Environment Committee on March 8th, 2021

[The Chair, Liberal, Francis Scarpaleggia]

Welcome. We got started a bit late. As Mr. Albas mentioned, I planned to go to 6 p.m. but there was no unanimous consent, which is Mr. Albas' right, of course. We can continue as long as we have quorum, as long as we have four members, including the chair, and two opposition parties are represented. We'll have to see what happens at 5:30 p.m., but my intent is to go to 6 p.m. even if some members have to leave, as long as we have quorum.

I would like to welcome our witnesses.

This is the 16th meeting of the House of Commons Standing Committee on Environment and Sustainable Development. Today, pursuant to Standing Order 108(2) we're meeting by virtue of a motion adopted by the committee on February 1. The committee is meeting on its study of the commissioner of the environment and sustainable development.

To ensure an orderly meeting, I would like to remind everyone of the following rules.

Members and witnesses may speak in either official language. Interpretation services are available. You have the choice to listen in either official language. You'll see there's a little icon at that bottom where you can choose English or French. You don't have to change the icon when you switch languages.

Before you speak, please wait until the chair recognizes you. All comments should be addressed through the chair. When you are not speaking, please put your mike on mute.

Today we will have two panels, essentially each 55 minutes long. I would like to welcome our first panel of witnesses who will have five minutes of opening remarks followed by rounds of questions from members. Today we have with us Paul Fauteux, attorney, and accredited mediator and arbitrator. We have Corinne Le Quéré, professor, climate change science, University of East Anglia. We have Richard Lindgren, counsel, Canadian Environmental Law Association.

We'll start with Mr. Fauteux.

[Paul Fauteux, Attorney and Accredited Mediator and Arbitrator, As an Individual]

Thank you very much, Mr. Chair.

Thank you for this opportunity to contribute to the committee's work.

I served the Government of Canada as a diplomat and senior executive from 1980 to 2010. I have since been practising law, mediation and arbitration with CMKZ.

International environmental law was one of the connecting threads of my career from 1981, when I prepared the adoption by the United Nations of a program for the development of environmental law, to 2004, when I left my position of director general of Environment Canada's Climate Change Bureau.

So I am sensitive to the role that the commissioner of the environment and sustainable development could play—a role I believe is underused—in ensuring that Canada's policies are up to the environmental challenges facing our planet, with the climate emergency being first and foremost among them.

Therefore, I welcome MP Collins' initiative to dedicate today's hearing to the possibility of the commissioner of the environment and sustainable development becoming an officer of Parliament. There are many reasons why I think this is an excellent idea. Given time constraints, I will briefly mention only four.

First, it was the original idea. The position was originally conceived as independent when the Liberal Party promised it in the 1993 election. But when the Chrétien government created it two years later, it placed it in the Office of the Auditor General, as a subordinate appointed by the auditor general.

Second, history demonstrates the limits to the effectiveness of the commissioner's work that arise from his subordination to the auditor general. You will recall the conflict that very publicly opposed Auditor General Sheila Fraser and Commissioner of the Environment and Sustainable Development Johanne Gélinas in 2007. The latter was publicly presenting her devastating report on the federal government's record on fighting climate change, when she learned through the media that the former had just ended her mandate. Ms. Gélinas insisted on tabling her own report with parliamentarians and defending and explaining it herself. That same year, your committee adopted a motion recommending that the commissioner be made an officer of Parliament, supported by the Liberal Party, the Bloc Québécois and the NDP, but the Harper government didn't act on it.

Third, the chronic underfunding that has plagued the Office of the Auditor General for 10 years now also limits the commissioner's effectiveness. As Karen Hogan stated last May: “Resource constraints strain our ability to fulfill our mandate at the level we would like it to be.” From 2010 to 2020, the Office of the Auditor General went from 27 performance audits per year to 14. This lack of resources, which hinders Ms. Hogan's work, hinders even more so the work of her subordinate Mr. DeMarco. The next federal budget should ensure that these two functions are carried out by two officers of Parliament, each with predictable and permanent funding consistent with their mandate.

