Evidence of meeting #38 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 chair.
A recording is available from Parliament.
3:30 p.m.
Conservative
The Chair Conservative James Bezan
This meeting is called to order.
We're going to continue with meeting number 38.
We will be debating the motion by Mark Warawa.
Mr. Warawa, could you put that motion back on the table?
3:30 p.m.
Conservative
Mark Warawa Conservative Langley, BC
Thank you, Mr. Chair.
Would you like me to read the motion into the record?
3:30 p.m.
Conservative
Mark Warawa Conservative Langley, BC
The motion reads as follows:That, pursuant to Standing Order 97.1(1), and after concluding hearings, the Committee recommends that the House of Commons do not proceed further with Bill C-469, An Act to establish a Canadian Bill of Rights, because the Bill: will enable any resident of Canada to challenge any regulatory standard, at any time, thereby trumping the existing regulatory process, creating regulatory and investment unpredictability; will encroach on areas of provincial environmental jurisdiction; does not allow for the balance of the Social, Economic and Environmental pillars of Sustainable Development; overlaps with aspects of existing Federal legislation and policies which give rise to redundancy or conflict; removes numerous safeguards which ensure that environmental rights do not overwhelm government capacity and judicial resources.
It is so moved.
3:30 p.m.
Conservative
Mark Warawa Conservative Langley, BC
I'll make my comments brief, Chair. I look forward to hearing from other members.
Just to summarize, we heard from the witnesses that this is a bad bill. The question often asked by members around this table was whether it was redeemable, and the common theme was “no”.
Of course, the environmental groups--and we appreciate that they were here--were the ones who wanted the big stick, to be able to intimidate and get action, to force people to do certain things their way, otherwise they had this big stick.
We heard overwhelmingly from the witnesses that the fundamental principles of the bill were to provide this huge stick to intimidate and to strip out the right to private action by any one individual, even on existing permits. It was at the heart of the bill. And to strip that out was not realistic.
Therefore, the recommendation we heard from the various witnesses, the vast majority, was that this bill should be set aside.
It's not often we hear that. Usually it's amendments. But in this case we heard overwhelmingly to set the bill aside.
The fact is that we continue to hear from witnesses. There was a brief submitted by the Business Council of British Columbia. It's a long letter, so I'll just read the last paragraph.
It reads as follows: To conclude, the Business Council of British Columbia believes that Bill C-469 should be set aside--which is what the motion does--
and we urge this Committee to do so. By any standard, the Bill represents a major departure from past Canadian policy and administrative practice. It would usher in an era characterized by i) more costly litigation, ii) an unprecedented expansion in the role of the Courts in environment-related policy-making, iii) increased uncertainty for Canadian businesses and industries that rely on approvals, licenses and permits, iv) a greater administrative burden on Federal Ministries and agencies, v) higher costs for taxpayers, and vi) more intergovernmental conflict and discord.
We heard how hydroelectric plants in Quebec, British Columbia, across Canada could have action taken against them. I don't want that in British Columbia. I'm hoping my Bloc colleagues will protect Quebec.
The obvious thing is to listen to the witnesses. The recommendations are right, and therefore the motion to set this aside.
Thank you.
November 29th, 2010 / 3:30 p.m.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Thank you, Mr. Chair.
When we broke the last time, I was providing the committee with some perspectives on the manner in which I think this bill is flawed. I won't repeat what I said about the precautionary principle that has been adopted elsewhere in our law and adopted in the Rio Declaration by the United Nations, I believe, but which is not really repeated in this bill, but, rather, is found in a different form in this bill.
Having said that, I suppose the only other thing I would add on this point, speaking as a lawyer, is that the problem is that you cannot predict what will be the interpretation of a new or a different formulation of another principle. We may have different interpretations in different bills. In this case, the bill lacks the term “cost-effective”, among other things.
I also began to speak a little bit about the three underlying themes that I think make this bill rather dangerous and difficult for any responsible government or parliamentary committee to adopt. One of them has to do with redundancy. I quoted already some of the evidence from Mr. Vaughan and Mr. Melaschenko about that.
I then began to speak a bit about the question of the judicialization of environmental policy that this bill will create, and the resulting regulatory uncertainty that will occur. I think I should expand a little bit on that, because if I just talk about regulatory uncertainty, people may not know what I'm speaking about. It's important for people to understand what I'm speaking about, because the reality is that our existing regulatory process requires developers of all kinds, from the builders of the smallest subdivision to the builders of the largest hydroelectric project, to take a great deal of care in their approach to the environment. People who make these developments spend a lot of time and effort and money complying with a whole host of environmental regulations designed to secure the right balance between protecting the environment and still achieving the reasonable goals and aspirations of Canadians.
