Environment Committee on Feb. 3rd, 2011

[The Chair, Conservative, James Bezan]

Thank you.

Other comments on this amendment?

Ms. Duncan.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Thank you, Mr. Chair.

I would just like to add that Mr. Woodworth is quite correct. The government, in its wisdom, did create an environmental protection action under the Canadian Environmental Protection Act, but that action restricts actions related to violations of the Canadian Environmental Protection Act. The very purpose of this bill is to provide for those remedies and opportunities under all federal laws. And unless it contradicts, the position can stand and it simply applies to violations of other statutes.

As I've stated earlier, I'm open to any amendments or proposals that members of the committee might like to make. Frankly, I think it may well be advisable to add the condition that Mr. Woodworth is suggesting. I'd be open to a friendly amendment to require the same prerequisite that is in CEPA, that the action may only be filed if under clause 14 the plaintiff had filed a request for investigation that was denied. I have no problem with that. I am open to any constructive proposals and amendments to the bill. I think that may well be a very sensible proposal to add if he would be interested.

This opportunity does not allow for personal damages. It's a public interest civil litigation. It has brought in the public interest where environmental harm has been caused by some party. The intention is to allow persons to bring forward requests that those damages be remedied in some way. It has been the common practice in court--there have been quite a few of these kinds of actions brought in Alberta, including prosecutions--where the court orders the defendant to pay moneys to some entity. For example, in the prosecution of CN on the massive spill in Wabamun Lake, which damaged wildlife habitat and wildlife, the court ordered that moneys be given to certain fish and game associations, I think. So the court is very experienced with this.

My understanding is that some divisions of Environment Canada--and certainly that was my experience with the Ontario region of Environment Canada a few years ago--have actually, in advance, identified organizations who would be worthwhile recipients of court orders. I think the courts and prosecutors and so forth are quite familiar with this.

I don't in any way see this as a measure where somebody is intending to profit. It takes a great deal of work to organize and present a winnable case. I don't think anybody who is concerned about the environment sets out to do that simply for a profit. They're doing it because they see some kind of harm caused to the environment and caused due to a violation or clear evidence of a violation if it did proceed. And they would have to prove that in court.

[The Chair, Conservative, James Bezan]

Let's ask the question on amendment NDP-13.

(Amendment negatived: nays 5; yeas 4)

The amendment is defeated.

We shall move to LIB-4, which is on page 27 in your docket.

Mr. Scarpaleggia.

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

This, as I mentioned before, is to replicate subclause 18(1) in this section on civil action.

[The Chair, Conservative, James Bezan]

Any other comments?

Mr. Woodworth.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Thank you, Mr. Chair.

The difficulty we have with this amendment is similar to difficulties we have had throughout this bill, in that it refers to any number of ill-defined terms. In fact, those that do have definitions are not consistent with other Canadian law in all cases. So for example, the definition of precautionary principle, which is referred to in this amendment, is not consistent with the definition of precautionary principle as it has been codified in other statutes such as the Canadian Environmental Protection Act, the Federal Sustainable Development Act, and so on. Those acts are rather consistent with the Rio Declaration that I did refer to some time ago in this proceeding. I remind the committee members of it, in that the precautionary principle in the Rio Declaration and in the Canadian Environmental Protection Act indicates that there must be threats of serious or irreversible damage, and in such case lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.

The statute before us will define precautionary principles differently. Although it refers to threats of serious or irreversible damage, it only talks about postponing action to protect the environment, rather than cost-effective measures to prevent environmental degradation. This is important not simply to ensure uniformity in our law, which I can tell you lawyers are very big on because it creates uncertainty when you use different terms, but this is also important because the absence of that term “cost-effective” puts an entirely different complexion on the precautionary principle, which the amendment seeks to add into clause 23. So we're no longer talking about cost-effective measures necessarily. The addition of this paragraph by this amendment makes section 23 that much more onerous for agencies, which are exposed to threat of lawsuit under section 23. Even if the solution that is being proposed isn't really cost-effective, they may be required to embark upon it under this precautionary principle.

Very quickly, another interesting area is in the (f) section of this amendment, which talks about the “economic and social context of the affected area”. This I believe is new even to this act. I don't think it's been defined, although I stand to be corrected. It would be a nice step in the right direction if we knew what it meant. I'm not sure we can even tell what is meant by “the affected area”. Are we talking about an area of law, or are we talking about an area of environmental expertise, or are we talking about a specific geographic area, or are we talking about a sector of the economy? It's really just not at all clear to me what that means. Of course, when we have ill-defined terms, that's great for environmental lawyers, but it's not so great for developers and job creators who now have to go out and try to guess what's meant by this kind of law and try to plan their activities accordingly. Someone's got to speak for them, and that's what I'm trying to do.

Thank you.

[The Chair, Conservative, James Bezan]

Thank you.

Any other comments?

Ms. Duncan.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

I don't know if the tabler wanted to speak to that. I think it's a good amendment and it puts some conditions on the factors that the Superior Court can consider. It gives some guidance on how the matter is to be considered. It simply brings forward an earlier provision and places it here.

I've heard a number of what I think could be potentially constructive, helpful suggestions from the Conservative members of the committee. But I find it regrettable that they haven't taken it upon themselves to propose amendments. When I'm tabling amendments and so forth, I would really welcome them.

One of the things we have discussed--we talked to the legislative clerk about this, and this issue has come forward continuously from some of the members of the committee--is the definition of precautionary principle. We had a discussion about whether or not, in the context of the amendments we're making, when we come back to the end and revisit other provisions of the bill, it might be possible to amend the definition. That concern could then be remedied.

It appears by the Liberal amendment that they have taken an effort to try to resolve that in their addition of new paragraph 23(4)(f). I'm not particularly troubled by the way it's defined, and I think it could be sensibly interpreted.

[The Chair, Conservative, James Bezan]

Mr. Woodworth.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Thank you, Mr. Chair.

I believe Ms. Duncan misspoke when she said the Conservative members have not proposed any amendments. I believe the record will show that we have proposed amendments, and they have been uniformly rejected by the opposition members opposite.

There are some provisions in this bill that are so bad that no amount of amending could possibly cure them. Certainly clause 23 is one of them.

(Amendment negatived: nays 7; yeas 4)

[The Chair, Conservative, James Bezan]

We are out of time. We'll come back next week on clause 23, unamended.

The meeting is adjourned.