Natural Resources Committee on April 23rd, 2015

[Geoff Regan, Liberal, Halifax West, NS]

So, Mr. Chair, does that mean that if in the event—and hopefully this wouldn't happen—that the government's lawyers made a mistake and sought damages under the Fisheries Act, they wouldn't be able to do so and they'd have to start over, if this proposed subsection were left in?

[Jeff Labonté]

Prior to the bill being introduced the liability regime in the NEB Act is fairly broad and doesn't have a lot of specificity. As the amendments point out, we're introducing a high degree of specificity, including an operator being accountable for any fault or negligent activity in which an unintended release occurs. Then it continues throughout and gets down to proposed subsection 48.12(8) and says that in the event of the government being able to...which is proposed paragraph 48.12(1)(b), the government can receive its expenses and costs incurred under the pipeline safety act, rather than necessarily be covered under the Fisheries Act.

The coverage here is included in this bill and so it's removing it from that particular instance.

It does preserve...in the subsection before, and I didn't suggest there was a conflict between proposed subsections 48.12(7) and (8). It is between the latter and other bills. It does preserve that if absolute liability exists somewhere else, it is preserved at a higher amount, because proposed subsection 48.12(5) in this particular bill spells out the absolute liability and its limitations or how it applies to major oil pipelines.

[The Chair, Conservative, Leon Benoit]

Thank you.

We go to the vote on PV-9.

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

I'd like a recorded vote, please.

[The Chair, Conservative, Leon Benoit]

Those in favour?

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

As for NDP-7, it inadmissible. I am taking the advice of the legislative clerk on this.

But, Ms. Duncan, would you like to move your motion, NDP-7, first?

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Yes, I would like to move it. Can I speak to it?

[The Chair, Conservative, Leon Benoit]

Yes, go ahead and speak to it.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Consistent with what I've said previously, I am moving that proposed subsection 48.12(9) be amended to say not only federal and provincial, but also include municipal institutions, and that aboriginal governing bodies may institute proceedings to recover loss of a non-use value described in paragraph 1(c). I am proposing that to ensure that the law is consistent.

Proposed section 48.15 says that reimbursement may be sought by any federal, provincial, or municipal government institution or any aboriginal governing body. To not do so means that in some cases a municipality or an aboriginal body can seek restitution and in other cases they cannot.

I look forward to an explanation why there would be inconsistent rights and opportunities under the bill. In some cases municipalities and aboriginal governing bodies could seek recompense and in other cases not. The arguments I've heard previously against that puzzle me, since they have specifically included them proposed section 48.15.

[The Chair, Conservative, Leon Benoit]

Thank you, Ms. Duncan.

On the advice of the legislative clerk, I'll read the reason for my ruling that this is inadmissible.

The amendment seeks to broaden beyond Her Majesty in right of Canada and the province the category of actors who can institute proceedings to recover a loss of non-use value relating to a public resource. As House of Commons Procedure and Practice, second edition, states on page 766:

An amendment to a bill that was referred to a committee after second reading or a bill at report stage is out of order if it is beyond the scope and principle of the bill.

I agree with that advice given by the clerk.

I realize that we have allowed proposed amendments to be moved and debated and voted on that do broaden the scope. In this particular amendment it specifically says only Her Majesty in the right of Canada or a province. In the others it had already broadened it out by saying “or other persons”. That allows us to debate those and to vote on them. In this case, it is inadmissible.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Therefore, if I could get clarification, a municipality may seek recompense for cause and expenses that they incurred in response to a spill, but not for non-use value. I mention this just so the government understands what they are saying.

[The Chair, Conservative, Leon Benoit]

Thank you, Ms. Duncan.

Now, we go to PV-10.

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

Thank you, Mr. Chair.

This is very similar, so I'm having these little hopeful moments after the one that was passed earlier. The current language we find in proposed subsection 48.12(9), in clause 16 of the current bill. The way it currently reads is that “Only Her Majesty in right of Canada or a province may institute proceedings to recover a loss of non-use value as described“ above.

My amendment seeks, once again, to suggest that a first nations government, as defined by aboriginal governing body found in the definition section of this act, would also be considered eligible to institute such proceedings. It's a small amendment in terms of language. It would read: “Only Her Majesty in right of Canada or a province or an Aboriginal governing body may institute proceedings to recover a loss of non-use value”, etc.

[The Chair, Conservative, Leon Benoit]

Thank you, Ms. May.

As you will probably guess, I will be ruling, for exactly the same reasons, that this proposed amendment is inadmissible. We are consistent.

We're now on NDP-8.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Thank you, Mr. Chair. I'll speak to that one.

This is a very straightforward amendment. I'm simply proposing that there be a provision added that the minister be obligated to coordinate with appropriate provincial ministers all proceedings to recover claims.

