Environment Committee on Feb. 15th, 2011

[Linda Duncan, NDP, Edmonton Strathcona, AB]

I find it interesting that from the other side of the table we keep hearing that this bill is all about litigating, that it's all about going to court. The Conservative members of this committee, when regrettably I arrived a few minutes late, voted down clause 12. We simply gave residents of Canada, Canadians, the right to participate. In fact, it would have imposed the duty of the government to ensure opportunities by Canadians for effective, informed, and timely participation in decision-making related to policies and law development.

From my perspective, that's one of the most important parts of this bill. The whole point is that communities have been frustrated that they have been cut out of decision-making at the front end and on too many occasions are then forced to have to resort to the courts to try to redress an impact that probably could have been resolved if they'd simply been at the table and been able to dialogue an alternative.

There are good examples of mechanisms put in place in the province I come from, Alberta, that former Premier Ralph Klein put in place: the Clean Air Strategic Alliance, which is a table to discuss decision-making on air pollution management, and later, a round table on water, the Alberta Water Council. Those are exactly the kinds of mechanisms that would be really useful at the federal level. That provision could have allowed for some innovation and going back to that kind of process, which frankly we used to have at the federal level and which has now disappeared.

So yes, Mr. Sopuck, I agree, grand sentiments aren't enough. The public wants the right to be at the table, at the advanced stages, in decision-making on developments that are under the total or partial authorization of the federal government. They want an opportunity to have their voice heard, whether they're for or against a development or whether they want to simply make recommendations for a different site, for different conditions on the development. Even when a decision was made at the time that may have been considering all interests, it may well be that something was not properly considered, something wasn't added.

There has been case after case where communities and first nations have gone to the courts and have won that ruling, saying that the government has not fulfilled its duty under the Environmental Assessment Act, the Species at Risk Act, or the Environmental Protection Act, and the courts have said the government must go back and take a second look at this and assert its responsibilities.

That's the whole point of this bill: to do the front-end work, to let people who are concerned have a seat at the table. Let their voices be heard, to seriously consider the other side of the scale. So if we truly believe in balancing environmental protection and economic development, we need to make sure we have every mechanism in place to make sure the voices and inputs are heard. It's only when that fails completely that regrettably people have to resort to the courts.

I believe in the division of responsibilities between the administration and the courts. That's what the foundation of a democracy is. I fully respect the appointments made to our courts. I fully respect the careful, thoughtful decisions they make on behalf of the citizens of Canada.

[The Chair, Conservative, James Bezan]

Mr. Calkins, you have just over a minute.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Thank you, Chair.

I just wanted to respond to what Mr. Scarpaleggia said in his comment, that "good environmental policy is also good economic policy". I agree with that notion, and the concept that he brought up in his particular example dealt with mines and the tailings ponds created during mineral exploration.

If he were to propose a motion for this committee to study a way to make recommendations to the government, to mitigate some of those concerns through either the Canadian Environmental Protection Act or the Fisheries Act, I would wholeheartedly welcome that. If he were planning to propose legislative changes to mitigate this or the adoption of new regulations along with any other investments that the Government of Canada may make so that we can clean up our environment, I would agree with Mr. Scarpaleggia.

The problem is that Mr. Scarpaleggia's premise says that good environmental legislation is also good economic legislation. I would disagree with him that this is good environmental legislation. Therefore, it's not going to be good economic legislation, and that's the premise we're operating from on this side, based on the witness accountability we had.

Everybody around this table shares a common concern for the health and well-being of our environment. That goes without saying. I don't believe this legislation is going to accomplish what Mr. Scarpaleggia's noble goal is, and I would be more than happy to work with him in a constructive manner in the future to address some of these concerns, because they are concerns shared by most Canadians.

[The Chair, Conservative, James Bezan]

Monsieur Ouellet.

[Christian Ouellet, Bloc, Brome—Missisquoi, QC]

Mr. Chair, I haven't spoken much during this debate because I felt that the government wanted to take on the fundamental goal of all legislation, which is to educate and provide a morality and values to the population as a whole. Even the legislation that prohibits theft is not made first with courts in mind. Legislation is made to tell people that they must not steal and that there will be consequences if they do.

At all stages of this bill, we have been told about what might happen in court and only about that. The statements are unbalanced. Rather than talk about the consequences of this bill on the entire population, we talked about the impact on Canada's legal apparatus. The discussions have focused only on that.

