Environment Committee on Dec. 13th, 2010

[The Chair, Conservative, James Bezan]

Okay. I've got someone willing to answer.

Ms. Duncan.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

I didn't plan on speaking to this, but I will add my experience.

When I was the chief of enforcement, there was a lot of disagreement within the Department of Justice on whether or not you could bring an environmental action against the Government of Canada or the crown, Her Majesty in right of Canada. They then determined that yes, indeed you can, and they made the decision that they would make it clear in all environmental law thereafter that those laws are binding on Her Majesty in right of Canada, and that's why it's precisely stated. It simply means that you can bring an action and the Government of Canada is bound by the provisions of that statute.

[The Chair, Conservative, James Bezan]

I suspect that because all legislation indicates “Her Majesty”--

[Blaine Calkins, Conservative, Wetaskiwin, AB]

I'm not trying to filibuster, Mr. Plamondon, and I'd be interested in seeing how the Bloc Québécois is going to vote on “Her Majesty in right of Canada”.

But the question that I have, I guess, Linda....

Is it okay if I talk through you, Chair, to Linda?

[The Chair, Conservative, James Bezan]

Yes.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

If this act is binding on “Her Majesty in right of Canada”, God forbid, the day is going to come where we will have a new sovereign and it won't be Her Majesty. Are we going to have to go back and amend every bill? Is this how silly this gets?

I'm just asking. I'm not going to draw it out any longer than this.

[The Chair, Conservative, James Bezan]

Do you wish to respond?

Ms. Duncan, and then Mr. Woodworth.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Sure, Mr. Chair.

It's simply drafted consistent with all other federal environmental statutes.

If I can cite the Canadian Environmental Protection Act of 1999, section 5 says:

This Act is binding on Her Majesty in right of Canada or a province.

You'll find that clause in every statute.

[The Chair, Conservative, James Bezan]

Okay.

Mr. Woodworth, with your legal knowledge.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Thank you.

I don't want to make too much of it, but I think the idea here, by this clause, is to allow people to sue the government, because otherwise the government has immunity; there's crown immunity. So unless Parliament specifically allows people to sue the government, they cannot sue the government. And this bill really is all about people suing, so I think that's why the clause is here.

[The Chair, Conservative, James Bezan]

Okay.

Mr. Blaney.

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

Thank you, Mr. Chair.

I was listening intently. I thought that section was in every bill, but I am told that that is not so. Mr. Woodworth tells us that it allows civil suits against the government. Can someone clear that up for me?

[The Chair, Conservative, James Bezan]

I don't know if it's in all bills, but it's in the majority of bills. I would also suspect that if we had a change in sovereign, and it went from our sovereign Queen Elizabeth to a king, whoever that might be, the House of Commons and the Senate would quite quickly move motions to amend all legislation to reflect the change of Her Majesty to His Majesty. But in the meantime, those are good questions and it's an interesting debate.

I don't see any other hands.

Mr. Warawa.

[Mark Warawa, Conservative, Langley, BC]

Could we have a recorded vote?

(Clause 7 agreed to: yeas 6; nays 5)

[Louis Plamondon, Bloc, Bas-Richelieu—Nicolet—Bécancour, QC]

Mr. Chair, maybe it's an insult to the Queen? No? I hope not.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Mr. Chair, we simply don't want the Queen to be sued.

[The Chair, Conservative, James Bezan]

We can never talk ill of our sovereign in this place, whether it's in the House or at committee. I want to make sure that we measure our words carefully. I think those were good questions we had.

(On clause 8--Scope of application)

We're at clause 8, NDP amendment-4, which is that Bill C-469 in clause 8 be amended by replacing line 23 on page 7 with the following:

related to federal land, aboriginal land or a federal work or

Then it goes back into the bill.

