:
I will call the meeting to order.
We're continuing with our consideration of Bill . When we were at this last Monday we were on clause 6, Liberal amendment number 1, which is on page 9 of your amendment packages. The Conservatives were speaking to it.
As you know, we have our time allocation of eight minutes per party per clause, amendment, or subamendment. When we left there were four minutes and twenty seconds left for the Conservatives.
It's my understanding, Mr. Woodworth, that you're on for four minutes and twenty seconds.
(On clause 6--Purpose)
:
I'll recap what I said last time about there being something problematic in referring to inconsistencies rather than conflicts. An inconsistency can mean something other than a conflict. In my experience, it hasn't been the case that statutes refer to inconsistencies, but rather to conflicts, where one prevails and one does not.
Secondly, this amendment talks about the provisions of international conventions in force in Canada. Although I stand to be corrected on this, it's my general expectation that even though one might say that an international statute that has been ratified by Canada is in force in Canada, if there hasn't been any legislative implementation of it, it won't be something that could conflict with . If that's the case, one has to wonder where one would find the inconsistency or the conflict if there hasn't been any implementation of an international convention in Canada.
Beyond that, the part that's supposed to be added doesn't fit, in a grammatical or drafting sense, with the part it's intending to modify. Clause 6 simply says that the purpose of the Canadian Environmental Bill of Rights is to do certain things. There is no subclause 6(1). I suppose one would have to make the existing clause 6 a subclause 6(1) in order to add this subclause 6(2). If one were to do that, it's still uncertain whether subclause 6(2) would overcome anything in subclause 6(1). That is to say, if the “purpose of the Canadian Environmental Bill of Rights is to (a) safeguard the right of present and future generations of Canadians to a healthy and ecologically balanced environment” and it happened that subclause 6(2) came into operation as a result of a conflict or an inconsistency between the act and an international convention, it's not clear that simply adding a subclause 6(2) would override anything that would be in subclause 6(1), which would outline the purposes of the act.
If one wanted subclause 6(1) to be read subject to subclause 6(2), then I suppose one might say that in subclause 6(1). One might say that subject to subclause 6(2), the purpose of the Canadian Environmental Bill of Rights is to do certain things. In the absence of that, it's not clear to me that either of those subclauses would have any control over the other.
There are other things that I might say in relation to the main provision, but I'll forego those for the moment. When I talk about this amendment, I have in mind the Marine Liability Act, which contains a statutory implementation to discern how liability will attach to international shippers.
The second point I'd like to raise is that I fail to see where the confusion arises with respect to the second half of the amendment, which talks about inconsistencies or conflicts “between the provisions of this Act and the provisions of any international convention in force in Canada”.
I'm not a lawyer, but it seems clear to me, at least the way I read it, that if we've ratified an international convention and brought in a legislative instrument to enforce it in Canada, then this amendment here relates to the fact that there's a law in Canada that brings the convention into force. That's my understanding. I don't know if our lawyers or drafting clerk would like to add to that.
I don't have a legal background, and I honestly don't understand Mr. Woodworth's point about it not being correct to label this amendment subclause 6(2) when there's no subclause 6(1), and that if it's subclause 6(2) but not part of subclause 6(1), then it won't have the same implications.
I'm sorry, I just don't understand that, so if somebody could clarify it, I'd appreciate it.
:
I think it would say “to the extent of any conflict”, or it could be “any alleged conflict”. I don't know.
My suggestion is that we're close to it, and we might want to pursue more legal opinion and get back to that, maybe at the next meeting. That is what I'm suggesting. I think--I'm trying to find similar provisions, and I just haven't had a chance to find any--that is a good amendment. I appreciate that being brought forward. I think that should assuage some of the concerns raised by particularly the shipping industry. We certainly went through all of this when we did the amendments to Bill and endeavoured to bend over backwards to address any of their issues.
On the issue raised by Mr. Woodworth, I don't really see it as a relevant comment. That part of the bill is the purpose, and new subclause 6(2) is simply another stand-alone subclause that clarifies the purpose of the bill. I don't see necessarily that it's intended to clarify what will become subclause 6(1). I think it's a good clarification that has been tabled.
I understand, having talked to the drafters, that the numbers are automatically adjusted. I had asked that question myself to the drafters.
The problem I perceive here—and I'll try to make it a little clearer because I alluded to it in my previous comments—is that we now have, clearly, two different purpose clauses. And in a way, I'm grateful that Ms. Duncan has made her amendments, because it really highlighted that fact.
