Debates of Nov. 1st, 1995

Agriculture And Agri-Food Administrative Monetary Penalties Act

[Jim Silye, Reform, Calgary Centre, AB]

He has been doing some good field work.

[Jake Hoeppner, Reform, Lisgar—Marquette, MB]

It is too late for that. I was under the impression that we should do a little bit of ploughing before we start harvesting because the crop would be better.

The Liberals do not realize that we have to put in a crop before we can harvest it. They like to pluck the plums from the tree after they are ripe. We will continue to allow them to do that and hope that maybe in the next election we can change things around.

[The Acting Speaker (Mrs. Maheu)]

Is the House ready for the question?

[Some hon. members]

Question.

[The Acting Speaker (Mrs. Maheu)]

Is it the pleasure of the House to adopt the motion?

[Some hon. members]

Agreed.

[Some hon. members]

No.

[The Acting Speaker (Mrs. Maheu)]

All those in favour of the motion will please say yea.

[Some hon. members]

Yea.

[The Acting Speaker (Mrs. Maheu)]

All those opposed to the motion will please say nay.

[Some hon. members]

Nay.

[The Acting Speaker (Mrs. Maheu)]

In my opinion the yeas have it.

And more than five members having risen:

[The Acting Speaker (Mrs. Maheu)]

Call in the members.

And the bells having rung:

[Don Boudria, Liberal, Glengarry—Prescott—Russell, ON]

Madam Speaker, it is requested that the vote on the motion be deferred until tomorrow at 10 a.m.

[The Acting Speaker (Mrs. Maheu)]

Pursuant to Standing Order 45(5)(a), the division on the question now before the House stands deferred until tomorrow at 10 a.m., at which time the bells to call in the members will be sounded for not more than 15 minutes.

[Translation]

The House resumed, from June 19, 1995, consideration of the motion that Bill C-88, an act to implement the Agreement on Internal Trade, be read the second time and referred to a committee.

Agreement On Internal Trade Implementation Act

[René Laurin, Bloc, Joliette, QC]

Madam Speaker, Bill C-88 deals with internal trade in Canada. The bill frequently refers to the Agreement on Internal Trade, which includes several hundreds, and even thousands of articles. Since Bill C-88 expressly refers to the agreement, it makes sense to give an overview of the bill and of the agreement itself.

The agreement includes six major parts: a general section on the major application principles; a section reaffirming constitutional rights; a section dealing with the definition of rules and general obligations; a section on the specific rules for the eleven sectors affected by the agreement; a section dealing with dispute settlement procedures; and, lastly, a section on exceptions.

The agreement is based on three general principles. The first one provides for similar treatment of persons, goods and services, regardless of their origin in Canada. The second principle concerns the harmonization of standards and regulations, so as to eliminate certain practices which could impede internal trade in our country. The third general principle provides that we must ensure the free movement of persons, goods and capital.

The articles of the agreement to which Bill C-88 refers are essentially those relating to the dispute settlement process. Articles 1601, 1602, 1603 and 1604 deal with the establishment, mandate and membership of the Committee on internal trade and its secretariat. The committee must, among other things, supervise the implementation of the agreement and facilitate the settlement of disputes.

Article 1705 is of particular interest. It concerns the appointment of a panel when disputes arise. The parties to a dispute may, after a period of mediation and conciliation, ask that a panel be established. This five-member panel must rule on the validity of the dispute and on the retaliation measures the aggrieved party is entitled to take. This article defines the phrase "one of the parties". According to the agreement, "a party" is a province or territory, or the federal government itself. The parties may act on behalf of natural or artificial persons, provided there is a direct and substantial link with them.

In the case of the provinces, it is said that a link exists with a person if this person resides in the province and if the losses suffered have economic consequences for the province. In the case of the federal government, a link is supposed to exist with a person if this person is federally incorporated or if it does business in an area of activity under federal jurisdiction. In this regard, we feel that the bill is very, even excessively, generous because, as we know, the federal government has a tendency to get involved in all areas of activity, and even to encroach on areas of provincial jurisdiction.

Since, in this case, the federal government may be regarded as one of the parties and may even represent a person doing business in an area of activity under federal jurisdiction, we must proceed with caution. Otherwise, the federal government could become involved in all spheres of society, according to the proposed definition of its own role.

It must be clearly understood that the decisions of the special group are not binding, of course, but it does determine whether the measures in dispute are indeed contrary to the wording of the agreement and if they have caused prejudice.

