a citizen asking a minister to review his act. I'm not putting a value judgment on that, but I think that is unique.