Environment Committee on Feb. 1st, 2011

[Scott Armstrong, Conservative, Cumberland—Colchester—Musquodoboit Valley, NS]

I acknowledge Ms. Duncan's statement, but we're going to have to disagree on several aspects of it.

Would it be possible for a single person or entity to make several challenges for an investigation under different acts--for example, the Species at Risk Act, and the Environmental Bill of Rights? Could we see individuals or entities making several redundant challenges over and over again in an attempt to slow down the process?

The redundancy of this bill is something we see in several clauses throughout the bill itself, and I am concerned whether there is protection against frivolous or mischief-making provisions in it. I'm concerned that a single person could constantly try to slow down a process by making application after application under different provisions in different acts.

[The Chair, Conservative, James Bezan]

Any comments?

[An hon. member]

A recorded vote.

[The Chair, Conservative, James Bezan]

(Clause 14 agreed to: yeas 6; nays 5)

(On clause 15--Acknowledgement)

Moving on to clause 15, are there comments? There are no amendments.

Mr. Warawa.

[Mark Warawa, Conservative, Langley, BC]

Thank you, Chair.

Clause 15 sets out the timelines applicable to the request for investigation under clause 14 that just carried. Regarding the timelines, this clause would require the minister to acknowledge receipt from the commissioner within 20 days of receipt and give notice of a decision not to conduct an investigation within 60 days of receipt. Otherwise, the minister must report on progress every 90 days.

As we've heard repeatedly, the government is supportive of providing opportunities for residents of Canada to seek investigations of environmental offences. Such opportunities are already provided under the Auditor General Act, the Canadian Environmental Protection Act, known as CEPA 99, and the Species at Risk Act. The provisions allowing the public to request investigations would create significant overlap of those opportunities.

Over the last number of weeks, as we approach the budget, the spring budget, all Conservatives have been asking Canadians—jobs is number one, the economy is number one—“Do you have any suggestions how we can do better?” One of the common messages that I've heard is eliminate waste, that there is only one taxpayer, that you can't keep going back to the taxpayer for more taxes—more, more, more. They want us to eliminate waste.

Sadly, what is being proposed in Bill C-469 is increased waste, not removing red tape. Bill C-469 creates red tape; it creates duplication of what already exists. To jump to the front of a parade that's already in progress and say “Look at all the people following me, look at all the support I got” is disingenuous. We need to find out where the problems are and eliminate red tape.

We've heard repeatedly from witnesses that Bill C-469 is creating duplication. Duplication creates waste. If you have one entity or one resident within Canada who puts in a request through what already exists, and then under Bill C-469 could initiate the same thing, you could have in the same office the same exercise repeated numerous times. Does that create efficiency? No. That creates waste.

We also heard that Bill C-469 will kill investor confidence. It creates uncertainty. Does it increase the protection of the environment? No. When you have limited resources, again, only one taxpayer, limited resources of tax revenue, and you try to do the same thing again, where do those dollars come from to actually duplicate the same thing over again? Well, those dollars have to come from somewhere, so it would have to come from what is already been allocated to that ministry, to that department, and to that commissioner's office, making that office and that department even less effective and efficient.

We've also heard that there will be an increase in litigation. Where do those funds come from? Again, they come from those departments. We've heard that Hydro-Québec and B.C. Hydro increased litigation, to their costs. Those costs for increased litigation, where are they going to come from to protect themselves? Well, it will have to come from Canadians, the taxpayers.

Bill C-469 creates uncertainty, duplication, and waste, and that's not what Canadians want.

We've also heard that it's very directly related to a possible court-directed tax, a carbon tax, which could be attached to this.

So what we have in clause 15 is a timetable, or timelines of what there would be under Bill C-469 for requests for investigations. For example, the requirement for the minister to give notice of a decision not to conduct an investigation under Bill C-469 is 60 days from the minister receiving it. Under the Species at Risk Act, the minister is not obligated to a timeline imposed. Under the Auditor General Act, it's 120 days. So there are inconsistencies there too, duplication and inconsistencies.

For the minister to acknowledge receipt of a request for investigation under Bill C-469, it's 120 days from receiving it from the commissioner. What already exists under the Auditor General Act is 15 days from the minister receiving it. Again, it's creating confusion. Which request will take priority? When you have a department doing the same thing twice, which takes priority? Or should it be the same person and we do a cut-and-paste? Well, why would we do a cut-and-paste?

