:
Thank you, Mr. Chairman.
I would like to begin by thanking you for this opportunity to appear before the committee today to discuss Bill . Joining me today is Anne-Marie Smith, our senior legal counsel.
We have reviewed Bill C-469 with interest, in particular those clauses that establish new responsibilities for the Auditor General and the commissioner. Clauses 13 and 14 of Bill C-469 describe two possible new administrative responsibilities for my office. In both clauses, those new responsibilities assigned to the commissioner entail forwarding a request from a Canadian resident or entity to the minister responsible for a review or investigation—acting as a kind of clearing house. We could perform that function.
[English]
As committee members may know, the commission already acts as a clearing house for environmental petitions by tracking the environmental petitions received and reporting to Parliament on the issues raised and the timeliness of ministerial responses.
Turning to clause 26 of the bill, this would, as we understand it, require the Auditor General of Canada to examine all new federal regulations and every bill introduced to the House of Commons to determine whether they are inconsistent with the purposes and provisions of Bill . We have concerns with these responsibilities. Although the goal of ensuring regulatory consistency is important, in our view this is the responsibility of the government rather than the OAG. Indeed, mechanisms already exist designed to ensure consistency and consideration of environmental implications in government policies and programs.
For example, regulatory impact assessment statements must accompany every regulatory proposal submitted for government approval and each statement must include various analyses and justification prior to implementation. Another example is the strategic environmental assessment of policy, plan, and program proposals.
This committee may wish to explore these mechanisms as well as the role of the Department of Justice Canada. That department is the central agency responsible for providing advice on all legal matters, including the constitutionality of government initiatives and activities.
[Translation]
Mr. Chairman, this concludes my opening remarks. We would be pleased to answer any questions.
Thank you.
:
It's a pleasure, Mr. Chairman, to be here. In fact, I'm really pleased to appear before this committee, because the Canadian environmental bill of rights reflects many of the experiences we're had in Ontario with our Environmental Bill of Rights.
As the Environmental Commissioner of Ontario, appointed by the Legislative Assembly of Ontario, I'm responsible for monitoring and publicly reporting on the government's compliance with Ontario's Environmental Bill of Rights, or, as we call it, the EBR. As Environmental Commissioner for over 10 years, I would like to share some general comments based on my own experiences with Ontario's EBR for your consideration on the purposes of the CEBR, just by way of general comments.
I believe the proposed CEBR has the potential to become an important and positive piece of legislation. Since coming into force in 1994, Ontario’s EBR has helped to increase accountability, transparency, and public participation in environmental decision-making and ultimately improve environmental protection in the province. In my view, has the potential to provide many of the very same benefits--i.e., improved accountability, transparency, public participation, and environmental protection--on a federal level.
In regard to examination of bills and regulations by the commissioner, the proposed CEBR would require the Auditor General, through the Commissioner of the Environment and Sustainable Development, to examine all proposed bills and regulations to ensure consistency with the purposes of the CEBR. Although similar provisions in Ontario’s EBR require me to review and comment on compliance of government decisions with the provisions of Ontario’s EBR, the ECO--my office--has provided an important independent and impartial voice in the public discourse on environmental issues, helping to pave the path for improved future environmental decision-making.
On the point of access to information and public participation in environmental decision-making, the proposed CEBR would require the federal government to provide information to the public on environmentally significant decisions as well as provide a right for the public to participate in environmental decision-making. In Ontario, the high level of public engagement in environmental decision-making under the Ontario EBR has been one of the greatest successes of the statute. Through the use of a dedicated web-based environmental registry, each year provincial ministries now post thousands of public notices relating to proposed and final environmental decisions, including convenient links to background documents. Through this same registry the public can provide informed comment, which is considered by the ministries in their final decision-making.
By posting proposals for new environmentally significant acts, regulations, and instruments on the environmental registry for public notice and comment, the government has increased transparency and accountability in its decision-making, which has resulted in improved environmental decision-making, and in many cases, greater public buy-in to government decisions.
While the proposed language of includes the key components of public engagement--i.e., access to information and the opportunity for effective public participation--I strongly encourage the use of a single dedicated registry, such as is used in Ontario, to maximize public access to government proposals and decisions, as well as mandatory minimum standards for consultation.
On the point of the right to request a review of a federal policy, regulation, or law, the proposed CEBR would provide a right for a member of the public to request a review of a federal policy, regulation, or law. Ontario’s EBR includes a similar right, but requires that two applicants request a review. I believe that requiring the collaboration of two applicants encourages thoughtful, well-documented applications.
