Environment Committee on Feb. 10th, 2011

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

I just want to be sure that this substantive amendment is necessitated by the amendment of clause 8. I think you've told me that's the way you're looking at it.

[The Chair, Conservative, James Bezan]

I'm not calling it substantive; I'm calling it a clarification. It helps with the interpretation of the bill.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

I wish to speak to it briefly.

[The Chair, Conservative, James Bezan]

You have the floor, Mr. Woodworth.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Thank you.

I find it ironic that we have not heard any witnesses from any first nations groups that might be affected by this act, the amendment to clause 8, or this amendment. I think that's regrettable. It is partly due to the fact that we closed off witnesses, despite a motion from the Conservative side to request additional witnesses. I can't help but feel that we may be in violation of some constitutional requirement to consult with first nations if we pass this bill without having consulted them.

I only raise it at this point because the amendment makes it very clear that this act does apply to aboriginal lands, including reserves, surrendered lands, and other lands that are set apart for the use and benefit of the bands and subject to the Indian Act. So I'm somewhat uneasy that we as a committee haven't consulted with first nations in the review of this bill.

Those are the only comments I will raise regarding the amendment. I'm not entirely sure what the deficiency was in the previous version, but I can't really comment one way or the other on that.

Thank you.

[The Chair, Conservative, James Bezan]

Ms. Duncan.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

I want to clarify that when you read the bill before us in full, the purpose and intent is to hold the Government of Canada accountable for delivering its responsibilities to protect the rights and interests of Canadians. It very clearly says “within the jurisdiction of the Government of Canada”. We've had a good, thorough discussion about that.

We previously heard testimony on the Species at Risk Act and our review on oil sands and water. We heard considerable testimony from Métis and first nations peoples calling for the government to actively enforce federal laws for the protection of their lands, waters, and peoples.

[The Chair, Conservative, James Bezan]

Monsieur Bigras.

[Bernard Bigras, Bloc, Rosemont—La Petite-Patrie, QC]

Thank you, Mr. Chairman.

I support the principle of the amendment. Nevertheless, I would like some clarification on the proposed amendment, especially its paragraph (c) which expands on the meaning of the lands mentioned in paragraph (a) or (b). It talks about the subsurface but also all layers of the atmosphere. I wonder if adding this reference to the layers of the atmosphere does not go beyond the scope of the lands to be covered by the amendment. Why add "all layers of the atmosphere"? Does this not open up the scope of Ms. Duncan's amendment? As for the rest, it is very similar to what we already have in the Canadian Environmental Protection Act, as Ms. Duncan mentioned. However, I would like to know why we would widen that scope.

[The Chair, Conservative, James Bezan]

Ms. Duncan.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Thank you, Mr. Chair.

In the Canadian Environmental Protection Act, Interpretation, subsection 3(1), the definition of aboriginal land also includes that same clause, which is why I added that. If we want to remove it for the purposes of this, it's up to the members. But to be completely consistent with the Canadian Environmental Protection Act, I also included new paragraph 2(c).

[The Chair, Conservative, James Bezan]

Okay.

Mr. Woodworth.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Thanks very much, Mr. Chair.

There is something else I might say about this. It is a good section to illustrate the overall impact of this act on groups such as first nations or provincial governments or provincial agencies. Because this provision makes clear that the act extends to aboriginal lands, it means that the public trust duty, which we were speaking about a few moments ago, for the federal government also extends to aboriginal lands. At first blush, that may seem perfectly fine, but when we think about the fact that we have not defined the public trust duty, the meaning and content of it, it means that the courts will clothe that phrase with meaning.

If the Government of Canada has entered into an agreement with a first nations group in relation to aboriginal land, or if the federal government has entered into an agreement with a provincial government or a provincial agency, the courts, under this act, will have the authority to review those agreements in the light of whatever the courts determine should be the meaning and content of the public trust duty. If a judge or the court finds that the agreement permits a first nations community to develop its land in a particular way that the court feels does not meet its standard of environmental public trust, then the court will, under section 19, be empowered to order the federal government to remediate that and perhaps not to pursue its agreement with the first nations community, the province, or the provincial undertaking involved.