So I guess this is further evidence of the duplication and the lack of need for Bill C-469. If this already exists, why would you introduce Bill C-469?

Thank you.

[The Chair, Conservative, James Bezan]

Mr. Sopuck, there's a minute and a half left on the Conservative side.

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

Thank you.

I'd like to expand on my colleague's excellent points about waste and duplication and talk about the effect of onerous and excessive environmental processes that quite frankly have little to do with the environment but a lot to with stopping projects. We're talking about people's livelihoods and communities that are affected by onerous environmental processes that actually, as I said, have nothing to do with the environment.

I would reference the Mackenzie Valley pipeline project. That particular process took 36 years. I happened to be a young biologist back in the seventies, working on the environmental aspects of the Mackenzie Valley pipeline, and I know that area quite well. Because of that 36-year process, with natural gas at an historic low price, chances are that pipeline will never be built in the foreseeable future, and we'll have communities in the Mackenzie Valley left economically destitute for the foreseeable future.

That's the problem with environmental processes that go on far too long and that have nothing to do with the environment. And that's why this is a very dangerous and poorly thought-out bill.

[The Chair, Conservative, James Bezan]

Thank you.

Ms. Duncan.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Thank you, Mr. Chair.

Just for the record, I'd like to clarify that I think that Mr. Warawa is comparing apples and oranges. Clause 14 of Bill C-469 is not comparable to the Auditor General Act, it's comparable to the Canadian Environmental Protection Act. The timelines set forth in clause 15 of this bill before us now are identical to the timelines set forth in CEPA for reviewing and responding to investigations. So they are, in fact, completely consistent. There isn't duplication. In fact the two provisions can stand if they are consistent and don't conflict.

The purpose of the provision in this bill is to provide for consistency of rights and opportunities to Canadians across all environmental statutes. Why should Canadians only have the right to file a request for investigation of the Canadian Environmental Protection Act to do with a toxin and not be able to file an investigation under, for example, the endangered species act, or the Fisheries Act, or any other environmental statute?

The discretion lies 100% with the government. Simply because somebody files information suggesting that a potential alleged violation should be looked into necessitates no specific response. The responses by the Government of Canada are set forth in their enforcement compliance policy with each of their statutes. This in no way interferes with that. This right to file a request for investigation in no way automatically leads to a prosecution. In many cases it may simply lead to a warning. It may lead to reassurance that in fact there is no violation. It may lead to a discussion with provincial authorities saying maybe they'll proceed with the matter; it's more relevant under their legislation. We don't know what the end result will be.

The whole purpose of setting forth these provisions in one bill is to make it a user-friendly opportunity for the public to know what their rights and opportunities are to participate in the environmental protection process.

My concern is that we don't have enforcement officers, inspectors, and investigators in every little community in Canada. We have the vast Arctic. The Auditor General of Canada reported that she was concerned that there wasn't sufficient monitoring going on in the Northwest Territories on compliance with federal laws. So what this provision does is it gives a very clearly prescribed process whereby members of communities can be watchdogs and can pass on the information in an orderly way to the enforcement officers.

[The Chair, Conservative, James Bezan]

Thank you.

Are there any final comments?

[An hon. member]

A recorded vote.

[The Chair, Conservative, James Bezan]

A recorded vote.

(Clause 15 agreed to: yeas 6; nays 5)

(On clause 16--Environmental protection action against the government)

[The Chair, Conservative, James Bezan]

So we'll move on to clause 16 and go to the amendment.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Mr. Chair, do we deal with the headers at the end?

[The Chair, Conservative, James Bezan]

No, we're dealing with it right now.

We go to NDP-6 in your docket.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Okay, good. Thank you.

[The Chair, Conservative, James Bezan]

We are dealing with the title, the heading actually, in the bill.

I just want to refer everyone first, before we move it on to the floor, just so we understand this. In chapter 16 of your O'Brien and Bosc, on page 733, it reads:

To assist the reader, legislative drafters insert headings throughout the text. In past practice, such headings have never been considered to be part of the bill and have not therefore been subject to amendment.

However, I'll go to footnote 125 at the bottom of page 733. It says:

In recent years, however, some authorities on the legislative process have modified their position in this regard in response to jurisprudence, and Committees of the House have occasionally amended headings. See, for example, Sullivan, 4th ed., p. 305; Standing Committee on Environment and Sustainable Development, Minutes of Proceedings, May 14, 2008, Meeting No. 32.