Her amendment would read in subclause (2), “This Act is intended to ensure consistency with Canada's rights and obligations under international law”. If we were using the same formula as in the existing clause 6, we would say, “The purpose of the Canadian Environmental Bill of Rights is to ensure consistency with Canada's rights and obligations under international law.”
Now we have two purpose clauses. It's not at all clear to me that those two purposes are necessarily consistent with each other. In other words, in the new subclause (2), with this subamendment, we are saying that the purpose of this act is to ensure consistency with Canada's rights and obligations under international law, but in what will become subclause (1), we're saying that the purpose of this act is to “safeguard the right of present and future generations...to a healthy and ecologically balanced environment”, for example. There are others there, too, but I just picked that as an example.
What does a court do if confronted with an argument that an obligation or a right of Canada has been implemented under an international convention that happens to contradict safeguarding the right of present and future generations of Canadians to a healthy and ecologically balanced environment? Well, the section says that if there's a conflict, the international convention will prevail. To a certain extent, I find that reassuring, because it would at least enable the effect of this Bill to be somewhat gutted if we can arrange an international convention on the subject, which would, in effect, overrule some of the more outlandish and extreme provisions of Bill C-469.
But it's not at all clear to me that subclause (2) will have the effect of overcoming what will become subclause (1) here, because subclause (1) doesn't say that it's subject to subclause (2).
There are two stand-alone purpose clauses. They may well come into contradiction with one another. There is nothing in the bill that gives a judge any guidance about whether the judge should follow what will be subclause (1) or should follow what would be subclause (2). Personally, I'd like him or her to follow subclause (2) and really gut subclause (1) in such a case, but I have no assurance that's what will happen with this amendment, even with the subamendment.
It's very difficult to discuss these things, Mr. Chair, in isolation. One would almost have to find a concrete example. That's where I was going a moment ago when my time ran out. I do thank my Conservative colleagues for allotting to me their one and a half minutes each on this debate.
I was getting to the Marine Liability Act because it might serve as a concrete example of how this will work. I regret that I'm not as familiar with the Marine Liability Act as I would like to be. As with my colleague, Ms. Duncan, across the way, I just didn't have the time to really sit down and work it through. But my impression, generally speaking, is that the Marine Liability Act would limit in certain circumstances the liability of a shipowner responsible for an incident of pollution in Canadian waters. I may be wrong.
I also want to say--along with my colleagues--I am by no means an internationally trained lawyer, so I don't ask you to accept what I say on that basis. I'm only trying to look at this as a lawyer who has some facility with the interpretation of statutes.
Let's suppose that under the Marine Liability Act, pursuant to an international convention, we are passing a law that limits the liability of shipowners in polluting incidents in Canadian waters. I suppose as long as the Marine Liability Act, as passed pursuant to the international convention, duplicates the provisions of the international convention, this new subclause 6(2) as amended would kick in and would indicate that shipowners are only going to be liable up to the maximum of their liability under the Canadian implementation of the international convention on marine liability.
But subclause 6(1) will say that the purpose of this act is to
(a) safeguard the right of present and future generations of Canadians to a healthy and ecologically balanced environment;
(b) confirm the Government of Canada’s public trust duty to protect the environment under its jurisdiction;
I think those are the two that apply.
So what if a judge decides that the liability limitation in the Marine Liability Act does not adequately safeguard the right of present and future generations of Canadians to a healthy and ecologically balanced environment, and therefore the purposes enumerated in subclause 6(1) are not being met if we are meeting the purpose enumerated in subclause 6(2)? What will a judge do?
In the absence of some qualification of subclause (1) to say that it's subject to subclause (2), it's not at all clear to me that a judge would say that he or she was going to apply subclause (2), rather than disregarding it in favour of subclause (1).
That, to the best of my ability, articulates why I believe it's not sufficient to simply tack on subclause 6(2) with a new purpose, rather than integrating it somehow as a superordinate safeguard that would, in appropriate cases, really gut subclause 6(1).
:
Thank you, Mr. Chair. I am using my time to assist our committee.
In the Canada Shipping Act they have the objectives of the act and then they have exclusion. Under exclusion there's a subheading called “Conflicts with foreign rules”, and that subsection basically says “Regulations made under this act do not, unless they expressly provide otherwise, apply” to vessels—blah, blah, blah.
The subheading which says “Conflicts with foreign rules”, is at the front end of the statute. My understanding from when I worked in legislative drafting is that you put provisions like that at the front of the act because you're saying this is how this act is to be read. The provision is “Conflicts with foreign rules”, and it says if there are any conflicts with a foreign rule, then that foreign rule prevails.