This is why I stepped out of the debate. I am not a lawyer and I do not understand the bill that way. I find it unfortunate that, for a government bill, the government absolutely wants to take away the citizens' right to speak and be the only entity to have a say. The debate is focused only on the legal aspect. I deplore working like this in committee.

[The Chair, Conservative, James Bezan]

Are there other comments?

I have one question for you, Ms. Duncan. This is your bill. If there were an organization—say friends of the forest or something like that—that decided that logging operations were removing trees that are a carbon sink and it would cause environmental harm to harvest those trees, they would be entitled to bring forward a legal action against those organizations and the governments involved in issuing those permits. What do you think the outcome of the legal case would be with your bill?

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Thanks for the question. It's a good question, Mr. Chair.

I can't pre-determine, because I can't anticipate that anybody would bring a case that simple. They would still be required to bring forward the case and make their case, and they're going to be seeking specific remedies. It will also be within the jurisdiction of the court within the confines of those remedies. Because provincial governments are the ones that authorize—the forests are owned by the provinces—it probably would not be within the ambit of the federal government to shut down that operation, unless there was some pre-existing federal law that required some kind of activity be undertaken; for example, if it was the last wren in the boreal forest and the last of the woodland caribou. It may be that they bring the action and they also enjoin the Canadian Environmental Assessment Act and say that there should have been a cumulative impact assessment.

You'd have to look at the nature of why they brought the case and what would happen. In that case, it may well be.... My guess is that the first thing they would do is judicial review, probably. I'm going on the basis of what the majority of cases have been in Canada. The vast majority have simply been judicial review by first nations, environmental organizations, community associations, fish and game associations, and so forth, or nature organizations, to require the government to deliver its responsibilities. So they'd want an interpretation of the law and then they'd want the government to deliver those if the court held that is the correct interpretation of the law.

It would depend on the extent. I can't say what the determination would be. I don't think the court would impose a duty that it didn't think was in the confines of the established law to begin with. I don't believe that, but then I don't know what would happen. You have to look in terms.... Remember that this act is simply on the federal government within the bounds of the federal jurisdiction. It's probably more likely.... I can't think of what kind of action that would be.

From my experience, I would say that the actions would be constrained. First of all, you have to find a lawyer who's willing to bring the case. My experience with lawyers is that it's hard to get them to bring a case. Organizations like Ecojustice prefer to bring cases that are winnable. They're also expensive to prepare and put together. So I can't say specifically what would happen in that kind of case. Somebody might do that, but from my experience I can't think of anybody who would bring a wide-open case like that.

You're going to want to have an experienced lawyer who understands the constraints of federal jurisdiction and the bounds of what the court would probably rule. As I said earlier, I think the most important part of this bill is the front end. It was with deep regret to me that that provision was struck down.

[The Chair, Conservative, James Bezan]

Thank you.

I see no other hands. The Conservatives don't have any time left.

[Mark Warawa, Conservative, Langley, BC]

How did that happen?

[The Chair, Conservative, James Bezan]

We'll move on. Shall the preamble carry?

(Preamble agreed to: yeas 6, nays 5)

We're on clause 1, the short title. Are there any comments?

(Clause 1 agreed to: yeas 6, nays 5)

Do we have any comments on the front page, the title?

(Title agreed to: yeas 6, nays 5)

We're now on the bill as amended. Do we have any comments?

Mr. Woodworth.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Thank you, Mr. Chair.

I would like to try to put all of our discussions into perspective.

We haven't really engaged in much consensus on this bill, but let me begin by saying that I hope there is a consensus that this bill is very revolutionary, that it does introduce into our law a number of new lawsuits. It introduces into our law any number of new concepts: for example, the concept of intergenerational equity, the concept of a principle of environmental justice, even in a certain way the concept of public trust, although it's not entirely new, certainly, given a different twist in this legislation from has been in the law previously.

So this will be a revolutionary new way of effecting environmental policy in Canada. And I don't say that to be complimentary to the mover of the bill, but just to point out a fact that, goodness gracious, we are enacting the first substantive amendment to the Canadian Bill of Rights. After 50 years of that iconic legislation being a benchmark in Canada, this bill is going to include a substantive amendment to it. So I hope we can all agree that this is a revolutionary change to Canadian law and environmental policy.

Some people are saying bravo.

I ask why we are doing this. What is our purpose? What need are we trying to address with this revolutionary overhaul of Canadian environmental law and policy? It's been stated by Ms. Duncan that, well, judicial review already occurs. Well, in one way she's right, but in another way she's overlooking what this bill does to judicial review.

