Environment Committee on Dec. 13th, 2010

[Linda Duncan, NDP, Edmonton Strathcona, AB]

That's a complicated question. Generally speaking, except for some particular laws, the general view, which is held by the courts, is that provincial environmental laws will not apply to first nations lands unless they accept that they do or there is some strong argument that they should be applied.

That's part of the problem for first nations on reserves. Most of the first nations final agreements are in the Yukon and Northwest Territories and Nunavut. There are starting to be some in British Columbia. They kind of follow separate rules than what happens to reserves, which only have the Indian Act, which is very inadequate. For environmental protection, they have simply whatever federal law exists. In the case of environmental permits and so forth, they don't have them.

This First Nations Land Management Act, and the ability of a first nation to enact its own environmental laws, cannot be asserted unless they actually enact the land code, which is a fairly intensive process. In the meantime, they need the federal laws in place to be applied. And they need to be able to have recourse to the courts to make sure those laws are applied. They are regularly filing those kinds of actions.

[The Chair, Conservative, James Bezan]

We'll go to Mr. Woodworth.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Thank you.

I think Ms. Murray is on the right track.

I just want to clarify my understanding of where we're going with this amendment. It is that in fact aboriginal land will be subject to this bill. Not only that, but if the federal government enters into an agreement with an aboriginal group, giving the aboriginal group the authority to manage the environment within a particular geographic district--as I think we do in some areas in the north--such an agreement will be liable to be set aside under this bill if a judge concludes that the aboriginal group is not fulfilling the obligations to provide a healthy and ecologically balanced environment for Canadians or to act as a trustee for Canadians and for future generations. I think because any agreement between the federal government and aboriginal groups is a federal act and is in fact within the federal jurisdiction, it will be subject to scrutiny under this bill, and if a judge concludes that it somehow represents a breach of the federal government's statutory duty to act as a proper trustee, then that judge will be empowered--and we'll get to this later--to set aside such agreements.

I just think it's important to note in this amendment, as well as elsewhere in the bill, that the aboriginal custodianship of the environment will certainly be subject to scrutiny under this bill and subject to being set aside, if we find a judge who doesn't agree with the conduct of the aboriginal group in relation to the environment.

[The Chair, Conservative, James Bezan]

Thank you.

Mr. Ouellet.

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

Mr. Chair, the opposite of what Mr. Woodworth has just said could also be true, in the sense that we may well find judges who will, in the future, consider the environment much more globally than in the past. I take issue a little with Mr. Woodworth looking at the environment of the future through a rear-view mirror, because the environment will be covered by international law—as we discussed earlier—that will apply to a number of territories and countries. Countries are beginning to come together on international laws.

The same will apply to First Nations. They will want to have legislation in common with the jurisdictions next door to them. If we project this sentence into the future, we will find for sure that First Nations will want to have legislation like that and to be able to enforce it, perhaps strictly to begin with, but then, a little differently. Imagine if companies wanted to develop mines on their land at some time in the future and this legislation did not apply to them. They would have to…They have no other land. First Nations have no clearly defined land.

I would like this legislation to apply to First Nations. I will be voting for this amendment, Mr. Chair.

[The Chair, Conservative, James Bezan]

Mr. Blaney.

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

Thank you, Mr. Chair.

As I listened to Mr. Ouellet, I wanted to remind him of the words of Warren Everson, Senior Vice-President, Canadian Chamber of Commerce. I also intend to oppose the amendment for the same reasons. He told us that “the bill before you today seems to us to be a statement of frustration with the current process” rather than a working law. In his words, it is—and I ask Mr. Ouellet to pay attention to this—“a blank cheque” that asks the Federal Court to fill in the blanks. He continues: “Courts have said over and over again in the past that it is not the job of the court to make policy, and you politicians have said many, many times that it is not the prerogative of judges to make law in Parliament's place.”

Clearly, the Canadian Chamber of Commerce is of the opinion that the bill is much too confusing and that it will open the door to an endless litigation process. But our duty is to enact legislation that is clear.

So I am going to agree with Mr. Woodworth when he says that a bill must be clear. That is why I am going to oppose this amendment.

Thank you.

[The Chair, Conservative, James Bezan]

Thank you.

Mr. Ouellet.

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

He is accusing me of saying something I did not say. He does not listen when I am speaking and then he talks about something else. It makes no sense. I am talking about one thing and he is talking about something else.

[The Chair, Conservative, James Bezan]

I think we're into debate.

Mr. Woodworth, you have roughly three minutes twenty.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Thank you. I hope not to take that generous amount of time.

I do want to respond quickly to Mr. Ouellet. I think a first nations group and the Canadian government and all Canadians would want to see a development like a mine being proceeded with in an environmentally appropriate way. The question here isn't that we all want to see the environment protected; the question is, who decides the manner of the protection? If a first nations group chooses to exploit a mine within their territory or on their land and believes that they're doing so in an environmentally proper way, it's necessary to know that without even having consulted first nations groups, we are in this bill giving a judge of the Superior Court of that jurisdiction the authority to interfere with the decisions of the first nation. That is the effect of this bill, there is no question, and it is expressly so because of the inclusion of aboriginal lands in the definition we're looking at.