The most unfortunate thing about the bill that we're studying today is that it allows courts simply to set all of that aside. So a developer of any kind can spend years and years, and thousands or millions of dollars, complying with existing regulatory requirements and proceed with their development, only to have that development reviewed by the court at the instance, not just of a Canadian but of a resident, including non-Canadians and, indeed, even foreign governments. I'll get to that in a moment. But having gone through years of development and millions of dollars of regulatory compliance, a developer can face having all of that being set aside if a judge doesn't agree with the decisions that have been taken by the regulators.
Now, what is a developer to do when faced with such a dilemma? Quite frankly, factoring in the “lottery costs” of not knowing whether a court will agree or disagree with existing regulations will, at the very least, make development much more difficult and much more costly, and will certainly make people think twice before they undertake developments. Ironically, that will apply to hydroelectric developments, which we would in fact like to encourage in order to reduce greenhouse gases.
So that's what I mean when I talk about the regulatory uncertainty that will be caused by this judicialization of environmental policy.
Of course the real gist of it is that in fact this bill does allow for judicial environmental policy, and that is implicit in the remedies that are available under this bill, particularly in clause 19. I'm only going to refer to subclause 19(1), since we will be dealing with amendments later regarding subclause 19(2).
Paragraphs 19(1)(e) and (f) permit the court to
(e) order the defendant to restore or rehabilitate any part of the environment;
(f) order the defendant to take specified preventative measures.
In that case, it is the federal government that is under the court's order, but of course the federal government can be ordered to impose requirements on private individuals and/or to halt development and/or to in fact order developments to be taken back.
We're not allowed to talk about amendments, so I can only say that I certainly hope the other provisions in clause 19 do not get imported into clause 23, on civil action, or else those provisions will be applicable directly to private third parties.
Any of these orders in subclause 19(1) would allow a court to craft its own environmental policy. Of course before it even gets to the remedies, the court has to figure out what is meant by the federal government being a trustee of the environment and what is meant by a “healthy and ecologically balanced environment”.
And while all of these are legitimate questions, what underlies them is the superior question of who decides. Does an unelected judge, who may or may not have the expertise that the Department of the Environment has, get to decide what is a healthy and ecologically balanced environment, what the duties of the government as trustee of the environment are, and how we restore the environment or rehabilitate it? Or do publicly elected and accountable democratic members of Parliament and accountable governments make those decisions?
I couldn't put it any better than did the British Columbia Business Council, which stated:
More broadly, the Bill implicitly adopts a view that regulators, Parliamentarians and other public authorities cannot be relied upon to arrive at sound decisions pertaining to the environment.
I practised law for 30 years, and as much as I respect the judges I've appeared in front of, I know they do not always get it right and they often do not have the expertise that would be required in environmental matters. And not only that, but they are subject to the adversarial system, at least in English Canada, which means that the party with the best lawyers and the most money will often win the day.
In addition, in court we operate on what might be referred to as a “king of the hill” theory; that is, there is a winner and there is a loser. Judges are not tasked with building consensus the way members of Parliament and others in a system of democratic governance are tasked. So there are great concerns with this whole approach.
Michael Broad of the Shipping Federation of Canada gave the following comment in his submission:
We can easily foresee this section being used to challenge the government on any environmental regulatory standard at any time. This runs exactly counter to the regulatory predictability that is so essential for our industry to operate within.
Mr. Irving, of the Canadian Hydropower Association, speaking on behalf of Hydro-Québec and other members, in my view,
stated as follows:
We anticipate that allowing any entity or resident of Canada to seek recourse in the federal courts will open the floodgates to vexatious, obstructionist, and interminable legal challenges.
The interesting thing is that Mr. Miller, the Environmental Commissioner of Ontario, in discussing the application of Ontario's legislation, mentioned that there are more parameters, and it's stricter and more restricting in its applications. And that was in the design. If you review the comments, made at the time of drafting, on the rights to sue, the actionable portions of our bill were intended to be the backstop, the last resort only to give vigour to the other provisions.
In the bill before us, there has been a deliberate omission of the measures that Mr. Miller was talking about at that point.
3:45 p.m.
Conservative
The Chair Conservative James Bezan
There is a point of order.
Let's make sure it is a point of order.
3:45 p.m.
NDP
Linda Duncan NDP Edmonton Strathcona, AB
It's a point of clarification.
I notice that we're continuing to get briefs submitted to us even though we are into clause-by-clause. Mr. Woodworth just quoted from one of them. When is the cut-off for continuing to receive briefs?
