Evidence of meeting #42 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 amendment.
A recording is available from Parliament.
Conservative
The Chair Conservative James Bezan
Okay. Just for clarification, here it is again:
This Act is intended to ensure consistency with Canada's rights and obligations under international law. In the event of any conflict between the provisions of this Act and the provisions of any international law in force in Canada, the provision of the convention will prevail to the extent of the conflict.
Is that right?
NDP
Linda Duncan NDP Edmonton Strathcona, AB
I think it would say “to the extent of any conflict”, or it could be “any alleged conflict”. I don't know.
My suggestion is that we're close to it, and we might want to pursue more legal opinion and get back to that, maybe at the next meeting. That is what I'm suggesting. I think--I'm trying to find similar provisions, and I just haven't had a chance to find any--that is a good amendment. I appreciate that being brought forward. I think that should assuage some of the concerns raised by particularly the shipping industry. We certainly went through all of this when we did the amendments to Bill C-16 and endeavoured to bend over backwards to address any of their issues.
On the issue raised by Mr. Woodworth, I don't really see it as a relevant comment. That part of the bill is the purpose, and new subclause 6(2) is simply another stand-alone subclause that clarifies the purpose of the bill. I don't see necessarily that it's intended to clarify what will become subclause 6(1). I think it's a good clarification that has been tabled.
I understand, having talked to the drafters, that the numbers are automatically adjusted. I had asked that question myself to the drafters.
Conservative
The Chair Conservative James Bezan
We'll make the necessary changes on numbers and lines and everything as we go through. It will just become automatic.
Okay?
Conservative
The Chair Conservative James Bezan
That's your point? Okay.
So we're speaking to the subamendment.
I see Mr. Woodworth.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Thank you.
The problem I perceive here—and I'll try to make it a little clearer because I alluded to it in my previous comments—is that we now have, clearly, two different purpose clauses. And in a way, I'm grateful that Ms. Duncan has made her amendments, because it really highlighted that fact.
Her amendment would read in subclause (2), “This Act is intended to ensure consistency with Canada's rights and obligations under international law”. If we were using the same formula as in the existing clause 6, we would say, “The purpose of the Canadian Environmental Bill of Rights is to ensure consistency with Canada's rights and obligations under international law.”
Now we have two purpose clauses. It's not at all clear to me that those two purposes are necessarily consistent with each other. In other words, in the new subclause (2), with this subamendment, we are saying that the purpose of this act is to ensure consistency with Canada's rights and obligations under international law, but in what will become subclause (1), we're saying that the purpose of this act is to “safeguard the right of present and future generations...to a healthy and ecologically balanced environment”, for example. There are others there, too, but I just picked that as an example.
What does a court do if confronted with an argument that an obligation or a right of Canada has been implemented under an international convention that happens to contradict safeguarding the right of present and future generations of Canadians to a healthy and ecologically balanced environment? Well, the section says that if there's a conflict, the international convention will prevail. To a certain extent, I find that reassuring, because it would at least enable the effect of this Bill C-469 to be somewhat gutted if we can arrange an international convention on the subject, which would, in effect, overrule some of the more outlandish and extreme provisions of Bill C-469.
But it's not at all clear to me that subclause (2) will have the effect of overcoming what will become subclause (1) here, because subclause (1) doesn't say that it's subject to subclause (2).
There are two stand-alone purpose clauses. They may well come into contradiction with one another. There is nothing in the bill that gives a judge any guidance about whether the judge should follow what will be subclause (1) or should follow what would be subclause (2). Personally, I'd like him or her to follow subclause (2) and really gut subclause (1) in such a case, but I have no assurance that's what will happen with this amendment, even with the subamendment.
It's very difficult to discuss these things, Mr. Chair, in isolation. One would almost have to find a concrete example. That's where I was going a moment ago when my time ran out. I do thank my Conservative colleagues for allotting to me their one and a half minutes each on this debate.
I was getting to the Marine Liability Act because it might serve as a concrete example of how this will work. I regret that I'm not as familiar with the Marine Liability Act as I would like to be. As with my colleague, Ms. Duncan, across the way, I just didn't have the time to really sit down and work it through. But my impression, generally speaking, is that the Marine Liability Act would limit in certain circumstances the liability of a shipowner responsible for an incident of pollution in Canadian waters. I may be wrong.
I also want to say--along with my colleagues--I am by no means an internationally trained lawyer, so I don't ask you to accept what I say on that basis. I'm only trying to look at this as a lawyer who has some facility with the interpretation of statutes.
