As you know, the Canadian Environmental Protection Act, or CEPA, passed in 1988, was challenged before the courts. It was examined by four courts and 14 judges. Nine of them found that the federal government overstepped its constitutional jurisdiction with this law. However, five Supreme Court justices against four found that the law was justified by federal jurisdiction over criminal law, as set out in subsection 91(27) of the Constitution Act, 1867.
That means that 14 judges looked at CEPA and nine found it to be unconstitutional. However, the five majority justices of the Supreme Court ruled the law constitutional. We believe it is important to tread very carefully.
In some provisions of Bill S‑5, new concepts are introduced in subsections 46(1) and 56(1) of CEPA. The scope of these provisions is broadened. For example, subsection 46(1) mentions activities. The objective is to regulate activities, but activities have always been regulated by the provinces. They fall under property and civil rights, which are under provincial jurisdiction as set out in subsection 92(13) of the Constitution Act, 1987.
It is therefore important to be careful when broadening CEPA’s scope, as it was validated by five justices against four. Of course, if the Supreme Court were to examine it today, I have no idea what the outcome would be. I therefore believe that it’s important to be careful, as the provinces are already active. They regulate activities through provincial environmental protection legislation. So it is a concern we wanted to share with members of the House of Commons.