Environment Committee on Feb. 3rd, 2011

[The Chair, Conservative, James Bezan]

Let's call the meeting to order.

Continuing on with clause 19, we have two amendments, NDP-8 and LIB-2. They are identical. Since NDP-8 was in first, I will deal with that one.

(On clause 19--Powers of the Federal Court)

Ms. Duncan, you have the floor.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Thank you, Mr. Chair.

For clarification, although we can't talk about the next amendment, the agreement simply is that I proceed with mine and we can deal with the next one later. I was going to withdraw mine, but I will speak to this proposed amendment.

The proposal is that for Bill C-469, in clause 19, to be amended by deleting lines 22 to 38 on page 12.

Could I speak to that, Mr. Chair?

[The Chair, Conservative, James Bezan]

You may.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

In the process of drafting this bill and working with the drafters, we made the decision that because the bill was for the purposes of the community, we wanted to make it as user-friendly as possible. So originally we had drafted it with all of part 2, all the remedies together. Then we decided that it made more sense to divide them up into separate sections to make them distinct remedies, to make them clearer to anybody who might want to utilize them.

In the course of doing that, a mistake was made and that part that I have tabled to be removed was included and should have been excluded from clause 19. That is essentially why.... A number of the remedies provided in subclause 19(2) are already provided in subclause 19(1).

[The Chair, Conservative, James Bezan]

Okay. Are there any other comments?

(Amendment negatived)

Since those are identical, we'll continue on to clause 19 as a whole.

All those in—

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

We're asking for a moment, please, Chair.

[The Chair, Conservative, James Bezan]

Ms. Duncan.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

I suppose as the tabler of the bill I probably should explain the section.

Mr. Chair, as is the case with all bills providing judicial remedies, normally the right of action is provided and then, for the purpose of clarification, the declaratory relief is provided. In drafting this bill, I reviewed other environmental statutes, including the Canadian Environmental Protection Act. Particularly because this provision, the Canadian Environmental Protection Act, would allow citizens to bring actions against the Government of Canada, it was appropriate that those remedies be relevant to bringing an action against the government. For example, that could include Public Works, the Department of Transportation, or the Department of National Defence.

In my experience as the chief of enforcement and in my experience over 40 years of working in enforcement agencies, the government has taken a complete transition in its opinion. Back as recently as 1989, the Department of Justice was of the belief that no actions could be brought against the crown because it was absurd that if you imposed a penalty, then the penalty simply is imposed and goes back into the government. But a change of opinion moved forward and the Department of Justice then decided it was very appropriate, because in all environmental statutes, pretty well all federal statutes, at the very beginning of that statute is a statement that the crown is bound, and therefore it is possible that actions can be brought against individual government agencies and individual officials in a department, including the ministers of departments.

So it's very important then that the kind of relief be specified and made relevant. In section 19, the type of relief that is specified is...rather than specifying that the crown would have to post a certain amount of money and so forth, I found it more relevant to—for example, if you go to paragraph 19(1)(e) “order the defendant to restore or rehabilitate any part of the environment”, well, in fact those kinds of orders have been issued against airport authorities, against the Department of National Defence, against Public Works when they're building facilities and they have impacted the environment. Similarly, it is more relevant to grant an injunction against some government authority proceeding with a development that hadn't been properly environmentally assessed or didn't have the proper approvals.

One important provision that we've added in, paragraph 19(1)(g), is to order the defendant to prepare a plan for or present proof of compliance with the order. Over time, enforcement agencies, not just in this country but in other countries, including the United States, Mexico, and around the world, in collaborating through the International Network for Environmental Compliance and Enforcement, have found that what's most important is to be putting in a lot of work on enforcement compliance strategies and plans and, where there are violators, requiring them to do specified actions to come into compliance. So a number of those kinds of provisions are included in here to make this a very pragmatic, constructive measure.

I think that's probably all I want to present. I'm happy to take questions.

[The Chair, Conservative, James Bezan]

Thank you.

Mr. Warawa.

[Mark Warawa, Conservative, Langley, BC]

I'm fine.

[The Chair, Conservative, James Bezan]

Okay.

