Finance Committee on Feb. 24th, 2009

[The Chair, Conservative, James Rajotte]

On clauses 322 to 326, we have no amendments.

[Thomas Mulcair, NDP, Outremont, QC]

Mr. Chairman, I'm going to request, given the importance of this particular section, that we go clause-by-clause and call the recorded vote for these few clauses leading up to the next amendment, which is on clause 327. There would be three or four clauses, but I think it is important enough for a recorded vote.

[The Chair, Conservative, James Rajotte]

I call the question.

(Clauses 322 to 326 inclusive agreed to: yeas 8; nays 3)

(On clause 327--Orders and regulations by Governor in Council)

[The Chair, Conservative, James Rajotte]

On clause 327, we have amendment NDP-10.

Mr. Mulcair.

[Thomas Mulcair, NDP, Outremont, QC]

Thank you, Mr. Chair.

Amendment NDP-10 is similar to the earlier amendment—it seeks to avoid giving the minister discretionary authority so large that he or she would be able to completely gut an act whose purpose is to protect navigable waters. Clause 327 refers to an enabling provision—one that allows the regulatory authority to make regulations regarding the implementation of the act. Subclause 12(1) reads as follows:

12.(1) The Governor in Council may make any orders or regulations that the Governor in Council deems expedient for navigation purposes respecting any work to which this Part applies or that is approved or the plans inside of which are approved under any Act of Parliament or order of the Governor in Council and may make regulations: a) prescribing the fees [...] b) respecting the grant [...] c) prescribing the period [...] d) respecting notification requirements [...]

And finally, the following will added:

e) establishing classes of works or navigable waters for the purpose of subsection 5.1(1);

We can see what is going to happen. This new enabling provision will make it possible to put into the garbage can the protection that has existed until today under the Navigable Waters Protection Act. Actually, this will throw the garbage can into the navigable waters, and there will be nothing we can do about it.

Section 12.1 is the enabling provision of the statute, Mr. Chairman. At the present time, it provides that:

The Governor in Council may make any orders or regulations that the Governor in Council deems expedient for navigation purposes respecting any work to which this part applies or that is approved or the plans and site of which are approved under any Act of Parliament or order of the Governor in Council, and may make regulations

Then it prescribes a number of subjects with regard to fees, grants, or suspension of approvals, and prescribing the periods respecting notification requirements.

But here is what's new, and this is preoccupying for us:

establishing classes of works or navigable waters for the purposes of subsection 5.1(1)

As we saw before, proposed section 5.1 is the move the Conservatives are putting on the Navigable Waters Protection Act to gut it, to remove all meaning of navigable waters protection in Canada. It's going to set up these categories. Here we're saying it's the Governor in Council. So Minister Baird, the Minister of Transport, will arrive with a list of sizes of projects and all sorts of things that will no longer be subject to the protection of this act. He'll have that rubber-stamped by his colleagues around the cabinet table and that will become the law.

People sometimes don't realize that we evoke the notion of laws and regulations as if they were the same thing. Today we're looking at the overall framework of the law, but the detailed application of the law has to come in the form of regulations. It's interesting that when the Conservatives were in opposition they used to rail against the fact that all too often, as legislators, we were being asked to pass bills where the substance was going to come in the form of regulations. Well, the difference is that the law sets out the large picture and the regulations give the detailed application.

Here they're adding a new power for regulation-making. But in this case, exceptionally, the regulation-making is actually going to amend the substance of the act.

If you look at what I mentioned before, the other headings in proposed section 12 are the normal type of thing you do by regulation. You prescribe fees: how much it costs to make this demand or this request. You say how long it's going to be enforced and things like that. That's the type of detailed application you don't normally trouble Parliament with; you give a regulatory power to somebody to take care of that.

But here the regulatory power isn't to prescribe fees or look at a time limit; the regulatory power will eviscerate the law. It will take out any real meaning in the statute for the protection of navigable waters. That's what's being granted here as a power.