Ms. Duncan, you have the floor.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

I will explain why I've brought forward this amendment. It was brought to my attention after the tabling of my bill that in the Canadian Environmental Protection Act, 1999, they chose to change the definition of “federal land”. This change to the definition of “federal land” is what I'm proposing to bring forward, so that it's consistent.

The definition is separate. We haven't dealt with the definitions yet because we wait until we go through the substantive provisions. Later, we will get to where I will have changed the definition of “federal land” and added a definition of “aboriginal land”. That will define this provision.

We can choose to leave the definition as it is or we can choose to change it. I'm fine either way, but I think it's important to be consistent. Interestingly, the government changed the definition in CEPA, but not in CEAA. I don't know what that's about.

The definition I have put in my Bill C-469 is, I believe, the same one that is in CEAA. Maybe they just haven't caught it, and maybe it will come up when we start reviewing CEAA.

So that is why I've added that in. It's simply a decision that was made by the government of the day that those should be defined separately. Aboriginal people may have said they didn't want to be included under that subhead. Maybe in CEPA there were provisions related to aboriginal land and not to federal land or vice-versa.

But generally speaking, until a first nation under the First Nations Land Management Act actually issues a land code that allows them to exercise a certain measure of environmental regulation in resource development on their land, the only environmental laws that apply to first nations lands are federal laws.

In federal environmental statutes, the reason we talk about federal land and aboriginal land is that provincial laws don't generally apply. It may well be that they made that change when the first nations final agreement started to be signed off. Constitutionally, first nations, as opposed to band councils on reserve, had additional powers. Now, under the First Nations Land Management Act, there is potential for the promulgation of bylaws by a first nation.

So this is my amendment. I'm tabling it to make it consistent with the Canadian Environmental Protection Act. If it's rejected, it's not the end of the world, because it will be consistent with CEAA.

[The Chair, Conservative, James Bezan]

Thank you.

We'll go to Mr. Warawa.

[Mark Warawa, Conservative, Langley, BC]

Thank you, Chair.

I'm going to make a couple of comments on this amendment that has been presented by the NDP.

As Linda said, she's adding the words “aboriginal land” after “federal land”. We heard from the witnesses that there's concern about the uncertainty Bill C-469 creates and the possibility, with that uncertainty, of lost investment and lost jurisdiction. Saying “federal land” was not adequate for the NDP. They now are ensuring that the uncertainty is also expressed in “aboriginal land”, which is why this side of the table had expressed concern that we did not hear from aboriginal and first nations witnesses. It is so important to hear from them, and we have yet to hear from them. To add these words adds uncertainty.

By expanding the scope of the application of the bill to aboriginal lands, this amendment increases the concerns, as I said, that we heard from the witnesses.

So I will be voting against it, and I hope all members will too. Thank you.

[The Chair, Conservative, James Bezan]

Go ahead, Ms. Murray.

[Joyce Murray, Liberal, Vancouver Quadra, BC]

I have a question for Ms. Duncan.

Have you discussed this change in definition with any first nations?

[Linda Duncan, NDP, Edmonton Strathcona, AB]

No, I haven't, specifically. I'm simply going on the basis of ensuring that this bill is not inconsistent with other federal statutes, because the intent of this bill is to hold the federal government accountable for enforcing and implementing existing federal statutes. In some laws, federal lands include aboriginal lands, and under some statutes they are defined separately. I have talked to first nations specifically about their opportunities to get access to information to participate in processes and to file litigation, which was one of the main reasons I tabled the bill to begin with.

Contrary to what Mr. Warawa is suggesting, I think this would provide great certainty to first nations that they would have the opportunity, equally, on their lands to file actions requiring the federal government to assert their responsibilities and powers on their lands as well as on any other lands in Canada.

That's basically what I have to say.

[The Chair, Conservative, James Bezan]

Is there anything else, Ms. Murray?

[Joyce Murray, Liberal, Vancouver Quadra, BC]

I would like Ms. Duncan to address the potential concern that aboriginal lands would be subject to a law that private lands or provincial lands are not subject to.