Madam Speaker, I rise on a point of order with respect to Bill C-469, An Act to establish a Canadian Environmental Bill of Rights, sponsored by the member for Edmonton—Strathcona.
Without commenting on the merits of the bill, I submit that it would require new spending not authorized by Parliament. The second edition of the House of Commons Procedure and Practice states on page 834:
—a royal recommendation is required not only in the case where money is being appropriated, but also in the case where the authorization to spend for a specific purpose is significantly altered. Without a royal recommendation, a bill that either increases the amount of an appropriation, or extends its objects, purposes, conditions and qualifications is inadmissible on the grounds that it infringes on the Crown’s financial initiative.
Bill C-469 would establish a Canadian environmental bill of rights. The bill raises problems with respect to new spending in two areas. First, part 2 would authorize environmental protection action against the government by enabling Canadians to seek recourse in the Federal Court to protect the environment in relation to any action or inaction by the government, which has resulted in significant environmental harm.
As a result, clause 19 in part 2 would create potential new legal liabilities for the government by adding the power to enable the Federal Court to order the government to pay for the restoration or rehabilitation of the part of the environment, and the power to order the government to pay for the enhancement or protection of the environment generally. Clause 19 would result in a potential increase in the government's legal liabilities since payments resulting from decisions of the Federal Court would be made from the consolidated revenue fund.
Procedural authorities and precedents indicate that such a measure would require a royal recommendation. The 21st edition of Erskine May states on page 714:
Any proposal whereby the Crown would incur a liability or a contingent liability payable out of money to be voted by Parliament [requires the Queen's recommendation].
On June 12, 1973 the Speaker of the House of Commons ruled that a royal recommendation was required for Bill S-5, an act to amend the Farm Improvement Loans Act. He stated:
It may be said that the proposal in Bill S-5 does not in itself propose a direct expenditure. It does, however, propose substantial additional liabilities on public moneys.
On May 25, 2009 the Speaker of the other place ruled that Bill S-219, an act to amend the Bankruptcy and Insolvency Act (student loans), required a royal recommendation because it would increase the Crown's liability under the Canada Student Loans Act. The Speaker stated:
Bill S- 219 would expand the range of conditions under which the government would have to make good its guarantee of loans under the Canada Student Loans Act. This would change the existing scheme, since payments from the Consolidated Revenue Fund might increase due to the change in possible obligations. As such, the bill should have a Royal Recommendation--
While the Crown Liability and Proceedings Act establishes a general process for settling civil judgments, Bill C-469 would establish a new mechanism for creating civil liability judgments, thereby expanding the objects and purposes of the royal recommendation that accompanied the Crown Liability and Proceedings Act. The sixth edition of Beauchesne's Parliamentary Rules & Forms states on page 183:
—an amendment infringes the financial initiative of the Crown not only if it increases the amount but also if it extends the objects and purposes...expressed in the communication by which the Crown has demanded or recommended a charge.
The second problematic area of Bill C-469 is part 4, which would add additional functions for the Auditor General not currently authorized in the statute, which would require new government spending. Part 4 would require the Auditor General to:
—examine every regulation transmitted to the Clerk of the Privy Council for registration pursuant to the Statutory Instruments Act and every Bill introduced in or presented to the House of Commons by a minister of the Crown, in order to ascertain whether any of the provisions thereof are inconsistent with the purposes and provisions of the Canadian Environmental Bill of Rights and the Auditor General shall report any such inconsistency to the House of Commons at the first convenient opportunity.
Section 5 of the Auditor General Act sets out the powers and duties of the Auditor General. It states:
The Auditor General is the auditor of the accounts of Canada...and as such shall make such examinations and inquiries as he considers necessary to enable him to report as required by this Act.
The act is clear that the Auditor General has discretion in the examinations and inquiries that she wishes to undertake. Bill C-469 would change that by requiring the Auditor General to examine all regulations and bills introduced in the House of Commons.
The role of the Auditor General is an audit function. This means that the Auditor General can examine and inquire into the performance of a program, money spent on a particular program, and examine financial statements. What is not provided for is a perspective analysis of the impact of proposals not yet implemented. Yet, this is exactly what Bill C-469 calls for, to study policy proposals before the House of Commons.
The Auditor General's website is clear on this point. On choosing topics for performance audits, it states:
The Auditor General does not audit topics that fall outside the Office’s mandate. Examples are all policy decisions, which are the prerogative of Parliament and government--
Precedents indicate that substantive mandate changes require a royal recommendation. On February 11, 2008 the Speaker ruled on Bill C-474, National Sustainable Development Act, that:
However, clause 13 of Bill C-474 would modify the mandate of this new independent commissioner to require...the development of “a national sustainability monitoring system...The clause...would impose additional functions on the commissioner that are substantially different from those foreseen in the current mandate....clause 13 thus alters the conditions set out in the original bill to which a royal recommendation was attached.
In conclusion, Bill C-469 would increase spending through provisions to increase government liabilities and through provisions to expand the mandate of the Auditor General, and therefore would require a royal recommendation.