Environment Committee on Feb. 1st, 2011

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Yes.

As always, I do respect my friend's comments and her efforts to respond to my submissions, and it would be unfair of me not to pursue that for the benefit of all of us and particularly her.

What she did was just to state exactly my point that in the Canadian Environmental Protection Act, in the manner that I described, the Government of Canada has designated a lawsuit against a private individual who has caused significant environmental harm, after the Minister of the Environment has failed to conduct an investigation, to be an environmental protection act. That is quite distinct from what Ms. Duncan has invented in this act, which, in clause 16, is a lawsuit against the government to compel the government to do things.

So the two things are quite different, and that's why I think the heading she's proposed will mislead people. It may be that another way to solve this would be to include in this bill before us some amendment of the Canadian Environmental Protection Act to change the name of the lawsuit it's talking about. But to try to equate them is what will cause confusion.

[The Chair, Conservative, James Bezan]

Are there any comments on the subamendment? Seeing none, we're going to call the question on the subamendment that is moved by Mr. Woodworth that the motion be amended by replacing the word “actions” with the word “lawsuits”, in the plural.

(Subamendment negatived)

[The Chair, Conservative, James Bezan]

It is defeated, so we shall move back to the main amendment, which is changing the heading to read ”Environmental Protection Action”.

(Amendment agreed to)

We're moving on to amendment BQ-6.

Mr. Bigras, go ahead.

[Bernard Bigras, Bloc, Rosemont—La Petite-Patrie, QC]

Mr. Chair, I am moving amendment BQ-6, which states the following:

That Bill C-469, in clause 16, be amended by deleting lines 5 to 9 on page 11.

I would first like to remind you of the subject covered by this clause, that is, the fact that the federal government being given the power to authorize an activity that may result in significant environmental harm does not constitute a defence.

Many groups, stakeholders and witnesses have told us that Bill C-469 is lacking safeguards and pointedly ignores existing laws and regulations. Under this amendment, the government will not be able to authorize an activity, regardless of what it is, that may result in environmental harm. This would limit the government's decision-making power and its activities.

In addition, there are some issue with the interpretation of the bill. I want to point out that the Canadian Environmental Assessment Act does exist. In defining environmental effects, the act's provisions use the wording “significant adverse environmental effects,” while Bill C-469 states the following:“significant environmental harm” includes, but is not limited to, harm whose effects on the environment are long lasting, difficult or irreversible, widespread, cumulative, or serious.

The fundamental issue is deciding which legislation will apply when this clause is adopted. We are opposed to subclause 16(4) and we propose its deletion.

[The Chair, Conservative, James Bezan]

Thank you very much.

Are there other comments?

Ms. Duncan.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

I have a problem with this amendment that Mr. Bigras is raising, because it would be contrary to the common law as it stands now in Canada.

We were provided the brief by Ecojustice on November 17, 2010. I believe that was given to everybody. They went to the effort, because this matter had come up previously, of going through some of the legal precedents. They provided us with, for example, the Supreme Court decision in Ryan v. Victoria (City), 1999, where the court stated:

Legislative standards are relevant to the common law standard of care, but the two are not necessarily co-extensive. The fact that a statute prescribes or prohibits certain activities may constitute evidence of reasonable conduct in a given situation, but it does not extinguish the underlying obligation of reasonableness.

They later go on to say:

Compliance with a statutory standard of care does not abrogate or supersede the obligation to comply with the common law standard of care. The requirements are concurrent, and each carries its own penalty for breach. However, in appropriate circumstances, compliance with statutory standards may entirely satisfy the common law standard of care and thus absolve a defendant of liability in negligence.

Clearly, the court is saying that it depends on the circumstances of the case. For example, one may raise the defence of officially induced error. If a government authority leads a defendant into believing that the actions that he or she took actually would result in compliance with the law, generally they have been acquitted on that basis.

In the case of a civil action--we're talking about a civil action here, not a criminal proceeding--the courts have held in case after case that this is simply evidence that can be tabled.

