Environment Committee on May 20th, 2021

[The Chair, Liberal, Francis Scarpaleggia]

Thank you. We're a bit over time.

We will go to Madame Pauzé.

[Monique Pauzé, Bloc, Repentigny, QC]

Excuse me, Mr. Chair. Before I use my speaking time, I want to point out that, with Mr. Heaps' microphone, we still can't get any interpretation.

I want to know whether Mr. Heaps will be joining the second panel, perhaps with a different microphone, or whether this is happening now.

[The Chair, Liberal, Francis Scarpaleggia]

No, that should happen after this round, when we get to the opening remarks of the second panel.

[Monique Pauzé, Bloc, Repentigny, QC]

So I can ask Mr. Heaps questions when we meet with the second panel.

[The Chair, Liberal, Francis Scarpaleggia]

Exactly.

[Monique Pauzé, Bloc, Repentigny, QC]

Perfect.

My question is for Mr. Wright.

In November, I think, you conducted a preliminary review of Bill C-12 and brought up several things. You said that it was impossible to bind future Parliaments because of our democratic system, which we inherited from the United Kingdom, and our federal system.

You proposed earlier that part of subsection 10(3) be moved to subsection 10(1). Is there another solution, which would consist of reproducing the European Union Burden Sharing Agreement here? Would that agreement apply here?

[Prof. David V. Wright]

There are two levels of thinking along the lines of “binding” in this context. That's not a particularly helpful concept here, but let's tackle it.

First of all, this statute is legally enforceable, and that's represented or indicated by the mandatory provisions throughout. However, just like any law that the federal government enacts, it's open to a subsequent federal government to repeal that act, just as we saw with the initial federal environmental assessment statute. In that same way, future governments can repeal it, just as the KPIA was repealed.

With regard to the latter, on perhaps a more interesting and more practical level, this statute can only go so far, because it cannot impose emission reduction targets or specific budgets on a province-by-province level. Rather, the elephant in the room in Canada for decades has been the lack of formal agreement among all provinces, territories and the federal government with respect to who is going to reduce emissions by how much.

One option is to adopt what the European Union has adopted, which is, in some realms, called a burden-sharing agreement, but today is typically called an effort-sharing agreement, which sounds a little less scary, a little less burdensome. Either way, it is a negotiated agreement whereby all those jurisdictions—in Canada we have national jurisdictions and provinces—indicate explicitly what their contributions are going to be to emission reduction. Another way to think about it is that it's almost like a mini Paris Agreement within the Canadian federation.

You can't set that out in Bill C-12, but you can create a sort of portal that recognizes that this might be happening. That could be included in, for example, subclause 10(1), with information about provinces and territories. You can at least create the platform and consistency for that kind of burden-sharing agreement.

The last thing I would say is that this is almost like a pan-Canadian framework circa December 2015, but with emission reduction targets signed by all jurisdictions.

[The Chair, Liberal, Francis Scarpaleggia]

Thank you.

Mr. Bachrach is next.

[Taylor Bachrach, NDP, Skeena—Bulkley Valley, BC]

Thank you, Mr. Chair.

I have a question for Ms. Peel that follows the questions of my colleagues around a just transition.

The federal government promised a just transition act at the same time as the climate accountability legislation, but we've seen very little progress towards that. When the minister appeared before this committee last week, I asked him a question, and in his answer, he was quite noncommittal about the current status of that initiative. He did allude to some conversations and consultations going on with labour.

From your perspective, have you seen any sort of movement or progress on the government's side that gives you a sense that it's serious about bringing forward a just transition act as promised?

[Tara Peel]

Well, it's difficult to speak to intention. I will say that yes, there are discussions happening, conversations happening. It likely would have been preferable to have these two pieces of legislation proceed in tandem so that we have the milestones that drive the just transition and the just transition that drives the ambition to reach those milestones. I think that is the ideal way it would work. At this point, it exists in the minister's mandate letter. I certainly know that my boss is in discussions frequently, but there isn't, to my knowledge, any move to formalize the introduction of that legislation.

That promise, I think, was very meaningful to workers. It was also meaningful to people in the labour movement who care a lot about climate ambition, want us to get there, and want to know how fast and how far we have to go. The challenge of not having concrete just transition plans is that people are vulnerable to those forces that would have us slow down and turn back.

As I said, it's hard to speak to intention. There are certainly conversations happening, but we look forward to seeing this legislation.

[Taylor Bachrach, NDP, Skeena—Bulkley Valley, BC]

Which other countries have led the way when it comes to just transition?

[Tara Peel]

I would say that Canada certainly took a leadership role when we implemented the just transition task force for Canadian coal power workers and communities. As you know, that was co-chaired by CLC president Hassan Yussuff. I was fortunate to be a member of that task force. Meeting with these workers was very meaningful. I don't want to talk too much about that project, because it's a different project, but it's importantthat there is still work to be done on the recommendations of that task force.

