Evidence of meeting #29 for Foreign Affairs and International Development in the 39th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was assistance.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Stephen Wallace  Vice-President, Policy Branch, Canadian International Development Agency
Christiane Verdon  Senior General Counsel, Legal Services Division, Canadian International Development Agency

3:35 p.m.

Conservative

The Chair Conservative Kevin Sorenson

This is the Standing Committee on Foreign Affairs and International Development, meeting number 29. We are here this afternoon to continue our study of Bill C-293, an Act respecting the provision of development assistance abroad.

We have already heard from the sponsor, Mr. McKay, of this private member's bill. I believe that is probably the most recent work we have done on this bill. Many of the members of this committee have suggested witnesses to come forward to testify on the bill. We're going to be hearing from CIDA officials, Department of Foreign Affairs, Finance, and numerous research and policy centres from around the country who wish to contribute to our study on the bill.

Today we have as witnesses from CIDA, the Canadian International Development Agency, Christiane Verdon, senior general counsel, legal services division; and Stephen Wallace, vice-president of the policy branch.

We welcome you here today. We look forward to what you have for us. We'll then go into the first round of questions.

In the second hour today we will be discussing our draft report concerning the committee's study and recommendations on Haiti. In this first hour we welcome you here. We look forward to what you have to say on this all-important bill.

The time is yours. Thank you.

3:35 p.m.

Stephen Wallace Vice-President, Policy Branch, Canadian International Development Agency

Thank you very much, Mr. Chair.

Thank you, Mr. Sorenson.

It really is an honour to be here.

It’s a privilege for us to appear before the committee.

We're very pleased to continue to support the work of the committee. We've been following closely the progress of Bill C-293 and have been studying its possible implications. We've also undertaken background analysis of legislative mandates across OECD member countries, and we'd be happy to discuss the results of this international analysis if you would like and are interested in it.

As the Organization for Economic Cooperation and Development has put it most recently:

A well-developed legislative basis has the advantages of transparency and of clarifying responsibilities among the various government entities that may be involved, as well as establishing development objectives.... On the other hand, countries with a less formalised legal basis may have more flexibility to act and this could be an advantage when trying to build coalitions between development agencies and other government entities whose policies and actions have an impact on development prospects in developing countries.

That's from the OECD earlier this year. Legislation is indeed featured quite prominently in several other countries of the Organization of Economic Cooperation and Development, although it is quite specific to the legal and political circumstances in each particular case. There's not a lot of comparability when you walk across the international system; these are fitted very much to local circumstances.

A key objective of development assistance legislation is establishing a clear and efficient legal basis for the aid program in a way that can stand the test of time and remain relevant in a changing world.

This challenge is, of course, even greater from a legal perspective when you consider the range of government departments here in Canada, including the Departments of Finance, Foreign Affairs, and line ministries that help to deliver on Canada's aid program and that will be affected by this bill.

From an operational perspective, Bill C-293 needs to achieve a result—and I think committee members have been working towards that objective—that is clear and simple, easy to understand, understandable in its application, and with relevant and efficient reporting requirements.

On the easy-to-understand question, my colleague would like to raise a number of points that we hope will be of use to the committee in its detailed review of the bill.

It's important to state at the outset that the underlying objectives of Bill C-293—i.e., achieving greater clarity of purpose, strengthening accountability, and setting new standards of transparency—are consistent with the guidance we have received from the government. These are core elements of better aid. They are objectives that lie at the heart of the aid effectiveness agenda that the Minister of International Cooperation had the opportunity to discuss with you less than three weeks ago.

For the past six months, CIDA has been implementing a four-part program to make aid more efficient, through a more strategic focusing of Canadian cooperation, a systematic improvement of program delivery, a more effective and efficient use of our resources and a clear accountability for results. These issues can also be found in several provisions of this bill.

In terms of the objective that it must be understandable in its application, I want to identify a number of potential problem areas for consideration, taking into account as well any amendments the sponsor of Bill C-293 has put to the committee.

The first has to do with the petitions system. Measures to increase the responsiveness of the aid program to those for whom aid is intended are indeed important, but we have questions about its value-added, the management requirements, and overhead implications for the aid program.

A second question relates to how we would apply the mandatory requirement, as we see it, to consult international agencies and Canadian civil society organizations on any decision involving the use of aid. This could cover literally thousands of decisions every year, around the world, for which specific consultative arrangements would need to be established and where Canadian civil society organizations may not even be present.

We're very much engaged on an ongoing basis with consultative processes. These are essential to our effectiveness, be they on partner relations, country strategies, or sectoral and operational issues, for example. But we are concerned about the administrative implications of doing so, as formulated in this proposed bill, on an indiscriminate basis.

