Environment Committee on Feb. 15th, 2011

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Mr. Chair, on a point of order, I appreciate Mr. Woodworth's interpretation of the law, but he is only one member of this committee, and perhaps other people on this committee would also like to discuss this. I'm finding this is getting a little out of control.

[The Chair, Conservative, James Bezan]

I have you in sequence.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

I do apologize. I recognize I have interjected, but I just wanted to say that the issue is that the federal government's ability to determine remedial measures will now be impaired and subject to the decisions of the courts in a way that will not allow the same degree of consensus to develop that federal-provincial negotiations now permit. In court we operate under what's sometimes referred to as the “king of the hill” theory, whereby somebody wins and somebody loses. It's an entirely different process in federal-provincial negotiations.

[The Chair, Conservative, James Bezan]

Ms. Duncan.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Thank you.

Mr. Chair, I just wanted to add at the beginning that in no way do I see a vote on this committee on time that we are going to allot to the particular matter we're reviewing to be a vote on closure. I found the comments on our vote on the many matters before us and how we might resolve that and move forward, to call that closing down debate.... Frankly, I just had to speak to that. I don't see the similarity at all.

We all had a chance to vote on it: the majority voted to hopefully very soon, hopefully today, move on to other matters.

I just wanted to speak to this argument that this bill somehow opens up the opportunity for judicial review that has never existed, would not exist otherwise, which is, of course, frankly absurd. There have been countless cases brought before the courts, countless determinations to allow standing, and to rule in many cases that the government had to go back and revisit. Judicial review goes on all the time in this country. There are cases proceeding right now on the interpretation of responsibilities. In some cases federal laws impose mandatory duties—for example, under the Species at Risk Act—and there has been a long series of cases.

The law is not intended to be carved in stone. Most of the amendments that come forward, from my experience, are brought forward at the request of operators and owners of facilities. Permits and approvals are opened up regularly. In fact, the law provides for opportunities for proponents, operators and owners, to request the opening up of operating approvals.

There are provisions in law, as Mr. Scarpaleggia has pointed out. For example, the Fisheries Act has an absolute prohibition on impacts on fish and fish habitat and man's use of fish, and that can be constrained by action of the government. This is a matter of consternation for about 40 years that the government hasn't been using those particular tools to constrain what that means and to provide certainty. In fact, it's the other way around: it has usually impacted communities that have been asking for this constraint and where there are actually regulations and authorizations.

So there are two sides of the fence. I think the public just as much wants legal certainty as the operator of a facility. But the government itself is revisiting what standards are—for example, control of greenhouse gases—and has announced imminent regulations coming in place. It regularly reviews the regulation of toxins, regularly adds new substances to that list of regulated toxins. So of course industry is at risk, but the government usually operates in a reasonable way to give due notice, give opportunity for input on all sides.

The whole point of this bill is that in fact many impacted communities are not happy that there would be deliberations behind closed doors simply between two levels of government. They would like to be heard. They would like to have their rights and interests considered. Mr. Sopuck had raised the issue about rural communities. For 40 years I've worked with rural communities and first nation and Métis governments that are concerned and regularly go to court because they feel they're not being consulted.

I also wanted to add the point that in fact we did try to engage first nations. The Assembly of First Nations was contacted and chose, for whatever reason--perhaps the time didn't work.... And I, myself, contacted a number of first nations.

[The Chair, Conservative, James Bezan]

Mr. Bigras, you have the floor.

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

Thank you, Mr. Chair.

I understand Mr. Woodworth's concern about the scope of the bill, particularly the part about judicial review.

We need to keep in mind that we were initially also concerned about the lack of guidelines in this bill. That is why—and correct me if I'm wrong—Mr. Woodworth was concerned about clause 16 of the bill.

If I'm not mistaken, the committee adopted amendment BQ-6, which stipulated that we are eliminating subclause 4 of clause 16, which states, "It is not a defence to an environmental protection action under subsection (1) [of clause 16] that the Government of Canada has the power to authorize an activity that may result in significant environmental harm."

If I'm not mistaken, amendment BQ-6 was adopted, Mr. Chair.

So it seems to me that this should be a strong argument that would give Mr. Woodworth some guarantee about the scope of the bill. I think that we have given the guidelines required in this bill so that it can wend its way to the House of Commons—at least I hope it will—and reach the report stage.