Scotland is doing some interesting work on just transition. New Zealand is doing some interesting work. There are very sector-specific examples in Australia.

[The Chair, Liberal, Francis Scarpaleggia]

Thank you. That gives us an idea.

Go ahead, Mr. Albas.

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

Mr. Chair, I will be sharing my time with Elizabeth May, if I could pass the floor to her.

[The Chair, Liberal, Francis Scarpaleggia]

Of course.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Coming back to the question of justiciability, I want to go to Professor Wright on this.

It's a pretty modest change, but one of the amendments I'm thinking of bringing in would be to change the wording so that the minister “must” meet the target. I would like your thoughts on it. It's not a full framework for how you would hold a minister to account, but it would set up the possibility for at least going through administrative law to Federal Court for mandamus.

I wonder if you have any thoughts on that. There certainly are more elaborate ways that other countries have brought forward, but as a modest amendment, what would you think of that?

[Prof. David V. Wright]

Thanks for the question.

In the absence of dedicated provisions that provide an avenue for judicial review and remedy, that's a decent option, and it would signal to the courts that there is an overarching duty to meet the targets. There are a couple caveats, though.

One is that it is difficult for the federal government to include such a blanket provision, because it implicates the provinces. It's quite clear that the federal government cannot completely go it alone, so some qualifying language in such a provision that says something like “subject to constitutional constraints” or “take all federal measures necessary” may be helpful.

The last point is that in terms of justiciability, the courts will read the statute in its entirety. A provision like that, even if it's far away from the rest of the other relevant provisions, will signal to the courts an intention of the legislature to have judicial oversight.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Thank you.

If there's time, I'd like to ask Professor Le Quéré about the way the EU goes about what Professor Wright mentioned earlier as “effort sharing” or “burden sharing”.

As a Canadian climate activist since the mid-1980s—that's how long I've been working on climate, so I'm a complete and utter failure—it's always struck me as remarkable that when we come back from Kyoto or from Copenhagen, we don't actually put together a national plan, whereas the EU comes back and says, “Okay, who will do what? Let's split this up. Let's get it done.”

Can you describe the EU process and how they've managed to do so well as a collection of nation states in observing a target that applies to the whole bubble?

[Prof. Corinne Le Quéré]

The EU process is very much mimicking the Paris Agreement itself. They have their central objective, which is pushed by the different nations as what is seen as the fair contribution for the European Union. Then countries are invited to say and to argue why their contribution is going to be such-and-such. It's in this argument that countries set their basis for why they should have the target above the target or below the target. Then this is negotiated afterward, as a process.

Giving the countries themselves the voice to argue their case is very powerful in that respect.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Chair, do I have time for another quick one?

[The Chair, Liberal, Francis Scarpaleggia]

You have a minute and 40 seconds.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Fantastic. I'll go to Professor Wright, then.

It's certainly one of the mysteries of our federation, as a confederation of Canadian provinces, territories and the federal government, that we're not as able to split out the responsibilities as independent nation states do within the European Union, and this has been a historical weakness.

In looking at Bill C-12, I really support your amendment to bring in subclause 10(c) to the list of things about which we must report.

Can you think of other means, perhaps modelling on the EU, by which we can ensure that our provincial, territorial—and, I would also think, municipal—orders of government are involved in saying that this is how we take apart this challenge and get at it in each order of government?

[Prof. David V. Wright]

Again, it is difficult to build that within the four corners of a statute like this. Probably the best you can do is to make sure the statute is consistent with it and has some kind of portal or crosswalk to some kind of Canadian emissions effort-sharing agreement that runs in parallel.

The risk in trying to incorporate some requirement to achieve some kind of effort-sharing agreement within the statute is that—and this is a bit cynical, but you'll appreciate it—it would build in a veto. If this act required the federal government to execute some kind of effort-sharing agreement with all provinces, any province would then immediately be able to say that it's not going to sign it and it's not going to engage.

[The Chair, Liberal, Francis Scarpaleggia]

Thank you.

The time is up, unfortunately.

We'll go to Mr. Baker.

[Yvan Baker, Liberal, Etobicoke Centre, ON]

Thanks very much, Mr. Chair.

Thank you to the witnesses for being here today. I'd like to direct my questions to Professor Wright as well.

Professor, I really want to continue along the lines of what you were just speaking about really. Earlier in response to one of the other members of the committee, you spoke about this burden-sharing agreement or a Canadian Paris agreement, as you alluded to it. I like that analogy. To me, one of the things that it highlights is the challenges in coming to that agreement. We all know how difficult it has been to come to these global climate agreements and how, in many cases, many folks have felt that they haven't set the bar high enough.

Do you have any thoughts on how we could build that agreement? I ask this in the context of our having recently seen legal challenges by some provinces in the context of the price on pollution, which ultimately went to the Supreme Court.

I am wondering how you think we could, practically speaking, come to an arrangement that would be ambitious enough to support what we need to do to reduce emissions.