Evidence of meeting #47 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.
9:55 a.m.
Conservative
The Chair Conservative James Bezan
Other comments? Seeing none, shall clause 6 carry?
(Clause 6 agreed to [See Minutes of Proceedings])
(On clause 9--Right)
Moving right along now to clause 9, amendment LIB-1.1 is on page 10.1 in your docket.
9:55 a.m.
Conservative
9:55 a.m.
Conservative
9:55 a.m.
Conservative
9:55 a.m.
Conservative
9:55 a.m.
Liberal
Francis Scarpaleggia Liberal Lac-Saint-Louis, QC
This is Mr. Kennedy's amendment, but I think it's self-explanatory. Essentially, I take it that the intent of this bill is to give citizens an opportunity to hold actors accountable for actions that affect the environment negatively. I guess it follows that there's a duty on behalf of individual Canadians to make environmental protection a personal priority.
10 a.m.
Conservative
Mark Warawa Conservative Langley, BC
What it would do is place an obligation on every person in Canada to protect the environment. This exposes individuals to a new level of liability. I believe it's Liberal window dressing, and again it creates a bad bill and makes it even worse. The amendment doesn't address how the right to an ecologically balanced environment—and again, we're not sure what that means; it depends on how the courts interpret that. So it doesn't address how it's balanced with competing interests such as economic and social goals, which is sustainable development. It focuses on one, not three, pillars of sustainability. So we will not be supporting that.
10 a.m.
Conservative
Robert Sopuck Conservative Dauphin—Swan River—Marquette, MB
People in the third world have coined a phrase for first world environmentalists. They often call them eco-imperialists, placing their views above the rights of those countries and individuals. This particular amendment has the potential to do the same here. I would remind people of the recent incident where this young elementary student—I think it was in Quebec or perhaps Ontario—was sent home because he brought a sandwich to school in a plastic bag; the teacher felt that this somehow was causing environmental harm. That kind of disgraceful behaviour by self-appointed people who assume they know what's best for the environment, and thereby the individual, is what will result from this particular amendment. I think this amendment is problematic at best and should be defeated.
10 a.m.
Conservative
10 a.m.
Bloc
Bernard Bigras Bloc Rosemont—La Petite-Patrie, QC
Mr. Chairman, I will not support the amendment of my friend Francis. Since we are talking here about a charter of environmental rights, the word "duty" might be too strong in this bill, especially since in the preamble we already talk about an individual and collective responsibility to protect the environment.
10 a.m.
NDP
Linda Duncan NDP Edmonton Strathcona, AB
Thank you, Mr. Chair.
I appreciate the Liberals bringing this forward, and I think they did that in good faith and in response to a recommendation by one of the witnesses, Dr. Boyd. Dr. Boyd, in his submission, in suggesting that this be added, said it would be oratory, not enforceable. For that reason, I find that it's not necessary to add the provision because it doesn't actually provide any enforceable duty. Those enforceable duties are already contained in existing environmental law. For example, everybody must obey the Species at Risk Act, must obey the Canadian Environmental Protection Act and so forth. So it's a little puzzling to add in when in fact we already have some provisions. But the main reason that I would have is that the preamble already makes the oratory statement, where it states:
Whereas Canadians have an individual and collective responsibility to protect the environment of Canada for the benefit of present and future generations;
Whereas Canadians want to assume full responsibility for their environment, and not to pass their environmental problems on to future generations;
I understand the intent of what Dr. Boyd was wanting to convey, and he was very clear it was to be simply oratory and not enforceable. My position is that in fact what he wanted is already reflected in the bill in the preamble.
10 a.m.
Conservative
The Chair Conservative James Bezan
Seeing no other hands, we're going to call the question on Liberal amendment 1.1.
(Amendment negatived [See Minutes of Proceedings])
10:05 a.m.
Conservative
The Chair Conservative James Bezan
Back to clause 9, unamended. Are there any comments on clause 9?
Mr. Warawa.
10:05 a.m.
Conservative
Mark Warawa Conservative Langley, BC
Again, Chair, this exposes individuals to liability. Of the witnesses we heard speak to committee, those who would benefit if Bill C-469 did pass and become legislation supported it. But again, there would be a personal benefit to them. Every other witness said Bill C-469 was so bad that it wasn't redeemable. It was too badly written, and it wasn't worth the effort to try to amend it. But there have been attempts by the opposition members to amend it, so it moves forward.