In the case of this provision, subclause 16(4), it simply states that the government has the power to authorize an activity that may result in significant environmental harm; it doesn't say that the government has authorized. So it's saying that simply because there's a provision in law that gives the government the power to authorize an activity, they may or may not have exercised that. What legal precedent is saying is that even where the government has exercised that authority, and has issued an approval, that's not an absolute bar to a civil action. That's because we have a number of common-law rights that are still in existence by which the courts have held that if the person is damaged by some kind of activity, regardless of the fact that a level of government has authorized that....

Also, in the Supreme Court decision in St. Lawrence Cement Inc. v. Barrette, the court held that

Standards provided for in statutes and regulations also place limits on rights and on the exercise thereof. Many examples of this can be found in the Civil Code of Québec, in zoning rules and in environmental standards. As a result, the question of the relationship between violations of the law and civil liability needs to be examined.

The court goes on to say:

The standard of civil fault corresponds to an obligation of means. Consequently, what must be determined is whether there was negligence or carelessness having regard to the specific circumstances of each disputed act or each instance of disputed conduct.

So we have the issue that we have the common-law rights that Canadians are given, and then we have the power of the government to authorize by statute. The Supreme Court has held in numerous cases that the statutory power does not absolutely override the common law, that it can be a piece of evidence that's tabled. You also look to the due diligence of the party that is being sued.

[The Chair, Conservative, James Bezan]

Thank you.

I have Mr. Scarpaleggia.

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

I appreciate that explanation by Ms. Duncan. I just have a question. Am I to understand, then, that subclause (4) is somehow superfluous, because it's already the case in common law?

[The Chair, Conservative, James Bezan]

Ms. Duncan.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

The intention is to clarify for the litigants and all the parties, and for the court. It simply draws on legal precedent in stating the obvious. You may be correct, but it certainly makes it clearer to the parties.

I'm not going to die on a hill over this. I just thought I would put this on the record. I think Mr. Bigras is trying to raise a sincere concern. I understand there may be some difference with the Quebec situation, which of course is codified in the common law in the rest of Canada, and that may be where we're in a bit of a dilemma.

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

Am I correct in saying that if we keep it in the bill it strengthens that principle that's already been established in court decisions and so on?

[The Chair, Conservative, James Bezan]

Do you wish to respond? I have some other speakers on the speakers list as well.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

It's an intention to clarify in the statute that this is not a defence that can be raised in the case of litigation. That doesn't prevent the defendant from coming forward and saying he has received an approval and has been duly diligent in complying with those provisions and so forth, right? It doesn't stop that. It simply says it's not an absolute bar to an action being brought that certain approvals have been issued.

[The Chair, Conservative, James Bezan]

Mr. Scarpaleggia, are you okay with that? Okay.

Mr. Kennedy, and then Monsieur Bigras.

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

I understand Mr. Bigras' concerns, but according to what I've read, the intent of the provision is to keep the government's power in check. A decision on a project could become an unrestricted licence to destroy the environment or cause environmental problems, unless such a process makes it possible to identify other issues. If a ban is imposed on companies or individuals with a permit, it could become too difficult to appeal it through the process provided for in the bill now before the committee.

I just think it is a limit to the government power that makes some sense, because the whole permitting process is not meant to be a blank exemption. And I don't think it takes away the ability for hydroelectric or other projects to go ahead; it simply says where there are grounds. And notwithstanding what we've heard from the members opposite, there are many qualifications, against frivolity, against other things, that really only genuine environmental concerns should be raised. If environmental things are caused that weren't anticipated at the time of permitting, this is a limit on the power of government to not be omnipotent and with one act to cause a bunch of other unintended harm.

That's how I regard it, and I hope it might be viewed in that way. I don't think it is overarching or that it knocks out other statutes or that it takes away the powers that government has to provide permits. It simply says if damage is caused, that's not a complete defence. It's simply you've got a permit, therefore whatever else you do is also allowed.

The fact is those arguments have been raised, and I think that Ms. Duncan accurately raises where courts have often disposed of them. But it does take a lot of time in the process, and I think it would be fair for us to be able to get to the heart of the matter: is there a new environmental damage or not, and is it beyond what was contemplated? People can rely on the fact that they've followed their permits; it's just that's not a complete defence if something else has happened.

You can look at any number of instances and find that's something we could use to make sure that companies have the whole reliance that a permit is not permission to do whatever the heck else might come up. I think most companies would acknowledge they don't intend to do that per se, but this would put everybody on their toes to make sure.