Last night we had an officer from the department before us who explained that as far as he was concerned we were building in a new “tiered approval process”. Those were his exact words. Well, if you look through this, you won't find a tiered approval process. Obviously the senior bureaucrats have already decided what we're going to do. They're taking it for granted. I find that a bit offensive in terms of respect for our institutions. I think that parliamentarians are actually the ones who get to decide what goes into our statutes and what happens.

I've always believed--and I've been both in government and in opposition--that parliamentarians have a right to know the substance of what they are being asked to vote on. Here we're being deprived of that right. We don't know the substance of what we're being asked to vote on. We don't know what's going to be in an eventual regulation adopted under proposed section 12, under this new paragraph (e). We simply don't know what the “classes of works or navigable waters” for the purposes of the new section 5.1 will be. That's this new exception section. We don't know what it is. Apparently the bureaucracy knows. We don't. I find that offensive.

Usually, the act sets out the most important rules governing the issue at hand, in this case the protection of navigable waters. Until quite recently, section 12 provided for a number of matters that could be determined by regulations: the fees payable, rules regarding the granting of permits, the period during which an approval was valid. That is the type of detail that we normally do not bother Parliament with. These implementation details are properly handled through the regulations. We often talk about both acts and regulations. But there is actually a big difference between the two. Parliament deals with legislation, but it delegates the authority to set out the details for the implementation of the legislation. That is why we refer to this as an enabling provision.

This provision sets out the various subjects for which new rules can be established. However, what is extremely disturbing is that this will create a full new authority to establish, without restriction, the classes of works and navigable waters to which subclause 5.1(1) applies. That provision reads as follows:

Despite section 5, a work may be built or placed in, on, over, under, through or across any navigable water without meeting the requirements [...]

This is the new system that the Conservatives are putting forward. The successive sincerity of the Conservatives on this matter is constantly amazing. I have never seen people who can say one thing when they are in opposition—namely that it is unacceptable for Parliamentarians to be required to vote on legislation when they do not know the details of it—and who can close their eyes to the whole situation when they are in power and become puppets and accept absolutely anything their government puts forward. I find that very disturbing.

Fortunately we heard from the lawyer, Mr. Amos, from the University of Ottawa yesterday evening, and another from Lake Ontario Waterkeeper, in Toronto. Had we not heard from those two well-respected legal experts, I think the government would have gotten away with this. It sent in someone from the department to say that he really did not see what the problem was. A Conservative member of Parliament, a woman, asked whether this would change anything about canoeing on the Ottawa River for people. Questions of that type cannot be invented. The answer was not very surprising—it was “no”.

As far as the Conservatives are concerned, there is no problem. It is wild, but it is true. You had to be there. It is too bad, they had scheduled the meeting from 8:30 p.m. to 10:00 p.m. So people could not really get a true sense of it. A very colourful, likeable farmer from a rural region in Ontario came in to talk about the Drainage Act in Ontario, Fisheries and Oceans, and so on. That law comes under provincial jurisdiction; Fisheries and Oceans had nothing to do with what was being said. What should have been talked about was the anecdote he heard from the owner of a small tractor. We never saw any document that stated that the Navigable Waters Protection Act contained a real problem. This is called defending your arguments by means of anecdotes. There is nothing we can use as a basis to move forward.

Fortunately, there were some groups that were concerned about navigable waters in Canada. They saw what the Conservatives were up to, probably because of the fine work done by Louis-Gilles Francoeur of Le Devoir. He was the first one to sound the alarm about the real intentions of the Conservatives regarding environmental assessment. Let us just say that these assessments and the issue we are discussing at the moment go together.

This will have a serious impact on construction capacity. There are no doubt some developers and mayors behind this. I am not taking anything away from them—most of them are extremely dedicated people. Let us be honest here: mayors tend to see wetland as a missed opportunity to broaden their tax base. Until now, there was a federal statute that prevented abuse.

Mr. Chair, I want to take a couple of minutes to talk about this issue, to dispute the Conservatives' assertions that all of this is because these things take too long. Apparently this is supposed to have something to do with speeding up the process, with making it more flexible. We are told that the problem is that there are too many approval processes and environmental assessments.