It then applies later on. It applies later on if you have a right to bring a legal action or to file a request for investigation or to ask for a rule to be revisited. All of those rights can be exercised, but the government only has to respond within the boundaries of what they've signed on to and ratified in international law. That's my understanding.
With respect to where you might potentially place that, sometimes those kinds of provisions go at the end of the statute simply as clarification of such and such being excluded if there's any conflict with international law. I think that's of lesser concern. We could maybe talk about that.
I still think it's a useful amendment, and it responds to some of the issues raised by some of the witnesses.
I think the situation gets complicated when we compare the French translation to the original English text. In English, it says:
[English]
“In the event of any inconsistency between the provisions of this Act and the provisions”.
[Translation]
In French, that doesn't exist, it's not there. The French is very clear; it says: “Les dispositions de toute convention internationale en vigueur au Canada l'emportent sur les dispositions incompatibles de la présente loi.” And you could put “conflictuelles” instead of “incompatibles”.
I wonder if, instead of amending the amendment, we should just…I would translate “inconsistency” with “conflit” in French, but, apart from that, the paragraph is very clear in French. It's the English that is not clear, in my opinion, and that's where the complication arises. We are all talking about the words “In the event of any” that do not appear in the translation. It may also be that the amendment was written in French first and translated into English badly. I don't know, but, Mr. Chair, it seems to me that the situation is clear in French, but not in English. Someone will have to tell us what it is supposed to mean.
There is another thing. We can spend hours on discussions like this. Mr. Chair, there is never one judge in a court like this, there are three or five, because people around one table do not agree and never will. Let us try to do the best we can rather than wanting to settle only for perfection, because I don't think we will ever get there. I think we could be happy with that. We have to keep one thing in mind: our goal here is to protect the environment, not judges and lawyers.
:
I will explain why I've brought forward this amendment. It was brought to my attention after the tabling of my bill that in the Canadian Environmental Protection Act, 1999, they chose to change the definition of “federal land”. This change to the definition of “federal land” is what I'm proposing to bring forward, so that it's consistent.
The definition is separate. We haven't dealt with the definitions yet because we wait until we go through the substantive provisions. Later, we will get to where I will have changed the definition of “federal land” and added a definition of “aboriginal land”. That will define this provision.
We can choose to leave the definition as it is or we can choose to change it. I'm fine either way, but I think it's important to be consistent. Interestingly, the government changed the definition in CEPA, but not in CEAA. I don't know what that's about.
The definition I have put in my Bill is, I believe, the same one that is in CEAA. Maybe they just haven't caught it, and maybe it will come up when we start reviewing CEAA.
So that is why I've added that in. It's simply a decision that was made by the government of the day that those should be defined separately. Aboriginal people may have said they didn't want to be included under that subhead. Maybe in CEPA there were provisions related to aboriginal land and not to federal land or vice-versa.
But generally speaking, until a first nation under the First Nations Land Management Act actually issues a land code that allows them to exercise a certain measure of environmental regulation in resource development on their land, the only environmental laws that apply to first nations lands are federal laws.
In federal environmental statutes, the reason we talk about federal land and aboriginal land is that provincial laws don't generally apply. It may well be that they made that change when the first nations final agreement started to be signed off. Constitutionally, first nations, as opposed to band councils on reserve, had additional powers. Now, under the First Nations Land Management Act, there is potential for the promulgation of bylaws by a first nation.
So this is my amendment. I'm tabling it to make it consistent with the Canadian Environmental Protection Act. If it's rejected, it's not the end of the world, because it will be consistent with CEAA.
I'm going to make a couple of comments on this amendment that has been presented by the NDP.
As Linda said, she's adding the words “aboriginal land” after “federal land”. We heard from the witnesses that there's concern about the uncertainty Bill creates and the possibility, with that uncertainty, of lost investment and lost jurisdiction. Saying “federal land” was not adequate for the NDP. They now are ensuring that the uncertainty is also expressed in “aboriginal land”, which is why this side of the table had expressed concern that we did not hear from aboriginal and first nations witnesses. It is so important to hear from them, and we have yet to hear from them. To add these words adds uncertainty.
By expanding the scope of the application of the bill to aboriginal lands, this amendment increases the concerns, as I said, that we heard from the witnesses.
So I will be voting against it, and I hope all members will too. Thank you.
:
That's a complicated question. Generally speaking, except for some particular laws, the general view, which is held by the courts, is that provincial environmental laws will not apply to first nations lands unless they accept that they do or there is some strong argument that they should be applied.
