Environment Committee on Feb. 10th, 2011

[The Chair, Conservative, James Bezan]

Ask through the chair, please.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

I apologize. Chair, I have a question for you. The public trust doctrine is popular in the United States. I believe it's been around for a while, as I think Mr. Warawa mentioned.

Has it not now been inserted in the Quebec water act? Does anyone know?

[The Chair, Conservative, James Bezan]

Do the analysts have any knowledge they wish to share?

[Kristen Courtney]

Our computer is not working, so I can't double-check the—

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

That's fine. In the Quebec water act I think it says that all of Quebec's water belongs to Quebeckers. I'm wondering if that constitutes a kind of public trust doctrine.

My second question is given that many experts now are suggesting that public trust doctrine should be used in Canada as an effective way of protecting the environment, if we were to do that, where would we start? Would we not have to start introducing this doctrine into Canadian law through bills like this?

I'm not a lawyer; I don't know. If we agree that public trust doctrine is a good concept, where do we begin in terms of introducing it to Canada? That's my question.

[The Chair, Conservative, James Bezan]

Ms. Courtney, do you want to respond?

[Kristen Courtney]

There are two ways it can be done. As Mr. Warawa noted, there have been decisions in Canada where the courts have alluded to it. So far, though, none of the decisions have firmly established that the doctrine exists in Canada, or the content and meaning of it.

Most of the academic commentators have interpreted these references to it that have taken place over the past 30 years or so, but more commonly and more assertively over the past six years since the 2004 Canfor decision, as saying that through the common law the public trust doctrine is evolving. It's becoming a part of Canadian law. There hasn't been a firm test case to affirm that or anything like that yet, though, so the one way it could become part of Canadian law is just to do nothing and leave it up to the courts.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Another way would be to introduce legislation that refers to it.

[Kristen Courtney]

Exactly, so if you do it this way, through the legislation, you're going to affirm immediately that yes, this is part of Canadian law, and for parliamentarians this will allow you to define precisely what you want the content and meaning of this doctrine to be. If you leave that up to the courts, then you may have to react to that later if you wanted to change that. There are those two separate ways, each with their own project lines.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Could you remind me if the Forum for Leadership on Water, which is the primary think-tank interest group on water issues in Canada, supports this bill because it includes a public trust doctrine? I know they submitted a brief. I know they supported the bill. FLOW supported the bill, and I think partly it was because it did include the public trust doctrine.

Going back to Mr. Warawa's initial point about how Liberals support the dumping of raw sewage, I would suggest that on this bill we are on the side of those who want to protect Canada's water by supporting this bill and, more specifically, the public trust doctrine that is in it.

[The Chair, Conservative, James Bezan]

Thank you.

Ms. Duncan.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Thank you, Mr. Chair.

I just want to briefly add something in follow-up to Mr. Scarpaleggia's comments, and I reiterate, through you, Mr. Chair, to the Library of Parliament, you are absolutely 100% correct.

There are, of course, three ways you can apply the public trust in Canada. One is through the courts--

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

I'm not sure if I've lost track of where we are, but I thought we were still considering clause 9.

[The Chair, Conservative, James Bezan]

Yes, we're dealing with clause 9.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Clause 9 speaks about a healthy and ecologically balanced environment. On the public trust doctrine, the duties of the government as a trustee are referred to elsewhere in the act.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

In fact, it is in clause 9--

[The Chair, Conservative, James Bezan]

It's also referred to in clause 9, in subclause 9(3) on the next page.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

I apologize.

[The Chair, Conservative, James Bezan]

Ms. Duncan, you have the floor.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Thank you, Mr. Chair.

Just briefly, if the governments of the day choose not to clarify in law, it is up to the courts to determine. In fact, there is a case before the courts right now arguing for the public trust in Canada. I'm sorry, I can't give you the citation, but we could follow up in another committee meeting and provide that.

A preferable way, obviously, is to clarify in law. As was pointed out in testimony to us, more than 100, almost 200, countries have chosen to provide the public trust and the right to a healthy environment through statute or constitution, the majority of those through actually amending their constitution to provide the public trust. Of course, how exactly this will be applied depends on its application and the circumstances of each case and precedent as it's determined.

The main reason for finally bringing this forward in a statute is there is study after study, as witnesses told us, by everybody from the Conference Board of Canada to the Canadian Medical Association, that Canada is being shown increasingly to have a poor record compared to other wealthy industrialized nations. It's also important for Canada, in harmonizing with other nations, to say that we believe that environmental protection is equal to economic development, which is reflected in the side agreements to some of our trade agreements.

It's very important that we have this document that simply clarifies in law and gives those rights and opportunities.

[The Chair, Conservative, James Bezan]

I see no other hands, so I will call the question.

(Clause 9 agreed to [See Minutes of Proceedings])

(On clause 2--Definitions)

We will go back to clause 2 and amendment NDP-2.

Just for the interest of committee members, NDP-2 also applies to NDP-3, so we will only have one vote. If we pass NDP-2, NDP-3 will carry. If we defeat NDP-2, NDP-3 will be dealt with separately.

Ms. Duncan, can you please put it on the floor?

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Yes, Mr. Chair.

I wish to table an amendment to the effect that Bill C-469 in clause 2 be amended by adding after line 31 on page 2 the following:

“aboriginal land” means

(a) reserves, surrendered lands and any other lands that are set apart for the use and benefit of a band and that are subject to the Indian Act;

(b) land, including any water, that is subject to a comprehensive or specific claim agreement, or a self-government agreement, between the Government of Canada and aboriginal people where title remains with Her Majesty in right of Canada; and

I saw fit to make this amendment because it would make clause 8 consistent with the Canadian Environmental Protection Act.

In their wisdom, after extensive consultation, the Government of Canada chose to divide up the definitions between “federal land”, “federal work or undertaking” and “aboriginal land”. I'm presuming they heard testimony to that effect and, having heard all sides, made the decision that those were two distinct entities.

So I simply want to make sure we're consistent with the way the government is preferring to present.

[The Chair, Conservative, James Bezan]

There is a point of order from Mr. Woodworth.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

I want to be clear that I correctly understand the procedure. The way I understand this is that we are proceeding with a substantive amendment to the definition provisions. I think it's because we previously amended clause 8 with NDP-4 and that therefore necessitates a substantive amendment to the definitions clause.

Am I correct in that understanding, Mr. Chair?

[The Chair, Conservative, James Bezan]

It helps with the interpretation of the bill, and we're dealing with the interpretation clause. In NDP-4 we already made the change in the bill, so we now use the words “aboriginal land”. We need to have a clearer definition of it in the interpretation clause.

Essentially, if you look at page 3, paragraph 2(c), under “federal land”, you're going to be removing that with amendment NDP-3 and moving it over to the new definition of “aboriginal land”. I think it helps with the clarification.