Fourth, and in my opinion the most important reason to finally make the commissioner of the environment and sustainable development, 26 years after the creation of the position, an officer of Parliament is the urgency of climate action.

Let's be clear. The results achieved by successive Canadian governments in the fight against climate change, as opposed to their promises, are a national disgrace. Every time Canada has set a target to reduce its greenhouse gas emissions, it has missed it because the emissions have continued to rise.

It is far from certain that the strengthened federal climate plan, announced last December, will enable Canada to meet its agreed upon target under the Paris Accord to reduce its greenhouse gas emissions by 30% from 2005 levels by 2030.

In fact, the 2021 edition of the climate change performance index shows that, not only does Canada remain firmly at the bottom of the pack, but its relative position is slipping: while last year, only six of the....

[The Chair, Liberal, Francis Scarpaleggia]

I apologize for interrupting you, Mr. Fauteux, but your five minutes are up. You will understand that our time today is limited. You will certainly have an opportunity to add information when answering questions.

[Paul Fauteux]

Very well, Mr. Chair.

[The Chair, Liberal, Francis Scarpaleggia]

Ms. Le Quéré, go ahead.

[Prof. Corinne Le Quéré, Professor, Climate Change Science, University of East Anglia, As an Individual]

Thank you, Mr. Chair.

Good afternoon, everyone. Thank you for having me today.

I will pick up where Paul Fauteux left off. I have three points to make. They are all related to climate action.

My first point is that it is clear that the governance of climate action in Canada is not working and needs to evolve. Canada has not achieved its climate objectives over the past 20 years. As part of my research, I keep track of carbon emissions, the primary driver of climate change. Of the G7 countries, Canada is the only country whose emissions are not decreasing. They are 20% above the 1990 level. In the last decade, they have risen again. Emissions decreased in at least 43 countries while their economies grew. Climate policies are working in other countries, but they are not working in Canada. Therefore, the governance of climate action needs to be considerably strengthened. In the documents that I submitted, you have a graph of the G7 countries.

My second point is that strong climate governance is good for governments. I want to share here my experience of working with France. In 2018, France established the High Council on Climate, whose main task is to evaluate the government's climate strategy. I chair this high council. I can testify to the positive influence it has had. As soon as it was installed, it helped clarify the debates in France and the focus on the issues that really mattered.

The high council has provided robust evidence and increasingly specific information on blockages to progress, which the government has been able to act on. It has provided transparency and accountability. It has increased public support for climate action. The council in France and similar independent bodies provide mechanisms to ensure that expert voices are heard. They provide the justification and legitimacy needed to put forward ambitious actions, should governments wish to.

My third point is that we know what good climate governance looks like. We now have from around the world a lot of experience of countries where it has worked. The U.K. Climate Change Committee, on which I sit, is the oldest of such committees, and the U.K. has been the most successful in meeting its climate targets. In fact, its emissions have decreased 28% in the last 10 years alone. Canadian emissions increased by 3% during that time period.

Based on experience in other countries, here are the things that have been demonstrated to work: annual reviews of progress made by a fully independent body; a direct voice to Parliament; a duty from government to respond to these progress reports annually; interim goals that are set well in advance; five-year carbon budgets used by the U.K. and France to fix their levels 15 years in advance, providing clear signals to businesses and the public; and the provision of advice to rectify policies should they not meet their target.

A strong support team is needed to deliver these tasks. That is a team that has expert technical, scientific, social and economic expertise that is needed to unpack the issues. That is a team that has sufficient and protected resources, and that can determine and conduct their own work program.

The motion discussed today, to make the commissioner of the environment and sustainable development an independent officer of Parliament, goes in the direction that has worked in other countries. It would be a first step toward putting in place the governance needed to guarantee—and here I say “guarantee”—that Canada's climate targets are met.

Thank you.

[The Chair, Liberal, Francis Scarpaleggia]

Thank you, Professor Le Quéré.

