Evidence of meeting #46 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.
9:15 a.m.
NDP
Linda Duncan NDP Edmonton Strathcona, AB
In closing, Mr. Chair, I want to add again that I have referenced a number of times the North American agreement on environmental cooperation under the NAFTA agreement. Article 6 provides that Canada commits that it will provide access to remedies in environmental cases. That is why this provision and a number of the other provisions are added in--to implement in domestic law the commitments made by Canada under that agreement.
Again, this provision is added to deal with the issue of standing. It's simply to allow concerned Canadians to come forward with cases where they have evidence that there has been a contravention of a federal environmental law, or that there is likely to be. Of course, they would have to make that prima facie case to the court before they could proceed, at any rate.
9:15 a.m.
Conservative
9:15 a.m.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Thank you. That's more than adequate.
I want to just continue the tradition I've set of being the only politician at this table to apologize when an apology is warranted.
I want to apologize to the members of the opposition if my earlier remarks suggested that I thought they were colluding in relation to this amendment. In fact I was attempting to suggest exactly the opposite, that even within the same party they weren't talking to each other to find out precisely what they were proposing by way of amendment. If they had been talking to one another, they might have realized that all three of them were proposing the same amendment.
I surely don't mean to suggest that there's anything untoward, or any behind-the-scenes collusion. I mean, there may be, but it's certainly not within my knowledge, so I'm not going to assert that. What I do mean to suggest is that as a group they don't seem to have their act together. They're falling all over each other proposing multiple versions of the same amendment.
That's really all I wanted to say. I apologize if my remarks were construed to refer to collusion.
Thank you.
9:20 a.m.
Liberal
Francis Scarpaleggia Liberal Lac-Saint-Louis, QC
I accept that apology, Chair, but would just point out the contradiction that in Mr. Woodworth's statements he mentioned the coalition, so that implies an assumption of collusion. But let's put the matter to rest and get on with the job.
9:20 a.m.
Conservative
The Chair Conservative James Bezan
Seeing no other hands up, I shall go to the question.
Shall clause 23 carry?
9:20 a.m.
Conservative
The Chair Conservative James Bezan
Oh, it's the amendment, proposed clause 23.1.
(Amendment negatived: yeas 4; nays 5)
Amendments LIB-5 and LIB-5.1 are inadmissible, so we go to LIB-5.2.
Ms. Murray, do you want to move that?
February 8th, 2011 / 9:20 a.m.
Liberal
Joyce Murray Liberal Vancouver Quadra, BC
Mr. Chair, I'll speak to amendment 5.2, which is the proposal that Bill C-469 be amended by adding, after line 31 on page 14, the following new clause 23.1:
NOTICE TO ATTORNEY GENERAL OF CANADA 23.1 Thirty days before seeking recourse pursuant to section 16 or 23, the resident of Canada shall provide written notice to the Attorney General of Canada.
Mr. Chair, while the bill already includes provisions to protect against frivolous lawsuits, this amendment would be an additional measure to ensure that litigation is a last resort by requiring that citizens give the Attorney General 30 days' advance notice before filing a legal action under this bill. This would provide the government the ability to take enforcement action without the need for litigation and allows for it to act as an enforcer of the law.
9:20 a.m.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Thank you very much, Mr. Chair.
The intention, as expressed by Ms. Murray, is a laudable one, but in my view this provision does not adequately carry it out. In fact, 30 days' notice seems quite inadequate. If the Government of Canada, for example, received notice that Hydro-Québec was about to be sued pursuant to section 23 as a result of a dam constructed five years ago--after eight years of consultations that proceeded to construction of the dam--it seems unlikely that the Government of Canada would even get to the bottom of it in 30 days, much less come up with a remedy or an adequate solution.
Where I thought this amendment was going is that it would enable the Government of Canada to intervene in the lawsuit by receiving notice of the pending lawsuit. Since the Government of Canada would clearly have an interest in the issues in the lawsuit, I thought this was simply a procedural amendment that would give some notice to the Government of Canada to allow it to intervene in the lawsuit. In that respect, it has some value. But quite frankly, I would also point out the fact that these lawsuits are rather complex, and the government, if it receives such a notice, would undoubtedly—or may, rather, I should say—apply to intervene in the lawsuit to present its perspective, since it may be accused of allowing a contravention. This would engage the parties and the government in additional cost and delay.
From that perspective, it points out that these section 23 lawsuits will be rather costly and create long delays.
However, having heard Ms. Murray's explanation that it's somehow an attempt to provide an investigation clause--if I construed her correctly--similar to that found in CEPA and in the Ontario Environmental Bill of Rights, I'm afraid I just can't support it, on the basis that 30 days would be far too short. It's a band-aid on what is otherwise a gaping wound.
9:25 a.m.
NDP
Linda Duncan NDP Edmonton Strathcona, AB
Thank you, Mr. Chair.
I'm very supportive of the amendment. I think it's acceptable, because it provides more time than in the case of CEPA. It provides far more advance notice than the Ontario Environmental Bill of Rights, which merely requires not later than ten days after the day the statement of claim is served. In this case, it's before the statement of claim is even filed in the courts, let alone served.
Of course the Attorney General of Canada and any other party can apply to intervene. This simply gives a heads-up to the Government of Canada that the plaintiff is considering filing this action. From my experience in working with public-interest litigants, I have yet to see a litigant who seeks to go to court on their own, without having spent many months, if not years, trying to get the government to intervene. This would just be pro forma additionally giving notice.
This provision would allow the Government of Canada to do a number of things. They could intervene. They could also intervene to take action to address the problem that the public litigant is raising. So the matter of notice is an excellent addition to the bill.