In Ontario approximately 10 to 25 applications for review are submitted each year. These applications contribute insights and new perspectives that might not be raised by the usual mix of civil servants and stakeholders talking around the table. Of the requests submitted, about 13% lead to some direct action, such as a review of and/or improvements to the law, or regulation, or policy. Moreover, in many cases where a review is not formally undertaken the application nevertheless helps push the agenda forward, throw light on the issue, or trigger some other indirect action.
On the point of the right to request an investigation, the proposed CEBR would provide the right for a member of the public to request a government investigation of a suspected violation of a federal environmental law. Again, Ontario’s Environmental Bill of Rights includes a similar right allowing any two applicants to request an investigation. In Ontario approximately 10 to 20 such applications for investigation are submitted each year. Of these, about 36% of the requests have led to investigations with some sort of enforcement action arising out of them. In many other cases, even where the government has denied the application for investigation, the ECO has found that the application has resulted in some other indirect action.
I believe this right provides a particularly valuable tool. With limited government staff and financial resources to regularly inspect all regulated facilities, this tool empowers the public to play a role in helping to identify potential environmental violations. Without this right, a number of violations identified in Ontario may not have been uncovered.
On the point of legal actions, the proposed CEBR would provide the public with access to additional legal recourses. First, the CEBR would ensure that concerned residents are not denied standing before the courts in environmental actions solely because they do not have a private or special interest in the matter. Second, the CEBR would allow the public to seek judicial review of a government action or inaction that has resulted or is likely to result in significant environmental harm. Third, the proposed CEBR would provide a right to commence a civil action against a person who has contravened a federal act or regulation that is likely to result in significant environmental harm.
Ontario’s EBR provides the public with a different but comparable set of legal rights. We have appeal rights. Where an appeal right already exists for an instrument-holder, for some company that has a permit or licence, for example, the Ontario EBR provides a right to third parties to request permission from the relevant tribunal, usually the environmental review tribunal, to appeal a ministry decision on certain environmental instruments, such as licences and permits. Permission to appeal will be granted only if the applicants are able to successfully demonstrate that they have an interest in the decision in question, that no reasonable person could have made the decision, and that the decision could result in significant harm to the environment.
On the matter of public nuisance claims, the Ontario EBR provides members of the public with a right to sue for damages for direct economic or personal loss that has resulted from a public nuisance that has harmed the environment, without the approval of the Attorney General. Prior to this act being passed, claims for public nuisance in Ontario had to be brought by, or with the leave of, the Attorney General.
On the matter of “harm to a public resource” claims, the Ontario EBR gives members of the public the right to sue any person who is breaking, or is about to break, any environmental law, regulation, or instrument that has caused, or will cause, harm to a public resource.
In Ontario, these legal actions have been used very sparingly. While public participation mechanisms through other mechanisms--i.e., commenting on government proposals and submitting applications for review and investigation--have been used extensively, use of these legal actions has been minimal. In the 16 years since the Ontario EBR was enacted in 1994, Ontario has seen only one claim for public nuisance—and in that case, public nuisance was just one of many causes of action relied upon—and only one court action under “harm to a public resource”. In addition, about five to ten “leave to appeal” applications are filed each year. Clearly, the legal actions have been reserved as a last resort, which was the intent of the drafters of our legislation.
On the matter of legal costs, the proposed CEBR would allow a court to order a plaintiff of a judicial review to pay costs only if the action is frivolous, vexatious, or harassing. The proposed CEBR would also authorize the court to award a plaintiff counsel fees and/or an advance cost award in certain circumstances. I strongly support these provisions. I have identified the chilling effect of potential cost awards as a serious barrier to public interest legislation, and I have intervened in two separate court proceedings to speak to this issue. The proposed provisions in the CEBR should help address this barrier to meritorious environmental legal cases.
In closing, I would like to reiterate my opinion that the proposed CEBR would be an important and positive piece of legislation that would enhance government accountability, transparency, and public participation in environmental decision-making. In these ways, the CEBR would encourage better environmental decisions and in turn ensure a better-protected environment for future generations.
Thank you.
:
Thanks very much for the question.
I think you can see from the opening statements between the two the contrast of the mandates between Mr. Miller's work and the work that we do through the OAG.
