Environment Committee on Feb. 1st, 2011

[The Chair, Conservative, James Bezan]

Mr. Woodworth, your eight minutes are up.

Are there comments from other members?

Ms. Duncan.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

I will just add briefly that part 2, environmental protection action, in clause 16 is simply enshrining commitments made by the Government of Canada under the North American environmental cooperation agreement, particularly article 6, providing private access to remedies.

[The Chair, Conservative, James Bezan]

Thank you.

(Clause 16 as amended agreed to)

(On clause 17--Interim order)

We'll move on to clause 17.

Mr. Calkins.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Thank you, Mr. Chair.

I'll try to pick up where my very capable colleague, Mr. Woodworth, left off.

Clauses14 through 19 are very much related to one another, so any of the changes we've made, amendments we've accepted, of course always have impacts on subsequent clauses. However, I don't believe the amendment that was made in the last clause is going to affect clause 17, for which I'm thankful, because it does remove some of those complexities.

Clause17, again, is quite broad and encompassing in its powers and it bestows more powers upon the courts and litigants and environmental organizations and activists to basically bypass the ability of the government to permit for the purpose of development and so on. Subclause 17(1):

A plaintiff bringing an action under subsection 16(1) may make a motion to the Federal Court for an interim order to protect the subject matter of that action, when, in the court’s opinion, significant environmental harm may occur before the action can be heard.

This is the stopgap between the filing of an order and allows cease-and-desist types of things to happen. While it might seem well and good in its intention, it does create a number of problems, which I'd like to discuss. When it provides a plaintiff in an environmental protection action to make that motion to the Federal Court for an interim order to protect the environment, the court, of course, has to be of the opinion that significant environmental harm may occur before the action can be heard. As such, the order is not to be withheld on the grounds that the plaintiff is unable to provide any undertaking to pay damages.

Subclause 17(3) says,

Any requirement to provide an undertaking to pay damages in support of the plaintiff's application shall not exceed $1,000.

That's capped. To my knowledge, there's no place right now in Canadian law--maybe I stand to be corrected--where that is capped at $1,000. Basically this gives anybody who's got $1,000 in their pocket--and we all know how much money is available to environmental activists and organizations that fund-raise viciously on the backs of particularly Alberta oil sands, with a lot of their mistruths and so on. We can clearly see where this particular piece of legislation is going. This would allow anybody to line up and pay $1,000 each to file orders before the court for cease-and-desist motions that are quite problematic.

I don't see that this piece of legislation is going to be offering anything new. For example, any project that involves any particular federal legislation, which the Environmental Bill of Rights certainly has scope over, would already be taken into play by the environmental impact assessments done through the Canadian Environmental Assessment Act, and then of course if there were any concerns, those would be dealt with.

In that environmental impact assessment, if any species were at risk in the prescribed area, that would be documented and there would be mechanisms to deal with that through the Species at Risk Act. If there were any alteration, damage, or destruction to fisheries habitat or if there were any depositions of deleterious substances, of course an environmental impact assessment would identify all those concerns and have mitigating factors put in place through the Fisheries Act, and of course there are various mechanisms through the Canadian Environmental Protection Act, through the Canada National Parks Act, and so on.

The other problem that we don't discuss is, because we're the environment committee, we should be focused specifically on those laws, acts, and regulations that apply to the Minister of the Environment. If we go back to its inception, the bill talks about much broader concepts: the health of the individual through a healthy and ecologically balanced environment.... I can't remember the exact words.

That broadens the scope of this bill to not only include those acts and regulations that are the responsibility of the Minister of the Environment, but any other act or legislation, whether it be through the Department of Health, through the Department of Agriculture. Wherever changes are made in the environment, this would allow those kinds of actions to be put in place. If anybody can make the case before the court that such an action, whether it's breaking ground by a farmer, whatever the case may be.... We are limited of course to crown land, but of course, Mr. Chair, you and I from our agricultural backgrounds both know that farmers lease crown land to graze cattle and so on, so all these kinds of considerations could be taken into account by individuals if this section of this bill should come to pass.