When I was the Quebec Minister of the Environment, I was often fed exactly the same argument. I remember being with my former colleague in natural resources, and we heard this same assertion from the executives of Hydro-Quebec. They told me that environmental considerations were preventing them from carrying out their projects. I therefore told them to give me concrete cases, not anecdotes. With a great deal of difficulty, they managed to come up with one or two such cases. Do you know what we did? We got out the books. We looked at the steps of the project from start to finish. The project had taken six years, and the environmental assessment, three months. There is no doubt that the social approval component, the analysis of the impact on ecosystems, the engineering work, and so on took up the most time.

Let us take a look at the situation in which we find ourselves. We are imposing a tremendous debt on future generations. The proposed budget will result in a huge financial debt that future generations will have to pay down. Rather than being even more prudent in environmental matters and doing everything we can to build things that will at least be beneficial to future generations, we are leaving them this debt and we are scrapping the environment at the same time. This is the very opposite of sustainable development. It is about our generation's obligation to respect the right of future generations to have what we ourselves had. We enjoyed the benefits of a Navigable Waters Protection Act. But the Conservatives, with the Liberal as accomplices, are going to scrap this protection. That is what is scandalous about the matter we are considering here today.

Mr. Chair, we are getting right to the heart of the matter. This clause is absolutely crucial. It will enable the Conservatives to eviscerate the Navigable Waters Protection Act.

Not only are we leaving a massive debt on the shoulders of future generations—because the budget that we have before us, of course, as you know, is providing for a huge deficit, the biggest deficit since the last time the Conservatives were in power—but it's also taking away from future generations their right to have a clean environment like ours. That's the essence of sustainable development as expounded by Gro Harlem Brundtland, that we have an obligation towards future generations to make sure their standard of living, the place where they're living, their environment, how they're living, is no less favourable than the one that we enjoy.

Here we have to be doubly careful, because we are shovelling onto their shoulders a heavy financial burden for the future. They're going to have to pay off this debt. I don't know about you, but I'm going to be long retired before this thing ever gets paid back. At the same time, we're taking away the clean environment and the protection of navigable waters that our generation and generations before us have enjoyed. So what's on the table here today is doubly scandalous.

I hope that if they don't believe in anything else—we know they don't believe in union rights, we know they don't believe in women's rights—perhaps there's a faint beating heart in one of the Liberals who's going to be called upon to vote on this. We know the Conservatives don't give a hoot about the environment, but there was a time when there were at least a few people in the Liberal Party, even if they never did anything about it, who were able to talk a good game on the environment. So let's hope that on this article, this enabling provision for the Conservatives to gut navigable waters protection in Canada, there will be one Liberal with a conscience who will actually stop, for one vote, being a member of Her Majesty's official abstention and remember that they're supposed to be Her Majesty's official opposition, and actually screw up the courage to do the right thing to protect future generations' right to have the same environment we've been able to enjoy, and to vote against this nefarious amendment.

[The Chair, Conservative, James Rajotte]

Thank you.

Monsieur Laforest.

[Jean-Yves Laforest, Bloc, Saint-Maurice—Champlain, QC]

Mr. Chair, this amendment seeks to delete paragraph (e), which grants the power to establish classes of works. What surprises me in this sentence introduced in the budget bill is that it gives the government, a minister, extraordinary powers allowing him not only to specify the classes of works that would not be subject to the legislation, but also to establish navigable waters. Mr. Mulcair was saying that this goes to the heart of the attack against the Navigable Waters Protection Act and I fully agree with him on this. This very short sentence obviously entails major consequences.

We are in favour of the amendment.

[The Vice-Chair, Liberal, Massimo Pacetti]

We are prepared to vote on NDP amendment 10.

(Amendment negatived. [See Minutes of Proceedings])

We will now vote on clause 327.

(Clause 327 agreed to: yeahs: 7; nays: 3).

[The Vice-Chair, Liberal, Massimo Pacetti]

We will now move on to clause 328 and amendment NDP-11.

Mr. Mulcair.

[Thomas Mulcair, NDP, Outremont, QC]

Thank you, Mr. Chair.