In a nutshell, most of the work that we do in providing reports to Parliament are through assurance engagements, meaning that we won't say something until we are absolutely certain of what we are saying. That assurance is based on looking at implementation to a fixed date. So trying to speculate, for example, or doing an ex ante forward assessment on what might be an area of potential regulatory inconsistency....
We certainly will do whatever Parliament wants, but it seems to me, and I was trying to suggest, that there already are mechanisms in the government. I think they certainly can be strengthened, they can be clarified. Regarding the strategic environmental assessment, there's been a new cabinet directive which requires ministers to ensure consistency among all the policies government-wide, and to ensure consistency within the context of environmental goals and sustainable development. And there are others. I mentioned the regulatory impact assessment.
The second part of this, though, is that if, for example, we did do that forward-looking ex ante type of assessment on what might happen in the future, it's important for Parliament to be able to rely on the OAG to go back and say, “Well, what has been the performance? Has the government done what they've said they were going to do?” Our recommendations are, by nature, forward-looking. If we see something that's broken, we will make recommendations to the government, hopefully, to fix it. We will go back and audit them and provide additional clarification to Parliament on saying, “Is it working? No. How best to fix it? Is it fixed?” The government will say what it is going to do.
So part of it is duplication, but it also gets in part to the different mandates between what we do and what Mr. Miller's office does.
I also wish to thank the witnesses for attending to speak to my bill. I really appreciate the effort you put into your testimony and the analysis.
I want to congratulate both offices. Commissioner Vaughan's ears are probably buzzing for all the compliments I give for the work his office does. I want to extend them as well to the Ontario office. After 15 years, I think it has shown itself to be an invaluable office. Thank you for your good work.
My first question is for Commissioner Vaughan. Thank you for your points on seeing that there are no inconsistencies, under your point three.
Under your point five, I want to review your mandate a bit to see what you think about an argument for why it may not be conflicting. It's actually interesting, listening to Mr. Miller's testimony, that he seems to be paving the way for the argument I'm about to make, which hadn't occurred to me.
That is, of course, that various entities can be mandated under different pieces of legislation. Of course, the Commissioner for the Environment and Sustainable Development is mainly mandated under the Auditor General Act. But over time, the commissioner has also been given an extended mandate under a lot of other pieces of legislation.
Of course, it may well be argued that having established the commissioner's office under the Auditor General's office may lead to a mindset of approaching matters in “the way things are done”, rather than with an approach as a separate commissioner for environment. I think that's a very interesting point.
Mr. Vaughan, I've looked at a number of statutes that you are mandated under. It appears to me that your mandate already moves your office towards being more forward-looking, not just waiting until the government has acted. It's similar to the provision in clause 26 of the environmental bill of rights. Let me give a couple of examples.
For example, subsection 9(4) of the Federal Sustainable Development Act empowers your office to “review and comment as to whether the targets and implementation strategies can be assessed” in advance of final cabinet approval. Again, that's forward-looking, making recommendations so that potentially there could be changes before the final determination by the cabinet.
Secondly, sections 21.1 and 23 of the Auditor General Act mandate your office to provide sustainable development monitoring—reporting towards sustainable development—and to consider a wide array of factors that mirror the environmental bill of rights; again, it's forward-looking.
Section 10.1 of the Kyoto Protocol Implementation Act requires your office at least every two years to submit a report to Parliament analyzing progress in meeting those obligations under that law and reporting any other observations and recommendations.
Is it not a reasonable argument that in undertaking those analyses you would also consider whether the government has exercised its discretion to enact laws, promulgate regulations, or even in its Budget Implementation Act to give consideration to sustainable development, environmental protection, and so forth? Is that not very similar to clause 26?
I'm sorry if that's a complicated question.
At any rate, thanks for your very astute answer, so quickly, in response to my complicated question.
Mr. Scott Vaughan: I'm sorry for the long answer.
Ms. Linda Duncan: Mr. Miller, thank you very much for your testimony.
A very important part of this bill that I tabled is the part about enabling the public to participate in environmental decision-making, and that appears in a number of the provisions. I have very profoundly supported that for my 40-year career, that there is an imbalance in opportunity for the public to participate in decision-making. I am raising it particularly because, of course, I was the first head of law and enforcement for the NAFTA environment commission, where Canada and the Province of Alberta, and I think Quebec, and maybe Manitoba, have signed on and committed to advance notice and consultation on any new environmental law or policy.
