Environment Committee on Dec. 15th, 2010

[Blaine Calkins, Conservative, Wetaskiwin, AB]

We're debating now, Chair, an amendment to the clause.

[The Chair, Conservative, James Bezan]

Yes.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Mr. Chair, I'd like to move a subamendment, please.

[The Chair, Conservative, James Bezan]

Okay, we're moving a subamendment.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

I would like to delete the words from “Every” to “and”. The clause would start with “The Government”.

I believe the first comment has no standing or basis in law, and is purely an editorial comment injected into the bill.

[The Chair, Conservative, James Bezan]

What are you talking about?

[Blaine Calkins, Conservative, Wetaskiwin, AB]

I would like stricken from the clause the words “Every resident of Canada has an interest in environmental protection and”.

[The Chair, Conservative, James Bezan]

That's another amendment. We're dealing with the end of the paragraph, not the beginning. So I'd like to deal with that as a separate amendment, not as a subamendment.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

I'll wait. I'll defer to your wisdom.

[The Chair, Conservative, James Bezan]

We will deal with the latter, and then we can come back to the former.

Mr. Woodworth, you have the floor.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Thank you.

I just want to second Mr. Warawa's comments that it is a little nonsensical to suggest that the Government of Canada can deny standing to anyone who wants to appear before the courts.

Now, it shouldn't surprise us, I suppose, that something that I think is, I repeat, nonsensical may be found in this bill. But Mr. Warawa is I think correct that if the Government of Canada is or is not involved in an environmental matter before the courts, the Government of Canada doesn't make the decision about who has standing.

Wouldn't it be a nice world if the Government of Canada could tell the courts what to do in any given case? But that's not the world we live in. The courts decide, I think for themselves, who has standing. The Government of Canada might have a word on it, but ultimately doesn't deny anyone standing. It's up to the courts, I think.

I'll just leave it at that.

That is why I think the amendment makes sense.

[The Chair, Conservative, James Bezan]

I have Mr. Scarpaleggia, on the amendment.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

I'm just seeking clarity.

Is it correct that it's not up to the Government of Canada to decide who shall appear before the courts in environmental matters? Maybe there's nuance here that I'm not picking up. It's either one or the other, is it not?

Maybe somebody could just elaborate on that.

[The Chair, Conservative, James Bezan]

Go ahead, Ms. Courtney.

[Kristen Courtney, Committee Researcher]

That's right, in a court action, it's the court that grants or denies standing to a party or to someone who seeks to be recognized as a party.

I believe one of the witnesses made a comment about it, that it's not technically correct to say that the government shall not deny a resident standing to participate in a court action. It's the court that does it.

The witness proposed some wording to deal with that.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

So then we really do need to strike out this part here.

Am I speaking to the subamendment or to...? I don't know anymore.

[The Chair, Conservative, James Bezan]

We're speaking to the amendment. There's only one amendment on the floor.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

So then I imagine we must take that part out, “to appear before the courts in environmental matters”.

[The Chair, Conservative, James Bezan]

Are there any other comments?

Ms. Duncan.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Thanks, Mr. Chair.

It's hard to speak to this because I'm not really sure where we're are at now. I don't know why they don't just strike the clause.

The reason it's twofold is that there has been a regular practice by the federal crown to oppose standing when environmental lawsuits are filed.

There are two questions here. Are we dealing with the issue of whether the provision is worded in a way that says precisely...? I don't think it would be correct to say that the Government of Canada shall not oppose; I don't think that is what is said in statutes.

What is intended here is that the Government of Canada shall not deny; in other words, shall not make presentations to deny standing in those circumstances. That's a very important provision.

The whole point of this provision is to deliver on the North American Agreement on Environmental Cooperation, which Canada and a number of provinces have signed, to provide access to remedies to Canadians on environmental matters. This provision specifically provides, in both cases, access by Canadian residents to environmental decision-making processes and to the courts.

That's why it's twofold. To remove the second part would be to say we want to withdraw from a part of the North American Agreement on Environmental Cooperation. This provision simply implements something we had already committed to about 15 years ago.

[The Chair, Conservative, James Bezan]

Mr. Woodworth and then Mr. Scarpaleggia.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Thank you, Mr. Chair.

I think I heard Ms. Duncan suggest we should strike the clause. If so, I'd certainly be prepared to support that, if she wishes to move it.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

I'm not suggesting it; I'm suggesting that's what you want.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Apart from that, I can see at least three possibilities here. There are probably more, but on a quick reading there are three possibilities with respect to this unfortunate section.

One is that maybe what we're trying to do in this clause is to say there will never be a statute of the Government of Canada that purports to deny standing. In other words, if we ever pass another environmental statute it has to not deny standing to people just because they lack a private or special legal interest. That's not what the clause says, but it's a possibility that's what it's getting at.

Second--and what I think it probably is getting at, but Ms. Duncan doesn't like--is that this clause wants to direct the Government of Canada to direct its agents, solicitors, and prosecutors not to oppose applications for standing. Ms. Duncan says she doesn't think that's the way it should go.

The third thing it could mean is that maybe this clause wants to tell the courts they shouldn't refuse standing solely because people lack a private or special legal interest, and to tie the hands of the courts.

In any event, I certainly think as it's presently worded it makes no sense. It could mean anything or nothing.

[The Chair, Conservative, James Bezan]

Okay.

We will have a clarification from our analyst, and then I have Mr. Scarpaleggia and then Mr. Ouellet.