Evidence of meeting #43 for Environment and Sustainable Development in the 44th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was right.
A video is available from Parliament.
1:50 p.m.
Bloc
Monique Pauzé Bloc Repentigny, QC
That's right. Also, if possible, I would like to see the word “rentables” later in the wording replaced with “effectives”.
1:50 p.m.
Liberal
The Chair Liberal Francis Scarpaleggia
All right, but at the moment we are discussing the proposal to replace the word “prudence”.
Mr. Moffet, you have the floor.
1:50 p.m.
Conservative
Damien Kurek Conservative Battle River—Crowfoot, AB
Mr. Chair, I have a point of order.
Was a subamendment just moved? Is that my understanding?
1:50 p.m.
Liberal
The Chair Liberal Francis Scarpaleggia
Yes, Madame Pauzé would like to substitute the word “précaution” for “prudence”.
I see that Mr. Moffet has his hand up.
1:50 p.m.
Assistant Deputy Minister, Environmental Protection Branch, Department of the Environment
Mr. Chair, I just want to make the observation that these terms have been used consistently in multiple federal statutes since the Rio Declaration on Environment and Development in the manner in which they currently appear in CEPA.
One possible consequence of amending CEPA with regard to this definition would be that it would call into question the intention of the other statutes that retain the original Rio terminology. In turn, that could have unintended implications for the intended requirement in those statutes to exercise the precautionary principle in decision-making.
From a government, statutory, consistency perspective, it would be our recommendation to retain the same terminology that has appeared in all federal statutes since 1992, that has not been subject to challenge, and that has enabled officials and decision-makers to exercise the precautionary principle consistently.
1:55 p.m.
Conservative
Damien Kurek Conservative Battle River—Crowfoot, AB
Thank you, Mr. Chair.
Since my French is far from passable and since this is a unique amendment because both the English and French of the amendment are in French, Mr. Chair, my question to the experts—and possibly the mover of the motion—is this: If this subamendment changes that particular word, is there an impact on the rest of the bill? Is it setting a precedent that would require that particular word?
If I'm following the conversation correctly, would “prudence” be required to be changed throughout the entirety of the act? Would this have implications?
I think Mr. Moffet was implying that if it starts here, then the consequence would be the entirety of CEPA, both what is amended and what is not, and related acts. I know some of the witness testimony we heard talked about this being one of a number of acts related to environmental regulation, whether it be in agriculture, health, pharmaceuticals or that sort of thing.
My question comes down to this: If that word is changed in this amendment en français, does that have sweeping consequences across the entirety of this act and possibly other acts?
1:55 p.m.
Assistant Deputy Minister, Environmental Protection Branch, Department of the Environment
The short answer is “yes” with regard to CEPA and other statutes.
Certainly in CEPA the terms appear at least four other times. In some cases, it's in provisions that have not been amended by Bill S-5 and are therefore not open to this committee to amend.
1:55 p.m.
Liberal
1:55 p.m.
Bloc
Monique Pauzé Bloc Repentigny, QC
I want to come back to the word change.
This error is over 20 years old. I am trying to correct what may have been a translation error, at the time. I will recall what I said earlier. The Rio Declaration was signed by Canada in 1992 and the act came not long after, seven years after that declaration. There may have been a slip in the translation.
I don't understand why we are not able to correct this. Are federal laws so rigid that we can't even correct a 20‑year-old mistake?
I don't care what legal argument I'm given, I'm saying that Canada signed the Rio Declaration, and I'm asking that our environmental law be consistent with that declaration that we signed internationally. This declaration does not refer to the “principe de prudence”, which is an accounting and economic principle, but rather to the “principe de précaution”, which is a principle that applies to the environment.
1:55 p.m.
Liberal
The Chair Liberal Francis Scarpaleggia
I'm asking Ms. Collins, and she's waiting for the translation.
1:55 p.m.
NDP
Laurel Collins NDP Victoria, BC
I was. Thank you, Mr. Chair.
Thank you, Mr. Moffet, for that explanation.
I just want to be very clear, because in general I think I support Madam Pauzé's change. I also oppose the intention of the original motion, and I would much prefer that we change the English version to “effective” rather than “cost-effective”. However, from what I'm hearing, if we were to do that, we would have to change a number of areas in this act—the ones we can change—but there are areas in this act that we're unable to change, and then they would be inconsistent.
I just want to make sure that I'm comprehending that correctly. Mr. Moffet, can you just clarify? Did I get that right?
1:55 p.m.
Assistant Deputy Minister, Environmental Protection Branch, Department of the Environment
I'm suggesting that in order to be consistent, that would be the appropriate consequence so that the same terms are used consistently throughout the act and then, ideally, throughout all federal statutes.
1:55 p.m.
NDP
Laurel Collins NDP Victoria, BC
Just for this act in particular, if we were to go and change everything from “cost-effective” to “effective” and from “la prudence” to.... I am forgetting the French word that Madam Pauzé suggested, but if we were to do that for all of the areas that we can change, what is the impact of having that inconsistency with areas that we can't change in this act?
2 p.m.
Assistant Deputy Minister, Environmental Protection Branch, Department of the Environment
I think the short answer is that we don't know, so it would create uncertainty because you would have the same term defined in different ways in the same statute. I'm reluctant to speculate, but I think we can say that it would create some uncertainty as to the way in which the various provisions might be interpreted, particularly if they're subject to judicial review.
2 p.m.
NDP
Laurel Collins NDP Victoria, BC
I guess I have a follow-up question.
I think changing this in all of the areas that we possibly can and opening up some uncertainty—meaning maybe moving in the direction of “effective” versus “cost-effective” and the precautionary principle—doesn't seem too dangerous to me, but I'm curious what the danger is that you see or what the negative repercussion of that uncertainty is.
2 p.m.
Assistant Deputy Minister, Environmental Protection Branch, Department of the Environment
I think the concern that I'm articulating is that we would have what was intended to be the same obligation associated with various decisions under the act now subject to different legal obligations, or at least differently defined legal obligations.
I think the concern is that if a decision made under one of those provisions was challenged in a judicial review, the fact that there are different definitions in the act could lead to an unintended outcome. I don't think I can point to a very specific implication other than the risk of uncertain outcomes as a result of what would be an inconsistent approach to precaution in the statute.
Again, I remind you that the definition hasn't been challenged or the exercise of precaution hasn't been challenged to date.
2 p.m.
Conservative
Greg McLean Conservative Calgary Centre, AB
Sorry, Mr. Moffet, but could you tell us what other statutes this slight change here might affect, where “prudence” is listed as opposed to “precaution”? You mentioned that there seems to be some problem, in that this change would affect several other bills by being inconsistent. It would be good for this committee to know which bills you're referring to.
December 9th, 2022 / 2 p.m.
Assistant Deputy Minister, Environmental Protection Branch, Department of the Environment
Go ahead, Laura.
2 p.m.
Director General, Legislative and Regulatory Affairs, Environmental Protection Branch, Department of the Environment
I don't think we've done a full survey on this particular question, but I believe that it was under the Rio declaration that we used “prudence” and “cost-effective” in English. I think it's the Federal Sustainable Development Act that also uses “prudence”. The Canada National Marine Conservation Areas Act also uses “prudence”. The Pest Control Products Act also uses “prudence”. It is in a number of statutes.
I would say that “cost-effective measures”, which is definitely how the precautionary principle is interpreted, is different from “effective measures”. My understanding of the Senate amendment is that we were not trying to change the concept; we were trying to get the translation right. If the English is “effective measures”, meaning “cost-effective measures”, then the French should align with that and say, “mesures rentables”.