[The Chair, Conservative, James Bezan]

Mr. Bigras, you have the floor.

[Bernard Bigras, Bloc, Rosemont—La Petite-Patrie, QC]

Mr. Kennedy is invoking trivial reasons, but the facts are quite the opposite. I invite him to read subclause 16(4), which states the following: “[...] has the power to authorize an activity that may result in significant environmental harm.” It does say “that may result” and not “that results” in environmental harm. Therefore, we're talking about the possibility of resulting in significant environmental harm.

First, there is a problem with the very definition of “significant environmental harm” if we compare it to the definition found in the Canadian Environmental Assessment Act, where “significant adverse environmental effects” is the wording used.

Second, I want to remind Ms. Duncan that any issues related to civil action, which she talked about in her opening arguments, are covered by clause 23, which we will have the opportunity to debate. We are currently not discussing civil action, but rather the government's decision-making power.

I invite my Liberal colleagues to have a good look at the briefs submitted by the Shipping Federation of Canada. I also ask that, before making their decision, they read the brief submitted by the Conseil patronal de l'environnement du Québec, which represents Hydro-Québec as well as many other Quebec companies.

[The Chair, Conservative, James Bezan]

Ms. Murray, you have the floor.

[Joyce Murray, Liberal, Vancouver Quadra, BC]

Thank you, Mr. Chair.

Just to add to the comments of Mr. Kennedy, the way I understand this, it's clarifying that it's not just in the case that a permit has been applied for and granted for an action; it's actually precluding the situation where the Government of Canada has the power to grant a permit.

A practical example might be an agency of the government that does some kind of development that has a major lasting impact on a salmon spawning stream or something like that. The Minister of Fisheries and Oceans has the power to authorize that activity but may not have actually authorized it. So this is saying it's not a defence that the Government of Canada has the power to authorize that activity. The Minister of Fisheries could have issued a permit for that activity; whether she did or didn't is not considered in this phrase.

I think this is a good clause that clarifies that the power of the Government of Canada to authorize that activity is not a defence for an activity that creates that harm.

[The Chair, Conservative, James Bezan]

Ms. Duncan, were you wanting back on that?

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Just briefly. Thanks, Mr. Chair.

I just want to reiterate to Monsieur Bigras.... And I'm not saying I won't agree with his amendment, if that's the hill he wants to die on. If he looks again at Ciment du Saint-Laurent v. Barrette, the court said:

In Quebec, art. 1457 C.C.Q. imposes a general duty to abide by the rules of conduct that lie upon a person having regard to the law, usage or circumstances. As a result, the content of a legislative standard may influence the assessment of the duty of prudence and diligence that applies in a given context. In a civil liability action, it will be up to the judge to determine the applicable standard of conduct — the content of which may be reflected in the relevant legislative standards — having regard to the law, usage and circumstances.

So essentially what they're saying in relation to Quebec as well is the judge still looks at the circumstances of the case and whether they were duly diligent and so forth.

This is a civil action; this is not a criminal action. This is in fact a civil proceeding.

That's all I wanted to add. The intention was simply to recognize, over time, what the Supreme Court has been holding. I don't want to add anything else.

We could call for the vote. If this is a hill upon which Monsieur Bigras must stand, then I would support removing the provision, but it is simply meant to reflect what the courts have held.

[The Chair, Conservative, James Bezan]

Are there any other comments?

Seeing none, I'll call the question on the amendment.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Mr. Chair, on a point of order, could I just have the amendment in English one more time, please?

[The Chair, Conservative, James Bezan]

The amendment is essentially removing subclause 16(4), which is deleting lines 5 to 9 on page 11.

(Amendment agreed to: yeas 6; nays 5)

We will now go back to clause 16, as amended. Are there any comments on clause 16?

Mr. Woodworth.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Again, I want to commend Monsieur Bigras, because I think he is on the right track with his concerns regarding this bill.

I think the discussion we had was quite enlightening. Although I don't always agree with everything Ms. Duncan says, I do accept that she, by reason of her background and experience, has some familiarity with what the courts do in relation to statutes like this. And I have no reason to doubt her when she says that the Supreme Court of Canada and other courts have interpreted such provisions exactly as if the paragraph that we just deleted existed. And in fact my reason for not supporting the deletion in that amendment was because I think that now it will happen by stealth and by judicial activism rather than being explicit in the act.