This is based on my personal experience with the Wabamun spill, the spill of 700,000 litres of bunker C into Lake Wabamun, and the abject failure of the two levels of government to respond properly to the spill or to coordinate. Of course, there have been many official reports written about this abject failure to coordinate. We are hearing now about the complaints about alleged lack of cooperation in responding to the spill in English Bay.

I'm simply proposing this as a proactive measure to alert the federal government that this is a role that they could step forward to deliver, particularly because we're talking about pipelines that are under federal jurisdiction.

[The Chair, Conservative, Leon Benoit]

Thank you, Ms. Duncan.

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

On NDP-9, go ahead, please, Ms. Duncan.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Thank you, Mr. Chair.

In essence, what is being recommended here is that the limitation dates be extended. I know from personal experience in assisting families and communities that have dealt with spills that often there are cases where they don't even become aware of it, because there could be a slow leak from a pipeline. There has been a lot of consternation in my province between landmen and farmers about this. I'm simply suggesting that there be a longer time period.

I make a differentiation here by saying “five years from the day on which the loss, damage, or costs and expenses” were actually incurred and “in no case after 10 years from the day on which the release” occurred. There can be a difference between when people are aware of the spill and seek to have it cleaned up, and it occurring and people not even discovering until too late.

In the case of an abandoned pipeline, this states that there be no limitation date, for obvious reasons. One may not be aware for quite some time of the impacts of a spill or a leak or a release of any kind from an abandoned pipeline.

[The Chair, Conservative, Leon Benoit]

Thank you, Ms. Duncan.

(Amendment negatived [See Minutes of Proceedings])

We'll go now to PV-11.

Ms. May.

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

Thank you, Mr. Chair.

This amendment deals with the issue that's currently found on page 9 in proposed subsection 48.12(12), that:

Proceedings in respect of claims under this section may be instituted

—so we have some time limitations here—

within three years from the day on which the loss, damage or costs and expenses were incurred

The concern that the Green Party has with this amendment is that sometimes, and it's not hard to imagine the times, when the loss or damage may have occurred, or even started to occur sometime earlier, even more than a year ahead, you will then find yourself with the clock ticking and you're statute-limited in launching your claim. What we're suggesting here is that the section should be amended to include the words “discovery of” as opposed to being time limited from the time the loss or damage started to occur. It would be from the day on which the discovery of the loss or damage was made or on which costs and damages were incurred, and then in no case more than six years from the day on which the discovery was made.

It certainly is common, in many statutes where time limitations are being put in place, to time the complainant's access to a claim for damages not to the moment when the damage occurred but from when they discovered it. I can refer the committee back to evidence in this regard from Union des producteurs agricoles. They are very concerned that a pipeline could be leaking contaminants for some years but it would only be discovered sometime later.

I hope this amendment might be considered favourably.

[The Chair, Conservative, Leon Benoit]

Thank you, Ms. May.

(Amendment negatived [See Minutes of Proceedings])

We still have another two proposed amendments on this same proposed subsection 48.12(12).

Mr. Regan, Liberal-4.

[Geoff Regan, Liberal, Halifax West, NS]

Mr. Chairman, this amendment would have the same effect as the amendment that was just defeated, the amendment from Ms. May. Of course, I'm confident that my colleagues on the opposite side will find this more attractive because it's nice and briefer wording. You never know, it's worth a shot.

[The Chair, Conservative, Leon Benoit]

Thank you, Mr. Regan.

(Amendment negatived [See Minutes of Proceedings])

We can always hope.

Next is NDP-10. That's yours, Ms. Duncan.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Thank you.

Very succinctly we're dealing with a good number of statutes here, the Indian Oil and Gas Act, COGLA, the NEB Act, and so forth. So I have added in these words to try to be consistent. I'm adding in specifically:

...in the case of debris, from the day the installation or structure in question....

And so on and so forth. My understanding is that it's consistent with other legislation.

[The Chair, Conservative, Leon Benoit]

You want a recorded vote. We'll go to a recorded vote.

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

NDP-11, Monsieur Caron.

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

The purpose of our eleventh amendment is to remove the references to the various financial tools that companies can use to secure the amounts to be repaid in the event of a leak. The recommendation comes from, among others, the Union des producteurs agricoles, which indicated in its brief that the government should have taken guidance from the board's decision further to the hearings on the set-aside and collection mechanisms developed in May 2014 in order to standardize practices.

We're concerned that it will be difficult to ensure follow-up of all these financial tools and that, because of their complexity, it may not always be possible to access the required funds quickly.

[The Chair, Conservative, Leon Benoit]

Thank you, Mr. Caron.

That is clause 16 on page 9 at the bottom.

Any further discussion on that?

Yes, Mr. Regan, then Ms. Duncan.