So I am wondering if you could elaborate a bit. We have heard from other witnesses talking about where they found that part of the Ontario bill has ended up being the most profound new right and opportunity.
Thank you to each of the witnesses for being here.
As we heard testimony this afternoon it became evident very clearly that the roles and responsibilities of the two offices, the Commissioner of the Environment federally and the office of Mr. Miller, have quite different mandates. I'm going to focus on the federal aspect. And thank you, Mr. Miller, for the comments that you've made.
The Auditor General of Canada and the Commissioner of the Environment provide parliamentarians with objective, independent analysis and recommendations on the federal government's efforts to protect the environment and foster sustainable development.
Mr. Vaughan, you talked about the FSDS. That is a very important piece of legislation. Everything federally now is looked at through the lens of sustainable development, and there are three legs to that stool. There are economic impacts, social impacts, and environmental impacts, and there's that balance that government tries to reach. So it's through that lens. My questions are going to focus on a new lens, and that's the environmental bill of rights.
Now, do we use the lens of sustainable development or do we use the lens that you do your audits through, the environmental bill of rights? Which lens do we look through? Which is the dominant lens? Will all legislation now be looked at through the environmental bill of rights?
We've heard testimony for the last couple of weeks. In the first couple of meetings we heard primarily from NGOs, non-governmental organizations, and the term “stick” was used a number of times. They wanted a piece of legislation, like Bill , that would be a stick that could aggressively encourage the government to move in a certain direction. The issue of litigation has come up time and time again. The question was asked whether there would likely be an increase in litigation. Mr. Miller touched on that. I'd like to read what one of those witnesses, Jamie Kneen, said: “The entire point is that the threat of litigation is a very strong motivator.”
I think most of us interpreted that to mean it may not necessarily increase the number of actions against the government, but it would be a very strong motivator to move in a certain direction.
So my question then was whether it's the threat of legislation that is the stick, to which he said, “I believe so.”
After the NGOs we heard from industry--the Chamber of Commerce, business--and we heard about the chill that Bill could provide, again, through this threat of litigation. We also received a letter from the Quebec Business Council on the Environment, and they shared some concerns that there's no circumscription on Bill C-469, no restrictions. It's unlimited. We had also heard through the previous testimony that there was an unlimited uncertainty, that there was no end to appeal, that appeal could go on and on, and that any resident could take an action. So I think that has been a concern around this table.
Are there any limits or is it unlimited? If it is unlimited, then it would provide unlimited uncertainty and loss of investment.
This is what the Quebec Business Council shared in their conclusion:
This bill calls into question the power of the federal government to give legal authorization for projects or actions likely to have environmental impacts and grants the courts very broad ordering powers. It includes many vague concepts, such as a right to a healthy and ecologically balanced environment, which is not circumscribed, contrary to what is found in Quebec’s legislation, for example.
How much time do I have left, Mr. Chair?
:
Thank you, Mr. Chairman.
Good afternoon. It was very interesting for us, as Justice counsel, to have an opportunity to hear what the commissioners had to say who appeared before us. I hope we can help to answer any other questions that have been raised.
[English]
Mr. Bezan has already introduced me and my colleagues Mr. Nielsen and Mr. Melaschenko. Once again, we are pleased to be before you today to answer your questions.
[Translation]
Specifically with respect to the consequential amendment to the Canadian Bill of Rights, that you are surely aware that it is an issue of particular interest to Justice. Mr. Melaschenko and myself will try to answer any factual questions you may have in relation to existing environmental legislation or other such matters in relation to the bill before you.
As you are aware, as Justice counsel, we are not able to provide the committee with advice about potential amendments to the bill, or any other matter that would be covered by solicitor-client privilege.
[English]
Given the issue of particular interest to Justice--namely, the amendment to the Canadian Bill of Rights--I'll now turn to that specifically.
Our understanding of the amendment is as follows. By enacting this consequential amendment to the Canadian Bill of Rights, Parliament would--to use the language of the Canadian Bill of Rights--recognize and declare that there has existed and shall continue to exist a right to a healthy and ecologically balanced environment and a right not to be deprived thereof except by due process of law.
Parliament would direct--again to use the language of the bill--that every law of Canada shall, unless it is expressly declared by an act of Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge, or infringe, or to authorize the abrogation, abridgment, or infringement of the right to a healthy and ecologically balanced environment.