We now go to Mr. Lindgren.

You have five minutes.

[Richard Lindgren, Counsel, Canadian Environmental Law Association]

Good afternoon, Mr. Chair, and members of the committee.

My name is Richard Lindgren. I'm a staff lawyer at the Canadian Environmental Law Association, CELA. I'd like to thank the committee for this opportunity to speak to an important question: Should the commissioner of the environment and sustainable development become an independent officer of Parliament? In CELA's opinion, the answer to this question is yes, based on our involvement and our experience with the environmental commissioner of Ontario under the province's environmental bill of rights, EBR.

In taking this position, CELA is not being critical of the excellent work performed by the federal commissioner over the years. To the contrary, we greatly appreciate the reports tabled by the federal commissioner within its current mandate, as I explain more fully in the brief that I filed with the committee last Friday afternoon.

By way of background, CELA was appointed to the minister's task force that helped to draft the environmental bill of rights here in Ontario. I was honoured to be CELA's representative on the task force. Very quickly, the task force ran into the question of how we can best ensure environmental oversight and accountability under the EBR. The office of the provincial auditor general was considered as an option. We also considered using the courts or legislative committees to hold the government accountable for environmental matters under the EBR. But in the end, the task force recommended that the EBR should establish the environmental commissioner as an independent officer of the Ontario legislature.

We also recommended that the EBR should contain a broad list of powers, duties and functions for the environmental commissioner, and these task force recommendations were included in part III of the environmental bill of rights when it was enacted in 1993 by the Ontario legislature. Thereafter, I think it is fair to say that the environmental commissioner made full use of its powers under the EBR to not only conduct environmental audits but to also advocate for improvements in Ontario's environmental law and policy framework.

Overall, we regard the environmental commissioner's 25-year track record under the EBR as positive, effective and transformative.

Unfortunately, the Ontario government abolished the office of the environmental commissioner back in 2018, despite considerable public opposition and concern. Nevertheless, CELA recommends that consideration should be given to reconstituting the federal commissioner as an independent parliamentary officer. If this recommendation is acted upon, it would have to be done by way of new legislation, not more amendments to the Auditor General Act.

In addition, Mr. Chair, there are five fundamental factors that need to be addressed if the federal commissioner's office is going to be recast as an independent office.

One, the commissioner should be appointed in a non-partisan manner by Parliament for renewable fixed terms and should only be removable for cause by Parliament.

Two, all the commissioner's duties, responsibilities and obligations should be clearly entrenched in law.

Three, the commissioner must enjoy the same power as the Auditor General to compel production of documents, obtain access to information and examine witnesses.

Four, the office will need to be staffed with senior and experienced persons with training and expertise in various disciplines.

Five, the office will need sufficient budget allocations from Parliament in order to fully carry out its statutory mandate.

In conclusion, CELA recognizes that there may be pros and cons associated with restructuring the federal commissioner as an independent officer. However, based on the EBR track record in Ontario, we maintain that the advantages outweigh any perceived disadvantages.

Those are my opening remarks, Mr. Chair. I look forward to your questions.

[The Chair, Liberal, Francis Scarpaleggia]

Thank you, Mr. Lindgren.

We will begin the first round of questions with Mr. Albas.

[Dan Albas, Conservative, Central Okanagan—Similkameen—Nicola, BC]

Thank you, Mr. Chair.

Thank you to all our witnesses for making the time to be with the committee to talk about this important topic. Obviously, time is limited, given that this is only a one-day hearing.

I will start by asking a question to our witnesses just in general.

First of all, in terms of the work done by the Auditor General overall, I would say it is very much a trusted institution. I would also say that the environment commissioner has been doing very good work in spotlighting many things under federal control, even doing some work on the climate initiatives of different governments.

Has there been any issue with the work done by either the Auditor General or the environment commissioner that you can recall?

I'd like to hear from all three panellists, please.

[Richard Lindgren]

Mr. Chair, perhaps I'll start, and then my fellow panellists can jump in.