That Bill C-10, in clause 328, be amended by replacing line 17 on page 298 to line 4 on page 299 with the following:

328. Section 13 of the Act is repealed.

Let's look at proposed clause 13 in the bill:

The Minister may, by order, [...] (a) establish classes of works or navigable waters; and (b) impose any terms and conditions with respect to the placement, construction, maintenance, operation, safety, use and removal of those classes of works or works that are built or placed in, on, over, under, through or across those classes of navigable waters. (2) An order under subsection (1)(a) is not a statutory instrument within the meaning of the Statutory Instruments Act; and (b) shall be published in the Canada Gazette within 23 days after the day on which it is made.

We are talking about a ministerial order. Without getting into too much detail there is a difference between a regulation from cabinet, which at least requires colleagues to give it their rubber stamp, and allowing a minister to act through an order.

Mr. Chair, this clause contains something of significance. Even if they have no principles, the Conservatives at this table should at least listen.

In the second paragraph, it says that the order is not a statutory instrument. A statutory instrument must be published and the public must be given some time in which to be consulted and to react to it. Here, it says that it will be "published in the Canada Gazette within 23 days of the day on which it is made." I don't know why they are using the terminology "in the Canada Gazette". It is obviously published in the official journals. It's strange that legislative drafters have returned to a mistake that Alexander Kovacs corrected in Ottawa 25 years ago.

Let's look at what they are doing. Not only, underhandedly, will they be giving the minister, through a simple order, the power to continue to undermine the protection of navigable waters, but they will decree that the minister's order does not have the same status as a statutory instrument within the meaning of the Statutory Instruments Act. So, the public won't know what the minister is doing for 23 days after the minister determines the regulation in question. It's quite scandalous.

Mr. Chairman, we're into the details of this series of dirty tricks that the Conservatives are trying to foist upon Parliament. Not only have they taken it upon themselves to provide order in council powers--so regulatory instruments that will actually have to go through cabinet and are subject to the Statutory Instruments Act--here they have gone a step further, and it's reprehensible. The minister will have the power under proposed section 13 to establish, by order, classes of works or navigable waters. He could exclude vast categories of rivers that are right now covered and protected by the Navigable Waters Protection Act.

What's even more shocking--it's unbelievable what they're up to here--it says in proposed section 13:

(2) An order under subsection (1)

(a) is not a statutory instrument within the meaning of the Statutory Instruments Act;

That means, in clear language—so the people following us can understand, Mr. Chairman—that the public will not even be allowed to know what's in the order.

I heard the brilliant and talented Mr. McKay say that nobody is listening to us. He's mistaken. Nobody is listening when they're speaking, Mr. Chairman.

Actually, it was quite interesting last night. There were several hundred people here. What I learned is this. A lot of these people in Ontario are left-leaning. They have an ecological vision of the world. They're socially open. What a lot of them told me last night is that until last night they used to vote Liberal. They used to see the Liberal Party as being slightly left-leaning, even though they have a right-wing guy now who they've gone and hired away from this. He spent, what, twenty years in the States pretending he was British and twenty years in Britain pretending he was American, right? So for the Liberals that makes him a great Canadian Prime Minister. That's quite something.

Now that people are starting to see that the masks are falling, that the Liberal Party doesn't even carry the word “liberty” in its name anymore, because on things like women's rights, on things like union and social rights, they're just not there.

Here, Mr. Chairman, we're looking at the ability of the government to take out everything that is essential in the Navigable Waters Protection Act and allow the minister, by order, an order that will not even be published.... Under the Statutory Instruments Act there used to be a rule that you had to publish and allow public consultation. People could react to the rule that you were thinking of putting in place. Here the public won't even get to see that rule until 23 days after the date on which it is made. Can you imagine? This is the pure stuff of banana republics. The Liberals, once again, are going to vote with the Conservatives to remove the right of future generations to know the same level of environmental protection that we've known over the years.

That's the scandal of proposed section 13, and that's why the NDP is proposing its removal from the statute, Mr. Chairman.

