Environment Committee on Feb. 10th, 2011

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Yes, that's fine. Okay.

[The Chair, Conservative, James Bezan]

I have Mr. Woodworth and then Mr. Calkins.

It's as clear as mud.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Mr. Chair, I hesitate a little bit, because, first of all, I'm pretty sure that I was the one who originated the discomfort with the word “inconsistency”. So I'm hesitating here. Also, I certainly find that it is a very risky proposition to be trying to amend a bill and a provision that is fraught with such complexity and such difficulty. Having said that, what I think Ms. Duncan is moving toward is a clause that is equivalent to section 2.1 of the Arctic Waters Pollution Prevention Act. Being a cautious lawyer, I always take comfort from precedent, and I assume that when that provision was first enacted, somebody must have thought about the use of the word “inconsistency” and decided it was okay or maybe even better than the word “conflict”.

I also notice that the section includes regulations made under the act, whereas the amendment Ms. Duncan has proposed does not.

My difficulty with trying to move amendments, or to put a new patch on old skin, if I can mangle a phrase, prevents me from trying to save what Ms. Duncan is doing. But I did feel compelled to point out that if one were trying to choose between what she's proposed and what's in section 2.1 of the Arctic Waters Pollution Prevention Act, I would probably go with section 2.1. However, I leave it up to Ms. Duncan and Mr. Scarpaleggia as to whether they want to pick up on any of that.

Thank you.

[The Chair, Conservative, James Bezan]

We'll go to Mr. Calkins.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Thank you, Mr. Chair.

Following on the learned comments of my colleague who just spoke, my original intent upon reading this was basically articulated in the first sentence, which is, “This act is intended to ensure consistency with Canada's rights and obligations under international law”.

Now that the focus is removed from any particular convention, such as the Convention on the International Trade in Endangered Species and the Migratory Birds Convention Act, and is focusing now primarily on the Marine Liability Act, I think the first sentence no longer applies.

If the first sentence reads that it's intended “to ensure consistency with Canada's right and obligations under international law”, I would interpret that to mean a multitude of international laws or domestic laws we've passed to honour international commitments and agreements, whether they are laws that deal with international conventions, such as the Kyoto Protocol and the Copenhagen Accord, or the plethora, or multitude, of international environmental laws. To now say that we're going to do this in the first part of this amendment and then limit the scope of it to simply the Marine Liability Act, in my mind, means that we have to do some housekeeping on this still.

I don't know how we would do that. I look to the mover of the amendment for some direction and guidance on what he's trying to achieve here. Either remove the first sentence completely or we have to vote and decide to defeat the proposed amendment by Ms. Duncan.

[The Chair, Conservative, James Bezan]

We definitely can't amend right now while we're dealing with the subamendment, by unanimous consent, we are dealing with at this point in time.

If you believe that there is a conflict between the beginning part of this clause and the subamendment that's proposed, then I would suggest that you vote against it. Everyone has to make his or her own decision.

Monsieur Bigras, c'est à votre tour.

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

Thank you, Mr. Chairman.

I do not really have an opinion on the issue, but I would nevertheless like to make a comment on the amendment.

We must take into account the fact that Canada signs international conventions, one of which is the International Convention for the Control and Management of Ships' Ballast Water in February 2004. It means that once this convention will be in force, Canada will have a duty to comply with those international standards.

So if we say that the Canadian Marine Liability Act supercedes these conventions, this could give rise to a number of problems. I would not go as far as saying that it could even involve the Kyoto Protocol, but there is definitely an issue in so far as we believe that Canada should honour the conventions it has signed.

[The Chair, Conservative, James Bezan]

Mr. Scarpaleggia.

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

As I understand it, Mr. Bigras is saying we should leave that first sentence?

Are you saying it is important to keep the first sentence?

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

I was more comfortable with the original wording.

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

But you are still okay with the amended wording?

[The Chair, Conservative, James Bezan]

It's the same thing as I said just previously, that if you believe the subamendment we're dealing with right now is not consistent with the beginning part of amendment L-1, then you are definitely free to negate the subamendment.

Mr. Scarpaleggia.

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

I understand where the inconsistency could be seen to lie, but is it possible to just pass the subamendment and then come back and remove the first sentence?

[The Chair, Conservative, James Bezan]

You guys can do whatever you want.

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

Well, should we vote, Chair, on the subamendment first of all and clean that up?

[The Chair, Conservative, James Bezan]

Seeing no other hands, we shall vote on Ms. Duncan's subamendment. And I'll read the entire subsection (2), which would read as follows:

This Act is intended to ensure consistency with Canada's rights and obligations under international law. In the event of any conflict between the provisions of this Act and the Marine Liability Act, the provisions of the Marine Liability Act will prevail to the extent of any conflict.

(Subamendment negatived)

So we're back to the amendment L-1, as amended. It reads this way:

This Act is intended to ensure consistency with Canada's rights and obligations under international law. In the event of any conflict between the provisions of this Act and the provisions of any international law in force in Canada, the provisions of the law will prevail to the extent of the conflict.

(Amendment as amended negatived)

A point of order, Mr. Woodworth.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Can I report this to William Shatner's Weird or What?

[The Chair, Conservative, James Bezan]

It's public. You can do whatever you want.

That was an hour of debate on the amendment. We shall keep going.

We're back to clause 6, unamended. Any further discussion on clause 6?

Mr. Calkins.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Mr. Chair, the reason we stood this was to find out what the rest of the bill was going to look like before coming back to the purpose of the bill. This is the clause that sets the overarching tone of the bill. Based on all of the testimony we've heard, I will be speaking about some of the problems that we on this side of the table see with clause 6.