I would say there's consensus that the federal commissioner has duly and properly exercised his or her mandate under the legislation. The problem is that the mandate is limited. If you have occasion to look at the website of the Auditor General and the federal environment commissioner, there's an express recognition that the merits of government environmental policy are not examined, reviewed or discussed by the federal environment commissioner. Instead, they simply track what the government proposed to do and what it ended up actually doing.

That's important. It's important to hold government feet to the fire. However, I certainly envision an independent environmental commissioner who has more of a policy role. That's consistent with the earliest versions or conceptions of an independent environmental commissioner. He or she should be able to critically review the sufficiency or the merits of government policy, and not just simply do after-the-fact money-for-value audits or performance audits.

[Dan Albas, Conservative, Central Okanagan—Similkameen—Nicola, BC]

Mr. Lindgren, before we go to the next witness, I want to ask you about that point.

When we have discussions about what government should do, we have the government and then we have the House of Commons, various members, whether they support the government or are opposition. My understanding, though, is that through public accounts Parliament decides what the measure should be, and then we check with the Auditor General and the environment commissioner on whether that is being done.

By suggesting that the environment commissioner should be put in a role of actually defining under what terms those decisions are made, are you not suggesting that it would supplant politicians and electoral accountability?

[Richard Lindgren]

No, and I look to the Ontario experience to support my position.

It's obviously up to Parliament to decide what policies, programs, and so on, get implemented, but I think the parliamentarians would definitely benefit from the expert policy review and critique that might be provided by an independent parliamentary officer.

Ultimately, MPs are still making the decision on policy, but the credibility and the effectiveness of that policy would be enhanced if you had an expert independent officer providing advice.

[Dan Albas, Conservative, Central Okanagan—Similkameen—Nicola, BC]

Okay. Maybe we'll move to the other witnesses, but my experience here has been that we always hear about a democratic deficit where members of Parliament....

I'm all for getting better information and then having a debate about those things. I think anything that supplants members of Parliament from that role of debating policy is dangerous.

Maybe we'll move to the next witnesses, because I'd like to hear from them as well.

[Prof. Corinne Le Quéré]

If it's not the job of the commissioner of the environment and sustainable development to check that Canada meets its climate target, then whose job is it? If that person has made it his or her job, then how come the climate targets are not achieved?

[Dan Albas, Conservative, Central Okanagan—Similkameen—Nicola, BC]

That's a great question.

With all due respect, members of Parliament do come to a decision. The government does end up presenting a plan. We then count on the Auditor General and the environment commissioner to report on whether those goals are being met.

That's the question here. It really should be elected officials who represent the public who should be having these debates, and we should then be reviewing whether those resources are being spent in order to achieve what the laws that we pass come forward with.

[Prof. Corinne Le Quéré]

Not being involved in Canadian politics, I cannot answer your question. All I can say here is that from my experience working with other countries, clearly there is an issue with the governance and how the trajectory of emissions is being verified in Canada. My understanding is that this is the person who should be verifying that Canada meets its objectives.

[Dan Albas, Conservative, Central Okanagan—Similkameen—Nicola, BC]

Again, though, we have an environment commissioner to evaluate whether or not we are actually making substantive progress. Why not have a jobs commissioner, if we're going to start having someone who actually starts proposing things?

At the end of the day, quite honestly, I think that it's elected officials who need to be presenting the concerns of Canadians and government then needs to bring forward goals and programs to do it.

I appreciate you saying you don't know Canadian politics as much. I wish more witnesses were as frank.

Maybe we'll get the other witness to—

[The Chair, Liberal, Francis Scarpaleggia]

Mr. Albas, your time is up.

We will continue with Ms. Saks.

[Ya'ara Saks, Liberal, York Centre, ON]

Thank you, Mr. Chair.

Thank you to all our witnesses who have joined us here today to discuss this informed process.

I'm rather new to this committee and to Parliament. This conversation about the role of the commissioner of the environment is quite important to me, given that I was only elected a few months ago. I appreciate all of you being here to give me a better understanding of context.

