Environment Committee on Feb. 3rd, 2011

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

No. But I'd simply like to make a small comment, in response to Mr. Woodworth. I have read and reread the memo that we were sent by the Conseil patronal en environnement du Québec about Bill C-469. In fact, some clauses of the bill, including clauses 16, 22 and 23, bother that organization a little, but I see nothing in the brief that the organization presented to us that indicates a problem with the clause that we are currently looking at.

When Mr. Woodworth claims that this clause is so important that Quebeckers would tear their hair out, I don't know what he's referring to. I'm also trying to find mention of clause 20 in the speaking notes of the witness from the Canadian Hydropower Association. Of course, they mention clauses 16, 19 and 23, but there's nothing in clause 20.

We would support the clause that was presented to us.

[The Chair, Conservative, James Bezan]

Thanks.

On a point of order, Mr. Woodworth.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

I took Mr. Bigras to have been asking a question of me, and I don't know whether the allocation rule that we made earlier would prevent me from answering the question--

[The Chair, Conservative, James Bezan]

He has to raise his point of order first. Let him finish his point of order and I'll come back to your point of order.

Mr. Woodworth, make sure it's a point of order.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

The point of order is to inquire. I don't know whether the time limit rule that the opposition passed in this study prevents me from answering a question that seemed to be asked of me directly in the course of debate--

[The Chair, Conservative, James Bezan]

I will say that your time has been used, your eight minutes. You can speak on points of order, but you cannot respond in debate. Your eight minutes are used. Your debate is done.

Mr. Bigras, on a point of order?

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

No.

[The Chair, Conservative, James Bezan]

You're done.

Mr. Warawa, on this point of order.

[Mark Warawa, Conservative, Langley, BC]

That's fine, Chair. I was going to point out that you had already ruled, so you couldn't then provide Mr. Bigras--

[The Chair, Conservative, James Bezan]

I thought maybe he was raising a different point of order.

Okay. Let's go to the question, and we'll record it.

(Clause 20 agreed to: yeas 6; nays 5)

(On clause 21—Costs)

Are there comments?

Mr. Warawa.

[Mark Warawa, Conservative, Langley, BC]

Mr. Chair, clause 21 provides that a plaintiff bringing an environmental protection action against the government may only be ordered to pay costs “if the action is found to be frivolous, vexatious or harassing” and that it may be entitled to counsel fees, legal fees, regardless of whether they are used, whether that person or organization has used counsel.

Chair, I think that's of great concern, or should be. The provision would lead to plaintiffs being awarded fees for counsel even if counsel was not used. That would act as an incentive to bring a lawsuit against the government, creating a more adversarial relationship between government and the public.

We've heard clearly from the different witnesses that this is supported not by Canadians generally but by special interest groups. Of course, members of the coalition have regularly been seeing and consulting special interest groups. Is this good for Canada? No. It removes the Federal Court's existing discretion, which is shocking, toward costs against a plaintiff only if the action is frivolous. They have that discretion now. That will be removed.

Chair, what it would actually do is create an incentive. In what way? Well, the person or entity that brings this action against the government would be able to profit. If they do not have counsel and they take the action themselves, they will profit from this action. Again, we heard that the likely groups are special interest groups that would be taking this action. So they can actually profit from this.

So here we have coalition members supporting new legislation that would supersede every other piece of legislation that was developed through consultation in the interests of Canadians, in the interests of a sustainable development--that principle--that we just passed. Under this bill, which is a special interest group bill, they could take American-style litigation against the government and profit for it. We had a vote in the House--I think it was a couple of months ago--on sustainable development. At the same time as the NDP introduced this bill--at the same time--they voted against sustainable development. So we see a trend--

[The Chair, Conservative, James Bezan]

A point of order.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

On a point of order, Mr. Chair, I grow tired of this false accusation in both the House and in this committee. At no time have I or any of the members of my party voted in the House against sustainable development. There was simply a bill requiring that a report of the commissioner be tabled in the Senate, and in no way did that provision provide that the government was for or against sustainable development.

[The Chair, Conservative, James Bezan]

I believe that is debate--

[Mark Warawa, Conservative, Langley, BC]

Speaking to the point of order?

[The Chair, Conservative, James Bezan]

It's a debate of the facts; it has nothing to do with order. What Ms. Duncan was raising was debate, not a point of order, so it's a matter of debate of the facts.

The one thing I will ask is that you stay relevant to the clause we're debating.

[Mark Warawa, Conservative, Langley, BC]

I think I do that, Chair.

Am I able to speak to that point of order?

[The Chair, Conservative, James Bezan]

No. I've ruled. So if you can, continue with your discussion on clause 21, please.

[Mark Warawa, Conservative, Langley, BC]

Before I begin my time again, Chair, would I be able to speak to her comments and actually present and table a record that actually indicates...? Sustainable development is a very important part of this bill and this clause. It should be, and it's not, and I think that's a relevant point.

In fact, I have here, from Hansard, a record of all those who voted nay, and it was every NDP member. So, Chair, in fact it is here. Would you like to have this tabled?

[The Chair, Conservative, James Bezan]

We don't table documents at committee; we table documents in the chambers. So it has absolutely nothing to do with what we're talking about right now in clause 21. Essentially you're just discussing an item, a fact, on which you have an opinion different from Ms. Duncan's.

So I ask you to continue on to clause 21. You have just over four minutes left.

[Mark Warawa, Conservative, Langley, BC]

Thank you, Chair.

