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.