Environment Committee on Feb. 8th, 2011

[Joyce Murray, Liberal, Vancouver Quadra, BC]

But could you please restate your ruling?

[The Chair, Conservative, James Bezan]

My ruling is that the amendment is inadmissible based on page 766, chapter 16, because it's beyond the principle and scope of this bill.

So if you agree with me, say yes. If you disagree with me, you say no. Right?

[The Clerk]

Yes.

Do we start again?

[The Chair, Conservative, James Bezan]

Is everybody clear?

[Some hon. members]

Yes.

[The Chair, Conservative, James Bezan]

So if you support me, you say yes. If you support the challenge, you say no.

I'll ask one more time, and then we'll move on.

(Ruling of the chair sustained: yeas 7; nays 3)

My ruling stands, so we're back to clause 25.

You have the floor, Ms. Duncan. We're back to clause 25. You have roughly five minutes left.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Okay, thank you.

I just wanted to reiterate again the purpose and intent of this provision. Again, it is to clarify the protection of the rights and opportunities for employees to assert their responsibilities in relation to environmental protection, and that would include participating in environmental decision-making; to implement any law, policy, act or regulation; to proceed to apply for an investigation; to seek the enforcement of an act, which could be an investigation, an inspection, issuing a warning, environmental protection measure, initiate a delay in information; and to also provide information and to testify in proceedings.

Regrettably, similar measures have become necessary to include—for example, the Ontario Environmental Bill of Rights includes those provisions—because there have been circumstances where environmental officials have been stifled in the delivery of their responsibilities. This is intended to say clearly that it is their right to exercise their responsibilities under those statutes and their right to seek recourse to the appropriate authorities where they are given an inappropriate reprisal.

[The Chair, Conservative, James Bezan]

Okay.

Mr. Calkins, you have 25 seconds.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Well, if I can just address the one concern Ms. Duncan brought up, which is that she wants to broaden the scope of this whistleblower protection to include all environmental legislation, under the Public Servants Disclosure Protection Act, who is covered by the PSDPA? The Public Servants Disclosure Protection Act “covers all employees in federal departments and agencies, most Crown corporations and the RCMP”. So broadening this to include just the environment department does not give it any greater scope than is already there through the Public Servants Disclosure Protection Act, and it would create confusion and uncertainty if one changed and the other didn't, and we would have a dog's breakfast in dealing with these kinds of complaints going forward.

This is not the right place to do this.

[The Chair, Conservative, James Bezan]

Okay, thank you.

Ms. Duncan.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Yes, Mr. Chair, I'd like to respond to that.

This provision does not expand those statutes to bring under its ambit the Environmental Protection Act or its employees. They already have those opportunities. What it does is provide clarification for the kinds of activities by those specific employees and clearly set out their rights. It doesn't conflict; it provides, in fact, what the member had called for: providing greater legal certainty.

[The Chair, Conservative, James Bezan]

Seeing no other comments, we shall go to the vote.

(Clause 25 agreed to: yeas 6; nays 5)

(On clause 26--Examination by the Auditor General )

On clause 26, we have amendment NDP-15.

Ms. Duncan, can you move it onto the floor, please?

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Yes, Mr. Chair.

I would like to move an amendment to the effect that Bill C-469, in clause 26, be amended (a) by replacing line 18 on page 16 with the following:

The Commissioner shall, in accordance

(b) by replacing, in the English version, line 29 on page 16 with the following:

and the Commissioner shall report any such

The purpose, Mr. Chair, of this provision is to specify that it would be the Commissioner of the Environment and Sustainable Development, not the Auditor General. That would make it more consistent with the Auditor General Act, in which there are consistent provisions provided for the role of the Commissioner of the Environment and Sustainable Development. It is in response to an issue raised in the House previously by Conservative members of the House.

[The Chair, Conservative, James Bezan]

Are there any comments?

Go ahead, Mr. Warawa.

[Mark Warawa, Conservative, Langley, BC]

Thank you, Chair.

