Environment Committee on Nov. 22nd, 2010

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

As I understand it, unlike the bill presently before us, under the Ontario Charter, there has to have been an investigation before a civil action can be brought. Is that not what really explains…?

[Gord Miller]

It's a request for investigation.

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

Yes.

[Gord Miller]

There has to be a request for investigation, which may be turned down.

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

But do you agree that under the Ontario Charter, there are quite a few more limitations than under Bill C-469, even though the spirit of the legislation is essentially the same? We recognize that the spirit of the legislation is the same—a process open to the public, the ability to bring civil actions—but, ultimately, the Ontario Charter contains more limitations than Bill C-469.

[Gord Miller]

I agree. If I was unclear on that, I apologize. I agree with your analysis. There are more parameters. It is more restricting in its application.

That was, in the design, the attempt...if you review the comments made at the time of drafting, the rights to sue, the actionable portions of our bill, were intended to be the backstop, the last resort, only to give rigour to the other provisions. In fact, that's how it has played out in Ontario.

[The Chair, Conservative, James Bezan]

Thank you. Your time is up.

Ms. Duncan.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Thank you, Mr. Chair.

I also wish to thank the witnesses for attending to speak to my bill. I really appreciate the effort you put into your testimony and the analysis.

I want to congratulate both offices. Commissioner Vaughan's ears are probably buzzing for all the compliments I give for the work his office does. I want to extend them as well to the Ontario office. After 15 years, I think it has shown itself to be an invaluable office. Thank you for your good work.

My first question is for Commissioner Vaughan. Thank you for your points on seeing that there are no inconsistencies, under your point three.

Under your point five, I want to review your mandate a bit to see what you think about an argument for why it may not be conflicting. It's actually interesting, listening to Mr. Miller's testimony, that he seems to be paving the way for the argument I'm about to make, which hadn't occurred to me.

That is, of course, that various entities can be mandated under different pieces of legislation. Of course, the Commissioner for the Environment and Sustainable Development is mainly mandated under the Auditor General Act. But over time, the commissioner has also been given an extended mandate under a lot of other pieces of legislation.

Of course, it may well be argued that having established the commissioner's office under the Auditor General's office may lead to a mindset of approaching matters in “the way things are done”, rather than with an approach as a separate commissioner for environment. I think that's a very interesting point.

Mr. Vaughan, I've looked at a number of statutes that you are mandated under. It appears to me that your mandate already moves your office towards being more forward-looking, not just waiting until the government has acted. It's similar to the provision in clause 26 of the environmental bill of rights. Let me give a couple of examples.

For example, subsection 9(4) of the Federal Sustainable Development Act empowers your office to “review and comment as to whether the targets and implementation strategies can be assessed” in advance of final cabinet approval. Again, that's forward-looking, making recommendations so that potentially there could be changes before the final determination by the cabinet.

Secondly, sections 21.1 and 23 of the Auditor General Act mandate your office to provide sustainable development monitoring—reporting towards sustainable development—and to consider a wide array of factors that mirror the environmental bill of rights; again, it's forward-looking.

Section 10.1 of the Kyoto Protocol Implementation Act requires your office at least every two years to submit a report to Parliament analyzing progress in meeting those obligations under that law and reporting any other observations and recommendations.

Is it not a reasonable argument that in undertaking those analyses you would also consider whether the government has exercised its discretion to enact laws, promulgate regulations, or even in its Budget Implementation Act to give consideration to sustainable development, environmental protection, and so forth? Is that not very similar to clause 26?

I'm sorry if that's a complicated question.

[Scott Vaughan]

No, on the contrary. I think the honourable member has raised important issues. Thank you very much,

I'll just go through those examples, and maybe this would then provide clarification on some of the work we do and the timing of it. The member is quite right that under the FSDS we were requested to comment in advance of. To give an example of what that looked like in the letter that I sent to the minister under my statutory obligations in June, we did an assessment of the targets, the goals, and the initiatives in the draft strategy. So there was something there for us to examine that the government had released in March on its draft strategy, which looked at the eight goals, 23 targets, and 2,200 existing initiatives. We asked “Can they be assessed?”--meaning can they be assessed from what we know right now--and what we said was “Not very well” in that 30% of the targets and 5% of the implementation strategies had enough information.

So that goes to some of the work that our office does. Certainly the member is right; we would look at a governmental strategy, a governmental plan, which by definition is forward-looking, and we would take apart the components of that plan to say do they have a baseline, do they have a timeline, do they know where they are now, do they know where they want to get to, do they know how they're getting there, and do they know a way of reporting if they are succeeding or not.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

And might you not also ask them if they have a regulatory agenda and timeline?

[Scott Vaughan]

And so within that, any measure related to advancing the government's policy on sustainable development, whether it's fiscal policy, regulatory instruments, programs, or other initiatives, that is and that would fall in within the work that we do. We also then, looking at regulations, would say—again back to an ex post rather than an ex ante—if it is not being implemented, the government looks like it is not in compliance with, but to go toward the forward-looking, then, gets into different areas.

I take your point on section 21 of the OAG act that certainly is progress towards in KPIA, as well as progress towards implementation. Our KPIA report from 2009 was to look to the progress to date, and we were very careful to say you cannot speculate forward on what would happen during the full Kyoto period to 2012. We wouldn't go and speculate what the post-Kyoto period looks like.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Okay.

At any rate, thanks for your very astute answer, so quickly, in response to my complicated question.

[Scott Vaughan]

I'm sorry for the long answer.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Mr. Miller, thank you very much for your testimony.

