--and I'm a little worried that I may use up all the time that has been allocated to the Conservatives, but I do want to try to express myself about this and hope that my colleagues will forgive me if I do use up the time. Also, I don't remember extensive debate on this clause. I do recall Mr. Warawa speaking to it.
I would like to make a number of points. First of all, and I won't dwell on this because...well, someone said to me that nobody was listening when I spoke earlier anyway, so maybe I should dwell on it, but I'll try not to go on too long on it.
First of all, the preamble to clause 3 states that “[t]his Act must be interpreted consistently with existing and emerging principles of environmental law”. I believe that there is no definition in the act of what is meant by “emerging principles”. It is quite an ambiguous phrase in that it may mean principles that are emerging as of today or principles that are emerging as of whenever a case hits the courts or is decided. It may mean principles that are emerging in Canadian courts. It may mean principles that are emerging in courts around the world. Or it may mean principles that are emerging in academic circles.
To me, it's very inappropriate. I'll just quickly repeat that from the perspective of a conscientious lawyer, it's a nightmare clause. From the perspective of other lawyers, perhaps, it's a dream clause, because it can mean absolutely anything or almost nothing.
Apart from that, I'd like to comment on the issue of the principle of sustainable development, which I think occupied most of Mr. Warawa's comments previously. I'd like to approach it from a different point of view. I don't wish to simply repeat what Mr. Warawa has said. Rather, I would point out that in clause 3, “the principle of sustainable development” is now a coequal principle, along with four others. I'll speak about the others in a moment.
I wish to draw attention to the fact that with this act, for the very first time since it became a primary or paramount principle of Canadian environmental law, the principle of sustainable development will no longer be primary or paramount in Canadian environmental law. It will simply be one of five. A lawyer will know that this arrangement allows for a judicial officer to pick and choose and weight and unweight between principles. Consequently, I think that wording introduces an amazing shift in Canadian environmental law.
Apart from that, the principle of sustainable development as it is defined in this act is quite different from what we might have seen up to this point. We have to refer back to the act. If you look at the definition of sustainable development in clause 2, it is “development that meets the needs of the present without compromising the ability of future generations to meet their own needs”.
Now, this has a very poetic sound to it, but in fact, previously--and I'll give you what came from the World Summit on Sustainable Development in 2002--it was acknowledged that the principle or the concept of sustainable development comprised three pillars: economic development, social development, and environmental protection.
The definition in this bill does not spell that out. Every statute is interpreted as if it means something. This is an important point for those around the table who are not lawyers.
When you have a statute and a judge is trying to figure out what it means, the judge has to try to read meaning into it. So a judge is going to have to try to determine why it is that this definition of sustainable development doesn't refer, for example, to economic development or doesn't specifically refer to social development. It must mean something different. That's the conclusion that might well be reached.
I would like to go back to something I mentioned earlier, lest it be lost. This definition of the principle of sustainable development does not include the qualifier “cost-effective on preventive measures”, which has been already adopted in Canadian law. It introduces a new meaning, and it'll be heck to pay to try to figure out what to do with existing measures that refer to that clause. It also does not use the qualifier “serious or irreversible” regarding environmental damages, which is necessary to trigger the precautionary principle. Both of those phrases are accepted globally, and I refer you to the Rio statement on that principle.
Apart from that, there are other principles in this provision that are ill-defined. The idea of intergenerational equity, for example, is found nowhere else in federal law. It is, in a sense, referred to in principle 3 of the Rio declaration, but in an entirely different formulation, which reads, “The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations”.
So this doesn't include development. It must mean something different. It must mean not to refer to development--or at least that possibility is out there.
The principle of environmental justice is referred to in American law, but again with a different definition than the one that appears in this bill. The Environmental Protection Agency in the United States states that environmental justice “will be achieved when everyone enjoys the same degree of protection from environmental and health hazards and equal access to the decision-making process to have a healthy environment...”.
Now, I will simply conclude by saying in my 45 seconds remaining that this was an incomplete analysis of the problems that exist in this clause. It was much too hurried to really get the points across and a totally inadequate way for a serious and conscientious legislator to try to debate such a far-reaching and important bill.
Thank you.
