Environment Committee on April 1st, 2010

[Andrew Ferguson, Principal, Sustainable Development Strategies, Audits and Studies, Office of the Auditor General of Canada]

Our mandate is tied to the legislation.

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

Another thing surprises me about this strategy: the fact that certain departments are practically missing. It has always been agreed that for all sorts reasons, including direct control over taxation, the Department of Finance would play a crucial role in implementing sustainable development strategies. Treasury Board also has a very important role in the greening of government. I am trying to figure out where these two departments fit into the strategy that was presented to us, but they seem to be rather absent. But the commissioner has always been in favour of thoroughly integrating departments into the overall strategy.

Do you see the fact that the Department of Finance and Treasury Board are more or less missing as a disadvantage of the strategy that was presented to us over the past few weeks?

[Scott Vaughan]

Thank you.

If you do not mind, I will answer in English.

As you know, within the act there are 28 departments that are required to prepare strategies. However, at least in our informal count, there are 10 departments that are contained within the discussion paper, meaning there are 18—you've mentioned Finance Canada, and there's also Industry Canada, Justice Canada, Heritage Canada, CIDA, and others—that are not. Those departments have to fulfill or comply with the act. Do they have to comply with the act in the context of the four priorities that are identified in the strategy, and what does that mean more generally?

I think the second part of your question is something that we've given a lot of thought to; that is, the question of integration. As you know, Parliament, particularly in section 5, underscored the importance of integration, and the integration of the three pillars of sustainable development. But also in this act, section 3 focuses not on the context of integrating the three pillars but on environmental decision-making.

This is for us an important change—I'm not commenting whether it's good or bad, but it's an important change—from the traditional understanding of the three pillars of sustainable development, as well as what's in my legal mandate under Parliament from the OAG 1995 amendment, which is to integrate economic, social, and environmental issues.

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

In her October 2001 report, the commissioner of the environment and sustainable development said this:

There must be a Government of Canada perspective, which includes an agreed-upon timetable for implementation of a management system....

I assume that that statement from 2001 explains the document you gave us on March 24 on managing sustainable development. That document was supposed to have been given to the government.

Should a sustainable development strategy not include a timetable? How does your March 24 proposal encourage the government to set out a strategy that includes objectives and a timetable to achieve those objectives, not a series of targets and grandiose statements?

[Scott Vaughan]

I would not want to interpret what the government's next steps are in the implementation strategy, but my understanding from the act is that there is a timeline, once the strategy is completed, for them to begin the process, to go to completion, for the departments to do their strategies--a fairly clear timeline of three years, and then repeated the next three years.

On your question about whether there is an overarching strategy, yes, there is. Is it comprehensive? Yes. And is there a timeline? On the overall implementation, our reading of it is that the timeline is very clear. There is a three-year running obligation for the departments to be able to fulfill these.

[The Chair, Conservative, James Bezan]

Merci beaucoup.

Ms. Duncan—we have two today, so this is Ms. Duncan, the NDP critic.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Yes, and I'm always happy to see the other Ms. Duncan here.

Thank you, Mr. Chair.

Commissioner Vaughan, it's always nice to have you and your colleagues here. I really appreciate you taking the time.

In earlier questions, I think from Monsieur Bigras, you were referencing subsection 9(2), where you take a look at the goals, targets, implementation strategy, and so forth—in other words, measurables. How are you going to go about measuring the requirement under subsection 9(1), where you're supposed to evaluate the precautionary principal, whether the various departments and agencies are actually respecting the precautionary principal?

[Scott Vaughan]

To be honest, we know right now what the legal definition of the precautionary principle is. That paragraph references “shall”, which is as strong as it gets in legal language.

We are going through what our legal requirements are stage by stage. When the departments are beginning to go forward with their strategies, we would look at whether or not there is some evidence they have applied the precautionary principle within the context of that and the other paragraphs.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

One of the questions I put to the senior departmental officials when they were here presenting their initial cut on the response was.... I found it peculiar that the very purpose of this Federal Sustainable Development Act—and this is a laudable purpose—is “to provide the legal framework for developing and implementing a Federal Sustainable Development Strategy that will make environmental decision-making more transparent and accountable”. So it's very much intended that it's going to be a legally prescribed framework.

