Environment Committee on Feb. 15th, 2011

[The Chair, Conservative, James Bezan]

Good morning, everyone.

We're continuing our clause-by-clause consideration of Bill C-469. We are in the interpretation clause, clause 2, and we are at BQ-2.

Monsieur Bigras, could you read BQ-2 into the record?

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

Yes, Mr. Chair. I propose amendment BQ-2, which reads as follows:

That Bill C-469, in Clause 2, be amended by replacing lines 33 to 36 on page 4 with the following: "the advantage of two or more provinces."

[The Chair, Conservative, James Bezan]

Okay. Do you want to talk to that motion?

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

This falls under the perspective of amendment BQ-1, the amendment that we were not able to introduce. We believe that the bill should apply strictly to companies under federal jurisdiction. We do not believe that even companies under shared jurisdiction should be subject to this bill.

Basically, the purpose of this amendment is to remove paragraph (i) from the definition of "federal work or undertaking" in section 2.

[The Chair, Conservative, James Bezan]

Mr. Woodworth.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

I have a point of order, Mr. Chair.

I missed some of the preamble to Monsieur Bigras' comments, and I'm trying to determine what amendment to the act would justify or necessitate the amendment in question.

[The Chair, Conservative, James Bezan]

So...?

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

My understanding is one ought not to be amending the definition section in a substantive manner, which this does. In effect, it deletes the coverage of the act over concurrent areas of jurisdiction. One ought not to do that unless it is necessitated by an amendment elsewhere in the act.

Furthermore, I question whether this amendment is in order. It seems to me that by removing the application of this bill to areas of concurrent jurisdiction, the amendment is exceeding the scope of the bill, which clearly was directed to us from the House as a bill that would apply to both exclusive and concurrent federal jurisdictions.

[The Chair, Conservative, James Bezan]

Last week I ruled BQ-1 out of order because it was a substantive change, talking about the “exclusive” legislative authority of Parliament. Because that was ruled inadmissible, we are still talking about the legislative authority of Parliament, which is “including, but not limited to”. So it still provides the opportunity for all jurisdictions that the federal government has authority over, and removing paragraph 2.(i), under “federal work or undertaking”, would not change the authority of Parliament in joint jurisdiction.

Mr. Woodworth.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

I want to understand this. The way this would work out, at least in my view, is that if we remove paragraph 2(i), under “federal work or undertaking”, we are no longer extending the jurisdiction of this act to works outside the exclusive legislative authority of the legislatures. In other words, we are no longer extending the jurisdiction of this act to areas that are concurrent. The paragraph in question simply means that if something is exclusively provincial, it would not fall under the jurisdiction of this act. If we remove this paragraph, then we are restricting the scope of the act, not simply in non-provincial jurisdictions, but also in concurrent areas of jurisdiction. That seemed to me to be substantive. Not only that, it seemed to me to be, in effect, outside the scope of the act, which clearly was intended to apply to any areas of exclusive federal or concurrent federal jurisdiction. Now we're going to change that.

[The Chair, Conservative, James Bezan]

Essentially, it's not a substantive amendment. Even though it's not specified within the bill, it doesn't change the scope of the bill. The scope of the bill still applies to all areas of federal jurisdiction, including joint jurisdiction or concurrent joint jurisdiction. That is still in effect, because the exclusive authority was not admissible. It's not a substantive change, so we'll leave it on the floor. It's up for debate.

I have ruled on that order.

Mr. Woodworth.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

If your interpretation is correct that the amendment is not intended to exclude the application of the act from areas of concurrent jurisdiction, we need to consider precisely what it is intended to do.

Let me be the devil's advocate for a moment. Previously, with the section, the act clearly referred only to work outside the exclusive legislative authority of the province. If we remove that provision it may be inferred that we're trying to go after work that is within the exclusive legislative authority of the provinces.