We see a related problem in how we would interpret in law the otherwise critically important principle of taking into account the perspectives of the poor. CIDA and its more than 700 Canadian partners currently do so through a variety of formal processes--for example, project steering committees, country strategy exercises, consultations on different themes and sectors--and a lot of informal meetings, through site visits, through discussions, through background research. This is what we do right now in taking account of perspectives of the poor. In law it is unclear what would be the test of performance in this particular area. We raise that as an issue.

Moving on, we've had good experience with advisory committees. We believe they can add real value and transparency to Canada's international cooperation program. We wonder, however, whether limiting advice to ministers to a single advisory committee is preferable to special purpose committees that can provide specialized advice on particular issues. In three weeks, for example, an expert panel is being established under the minister's authority to examine issues related to Canadian partnership programming in civil society. The composition of this committee has been designed specifically in relation to its particular mandate.

More can be done to strengthen reporting for accountability and results. Bill C-293 contains several provisions in this regard. The requirement to report on any activity or initiative taken under the bill is very broad, and in our view unprecedented. Other reporting provisions are the responsibility of various ministers, and we expect that the committee will want to ensure that there is no blurring of the accountability relationship that specific ministers might have to Parliament.

These are some of the operational questions, Mr. Chair and committee members, raised as we go through some of the specifics of Bill C-293. We'd be very pleased to discuss them and other areas of interest. We hope our perspectives will serve the needs of the committee.

Thank you very much.

3:40 p.m.

Conservative

The Chair Conservative Kevin Sorenson

Thank you very much, Mr. Wallace.

Madam Verdon.

3:40 p.m.

Christiane Verdon Senior General Counsel, Legal Services Division, Canadian International Development Agency

Thank you, Mr. Chair.

I will address my comments to the bill as tabled in the House as well as to the amendments moved by the sponsor.

The bill raises a number of questions. I would like to comment on some of these. First, it does not seem to take into consideration the present legislative framework. Second, its wording is such that it leaves much room for interpretation, which can increase the risk of judicial reviews. Third, it superimposes development assistance criteria that will make it difficult to implement. Finally, the overlapping of some provisions with other legislation will blur accountability in the development assistance field.

Let me give you a few examples. First, I will address the present legislative framework. In the federal government, development assistance is covered by several acts that define the mandate of the ministers responsible for the administration of development assistance programs. The legislative framework is both specific and complex. For instance, it includes the Department of Foreign Affairs and International Trade Act, the International Development (Financial Institutions) Assistance Act and the Bretton Woods and Related Agreements Act.

I would be happy to say more about this, if you wish me to, but the representatives of the Department of Foreign Affairs and International Trade and the Department of Finance can also explain the issues they perceive about the impact of the bill on their respective legislations.

A second category of questions relates to interpretation and drafting issues. The bill presents some interpretation questions because of inconsistent language throughout the bill and the use of words or expressions that do not always have a precise meaning. Here are a few examples of inconsistent language.

Two different expressions, “Canadian development assistance abroad” and “Canadian development activities abroad”, are used within the same clause--clause 2. It is unclear if the expressions are meant to be different. Is the term “Canadian development activities” meant to cover the type of assistance referred to in clause 5--i.e., humanitarian assistance--as well as the defined term “development assistance”? If this is the case, humanitarian assistance would have to be provided in accordance with the principles of sustainable development. Also, the requirement to exercise Canadian development activities abroad in accordance with the principles of sustainable development is not subject to the same standard of ministerial discretion as the requirement to contribute to poverty reduction.

Also, in clause 2, the words “international human rights standards” are inconsistent with the wording found in paragraph 4(1)(c), which uses “Canada's international human rights obligations”. It is unclear why two different expressions are used.

Finally, the term “competent minister” refers to ministers designated to provide development assistance, not humanitarian assistance. However, the term “competent minister” is used in clause 5, which appears to relate to humanitarian assistance.

Examples of the lack of precise meaning in the purpose clause, clause 2, include concepts like “Canadian values” and “international human rights standards”, which do not have an easily defined ordinary meaning. A definition of the latter term, “international human rights standards”, has been offered in proposed amendments, but it still steers away from Canada's actual international obligations.

The amended definition proposed for “development assistance” is unclear. For example, the funding transfers seem to be to developing countries and multilateral institutions only. On its face, this can mean that funding transferred to NGOs for the benefit of the developing countries is excluded from the definition. It should be noted, of course, that the use of vague terms could open the door to a greater risk of judicial review.

There are two more points I would like to add in relation to drafting.

Purpose sections are usually meant to declare the principles of an act. They should not create obligations, which should be found in the more substantive provisions further in the bill, but subclause 2(2) does create an obligation that in fact goes beyond the purpose of the bill as stated in subclause 2(1). The purpose in subclause 2(1) relates to development assistance; however, the obligation in subsection 2(2) relates to all development activities abroad.