Clause 6 sets out the purpose of the bill:

The purpose of the Canadian Environmental Bill of Rights is to

(a) safeguard the right of present and future generations of Canadians to a healthy and ecologically balanced environment;

One of the concerns we have, Mr. Chair, and I'm sure we'll get into this in great detail, is what exactly the definition of a healthy and ecologically balanced environment is.

In my mind, while this might be well intentioned by a person of goodwill moving this legislation forward, it does raise a number of questions as to exactly how that would be interpreted in a court of law. We all know that when we deal with clause 23, and the various other clauses of the bill that give force or provide actions on behalf of the Canadian public to hold the government or others to account, particularly in civil matters, anything that needs to be proved when it comes to a healthy and ecologically balanced environment will come down to a balance of probabilities made in a court decision in a civil action, which anybody can take, whether or not they have a direct vested interest in that particular action or undertaking.

This is the underlying problem with the legislation. This gives the overarching danger that was mentioned by many who testified before this committee. Virtually everybody in any business environment, whether they were from the chambers of commerce or the various shipping industries, had concerns and expressed consternation about how easy it would be, through clause 23, on a balance of probabilities, to bring action against any undertaking involving the federal government.

We need to iron out exactly what the definition of a healthy and ecologically balanced environment is. My personal view of that would differ probably from just about everybody else's at this table. Although we would have many similarities, we would have, I'm sure, some differences. For example, is a healthy environment the right to work at an oil sands project, or a Hydro-Québec project, or any other project, so that you can provide food, clothing, and shelter to your family? I would consider that to be a much more healthy environment than the alternative. When we look at it in its depth, breadth and scope, we need to take those kinds of things into consideration.

Paragraph 6(b) says:

(b) confirm the Government of Canada’s public trust duty to protect the environment under its jurisdiction;

I don't have too much trouble with that particular paragraph. However, the problem with this now is the clauses that subsequently follow in the bill, which provide opportunities for individuals to bring action against the government if there is, in their eyes, a perceived failure to protect the public trust duty. Those clauses that we've gone through are numerous and would provide for much second-guessing within the bureaucracy of the various departments in Canada, if this legislation should come to pass.

Already, I think every member of Parliament at this table understands that if a federal dollar is spent on any project in their particular constituencies, it triggers an environmental impact assessment under the Canadian Environmental Assessment Act. Everybody knows about the delays, the time it takes to move projects forward, whether or not the project appears to be what I would call a no-brainer, right up to the fact that it might be a very complicated project breaking new ground.

I used to be a computer programmer. We used to use the term “analysis paralysis” when we over-analyzed a situation to the point where we spent all of our time analyzing the problem and none of our time moving forward and actually solving the problem.

I think this particular clause in this bill sets the tone for the various clauses that follow after, which would lead to what I would consider more red tape, more hand-sitting. I think it would send a chill to all of those in the administration such that they're not going to move at all, because every public servant would be under the wrath of any environmental group and any Canadian with an interest in filing a complaint if somebody does something they consider to be or construe as out of line with the public trust duty to protect the environment. This would mean any undertaking that would require federal permits or authorities, and we all know about some of the, what I would consider, dangerous clauses this bill presents when it comes to judicial activism.

Paragraph 6(c) states:

(c) ensure all Canadians have access to

(i) adequate environmental information,

(ii) justice in an environmental context, and

(iii) effective mechanisms for participating in environmental decision-making;

I don't know what “justice in an environmental context” means. We hear complaints all the time--or at least I do from my constituents--that we don't even have justice when it comes to our justice system; we have a legal system. The people in my constituency, at least, feel that we've long since lost any sense of justice at all.

Given this clause, we have now basically given legal standing to something called “an environmental context”. That is something I find particularly alarming, because anything I do, whether it's simply breathing and the expulsion of CO₂ from my body, could be construed as causing environmental harm. I know that sounds a little bit ludicrous, but if we're going to go down this road, we need to be very careful about any precedents we set.

I'm actually very concerned. I can see a future date where there's a case of the environment versus so-and-so, the environment versus so-and-so, and the environment versus so-and-so, because if we're going to give the environment this kind of standing as an entity, that would be quite a shift and a leap forward from what we're able to do currently under our rule of law. It would create I think even more uncertainty for all of those wishing to move forward under the pillars of sustainable development for the creation of projects and wealth generation in our country.

Paragraph 6(d) states:

(d) provide adequate legal protections again reprisals for employees who take action for the purpose of protecting the environment;

I spoke quite a bit on this at the last meeting when we dealt with the whistleblower protection. The whistleblower protection in this bill is already covered under a much broader and wider scope of legislation that protects basically all federal employees. We already have these protections available through the Canada Industrial Relations Board for those employees working on a project through the private sector. We also have provisions in the Criminal Code of Canada that deal with reprisals by employers against employees.

I actually think the addition of this into this particular legislation would create opportunities for discourse should one act be changed and another not be amended. It would create inconsistencies. When we have inconsistencies in the law, that creates uncertainty. I think it would actually potentially, in the future, create opportunities for those inconsistencies to be exploited, much to the detriment of employees who are actually seeking to do the right thing, which is to blow the whistle on problems within the government.

[The Chair, Conservative, James Bezan]

Thank you, Mr. Calkins.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

I didn't get to paragraph (6)(e), Mr. Chair.

[The Chair, Conservative, James Bezan]

It doesn't matter. You've had eight--

[Blaine Calkins, Conservative, Wetaskiwin, AB]

So my privileges as a parliamentarian are only extended to eight minutes?

[The Chair, Conservative, James Bezan]

Eight minutes--you bet.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Oh, that's great.