Environment Committee on Feb. 15th, 2011

[Chair]

So this is a new definition--

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

I was looking in the wrong spot. Thank you.

However, I will say that we considered it in relation to the definition of “resident”, which is the ordinary meaning of the word “resident”: someone living in the country. There is no question of clarification; we all know what a resident means. And to now impose a specialized definition of “resident,” one that is different from the ordinary definition of “resident”, in my view changes the whole tenor of our discussions throughout the rest of the bill.

I can't put it any more strongly than that.

[The Chair, Conservative, James Bezan]

Just so you understand where I'm coming from, what's providing my rule-making process is in chapter 16 of O’Brien and Bosc, “The Legislative Process”. Starting on page 768, first of all on the form of an amendment: “An amendment is also out of order if it is moved at the wrong place in the bill, if it is tendered in a spirit of mockery, or if it is vague or trifling“.

Going on to page 769:

The interpretation clause of a 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. This rule does not apply to a bill that has been referred to a committee before second reading.

So in this case this does apply to the scope of the bill, it is not exceeding it, it's providing clarification to the language that's already in the bill, so I am going to say it is admissible.

Ms. Duncan.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Mr. Chair, I will be supporting this amendment. I appreciate Monsieur Bigras bringing it forward. It was a matter of contention throughout discussion of this bill about who may or may not have rights and opportunities under the law.

[The Chair, Conservative, James Bezan]

Order.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

I realized in retrospect. And as the sole person drafting an act, there are many challenges. The decision by the drafter I was working with was to choose the language that we had. In other similar bills, they took different approaches in environmental bills of rights in other jurisdictions, but quite often what they did was use the language “every person resident in Canada”. Now, that would have been very wordy, so I think actually Monsieur Bigras has come up with the perfect solution, that it just simply makes it clear that wherever there is reference to “resident”, it is a person as he has defined. So I'll be supporting the amendment, and I appreciate his making it.

[The Chair, Conservative, James Bezan]

Okay.

Mr. Woodworth.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Thank you very much, Mr. Chair.

I don't propose to challenge your ruling, but I do wish to point out the implication of this amendment.

I can't quite put my finger on it, but I'm sure that elsewhere in this bill we have amended the.... Actually, I think it was section 28 of the Canadian Bill of Rights, to include a right to a healthy and ecologically balanced environment.

I think elsewhere we have made reference to section 7 of the Canadian Charter of Rights and Freedoms. We're going to try to take a look at that section in the preamble—Ms. Murray is on top of it. There we are. We are saying that compromising the life, liberty, and security of the person would be contrary to section 7 of the Canadian Charter of Rights and Freedoms.

Now, those of you who have ever dealt with refugee law will know that the Supreme Court of Canada has extended the protection of the charter to persons who are not permanent residents. In other words, if you come to Canada as a refugee and you are subject to judicial or governmental decisions, the Supreme Court of Canada, about ten and a half years ago--I don't remember the name of the case—indicated that such persons should be granted the protection of the Canadian Charter of Rights and Freedoms.

What we are doing with this amendment now is to say that those persons, in relation to the bill, will in effect receive second-class status. They will not be able to benefit from the protections of this so-called environmental bill of rights. This is somewhat anomalous, in my opinion. It certainly adds another layer of complexity to Canadian law regarding rights. A refugee claimant who has not yet received permanent resident status will be entitled to protection under the Canadian Charter of Rights but not to protection under the Canadian environmental bill of rights.

I'm not sure what will happen in relation to the amendment we've made to the Canadian Bill of Rights. I have to assume those persons will not be able to take advantage of that amendment to the Canadian Bill of Rights, which we've made under this act, since we are now redefining the scope of this act to apply to a limited class of residents and not all residents.

Once more we're into an area, in my view, of highly dubious legislation writing.

Thank you.

[The Chair, Conservative, James Bezan]

Mr. Calkins.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Thank you, Chair.

My colleague just made the same case I was going to make.

As we know, the definition of “resident of Canada” here is made pursuant to a section that's prescribed: subsection 2(1) of the Immigration and Refugee Protection Act. Should that act ever change, and should the section that defines “resident of Canada” in that act change, then we would have a conflict here. I think it's always best to reference a definition without referencing a particular paragraph or clause in another bill, because it creates housekeeping nightmares.

Notwithstanding that, we're all fully aware of some of the issues pertaining to the refugee and immigration acts and legislation we have here. In particular, I would turn my comments to the Singh decision, I believe, in 1985, which basically states that any person who sets foot within the territorial boundaries of Canada is afforded the rights of a Canadian citizen and the rights of due process of every Canadian citizen.

