Mr. Speaker, I wish to reply to the arguments made May 6, 2010 by the Parliamentary Secretary to the Leader of the Government in the House of Commons regarding my private member's bill, Bill C-469, An Act to establish a Canadian Environmental Bill of Rights.
The parliamentary secretary argued that the bill requires a royal recommendation because it would require new spending on the following basis: one, that part 2 authorizes environmental protection actions 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 harm; and two, that part 4 authorizes the Auditor General to review new regulations and bills to ensure consistency with Bill C-469 and to report any inconsistencies to the House of Commons.
I wish first to respond to the argument put forth that part 2, clause 19 of the bill, “would create potential legal liabilities for the government by adding the power to 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” and the argument that “clause 19 would result in a potential increase in the government's legal liability since payments resulting from decisions of the Federal Court would be made from the consolidated revenue fund”.
First, Bill C-469 merely establishes standing to bring an environmental protection action against the government. The enactment of this provision would create no immediate or automatic liability on the federal government. In point of fact the overall intent of the law is to encourage action by the federal government to assert its existing jurisdiction and legislated powers to protect the environment in the interests of current and future generations of Canadians.
The bill's purpose is to ensure greater transparency and participation in environmental decision making. The intent is to make the government accountable for the actions it takes or fails to take to protect the environment in the interests of Canadians.
If those broad rights and powers are asserted, then no action would likely be precipitated. Further, if the federal government's powers to protect the environment are exercised with due diligence, then a successful court action against the crown is unlikely. As a consequence, no new liability would arise.
In making his case, the parliamentary secretary referred to, for example, the Senate Speaker's ruling on May 5, 2009, at pages 739 to 740 of the Senate Debates, that Bill S-219, an act to amend the Bankruptcy and Insolvency Act, required a royal recommendation because it would increase the Crown's liability under the Canada Student Loans Act by expanding the range of conditions under which government would have to make good its guarantee of loans under that act.
However, the Senate Speaker in his ruling then went on to quote from the 23rd edition of Erskine May to distinguish those cases that would and would not require a royal recommendation:
While page 888 does state that the Royal Recommendation may not be required if the “liability arises as an incidental consequence of a proposal to apply or modify the general law,” this does not save Bill S-219, since the changes proposed to the student loans regime are not merely incidental to the bill, but its primary purpose.
Based on this analysis, it is submitted, contrary to what the parliamentary secretary has asserted, Bill C-469, which merely provides standing to a defined class of potential litigants to consider seeking a court order would not require royal recommendation. No immediate spending or liability arises from part 2. Any potential liability would arise only as an incidental consequence of an action actually being filed proving failure by the government to fulfill its duties as trustee of the environment, to enforce an environmental law or for violating the right to a healthy and ecologically balanced environment.
Further, the litigant must provide proof of actual or potential significant harm to even file the action. The imposition of new spending by the government is not at all the primary purpose of the bill. No immediate liability arises with the enactment of the bill and most certainly not as a result of part 2.
It may also be noted that Erskine May, 23rd edition at page 888 clearly provides that “Liability on the Crown or local authorities to pay costs, compensation or damages does not require a money resolution if such a liability arises as an incidental consequence of a proposal to apply or modify the general law”.
It is further specified that in the case of widening the jurisdiction of a court, a money resolution is not required even though the proposal may have the incidental consequence of increasing the costs of administration of justice.
The parliamentary secretary referred to the Speaker's ruling on June 12, 1973, that Bill S-5, an Act to amend the Farm Improvement Loans Act required a royal recommendation because it proposed substantial additional liabilities on public moneys.
However, this ruling was subsequently considered by the Speaker on February 12, 1998, on page 3766 in considering Bill S-4, an Act to amend the Canada Shipping Act, who held that there was already statutory authority under the Crown Liability and Proceedings Act to make the payments that Bill S-4 outlined.
It may be noted that many federal environmental laws, including the Canadian Environmental Protection Act, already provide that the Crown is bound. According to Erskine May, 21st Edition at page 717, “No further authorization is required for an expenditure covered by an existing statutory authority, including liability to pay damages covered by existing law”.
By way of example, crown agencies such as the Department of Public Works and the Department of Defence have been held by the courts to be liable to pay damages where they have failed to take appropriate actions to comply with the Canadian Environmental Protection Act.
Further, the provisions in Bill C-469, related to proceedings against the federal Crown, are consistent with the Crown Liability and Proceedings Act, chapter C-5, section 33. Section 3 clearly provides that the Crown is liable for damages for torts committed by a servant of the Crown.
It may be noted that John Mark Keyes in his article, “When Bills and Amendments Require the Royal Recommendation: A Discussion Paper and Guidelines”, Canadian Parliamentary Review, volume 20, number 4, winter 1997-98 at page 8 cites Erskine May, 21st edition, page 717, on cases were a royal recommendation is not needed as including, “Widening the jurisdiction of a court or creating offences although they may have the effect of increasing the costs of the administration of justice”.