With respect to clause 7, on petitions, the petition system creates a risk of judicial review, especially taking into account the ambiguous language of subclause 7(5), which suggests that corrective measures must be taken.

A third category of questions I have relates to the superimposition of the various applicable criteria to ministerial decisions with respect to development. Beyond the issues of reconciling the various mandates expressed in the other statutes, Bill C-293 itself presents a challenge in the application of the various criteria or filters it sets for the provision of development assistance.

Let's look first at the definition of development assistance. The definition incorporates the definition provided by an international body, the OECD, and it is ex post facto that the OECD determines that funding already provided by a donor country constitutes ODA for the purposes of the OECD.

The amendment to this proposed definition includes a substantive dimension beyond the formal criterion: the transfer must promote the economic and social development of developing countries. This criterion, which defines the scope of the bill, will make it more complex to interpret and implement as drafted.

Let us now examine the criteria defined in subsection 2(2). This subsection about Canadian development activities abroad requires these activities to be provided in accordance with the principles of sustainable development.

Subsection 4(1) adds three conditions to the exercise of ministerial discretion about whether or not development assistance will be provided. Assistance must contribute to poverty reduction, take into account the perspectives of the poor and to be consistent with Canada's international human rights obligations.

The wording of paragraph 4(1)(c) is particularly problematic. It goes without saying that any minister is required to honour Canada's international obligations. However, given the interpretation principle of effectiveness, which provides that everything the legislator says has a purpose, there is a risk that the wording to the effect that the minister must honour Canada's international human rights obligations be interpreted as introducing a new requirement in Canadian law.

In addition, according to the amendment moved by the bill sponsor, in arriving at the opinion that development assistance contributes to poverty reduction, the competent minister must consult with international agencies and Canadian civil society. Beyond implementation issues, this requirement could open the door to a greater risk of repeated judicial reviews.

A final category of questions relates to

redundancy and blurred accountability.

The reporting sections of the bill create two levels of difficulty: they create requirements for reporting that are repetitive when taking into account the obligations under other acts and within this bill, and they appear to blur the accountabilities of the ministers involved.

For example, under clauses 9 and 10, both the Minister of International Cooperation and the Minister of Finance have to submit a report relating to the bill.

The Minister of International Cooperation has to submit a report containing a description of any activity or initiative taken under this act, while the Minister of Finance must submit a report containing a summary of operations under this act. The distinction between the two reports is not clear and begs the question of who is truly accountable for reporting under this bill.

Under the current legislation, it is the Minister of Finance who submits a report under the Bretton Woods and Related Agreements Act. The requirement in paragraph 9(1)(c) to submit a summary of that report is an example of duplication of the tasks of the Minister of International Cooperation and the Minister of Finance.

This was a brief outline of some of the issues raised by Bill C-293. This is what I would call a horizontal bill impacting the mandates and responsibilities of several ministers which are already included in other acts of Parliament, such as the Department of Foreign Affairs and the Department of Finance acts.

I will leave it to officials of these departments to give you more information on this.

3:55 p.m.

Conservative

The Chair Conservative Kevin Sorenson

Merci, Madame Verdon and Mr. Wallace.

Mr. McKay, you have seven minutes on the first round.

3:55 p.m.

Liberal

John McKay Liberal Scarborough—Guildwood, ON

I'm sure Mr. Obhrai was following those comments closely.

Thank you, witnesses, for coming this afternoon. I'm always concerned when the relevant department says it is consistent with CIDA goals and its objectives and consistent with the minister, and then spends the balance of the time pulling apart the bill.

In any event, you have good work to do here. Let me see if I can pick out a few of the questions. I would have liked to have read your brief prior to its submission, because it's so detailed and it was difficult to follow specific sections that you were having concerns about.

The petition system, under the proposed amendments, is eliminated, so I'm a little perplexed by your comments on the workability of the petition system. Am I missing something there?

3:55 p.m.

Conservative

The Chair Conservative Kevin Sorenson

I think Mr. Wallace...they are making comments in regard to the initial draft of the bill. They probably don't have any—

3:55 p.m.

Liberal

John McKay Liberal Scarborough—Guildwood, ON

No, they said they did.

3:55 p.m.

Vice-President, Policy Branch, Canadian International Development Agency

Stephen Wallace

We were taking into account both. We're not quite sure where the amendments are going to go, so we needed to make comments on both aspects.

3:55 p.m.

Liberal

John McKay Liberal Scarborough—Guildwood, ON

Subject to the will of the committee, it's proposed that we withdraw the petition system, so that would eliminate that concern.