In that case, my colleague Mr. Woodworth is absolutely correct. This proposed legislative amendment would be different from that scope, and it would in my estimation not stand a charter challenge. As a result of the precedent set in the Singh decision, this would be putting a bad clause in an even worse bill.

[The Chair, Conservative, James Bezan]

Mr. Scarpaleggia.

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

Mr. Woodworth raises an interesting point, as usual. I have a question, though, which perhaps he could answer and clarify for me.

It is indeed true that refugees have rights that are protected under the charter, but do refugees have the full scope of rights that Canadian citizens enjoy? For example, can refugees who are not permanent residents of Canada make donations to political parties? Can refugees or would-be refugees vote?

Maybe Mr. Woodworth could address the differences between the rights afforded to those who land on Canadian soil and those who hold Canadian citizenship or permanent resident papers.

[The Chair, Conservative, James Bezan]

Mr. Woodworth.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Thank you.

I'd like to make two points.

I'll respond to my colleague's inquiry in a moment. First, though, I neglected earlier to mention that changing and restricting the definition of “resident” will not in any way prevent the problems regarding who can apply under this bill, in that it is not necessary for an “entity”, which is the problematic section, to be a Canadian resident.

That's the actual point that I have tried to make repeatedly in the course of the debate. There is nothing in the bill that requires entities to be Canadian residents, so this amendment will not touch that problem and will not do anything to prevent foreign agents, being groups from outside the country who open an office in Canada, from enjoying the rights that are guaranteed to entities under this bill.

With respect to Mr. Scarpaleggia's inquiry, first a disclaimer: I don't pretend to be an expert in this particular area of law. That said, I think the answer to his question is fairly simple. The rights that were guaranteed to refugee applicants--that is, people whose cases have not yet been determined--are those under the Canadian Charter of Rights and Freedoms, those which we consider to be fundamental to the proper protection of individuals.

I suppose that before we had this discussion, I was operating under the assumption that the title of this bill, and the quasi-constitutional references to it, meant that this bill was intended to give environmental rights in a very fundamental way to people. It was in that way analogous to the Canadian Charter of Rights and Freedoms. But now, if this amendment passes, of course, we will have to say that this bill is not really a bill of rights, that it doesn't protect anything that's so fundamental that it ought not to be deprived from everyone who resides in this country. Instead, it only protects extras that are not really that important and that therefore don't have to be secured to people who are not either citizens or permanent residents.

That, to me, is a fundamental change in the scope of the bill. But if the colleague who proposes it wants to tell us that this really isn't a bill of rights, that it's really not protecting anything fundamental, then I guess that tells us something about her intentions.

I'm sorry; let me amend that. I don't want to comment on her intentions.

That tells us something about the bill that she's proposing.

Thank you.

[The Chair, Conservative, James Bezan]

Any comments?

Ms. Duncan.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Mr. Chair, unless I'm completely surprised at the end and the Conservative members of this committee all vote in favour of this bill, which will stun me, I have to say that I'm finding the argument rather interesting.

This bill, of course, does not amend the charter. That's a constitutional document and would supersede this legislation, as it supersedes all legislation. So of course somebody who felt they were not accorded proper rights could challenge the bill.

I thought Monsieur Bigras was trying to come up with a fair compromise in the discussion around the table of the fear raised, particularly on the other side, about foreigners coming onto our land and shutting down operations. And there are lots of examples about Quebec, for some unknown reason.

I think Monsieur Bigras has tried to come up with a reasonable compromise. He still has an opportunity to think about it, as we do. My preference, of course, would be to include all, but I also want to respect the proposed amendments of those around the table. It provides clarity for who the residents are, and I think it's a fairly reasonable proposal--unless someone has an amendment to offer.

[The Chair, Conservative, James Bezan]

Are there any other comments?

(Amendment agreed to: yeas 6; nays 5) [See Minutes of Proceedings]

[The Chair, Conservative, James Bezan]

We're back to the original clause now.

Amendments BQ-3 and BQ-4 are agreed to, so now we're dealing with whether clause 2 will be carried as amended.

Are there any comments?

Mr. Woodworth.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Thank you, Mr. Chair.

There are various difficulties presented by the definitions in clause 2. Some of them we have touched upon in relation to the individual clauses of the bill. I'm going to try to go through them and simply highlight them, because in a way they all touch on the weaknesses in this bill and they are intertwined throughout.

