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.
Conservative
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
This is a good case in point of the difficulty we have with the time allocations and closures that have been debated. These are complicated issues. I have been talking quickly, and perhaps too quickly, to get my point across, so I really should repeat this for my friend across the way, since I didn't quite articulate for her what I'm trying to say.
I voted against deleting subclause 19(2) because there are government agencies that do require permits to put up public buildings or to do other things. Let's say the public works department puts up a building and it clearly involves some harm to the environment, but the environment department of the Government of Canada assesses it and determines that it should be authorized anyway, because sometimes, even if there is harm to the environment, the benefit of a particular undertaking outweighs the harm.
So in this case, if the court sees fit, it can order that kind of an undertaking. It violates the public trust duty that is imposed upon the government under this act, and it can order the government to take remedial action. For example, the court could order the government to pay an amount to restore or rehabilitate that part of the environment that the public works department has harmed.
However, having said that, this subclause 19(2) is sort of necessary in the scheme of this unusual act. In fact, it makes it even more unusual because the provision doesn't say to whom the money should be paid and it in effect sets up one department of the government to be forfeiting money from another department of the government. It creates all sorts of oddities.
That's my point with respect to this subclause, and I regret that it's taken so long, because there are more injurious and harmful clauses here that we really need to discuss in the five minutes or so that I have left, assuming my colleagues give me their one and a half minutes apiece.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
I have to say that the spirit of this act is violated by the fact that we are trying to say we want input on environmental issues and yet members of Parliament, who are the elected officials, are being denied a voice in the discussion of this act. I feel quite strongly that this is an incredibly foolish way to proceed. I can't say it in any polite way.
However, I want to refer to a couple of things about this. One of them is that paragraph 19(1)(f) has no parallel in Canadian law anywhere. I don't say these things without having researched them. The particular language used in paragraph 19(1)(f) is not replicated in the United States, for example. Indeed, the language used in paragraph 19(1)(f) has not been used in any other Canadian legislation in relation to orders that can be made against the crown. The result of that is that anything we say about how the courts are going to interpret paragraph 19(1)(f) is pure speculation. We don't know whether they will order the government to take remedial action when they think the government has not acted.
For example, on the issue of greenhouse gases, day after day we hear people in the environmental activist community say that the government is not acting to curb greenhouse gases. Well, if an individual or a group, even an American group, were to come to Canada and take advantage of this legislation, and if they were able to get the court to agree that the government has not acted on greenhouse gases, then under paragraph 19(1)(f) we would be left to speculate. Can the court order the government to act on greenhouse gases, and if so, in what respect? And what lawsuits can the government be ordered to launch against private individuals under this?
I see I'm out of time and I haven't even scratched the surface.
Conservative
The Chair Conservative James Bezan
Are there any other comments?
Ms. Duncan, you have roughly three minutes left--not even.
NDP
Linda Duncan NDP Edmonton Strathcona, AB
Thank you, Mr. Chair.
I think it's important to point out that, yes, indeed, this law, Mr. Chair, does add new, innovative, leading-edge provisions. It's the entire intent of this bill to introduce and expand on the rights of citizens to participate in environmental decision-making and to hold the government accountable. Those are completely consistent with the platform of the Conservative Party of Canada, to provide for grassroots decision-making and to make sure that government is accountable. So far in law we don't have a lot of mechanisms to really ensure a voice for citizens. It's been revealed that in most cases ministers responsible for the environment are meeting mostly with industry and not with citizens.
This is providing forums for people to actually assert those responsibilities.
If you look, for example, in the measure that the member is mentioning, 19(1)(f), “order the defendant to take specified preventative measures”, well, that's logical because the action is to deal with the government's duty as the trustee of the environment to protect the environment in the interests of Canadians and not to violate the right to a healthy, ecologically balanced environment.
When the court interprets this and when the actions are brought, they're going to be considered in the context of other environmental laws and responsibilities and commitments that the Government of Canada has signed on to, obligations in environmental law and commitments that include the precautionary principle. That is precisely why that provision is added in.
Conservative
Conservative
Mark Warawa Conservative Langley, BC
A recorded vote, please.
(Clause 19 agreed to: yeas 6; nays 5)
(On clause 20--Terms of an order)
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Thank you, Mr. Chair.
Clause 20, of course, also provides for a variety of orders that the court can make, including a cleanup order, a restoration order, and an order to pay a fine that directs moneys to environmental protection or monitoring.
The first thing that should be said about this is, of course, that by allowing the court to have such powers, this committee and the Commons, if this bill passes, would in effect be allowing the court to set environmental priorities. Particularly, I'm referring to paragraph (c), which allows the court to direct money into environmental protection or monitoring programs.
The government, of course, has a finite budget within which to work. It's juggling a lot of balls in a variety of areas, including employment insurance, seniors' benefits and pensions, and our armed forces--any number of things--so the amount of money that the government can devote to environmental programs is limited.
Right now the executive function of government, which in a constitutionally accepted way is ordinarily left to the cabinet, allows the cabinet essentially to determine, of that limited envelope of money that's available for environmental spending, how much will be directed, for example, into research on species at risk, or how much will be directed into cleaning up or readiness to clean up oil spills in the Arctic, or how much will be directed into the enforcement of environmental regulations. That executive priority-setting function is now going to be subject to judicial order based on the priorities of litigants who come to court and the priorities of judges who decide their cases. This is an inappropriate use of the executive function in the sense of turning it over to the courts.