That's part of the problem for first nations on reserves. Most of the first nations final agreements are in the Yukon and Northwest Territories and Nunavut. There are starting to be some in British Columbia. They kind of follow separate rules than what happens to reserves, which only have the Indian Act, which is very inadequate. For environmental protection, they have simply whatever federal law exists. In the case of environmental permits and so forth, they don't have them.
This First Nations Land Management Act, and the ability of a first nation to enact its own environmental laws, cannot be asserted unless they actually enact the land code, which is a fairly intensive process. In the meantime, they need the federal laws in place to be applied. And they need to be able to have recourse to the courts to make sure those laws are applied. They are regularly filing those kinds of actions.
I think Ms. Murray is on the right track.
I just want to clarify my understanding of where we're going with this amendment. It is that in fact aboriginal land will be subject to this bill. Not only that, but if the federal government enters into an agreement with an aboriginal group, giving the aboriginal group the authority to manage the environment within a particular geographic district--as I think we do in some areas in the north--such an agreement will be liable to be set aside under this bill if a judge concludes that the aboriginal group is not fulfilling the obligations to provide a healthy and ecologically balanced environment for Canadians or to act as a trustee for Canadians and for future generations. I think because any agreement between the federal government and aboriginal groups is a federal act and is in fact within the federal jurisdiction, it will be subject to scrutiny under this bill, and if a judge concludes that it somehow represents a breach of the federal government's statutory duty to act as a proper trustee, then that judge will be empowered--and we'll get to this later--to set aside such agreements.
I just think it's important to note in this amendment, as well as elsewhere in the bill, that the aboriginal custodianship of the environment will certainly be subject to scrutiny under this bill and subject to being set aside, if we find a judge who doesn't agree with the conduct of the aboriginal group in relation to the environment.
As I listened to Mr. Ouellet, I wanted to remind him of the words of Warren Everson, Senior Vice-President, Canadian Chamber of Commerce. I also intend to oppose the amendment for the same reasons. He told us that “the bill before you today seems to us to be a statement of frustration with the current process” rather than a working law. In his words, it is—and I ask Mr. Ouellet to pay attention to this—“a blank cheque” that asks the Federal Court to fill in the blanks. He continues: “Courts have said over and over again in the past that it is not the job of the court to make policy, and you politicians have said many, many times that it is not the prerogative of judges to make law in Parliament's place.”
Clearly, the Canadian Chamber of Commerce is of the opinion that the bill is much too confusing and that it will open the door to an endless litigation process. But our duty is to enact legislation that is clear.
So I am going to agree with Mr. Woodworth when he says that a bill must be clear. That is why I am going to oppose this amendment.
Thank you.
My concern is that we're making a mountain out of a molehill. Every statute is read within the context of other statutes. Any statute, federal or provincial, that may have an implication for aboriginal lands is read within the context.... If there's a first nations final agreement, it prevails over all statutes. You don't put all of that again into every statute that you write. If there's any conflict between what this bill might provide or any determination by the court, they make their determination within the context of the first nations final agreement. Plus, under the First Nations Land Management Act, if the first nation decides they want a land code, that code prevails over federal law. Therefore, the federal law would not be applying to that area anyway; the first nation law would. The law is certain. You just have to understand the whole context of all of the law, which would be considered in any case that is brought.
My question would go to all parties: did everybody here consult intensively with first nations in this bill and all bills that we've reviewed? I do my best to talk to as many people as I possibly can, and I have in fact sought their participation here. They just haven't been available. I really think we're making a mountain out of a molehill. The question here simply is this: do we want to go with the definition as revised in CEPA, 1999, or do we want to go with the definition that was in the original CEPA and appears to be in CEAA? These definitions were determined by respective governments, not by me, and they were passed by Parliament. The question is simple. We go with one definition or the other. If we go with the updated CEPA definition, then you would approve my amendment. If you want to go back to the definition in the former CEPA, and what is apparently in CEAA, then you vote against my amendment.
:
Thank you. That will be plenty of time for me, Mr. Chair.
I just want to go back to our role. A number of the witnesses who have appeared before us have told us that the bill is going to be open to a lot of interpretation. But, as legislators, our role is to come up with legislation that is clear. The role of judges is to interpret it.
From Mr. Ouellet's comments, I understood him to say that judges basically need to act like police officers on environmental matters. In my opinion, it is up to lawmakers to make clear law and up to judges to make wise decisions when the law has to be interpreted.