9:25 a.m.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Thank you.
This clause clearly differs from the Environmental Bill of Rights in Ontario and CEPA because it does not indicate that the action is in any way delayed, stayed, or prevented by anything the government might do. In the CEPA case, the Minister of the Environment is first asked to conduct an investigation, and either responds unreasonably or fails to conduct an investigation within a reasonable time.
I don't have a full copy of that section. I only have a summary of it, but quite frankly I don't see the ten-day thing that Ms. Duncan was referring to. I only see the failure to conduct an investigation within a reasonable time being required before the plaintiff can proceed with an investigation. In the Ontario Environmental Bill of Rights there must be a similar unreasonable result or failure to conduct an investigation before the action can proceed.
Again, while the intent of this particular amendment is moving in the right direction, it doesn't prevent a lawsuit or really give an adequate opportunity for the government to take investigative measures to prevent a lawsuit. A lawsuit may still go ahead. The government is made aware of it, and I suppose may engage itself at some additional legal cost to intervene in it.
9:30 a.m.
Liberal
Joyce Murray Liberal Vancouver Quadra, BC
Thank you.
I just wanted to comment in response to Mr. Woodworth's notes on this amendment. Continually bringing up only the example of a massive hydroelectric project in the past, one with years of controversy and legal difficulties, in a way brings forward a straw man example, when in fact what this Canadian Environmental Bill of Rights is more geared towards providing for are the many cases where smaller but still harmful examples of pollution of the environment are occurring, and really, across the country.
One of Canada's most respected experts on water, Dr. Karen Bakker from the University of British Columbia, spoke recently at an event that I hosted. She did a talk on the five myths about Canada's water. One of the myths is that our water is pristine. She proceeded to talk about the fact that it's actually the opposite in many parts of Canada. The fresh water is being contaminated by various kinds of pollution that citizens are unaware of, or when they're aware of it, they are very frustrated in their inability to actually protect that water.
An example is a lake on Vancouver Island. When I was up in the Campbell River area, a delegation of people was concerned about arsenic and other toxic materials going into that lake and their years of inability to find a government body that would take action on that.
I just want to point out that it's not really useful to test everything here against a massive hydroelectric project when the benefit of this legislation is that private citizens can become more involved and can be encouraged to think that they can make a difference in their area, in their region, where they see something happening that shouldn't be happening.
This particular amendment is pointing specifically to the possibility of a citizen bringing forward a potential action and giving the responsible body a chance to actually correct the problem or giving the federal government a chance to step in and take its responsibility. It can't always do that because of resource constraints, but this would nudge that action that needs to be taken, for example to protect fish habitat in a lake on Vancouver Island.
Thank you.
9:30 a.m.
NDP
Linda Duncan NDP Edmonton Strathcona, AB
With all due respect, Mr. Woodworth, I think you may be talking about apples and oranges.
Attorneys General, of course, at the federal and provincial levels, in their respective areas of jurisdiction, have the right under the Criminal Code to intervene, to stay or take over a prosecution, but they do not have a similar absolute right to move in and stop the civil action. What this is doing is actually giving a heads-up to the Attorney General.
What they may do is within the full ambit of their powers and within the full ambit of the government to look into the matter subject to the court case that the litigants are considering bringing forward. It actually gives an opportunity to the Attorney General to intervene, to potentially initiate an action on their own, or to seek or to issue an environmental protection order. There could be all kinds of measures that come forward.
Again, it's a measure to give the government the opportunity, a heads-up, to step in and intervene. As my colleague pointed out, there are many, many cases across Canada where the department is stretched thin or where, for whatever reason, on the balancing of interests, it decides not to intervene or to bring suit or prosecute. It gives an opportunity for that community to seek recourse in the courts to have the impact remedied that is caused by a violation or an imminent violation of a critical environmental statute.
9:30 a.m.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Thank you.
First, in response to Ms. Duncan, if she were to look at the provisions of the CEPA section 22, “Environmental Protection Action”, or at the Ontario Environmental Bill of Rights action, she would see, in fact, that it is a precondition for lawsuits that the relevant ministry be given an opportunity to investigate and respond reasonably to a complaint or a request for investigation and that those lawsuits cannot proceed unless that precondition has been satisfied.
With respect to Ms. Murray's comments about a straw man in the issue of hydro power, if it is, it is a straw man that was suggested to us by the Canadian Hydropower Association. It's not anything certainly that I've invented; it's in the evidence that we've heard.
The difficulty with this clause and with this bill is that there is no provision in the bill that exempts massive hydro-power situations. Therefore, it's going to be up to a judge somewhere to decide whether or not an undertaking of Hydro-Québec should be stopped or allowed to proceed.
Speaking on behalf of Hydro-Québec and other Canadian hydro-power developers, Mr. Irving of the Canadian Hydropower Association said the following, in reference to this bill:
It effectively takes decision-making authority out of the hands of the subject-matter experts in the agencies such as Environment Canada, Fisheries and Oceans Canada, and Natural Resources Canada, and transfers it to judges. The parameters of judicial review set out in the bill ignore the fact that such decision-making requires careful balancing of environmental, economic, and social considerations, which is the proper purview of parliamentarians and civil servants, not judges.
So that all of the future of Quebec, which may be engaged with the proper development of its hydro-power resources, is rightly concerned that these decisions will now be made by judges and that there is a very serious risk that jobs will be lost, development will be lost, even the environmental benefits of hydro power may be lost. So we can only hope and pray that when this bill comes to its final vote, the concerns that are relevant to the people of Quebec will be felt.
Thank you.
9:35 a.m.
Conservative