[The Chair, Conservative, James Bezan]

Merci.

Seeing no other hands, we are voting on clause 2.

(Clause 2 as amended agreed to: yeas: 6; nays: 5)

[The Chair, Conservative, James Bezan]

We now go to the preamble, and we have NDP-1.

Ms. Duncan, do you wish to move it?

[Linda Duncan, NDP, Edmonton Strathcona, AB]

I am advised that it's not allowable, so I will not move it.

[The Chair, Conservative, James Bezan]

It is a substantive change. It is inadmissible. Just so everyone knows, I'll read something from page 770 of O'Brien and Bosc, chapter 16:

In the case of a bill that has been referred to a committee after second reading, a substantive amendment to the preamble is admissible only if it is rendered necessary by amendments made to the bill. In addition, an amendment to the preamble is in order when its purpose is to clarify it or to ensure the uniformity of the English and French versions.

We never dealt with sustainable development in any way, shape, or form in the amendments to the bill, so it is inadmissible.

So we're talking about the preamble. All the amendments have now been dealt with. We are on to the preamble. Is there any discussion on the preamble?

Mr. Woodworth.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

I agree with Ms. Duncan's reasoning that her amendment would be inadmissible, although I regret that the act as a whole, including the preamble, does not enshrine the principle of sustainable development as it is enshrined elsewhere in federal law.

The act does make reference to sustainable development, but it does not actually flesh out what is meant by “sustainable development“ in a way that would allow for proper consideration of social and economic considerations and needs. The definition refers only to development that meets the needs of the present and does not follow the usual formulation.

I think the witness from the chamber of commerce was correct to say that what should really be in the preamble of this act—I'm paraphrasing him—is that years of development of statutory and regulatory and environmental controls are now going to be bypassed by way of applications to the courts.

Even the removal of subclause 16(4) won't prevent this. Once we open the door to court action, the courts will simply imply the same provision as was found in subclause 16(4). I accept Ms. Duncan's opinion on this point. Introducing all these new lawsuits will vastly expand the powers of courts and greatly reduce the power of the legislature to deal with these matters. It will create uncertainty for developers, which can only have deleterious effect.

There is no good reason for this. We've heard several times that this act really doesn't change what's already occurring. I say that if that's the case, why do we want to pass it and introduce such uncertainty?

Those are my comments on the preamble. Thank you.

[The Chair, Conservative, James Bezan]

Mr. Sopuck.

[Robert Sopuck, Conservative, Dauphin—Swan River—Marquette, MB]

Having judges decide what a healthy and ecologically balanced environment is will be extremely difficult, because the concept itself is somewhat meaningless. There's no such thing as balance of nature.

The Ottawa River, which flows through this town, is that in balance or is it not? It has dams; it has all kinds of human development around it. Balance is clearly in the eye of the beholder.

To have the essence of the bill, which is the right to a healthy and balanced environment, not be clearly defined simply because it cannot be defined, which would be the basis of the bill, makes the whole thing problematic.

I will reiterate and I will defend the point that it's rural communities that will bear the brunt of this. I would remind Ms. Duncan that she doesn't represent a rural constituency. I do. My constituents are involved with logging, mining, agriculture, trapping, and forestry. When one looks at the environmental issues in this country and the environmental fights, the targets of all environmental activism, almost bar none, are rural resource industries. It's rural communities that will bear the brunt of this particular bill, and I stand by that.

[The Chair, Conservative, James Bezan]

Mr. Warawa.

[Mark Warawa, Conservative, Langley, BC]

Thank you, Chair.

I wanted to summarize my opposition to the bill.

The Osler analysis of Bill C-469 was that it “encroaches on areas of provincial environmental jurisdiction”; it “does not allow for the social, economic, and environmental pillars of sustainable development to be balanced appropriately”; it overlaps with aspects of existing legislation; and it removes numerous safeguards.

We heard from the witnesses, and they said that it was not good policy for Canada. They believed it was fundamentally flawed and that it could not be amended into good policy.

The Canadian Chamber of Commerce said that the lack of legal clarity will chill any investment consideration, that a fundamental precondition of commercial development, wealth creation, and economic acceleration is..... They said that it had completely failed the test of being a good bill and they don't support it.