The other issue is that of course the government, as I alluded to in earlier comments, does have the power to approve projects right now, where warranted, despite the significant adverse environmental effects. So in this particular case, if the government enters into an agreement with la province de Québec to build a hydroelectric project avec Hydro-Québec, and that hydroelectric project involves the flooding of a certain number of hectares in northern Quebec and perhaps interference with the fish that benefit from that area of the waterway or the wildlife that benefit from the flooded area, the Government of Canada is quite empowered to enter into agreements with the Province of Quebec to permit those works to go ahead.
However, under this act the government will be subject to the possibility that a judge--if a judge feels that such an agreement and such an undertaking is unreasonable, or for any other reason the judge chooses to say there are significant adverse environmental effects, which of course there will be--may order the government to issue a restoration order requiring the Government of Canada to, in effect, restore the waterways and restore the wildlife habitat that may have been significantly adversely affected by a project of Hydro-Québec.
Of course, the government, in pursuance of that, would need to resile from its agreement with the Province of Quebec and would need to take, in effect, court action against the Province of Quebec to compel the Province of Quebec to remedy the significant adverse effects of such a project. This will have a very deleterious effect on federal-provincial relations if and when a court does decide to intervene in what has ordinarily been an executive function, at least up until this point.
Of course, the difficulty is noted by the hydroelectric producers in Canada who appeared before this committee, who, by the way, speak for Hydro-Québec, and in that respect speak for the people of Quebec, if no one else does.
The first time a project of this nature, a hydroelectric project, which will have environmental benefits and will have benefits for the economy of Quebec, is in fact brought to a halt as a result of an order such as this under the act, I hope the people of Quebec remember that their representatives on this committee did not speak up on their behalf. They did not, in effect, take action to prevent this kind of--
Bloc
Bernard Bigras Bloc Rosemont—La Petite-Patrie, QC
I think my colleague's comments go beyond the scope of the clause currently under review. He's also impugning the opposition's motives.
Mr. Chair, I would ask you to call him to order and remind him that he must stick to the clause that we're looking at right now. If he has nothing more to say, he need only end his comments. I would like him to stop impugning the opposition's motives.
Conservative
Mark Warawa Conservative Langley, BC
Mr. Chair, I see that you have a stopwatch to make sure that you're guiding and restricting the time within the eight minutes.
I see from across the table that there are some papers there, but I don't see any stopwatch with Mr. Bigras. He has indicated that you're not keeping time. I would wonder how he has determined that you're not--
Conservative
Mark Warawa Conservative Langley, BC
He did. He said that he was well over the eight minutes. At least, that's what the translation said.
February 3rd, 2011 / 9:15 a.m.
Conservative
The Chair Conservative James Bezan
Mr. Woodworth is at about five minutes, 45 seconds. I stopped the clock for the point of order. As long as we're being relevant, Mr. Woodworth, that is the key to all this, so I do ask that you speak to the clause. I believe that you were, so I ask you to continue.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Mr. Chair, I accept Mr. Bigras' argument. It's true that there has not yet been a vote on the matter.
I will modify my comments to simply say that if the members of the Bloc support this provision, as they supported clause 19, then I hope that if this clause is used to put a stop to an environmental hydro undertaking in Quebec at some future date, the people of Quebec will remember that their representatives at this table did not speak up for their interests in putting an end to this kind of mischief with the government--
Conservative
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
I am having some difficulty speaking over Monsieur Bigras, Mr. Chair. Thank you.
The other interesting point about this is that this act is intended to be an environmental bill of rights. Consequently, it will supersede all other legislation. Indeed, this act is intended to be legislative direction to the government that its fiduciary duties under this act are paramount. And the court is going to follow that direction.
The reason I mention that is that I want to go back so that we understand how clause 20 is going to relate to clause 16. I am mindful of the fact that subclause 16(4) was deleted. But I want to remind people that, as Ms. Duncan explained to us, the Supreme Court of Canada has apparently already implemented provisions similar to subclause 16(4) in some of its decisions. The deletion of that subclause does not mean that the Government of Canada will be able to override the provisions of clause 20 in any other way, save and except with an act that contains what might be described as a notwithstanding clause. In my opinion, at least, the only way the Government of Canada or the Parliament of Canada will be able to override this act, since it's a fundamental bill of rights, will be if the subsequent authorizing legislation says that it's not withstanding the provisions of this act.
Once again, I am out of time, without having hardly scratched the surface.
Conservative
NDP
Linda Duncan NDP Edmonton Strathcona, AB
Mr. Chair, briefly, just to clarify the record, I don't believe that when we discussed subclause 16(4) I said the Government of Canada had overridden that or provided that in other laws. I just said it was provided by judicial precedent.
I understand that some of the members of the committee are trying to rile members of the Bloc and to suggest that perhaps they're not looking after the interests of Quebeckers on the expansion and use of hydroelectric power. I think we can leave that up to the representatives of the Bloc. They have a strong record in the House of speaking up on protection of the environment, and I will rely on that.
I would just like to point out that just because the right is provided, the right of standing is given and certain remedies are provided, does not automatically mean that the court will offer that relief. It doesn't mean automatically that somebody will win the case, and it doesn't automatically mean that somebody will bring an action. We heard plenty of testimony from witnesses that despite the numerous actions available in federal and provincial law for citizens to take the government to court, there has not been a flood of litigation in Canada. These provisions are here as a safeguard and to bring Canada into compliance with most nations of the world, which have actually constitutionally entrenched environmental rights. This is simply a statutory measure.
That's all I wanted to add, sir.
Conservative
The Chair Conservative James Bezan
Thank you.
Seeing no other hands, we'll go right to the question.
Is this a point of order, Mr. Bigras?