I won't spend long on the amendment. Thinking of past comments made by my colleagues across the way and a history of supporting separating the Office of the Commissioner of the Environment and Sustainable Development from the Office of the Auditor General, to now see an amendment from the NDP is not particularly surprising.

When a ruling was made in the House regarding the Office of the Auditor General and whether this would increase the duties of the Auditor General's office and require a royal recommendation, the decision was made based on the roles and responsibilities of the Office of the Auditor General. This amendment changes everything in the bill that says “Auditor General” to “Commissioner”. And I believe it has, in that direction, increased the roles and responsibilities. It expands the scope of the commissioner's office. The commissioner's office, not the Auditor General's office, would be required to review every regulation and every bill adopted by the government.

Would that expanded scope of duties for the commissioner's office increase the cost of operating the commissioner's office? The answer is a clear yes. Would that require a royal recommendation? Very possibly it would. That's an interesting question for this committee. Is passing this going to trigger a royal recommendation for Bill C-469? It could.

We'll be voting against this amendment.

It's also interesting that this is an NDP amendment. We've seen a plethora of amendments to an NDP bill. I don't remember, around this table, seeing as many amendments made by the author or co-author of a bill as we've seen with Bill C-469. There has been amendment after amendment, even challenging the chair and limiting the amount of debate that can be carried on around this table. But that is what we're dealing with.

I don't believe this is in the interest of the Office of the Commissioner of the Environment and Sustainable Development. We need to respect that, and we need to respect the Office of the Auditor General.

What is the outcome of this expanded scope? Is it necessary? Is it appropriate? The commissioner said that what's being proposed is not appropriate. We heard that in his testimony. The commissioner is recommending against this. It was also brought to our attention that this is already being done. A review of all regulations and bills developed by the government have to be, right now, reviewed by the Department of Justice. Which is the appropriate body? Well, it is the Department of Justice.

Should the commissioner's office be tasked with this new duty, at increased cost and duplication? This has been the theme we've seen throughout Bill C-469: redundancy, duplication, increased cost, and increased red tape. One would question why we would do that. It doesn't make sense. Duplication creates uncertainty, conflict, and cost. It's not in the interest of Canada, but it would be in the interest of special interest groups. So we'll be voting against this.

[The Chair, Conservative, James Bezan]

Are there any comments? I see none.

(Amendment agreed to: yeas 6; nays 5)

[The Chair, Conservative, James Bezan]

We're back to the main motion, clause 26 as amended.

Are there any comments?

[Mark Warawa, Conservative, Langley, BC]

Just to review, clause 26 as amended expands the scope of the Commissioner of the Environment and Sustainable Development. Those duties impose a mandatory obligation on the commissioner to review every regulation and every bill developed by the government.

Currently, the Auditor General has discretion in deciding which issues related to the environment and sustainable development should be brought to the attention of the House. That discretion will be removed. Another common theme we've seen with Bill C-469 is removal of the discretion of the courts. So this discretion is now removed from the Office of the Auditor General.

Currently, lawyers with the Department of Justice examine new legislation regulations to determine their consistency with existing legislation. If this bill were to come into force, the consistency of new legislation regulations with the Environmental Bill of Rights would become part of that examination. Clause 26 would expand the scope of the commissioner's duties and assign a job to the commissioner that is already done by the Department of Justice. Therefore there would be increased redundancy.

It's disappointing to see a continued pattern that is not in the interest of the environment or Canadians, but is in the interest of special interest groups. Our government agrees that it's an important responsibility to protect the environment for the current and future generations. We also believe we have an obligation to account for social, economic, and other priorities, and the principle of sustainable development.

This has brought to the committee's attention that the NDP is the only party that has voted against the Federal Sustainable Development Act. In the House recently, they were the ones that voted against it. We now have Bill C-469 that actually changes the definition of sustainable development. All legislation was to be viewed through the prism of sustainable development. There was unanimous support from this committee and from the House as recently as a couple of years ago. That appears to be changing under Bill C-469.