Unlike the Canadian Environmental Protection Act, which allows the Department of Environment to use a whole range of tools, like codes of practice, guidelines, and so forth, this law provides only one measure to guide the government in formulating that framework, and that is the promulgation of regulations under subsection 11(4). Yet those regulations have not been promulgated, and I was led to understand there was no immediate intent to promulgate any regulations.

I was wondering if you thought it might be somewhat helpful to have a more detailed regulatory framework setting the boundaries for some of the things the various agencies have to report under here.

[Scott Vaughan]

In looking at section 3, our interpretation from the advice we have is that the act provides the legal framework, so the act in itself is a legal framework.

What the government chooses to do among the options for taking action, whether it's pollution prevention or codes or regulations—and there's a suite of regulations and a decision-making tree—that would be a decision of the government based on its own risk analysis of what it needed, if it did need additional instruments in order to provide effective implementation.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Let me ask you a follow-up question to that. As a lawyer, I'm always looking for clarity, and the act supposedly is set out to provide clarity in how the government is to be accountable for delivering on sustainable development.

I would presume, and I would appreciate your response on this, that one of the measures you would look for to determine if the government were living up to its responsibilities would perhaps be the mandates that are actually given to a department or agency under legislation. For example, the mandate for the Minister of Environment is given under the Department of Environment Act. Very few people look to that, but go to the substantive laws, such as the Canadian Environmental Assessment Act and CEPA, but the actual powers of mandate, more or less, for the minister are under that act.

Interestingly, but not surprisingly, that act mandates the minister to take a variety of actions to protect the environment. That act does not include any provision requiring the minister to balance environmental protection measures with economic interests. Yet that is what the minister espouses daily in and outside the House as his mandate.

I guess my question to you would be, what do you use to measure what the mandates of the department are in delivering on its responsibilities for sustainable development?

[Andrew Ferguson]

Well, the mandates of the departments for delivering on sustainable development would follow from this act here, the SD act, as well as the provisions set out in the Auditor General Act, as well as the provisions of their own enabling legislation, which you mentioned.

So it would be a combination of all of those things, but generally when we're looking at the departments, we look at them from the perspective of individual programs and activities, and these may be driven by legislation or policy decisions. So we look at whether or not they're managing those requirements and commitments effectively.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

So presumably the policy would be consistent with legislation.

[Andrew Ferguson]

Yes, I would think so.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

I have time for one more quick question.

As I also pointed out to the department when it was here, I noted that in its initial draft report—and there are no page numbers so it's hard to reference this—it did give some initial indication on how it would report on a mix of policy tools basically related to compliance. As the commissioner would be aware, under the North American Agreement on Environmental Cooperation, Canada commits to effective environmental enforcement. As well, all of the agencies that deal with the environment have actually issued enforcement policies and strategies of how they are going to ensure compliance with legislation.

I was wondering if it occurred to you to look towards those kinds of policy documents—which actually aren't referenced in the document yet.

[Scott Vaughan]

Yes, we will. We're going to be looking at the whole thing. I think, as you say, compliance and enforcement are critical parts of a well-functioning apparatus, so that would not be excluded from looking at what the department said they're going to do. Then that would be critical to saying, if they're implementing it, how are they implementing it? If there is a regulatory function for which an enforcement expectation exists, we would be looking at that, and we have in the past on fish habitat. We reported to Parliament in May and talked about some of the gaps within the enforcement regime related to fish habitat. So enforcement is a critical area.

[The Chair, Conservative, James Bezan]

Thank you, and that's exactly seven minutes. Fantastic.

Everybody wants to get out of here. There's a long weekend coming up.

Mr. Woodworth, you have the last seven minutes.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Thank you very much, Mr. Chair.

Welcome to the witnesses. It's good to have you here, and we really do appreciate your work.