I think Monsieur Bigras is correct in his concerns for the people of Quebec on this. I want to give you an example of how this section will impact on provincial rights and the activity of provinces by referring to a proposal by the Ontario Ministry of Transportation to construct an easterly extension of the Highway 407 transportation corridor. Those of you who travel along the section of Highway 401 east of Brock Road through to the Quebec-Ontario boundary will know that this is an essential activity. The federal government is involved, under the Canadian Environmental Assessment Act, and in fact the Canadian Environmental Assessment Agency delegated the preparation of the draft comprehensive study under that act to the Ministry of Transportation of Ontario.

The problem is that clause 16 would allow a resident of Canada or an entity to go to Federal Court to challenge the actions of the federal government in exercising its environmental jurisdiction where there is significant environmental harm. Does anyone think that the extension of a four-lane or six-lane high-speed transportation corridor would not cause significant environmental harm?

The government in fact has an obligation in certain cases to approve projects where they are warranted, particularly if it has a request from a province or a provincial government, even where there may be significant environmental harm. Does anyone here imagine that the damming up of rivers in northern Quebec and the consequent flooding that occurs does not create significant environmental harm?

And if the federal government does not enter into agreements with provinces in order to allow such projects to proceed, they are going to be blocked.

Quebeckers know this now. The Conseil patronal de l'environnement du Québec said the following:This bill calls into question the power of the federal government to give legal authorization for projects or actions likely to have environmental impacts and grants the courts very broad ordering powers. It includes many vague concepts, such as a right to a healthy and ecologically balanced environment, which is not circumscribed, contrary to what is found in Quebec's legislation, for example.

It also states the following concerning the bill:

[...] does not respect certain principles of natural justice, such as the right to be heard for a party likely to be affected by a recourse. [...] it undermines the credibility of all the authorization processes where stakeholders have the opportunity to intervene and be heard, processes that are often long and fastidious. Consequently, it would be the source of great legal uncertainty, because all the federal government's decisions and authorizations in environmental matters, legally adopted or granted, could be contested.

My apologies to the translators.

My point is that the people of Quebec are well aware that this provision will be particularly difficult. It will possibly cause federal-provincial agreements to be set aside. The absence of subclause 16(4), as we've heard, doesn't matter. The courts will not consider that the government may have the power to authorize, where warranted, significant adverse environmental effects.

I want to say, by the way, that this clause is quite complex. Anyone reading it, any lawyer reading it, will see that there are very serious implications in clause 16. Quite frankly, I certainly don't think we can have an intelligent discussion that does them credit in the eight minutes I am allowed, even though all of my colleagues are giving me their time.

I also want to say I'm well aware that I could play the game of moving multiple amendments in order to get all these arguments on the floor, but I'm not going to play that game. I'm going to take the time available to me, and if we cannot have a fulsome discussion because of the closure motion that was passed earlier on this, more the pity for the people of Canada, Quebec, Ontario, and their governments, which will have to put up with this bill if it's passed.

I want to specifically make some points about the public trust doctrine that has been proposed in clause 16. The fact is that there is no significant Canadian case law. Without any case law to draw on, it is difficult to say with any certainty precisely what duties and obligations the public trust doctrine will impose on the Government of Canada. In fact, the courts will be threshing out the words we find in clause 16.

What does it mean for the government to fail to fulfill its duties as trustee of the environment? Paragraph 16(1)(b) is a little clearer: “failing to enforce an environmental law”. Paragraph 16(1)(c) puts us right back into new territory. What does it mean that the Government of Canada has violated the right to a healthy and ecologically balanced environment? It's difficult to say with any certainty precisely what duties and obligations this doctrine will impose on the Government of Canada.

Courts and litigators will determine government priorities. While the government may feel that the protection of species at risk is the most important thing to do, it may be ordered to divert its finite resources to other issues in relation to the environment, such as greenhouse gas emissions, which is very important, contaminants, enforcement of laws against international shippers, or enforcement of laws against projects like the Hydro-Québec projects that may be proposed. The fact is that it will be up to courts to determine where the priorities will be with the finite resources that the government has available, and those decisions will be driven by litigators.