In addition, the Committee must make recommendations to facilitate settlement of the dispute. And if the party concerned by the complaint does not comply with the recommendations of the special group, then Article 1710 applies, which sets out the sanctions which may be imposed upon the party affected by the complaint.

But the true scope of the bill is as follows: the primary objective of the bill is to implement the Agreement on Internal Trade. The Bloc has always been in favour of the liberalization of trade. The proof of this is that the Bloc and all other Quebec politicians, in particular the members of the Parti Québécois, had defended NAFTA. However, even if we agree in principle and support the principle behind this bill, we cannot accept the wording of clause 9 which permits a far broader interpretation, which might allow the government in Ottawa to intervene and impose retaliatory measures even when not a party to the dispute.

The federal government could interfere because it is said that each time a third party has some connection with the federal government or with an activity under federal jurisdiction-and as I was just saying, we are familiar with the federal propensity to horn in in all areas-then the federal level could be all-pervasive. This clause is far too broad for us to support.

According to the terms of the agreement, still in reference to this clause, the federal government shall equip itself with the possibility of imposing retaliatory measures where it might be the injured party. The wording of clause 9 of the bill, however, leads us to voice two serious objections.

The first is to the text, which reads in the first sentence of clause 9 as follows:

For the purpose of suspending benefits, or imposing retaliatory measures of equivalent effect against a province pursuant to Article 1710 of the Agreement, the Governor in Council may, by order, do any one or more of the following-

So here clause 9 of the bill allows the Governor in Council to "suspend rights and privileges granted to the province, modify or suspend the application of any federal law with respect to the province, extend the application of any federal law to the province or take any other measure that the Governor in Council considers necessary".

[The Acting Speaker (Mrs. Maheu)]

I am sorry to interrupt the hon. member, who will have 11 minutes remaining when we resume debate on this bill.

It now being 6.13 p.m., the House will proceed to the consideration of Private Members' Business as listed in today's Order Paper.

Intervenor Funding Act

[John Finlay, Liberal, Oxford, ON]

moved that Bill C-339, an act to provide for funding for intervenors in hearings before certain boards and agencies, be read the second time and referred to a committee.

Madam Speaker, I am honoured to stand here today and speak in support of my private member's bill, C-339, an act to provide for funding for intervenors in hearings before certain boards and agencies.

Intervenor funding, also known as participant funding in the Canadian Environmental Assessment Act, seeks to fund those that speak in the public interest at hearings held before government agencies or appointed boards.

As politicians we often wax eloquent about the need to consult our constituents. We encourage citizens to stand up and be counted to make sure their voices are heard. I ask this House as I have asked myself: What have we done to make sure Canadians are heard by their legislators and by those who govern them?

As the Minister of the Environment said during debate on the Canadian Environmental Assessment Act, it is one thing to say that people have a say, it is another thing to give them the tools to exercise their right. I believe the bill before us today will give the average citizen, regardless of his or her financial assets, the tools needed for them to be heard in the decision-making process.

Intervenor funding has been known to me for years because of my interest in conservation and he environment. However, it became particularly relevant after a number of my constituents who are members of the Ontario Pipeline Landowners Association, the OPLA, told me of their difficulties in wanting to appear before the National Energy Board.

These landowners were faced with the prospect of having to raise a large amount of money in order to hire experts to oppose a change in the lease agreement of the pipeline crossing their land. Faced with evidence that the pipeline could contaminate the soil, could pose a safety risk, and could saddle them with clean-up costs if the line were ever abandoned, they wanted to make sure the NEB heard their concerns.

To make a convincing case, the landowners needed the assistance of lawyers and experts to appear as witnesses on their behalf before the National Energy Board. Such qualified professionals must be paid. The executives of the OPLA appeared on their own time, but they had to mortgage their future returns to pay the lawyers and engineers who appeared on their behalf and on behalf of the other signatories to the leases.

What would have happened if they were not able to raise the money to make an adequate representation? The National Energy Board would have had to make a decision without the input of those who faced the most risk, in this case the landowners.

It is my contention that the Ontario Pipeline Landowners Association was speaking out in the public interest. If the pipeline posed an environmental or health risk it would be to the public as a whole, and they would be the ones who suffered.

In a recent article sent to me by Mr. Stuart O'Neil, president of the OPLA, a pipeline explosion is documented in the rural community near Williamstown, Ontario. Is it not in the public interest for these concerns to be heard by the National Energy Board?