We have clearly seen now that this bill has a lot of flaws and that it is not clear. So, if we pass it, we will be failing in our role as lawmakers.
Thank you.
:
Mr. Chair, as you've laid out the amended motion, this includes decisions by federal bodies, including the departments, crown corporations, crown agencies, and decisions related to all federal-related industries, such as banks, shipping, and interprovincial railways. It will also apply to decisions that affect federal land, including reserve land.
Bill is about taking actions, so it's a litigation bill. Any resident or entity in Canada will be able to take legal action against federal lands, shipping, banking, railways, and on and on it goes. That's what we heard from the witnesses. The concerns they raised are now being exposed. The witnesses were correct in their concerns.
The bill would apply to decisions by the federal government on such things as environmental assessments. After substantial environmental assessments, action could be taken if a permit is issued to industry, to first nations. Other decisions—
:
Chair, what we are voting on is clause 8, which says now, as amended:
The provisions of this Act apply to all decisions emanating from a federal source
We don't know what that means. The uncertainty of this bill is shocking; we're putting the cart before the horse. We're going to say “all decisions emanating from a federal source” without knowing what that means, or “related to federal land, aboriginal land or federal work or undertaking”—basically anything that actions can be taken by any resident or entity. Chair, it's exactly what we heard from the witnesses.
Just to refresh, what did the witnesses say? Mr. Huffaker, the vice-president of policy and environment for CAPP, said:
In our view, Bill C-469 is not good policy for Canada. We believe it is fundamentally flawed and we respectfully submit that it cannot be amended into good policy.
This is business. This is CAPP. This is the vice-president for policy and environment saying it should be scrapped.
The Chamber of Commerce said:
...the lack of legal clarity will chill any investment consideration.
A fundamental precondition of commercial development, wealth creation, and economic acceleration is that there is a rule of law that can be enforced and counted on so participants know what they have to meet, and that if they meet it they are acceptable. That is what we're asking for. We just want to know reliably what tests we need to meet. In my judgment, this bill fails that test completely.
I can go on and on. There are suggestions that the need for certainty is paramount. Here we go, moving forward on clause 8 as amended, with continued uncertainty.
The bill would also apply to decisions related to private, federally regulated industry. Where harm to the environment is a result of such a decision, a court proceeding may follow. This prospect would increase uncertainty for business interested in engaging in these types of activities.
Chair, what is the definition of federal source? The bill defines federal source as “a department of the Government of Canada”, “an agency of the Government of Canada or other body established by or under an Act of Parliament that is ultimately accountable through a minister of the Crown in right of Canada to Parliament”, or “a Crown corporation”.
Because the bill would apply to decisions emanating from these bodies, the bill would affect industries that are regulated federally and programs that are administered federally. It would also apply to many decisions made by the Minister of Indian Affairs and Northern Development related to reserve lands and first nations individuals. This is why we have huge concerns.
Chair, I'm not going to be making this motion, because we're down this pathway now. And that's why we're recording the votes. I'm shocked that we have the Bloc supporting legislation like this, which is going to be bad for Quebec, bad for our first nations. But we are going down this pathway.
I think I'll leave it at that, Chair, and look for comments from others.
The very words of this provision say that this act applies to “all decisions emanating from a federal source”, and Mr. Warawa picked up on that as being quite uncertain. I just refer to it to buttress what I said earlier about the fact that for sure, agreements between the federal government and an aboriginal group would fall into that category. Quite frankly, a decision emanating from a federal source is likely broad enough to include an act of Parliament, unless that act of Parliament specifically said it was to be free of the influence of this pernicious bill.
Having said that, I had a conversation yesterday with an officer of the University of Waterloo. I asked her if she knew we were studying a bill that meant that if the University of Waterloo received funding to build a new building on their campus and they went through a federal environmental assessment in order to implement that, and spent x number of millions of dollars doing that, and complying with federal government regulations, and spent x number of years doing that, the project could still be derailed by a lawsuit at the instance of virtually anyone who could apply to a judge to either set aside the building or modify it? She was quite horrified to hear that that would be possible. I think most Canadians would be horrified if they knew what we were studying at this committee.
Thank you.
:
I was pleasantly delighted to see this amendment in here, because it reduces the scope and power of the bill, to a certain extent, from how broad it originally was.
To hear that the Bloc actually wants to withdraw this right now actually gives me great concern. I know that my colleague, Mr. Blaney, will probably be speaking to this. I can't speak about the intentions of others on this committee, but it would seem to me to circumscribe the extent to which the law would apply.
