Thank you, Mr. Chair. Good afternoon to all members of the committee.
My name is David Wright. I am an assistant professor with the faculty of law at the University of Calgary. Thanks so much for the invitation to speak to you today on this topic.
Let me begin by saying that it's refreshing to speak about climate with you today, because the weather in Calgary is absolutely putrid, with solid-state precipitation and single digits. It's better just to focus on climate today.
By way of background, my research is focused on environmental and natural resources law, with an emphasis on climate change. I'm a professor, but also a lawyer. I have been called to the bars of Nova Scotia, Nunavut and the Northwest Territories. I've been engaged in this field of climate law policy for about 15 years or so.
I was also with the office of the federal commissioner of the environment and sustainable development for five years, from 2011-16, and so I note with interest the revived role of the commissioner set out in Bill C-12.
Turning to Bill C-12, I'll begin by saying that in my view the bill represents a significant step forward in Canadian climate law and policy, and provides a much-needed basis for better coherence across the law and policy landscape. However, there are clearly areas for improvement.
My brief opening comments to you today will focus on three areas: one, federal-provincial jurisdiction; two, justiciability; and three, the role of the commission.
On jurisdiction, in practical terms, as you all know, Canada's Constitution is silent with respect to environmental matters, including climate change, and that results in overlapping jurisdictions between federal and provincial governments. The federal government has ample jurisdiction to act on climate change and to address climate change, and presently exercises that in a number of ways, including carbon pricing, as the Supreme Court spoke to just weeks ago.
The federal government also occupies a unique vantage point with respect to coordinating all jurisdictions of the federation. However, as the minister noted in his opening remarks to this committee on Monday, the federal government can't impose a top-down decarbonization agenda. It cannot, for example, compel provinces to take on any specific emissions reduction targets.
As such, a climate accountability statute like this can go only so far in terms of detailing what the entire federation can do to achieve Canada's emissions reduction commitments. It's clear that Bill C-12 was carefully drafted with a view to these constitutional and jurisdictional constraints, while the provisions focus almost entirely on federal measures. However, even with these constraints, in my view Bill C-12 can be improved in several ways and still respect the jurisdictional lanes.
First, the bill ought to be amended to make information about measures undertaken by provinces and territories a mandatory part of the emissions reduction plan required under section 10—and I can elaborate on that in the Q and A.
Second, and similarly, I suggest adding explicit mandatory requirements for the progress reports and assessment reports that include contributions of the provinces and territories to bring those gas emission reductions. To be clear, those suggestions would impose no obligation on provinces, just information gathering activities on the part of the federal government. There's certainly no jurisdictional or constitutional barrier to that. Again, in the Q and A, I can get into the rationale behind those suggestions.
On justiciability, the key question here, really, is the extent to which Bill C-12 includes or invites accountability through judicial scrutiny and remediation, in addition to the obvious political, parliamentary and public accountability woven into the proposed regime. In short, there's unpredictability on this front given the bill's present form. The key question for this committee and for those engaged in revising the bill—and I don't envy you your line-by-line task next week—is the extent to which such unpredictability ought to be managed and the extent to which it can be managed.
Here's what I mean. It's fairly simple to clear this up by including an explicit provision that provides for judicial review and remedies with respect to any obligations under the act, and I understand that the committee has received several proposals on this. It's a relatively straightforward option. I recommend it. It would virtually eliminate the justiciability concerns that you've been hearing about.
From there, though, things get a little more complex—the alternatives are complicated—and that's really engaging in amendments to specific provisions to at least reduce the basis for a court to find all or part of the act not justiciable. As you're likely aware, there was a Federal Court case on point, on this matter, dealing with the Kyoto Protocol Implementation Act. That decision was affirmed by the Federal Court of Appeal.
In the interests of time I won't go into details—I'll leave that to the Q and A—but the upshot really is that the duties in the bill need to set out clear, mandatory language that provides courts with objective legal criteria to be applied. The bill does a reasonably good job of that, better than the KPIA did, but several provisions could be improved.
On a final note, in my final seconds, on the role of the commissioner, in my view, revival of this independent oversight role is a welcome feature of Bill C-12.
The office of the commissioner is a strong, credible, high-capacity office that can add value and contribute to the proposed transparency and accountability regime. I have a few small suggestions on that front, though, in relation to section 24.
In conclusion, in my view, Bill C-12, if it were to become law, would be an important, laudable step that will improve coherence across Canadian climate law and policy. However, as currently structured, it may not fully withstand shifting political winds—and really, that is the intention behind this initiative. In this way, the bill, as proposed, may not live up to expectations.
Thank you, Mr. Chair.