That is the constitutional issue that concerns me. The courts will now be given this ability to veto, if I can put it that way, agreements that the federal government might wish to make in relation to aboriginal communities or provinces.

Thank you.

[The Chair, Conservative, James Bezan]

Thank you.

I see no other hands.

Shall NDP amendment number 2 carry?

(Amendment agreed to [See Minutes of Proceedings])

As I said earlier, if NDP-2 is carried, then NDP-3 is also carried.

We're moving to Bloc motion number 1. Do I need to have that put on the floor first?

Monsieur Bigras, would you put it on the floor, please?

[Bernard Bigras, Bloc, Rosemont—La Petite-Patrie, QC]

Thank you, Mr. Chairman. I will move amendment BQ-1. I move that Bill C-469, in Clause 2, be amended by replacing line 8 on page 4 with the following:

or undertaking that is within the exclusive legislative

[The Chair, Conservative, James Bezan]

I'm going to have to make a ruling on this, Monsieur Bigras. I'm going to declare that this amendment seeks to make a substantive modification by amending the definition of “federal work or undertaking” in the interpretation clause, essentially removing any joint jurisdiction. If you go to page 769 of O'Brien and Bosc, in chapter 16, under “Interpretation Clause”, it reads:

The interpretation clause of the bill is not the place to propose a substantive amendment to a bill. In addition, an amendment to the interpretation clause of a bill that was referred to a committee after second reading must always relate to the bill and may neither exceed the scope of nor be contrary to the principle of the bill.

So in the opinion of the chair, the proposed amendment is substantive and is therefore inadmissible.

[Bernard Bigras, Bloc, Rosemont—La Petite-Patrie, QC]

Could I...

[The Chair, Conservative, James Bezan]

I ruled, and there is no debate. You can challenge the chair if you wish, but there's no debate on it. I've ruled it inadmissible.

[Bernard Bigras, Bloc, Rosemont—La Petite-Patrie, QC]

I challenge your ruling.

[The Chair, Conservative, James Bezan]

We'll do this again, as we did last week, on Tuesday.

But before you guys vote, I'll read this so you all understand. On page 1049, chapter 20, it says:

The Chair makes...decisions on his or her own initiative following a point of order raised by a Member.

Decisions by the Chair are not debatable. They can, however, be appealed to the full committee. To appeal a decision by a Chair, a Member must inform the committee of his or her intent immediately after the decision is announced. The Chair then asks the committee to vote on the following motion: “That the decision of the Chair be sustained”.

This motion cannot be debated or amended and it is put to a vote immediately. If a majority of Members vote in favour of the motion, the Chair's decision is sustained. If a majority of Members vote against the motion, the Chair's decision is overturned. In the event of an equality of voices, the Chair's decision is sustained. The overturning of a ruling is not considered a matter of confidence in the Chair.

But I do not like to be overruled. Anyway, I hope we don't make this a habit.

So the question is, and I'll put it right now, that the decision of the chair be sustained. It's not debatable.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

I have a point of order.

I just want to make it clear, because there was some confusion the last time we voted on a motion like this. Since the decision of the chair was to rule the proposed amendment out of order, sustaining the chair will mean that the proposed amendment is ruled out of order.

[The Chair, Conservative, James Bezan]

Yes. That is the clarification. So you're voting to sustain my decision.

(Ruling of the chair sustained)

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

[Mark Warawa, Conservative, Langley, BC]

I was elected in 2004, so I've been here for over six years.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

That's too long, right?

[Mark Warawa, Conservative, Langley, BC]

It's been a great experience, and I continue to learn. But in those six years, I have seen the chair challenged only three times. There was one about three years ago, in the case of Bob Mills. When there was a challenge to his decision, he left the chair, and that's why we have other chairs.