Environment Committee on June 2nd, 2021

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

Thank you, Mr. Chair.

Of course, members will be, I'm sure, intimately familiar with the impact of the motion you passed, which is why I'm compelled to be here, which means that this motion has been deemed moved by the mysterious hand of somebody on committee, unmentioned.

This is a different issue. This is the first time this committee is dealing with an amendment that seeks to make the Minister of Environment and the Government of Canada actually accountable as opposed to embarrassed.

Currently the only clause of the bill that deals with accountability is clause 16, titled, “Failure to Achieve Target”. Under clause 16, a minister who concludes that Canada has missed a target will explain why and describe the actions it will take to remedy the matter. I think members will recall—almost humourously, because there was a widespread difficulty in pronouncing “justiciability”—when we had Professor Wright from the University of Calgary testifying before us. I thought he was charming on the question of justiciability, but the question is, can we actually require that the minister face some consequences and the government face consequences for missing a target?

As the chair has mentioned, this is essentially a separate clause. It's numbered clause 13.1, and the magic word in it is “must”. This amendment would ensure that “the Minister must achieve all the national greenhouse gas emissions targets set under sections 6 and 7.” How would you do that? What's the implication? I'm sure some of us in this room—I'm sure many of us—are actually lawyers and will know that saying “must” can create some administrative law remedies. This has also been put forward in evidence to committee, particularly, I recall, by West Coast Environmental Law, but I've been chastised by other people in the Climate Action Network that when we say West Coast Environmental Law, we're implicating a wider range of groups. It just happens that Andrew Gage was the lawyer who testified before us.

When you say “must”, you can actually create an administrative law duty to meet a requirement, which could create administrative law remedies. The question I put to Professor Wright was whether that would help. He said it would. We'll come back to this when we get to my amendment PV-35, which gets into some of the details of how the administrative law remedy would work before the Federal Court of Canada. For now, I put it to you that this is the one place we have an opportunity to say that when the minister says the law will create accountability, he or she will mean, in future, that we're actually trying to be accountable as opposed to having a bumper sticker for an election campaign that says we now have climate accountability legislation.

Thank you.

[The Chair, Liberal, Francis Scarpaleggia]

Thank you, Ms. May.

Mr. Redekopp.

[Brad Redekopp, Conservative, Saskatoon West, SK]

Mr. Chair, I have a couple of questions on this one, again for Mr. Moffet.

Would this be enforceable? I don't see any penalties, unless those are coming later and I might have missed them. Is this enforceable?

That's my first question for you. I have another one as well.

[The Chair, Liberal, Francis Scarpaleggia]

Mr. Moffet.

[John Moffet]

I think the answer to that is that I'm going to, respectfully, suggest that the committee reflect on the testimony of the various witnesses who testified about this issue.

As Ms. May just explained, this goes to the question of justiciability. One could not literally make a minister of the environment, on his or her own, reduce emissions. The question is what the consequences will be, and I think it would be appropriate to think about some of the advice that was given about whether or not that can be done and also to consider this amendment in the context of other amendments that Ms. May has proposed. I think—and I may be inappropriately putting words in your mouth—they are best read as a package.

[The Chair, Liberal, Francis Scarpaleggia]

Does that answer your question, Mr. Redekopp?

[Brad Redekopp, Conservative, Saskatoon West, SK]

Yes, because my next question was going to be.... You can't hold the minister accountable, which is, obviously, what we just discussed. I think that's the challenge in this. Who exactly are we trying to hold accountable, and what would the remedies be if they didn't do it?

Yes, I think that answers my question.

[John Moffet]

Sorry, I just want to be clear. My apologies if I said you could not hold the minister accountable. You can absolutely hold the minister accountable. The question is this: Can the minister be required on her or his own to reduce emissions? No, of course not. Then, the question is this: What is the legal recourse against the minister if the targets are not met? As Ms. May explained, some witnesses have suggested how that might play out.

[The Chair, Liberal, Francis Scarpaleggia]

Ms. May.

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

Mr. Chair, further to what John Moffet was just saying, I don't recall any witnesses saying that this amendment would not work. The only witnesses that we had from law school and law professor backgrounds said that this would work.

The remedy is something called an order in the nature of mandamus. It's a Court of Chancery remedy that's available in administrative law. I describe it, in terms of the process, more fully when we get to PV-35.

[The Chair, Liberal, Francis Scarpaleggia]

You'll explain how that would work when we get to PV-35. Thank you.

I see no hands, so shall PV-21 carry?

(Amendment negatived: nays 10; yeas 1 [See Minutes of Proceedings])

We go now to BQ-14.

Before we get to Madam Pauzé, I'd like to mention that this is the first of several BQ amendments seeking the same goal, to change the name of the advisory body to independent expert committee.

Members of the committee should keep this in mind when debating and voting on these amendments in order to be coherent throughout the bill.

Madam Pauzé.

[Monique Pauzé, Bloc, Repentigny, QC]

The amendment is very simple. We want the Minister to be required to take the recommendations of an expert committee into account.

Further on, we will actually be proposing that it be an independent expert committee, but we also simply want the Minister to consult with the committee and take its recommendations into account.

[The Chair, Liberal, Francis Scarpaleggia]

Okay. That's pretty clear.

Any further comments?

Mr. Albas, the floor is yours.

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

Mr. Chair, I would simply say that there are a number of suggestions that have been brought by MP May and MP Pauzé.