We heard from many witnesses that the legislation is overarchingly broad and would have undoubtedly damaging consequences. So “to the extent required by federal Acts and regulations”, it would seem to me, on the cover, is a good notion. The problem, Mr. Chairman, is that it doesn't matter. If it looks like a duck and it walks like a duck and it quacks like a duck, we can call it something else, but the reality is that it's probably still a duck.
It appears to be a good amendment on a relatively flawed clause. I have a lot of concerns about clause 9, all three parts of it. Of course, the Liberals have an amendment to add a fourth subclause to this particular clause. I hope they're not going to withdraw their motion either.
Mr. Blaney, did you want to speak to this particular amendment?
:
Thank you very much, Mr. Chair.
I notice that in the Quebec Charter of Human Rights and Freedoms, section 46.1 recognizes the “right to live in a healthful environment in which biodiversity is preserved, to the extent and according to the standards provided by law”.
So it didn't surprise me at all that the Bloc members would want this bill to be circumscribed similarly, consistent with the legislation of Quebec. It does surprise me that they are now suggesting they would like to have it withdrawn.
Quite frankly, I think this proposal goes a very long way to protecting a provincial jurisdiction from what is otherwise going to be a lot of interference under this act. I can't support this proposal, because it doesn't go far enough, but I do respect the Bloc members for at least standing up to this limited extent on behalf of Quebec voters.
Thank you.
My understanding of the agreement to withdraw the provision is that had it been included, it would have nullified other provisions in Bill . It would have nullified clause 13 and clause 26. Clause 13 deals with the right to propose any new act, regulation, or instrument; and clause 22 with the power given to an auditor to review any draft regulations in the bill. So it would have nullified the later provisions and it would have been nonsensical to include.
It is true it's in the Quebec statute, which I believe was enacted quite some time ago. On reviewing the bills of rights of other jurisdictions, I see they do not include such a limitation.
So the agreement was to withdraw it; otherwise it would have made nonsensical a good part of the bill.
Contrary to what the Conservative members of the committee are alleging, there are many substantive provisions in this bill, including extending the right of access to information, the right to participate, the right to review any existing law or policy, and the right to propose improved laws and policies.
If that amendment had gone through, it would have taken away those rights and opportunities, so the Bloc very graciously agreed to withdraw their amendment.
:
I agree with Mr. Ouellet. The two sections he quoted are excellent. One is from the Environment Quality Act and it limits the application of the act by considering other existing ones. The other, section 46.1 of the Quebec Charter of Human Rights and Freedoms, to which my colleague Mr. Woodworth referred, reads as follows:
Every person has a right to live in a healthful environment in which biodiversity is preserved, to the extent and according to the standards provided by law.
The right is circumscribed by the words “to the extent and according to the standards provided by law”.
In terms of the bill before us, the Conseil patronal de l'environnement du Québec was very clear: there are no benchmarks. Quite the opposite, it is a free-for-all. The lack of benchmarks creates a climate of constant uncertainty. Is that what we want for Quebec companies? It creates an climate of constant uncertainty for hydroelectric development. Licences and permits issued to companies and compliance with legitimate acts and regulations become almost secondary. In other words, it does not matter whether you abide by the law or not. Anything can happen anywhere and at any time.
There was an attempt at an amendment that intended to rein that in a little, but there seems to be hesitation now. In its present form, the bill is an obstacle to Hydro-Québec's development and the proposals in the amendments do not go far enough. I hope that members will come to the defence of Hydro-Québec by voting against this bill.
Thank you.
First of all, Ms. Duncan has grossly overstated the application of this amendment, since it only applies to subclause 9(1). It really only applies to the issue of a right to a healthy and ecologically balanced environment. It does not, for example, affect the obligation in subclause 9(3) of the Government of Canada to be the trustee of Canada’s environment and all that flows from that.
The amendment does help to protect provincial jurisdiction against the problems this act will create, and to that extent, it does a good job. If it only went far enough, I would support it, but it doesn't quite go far enough.
We are voting on clause 9, Bloc amendment BQ-5, which is line 27 on page 7. It is a recorded vote.
(Amendment negatived [See Minutes of Proceedings])
The Chair: The amendment is defeated.
We are going to Liberal amendment L-1.1, which is on clause 9, line 5 on page 8 of the bill, and it reads:
(4) Every person in Canada has the obligation to protect the environment.
This is a new subclause 9(4) moved by Mr. Kennedy.
Do you wish to speak to it?
[Translation]
This is a simple and symbolic idea.