So I have some large concerns. The only penalty for frivolous action that could be brought to bear against somebody is $1,000. So you could have a multi-million-dollar project going forward, creating jobs, with sign-offs from the federal and provincial governments, environmental impact assessments, and stakeholder meetings, and then at the very end anybody with $1,000 could file an injunction against the project. All you have to do is line up a couple of dozen people with $1,000 in their pockets and you can keep this little kangaroo court going on and on. That is my concern with this particular piece of legislation.

If we're going to have this legislation in place, what the heck do we have all the other legislation for? Why do we have a department? Why do we have thousands of environmental technicians, in private industry and in the Government of Canada, if we're going to go through this process just to have it overturned and provide an out to anybody with $1,000 in his pocket? There's no limit to environmental organizations. It doesn't say the $1,000 has to belong to the individual; it can belong to anybody who has the $1,000.

I would never speak to the intentions of the sponsor of the bill. I believe she's doing what she thinks is best for the environment. However, it seems to be going down the same road. I'll be using the same arguments over and over again that we already have all these provisions in place. We have thousands of civil servants, thousands of people in the private sector, working to make sure that any progress we make on any development goes forward in an environmentally responsible manner.

We're one of the most environmentally responsible countries in the world. Yet we seem to keep harping on these kinds of issues because it's politically expedient to do so. We're playing politics with something that's very dangerous right now, which is the state of our economy, the state of our recovery. This is dangerous legislation that takes us down a road we have never travelled in Canada.

Based on that, I'll be voting against clause 17.

[The Chair, Conservative, James Bezan]

I recognize Mr. Kennedy.

[Gerard Kennedy, Liberal, Parkdale—High Park, ON]

Thank you, Mr. Chair.

I thought I heard the member opposite refer to kangaroo courts. But the courts are able to dismiss anything that's frivolous. They don't have to stop a project or grant an order. The probity of the courts is not in question here. This simply says that we're going to have extra insurance for individuals, which other jurisdictions already have.

The Conservative Party used to believe in the rights of individuals; they believed in people exercising their rights. That's where the American tradition comes from. A lot of environmental protection in the States is done by individual litigation in support of defending the environment. Sometimes property rights are a little bit stronger there, but essentially it is done in a constructive fashion. So the allegation that it's a kangaroo court simply because it concerns the environment or that reconciling the economy and the environment requires damage to the economy is very old-fashioned thinking.

The idea that you can't reconcile things in a manner that would not require any action by the court is part of the problem. That's part of the reason we need to have an environmental bill of rights. All the members opposite have had their briefings from Environment Canada and know how few enforcement officers there are.

I'm not sure what Mr. Calkins means when he says Canada has an outstanding reputation for protecting the environment. We're 54th out of 57 countries in dealing with climate change. On biodiversity we're not rated that highly. Our marine protection is way behind that of other countries. As to species at risk, I think we have seven habitats out of 450 that have actually been identified.

There is perhaps a genuine interest on the part of all members of the committee to see the environmental protections brought from the realm of something abstract to something that can happen. This is simply saying that we people in government don't have the wherewithal, that the discretion of ministers is not always sufficient to protect the environment, and that individual Canadians can actually express themselves in a manner we shouldn't be afraid of. Who are we to take away their rights to do that? Who are we to restrict this option?

This simply opens the door to individuals to take action on behalf of the environment—not in a kangaroo court but in a court of law. They should get that respect, and this simply enables that. For the members opposite to be on the one hand accepting of the bill and on the other fundamentally dismissive of that principle is something they have to contend with.

This is an expansion of the rights of individuals. I think it's a useful thing. It's not a frivolous or a reckless thing, and anybody who tries to use it that way will find themselves unable to do so.

Thank you.