As can be seen by looking at the National Energy Board's finding in this case, the Ontario Pipeline Landowners Association presented valid concerns. I have that finding here, and I would seek unanimous consent to table this document during the hours of this debate.

[The Acting Speaker (Mrs. Maheu)]

Does the hon. member have unanimous consent to table the document?

[Some hon. members]

Agreed.

[Some hon. members]

No.

[John Finlay, Liberal, Oxford, ON]

Intervenor funding will assure the public that those with a valid interest will be heard at future hearings. For many years the public has been saying that they want to have an input in government decision making. Intervenor funding guarantees their access.

I am not introducing a new concept to this Parliament. Intervenor funding was granted to environmental and native groups and municipal councils during the Mackenzie River pipeline inquiry, also know as the Berger commission, in the mid-1970s. Mr. Justice Thomas Berger determined that funding would be necessary to ensure that the many diverse interests would be represented at the hearings.

Justice Berger said in announcing the funding: "These groups are sometimes called public interest groups. They represent identifiable interests that should not be ignored. Indeed, it is essential that they should be considered. They do not represent the public interest, but it is in the public interest that they should be heard".

The Ontario government proclaimed the intervenor funding project act in 1989 as a three-year pilot project. This program has been extended through to the spring of 1996. In introducing this legislation to the Ontario legislature the then attorney general Ian Scott, who had served as counsel on the Berger commission, stated that a regularized system for intervenor funding is an essential component of an accessible justice system. My Bill C-339 is modelled after the Ontario act.

It is interesting that members of the Ontario Pipeline Landowners Association, who have discussed their situation with landowners who had appeared before the Ontario energy board, found that process to be fairer and more inclusive for both the landowner and the proponent. The success of this act in Ontario augurs well for the success of this legislation I am introducing today.

Further to experience with the Berger commission and the Ontario legislation, the federal government has had experience with intervenor funding through the CRTC and the Canadian Environmental Assessment Act, as well as the Krever inquiry into Canada's blood supply, which is currently funding a number of intervenors.

The federal Liberal Party made a very clear commitment in the red book to provide for intervenor funding within the Canadian Environmental Assessment Act. This commitment was honoured when Bill C-56 was passed last December. At that time the Minister of the Environment and Deputy Prime Minister, the Reform member for Comox-Alberni, and the New Democratic member for the Battlefords-Meadow Lake spoke in favour of this type of funding. Today I seek the same consensus of all colleagues in this House to move this legislation forward so that it can be put before the Standing Committee on Natural Resources for further study.

I would like to share with the House a statement made by the member for The Battlefords-Meadow Lake during the debate on the Canadian Environmental Assessment Act: "Without adequate intervenor funding there cannot be adequate assessment, quite simply because those who wish to challenge the proponent do not have the same access to capital as the proponent does". In effect, what the hon. member is saying is that we have to level the playing field so that both the proponent and the intervenor have the same ability to put forward evidence that will allow the best decision to be made.

In 1992 the province of Ontario conducted a review of the intervenor funding project act. This review, entitled "Access and Impact: An Evaluation of the Intervenor Funding Project Act, 1988", states this on the need for intervenor funding: "Participation is necessary for reasons of fairness. It also makes for better decisions, as broader information, values, and opinions are canvassed by those required to make decisions in the public interest. But those purposes cannot be achieved if the resources of participants are severely limited in relation to the case they are required to meet".

There are those who feel that people who would like to intervene before federal boards and agencies should raise the funds themselves in order to make a representation. Some feel that even if the intervenor is clearly representing the public interest, they should pay all costs. Are we then to tell our constituents that only the wealthy have a right to be heard? We cannot tell Canadians to mortgage their homes and their futures in order to make a representation in the public interest.

Am I to say with a straight face that governments make the best decisions after hearing only from those wealthy enough to afford the best lawyers and technical experts? As the member of Parliament for all the people of Oxford, it is my duty to ensure that they have an opportunity to influence government decision making. This bill not only provides that opportunity, but also will result in better decisions being made.

At this point I would like to discuss a number of key sections of this bill. Clause 2 says that the purpose of the act is to require any person proposing a project that would affect the public interest or the environment and that is required by law to be reviewed by a public process before being approved by government or an agency of government to provide funding to assist organizations that represent a relevant public interest and that wish to intervene in the review process to represent that interest.