I'm by no means a Conservative, but I do think that when we're proposing new roles or changing the existing structures we need to carefully consider what already exists, what works well, what we need to improve—which is in part why we're here today—and whether the wholesale conversion or minor changes that some of you have already alluded to are best suited to addressing the concerns.

I would like to point out that the government did include permanent funding in the 2020 fall economic statement towards the Auditor General for the environment commissioner's work, which is an added layer to this discussion.

My understanding is that the officers of Parliament operate independently of the government. They have protected budgets, their own staff and report directly to Parliament. From what I've seen so far, the current commissioner of the environment has those powers and is housed within the Auditor General's office in the structure that we've discussed.

When we're looking at the commissioner's current role, what do you see as working well already? What isn't working? What could be improved upon?

I'd like to start with Mr. Lindgren.

[Richard Lindgren]

I appreciate that there has been a recent budget or cash infusion to allow the commissioner to do some additional work. That's great. That might translate into an increased number of performance audits and related work. That's commendable. As Mr. Fauteux pointed out earlier, the number of audits and reports have declined somewhat over the long term. We're hoping that, on a go-forward basis, this funding is going to be secure and will allow the commissioner to do more good work.

However, as was pointed out earlier, the mandate is limited. It's not a policy review. It's not an opportunity for the environment commissioner to identify shortcomings or gaps in federal environmental law or policy framework. That's where I think this needs to go. It's kind of like the Wayne Gretzky quote that says don't go where the puck is; go to where it's going to be. I think that's what we need to do for the environmental commissioner. Let's not just do after-the-fact evaluations of whether sustainable development targets, plans or time frames have been met. That's important, but it's not enough.

That's why I think we need to think outside the box in terms of reformulating the role of the federal commissioner.

[Ya'ara Saks, Liberal, York Centre, ON]

Thank you for that.

I have an added layer to that question and then perhaps we'll go to Mr. Fauteux. I can see he wants to step in as well.

I hear what you're saying, but there isn't a level of trust. My colleague, Mr. Albas, alluded the work of the Auditor General and the fact that these audits do need to be removed from policy for that reason—so they can be trusted audits. I'm a little bit concerned that we can veer into the politics when we start to discuss policy. It affects the impact of the commissioner's work.

[Richard Lindgren]

I'll answer briefly, then perhaps Mr. Fauteux could jump in.

I would have to disagree with the premise of your question. If your suggestion is that you can't do environmental or performance auditing and perform a policy role, I think that's manifestly untrue. I don't think we have to look any further than what the environmental commissioner did here in Ontario for 25 years. For a quarter of a century, that office successfully combined both an auditing function and a policy function.

I don't accept the premise that it's one or the other. You can do both.

[Paul Fauteux]

I would certainly agree that you can do both, and to harken back to Mr. Albas' concerns about democratic deficit, I don't think, and certainly I haven't heard any suggestion by any of the three panellists today, that the power of decision-making should be given to the commissioner. The commissioner would hopefully be, under a new, improved and strengthened mandate as an officer of Parliament, an independent expert providing advice to Parliament, to government and potentially to the public.

Much has been said, and, Mr. Lindgren, you alluded repeatedly to the limited nature of the mandate. The mandate as it currently stands is a line and a half in the Auditor General Act, more specifically subsection 15.1(2), and it says that the commissioner helps the Auditor General to comply with his functions with respect to environment and sustainable development.

It is an extremely narrow mandate that has produced, unfortunately, limited results, and picking up on Dr. Le Quéré's examples of what has worked elsewhere in countries that have succeeded in reducing their emissions as opposed to Canada, I think we should look to those examples. She mentioned the U.K. and France. New Zealand also has an independent commissioner of the environment directly reporting to Parliament who has been doing excellent work and whose mandate is much broader than the commissioner's currently is in Canada. I think that would be another useful model.

Thank you.

[The Chair, Liberal, Francis Scarpaleggia]

You have only about 15 seconds, Ms. Saks, for a comment.