3:45 p.m.
Conservative
The Chair Conservative James Bezan
Let me sit on that for a minute.
We haven't closed off the submission of briefs. As I've said before, members of Parliament are allowed to use whatever information and knowledge they have at their fingertips to formulate their decisions on how they move forward.
Mr. Warawa.
3:45 p.m.
Conservative
Mark Warawa Conservative Langley, BC
Yes.
Speaking specifically to the point of order on the briefs that Ms. Duncan is referring to, this has come from the clerk, so it's all relevant information--relevant to the discussions.
Until these briefs stop coming, everything we receive is relevant for discussion here.
3:45 p.m.
Conservative
The Chair Conservative James Bezan
Since we never set a hard time, as long as it's posted on the Internet and organizations and companies submit briefs, we'll receive them, unless the committee makes a decision not to. But that will have to be dealt with through a motion.
3:45 p.m.
NDP
Linda Duncan NDP Edmonton Strathcona, AB
I'm still not clear. To me, as a general rule in committee, at what point in time do you stop receiving briefs?
I'm worried about that, because I don't want anybody complaining.... If we finally get to the clause-by-clause and we haven't yet received a brief, are we going to go back, or...?
At what point in time is the clause-by-clause going to end? I'm asking that in great seriousness.
3:45 p.m.
Conservative
The Chair Conservative James Bezan
--other than common practice.
I would suggest that if we wanted to change that, we'd have to set that up through either routine motions that govern our committee, or....
We just said that prior to appearing at committee...it would be at least five days of meetings before expected to submit their written briefs.
And members of the public are always welcome to submit their stuff to us, if not through the clerk then directly to us as members of Parliament. As I said before, regardless, members are able to use whatever information they can glean to formulate their decisions.
3:45 p.m.
NDP
3:45 p.m.
Conservative
Mark Warawa Conservative Langley, BC
On that point of order, Chair, we continue to have receive briefs being presented to the committee members through the clerk's office, and--
3:45 p.m.
Conservative
The Chair Conservative James Bezan
I'm going to cut you off, Mr. Warawa, if that's okay.
If there is a concern, we can deal with this later, under committee business, in terms of whether or not we want to cut off briefs or continue to receive them.
Mr. Woodworth has the floor, and I'd like to allow him to continue with his presentation.
3:45 p.m.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Thank you, Mr. Chair.
Just in relation to the point that Ms. Duncan has raised, I think it's interesting that people across the country are beginning to hear about this bill and to get worried about it and to send us briefs about it and I think that can only assist in our deliberations.
There are just two or three more points I'd like to make, finishing off first of all on the issue of the judicialization of environmental policy. Again, Mr. Irving of the Canadian Hydropower Association commented as follows:
Perhaps the most significant change to the current regulatory system would be the fact that under Bill C-469 the courts would be required to decide on environmental protection actions against the federal government, environmental civil actions, and judicial reviews relating to environmental protection. We are very concerned that this would essentially bypass the system of environmental regulations described above by handing over the final decision-making to federal courts and private litigants.
That rather sums up the general concern of judicialization of a policy.
I want to add one more point about the judicialization of environmental policy, and it's one I alluded to a moment ago. That is to say that actions under clauses 16 or 23 of this bill can be brought by Canadian residents who are entities. An entity is defined as follows:
a body corporate, trust, partnership or fund, an unincorporated association or organization that is authorized to carry on business in Canada or that has an office or property in Canada
So any foreign agent who wishes to inject his own agenda--foreign or otherwise--into Canadian policy will be entitled under this bill to commence one of the legal actions that are available. That includes anyone who sets up an office in Canada. They don't have to even do business in Canada, they just have to have an office in Canada. That can include the People's Republic of China if nothing else.
I think that is a very dangerous precedent and road to go down, but it is the road this bill goes down.
The last point I'd like to raise as a matter of concern--and this was mentioned to me by my friend Mr. Calkins, who may want to expand on it--has to do with the fact that we have not had any evidence that there has been any consultation with first nations in relation to this bill. I'm no constitutional expert, I will be the first to admit, but I have the impression generally that the federal government ought not to be encroaching on first nations rights without first consulting them.
This bill is specifically designed to apply to first nations land--at least as I think I understand it--and therefore it certainly will have a very broad effect on the first nations across the country, from the west right through to northern Quebec.
It will mean that they also will be faced with the regulatory uncertainty that I've mentioned, and they also may be up against foreign or other interests with big money and good lawyers to challenge their decisions and their activities that touch on the environment.
This is not the way we do things in Canada. It's another reason why I am so vehemently in support of Mr. Warawa's motion.
Thank you.