I have been asked why the proponent should fund the intervenor. The Ontario government review, "Access and Impact", states that more effective monitoring of the costs and benefits of the process will be achieved if those who are the focus of these decisions, the

proponents, are made to bear the cost. It is they who are the centrepiece of the regulated activity.

It should be noted that paragraph 4(3)(f) in my bill calls upon a funding panel to consider any representation the funding proponents make concerning the application of an intervenor. This paragraph allows the proponent to make a presentation about the public interest the intervenor purports to represent and about the proponent's own ability to fund the intervention.

In drafting the funding criteria for intervenors, I have used the criteria set out in the Ontario legislation. The Ontario legislation was in turn developed using the criteria set forth by Justice Berger, which has been the model for intervenor funding at both the federal and provincial government levels.

The member for Comox-Alberni stated during third reading debate on the Canadian Environmental Assessment Act: "Guidelines for participation should consider whether the applicant represents a clearly ascertainable interest that should be heard at the hearing and whether separate representation of the interest would assist the panel and contribute to the hearing". I believe that the funding criteria within Bill C-339 clearly live up to the standards my hon. colleague set out during the CEAA debate.

Subclause 4(4) of the bill states:

A funding panel shall not order funding to be provided to an intervenor unless it is satisfied that the issues the intervenor intends to present are entirely or mainly issues respecting public interests rather than private interests and that

(a) the intervenor represents a clearly ascertainable interest that is relevant to the issue before the review authority and that should be represented at the hearing;

(b) the intervenor does not have sufficient financial resources to make the representation without funding;

(c) the intervenor has made reasonable efforts to obtain funding from other sources;

(d) the intervenor has an established record of concern for and commitment to the interest;

(e) the intervenor has made reasonable efforts to cooperate with other intervenors that represent similar interests;

(f) the absence of funding would adversely affect the representation of the interest; and

(g) the intervenor has a proposal that specifies the use to which funding would be put, has the ability to record the expenditure of the funding, and has agreed to submit an accounting to the panel for the expenditure and allow the panel to examine its records to verify the accounting.

It should be stated that paragraph 4(5)(b) of the bill allows the project proponent to appeal a funding order to the review authority.

I strongly believe that the bill will improve the way government works and makes decisions. The Standing Committee on Natural Resources may feel that some amendments are in order. I and other witnesses who may be called would be happy to work with the committee to improve and then pass this important piece of legislation.

In conclusion, let me say that it is time to tell the people of Canada at this important time in our history that they can have a say and that this federal government believes that their interventions will improve the quality of decisions that must be made.

I ask all members of the House to support the bill and thus give all Canadians a means by which to participate responsibly in our future.

It was some 18 months ago that I stood at the last seat of the fourth row, the farthest I could get from the Chair, to give my maiden speech as a backbencher and as a member of the class of '93. One thing that concerned me the most when I came to Ottawa and to Parliament was how does the backbencher, the individual member of whatever party, influence government policy? How do we have some effect? How do we go back to our constituents and say we did this or we did that or we were able to modify, mediate, change, suggest something that became law because you told me that was what you wanted. I do not pretend to know all the answers. I do suggest and I do feel very proud to be able to present this bill today because it is one way in which the individual MP can influence government decision making.

I suggest to all hon. members that committee work is another way. I appreciate that work. It allows me to work with and learn from my colleagues on all sides of the House on important issues.

Bill C-339 is a votable item and I look forward to further debate.

[Bernard Deshaies, Bloc, Abitibi, QC]

Madam Speaker, I would first like to say that I am pleased to participate in this second reading debate on Bill C-339 proposed by the hon. member for Oxford. I must congratulate him for his goodwill, for trying to enhance democracy here in Canada, so that some groups can give their opinion on environmental matters concerning natural resources.

This Bill C-339 is quite simple. It has virtually only two pages, if we take out the ones containing the terminology and the definitions used in the bill. It establishes the principle that the proponent of a project that requires review and approval under federal legislation, for example, Bill C-56, the Canadian Environmental Assessment Act, and that affects the public interest or the environment, should fund intervenors in public hearings on that project.

On the face of it, we could be in favour of the principle of funding groups who want to participate in public hearings, because often, groups that represent less advantaged people in our society do not have sufficient financial resources to pay for scientific studies, transportation, research studies or efforts needed to prove their good faith. I am thinking here of studies needed, for example, in my region, Abitibi, or in Northern Canada or the Arctic circle, where intervenors certainly do not have sufficient financial resources to pay for their travel and their stay when defending the interests of people they represent.