The first difficulty is with the definition of “entity,” which is essentially any group that is either “authorized to carry on business in Canada or that has an office or property in Canada”. An entity need not be a resident, need not have any relationship to the rule or undertaking that is being challenged in court or otherwise, and need not even have to have a permanent office in Canada. It simply has to be a group that opens an office.

The question of federal land has now been amended to make it absolutely clear that it includes aboriginal land, and a definition of “aboriginal land” has been added. While I don't purport to be a constitutional lawyer, I seem to recall hearing time and again in committee that particularly at least when one is legislating with respect to aboriginal rights, one is under a constitutional requirement to consult with aboriginal groups before doing so.

It's rather remarkable that in so many environmental matters—in fact, I think, in the two and a half years that I've been on the environment committee, in every case when we have been considering environmental legislation—we have invited and heard from aboriginal groups, except one; that would be the case of this bill. We have not heard from aboriginal groups in relation to this bill, and yet we have heard from other witnesses the grand impact that this bill is going to have. The mover of the bill certainly expresses in the bill the view that this should have a grand impact on the scheme of things; yet we have not heard from aboriginal groups in relation to it.

The definitions of “federal source” and ”federal work or undertaking”, notwithstanding the substantive amendments here today, include matters that will impact upon provincial works and undertakings. That is to say that they will still apply to areas of concurrent jurisdiction, wherever the federal and the provincial government have a shared environmental jurisdiction. They also will still apply to such provincial undertakings as Highway 407, which I mentioned in the course of debate and which is proposed by the Government of Ontario in order to ease transportation problems in the east of Ontario, because of its impacts on federally regulated environmental issues, whether those would involve species at risk or waterways that might be involved, fisheries issues, or indeed the jurisdiction that is contained under the Canadian Environmental Protection Act.

I've tried to do my best to point out that this provision will similarly impact works in the province of Quebec, because I want to make known to the people of Quebec what danger is presented to hydroelectric works in particular, which are so important to the province of Quebec, by a federal bill that will in effect place the determination of environmental issues in the hands of litigants and judges.

Moving on, the definition of a “healthy and ecologically balanced environment” is one of those that is fraught with difficulty in interpretation. We haven't heard too much about how the courts will interpret that clause. One wonders if the phrase “cultural dignity” is included in any other federal statute. It's not one that's known to me, personally, and I don't think I've heard any evidence to the effect that it is included in any other statute.

I think one of my colleagues pointed out that in the definition of “healthy and ecologically balanced environment” there is a reference to “essential ecological processes”. That begs the question: what is a non-essential ecological process, and exactly what do we mean by an essential ecological process?

Of course what we're doing here is in effect delegating those decisions and allowing courts to fill in the content of this act. We are in effect abdicating our responsibility as legislators to produce legislation with certainty that every citizen and every resident can understand.

There are other issues along a similar line. The precautionary principle, for example, departs from some very well recognized definitions of precautionary principle as incorporated into the Rio Declaration, which refers to “cost-effective” actions. By removing that key phrase “cost-effective”’, we are opening the floodgates, if you will, to pre-emptive strikes against development, which will potentially grind them to a halt, because there will be no reference to acting in a cost-effective way. Any cost will be insufficient in relation to the damage that is referred to.

Under the principle of environmental justice, today we've seen that we are now proceeding in a manner that will permit an asymmetrical application of this act across the country, and we did that with little or no discussion of the implications.

We're out of time, are we?

[The Chair, Conservative, James Bezan]

We're out of time.

Mr. Scarpaleggia.

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

I have one point of information.

When we were discussing “entity”, months ago now, what came out of that discussion? Can somebody remind me what came out of that discussion? We were talking about defining “entity” as a Canadian-controlled, -registered or -incorporated body, and then we left it and said we'd come back to it later.

[The Chair, Conservative, James Bezan]

It was in clause 12. We inserted the words; we amended it so that it was “Canadian-controlled entities”. But then clause 12 was defeated.

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

Okay. Will it be possible...? I guess it's too late now to.... Would it have been possible, if it were not too late, to have amended the definition of entity to reflect that change; I mean, to bring a similar amendment to...?

[The Chair, Conservative, James Bezan]

Well, you have to look at the definition that already exists within clause 2, which says, at the top of page 3:

“entity” means a body corporate, trust, partnership or fund, an unincorporated association or organization that is authorized to carry on business in Canada or that has an office or property in Canada.

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

That doesn't necessarily mean Canadian-controlled. Would it have been possible to have—