Let's suppose that under the Marine Liability Act, pursuant to an international convention, we are passing a law that limits the liability of shipowners in polluting incidents in Canadian waters. I suppose as long as the Marine Liability Act, as passed pursuant to the international convention, duplicates the provisions of the international convention, this new subclause 6(2) as amended would kick in and would indicate that shipowners are only going to be liable up to the maximum of their liability under the Canadian implementation of the international convention on marine liability.
But subclause 6(1) will say that the purpose of this act is to
(a) safeguard the right of present and future generations of Canadians to a healthy and ecologically balanced environment;
(b) confirm the Government of Canada’s public trust duty to protect the environment under its jurisdiction;
I think those are the two that apply.
So what if a judge decides that the liability limitation in the Marine Liability Act does not adequately safeguard the right of present and future generations of Canadians to a healthy and ecologically balanced environment, and therefore the purposes enumerated in subclause 6(1) are not being met if we are meeting the purpose enumerated in subclause 6(2)? What will a judge do?
In the absence of some qualification of subclause (1) to say that it's subject to subclause (2), it's not at all clear to me that a judge would say that he or she was going to apply subclause (2), rather than disregarding it in favour of subclause (1).
That, to the best of my ability, articulates why I believe it's not sufficient to simply tack on subclause 6(2) with a new purpose, rather than integrating it somehow as a superordinate safeguard that would, in appropriate cases, really gut subclause 6(1).
December 13th, 2010 / 3:55 p.m.
Conservative
The Chair Conservative James Bezan
I have Ms. Duncan, and then Mr. Scarpaleggia.
I have you on the amendment, not the subamendment. Do you wish to speak to the subamendment as well?
Conservative
The Chair Conservative James Bezan
Okay. I'll put you on the list.
There's a point of order from Mr. Warawa.
Conservative
Mark Warawa Conservative Langley, BC
Chair, I'm sorry for interrupting.
Ms. Duncan made the subamendment motion. She spoke to it for almost four minutes and gave up her time, and then you went to Mr. Woodworth.
Is it the policy that you can then come back to the person who gave up the remainder of their time?
Conservative
Conservative
NDP
Linda Duncan NDP Edmonton Strathcona, AB
Thank you, Mr. Chair. I am using my time to assist our committee.
In the Canada Shipping Act they have the objectives of the act and then they have exclusion. Under exclusion there's a subheading called “Conflicts with foreign rules”, and that subsection basically says “Regulations made under this act do not, unless they expressly provide otherwise, apply” to vessels—blah, blah, blah.
The subheading which says “Conflicts with foreign rules”, is at the front end of the statute. My understanding from when I worked in legislative drafting is that you put provisions like that at the front of the act because you're saying this is how this act is to be read. The provision is “Conflicts with foreign rules”, and it says if there are any conflicts with a foreign rule, then that foreign rule prevails.
It then applies later on. It applies later on if you have a right to bring a legal action or to file a request for investigation or to ask for a rule to be revisited. All of those rights can be exercised, but the government only has to respond within the boundaries of what they've signed on to and ratified in international law. That's my understanding.
With respect to where you might potentially place that, sometimes those kinds of provisions go at the end of the statute simply as clarification of such and such being excluded if there's any conflict with international law. I think that's of lesser concern. We could maybe talk about that.
I still think it's a useful amendment, and it responds to some of the issues raised by some of the witnesses.
Liberal
Francis Scarpaleggia Liberal Lac-Saint-Louis, QC
This is a theoretical question, but, for example, if we struck the first sentence of that amendment and the amendment was simply:
In the event of any conflict between the provisions of this Act and the provisions of any international convention in force in Canada
--and that can be interpreted, I suppose, broadly or narrowly, whatever.
the provision of the convention will prevail to the extent of the conflict.
It seems to me that might clarify things.
Conservative
The Chair Conservative James Bezan
We're speaking on the subamendment right now, though, and I can only deal with one subamendment at a time.
Liberal
Francis Scarpaleggia Liberal Lac-Saint-Louis, QC
I'm not making an amendment. It was a theoretical question.
Conservative
The Chair Conservative James Bezan
It's theoretical. If you want to come back to that after, and somebody else wants to move that we strike the first sentence—
Liberal
Francis Scarpaleggia Liberal Lac-Saint-Louis, QC
I'd like to get the opinion of the legal analysts on whether that would clarify a lot of the—
Conservative
The Chair Conservative James Bezan
Well, we've got lawyers sitting around here.
Would there be any better clarity if we remove that first sentence?
Committee Researcher
If you remove the first sentence, which says “This Act is intended to ensure consistency with Canada's rights and obligations”, then I would suggest it probably doesn't belong in the purpose clause.
As Ms. Duncan just said, it might belong better somewhere else, at the end or where you're talking about remedies or orders, or in the civil action provision itself. It's really the first part of that amendment that ties it to the purpose clause.