You said that the interpretation is unpredictable and that there's some redundancy. I'll go to your last comment first, Ms. Verdon. I understood your comment in the sense that you thought the Minister of Finance had to report, and also presumably the CIDA minister had to report, but I'm not clear why that's a redundancy.

3:55 p.m.

Senior General Counsel, Legal Services Division, Canadian International Development Agency

Christiane Verdon

Well, to me it seemed redundant. When I look at the wording of the clause, it seems to mention more or less the same thing.

I'm trying to find it now.

3:55 p.m.

Liberal

John McKay Liberal Scarborough—Guildwood, ON

Isn't that merely an obligation on the part of both ministers to report to Parliament? Presumably they would report something similar to what they would be making up in any event. There's no additional obligation on the part of the minister or ministers.

3:55 p.m.

Senior General Counsel, Legal Services Division, Canadian International Development Agency

Christiane Verdon

I was looking at clause 10. It referred to “a summary of any representation made by Canadian representatives with respect to the priorities and policies of the Bretton Woods Institutions”. Clause 9 says the same thing, except that instead of “Bretton Woods Institutions”, it says “the World Bank and the International Monetary Fund”.

Maybe I'm not well informed, but I thought the Bretton Woods institutions and the World Bank and the IMF were the same. Based on that, I thought...it seemed redundant that they would both report on that—

3:55 p.m.

Liberal

John McKay Liberal Scarborough—Guildwood, ON

Bretton Woods is our treaty obligations. That's what precipitates the IMF and the World Bank.

3:55 p.m.

Senior General Counsel, Legal Services Division, Canadian International Development Agency

Christiane Verdon

The IMF, the World Bank, and a few other organizations are all part of the Bretton Woods institutions—

3:55 p.m.

Liberal

John McKay Liberal Scarborough—Guildwood, ON

That's my point.

3:55 p.m.

Senior General Counsel, Legal Services Division, Canadian International Development Agency

Christiane Verdon

—so it seemed to me to be the same. Then the Minister of International Cooperation does not have responsibilities for Bretton Woods institutions; the Minister of Finance has. That's why it was mentioned.

3:55 p.m.

Liberal

John McKay Liberal Scarborough—Guildwood, ON

Presumably, in a future parliament, receiving a report from Bretton Woods, whether it's from the Department of Finance or from the CIDA minister of the time, is going to accomplish that particular goal and be able to point to that section.

You took objection to the new development assistance definition. I'm assuming you're aware that we took that definition directly from the minister's comments.

In your comments you made reference to clause 3, development assistance, and the OECD. We had submitted a changed definition, which means funding that is transferred to developing countries and multilateral institutions by government agencies, and that is administered with the principal objective of promoting economic development and welfare of developing countries that is concessional in character, and that conveys a grant element of at least 25%. So I wasn't sure whether your objections were to the development assistance definition as originally put in the bill or to the development assistance definition as proposed in our amendment.

4 p.m.

Vice-President, Policy Branch, Canadian International Development Agency

Stephen Wallace

Mr. McKay, I'd like to answer that one, because it has to do with the amended proposal. The problem as we see it is that it is textual language drawn from the OECD, and it was never meant as legal language. It was always meant as a guideline, a policy statement that gives the scope of development assistance. It's when you translate what is essentially a policy provision into law that you have to examine whether it will create difficulties with respect to its interpretation.

In this case, you have references that deal with transfers to foreign governments and transfers to international organizations. That appears to be the legal scope of that particular reference, whereas we know that we provide over half a billion dollars a year through Canadian organizations that doesn't go directly to foreign governments, doesn't go directly to international organizations. The spirit of that intent and its definition in the OECD is well understood in the way it's interpreted, but when you translate it into law, you may run into difficulties because of the narrowness of the interpretation that could be given.

4 p.m.

Liberal

John McKay Liberal Scarborough—Guildwood, ON

Isn't that what we follow presently--the OECD definition of ODA aid?

4 p.m.

Vice-President, Policy Branch, Canadian International Development Agency

Stephen Wallace

From a policy perspective, yes, but not within a legal parameter.

4 p.m.

Liberal

John McKay Liberal Scarborough—Guildwood, ON

Effectively, if this definition is acceptable, it in fact narrows your scope.

4 p.m.

Vice-President, Policy Branch, Canadian International Development Agency

Stephen Wallace

It could be interpreted as being very narrow--as excluding over 700 Canadian organizations to whom we provide funding.

4 p.m.

Liberal

John McKay Liberal Scarborough—Guildwood, ON

You'd like a less precise definition rather than a more precise definition.

4 p.m.

Vice-President, Policy Branch, Canadian International Development Agency

Stephen Wallace

It would be a more encompassing definition.