What should be in this clause is a balance, including sustainable development. It's missing. It's missing in every clause of Bill C-469. On the matter of sustainable development, the House voted on December 1, two months ago. The NDP--every member of the NDP--voted against sustainable development. I have it right here in Hansard. I'm not questioning motives, but I'm sharing facts that the NDP did not support sustainable development.

They do support, though, changes to Canadian legislation that would permit special interest groups to profit, and this is actually providing an incentive for them to take action. It removes the Federal Court's existing discretion.

What is the result of this? Well, it's anti-sustainable development. As we've heard, it creates American-style litigation. It empowers special interest groups and activists trying to intimidate. We heard from the witnesses that the reason they supported Bill C-469 was that they wanted to have a stick to bully and intimidate.

It will be bad for the environment. Why? Because it creates duplication. It creates red tape. You have this government trying to eliminate red tape and the coalition trying to increase red tape and duplication. It will increase administrative and legal costs for government and industry. It will threaten existing first nations agreements.

It'll threaten existing facilities like Hydro-Québec, and that's why Hydro-Québec is against Bill C-469. That's why Mr. Woodworth brought this up with members of the Bloc. I too am puzzled about why Bloc members would be supporting something that would be bad for Quebec. They're supposed to be standing up for Quebec, and it seems that this government is the only one standing up for Quebec, for all Canadian provinces, for all territories, for all Canadians. It'll threaten B.C. Hydro, and B.C. is my province. I'm very concerned about this.

We heard from the witnesses that it will kill jobs. How will that happen? It will create uncertainty in existing permits, uncertainty in existing legislation, and the economy is the number one thing for Canadians right now. This government is committed to improving the economy and creating jobs, and Bill C-469 will kill jobs.

Clause 21 is one of the important clauses within the bill. It creates an incentive for certain residents or entities within Canada to seek profit. They will be able to receive costs for counsel even if they don't have counsel. That's why I'm hearing clearly from Canadians that this is a bad bill. Clauses 19 and 20 carried, even though members of the coalition wanted to amend them, acknowledging that they were bad. Yet they supported them even without having them amended.

This bill moves forward. Our time is limited, which is also a shame in that we can't speak adequately.

Chair, I think I've made my points. Clause 21 is bad and we will not support it.

[The Chair, Conservative, James Bezan]

Thank you.

Ms. Duncan.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Thank you, Mr. Chair.

I have to say, Mr. Chair, that I am finding these presentations a little incredulous. The process of reviewing bills by committee provides committee members who feel that certain provisions of the bill should be added or subtracted and that the bill could be improved every opportunity in constructive debate to table amendments. We've heard in provision after provision, including the one we're discussing right now, that the representatives of the Government of Canada, the Conservative Party, are extremely concerned that there isn't reference to sustainable development in every provision of this bill. I will note that they did not offer that when they brought forward their various bills.

I have been completely open to any suggestions for amendments to this bill, and if they are sincere in wanting to have those provisions included, I would encourage them to table those so we can debate them, and I think they would find a lot of support. I might add that we need to review back, in looking at clause 21, the very purpose of the bill and the intent of this part of the bill, and particularly clause 16, that these remedies are attributed to.

This Government of Canada has said that it believes in a balance between economic development and environmental protection, and yet there has been a record, in decisions by this government, in both its expenditures and in its decisions, to exclude the public from decision-making and to exclude consideration of the environment. Evidence of that is in the record of the mounting number of cases being filed against the government by either first nations or by environmental organizations, simply for failure to enforce mandatory provisions of statutes such as the Species at Risk Act. The very purpose of this act is to ensure that when the federal government is making decisions to balance the various interests to ensure that we have sustainable development, environmental protection is thoroughly considered.

A case brought under this part of the act would not succeed unless the plaintiff proved that the government had failed to consider protection of the environment and the responsibility of the government to consider that in its decision-making. I find it frankly a very specious argument to be arguing continuously that sustainable development is not here. Sustainable development is going to be delivered in this country by a whole coterie of projects, of activities, by industry, by citizens, by the government, and by having provisions to ensure and require that both economic development and environment are considered together and integrated.

As to the question of whether or not this provision allows for some kind of unfair profiteering, I find it frankly absurd. The rules of court will determine what kinds of costs are awarded, and this in no way derogates from that.

On many occasions, small organizations can't afford to hire legal counsel but are extremely brave and come forward and intervene in a lot of proceedings, and this simply provides that their work done, they can claim the costs of providing that. That could include transportation. That could include a hotel when they bring the case for it. It's hardly profiteering.

Thank you, Mr. Chair.

[The Chair, Conservative, James Bezan]

Thank you. Seeing no other hands, I shall call the question.

(Clause 21 agreed to: yeas 6; nays 5)

(On clause 22--Right to review a government decision)

We're moving down to the heading, a new one, and as I mentioned at the last meeting, on page 733 in O'Brien and Bosc, chapter 16 on the legislative process, it says, “In past practice, such headings have never been considered to be part of the bill and have not therefore been subject to amendment.” However, footnote 125 to the preceding 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.”

That has happened twice now in this committee.

Ms. Duncan.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Thank you, Mr. Chair.

Mr. Chair, I wish to table before the committee the following amendment: that Bill C-469 be amended by adding before line 24 on page 13 the following: “JUDICIAL REVIEW”.

I'd like to speak to that proposed amendment.

Consistent with the introduction of the previous header, this header, “JUDICIAL REVIEW”, is recommended to be added at this point because this is the part of the bill that deals with the legal action, which is judicial review, and it is intended to be added in to make the bill more user-friendly.