[The Chair, Conservative, James Bezan]

Mr. Woodworth, you have 30 seconds left in the Conservative allocation.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

The issue is whether that reconciliation will be done by judges or by democratically elected decision-makers. And regrettably, the very first time a Hydro-Québec project or an Ontario Ministry of Transportation project is stopped dead in its tracks by an interim order under this section, I hope people will remember that it was the work of this committee that created that delay and that expense.

[The Chair, Conservative, James Bezan]

Thank you.

Mr. Calkins, you have ten seconds.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Just to reply, I think my colleague across the way has taken my words out of context. We don't have kangaroo courts right now, but my contention is that if we open it up and make it so available to frivolous and vexatious causes, the process itself becomes a kangaroo process.

[The Chair, Conservative, James Bezan]

Thank you.

Are there any other comments?

Ms. Duncan.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Thank you.

I'd like to echo the very cogent comments by Mr. Kennedy. Well said.

We heard a lot of testimony about whether the existing rights and remedies to have access to the courts have created a floodgate situation, and very clearly they have not. The government, in their wisdom, when they amended the enforcement bills, did not take away the existing rights of access to investigation and access to the courts. Perhaps now they're thinking in another direction. But thus far in Canada there has not been a floodgate of litigation; that's far from the truth.

I am encouraged that Mr. Woodworth believes that decisions should be made by the democratically elected members. I am looking forward to my bill going through the House of Commons and being approved by the Senate.

Again, these provisions are simply consistent with the commitment made by the Government of Canada under the North American agreement on environmental cooperation. If you look at the sections on private access to remedies, we undertake that we will provide access to injunctions. It's up to the court to determine if the case is valid or not. It's very clearly circumscribed by requiring that there be significant environmental harm so that action is brought in the public interest. It's not an action for damages. It is an action brought in the interest of the public and protection of the environment, and may only be sought in the case of significant environmental harm being caused if there is not an interim injunction.

And on the matter of limiting the damages to $1,000, that's consistent with the approach adopted in the United States, because they have found that it's not simply enough to give communities the right of standing if they're barred from accessing the courts because of onerous costs. This is just ensuring that we deliver on our responsibilities as well under that side agreement to NAFTA.

[The Chair, Conservative, James Bezan]

Thank you.

Seeing no other hands, I shall call the question.

(Clause 17 agreed to: yeas 6; nays 5)

(On clause 18--Factors to be considered)

We're going to clause 19, amendment NDP-7, on page 13 in your docket.

Ms. Duncan, can you please put that on the floor?

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Yes, Mr. Chair.

My proposed amendment is that Bill C-469, in clause 18, be amended by replacing lines 27 and 28 on page 11 with the following:

result from an attempt to maximize economic benefits;

I don't think that makes sense, to tell you the truth.

[The Chair, Conservative, James Bezan]

So it's essentially taking out “business profits” and changing it to “economic benefits”.

Do you wish to speak to that, Ms. Duncan?

[Linda Duncan, NDP, Edmonton Strathcona, AB]

I'm thinking, on looking at this, that two amendments have been put one on top of the other. But I can't change my amendment as now tabled.

[The Chair, Conservative, James Bezan]

On clause 18 there is only amendment, NDP-7. It is the only amendment.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Sorry. I was looking at a completely different amendment, which I think is being brought later. So yes, I stand by that.

[The Chair, Conservative, James Bezan]

Do you wish to speak to that?

[Linda Duncan, NDP, Edmonton Strathcona, AB]

There has been a lot of discussion at this table about balancing environment and the economy. And during the discussion of Bill C-16 there were a lot of criteria that were added in by the government as factors for the court to consider. One of the provisions was the issue of maximizing business profits.

I'm simply clarifying that language and clarifying that it is a consideration that I think should be considered. So it would be whether the harm resulted from--or may result from--an attempt to maximize economic benefits.... So as to not make it so specific, it broadens the category of matters that can be considered.

[The Chair, Conservative, James Bezan]

Other comments?

(Amendment negatived)

[The Chair, Conservative, James Bezan]

We go back to the main clause, clause 18.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Did you say the amendment was defeated?