Finally, Parliament would direct the Minister of Justice 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 right to a healthy and ecologically balanced environment, and to report any such inconsistency to the House of Commons at the first convenient opportunity.
[Translation]
With this understanding of the consequential amendment, we will be happy to entertain your questions.
The issue has been raised, by a number of witnesses, about the scope of the bill. Some of the committee members have been concerned about whether or not the scope of the bill is clear, which would be apparent if you heard the questions to the previous witnesses. I would welcome your opinion on this. I guess you can't give legal advice, but it is something the committee might look at.
In the way it has been drafted, this act, as I understand...it's quite different in our law than in the codified Quebec law, where it may be more specified per provision. It's quite common, is it not, in common law statues, I guess we would call them, at the federal level, in provinces other than Quebec, to clarify the scope of the legislation at the very beginning?
In fact, clause 8 sets out immediately to clarify the scope of application to “decisions emanating from a federal source or related to federal land or a federal work or undertaking” . Then subclause 9(2) clearly places the obligation on the Government of Canada within its jurisdiction. In clause 13, it's only the review of federal instruments, and clause 14, acts of Parliament.
Are there not in fact many measures in this bill that set forth to constrain the ambit and scope of the bill?
:
Thank you very much, Mr. Chairman. I have no questions for my colleague, Mr. Woodworth.
I don't know if it's because the Harry Potter film has just been released, but I increasingly have the feeling that someone is playing sorcerer's apprentice with this bill.
I would like to thank the witnesses for being here.
I have no legal training, but as you were making your comments, a document was handed to us from the Conseil patronal de l'environnement du Québec in which there are a number of ‘shock’ statements that I'd like to share with you. One deals with clause 22 and reads as follows:
Moreover, the CPEQ notes that such an erosion of fundamental legal principles would be likely to shake the foundations of our judicial system and give rise to precedents that might be repeated in other areas.
That is mind-boggling, as they say. You said it would be up to a court of law to make such a determination.
[English]
A lot of things would be left to the courts.
[Translation]
I know that you have limited speaking time this afternoon. I have no desire to take you somewhere where you don't want to go, but I can tell you that, personally, this bill does take me somewhere where I don't want to go—namely, into areas or situations that will ultimately create new law. What I discovered this afternoon is that this could happen, not only in the environmental domain, but also in other areas of jurisdiction.
Have you compared the bill that is before you, and which we are currently reviewing, with institutional legislation? Earlier the Environmental Commissioner of Ontario told us that there are civil remedies available, but that they are in no way comparable to what is proposed in this bill.
I'd like to come back to the Conseil patronal de l'environnement du Québec and give a few examples from Quebec. In the Quebec Charter of Rights and Freedoms, section 46.1 enshrines every person's right to live in a healthful environment in which biodiversity is preserved. That looks very similar to the substantive principle that appears in the bill that is before us, which is the right to live in a healthy environment, except that the right is framed using the following words: “to the extent and according to the standards provided by law”. The same applies to the Act to affirm the collective nature of water resources and provide for increased water resource protection, which enshrines the right of every natural person to have access to water that is safe for drinking, cooking and personal hygiene, under the conditions and within the limits defined by the law.
Finally, what we're saying is that this bill does not contain any “buts”; there are no limitations. The federal government, as custodian of the environment, would have an obligation to protect this undefined right. The lack of limitations creates a climate of constant uncertainty where authorizations granted to companies, as well as adherence to the laws and regulations in effect, become almost secondary. Environmental laws become secondary in the environmental domain.
Mr. Chairman, do you think I can ask our legal counsel to comment on this, within their area of jurisdiction?
:
I offer my comments to the committee not as an expert on provincial law. I've had occasion to read the provincial statutes that we've been discussing, including statutes from the Yukon and the Northwest Territories, so I very much offer my comments in that context. I hope they answer your question to some degree.
What I've noticed is that the statutes from these four jurisdictions do, in some way, recognize environmental rights. However, all the rights being recognized don't necessarily mean the same thing.
Why would I say that, not being an expert in provincial law? Well, for one, on their face, they're worded differently. Some have limitations, which we've alluded to, in particular in Quebec.
Also, the legislation of the Northwest Territories, the Yukon, and Ontario does not provide for a specific right of action against the government for violating a right to a healthy and ecologically balanced environment.
I've also compared the civil causes of action, which I can speak to you about, if you'd like, although I don't know if at this point if....