We are not going to be supporting this particular amendment. Again, this seems to be focusing on where it's just the minister in regard to the committee. I believe there should be more on this front in upcoming amendments from us and to change the nature of the advisory committee itself, but we will not be supporting this amendment.

[The Chair, Liberal, Francis Scarpaleggia]

Thank you.

Could you take your hand down, Mr. Albas? Thanks.

I see no other hands, so shall BQ-14 carry?

(Amendment negatived: nays 10; yeas 1 [See Minutes of Proceedings])

[The Chair, Liberal, Francis Scarpaleggia]

We'll now ask Mr. Saini to propose, if he wishes to, amendment G-9.

[Raj Saini, Liberal, Kitchener Centre, ON]

Yes, Chair. Thank you very much.

I'm happy to introduce an amendment to add a new clause 13.1 to the Canadian net-zero emissions accountability act. This new provision requires that the Minister of the Environment must publish a “what we heard” report on the results of the consultations carried out under clause 13. The government typically publishes “what we heard” reports so everyone can see the feedback of others and can continue to meaningfully participate in the discussion as it evolves.

This amendment would make this step a requirement and thus further enhance transparency and accessibility under the Canadian net-zero emissions accountability act.

[The Chair, Liberal, Francis Scarpaleggia]

Mr. Albas.

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

Mr. Chair, I certainly appreciate MP Saini's amendment. It gives an opportunity to talk a little bit about the importance of both transparency and accountability.

I do know that there have been many criticisms levelled against this government, by both my party and other parties, regarding its lack of transparency. It is certainly not showing that it is open by default, as it promised in 2015, with promises for things like changes to the Access to Information Act that even the Information Commissioner criticized as actually being not helpful and even, in some cases, regressive.

That has not changed. It's actually only gotten worse since COVID-19. Many reporters as well as civil society members have criticized how the government's snail's pace on access to information has gotten even slower, as if those snails were put in the freezer. It takes a lot more to see any positivity.

Mr. Saini is trying to do a good thing here by trying to make the minister more transparent, specifically on public participation.

As we said earlier, Conservatives support public participation. We think it is incredibly important that in a country as large and diverse as Canada there be a mechanism whereby the minister can consult. We do think, though, that there should be some strengthening there, of course, of an all-hands-on-deck approach.

Given the fact that we believe there could be more transparency in what we hear from the minister, we are willing to support this amendment. As I said earlier in my comments to MP Bachrach, we've come prepared with a number of amendments that we believe would make the bill better. We have been listening to all members of Parliament, irrespective of their party, making sure that they are heard and also that their ideas, whether we agree with them or not, are debated. This is so that people who are watching at home can know that in a minority Parliament, we are all doing our jobs to scrutinize government legislation and to bring ideas that are perhaps new to the conversation.

MP May said earlier that she believed a number of groups wanted to see the idea of carbon budgets brought into it, something that was not allowed by the committee. I do think that we could have allowed that process. Maybe I'll let that now be water under the bridge and refer again to the amendment before us.

I will be supporting this amendment, simply because we do think that the consultations and the “what we heard” reports are essentially beneficial. Those are things the government should be doing. To have that enshrined in law makes sense. Maybe my colleagues have questions or other aspects they wish to raise, but we will be supporting MP Saini in regard to this.

I thank him for bringing forward an amendment that actually increases the transparency of the government, because it has been so woeful to date on so many different aspects. I even remember when, before he became the Liberal leader, in his capacity as an MP, Justin Trudeau tabled legislation to improve access to information. He was criticized later on for not actually implementing those ideas as Prime Minister. To see a little humility from the government side is a good thing. We will be supporting the amendment as presented.

[The Chair, Liberal, Francis Scarpaleggia]

I think you made Mr. Saini very happy.

We'll go to Mr. Redekopp.

[Brad Redekopp, Conservative, Saskatoon West, SK]

Mr. Chair, as my colleague Mr. Albas just mentioned, this government has been rather slow at being transparent.

To Mr. Bachrach, it's nice to see that you actually got at least a little something from your deal. This is a positive that I like.

I have one question, though, for Mr. Moffet on this.

I noticed there's nothing in this amendment that speaks to the time frame. It talks about publishing a report, yes, but it doesn't give any sort of time frame. I'm not sure it's necessary.

Mr. Moffet, with the way this is written, and given standard practice in the department, what is a reasonable expectation for me as a parliamentarian for when this report would happen? Would it be one month after, six months after, or in one year, two years, five years? What is standard practice? Could you also comment on whether there should be, and it would be helpful to have, some sort of time frame in this amendment?

[John Moffet]

If you don't mind, I'd like to refer that question to my colleague Mr. Ngan, whose organization in the department has led the consultations on the previous NDCs and has some experience in both leading the consultations and providing reports to Canadians about what we heard.

[Brad Redekopp, Conservative, Saskatoon West, SK]

Yes, certainly.

[The Chair, Liberal, Francis Scarpaleggia]

Mr. Ngan.

[Vincent Ngan]

I'm happy to answer the question.

Under clause 13, on public participation, the advisory body must also undertake consultations with governments of the provinces and territories and with indigenous peoples, and engage any experts who are deemed necessary and appropriate. Therefore, we see that the scope can be very broad.

The normal practice would be around three to six months following the consultation so that information can be compiled, put together, translated and made available and accessible on the Internet. Of course, this is normal practice and not necessarily a hard and fast rule.

I hope that's useful.