[The Chair, Conservative, James Bezan]

But at the beginning of this definition it says “including but not limited to”, so it is open to all areas of authority of the federal government, concurrent or exclusive.

Do you wish to speak to the amendment?

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

I am speaking to the amendment. I accept your ruling on whether or not this is out of order.

I'm simply saying that the purpose of the amendment is somewhat mysterious. I'd appreciate further elaboration as to why we would want to remove that section. It makes it clear that the act does not apply to anything within the exclusive authority of the provinces. Why would we want to remove something that makes it clear that the act is not going to touch on the exclusive authority of the provinces? It makes no sense.

I say that with great respect, Mr. Chair.

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

For us, it has always been clear that we believed that this charter should apply basically only to companies with exclusively federal jurisdiction. We think that these works or undertakings that might come under a shared power should not necessarily be subject to this legislation. I put that before you.

It is not a major amendment for us, but we have to present it at this stage.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Mr. Bigras says that it is his intention with this amendment to remove areas of concurrent jurisdiction from the ambit of this act. That is what I surmised at the outset. You have ruled that's not going to be the effect of this amendment, even though it is what is intended.

I want to say, however, to Mr. Bigras that the removal of this section will not affect the preamble of this definition. I want to remind him that the preamble of this definition says that “federal work or undertaking” means any work or authority that is in the legislative authority of Parliament. Simply removing paragraph (i) will not restrict that preamble so as to exclude concurrent jurisdiction.

Mr. Chair, you've persuaded me in the course of your remarks; however, it would seem to negative the purpose that Mr. Bigras has in proposing this amendment. Of course, in this committee that doesn't necessarily mean anything, but I suggest this is an unnecessary amendment and it won't affect that particular issue.

Thank you.

[The Chair, Conservative, James Bezan]

Are there any comments?

Ms. Duncan.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

I would add that care was taken to provide the very same definition that is in the Canadian Environmental Protection Act. I'm worried about varying from that. There was some clear reason for adding paragraph (i), and I suspect it might be because of a series of Supreme Court decisions, including Friends of the Oldman. There it was argued that because environment isn't specified in the Constitution it is arguable, except in those cases where there is exclusive provincial jurisdiction, that there may well be federal jurisdiction that includes spending power.

I don't see anything else in here that would reflect the spending power. It could be a facility, for example, that's cost-shared or....

[The Chair, Conservative, James Bezan]

Are there other comments?

[Linda Duncan, NDP, Edmonton Strathcona, AB]

I think the argument of Mr. Woodworth and the chair is correct that this is simply meant to elaborate. It is intended to be an umbrella for the situation of the determination by the superior courts that it isn't necessarily definitive. It is often arguable, depending on the actions taken by the federal government.

[The Chair, Conservative, James Bezan]

Mr. Warawa.

[Mark Warawa, Conservative, Langley, BC]

After listening to the dialogue, I want to summarize what I'm hearing. The issues we heard from many of the witnesses.... The issue of uncertainty will remain even with this amendment, and facilities and works in Quebec, like Hydro-Québec, will still be at risk of litigation. Uncertainty will remain.

(Amendment negatived)

[The Chair, Conservative, James Bezan]

We'll move on to Bloc-3.

Mr. Bigras, you can move it onto the floor.

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

This involves amendment BQ-3, which reads: That Bill C-469, in Clause 2, be amended by replacing lines 21 and 22 on page 5 with the following:"principle that there should be a just distribution of environmental benefits".

The amendment would eliminate the principle of consistency. So it would remove the word "consistent" from the section as presented.

That there be some kind of fairness is one thing, but that there be some kind of consistency is another. It is the principle of the associated costs and the burden imposed consistently on all Canadians. We think that this will go against the polluter pays principle.

There needs to be fairness. But imposing a burden that would be consistent across Canada could create concerns in Canada. We think that the polluter pays principle should apply and not the principle of consistency in sharing the environmental burden.

[The Chair, Conservative, James Bezan]

Mr. Woodworth.