We've heard there's been no aboriginal consultation on this. We've heard now that it creates classes of people that the bill will apply to; it limits judicial discretion; it's anti-sustainable-development; it creates American-style litigation; it duplicates, creates red tape, and kills jobs.

So it is not good for Canadians. It's not good for the environment. It is good for special interest groups.

[The Chair, Conservative, James Bezan]

Thank you.

Mr. Bigras, it's your turn.

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

Thank you, Mr. Chair. I would like to comment on what Mr. Sopuck and Mr. Warawa said.

Mr. Sopuck just said that industries with a significant presence in the rural regions were the first victims of environmental legislation. The opposite is happening. Environmental laws exist to protect the resources and ensure that the resource regions can survive and that the industries can continue to develop. The day we no longer have resources, companies will close their doors. That's the reality.

Here's another completely outmoded vision of development that makes people think that environmental legislation is an economic constraint. But it isn't. Environmental legislation exists to protect the resources and ensure that economic sectors, such as the forestry sector, can continue to develop. So I am opposed to this type of thinking. It isn't the intent of the bill or the meaning of sustainable development. I think that it involves a completely outmoded vision of development.

[The Chair, Conservative, James Bezan]

Ms. Murray.

[Joyce Murray, Liberal, Vancouver Quadra, BC]

Thank you, Mr. Chair.

I'd just like to comment that the social compact in Canada is very clear. The exploitation of resources for the common good and for the creation of jobs and wealth is important. But the compact also includes the protection of an ever healthy and ecologically balanced environment.

Fifty years ago, in communities by the Fraser River, it was normal for pickup trucks to pick up garbage and just load it into the Fraser River to get rid of it. We don't do it that way any more. This is another step in the acknowledgment of this important social compact. We can exploit resources and impact our environment, but we need to do it in a carefully balanced way so that we have a sustainable, healthy ecology.

This is an important statement of that social compact in Canada. It's one that gives citizens a greater sense of involvement and ownership and responsibility and rights around the environment and the impacts on the environment. My experience in British Columbia, working with fish and wildlife groups for almost three years in a very constructive and direct way, is that tens of thousands of residents of rural communities in British Columbia--and I know it's the same across Canada--have a huge investment in maintaining wildlife habitat, maintaining wilderness, and maintaining the capability of the environment to support the very kinds of things the members opposite are talking about: hunting, trapping, fishing, wilderness guiding, and so on. Those are the very people who will also be enabled and empowered and involved in ensuring that the social compact is carried out in a balanced and effective way in Canada.

So I'm supportive of this law as an expression of that evolution of our understanding of the need to have a balanced and ecologically healthy environment for all Canadians and residents.

[The Chair, Conservative, James Bezan]

We'll go to Mr. Sopuck.

[Robert Sopuck, Conservative, Dauphin—Swan River—Marquette, MB]

Nobody argues with the grand sentiments expressed by Ms. Murray. I certainly believe them as well. A clean and healthy environment is what we all want. What we're discussing is the means for getting there. And those of us on this side have a very different view from those on the other side.

In terms of rural Canada, I should make the point that those of us who actually live out there believe in stewardship and management of the environment, realizing that looking after the resources, such as our forests and our soil, are critical to the health and well-being of our communities. The key difference between those of us who live out there and those who don't is that we understand the need to use and manage the environment. It is the use and management of the environment itself that is more often than not the target of these activists.

Thank you.

[The Chair, Conservative, James Bezan]

We'll go to Mr. Scarpaleggia.

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

I just would like to make one point. Mr. Sopuck was talking about the employment effects of environmental action, and Mr. Bigras mentioned that we need to protect the resources to protect the economy in rural areas. I'm wondering if Mr. Sopuck doesn't see the link between environmental action and job creation, whether it be in urban centres or rural centres, where, for example, a firm might have to invest more resources to conform with an environmental regulation.

For example, if it became illegal for mining companies to dump their tailings in lakes, thereby killing freshwater lakes, and instead they had to build proper impoundment areas, one would think that maybe that would contribute to employment in the area in the construction trades, for example.

That's the whole heart of sustainable development, as we understand it, which is that good environmental policy is good economic policy.

[The Chair, Conservative, James Bezan]

Go ahead, Ms. Duncan.