Mr. Scarpaleggia.

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

You mentioned airport authority. This is just a point of information. What is the status of airport authorities? I mean, they're not governmental; they're independent. They have leases with the government. I'm told in fact that they don't even have to do environmental assessments or release those environmental assessments. Does Ms. Duncan know anything about that, which she could add?

[Linda Duncan, NDP, Edmonton Strathcona, AB]

I'm mixing things. Airports actually are heavily regulated by the federal government and are subject to federal laws, the Aeronautics Act and so forth. Just like many other facilities, they can be shipping hazardous goods, and because they've got a lot of fuel and so forth being stored, utilized, and spilled, they're watched very closely.

On the question of whether or not they require environmental impact assessments, that's a really good question. I'm sorry I can't answer off the top of my head. Probably under the law they do, but they could be simply required to do a simple...I forget the first stage.

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

Go on.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Just an initial review rather than a full environmental impact assessment. If they were going to expand it in a major way, and if it was going into a wetland or so forth, there is a strong chance that there would be pressure for a complete environmental impact assessment.

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

Thank you.

[The Chair, Conservative, James Bezan]

Mr. Bigras.

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

Thank you, Mr. Chair.

I would like to come back to the question raised by my NDP colleague. In fact, clause 19 is fairly clear:

19. (1) Notwithstanding remedial provisions in other Acts, if the Federal Court finds that the plaintiff is entitled to judgment in an action under subsection 16(1), the Federal Court may ... (c) order the parties to negotiate a restoration plan in respect of the significant environmental harm resulting from the contravention and to report to the court on the negotiations within a fixed time; ...

There is no set deadline; it's a question of a "set time frame". What could "set time frame" mean? Is it short, medium or long term? Is it two years, three years, 10 years?

[Linda Duncan, NDP, Edmonton Strathcona, AB]

The reason why that would be drafted in that way is because it gives flexibility in the court for all the parties to negotiate what would be a reasonable timeline. It may be a small area that's being restored. It might be a significant restoration. It may be that it has to be done in a phased manner. What that provides for is negotiations within a fixed time. It allows for the court to talk to all parties in the case, as there may be additional interveners.

One thing I would add in there for the provision that you've raised there...the reason why it says “notwithstanding remedial provisions in other acts” is that these are the remedies available under clause 16, and they could relate to another law that provides for additional remedies.

[The Chair, Conservative, James Bezan]

Mr. Woodworth.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Thank you, Mr. Chair.

We're now debating clause 19, correct?

[The Chair, Conservative, James Bezan]

Correct.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Again, it's a rather complex clause, which of course has in paragraph 19(1)(i) different kinds of relief that the court can order, and in subclause 19(2), four different kinds of relief that the court can order.

I should say at the outset that the reason I opposed the deletion of subclause 19(2) is that it is possible—in fact, I think Ms. Duncan just alluded to the fact that government agencies can in fact be required to obtain permits and authorizations to build. If it's Public Works and there are environmental issues involved, they indeed do have to get permits, so potentially, if one were to preserve the rather—I'm looking for a less impolite word—unusual terms of this act, there would be no reason why it ought not to be imposed against an agency of the federal government as well as other agencies. That is subclause 19(2).

On the other hand, I say unusual because this is, in many respects, without precedent in law, and I'll refer to that again in a moment.

Certainly, when it comes to subclause 19(2), the way those provisions are drafted make them singularly inappropriate to enforce against government agencies. I'm not saying that if we have this kind of an act it shouldn't be enforceable against government agencies. But the notion of a government agency providing financial collateral for the performance of its obligations does seem a little odd, because it doesn't indicate to whom the money ought to be paid or that the government should pay an amount to restore an area. Where, let's say, the Department of Public Works put up a building in violation of some public trust obligation under this act and the court orders it to pay an amount of money to restore that area, there's no indication in subclause 19(2) to whom that would be paid.

Nonetheless--

[The Chair, Conservative, James Bezan]

A point of order, Ms. Murray.

[Joyce Murray, Liberal, Vancouver Quadra, BC]

Are we debating subclause 19(2), which we've already voted to delete?