[English]
Of the countries that have an environmental bill of rights, 80 of the 192 also refer to an obligation for individuals to support the environment and protect it. It is not meant to be enforceable. It is meant to provide a balance in expectation. Just as there is an obligation for government, there is also an obligation for citizens. If there are opinions today regarding its applicability, it could possibly be moved to the preamble, because it is not meant to be legally enforceable.
Essentially, it is just a good idea that we also enjoin individuals along with government. This is not just a contract with the government but also something that individuals themselves can contribute to. I see it as a positive step and in keeping with the spirit of the bill.
I appreciate the opportunity to debate and discuss this. This might appear in various other legislative statutes around the world, but we're not talking about those statutes in other parts of the world; we're talking about this particular statute becoming law here in Canada. I have to tell you, the addition of subclause 9(4) here, as proposed by Mr. Kennedy, does cause me some concern.
My concern primarily is that this puts an individual onus on every Canadian to protect the environment, but it doesn't clearly define what the responsibility of protecting the environment actually is. We have definitions about what a “healthy and ecologically balanced environment” is, but nobody can even agree on that. And it's not so much that there's any specified penalty section or anything like that in this particular statute, but there is the entire section that deals with civil liability. It is my fear that if we put this clause in and this bill does become law at some point in time, every single Canadian who doesn't do something in accordance with what some other Canadian's perceived notion is of a healthy and balanced environment, if anybody does anything contrary to that....
I'll give you an example, Mr. Chairman. I'm a fisherman and I'm a hunter. I have a permit under the Fisheries Act, which is given to the Province of Alberta to manage that particular case. I could go fishing. Somebody who doesn't agree with fishing can say, you know what, this guy's ruining my environment, driving a boat on the lake. If I've got a licence to do so, he can say I'm wrecking his environment. He doesn't want these boats on his little private lake. He has a cottage here. This is what he can do.
I'm a hunter; I have a permit that says I can go hunting. We already talked at length, ad nauseam actually, about the fact that this bill gives judges the right to stop any permit, stop any authorized activity in its tracks. But I'm really concerned. Does “every person in Canada” mean every Canadian citizen? Does it mean every person who happens to be in Canada? Are we talking about residents?
So many parts of this bill talk about that. They talk about who's a resident. This particular clause actually talks about residents. What is the definition of “residency”? Well, we can talk about that. So there's “every person in Canada”, there's “residency”.... We'll talk about the residency clause that's here. For residency status in Canada, a person can be deemed a resident within one calendar year if she or he holds Canadian citizenship or she or he is deemed a resident due to his or her physical presence in Canada for at least 183 days. Now, does that mean every person who has been in Canada for 183 days, under section 4, or does it just mean every resident in Canada? Does it mean every Canadian citizen in Canada? Does it mean any entity? There are clauses in the bill, Mr. Chair, that actually speak to any entity being able to take action. So this clause is actually inconsistent with some of the other clauses when we specifically look at the civil action clauses, which I believe are in clause 23.... Help me out, colleagues. I've been away for a week.
So it is clause 23; that's where I thought it was.
I have some concerns about this:
Every person in Canada has the obligation to protect the environment.
It doesn't actually do anything to address how the right to a healthy and ecologically balanced environment is to be balanced with competing interests, such as social and economic goals.
So I would ask you, Mr. Chair.... Every person in Canada has an obligation to protect the environment, but it also says that every Canadian has a right to an ecologically and healthy balanced environment. Well, if someone has a job working for a company that is building an oil sands upgrader, how do you think that person is going to identify their healthy ecologically balanced environment--putting food on the table, being able to heat their home? These are the kinds of questions this bill basically raises and brings to question.
Mr. Chair, I have to recommend to my colleagues that we just can't proceed with this particular clause. It has too many broad connotations in its scope. It puts what I would consider to be an undue onus on every Canadian citizen to protect the environment when we don't even know what the determination is. Who's going to decide that? Who's going to determine if the environment is healthy or not? Who's going to make that determination? Is it going to be a judge?
If we take a look at the other clauses in the bill that this supposedly is going to be working with, subclause 9(1), which we've already taken a look at, and subclause 9(2), which we've already discussed in an amendment, and the amendment was defeated....
Every resident of Canada has a right to a healthy and ecologically balanced environment.
Take a look at the scope of that. What scope is that? Are we looking at the health of the environment from the perspective of a biome or an ecozone? There are 15 terrestrial ecozones in Canada and there are five aquatic ecozones. Are we talking about looking at it from a healthy and ecologically balanced environment, from the perspective of a micro-climate? Who's going to decide that? None of this information is defined in this legislation. That is fundamentally the problem with this particular piece of legislation.