The policy implications of adopting the public trust doctrine are not clear, but they could be very, very significant. Depending on how broadly the doctrine is interpreted, this provision could make the government legally liable for inactivity in the face of threats to the environment. It could also be interpreted to mean that the government owes the public legally enforceable fiduciary duties. It could shift the focus of control from elected government to the courts, and we've heard that repeatedly.
It could also increase uncertainty for business in Canada—and we heard that from the witnesses—and the loss of investment and the loss of jobs. This provision would entrench the public trust doctrine in federal environmental law, raising many novel policy questions. The bill defines the public trust as the federal government's responsibility to preserve and protect the collective interest of the people of Canada in the quality of the environment for the benefit of present and future generations. This definition captures many of the components of the doctrine that have been well established in American common law and statutes. In the U.S., the doctrine has been applied by courts for decades to preserve the public interest in a variety of resources, including waters, dunes, tidelands, fisheries, shellfish beds, parks, commons, and wildlife, and it's been invoked by the government to collect damages for environmental harm. We heard my colleague speak eloquently on that and the concern that this is an American-style litigation bill. Actually, we heard that from witnesses too.
In Canada, the doctrine is not well developed. The Yukon Environment Act places the duty on the government of the Yukon to conserve the environment in accordance with the public trust, but this provision has not been judicially considered and its impact on government decision-making with respect to the environment is unclear. In common law, the doctrine has been recognized in Canada to a certain extent with respect to navigation, fishing, and highways but had otherwise received little attention until the Supreme Court of Canada made favourable references to it in its 2004 decision, British Columbia v. Canadian Forest Products Ltd. Since then, academic commentary has focused on the potential of the doctrine as a useful environmental protection tool. As the Supreme Court of Canada expressed in its 2004 decision, recognition of the public trust doctrine raises many policy questions, including the crown's potential liability for inactivity in the face of threats to the environment, the existence or non-existence of enforceable fiduciary duties owed to the public by the crown in that regard, the limits to the role and function and remedies available to the governments taking action in account of activity harmful to public enjoyment of public resources, and the spectre of imposing on private interests an indeterminate liability for an indeterminate amount of money for ecological or environmental damage.
So this poses very serious questions, exposing individuals to a new level of liability, and would not be in the interests of Canadians. I think back to comments made by Mr. Sopuck regarding this being a tool of attack against rural Canadians. I think that's something we all have to take very seriously, particularly with the attacks against Hydro-Québec and BC Hydro. These are a new potential....
Think back to the witnesses who will benefit if Bill C-469 passes. Their hope was not for increased litigation; they wanted Bill C-469 to be used as the stick to intimidate. This is not in the interests of the environment; it's not in the interests of Canadians, all Canadians, including rural Canadians and Quebeckers.
Thank you.
10:10 a.m.
Conservative
Robert Sopuck Conservative Dauphin—Swan River—Marquette, MB
I would remind Ms. Duncan that I represent a rural constituency with communities that depend on the harvesting and management of resources. I don't need any lectures about who cares about rural Canada. My communities understand, to their bones, what a healthy and ecologically sound environment is.
However, I want to zero in on the phrase in the definition “essential ecological processes are preserved for their own sake”. Again, I find that a bit of a laughable phrase. I'm still waiting for somebody to define what a non-essential ecological process is. They are all essential, so the word is redundant.
In terms of “preserved for their own sake”, that phrase has the potential to give the environment rights. Rights are a human concept, not a concept in nature. Ecological processes are extremely important, but they don't have any rights. It's rather like the concept of animal rights, which some of you may remember was almost enshrined in law ten years ago in Bill C-15B. The Chrétien government tried to bring it in. That caused an uproar in rural Canada, the same kind of uproar this particular act will engender.
If you look at all of the environmental fights in this country, they were all directed primarily, if not all, against rural resource harvesting and rural land management activities.
I think the Hydro-Québec example is a pretty good one. In terms of environmental change in Quebec, 23,000 square kilometres of land have been flooded by the hydro development. In my own province of Manitoba, which has a very similar kind of hydro development scheme, there is 6,000 square kilometres of land that has been flooded.
I know the oil sands get beaten up, but in the oil sands there are only 602 square kilometres of land that have been affected—far, far less than any hydro developments in Canada. I should also make the point that in terms of the oil sands, 10% of the land that has been affected has been reclaimed.
10:10 a.m.
Liberal
Francis Scarpaleggia Liberal Lac-Saint-Louis, QC
I have a question for Mr. Williams; actually, whoever wants to take this can take it.