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.