Natural Resources Committee on April 23rd, 2015

[Chris Charlton, NDP, Hamilton Mountain, ON]

Don't get used to it.

[Some hon. members]

Oh, oh!

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

I won't.

[The Chair, Conservative, Leon Benoit]

Okay, let's not get....

On amendment PV-8, go ahead, please.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

Don't be so quick to be judging—

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

No, listen, it took four years and I remained hopeful.

The next amendment gets to the issue of a question that I'm sure this committee has heard a great deal about. I certainly know from witnesses that you have heard that it is important to have legislation recommend environmental damage. The use of the words “non-use value” is recommended by a number of the witnesses you had before you, but I'm particularly going to cite the evidence of Professor Olszynski from the University of Calgary Law School. I'll quote from his evidence:

My first recommendation is that the third category of loss under the civil liability provisions be amended to refer simply to environmental damages.....coupled with an additional subsection defining environmental damages, as is the case in the sentencing provisions.

It would not only simplify the section and ensure its comprehensiveness, but it is also necessary to correct what appears to be an error in the current bill. That is the effect of my amendment.

There is one other part of my amendment that deals with another part of Professor Olszynski's testimony, which is that the Governor in Council should be required within a certain timeframe, or at least authorized, to make the regulation setting out a process for environmental damage assessment.

[The Chair, Conservative, Leon Benoit]

Thank you, Ms. May.

Are there any further comments on amendment PV-8?

[Guy Caron, NDP, Rimouski-Neigette—Témiscouata—Les Basques, QC]

I'd like a recorded vote, please.

[The Chair, Conservative, Leon Benoit]

Okay.

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

We will go now to amendment NDP-4, Monsieur Caron.

[Guy Caron, NDP, Rimouski-Neigette—Témiscouata—Les Basques, QC]

Thank you very much.

When the witnesses and officials were here, we asked them a number of questions about the potential conflict that could arise between the liabilities set out in the bill and the provisions included in Canada's various civil codes.

We want to add subsection (1.1) to section 48.12 of the act to make sure that farmers or landowners will no longer be held liable for the actions of their contractors. The Civil Code of Québec already has those kinds of provisions. Not including them in the bill could give rise to a potential conflict between federal and provincial legislation.

What we're trying to do is make sure that a landowner will not be held liable for a leak unless it results from the gross or intentional fault of the landowner. That needs to be clarified because the Civil Code of Québec seems to differ from other provincial codes.

[The Chair, Conservative, Leon Benoit]

Merci, monsieur Caron.

Is there any further comment on this?

Mr. Regan, go ahead, please.

[Geoff Regan, Liberal, Halifax West, NS]

Mr. Chair, I wonder if we could ask officials to comment on this and what its impact would be.

[The Chair, Conservative, Leon Benoit]

Please go ahead, Mr. Labonté, or whoever would like to speak to that.

[Jeff Labonté]

My understanding is that this is aimed at avoiding a conflict between federal and provincial law. That said, in the areas in any province where there is a federal pipeline that is under federal jurisdiction, they're inherently federal works. The degree to which, and the potential for which, there would be a conflict wouldn't exist because they are federal in nature and not provincial.

I might be wrong about that from a legal perspective, but my Justice colleague might be able to add to that.

[The Chair, Conservative, Leon Benoit]

Mr. McHattie, would you like to speak to that?

[Joseph McHattie, Legal Counsel, Department of Natural Resources]

Just to back up what Mr. Labonté is saying, this is federal legislation governing the federal matter of inter-provincial pipelines. So under this regime, those would the rules that would apply. It's not quite a conflict with any provincial regime, because it would be under a special liability regime set up in this section.

[The Chair, Conservative, Leon Benoit]

Thank you.

Are there any further comments on that?

(Amendment negatived [See Minutes of Proceedings])

On amendment NDP-5, Ms. Duncan.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

I want to thank the legislative lawyers for helping me with this one. My intention was to go in the direction that Ms. May went, and to make it mandatory for the government to issue the regulations clarifying non-use. It's a problem throughout this bill where a lot of the detail is left to regulation, which the government has a practice of simply stalling on promulgating. As I understand it, there is a problem in the courts where the courts are reluctant...in the case of the cabinet or the Governor in Council having the power to make the regulation as opposed to a minister.

What this provision does in the matter of non-use value, which is a significant matter that the government, in its wisdom, has chosen to add to the spill liability law, is clarifying exactly what they mean by non-use value. This simply adds the power to make regulations to clarify non-use value and provides for accountability. As a package, it is holding the government accountable so that if the cabinet decides it wants to delay clarifying this matter, it will have to account for that to Parliament.

This is about transparency.

[The Chair, Conservative, Leon Benoit]

Thank you, Ms. Duncan.

Is there any further discussion?

Ms. Block.

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

I'll just make a couple of comments, Mr. Chair.

We are opposing this amendment. It is up to the courts to determine what value, if any, is appropriate to place on non-use value damage claims on a case-specific basis. Also, the current approach in Bill C-46, as with other federal legislation, will allow the courts to develop a body of precedents in the area of awards for non-use value damages.

I guess the third piece that's very important is that setting a time limit on the creation of the regulations could bind the regulatory process, which needs to include adequate periods of time to ensure appropriate consultations are undertaken.

[The Chair, Conservative, Leon Benoit]

Thank you, Ms. Block.

Is there any further comment?

(Amendment negatived [See Minutes of Proceedings])

We'll go to amendment Liberal-3.

Mr. Regan, go ahead, please.

[Geoff Regan, Liberal, Halifax West, NS]

Thank you, Mr. Chairman.

As the Union des producteurs agricoles has indicated to us, proposed subsection 48.12(1) would make the agriculture or forestry producer liable if their operations cause a rupture in a pipeline. This conflicts with proposed paragraph 86(2)(d), which provides that a land accession agreement must include an “indemnification” clause. This proposed amendment would overcome that conflict and I think solve this problem that exists in the bill as it is.

[The Chair, Conservative, Leon Benoit]

Thank you, Mr. Regan.

Is there any further discussion on that?

Ms. Block, and then Ms. Duncan.

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

Thank you very much, Mr. Chair.

We will be opposing this amendment as the regime in proposed section 48.12 makes all persons whose fault or negligence contributes to a spill liable for the effects of the spill. Polluter pays is therefore enshrined in law, and it does not create any exception to the polluter pays principle, as this amendment would do.

[The Chair, Conservative, Leon Benoit]

Thank you, Ms. Block.

Ms. Duncan, you had a question for the officials?