Evidence of meeting #45 for Environment and Sustainable Development in the 40th Parliament, 3rd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was amendment.
A recording is available from Parliament.
NDP
Linda Duncan NDP Edmonton Strathcona, AB
Mr. Chairman, I'm trying to remember what we did in clause 16. Did we take that out or leave it in? We took it out. It's obviously there because it provides clarification, but I'll leave that to the wisdom of the members of the committee.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Thank you, Mr. Chair.
The reason I raised this point is that we did have a brief from an organization known as Ecojustice, which I believe presented itself as a group with the same sort of knowledge of environmental law that I was hopefully attributing to Ms. Duncan. In their brief, they included an appendix A, and the statement that was made in that appendix A is as follows, and I will quote it:
The principle that regulatory authorizations such as permits and licenses do not create blanket immunity from prosecution under the regulatory statute is a fairly well established principle in a variety of contexts.
That seems to me to be the principle that was set out at least in paragraph 23.3(a). So it concerns me that even if we were to delete that paragraph 23.3(a), we would still be left in a position whereby if this clause 23 were enacted, the courts would proceed on the same principle.
I'll repeat that from Ecojustice's brief:
The principle that regulatory authorizations such as permits and licenses do not create blanket immunity from prosecution under the regulatory statute is a fairly well established principle in a variety of contexts.
The Ecojustice people were kind enough to present four cases in support of that proposition, and the one that seemed clearest to me was a case of R. v. BHP Diamonds Inc. in which they state:
...the project which caused the sedimentation was executed in accordance with the plans and standards established by a variety of regulatory bodies. The construction of the channel was included in the s. 35(2) authorization by DFO.
...the court concluded that although the sedimentation caused by the project was included in the s. 35(2) authorization, such authorization does not provide “blanket immunity from prosecution for any and all infractions under the Fisheries Act.”
The difference is that in that litigation, the Government of Canada was going after the private individuals, and now, under clause 23, we've provided a right for any number of people to go after other private individuals. So my concern is that the courts will simply extend that principle, and that it is somewhat misleading for us to try to delete it when we know we can laugh behind our backs that the courts are going to do it anyway.
These are complicated issues, and I don't pretend that I necessarily have it right. I'm not an environmental expert, but in light of Ms. Duncan's comments to a similar effect regarding subclause 16(4), that the courts would probably import the same provision anyway, that's the concern I have with respect to subclause 23(3), even if it's deleted.
NDP
Linda Duncan NDP Edmonton Strathcona, AB
Mr. Chair, I would just again add the comment--indeed Mr. Woodworth put forward very well the discussion we had previously on a similar provision--that it's quite common that the law be adjusted based on a series of judicial rulings, and this simply carries forward previous judicial rulings. Of course, future decisions of the court may well follow the precedent. This simply provides certainty. It's up to the members to decide.
Conservative
The Chair Conservative James Bezan
Okay. Let's vote on Liberal amendment number three.
(Amendment negatived)
Conservative
NDP
Linda Duncan NDP Edmonton Strathcona, AB
Mr. Chair, I'm happy to stand down my amendment if the Liberals wish to proceed with theirs. Theirs is identical to mine.
Conservative
The Chair Conservative James Bezan
They're not identical. If you go to page 27, there's the Liberal amendment, and--
NDP
Conservative
The Chair Conservative James Bezan
Maybe the intent is the same, but they're definitely not identical.
Conservative
Conservative
The Chair Conservative James Bezan
I'll give you a chance for a quick sidebar....
Do you guys wish to suspend for five minutes so that you can have a quick discussion?
Conservative
The Chair Conservative James Bezan
We're back in, and we think we have this all clarified.
We are at amendment NDP-13.
Ms. Duncan.
NDP
Linda Duncan NDP Edmonton Strathcona, AB
Mr. Chair, I wish to table a motion to the effect that Bill C-469 in clause 23 be amended by adding, after line 31 on page 14, the following:
(4) If a superior court finds that the plaintiff is entitled to judgment in an action under subsection (1), the court may
And then it provides, in new paragraphs 23(4)(a) to (d), a number of remedies.