Further, any potential liabilities under part 2 of the bill are highly speculative and that they would be substantial is even more so speculative.
For example, government might first avoid a court action or settle such an action if filed by diligently exercising its powers or duties to undertake an environmental assessment or to complete an action plan for a threatened species within the statutorily prescribed timeline or by passing new regulations, or by a myriad of other measures.
Even if an action under Bill C-469 has its day in court, the court is provided a wide range of remedies, including directing the government to implement measures previously announced and budgeted for, or otherwise prescribed by another law. Thus any court-ordered payments under section 19 of the bill are highly speculative and could only occur after the government has made decisions to not avoid or remedy the problem by any other means.
The Speaker similarly rejected such speculation in multiple rulings on September 27, 2006, page 3314; on February 8, 2007, page 6548; and again on February 14, 2007, page 6816. The Speaker found that Bill C-288, the Kyoto Protocol Implementation Act did not require a royal recommendation.
The parliamentary secretary's second argument was based on part 4 of the bill. Section 26 requires the Auditor General to examine proposed regulations and bills for consistency with Bill C-469 and to report any inconsistency to the House. It was the parliamentary secretary's assertion that this role differs significantly from the current duties of the Auditor General under section 5 of the Auditor General Act and would require new government spending.
This section requires the Auditor General, in accordance with such regulations as the governor in council may choose to make, to review any new regulations or bills to ensure consistency with the purposes and provisions of Bill C-469, and to report such findings to the House of Commons.
Let us first consider the mandate of the Auditor General as prescribed in the Auditor General Act. The act also establishes the Office of the Commissioner of Environment and Sustainable Development. Section 21.1 prescribes a broad mandate to the commissioner to provide sustainable development monitoring and reporting including on matters reiterated in the preamble of Bill C-469, inclusive of integrating environment and the economy, protecting ecosystems, and respect for the health of Canadians and the needs of future generations.
Section 23 of that act requires the commissioner to make examinations and inquiries considered necessary to monitor the extent to which specified departments have contributed to meeting sustainable development targets and report to the House actions including exercising the authority of the governor in council. Part of that authority includes the promulgation of regulations, and review and authorization of proposed laws.
The Auditor General Act also requires that the commissioner, on behalf of the Auditor General, report annually to the House of Commons on the progress of the federal government in implementing the federal sustainable development strategy and meeting its targets, which would include consideration of new statutes and regulations.
Thus, Bill C-469 would not create a substantially new or radically different mandate than that already prescribed for the Office of the Commissioner for Sustainable Development within the Office of the Auditor General, as provided in the Auditor General Act.
I further submit that section 26 of Bill C-469 is very similar to that considered in the Speaker's ruling on February 8, 2007, at page 6548 on Bill C-288, Kyoto Protocol Implementation Act. The Speaker in that instance held that the bill did not require a royal recommendation as the new responsibilities placed on the national round table on the environment and the economy by that bill did not meet the test, to quote the Speaker's words, of “whether some entirely new activity or function is being proposed which radically diverges from the activities already authorized in existing legislation”.
It may be noted that in the same ruling, the Speaker also provided, “Now it might be argued that this would increase the workload of the national round table, but even if this were so, an increase to its budget would be sought through existing appropriation arrangements”.
As the Speaker has clearly ruled, it is important to distinguish between an effect of a bill potentially increasing the workload of a department or agency and an effect of establishing distinctly new activity or function. It is my humble submission that the same logic and same conclusion would apply to part 4 of Bill C-469 regarding the role specified for the Office of the Auditor General.
The parliamentary secretary referred to the Speaker's February 11, 2008, ruling on Bill C-474, Federal Sustainable Development Act; however, in that case, Bill C-474, at first reading, originally proposed repealing the sections in the Auditor General Act concerning the Commissioner of the Environment and Sustainable Development and creating a new independent commissioner appointed by the governor in council who would not only assess federal progress on sustainable development but also provincial progress.
At committee stage, Bill C-474 was amended to rely on the existing position of the commissioner established under the Auditor General Act and to add the monitoring and reporting duties on federal progress toward sustainable development granted to the commissioner under that act. The Speaker on June 10, 2008, at page 6819, held that the amended bill no longer needed a royal recommendation. It is that amended Bill C-474 that is analogous to Bill C-469.
Finally, in closing, as a private member's bill can proceed through second reading and committee stage regardless of whether it requires a royal recommendation, in whole or in part, recognizing it may potentially be amended in committee or at report stage, a ruling from the Speaker would be most welcomed in advance of the vote at second reading and referral to the committee. This will inform the committee members whether any amendments may be necessary to be considered to avoid any potential need for a royal recommendation and thus maintain the possibility of a third reading vote.