Environment Committee on Nov. 22nd, 2010

[Kathleen Roussel]

I think that is the first question which we really could not have expected to be asked. So, I am going to lay out some fairly general principles.

First of all, I don't know who told you that or where that came from, and therefore I have no context for the premise of your question. Normally, when we talk about the principles of natural justice, we're talking about things such as consultation, the right to be given information and to consult others. Also, if someone is being asked to make a decision, people have the right to be informed of the rationale for that decision, particularly if they are going to be deprived of a right, a permit or a licence which they would otherwise have been entitled to. Those are very general principles.

[Steven Blaney, Conservative, Lévis—Bellechasse, QC]

You answered my question.

Thank you, Mr. Chairman.

[The Chair, Conservative, James Bezan]

Mr. Ouellet, please.

[Christian Ouellet, Bloc, Brome—Missisquoi, QC]

My question is addressed to Ms. Roussel. I am not sure I fully understand the definition and interpretation of clause 2. In the definition, in the fourth paragraph, reference is made to federal works or undertakings. However, subparagraph 2(h) reads as follows:

(h) a work or undertaking that, although wholly situated within a province, is before or after its completion declared by Parliament to be for the general advantage of Canada or for the advantage of two or more provinces;

Do you have an idea of what kind of work or undertaking is referred to here?

[Kathleen Roussel]

I can give you a general answer. In our opinion, this is similar to the Constitution, in that there would be a power to declare a work or undertaking to be in the national interest. I am going to give you an example, but I am not saying that is the case. For example, if a company were generating power for the entire country—and this is a totally fictitious example I'm giving you—it would be possible to declare that this was an undertaking for the general advantage of the country—and therefore national in nature.

I'm not aware of anything having been declared to come under that category. There is transportation, for example, but that is normally covered more specifically in the Constitution.

[Christian Ouellet, Bloc, Brome—Missisquoi, QC]

Is it possible that a power transmission line in only one province could possibly be considered to go all across Canada and therefore be subject to this right off the bat?

[Kathleen Roussel]

I wouldn't think so, no. Constitutionally, that would be very surprising because, as a general rule, natural resources are primarily a provincial area of responsibility under the Constitution.

I used a purely fictitious example, but I believe the classic example would be the transportation industry.

[Christian Ouellet, Bloc, Brome—Missisquoi, QC]

Is it possible that a pipeline located in a given province could be considered, before or after its completion, to be…?

[Kathleen Roussel]

If the assumption is that we're not talking about a federal building, I would say no.

[Christian Ouellet, Bloc, Brome—Missisquoi, QC]

In your opinion, why is there a reference to banks here? The banks obviously fall within federal jurisdiction, but not the buildings. Here we are talking about what could affect the environment, and not about governance. So, it's the bank building, the bank vault or something physical. How could a bank be declared a federal work or undertaking under this bill?

[Kathleen Roussel]

Well, I cannot speculate as to the origin of this, but I agree with you that the building is something different.

[Christian Ouellet, Bloc, Brome—Missisquoi, QC]

So, it's not because the banks fall within federal jurisdiction that they would automatically—

[Kathleen Roussel]

I think we need to make a distinction between the bank and the building in which it's located.

[Christian Ouellet, Bloc, Brome—Missisquoi, QC]

But that could cause legal problems in a court of law. It could end up being up to a judge to determine whether it was or was not a federal work or undertaking.

[Kathleen Roussel]

It's a matter of how the legislation is interpreted.

[Christian Ouellet, Bloc, Brome—Missisquoi, QC]

There are a number of areas that could give rise to interpretation. Can it be said that a broadcast undertaking, because it has a federal permit, automatically is connected to the environment?

[Kathleen Roussel]

There is no doubt we would rely on current rulings and the case law to try and interpret what is in this bill and what is also in other federal statutes.

[Christian Ouellet, Bloc, Brome—Missisquoi, QC]

So, based on the case law, a hydroelectric dam, given the fact that water moves and leaves the provinces, would automatically be a federal work or undertaking.

[Kathleen Roussel]

I don't think I'm prepared to go that far. At the present time, it is clear that water is a shared jurisdiction in Canada, depending on whether the waterway is limited to one province or not. I don't think this bill will necessarily change the case law that has built up over the years in that regard.

[The Chair, Conservative, James Bezan]

Merci beaucoup. Votre temps est écoulé.

Mr. Warawa, you can have the last round.

[Mark Warawa, Conservative, Langley, BC]

Thank you, Chair.

I'm glad we have Steven Blaney here from Quebec sharing his concerns of the impact this would have in Quebec. Unfortunately, he is the voice of Quebec here at the committee. I wish there were more voices like Monsieur Blaney and I'd like to give my time to him to ask questions.

[The Chair, Conservative, James Bezan]

Mr. Blaney.

[Steven Blaney, Conservative, Lévis—Bellechasse, QC]

Thank you very much.

I would like to complete my earlier question with respect to the principles of natural justice. According to the Conseil patronal de l'environnement du Québec, the bill we are considering does not abide by the principles of natural justice, such as the right of a party likely to be affected by the action to be heard. So you answered my question. It stated the following:

[...] it undermines the credibility of all authorization processes where stakeholders have an opportunity to participate in what are often long, tedious processes. Consequently, it would create enormous legal uncertainty, since all federal government environment-related decisions and authorizations, taken or granted legally, could be challenged.

Our previous witness was the Canadian Hydropower Association. Referring back to Mr. Ouellet's question, I was looking in my notes for the quote from their brief. That is another brief that contains a legal opinion on the bill that is quite devastating, as they say that a hydroelectric project is normally developed over a 7- to 14-year horizon. But, according to them, this bill could result in much longer timelines.

Do you share that view, given the legal uncertainty that is created?

[Kathleen Roussel]

I'm not sure I can fully answer that question because I can't tell you that we have done an analysis to determine how the bill complies with the environmental assessment process, either federal or provincial. You also know that, for major projects, there is a requirement, both federally and provincially, to carry out environmental assessments, which can lengthen the process.

Let's consider the remedies included in the bill and the possible interaction. I am still using fictitious examples here, to avoid giving you a legal opinion. If there was an environmental assessment done on a resource project requiring both a federal and a provincial assessment, and the federal government had to issue a permit, there is no doubt that clause 16, based on our reading of it, could trigger a process against the federal government in relation to the authorization to be issued, or previously issued, for the project.

Furthermore, under clause 23, there is also the possibility that an action could be brought by a third party against the project developer, if a federal law has been violated or if there is the risk of such a violation. That said, I realize that this is a hypothetical situation which has no basis in fact. At the same time, it is possible, within the assessment process as a whole, for an action to be brought under this bill. Will that lengthen the process? I can only provide speculate on that point.

[Steven Blaney, Conservative, Lévis—Bellechasse, QC]

If I understand you correctly, any project that triggers the involvement of the Canadian Environmental Assessment Agency is subject to this legislation. Is that what you are saying, or does it also affect other projects?