Natural Resources Committee on June 10th, 2014

[Geoff Regan, Liberal, Halifax West, NS]

Mr. Chair, can I ask Ms. May if it's her view, and would it be the result of this amendment, that absolute liability would be found in terms of use of a dispersant that had a deleterious effect? Or, is it her view that there should only be—the thing is that there some appropriate uses—liability where there's negligence?

[The Chair, Conservative, Leon Benoit]

Go ahead, Ms. May.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Thank you, Mr. Chair, for the latitude.

The effect of this amendment would be to remove the exemption, which would mean it would revert to absolute liability. I can be corrected, but that's how I understand it would work.

The reality is that the science around the dispersant agents is still evolving. By creating the carve-out exemption in Bill C-22 as is currently being proposed, there'd be no effective pressure on manufacturers to consider that the spill-dispersant agent they're using could have a negative impact. It could be even more of a disaster than the spill they're trying to clean up. By maintaining that they're not exempt from environmental damage, there will be more pressure to ensure that spill-dispersant agents are both effective in dealing with a spill and don't become yet another source of problems.

The classic example is what happened with a spill-dispersant agent used after the Deepwater Horizon disaster in the Gulf of Mexico. Some of the spill-dispersant agents themselves contributed to long-lasting negative environmental impacts.

[The Chair, Conservative, Leon Benoit]

Thank you.

Let's go to Ms. Duncan.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Through you, Mr. Chair, I wonder if I could ask Ms. May this question. My understanding is that what you are doing in this amendment is removing the part of the revision that encompasses the area where the government can authorize certain spill-treating agents. My understanding in that case is that there could be a defence of officially induced error.

Is that part of the argument that is being raised?

[The Chair, Conservative, Leon Benoit]

Ms. May, go ahead.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Thank you, Mr. Chair.

Yes, exactly. Thanks, Linda.

The goal here, and I have a number of consequential amendments to this specific issue, is that by removing the words “except in section 25.4”, we're treating spill-dispersant agents without having them be categorized within that broad exemption in 25.4.

[The Chair, Conservative, Leon Benoit]

Okay, thank you.

I call the question on amendment PV-1.

(Amendment negatived [See Minutes of Proceedings])

(Clause 2 agreed to)

There are no more proposed amendments from clauses 3 to 13. Is it agreed that we handle situations like this by voting on all of those clauses as a group? In this case we'd vote on clauses 3 to 13 as a group. Is that agreed?

[An hon. member]

That sounds way too efficient.

[The Chair, Conservative, Leon Benoit]

It's way too efficient? Well, we can back off and go to.... No, okay. We'll handle it that way, then.

(Clauses 3 to 13 inclusive agreed to on division)

(On clause 14)

This is the second proposed amendment by Ms. May, independent, Green.

Go ahead, please, Ms. May.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Thank you, Mr. Chair.

The PV sometimes throws people off, but it's Parti vert. That's the convention that's been used since I've been subject to the committee motions in every committee to come to committees to present amendments without being a member of the committee.

This amendment is clearly consequential to the amendment that was just proposed and just defeated and was in order to ensure that we've removed the regulatory power for variation or revocation of an approval referred to in new paragraph 25.1(1)(b). This is, again, related to how we handle spill-dispersant agents.

[The Chair, Conservative, Leon Benoit]

Right.

Is there anything else on that, or have we pretty much had the discussion?

I'll call the vote on amendment PV-2.

(Amendment negatived [See Minutes of Proceedings])

Now we go to amendment NDP-1 from the New Democratic Party, the official opposition.

Ms. Moore, would you like to speak to that?

[Christine Moore, NDP, Abitibi—Témiscamingue, QC]

To sum it up, this amendment adds a clause to define and account for loss of non-use damage. We're doing that to use the regulatory window to include the environment in assessing the scope and cost of harm to the environment.

I have two quotes to support this amendment.

One is from Martin Olszynski, who said:

ESSA limits the right to recover non-use values to the federal, provincial, and (through operation of s 35 of the Interpretation Act...which seems strange in light of the focus, with respect to “actual loss or damage” on what are essentially Aboriginal use-values, and in light of the fact that several First Nations have Aboriginal title claims in coastal waters...

There's also a quote from Mr. Amos:

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.

[The Chair, Conservative, Leon Benoit]

Thank you very much, Ms. Moore.

Is there any further discussion on NDP-1?

Seeing none, we'll go to the question.

[Christine Moore, NDP, Abitibi—Témiscamingue, QC]

Can I have a recorded vote?

[The Chair, Conservative, Leon Benoit]

Yes, you can have a recorded vote.

(Amendment negatived: nays 5; yeas 4 [See Minutes of Proceedings])

We'll now go to proposed amendment LIB-1.

Go ahead, please, Mr. Regan, if you would like to discuss that.

[Geoff Regan, Liberal, Halifax West, NS]

Thank you, Mr. Chairman.

As you know, this is the second of three proposed amendments that would have essentially the same effect. They are in line with what Mr. Amos was saying about the importance of the inclusion of loss of non-use values. Clearly, impacts to the environment do have a value to Canadian society and should not be ignored. There should be authority to assess those damages and to ensure that those who infringe against the act or who cause or are responsible for damages are liable for those as well.

That is the intent of this amendment as well.

[The Chair, Conservative, Leon Benoit]

Thank you, Mr. Regan.

Ms. Block, and then Ms. Duncan.

[Kelly Block, Conservative, Saskatoon—Rosetown—Biggar, SK]

Mr. Chair, I'd like to ask the officials if they would be able to speak to this proposed amendment.

[The Chair, Conservative, Leon Benoit]

Who would like to do that?

Mr. Labonté.

[Jeff Labonté]

Perhaps I could start.

The amendment calls for the ability to create regulations that would allow for, I guess, determining the nature and approach to calculating non-use value. In the context of the policy direction of the bill, the policy direction of the bill indicates, of course, that non-use value will be recognized. It's recognized in several parts of the bill, and allows for governments, whether they be provincial or federal, to proceed to put forward claims for non-use value. It then would allow the courts to determine the nature and specifics around each case that would allow there to be an evidentiary and values-based discussion and a court-based discussion as to what those values are, how they might be calculated, and what's most appropriate in the circumstances.

The regulation-making authority, of course, would allow for government to consider how that would happen in advance, a priori. I think the policy direction of the bill proposes that it be something to be examined when it's appropriate to examine it.

[The Chair, Conservative, Leon Benoit]

Thank you very much.

Thank you, Ms. Block.

Ms. Duncan.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

I've listened to the explanation, but I don't find the explanation to be adequate. I think it's really disappointing that this is not included here. I think it shows intent not to give consideration to the non-use value.

I actually have an amendment that I would like to propose to yours, Mr. Regan. The reason for this is that in the majority of cases, we speak of the non-use value because of first nation or aboriginal interests. In those cases, I don't think they would really accept that they are “public” resources.

[The Chair, Conservative, Leon Benoit]

Could you please specify what your proposed change is first?

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Sure.

My recommendation would be to delete the word “public” so that the last line would read simply “non-use value relating to a resource”. It's my understanding that in most cases, non-use value references cultural and traditional uses and so forth. In those cases, I don't think there would be recognition that it is a “public” resource.

That's my proposed amendment.