I know this is in response to what Dr. David Boyd brought forward. He says in his recommendation:
Bill C-469 should include a provision establishing that Canadians have a responsibility to protect the environment. The provision would be hortatory rather than enforceable, but would make the point that rights and responsibilities are integrally related. As noted earlier, 80 nations....
I'm basically repeating what Mr. Kennedy said when he addressed this bill.
This is one individual who came before the committee. He basically testified that this should be brought forward. As I say, we can put it in there. If it's not going to be enforceable, why would we even bother to put it in there? I do have some very significant concerns, but not so much from the enforceability when it comes to the liability sections that we've seen in clause 18 of the bill. I think this clause would have wide-ranging and deep impacts on the legislation when it pertains to clause 23, which is the civil liability section. I can see individuals suing other individuals, whether it's something petty over lakefront property issues or whatever the case might be, protecting what they deem to be their ecologically healthy environment.
I can't, in good conscience, support this particular amendment, Mr. Chairman. I would encourage all members of the committee to defeat it.
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I am going to support that, because I think there needs to be a little more thought put into it.
As Mr. Calkins said, this comes out of a recommendation from Dr. Boyd, who is looking at legislation from other jurisdictions. But if you look at Canadian jurisdictions, what the Northwest Territories has put in is the right to protect the environment and maintain the public trust, which I think delivers more of what Mr. Kennedy is trying to do.
I agree that it should be stood, because I think we need to take a look at it. He was suggesting that he would like to stand it and perhaps later make changes to the preamble. But the preamble already states, “Whereas Canadians have an individual and collective responsibility to protect the environment of Canada for the benefit of present and future generations;” and “Whereas Canadians want to assume full responsibility”.
I'm not totally against it, but I don't like the idea of a mandatory obligation when there are no repercussions or penalties. But I'm willing to discuss this further with Mr. Kennedy, and I think a number of us would like to stand this one and have the chance to talk it through.
The amendment, of course, is going in a positive direction; however, it doesn't go far enough. The actual clause remains very redundant, even with this amendment. It causes a lot of issues about just how many different bodies are going to be asking for information from different government departments under different acts.
I'm going to list five examples where this is redundant.
For the first example, part 2 of the Canadian Environmental Protection Act, 1999, requires the minister to establish a registry for the purpose of facilitating documents relating to the matters under the act. This registry has been available online since March 31, 2000, and it contains approximately 3,000 documents related to regulations, notices, orders, permits, guidelines, codes of practice, agreements, policies, substances, and enforcement and compliance actions. Information is available to facilitate participation in consultations in decision-making processes under the act. The registry has also received between 34,000 and 164,000 unique visits per month, since 2009. This particular clause will make that redundant.
The second example, the Species at Risk Act, also requires a minister to establish a registry to facilitate access to documents relating to matters under that act. This registry is also online, and it provides access to over 2,300 documents related to Canada's strategy and legislation for protecting the recovering species, the protected species list, and information on assets. Again, there's already protection provided in that act.
The third example, the Canadian environmental sustainability indicators initiative, gives permanent funding in Budget 2010 to provide Canadians with regular information on the state of air quality, greenhouse gas emissions, water quality, water quantity, and protected areas. Again, there's protection there.
The Canadian environmental assessment registry was established in 2003 pursuant to subsection 55(1) of the Canadian Environmental Assessment Act. It is an important source of public information on projects undergoing environmental assessment under the act. The registry aims to help the public find information and records related to current assessments, and it provides timely notice about the start of an assessment and the opportunities for public participation. Once again, there's already protection currently under legislation.
The fifth example is the Access to Information Act, which applies to information related to environmental statutes. It gives Canadian citizens and permanent residents the right to be given access, on request, to any record under the control of a government institution. It places an obligation on the head of the government institution to make every reasonable effort to assist a person with their request, respond to the request accurately and completely, and, subject to the regulations, provide timely access to the record in the format requested.
With all of these existing mechanisms in place to share environmental information, it's unclear why the clause is needed. This amendment speaks to that. It tries to address that; however, it doesn't go nearly far enough.
We had witnesses come to committee on this. Theresa McClenaghan of the Canadian Environmental Law Association and Professor Stewart Elgie of the University of Ottawa both emphasized that these rights exist under broad federal access to information provisions.
I believe this amendment goes in the right direction. It addresses the fact that there are many protections already currently in place under many pieces of legislation. However, I don't think it goes far enough because of the redundancies that exist in the clause.
Thank you.