Evidence of meeting #114 for Environment and Sustainable Development in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was see.
A recording is available from Parliament.
Conservative
Liberal
The Chair Liberal Deb Schulte
Yes, they're saying that they didn't need to change it in French. It covers both.
Conservative
NDP
Linda Duncan NDP Edmonton Strathcona, AB
I have a question. I see new proposed subsection 119(2.1) basically nullifying proposed subsection 119(1), because proposed section 119(1) is clear. It cannot be disclosed without written consent. Under the new proposed subsection 119(2.1), we're going to bring everybody together. In other words, as long as we consult you, we're going to nullify your consent.
If this relates to proposed paragraph 119(2)(b), which is for legal proceedings, why would the minister, the agency, the committee, or the review panel have any say whatsoever?
Once you're into litigation, you're before the courts. Surely you don't go back to the agency or the panel and deal with whether or not this information can be disclosed. It doesn't make any sense to me.
Vice-President, Policy Development Sector, Canadian Environmental Assessment Agency
It's further to what I explained earlier. Proposed paragraph 119(2)(b) exists because panels are considered to have the functions of courts as they can call witnesses together, in particular when they're working jointly with the life-cycle regulator to be able to meet the conditions of permits and things.
NDP
Linda Duncan NDP Edmonton Strathcona, AB
That's not my issue. Legal proceedings are outside of the review process. That's what a legal proceeding is.
Vice-President, Policy Development Sector, Canadian Environmental Assessment Agency
In this context, it's not a court proceeding as you're interpreting it. It's that the panels are able to call witnesses forward.
As I articulated earlier, if they are calling forward that information, first and foremost, in proposed subsection 119(1), the information is treated as confidential. Then in proposed paragraphs 119(2)(a), (b), and (c), it is noted where there is an exception to proposed subsection 119(1) and lays out the parameters for those exceptions.
As I explained earlier, what's being proposed here in LIB-63, new proposed subsection 119(2.1), is to ensure in the example—as I said—that, if there is going to be information disclosed, the parties are brought together to have a discussion with respect to that.
NDP
Linda Duncan NDP Edmonton Strathcona, AB
That's fine, but legal proceedings are legal proceedings, so it's way too broad a provision.
Legal proceedings, I think anybody would say they're in court. If you just said “in the proceedings of the assessment”, that's different, but I interpret “legal proceedings” as including those in court.
Vice-President, Policy Development Sector, Canadian Environmental Assessment Agency
I'll turn to the Department of Justice to explain the drafting of this.
Counsel, Department of Justice
Thank you.
Further to the explanation provided by Madam Loth-Bown, with new proposed subsection 119(2.1), the consultation that would take place would be that, whenever the information or indigenous knowledge is received in confidence, it needs to be provided for the purposes of “procedural fairness”. That's not the other half of proposed paragraph 119(2)(b) but the first half, which deals with “procedural fairness” in the context of the impact assessment. The other half, civil proceedings, is not being consulted on because that would be directed by the rules of court that are applicable in whatever legal proceedings this information may become relevant subsequently.
Therefore, new proposed subsection 119(2.1) is applicable only to “procedural fairness” in that moment related to the impact assessment.
Liberal
The Chair Liberal Deb Schulte
Linda, you might not agree but the experts have given us their opinion and I'll take that.
NDP
Linda Duncan NDP Edmonton Strathcona, AB
It doesn't say that. Legal proceedings are legal proceedings.
Liberal
The Chair Liberal Deb Schulte
I understand what you're saying, but we've heard the advice of the experts. On this one, I'm going to move on.
We're going to take a vote. To be clear, we're doing LIB-63, LIB-65, and LIB-65.1.
Conservative
James Bezan Conservative Selkirk—Interlake—Eastman, MB
Can we have a recorded vote, please?
(Amendment agreed to: yeas 5; nays 4 [See Minutes of Proceedings])
Liberal
Liberal
Darren Fisher Liberal Dartmouth—Cole Harbour, NS
Madam Chair, this is another housekeeping amendment to ensure that a notice of non-compliance under the IAA can reflect any amendments that may have been made to a decision statement.
If you look at line 23 on page 67, you'll see that this would replace “condition established under section 64” with:
condition established under section 64, amended under subsection 68(1) or added to a decision statement under that subsection,
It doesn't include conditions that may have been amended as a part of the minister's power under section 68 to amend a decision statement.
Liberal
Darren Fisher Liberal Dartmouth—Cole Harbour, NS
I'd like a recorded vote, please.
(Amendment agreed to: yeas 6; nays 3 [See Minutes of Proceedings])
NDP
Linda Duncan NDP Edmonton Strathcona, AB
At the provincial level, because the courts are clogged, because many of the parties to these reviews would prefer to just sit down and work it out, the tribunals have incorporated alternative dispute resolution—or ADR—in their processes, and that is exactly what is being proposed here, “with the consent of the parties”. It requires the consent of the parties who want to do the ADR to refer part of the review to ADR.
Rather than going to the courts and arguing about some provision of what is proceeding, it would be possible for the parties to enter into an agreement to go into ADR. It's not binding, but a review panel could take into account the results of the ADR and include that in recommendations or in their decision. The review panel must make the results of the ADR public subject to the consent of the parties, if it's going to be included in their ruling.
This was recommended as the bill should recognize and strongly encourage informal opportunities for participation that involve two-way dialogue and discussion, including the undertaking of mediation and other forms of alternative dispute resolution. Quite often what can happen is that if there's something highly contentious.... Well, you have a tribunal, but in this case, you might have a panel or even the agency doing the review, and they may say that if the parties think they can go off and resolve it and then come back with a resolution, they potentially will incorporate that. I think it's a sensible way to go. It seems to be the way most jurisdictions are going.
Liberal
The Chair Liberal Deb Schulte
Okay. That sounds reasonable. Shall the amendment carry?
They're not calling a recorded vote, so all those in favour...?
Conservative
Scott Reid Conservative Lanark—Frontenac—Kingston, ON
No, we are going to actually ask.... I was taking a moment to find out from the higher-ups whether we wanted to be recorded as being in favour or against.
