Thank you, Mr. Chair. Thank you to all of the members. I appreciate the opportunity again.
This is an important issue, and I'm very happy that we have legislation on the floor of the House. This is long overdue, but I'm very glad that we've reached this stage.
I'm with Ecojustice, which is Canada's largest public interest environmental law organization. We've focused on this issue since July 2010. We've been studying it carefully. I've circulated an article that was published by the McGill International Journal of Sustainable Development Law and Policy. Two students here are working with Ecojustice this summer and are on the board of the journal that published the article.
We have invested significant energy into this issue, and our reactions to the bill are not off the cuff. We have provided significant input to this government on this issue. Proactively we interacted extensively with the officials who just came before you, and I would agree, Mr. Chair, that they're very professional, very knowledgeable. I know they have worked very hard on this file to help bring the government to a place where it could table strong legislation. I'd like to point out what I feel are the positive aspects and also some areas of concern.
On the positive side, obviously increasing the liability cap is a good thing. It had to happen. The absolute liability cap was ridiculously low. I know we'll get into discussions of this. It is our position that the notion of the polluter pays principle, which has been incorporated into the preamble, is a good thing. However, we don't feel that as a matter of public policy or as a matter of international or domestic law that restricting the polluter pays principle by having an absolute liability limit of $1 billion is appropriate. They're incommensurate in our opinion.
The second aspect to comment on positively is the inclusion of loss of non-use values relating to a public resource. This is an issue that we worked very hard on with Natural Resources Canada and other departments. We're very glad to see this included, because until now, under domestic law in Canada, the only way the government could seek to claim non-use environmental or ecological damages would have been through the invocation of the Supreme Court decision in Canadian Forest Products Ltd. That decision enabled non-use damages to be claimed, but there was no statutory basis for it and having a statutory footing is important, so that's a positive.
However, there are no regulation-making powers associated with non-use values, damages, and that really does ultimately restrict the government or the crown in how it can move forward to enunciate specifically what types of non-use damages will be claimable under what conditions. There's a lack of specificity in the legislation itself, which isn't necessarily problematic, but the fact that there's no regulation-making power around it doesn't enable that specificity to come into play. I think that additional aspect should be entertained.
Finally, to include another positive, the new sentencing principles added to guide courts, which include aggravating factors of causing risk of damage or damage to the environment, including loss of non-use values, is really helpful. I think that's a useful provision.
I think I've made my simple point on the absolute liability limit. That issue has been debated back and forth. I sense the $1 billion number is literally picked out of thin air. Conversations we had with the government were not dissimilar to the question of what's the right number. We said there is no right number; it should be unlimited liability.
It seems to me that at a certain point there has to be a recognition on the part of the government that, if there is going to be a functioning free market, then entities that want to engage in risky activities, for example Arctic offshore drilling, they should be able to pay the full freight.
I think it is unlikely that we could expect the crown to recover all of the damages caused, including non-use damages, if there were a worst-case scenario off any of Canada's coasts.
I'll leave my remarks at that and I appreciate the opportunity.
Thank you, Chair.