Environment Committee on Dec. 15th, 2010

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Before I begin, Mr. Chair, I just have a question. May I know how much of each Conservative member's minute and a half is left for me to use?

[The Chair, Conservative, James Bezan]

You have six minutes and 35 seconds.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Oh, very good. Thank you. I don't think I'm going to need to take all of colleagues' minute-and-a-halfs.

I do want to make one or two comments. The first is that we did hear evidence from Theresa McClenaghan of the Canadian Environmental Law Association--I practised alongside her in Waterloo region for many years--and also Professor Stewart Elgie of the University of Ottawa. Although I did not agree with much of what they said, they did get it right on at least this point--namely, that the information rights referred to exist under other broad federal access to information provisions.

You can see that for Professor Elgie in the blues of October 27, 2010. Theresa McClenaghan appears in the blues for November 1, 2010.

But one thing they did miss...and I almost missed it, actually, until I read this section again carefully. As I said the other day, every time look at this section I see some new time bomb waiting to explode.

Mr. Armstrong mentioned that the government may have to reveal to Canadians negotiating positions. It's even worse than that. If you look closely at clause 10, you will see that it begins by referencing “the protection of the environmental rights of residents of Canada and entities”. As we know from the definitions section, an entity doesn't have to be a resident of Canada; it can be any foreign agent that opens an office in Canada.

This clause then goes on to say that we have to make “such information available to the public”. I'm not a judge, but if I were, I would assume, in interpreting the word “public”, that I'd be going back to the beginning words of the clause, where it includes not only residents of Canada but also entities.

So probably for the very first time in history, this act would give the right to foreign agents to directly access the negotiating positions of the Canadian government in environmental matters at least.

Maybe it'll turn out that way, maybe not, but I think that's another one of these little time bombs that this act contains. We'll all look forward in ensuing years to see whether it's an unfortunate Conservative government or an unfortunate Liberal government that has to deal with these little time bombs, if this act is enacted.

Thank you.

[The Chair, Conservative, James Bezan]

Seeing nobody else, I will call the question on clause 10 as amended.

This will be a recorded vote.

(Clause 10 as amended agreed to: [See Minutes of Proceedings])

(On clause 11--Right to participate in government decision-making in environmental matters)

Does anyone wish to speak to this?

Mr. Warawa.

[Mark Warawa, Conservative, Langley, BC]

Thank you, Mr. Chair.

Clause 11 prohibits the Government of Canada from denying residents “standing to participate in environmental decision-making or to appear before the courts in environmental matters solely because they lack a private or special legal interest in the matter”.

Clause 11 is unnecessary, and I'm going to break it into two parts.

It's unnecessary because existing legislation--the Canadian Environmental Protection Act, 1999, and the Species at Risk Act--provides residents of Canada with the opportunities to participate in a number of decision-making processes related to the environment. These existing rights are carefully tailored to maximize public participation, while recognizing the finite government and judicial resources, as well as the need for timely implementation of programs and policies.

On the second item, regarding a person standing before the court, the government cannot deny a person standing before the court. Standing before courts is determined by the courts themselves. Courts may currently grant public interest standing when the applicants demonstrate they have a serious issue to be tried, that they have a genuine interest in the matter, and that there is no other reasonable or effective way to bring the issue before the court. So the purpose of this provision is quite unclear.

In fact, Chair, when we heard from witnesses, Theresa McClenaghan of the Canadian Environmental Law Association pointed out that it's “generally the courts who make standing decisions”. That can be found in the blues for November 1.

So clause 11 obliges the Government of Canada not to deny residents standing to participate in the environmental decision-making solely because they lack a private or special legal interest in that matter. The Government of Canada currently provides opportunities for residents to participate in decisions, as I've said, in CEPA 1999. Members of the public are given an opportunity to comment on proposed regulations. They have in the past, and they would continue to have that opportunity to provide input, and may file notices of objection to proposed regulations or decisions respecting substances.

Under the Species at Risk Act, members of the public may participate in the development of recovery strategies. And as I've said before, it's quite tragic that we are not dealing with the Species at Risk Act, as is our legislative requirement. Instead, we are languishing on a bill that is a big bill of concern and again would kill jobs and investment.

Back to requiring the courts to permit standing—or the government, which doesn't make sense, actually. The provision would likely prevent the government from denying residents an opportunity to participate in such decisions solely because they lacked a special interest in the matter; it would not prohibit the government from denying standing for other reasons.