We have seen in the past citizens who were penalized in their rights because, unlike large businesses or developers, they did not have the financial resources to defend their view on a project. So we are in favour of the principle that proponents pay for administrative costs related to the reviews.

But after examining this bill more thoroughly, we realize that it has a much greater scope than it purports. There are a number of questions. First of all, whether this bill was drafted to complete the program that already exists at the Canadian Environmental Assessment Agency created under Bill C-56, an act to amend the Canadian Environmental Assessment Act.

It is clear that the government, by using the procedure suggested in Bill C-339, can save on the funding it now has to provide to groups that are interested in taking part in public environmental hearings. If that is the case, why not simply amend the legislation instead of drafting a whole new bill? It is difficult to determine which agencies will benefit under this program and how proponents will react. And besides, this bill would institutionalize duplication, because provincial governments often already have their own structures for evaluating the projects of proponents.

So why add to the duplication in procedures for analysing the impact of natural resource development on the environment? This bill would create one more commission that would propose further administrative constraints, in addition to the far too numerous existing ones which the industry has criticized as jeopardizing project development and hence employment.

For instance, on October 18, when the mining industry, through its national organization, held its open house, one of its principal demands was that the government streamline the many unwieldy administrative structures restricting the development of this industry.

Bill C-339 would merely create one more administrative level instead of making intervenor funding the responsibility of a decision making level that already exists.

If we look at the two pages in the bill that provide a list of definitions, it is not quite clear what is meant by the term "public interest". In fact, a large number of frivolous interventions could be made claiming a "public interest", which would cause delay and add to the cost to the proponent of studies or the actual project.

The bill would also assist intervenors with a record of responsible representation of a facet of the public interest to put their arguments respecting the project before the approving authority. In this situation, doubt could be cast on the objectivity of the funding panel, which determines the groups to be funded by the proponent.

Clearly, in no case, should the fact of forcing the proponent to provide financial assistance threaten the feasibility of a project. However, it could happen that the proponent is the government itself. This is the case with the Irving Whale .

Thus the SVP group opposed to refloating the Irving Whale , as proposed by the government, receives no assurance from this bill of being considered an organization the federal government does not want to recognize as an intervenor with a record of responsible representation, because the panel is appointed by the government itself.

A question arises: Who benefits from representing these public interest organizations? There is cause for concern that some may find personal interest in the process and will not hesitate to specialize in defending public interest organizations.

The question could arise, for example, during a study on the opening of a new mine, if the representative of a local group, with no expertise, but wishing to protect the environment, and having an opportunity to develop their region through new jobs, ran up against a group like Greenpeace, which could defeat the local group through its expertise and international reputation.

In clause (7)( b ), contrary to what the bill proposes, funding should not be available to cover lawyers' services. The aim of public hearings is to help the government make a public and not a legal decision.

It has generally been observed that, when lawyers represent certain groups, the other witnesses are intimidated and refuse to express their viewpoint. The hearings then take on legal overtones. This opinion is what officials who are used to this sort of hearing have to say.

In clauses 3 and 4, the funding panel should also ensure that studies witnesses want funded have not already been undertaken. For example, the panels set up by the federal environmental assessment review office, if we refer to Bill C-56, which has this instrument already, have many scientific studies done, in addition to having witnesses testify at public hearings.

The witnesses must not be funded for doing the same studies as the panel. Bill C-339 contains no provision for such an eventuality.

In conclusion, we feel this bill has good ideas and that it is innovative, but it also contains a number of serious failings.

It should therefore be amended before submission to the Standing Committee on Natural Resources so that its objective of enabling groups of intervenors to defend their point of view with funding may be possible.

Furthermore, given how open Bill C-339 is in its present form to encroachment on provincial jurisdictions, such as natural resources and the environment, we must vote against it in its present form.

[John Finlay, Liberal, Oxford, ON]

Madam Speaker, a point of order. During my speech I asked for unanimous consent to table the document of the hearing held at London, Ontario, on Monday, January 10, 1994, in the matter of applications by Intercoastal Pipe Line Incorporated and Interprovincial Pipe Line Incorporated, pursuant to sections 52 and 58 of the National Energy Board Act.

Madam Speaker, I seek your advice. I thought that received unanimous consent. Perhaps it did not. I am asking again.