[The Chair, Conservative, James Bezan]

The amendment was defeated.

Is there any debate on clause 18?

The Bloc voted against.

Mr. Sopuck, you have the floor.

[Robert Sopuck, Conservative, Dauphin—Swan River—Marquette, MB]

Thank you very much, Mr. Chair.

I'm glad the topic of the definition of “significant environmental harm” has come up, because it's something that needs to be defined and discussed. I don't approach this as a lawyer; I approach it as a biologist and a farmer, and a person who lives in a rural area.

I think it's a truism in law--and my colleague to the right of me confirmed the phrase--that hard cases make bad law. It's easy to divine environmental harm if you define it as a hard case, like Ms. Murray did with the destruction of a salmon spawning area or direct dumping of a toxic substance into a lake or a stream. Those are easy ones. But too often environmental change and environmental harm are conflated. What is one person's environmental change, well within the bounds of sustainability, is another person's harm.

A whole number of examples, especially in rural communities and rural resource communities, spring to mind. For example, in Manitoba and Saskatchewan we have very large reservoirs that have been constructed for flood control, recreation, irrigation, and so on. There has been, in those cases, a significant environmental change, but I would argue very strongly that in many of those cases the ecosystem has adjusted to the new reality. We have a new kind of environment out there, where ecosystem processes have reconfigured themselves and are operating very well, and can do so in perpetuity.

For example, when I look at the definition of a “healthy and ecologically balanced environment”--and I'm reading from the bill itself--it means

an environment of a quality that protects human and cultural dignity, health and well-being and in which essential ecological processes are preserved for their own sake, as well as for the benefit of present and future generations.

Just as an aside, as a biologist I'd like somebody to define for me what's a non-essential ecological process. I think all ecological processes are essential. I think the focus on ecological process is what's important.

For example, in many forest communities across the country what happens is that an older forest, through forest management and forest practices, is changed to a younger forest with all of its essential ecological processes intact. Again, this particular bill has the potential...well, it definitely will allow groups and organizations that happen to have a different value set compared to, for example, the rural forestry community in Quebec, where people happen to like a young forest and understand how environments can change positively because of human interaction.... What will happen is those rural communities will be attacked by this particular act, by people and organizations using this act.

I represent a rural resource community. I think we all have to be reminded that it's the natural resource industries that are carrying this entire country right now, whether it's the oil sands, whether it's forestry, whether it's agriculture, whether it's natural gas development. What those natural resource industries contribute to the country basically keeps all of our social programs going. Too often, people who never venture into natural resource areas do not have an understanding of what kinds of processes go on out there and what we, as farmers and loggers, actually do. Unless you understand that, you cannot appreciate that environmental change is not necessarily a bad thing.

In terms of clause 18, I also look at the precautionary principle. I understand that the precautionary principle is already recognized and entrenched in several federal laws, like the Federal Sustainable Development Act and the Canadian Environmental Protection Act. Again, as listed in these acts, the lack of full scientific certainty should not be used as a reason for postponing cost-effective action to protect the environment. The word “cost-effective” doesn't show up in the definition in this particular bill.

Actually, there are a lot of problems with the precautionary principle. If you look at how environmental assessments are carried out, you'll see they're really risk assessments, where you make a judgment based on the development at hand and then decide whether the change to the environment is within the bounds of sustainability. The problem with the precautionary principle taken to its illogical extreme is that then you would never do anything, because you would be too afraid of doing some kind of environmental harm.

I should make the point that in terms of environmental assessment, science must guide all decision-making, and I have a very simple three-word rule for how I approach the environment: Do the math. The math of the environment is often forgotten as we wrangle about process and legal issues and so on.

I would urge the committee, concerning clause 18, to take a really good look at the doors this particular clause opens from a litigation standpoint, as well as to strongly consider that rural resource communities and the natural resource industries that I pointed out before are basically carrying the entire country.

Thank you, Mr. Chair.