A very important part of this bill that I tabled is the part about enabling the public to participate in environmental decision-making, and that appears in a number of the provisions. I have very profoundly supported that for my 40-year career, that there is an imbalance in opportunity for the public to participate in decision-making. I am raising it particularly because, of course, I was the first head of law and enforcement for the NAFTA environment commission, where Canada and the Province of Alberta, and I think Quebec, and maybe Manitoba, have signed on and committed to advance notice and consultation on any new environmental law or policy.

So I am wondering if you could elaborate a bit. We have heard from other witnesses talking about where they found that part of the Ontario bill has ended up being the most profound new right and opportunity.

[The Chair, Conservative, James Bezan]

Ms. Duncan, your time has expired.

Mr. Miller, if you could make just a short response, I would appreciate that.

[Gord Miller]

A quick response would be to say that, yes, on the environmental registry, the ability of the public to respond has evolved quickly in time in that thoughtful ministries are using it very effectively in multiple tiers to identify public concerns early with draft papers and such things before the actual proposal comes out. In that way, they are able to identify where problems are, head them off well before things they didn't anticipate. So I think it has been a very useful process for both the government bureaucrats trying to do the work, for the government members trying to get the legislation passed, and certainly for the public.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Thank you.

[The Chair, Conservative, James Bezan]

Thank you.

Mr. Warawa, can you bring us to the last part of this seven-minute round?

[Mark Warawa, Conservative, Langley, BC]

Thank you.

Thank you to each of the witnesses for being here.

As we heard testimony this afternoon it became evident very clearly that the roles and responsibilities of the two offices, the Commissioner of the Environment federally and the office of Mr. Miller, have quite different mandates. I'm going to focus on the federal aspect. And thank you, Mr. Miller, for the comments that you've made.

The Auditor General of Canada and the Commissioner of the Environment provide parliamentarians with objective, independent analysis and recommendations on the federal government's efforts to protect the environment and foster sustainable development.

Mr. Vaughan, you talked about the FSDS. That is a very important piece of legislation. Everything federally now is looked at through the lens of sustainable development, and there are three legs to that stool. There are economic impacts, social impacts, and environmental impacts, and there's that balance that government tries to reach. So it's through that lens. My questions are going to focus on a new lens, and that's the environmental bill of rights.

Now, do we use the lens of sustainable development or do we use the lens that you do your audits through, the environmental bill of rights? Which lens do we look through? Which is the dominant lens? Will all legislation now be looked at through the environmental bill of rights?

We've heard testimony for the last couple of weeks. In the first couple of meetings we heard primarily from NGOs, non-governmental organizations, and the term “stick” was used a number of times. They wanted a piece of legislation, like Bill C-469, that would be a stick that could aggressively encourage the government to move in a certain direction. The issue of litigation has come up time and time again. The question was asked whether there would likely be an increase in litigation. Mr. Miller touched on that. I'd like to read what one of those witnesses, Jamie Kneen, said: “The entire point is that the threat of litigation is a very strong motivator.”

I think most of us interpreted that to mean it may not necessarily increase the number of actions against the government, but it would be a very strong motivator to move in a certain direction.

So my question then was whether it's the threat of legislation that is the stick, to which he said, “I believe so.”

After the NGOs we heard from industry--the Chamber of Commerce, business--and we heard about the chill that Bill C-469 could provide, again, through this threat of litigation. We also received a letter from the Quebec Business Council on the Environment, and they shared some concerns that there's no circumscription on Bill C-469, no restrictions. It's unlimited. We had also heard through the previous testimony that there was an unlimited uncertainty, that there was no end to appeal, that appeal could go on and on, and that any resident could take an action. So I think that has been a concern around this table.

Are there any limits or is it unlimited? If it is unlimited, then it would provide unlimited uncertainty and loss of investment.

This is what the Quebec Business Council shared in their conclusion:

This bill calls into question the power of the federal government to give legal authorization for projects or actions likely to have environmental impacts and grants the courts very broad ordering powers. It includes many vague concepts, such as a right to a healthy and ecologically balanced environment, which is not circumscribed, contrary to what is found in Quebec’s legislation, for example.

How much time do I have left, Mr. Chair?

[The Chair, Conservative, James Bezan]

You have three minutes.

[Mark Warawa, Conservative, Langley, BC]

Okay.

I think this is very important, Commissioner. Your responsibility is to do performance audits on how the government's performing. If Bill C-469 provides a very vague framework with almost unlimited, unrestricted powers for action against the government, how difficult will it be for you to audit the performance of a government that's dealing with a bill that doesn't provide any certainty?

Do you understand my question?

[Scott Vaughan]

Good. Thank you.

What I can say is that my colleagues, both within my group and more generally, are fairly enterprising in trying to figure out or get some clarity on what they audit. So we will audit some governmental programs that are vague in their objectives and timelines, and vague on whether they know what they're doing or why they're doing it. Some have always been there--they're legacy issues.

It is easier to audit and present to Parliament when there are clear objectives, timelines, and goals that a government has ascribed in a program. We will explain whether they're on target. If there is a variance we will try to probe why it isn't doing what it is supposed to do and make some recommendations to fix it.

But vagueness is not isolated. We see this in several programs, so it wouldn't be highly unusual, to put it that way.

[Mark Warawa, Conservative, Langley, BC]

What lens would you be looking through? Is it possible to look through both, or would one be dominant?

[Scott Vaughan]

Do you mean sustainable development and environment?

[Mark Warawa, Conservative, Langley, BC]

Yes. The sustainable development strategy includes three legs, as opposed to one leg.