This is merely moving forward remedies that were struck under clause 19, to place them in the appropriate place to make the bill more user-friendly.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Thank you, Mr. Chair.
What we really need to do is look at the effect of new subclause 23(4), which is being proposed, in relation to the whole of clause 23. We are adding new possible remedies that the court can impose on a province like Quebec, or a private individual or organization like Hydro-Québec, in order to enforce a judgment that may have been rendered under clause 23.
One of the many problems with clause 23 is that it is designed specifically to bypass the provisions that are more commonly found that allow individuals to work out their differences and allow the Government of Canada to investigate what may be a way to resolve issues. So these somewhat onerous provisions that Ms. Duncan's amendment proposes to include, such as suspending an authorization, requiring financial collateral, requiring a defendant to pay an amount for restoration or rehabilitation, or to protect the environment generally--which are really like fines--will now be available to the court without the kind of government investigation that, for example, is found in the current right to sue set out in the Canadian Environmental Protection Act.
The Canadian Environmental Protection Act already contains a similar action, and indeed it's called an environmental protection action. I referred to it earlier in these proceedings because of the confusion we have now created in this bill by naming actions against the government environmental protection actions. But section 22 of the Canadian Environmental Protection Act of 1999 provides that there is a similar action with respect to offences under that act that cause significant environmental harm. But it's tailored in a way that will minimize undue pressure on judicial resources and constrain the potential liability of potential offenders.
So first of all, in the case of that provision, in order to proceed with the action, one must first have asked the Minister of the Environment to conduct an investigation of the alleged offence. The minister must have either responded unreasonably to the request or failed to conduct an investigation within a reasonable time.
For example, in the case of an agreement
…between the Government of Canada and the Government of Quebec on a Hydro-Québec project…
this provision would allow the Government of Canada to approach Hydro-Québec and the Government of Quebec in order to investigate the complaint and try to remedy it, without exposing Quebeckers to the kinds of penalties and provisions that are in the amendment Ms. Duncan is seeking to propose.
The other thing that's interesting is that under section 22 of the Canadian Environmental Protection Act of 1999, damages are expressly and specifically excluded as a potential remedy. In other words, when the wise heads who crafted the Canadian Environmental Protection Act sat down to draft it, they specifically said no to the kind of provision Ms. Duncan's amendment proposes. As I understand it, the reasoning was that it ensures that private actors pursuing such actions don't benefit personally from general damages to the environment.
Now the reason I'm mentioning this is that the provision that Ms. Duncan is proposing in its ability for the court to “order the defendant to pay an amount to be used for the enhancement or protection of the environment generally” doesn't say to whom the amount shall be paid. Although it's speculation, I think it's pretty sound speculation to presume that the court could order it to be paid by the very plaintiff in the clause 23 civil action if, for example, it was an organization that concerned itself with the enhancement or protection of the environment. This would add another incentive to such plaintiffs to go to court in the hope that they might convince a judge to pay them money along these lines.
I should point out as well that paragraph (b) of this amendment orders the defendant to provide financial collateral for the performance of a specified action, but it doesn't say to whom. So I think we can say that it would be open to the court to require that collateral be paid into court or be paid to the federal government, or indeed to be paid to the plaintiff to hold in trust.
I think the drafters of the Canadian Environmental Protection Act were doing the right thing. They were taking a balanced approach, they were looking after the interests not just of environmental activists but also the interests of agencies like Hydro-Québec, the Government of Quebec and other provincial governments, and other Canadians across the country who may wish to engage in developments that involve altering the environment, and certainly could involve damaging habitat, for example, or altering waterways that fish are in, but it's for good and proper purposes such as the generation of hydroelectricity.
If I have a moment more, perhaps I could go back.... I do not?
February 3rd, 2011 / 10:30 a.m.
Conservative