We will be voting against clause 26.

[The Chair, Conservative, James Bezan]

Ms. Duncan.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Thank you, Mr. Chair.

I hold a different opinion, obviously, since I tabled the bill in this provision. In fact, we've had the ruling of the House that the provision should survive.

The Commissioner of the Environment and Sustainable Development, under the Auditor General Act, subsection 23(2), is already authorized on behalf of the Auditor General to report annually to the House of Commons concerning anything the commissioner considers should be brought to the attention of the House in relation to environmental and other aspects of sustainable development. So it's already consistent within the terms of the Auditor General Act for the role of the commissioner. Under subsection 23(2), the Auditor General Act actually specifies the exercise of the authority of the Governor in Council. The authority of the Governor in Council includes the making of regulations.

So I submit there is nothing in clause 26 of this bill that is contradictory to the scope of the responsibilities already assigned to the commissioner. It simply makes consistent for this bill that the commissioner will also review legislation to make sure that there is adherence to this bill.

One has to go back to the purpose and intent of the bill, which is to safeguard the right of present and future generations of Canadians, confirm the Government of Canada's public trust duty, and ensure all Canadians have access to information, justice, and so forth.

It's simply assigning, consistent with the function already assigned to the commissioner, to ensure what the Government of Canada stands up in the House every day talking about--the balancing of economic development and environmental protection. This is simply one more mechanism whereby we can ensure that legislation and regulations coming forward respect the principles of the protection of the public trust for Canadians.

[The Chair, Conservative, James Bezan]

Mr. Sopuck.

[Robert Sopuck, Conservative, Dauphin—Swan River—Marquette, MB]

On that last point, we could have a philosophical discussion.

[The Chair, Conservative, James Bezan]

Did you have a point of order, Mr. Warawa?

[Mark Warawa, Conservative, Langley, BC]

I did. My apologies for interrupting.

I have a question on procedure, and this may be a question for the legislative clerk. We have now an amended clause 26, removing the words “Auditor General” and inserting “Commissioner”.

The House ruled that it did not require a royal recommendation because the Auditor General's office had the discretion. Now, with those amendments, it's now with the office of the commissioner, no longer the Auditor General. Could that trigger a royal recommendation? That's a question to you and the clerk.

Procedurally, once the deputy speaker has ruled on this, you can't bring it back in the House. But could that question come from this committee with the changes? This bill should, I hope, die in this committee, but if it's carried forward, could this committee request a review of the royal recommendation question?

[The Chair, Conservative, James Bezan]

The environment commissioner works in the Office of the Auditor General, so it shouldn't change the royal recommendation that we've already received. As to whether or not the amended version of a bill can be requested for another royal recommendation, I think that would be up to the parties rather than the committee.

Let me read this from June 15. This is the ruling by Speaker Milliken on Bill C-469:

As the member for Edmonton—Strathcona pointed out, the Office of the Auditor General includes the position of Commissioner of the Environment, who reports to Parliament through the Auditor General. The Commissioner is given a broad mandate with respect to the content of that office’s reports, as set out in paragraph 23(2) of the Act, which reads, in part: “The Commissioner shall, on behalf of the Auditor General, report annually to the House of Commons concerning anything that the Commissioner considers should be brought to the attention of the House in relation to environmental and other aspects of sustainable development....”

Then it goes on:

The provisions of Bill C-469 concerning the Auditor General are limited to the examination of federal bills and regulations. Here again, it does not appear that the bill broadens the mandate of the commissioner, nor does it require the commissioner to undertake any work not already within his purview. In conclusion, the Chair is unable to find any authorization for a new expenditure of public funds in Bill C-469, nor does the bill appear to assign any function to the Office of the Auditor General that goes beyond the existing mandate of that office. I therefore rule that Bill C-469 does not infringe on the financial initiative of the Crown and so does not require a royal recommendation.

So I think that would stand, since the environment commissioner works out of the AG's office.