Thank you.

[The Chair, Conservative, James Bezan]

Ms. Duncan, you have roughly two minutes forty-five left.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

I'll be succinct.

My concern is that we're making a mountain out of a molehill. Every statute is read within the context of other statutes. Any statute, federal or provincial, that may have an implication for aboriginal lands is read within the context.... If there's a first nations final agreement, it prevails over all statutes. You don't put all of that again into every statute that you write. If there's any conflict between what this bill might provide or any determination by the court, they make their determination within the context of the first nations final agreement. Plus, under the First Nations Land Management Act, if the first nation decides they want a land code, that code prevails over federal law. Therefore, the federal law would not be applying to that area anyway; the first nation law would. The law is certain. You just have to understand the whole context of all of the law, which would be considered in any case that is brought.

My question would go to all parties: did everybody here consult intensively with first nations in this bill and all bills that we've reviewed? I do my best to talk to as many people as I possibly can, and I have in fact sought their participation here. They just haven't been available. I really think we're making a mountain out of a molehill. The question here simply is this: do we want to go with the definition as revised in CEPA, 1999, or do we want to go with the definition that was in the original CEPA and appears to be in CEAA? These definitions were determined by respective governments, not by me, and they were passed by Parliament. The question is simple. We go with one definition or the other. If we go with the updated CEPA definition, then you would approve my amendment. If you want to go back to the definition in the former CEPA, and what is apparently in CEAA, then you vote against my amendment.

[The Chair, Conservative, James Bezan]

Thank you.

I have Mr. Woodworth.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Thank you.

Very quickly, I can't believe what I just heard from Ms. Duncan. The whole purpose of a bill of rights is to be a lens by which all other statutes and government actions are to be examined. Clearly, at the very least, if we were simply talking about federal agreements with aboriginal groups, they would definitely be subject to be set aside under the provisions of clauses 16 to 19 of this bill. I think it's even quite arguable that a federal statute, which some judge determined didn't live up to the standard of trusteeship of the environment mandated in this bill, could be likely subject to scrutiny unless it specifically said it was an act that notwithstanding anything contained in this bill.... At the very least, certainly agreements or other non-statutory actions of the federal government relating to aboriginal land would be subject to being set aside under this bill. That's the whole purpose of this bill, to do exactly that, to set aside federal action that doesn't measure up in a judge's eyes.

[The Chair, Conservative, James Bezan]

Mr. Blaney, you have less than a minute.

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

Thank you. That will be plenty of time for me, Mr. Chair.

I just want to go back to our role. A number of the witnesses who have appeared before us have told us that the bill is going to be open to a lot of interpretation. But, as legislators, our role is to come up with legislation that is clear. The role of judges is to interpret it.

From Mr. Ouellet's comments, I understood him to say that judges basically need to act like police officers on environmental matters. In my opinion, it is up to lawmakers to make clear law and up to judges to make wise decisions when the law has to be interpreted.

We have clearly seen now that this bill has a lot of flaws and that it is not clear. So, if we pass it, we will be failing in our role as lawmakers.

Thank you.

[The Chair, Conservative, James Bezan]

Not seeing any other hands, I'm going to call the question.

[Mark Warawa, Conservative, Langley, BC]

A recorded vote.

(Amendment agreed to [See Minutes of Proceedings])

[The Chair, Conservative, James Bezan]

We're on to the main clause.

We have Mr. Warawa speaking to the main clause as amended.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

A point of order, Mr. Chair.

How does it read now with the amendment?

[The Chair, Conservative, James Bezan]

The way it reads with the amendment is:

The provisions of this Act apply to all decisions emanating from a federal source or related to federal land, aboriginal land or a federal work or undertaking.

Mr. Warawa, and then Mr. Woodworth.

[Mark Warawa, Conservative, Langley, BC]

Mr. Chair, as you've laid out the amended motion, this includes decisions by federal bodies, including the departments, crown corporations, crown agencies, and decisions related to all federal-related industries, such as banks, shipping, and interprovincial railways. It will also apply to decisions that affect federal land, including reserve land.

Bill C-469 is about taking actions, so it's a litigation bill. Any resident or entity in Canada will be able to take legal action against federal lands, shipping, banking, railways, and on and on it goes. That's what we heard from the witnesses. The concerns they raised are now being exposed. The witnesses were correct in their concerns.

The bill would apply to decisions by the federal government on such things as environmental assessments. After substantial environmental assessments, action could be taken if a permit is issued to industry, to first nations. Other decisions—

[The Chair, Conservative, James Bezan]

A point of order, Monsieur Ouellet.

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

I just want to know what he is talking about, because I am lost.

Which amendment is he speaking to?