[The Vice-Chair, Liberal, Massimo Pacetti]

Thank you, Mr. Mulcair.

Are you ready for the vote on NDP amendment 11?

(Amendment negatived: nays 4; yeas 2)

[The Vice-Chair, Liberal, Massimo Pacetti]

Now, on clauses 328 to 392, a recorded vote has been asked for by Mr. Mulcair.

(Clauses 328 to 392 inclusive agreed to: yeas 6; nays 3)

(On clause 393--Enactment of Act)

[The Vice-Chair, Liberal, Massimo Pacetti]

You have just been handed three amendments. I'll simply use the reference numbers: 3685933, 3685689, and 3685802. We haven't had much time to look at them, but from what I've been told, they're introducing new elements to the bill, so they are not receivable. That decision is not debatable. If you would like, you can challenge the chair.

Mr. Mulcair.

[Thomas Mulcair, NDP, Outremont, QC]

Point of order, Mr. Chair.

I would just like to understand your ruling, because there were three, and the third one was there in case you did rule that the first two were inadmissible. What we were seeking to do was include, after the Border Services group, who were exempted--

[The Vice-Chair, Liberal, Massimo Pacetti]

Mr. Mulcair, which is the third one? Could you use the reference number on the left?

[Thomas Mulcair, NDP, Outremont, QC]

It's number 3685933.

So 3685689 and 3685802, in their respective cases, would have given the same protection to “persons who are employed as lawyers whose employer is, in each case...”, the same treatment as the Border Services group. In the second case, it would have given to the economics and social sciences services group the same treatment as the Border Services group. These are the people who appeared before us last night and explained to us that there was simply a slip-up, that they were the only ones given this treatment. And the Liberal Party was interesting last night. It was Mr. McKay, in fact, who used the word “sledgehammer” and said that they had a legitimate grievance, so I'm quite convinced that Mr. McKay is as anxious as we are to rectify that legitimate grievance.

So if numbers 3685689 and 3685802 are not acceptable, we propose to use 3685933.

[The Vice-Chair, Liberal, Massimo Pacetti]

It's not debatable, but to appease you, because I can't answer the question, I'm just wondering if there's an official who can answer it.

Can I ask an official if there seems to be an oversight? I think the question is valid.

[Hélène Laurendeau, Assistant Secretary, Labour Relations and Compensation Operations, Treasury Board Secretariat]

I am Hélène Laurendeau, assistant secretary, Treasury Board.

I had a very quick look at the amendment and I can confirm to the committee that there was no oversight on how the groups were described. There may be some claims by various groups, but the ones that are described currently in the restraint act are properly described. The exceptions addressed the Border Services Agency only, because they had a classification reform that needed to be implemented.

[The Vice-Chair, Liberal, Massimo Pacetti]

Thank you.

Mr. Mulcair, the choice is whether you challenge the chair.

[Thomas Mulcair, NDP, Outremont, QC]

Yes, I challenge the chair.

[The Vice-Chair, Liberal, Massimo Pacetti]

The motion is that the chair's ruling be sustained.

(Ruling of the chair sustained: yeas 6; nays 3)

[The Vice-Chair, Liberal, Massimo Pacetti]

Shall clauses 393 to 395 carry?

[Thomas Mulcair, NDP, Outremont, QC]

To facilitate this process, I'm going to tell you the same thing I told your colleague.

[The Vice-Chair, Liberal, Massimo Pacetti]

That is not a problem. I will ask you the question; and the clerk can act accordingly.

The question is on clauses 393 to 395.

(Clauses 393 to 395 inclusive agreed to: yeas 7; nays 3)

(On clause 396--Complaints before Canadian Human Rights Commission)

[The Vice-Chair, Liberal, Massimo Pacetti]

We're on NDP-12.

NDP-13, NDP-14, NDP-15, and NDP-16 will be ruled inadmissible because we're deleting lines in a clause and it simply means that it attempts to delete a clause. Since in all these cases, because we're attempting to delete a clause, you're doing something that normally would be done.... By deleting a line, you're simply deleting a clause and that is not admissible, so the amendments are ruled out of order.