Certainly judicial review already occurs, but it occurs in a balanced way, subject to a variety of checks and balances--I think someone used that phrase earlier--that are not found in this act. Indeed, our law already places a high premium on protecting the environment and it already gives citizens the right to participate in environmental policy. In fact, it already does a number of things that this bill purports to do.

In fact, in my experience the only citizens whose right to speak has been cut off, to refer to Mr. Ouellet's point earlier, are those who are opponents of this bill, because we have been prevented from speaking. We have been refused in this committee to hear additional witnesses. The opponents of this bill are the ones whose right to speak has been cut off.

In fact, our law in the Canadian Environmental Protection Act, for example, already allows a lawsuit to proceed in relation to environmental contraventions; however, it's very cautious and circumscribed, right? And among other things, it first requires the government an opportunity to investigate and resolve the issue in the same way that the Ontario Environmental Bill of Rights does.

So what's wrong with that? What complaints have we heard? Well, we've heard that it doesn't allow enough lawsuits. It discourages lawsuits. We've also heard from the very same witness that it's a good thing for the government to try to get in in advance of a lawsuit and mediate and investigate and resolve issues. But that very sensible circumscription is omitted from this bill.

In other ways this bill omits sensible circumscriptions. For example, the notion that to have standing one should have a direct interest in the matter that is being litigated has been tossed out by this bill. Anyone, no matter where they live or what interest they may have in a legal sense, is entitled to litigate under this bill.

This bill duplicates things that are already being done. We already have a petitions process that will look after a request for investigation. We already have the justice department that scrutinizes bills to ensure that they comply with the charter. Now the Office of the Commissioner of the Environment and Sustainable Development will also be doing that.

So I would characterize this bill as one that overreaches. If we were to go back and examine what the real complaints are here, is the whistleblower protection that we've enacted into Canadian law really inadequate? Does it leave out an important sector that should receive whistleblower protection? Well, if we were to examine that, as a responsible committee would, we might come up with some reasonable, implementable, and non-duplicative way of amending the existing law to remedy such a deficiency. That's the way a proper legislature should proceed; that's the way a proper legislative committee should proceed.

But simply papering over all of the existing processes that are intended to allow everyone's interest to be addressed and to impose overreaching and revolutionary solutions such as this, I have to ask, why are we doing it?

As Ms. Duncan so aptly put it in response to a question from the chair, even she can't predetermine what the results of a court challenge under this act will be.

In fact, farmers among us would say that if we adopt this bill, we're buying a pig in a poke. We really don't know what the results will be and where the courts will take this. We only know that we are transferring large areas of jurisdiction from cautious governmental agreement and regulation into the hands of the courts. Most problematically, in paragraph 19(1)(f), the courts will be empowered to “order the defendant to take specified preventative measures” if a judge determines that the government, i.e., the defendant, has somehow failed in its as yet uncircumscribed obligation to act as trustee of the environment. This is a wide-open door, and it behoves us not to enact revolutionary legislation of that nature unless there is a clear and pressing need to do so.

While there may be flaws in our existing environmental regime, there is no overall deficiency. We've been on the right track for the last 20 to 30 years. We've been doing good things. We should continue this course in a democratic fashion that hears from all stakeholders and arbitrates among them, rather than pushing it all over to the courts, where things are decided on a “king of the hill” basis, either you've won or you've lost, and there's no room for mediation or compromise. Judges will decide on the basis of winners and losers.

I have to remind committee members that we have to ask ourselves why we are doing this. What is the need we're trying to meet? Why are we overreaching in this fashion?

Quite frankly, none of the evidence suggests any reason, any need that deserves to be met in this revolutionary fashion. So I plead with members to take a step back and not plunge us into this kind of an exercise.

[The Chair, Conservative, James Bezan]

Thank you.

Are there comments?

Shall the bill as amended carry?

(Bill C-469 as amended agreed to: yeas 6; nays 5)

Shall the chair report the bill, as amended, back to the House?

[Some hon. members]

No.

[The Chair, Conservative, James Bezan]

All in favour?

[An hon. member]

Recorded vote.

[The Chair, Conservative, James Bezan]

Recorded vote.

(Motion agreed to: yeas 6; nays 5)

Finally, shall the committee order a reprint of the bill as amended for the use of the House at report stage?

[Some hon. members]

Agreed.

[The Chair, Conservative, James Bezan]

We're going to go in camera so we can discuss Ms. Duncan's motion, so we'll suspend for a few minutes.

[Proceedings continue in camera]