As Mr. Scarpaleggia was speaking earlier about the concern that the government might introduce a strategy like this with great fanfare and then not follow through on it, it sounded familiar to me. At first I couldn't think of where I had heard that before, and then I remembered the 2005 report of the sustainable development commissioner, which read:

When it comes to protecting the environment, bold announcements are made and then often forgotten as soon as the confetti hits the ground. The federal government seems to have trouble crossing the finish line.

I realized where Mr. Scarpaleggia got that concern of his, and it's understandable, too.

And you, Mr. Commissioner, in your report, mentioned that your office has examined and reported to Parliament on sustainable development plans, noting serious shortcomings.

I have a note that in 1998 the report from your office said, among other things, “the federal government is failing to meet its policy commitments”.

In 1999, the report talked about:

...additional evidence of the gap between the federal government's intentions and its domestic actions. We are paying the price in terms of our health and our legacy to our children and grandchildren.

Federal departments are divided on the degree and significance of risks posed by some individual toxic substances, the interpretation and application of legislation and the nature of their respective roles and authorities. This has led to indecision, inaction and strained relations among departments.

In 2000, the report said that “the federal government...continues to have difficulty turning that commitment into action.”

In 2001: “The continued upward trend in Canada's emissions demonstrates that the government has not transformed its promises into results.”

In 2002: “The federal government's sustainable development deficit is continuing to grow.”

In 2003: “...there is a gap between what the government said it would do and what it is actually doing.”

In 2004: “Why is progress so slow?”

And then there's the 2005 report that I mentioned.

In 2006: “It is increasingly clear that Canada will not meet its international commitments to reduce greenhouse gas emissions.”

Are those among the shortcomings that you mentioned in your comments earlier?

[Scott Vaughan]

Actually, the author of many of those reviews is Mr. Ferguson. He has been involved in reviewing these strategies for a long time. I'll ask Mr. Ferguson to respond and elaborate.

[Andrew Ferguson]

Well, I couldn't argue with much of what you've said. I haven't the exact quotes in front of me, but we did comment on a number of such weaknesses in past sustainable development strategies.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

After those long years of comments and no action, I noticed that within 18 months of our present government taking office, there was in fact a federal sustainable development act enacted, and here we are, not much more than 18 months after that, with a draft plan.

I realize you've probably had only a short opportunity for a brief overview, but based on your overview of this plan, will it begin to address the shortcomings that existed for so many years under the previous government?

[Scott Vaughan]

Let me say--and you're correct--that we've just received it about two weeks ago, so we're going through the process now. We're very careful in our review.

What I will say, and I said in the opening statement, is that this office has long commented on the need for a single overarching federal strategy, and this act, at least from the first read, delivers exactly on that. This has been a long-standing issue about stovepiping of different departments, so we viewed a single strategy as being a positive step.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

So you're referring to the integrative aspects of this proposed strategy, are you?

[Scott Vaughan]

I'm referring to the strategy in its entirety.

I think going into the question of integration is something more in the details, but the very existence of this represents the articulation of the federal government's view of sustainable development, as opposed to a single departmental view. That is something we see as an important step forward in addressing some of the longstanding problems.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Thank you.

I noticed in the report or discussion paper you delivered last week, whose title I've forgotten, that one of the things you included in your conclusion was that:

Managing sustainable development begins at the planning stage of the “Plan, Do, Check, Improve” management cycle. It involves considering interrelated environmental, economic, and social effects and considering policy and program objectives over an intergenerational time-frame. This integrated and long-term approach is a particularly challenging aspect of managing sustainable development.

I noticed that on page 12 of the government's strategy, there is a reference to the fact that:

Where the system has no mechanisms for continuous improvement, the Strategy implements the cycle of “plan, do, check, improve” that is incorporated in the EMS and CESI procedures.

Moreover, on page 5 of the report, there is a reference to the EMS procedure under the heading, “Linking Sustainable Development to Core Planning and Reporting”. The report refers to the “key process” of EMS “by which the federal government plans, monitors and reports on all of its activities”, involving five major stages.

I would be grateful for your comment on that. First of all, am I reading it right that the strategy is pretty congruent with your recommendation on that “plan, do, check, improve” approach?