So it has been done in the past, and we are open to consider this.

Ms. Duncan.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Mr. Chair, I wish to table an amendment that Bill C-469be amended by replacing the heading “JUDICIAL REVIEW”, before line 24 on page 10, with the following: “ENVIRONMENTAL PROTECTION ACTION”.

Mr. Chair, if I could speak to that--

[The Chair, Conservative, James Bezan]

Yes.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

-- I believe there was simply an error at the drafting stage, which I did not catch. The intention was to provide user-friendly headers. I can't speak now to later headers, but “JUDICIAL REVIEW” will appear at a different spot. This whole part under part 2, “REMEDIES”, deals with environmental protection actions. Therefore I'm putting forward the recommendation that this govern this clause right up until clause 22, because it is a more appropriate, more accurate descriptor of this part of the bill.

[The Chair, Conservative, James Bezan]

Mr. Woodworth.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Thank you very much, Mr. Chair.

The citation you just read referred to the ability of headers to assist people reading the act. I'm concerned that this proposed amendment will do exactly the opposite and will simply serve to confuse people reading the act.

First of all, although as a lawyer I am well aware of what is meant by lawyers when they say “action”—and I guess the lawyers who read this act will indeed know what an action is in a legal sense—the majority of Canadians don't necessarily equate the word “action” with the lawsuits that this section is governing. In fact, it doesn't lend anything to the interpretation of this section to call these things actions. If anything, I might say with a little irony, the intervention of the court and the increased access to lawsuits may result in a greater degree of inaction on the environmental front.

Apart from that, it is my understanding that the Canadian Environmental Protection Act of 1999 contains provisions that are referred to as an environmental protection action. I think that's the exact wording of this amendment, if I'm not mistaken, although I should get it in front of me—environmental protection action, yes. I'm pretty certain that is the exact phrase or wording that is used in the Canadian Environmental Protection Act of 1999. Yet that wording in the Canadian Environmental Protection Act refers to an action against an alleged offender who has caused significant environmental harm, and it may only be brought after the Minister of the Environment fails to conduct an investigation of the alleged offence and to report within a reasonable time, or gives an unreasonable response to the investigation.

This, by the way, is another one of those duplicative provisions. Those provisions I just referred to in the Canadian Environmental Protection Act are now duplicated in clauses 13 and 14 of this bill. Poor, ordinary Canadians are going to have some difficulty sorting out which act to apply under. By the way, if they're looking to see what the current state of things is, they're going to have some difficulty. They're going to now have to check under two acts. Of course, there will have to be two government ministries: one that is administering the Canadian Environmental Protection Act and one that is administering this act.

We're certainly, by the protection of those earlier provisions, doing a great service to environmental lawyers and environmental groups, because it is going to increase the red tape. I just don't think we're doing a service to ordinary Canadians.

However, be that as it may, I've digressed. What I really mean to say is that the wording that is proposed in this amendment, rather than helping people, is likely to mislead them and confuse them into thinking that we're talking about the kind of environmental protection action that is referred to in the Canadian Environmental Protection Act of 1999.

Indeed, clause 23 is such a thing, but clauses 16 to 19 are quite distinct, because they deal with lawsuits against the government, all of which I say for two reasons. The first is to express the reasons that I will not be supporting this amendment. The second is because I would like to move, if it's permitted under the rules, a subamendment to Ms. Duncan's proposal, so that the word “action” in her proposal is replaced by the word “lawsuits”, which more adequately captures in ordinary language the intention of this provision, clause 16.

[The Chair, Conservative, James Bezan]

I'll accept that subamendment, which would change the word “actions” to “lawsuits”.

We're speaking now to the subamendment by Mr. Woodworth.

Ms. Duncan.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

I do not accept the amendment. The header “Environmental protection action” is 100% consistent with the Canadian Environmental Protection Act. If you look at that act, immediately preceding section 22, the Government of Canada in its wisdom has used the header, “Environmental Protection Action”. So I believe if the Government of Canada has seen fit to use that provision, then I'm abiding by that and being consistent.

I won't speak to the substantive matters that Mr. Woodworth has raised, because I think those belong to the discussion on clause 22.

[The Chair, Conservative, James Bezan]

Okay.

Mr. Woodworth wanted the floor back.