The second part of the proposed clause prohibits the Government of Canada from denying standing before courts on environmental matters. However, the provision appears to be misplaced, as standing before courts is determined by courts, as I've shared in the quote. It's not to be the Government of Canada that determines that. Court discretion to grant or deny standing: it's important that the courts have that discretion to discourage frivolous litigation, preserve scarce judicial resources, and ensure the determination of an issue benefits from the contending points of view of those most directly affected by the issue.

Moreover, courts may grant public interest standing when the applicants demonstrate they have a serious issue to be tried, that they have a genuine interest in the matter, and that there is no other reasonable and effective way to bring the issue before court. As such, the purpose of this proposal is, I believe, inappropriate.

I believe I have three more minutes, but at this point, to correct another serious bombshell, I would move that the last third of the clause be struck, with a period after the words “participate in environmental decision-making”.

So my motion would remove “or to appear before the courts on environmental matters solely because they lack a private or special legal interest in the matter”.

As I've said, courts should have that discretion. We've heard that throughout different standing committees in Parliament. Courts should have the discretion. For the NDP to try to remove that discretion is, I believe, a very dangerous step, so therefore my motion.

[The Chair, Conservative, James Bezan]

All right.

We have an amendment to line 17 in the English version to remove everything after “decision-making”. After the period following “decision-making”, the rest would be deleted.

We're now speaking to the subamendment.

Mr. Woodworth.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Thank you very much, Mr. Chair.

I would like to suggest a friendly amendment if Mr. Warawa is prepared to accept it.

If we delete the entirety of those last two and a half lines or so, we will be in effect expanding the paragraph to simply say that the Government of Canada shall not deny standing to participate to anybody.

The words “solely because they lack a private or special legal interest in the matter” are, I think, an important qualification. If they are left, then the clause would, with Mr. Warawa's thought, be amended to say that “the Government of Canada shall not deny any resident standing to participate solely because they lack a private or special legal interest in the matter”.

But there may be other reasons why the Government of Canada may deny standing to Canadians. If we also omit the words “solely because they lack a private or special legal interest in the matter”, then if there is another good reason to deny standing, I'm afraid the government won't be able to make use of it.

So the friendly amendment that I'm suggesting would result in an amendment that would simply delete the words “or to appear before the courts on environmental matters”--full stop--and leave in the words “solely because they lack a private or special legal interest in the matter.”

[Mark Warawa, Conservative, Langley, BC]

I'll accept it as a subamendment.

[The Chair, Conservative, James Bezan]

If it's a subamendment, I'm going to have to--

[Mark Warawa, Conservative, Langley, BC]

Accept it as a friendly amendment to my motion.

[The Chair, Conservative, James Bezan]

The thing is that we're not dealing with motions here. We're dealing with clauses of a bill.

You want to delete one part.

You're suggesting that we leave in....

[Mark Warawa, Conservative, Langley, BC]

On a point of order, Mr. Chair, if we're not dealing with the motion, then we cannot move forward. We have to have a motion on the floor that we can debate and then vote on.

I believe we do have a motion on the floor....

Well, Chair, maybe we don't--maybe nobody moved clause 11--in which case, what are we debating on?

[The Chair, Conservative, James Bezan]

Just for information, one thing you'll not find in this book is friendly amendments. They don't exist.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Kind of like friendly chairs.

[The Chair, Conservative, James Bezan]

Yes.

Often those things are done because there's consent around the table to accept them.

I'll ask for consent. Anything is possible with unanimous consent.

Is there consent to allow Mr. Woodworth to do this amendment to...?

You have a point of order, Mr. Woodworth?

I'm asking for consent first.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

I know, but I think you've put the question slightly incorrectly.

I think the question is whether we will allow Mr. Warawa to--

[The Chair, Conservative, James Bezan]

To accept this friendly amendment.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Yes.

[The Chair, Conservative, James Bezan]

Otherwise, we're dealing with it as a subamendment.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

That's presuming, then, that the motion has been tabled.

[The Chair, Conservative, James Bezan]

We definitely have a request to delete some words and leave in some words.

Is there consent to deal with it in that way?

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Yes.

[The Chair, Conservative, James Bezan]

Okay. So we'll deal with it. The subamendment's been accepted, and you're on to the....

It means that we're dealing with the main amendment.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Could you tell me what it is we're discussing now, please?

[The Chair, Conservative, James Bezan]

The amended clause would read: Every resident of Canada has an interest in environmental protection and the Government of Canada shall not deny any resident standing to participate in environmental decision-making solely because they lack a private or special legal interest in the matter.

Is that correct?