This is the Standing Committee on Foreign Affairs and International Development, meeting number 29. We are here this afternoon to continue our study of Bill
We have already heard from the sponsor, Mr. McKay, of this private member's bill. I believe that is probably the most recent work we have done on this bill. Many of the members of this committee have suggested witnesses to come forward to testify on the bill. We're going to be hearing from CIDA officials, Department of Foreign Affairs, Finance, and numerous research and policy centres from around the country who wish to contribute to our study on the bill.
Today we have as witnesses from CIDA, the Canadian International Development Agency, Christiane Verdon, senior general counsel, legal services division; and Stephen Wallace, vice-president of the policy branch.
We welcome you here today. We look forward to what you have for us. We'll then go into the first round of questions.
In the second hour today we will be discussing our draft report concerning the committee's study and recommendations on Haiti. In this first hour we welcome you here. We look forward to what you have to say on this all-important bill.
The time is yours. Thank you.
Thank you very much, Mr. Chair.
Thank you, Mr. Sorenson.
It really is an honour to be here.
It’s a privilege for us to appear before the committee.
We're very pleased to continue to support the work of the committee. We've been following closely the progress of Bill and have been studying its possible implications. We've also undertaken background analysis of legislative mandates across OECD member countries, and we'd be happy to discuss the results of this international analysis if you would like and are interested in it.
As the Organization for Economic Cooperation and Development has put it most recently:
||A well-developed legislative basis has the advantages of transparency and of clarifying responsibilities among the various government entities that may be involved, as well as establishing development objectives.... On the other hand, countries with a less formalised legal basis may have more flexibility to act and this could be an advantage when trying to build coalitions between development agencies and other government entities whose policies and actions have an impact on development prospects in developing countries.
That's from the OECD earlier this year. Legislation is indeed featured quite prominently in several other countries of the Organization of Economic Cooperation and Development, although it is quite specific to the legal and political circumstances in each particular case. There's not a lot of comparability when you walk across the international system; these are fitted very much to local circumstances.
A key objective of development assistance legislation is establishing a clear and efficient legal basis for the aid program in a way that can stand the test of time and remain relevant in a changing world.
This challenge is, of course, even greater from a legal perspective when you consider the range of government departments here in Canada, including the Departments of Finance, Foreign Affairs, and line ministries that help to deliver on Canada's aid program and that will be affected by this bill.
From an operational perspective, Bill needs to achieve a result—and I think committee members have been working towards that objective—that is clear and simple, easy to understand, understandable in its application, and with relevant and efficient reporting requirements.
On the easy-to-understand question, my colleague would like to raise a number of points that we hope will be of use to the committee in its detailed review of the bill.
It's important to state at the outset that the underlying objectives of Bill —i.e., achieving greater clarity of purpose, strengthening accountability, and setting new standards of transparency—are consistent with the guidance we have received from the government. These are core elements of better aid. They are objectives that lie at the heart of the aid effectiveness agenda that the Minister of International Cooperation had the opportunity to discuss with you less than three weeks ago.
For the past six months, CIDA has been implementing a four-part program to make aid more efficient, through a more strategic focusing of Canadian cooperation, a systematic improvement of program delivery, a more effective and efficient use of our resources and a clear accountability for results. These issues can also be found in several provisions of this bill.
In terms of the objective that it must be understandable in its application, I want to identify a number of potential problem areas for consideration, taking into account as well any amendments the sponsor of Bill C-293 has put to the committee.
The first has to do with the petitions system. Measures to increase the responsiveness of the aid program to those for whom aid is intended are indeed important, but we have questions about its value-added, the management requirements, and overhead implications for the aid program.
A second question relates to how we would apply the mandatory requirement, as we see it, to consult international agencies and Canadian civil society organizations on any decision involving the use of aid. This could cover literally thousands of decisions every year, around the world, for which specific consultative arrangements would need to be established and where Canadian civil society organizations may not even be present.
We're very much engaged on an ongoing basis with consultative processes. These are essential to our effectiveness, be they on partner relations, country strategies, or sectoral and operational issues, for example. But we are concerned about the administrative implications of doing so, as formulated in this proposed bill, on an indiscriminate basis.
We see a related problem in how we would interpret in law the otherwise critically important principle of taking into account the perspectives of the poor. CIDA and its more than 700 Canadian partners currently do so through a variety of formal processes--for example, project steering committees, country strategy exercises, consultations on different themes and sectors--and a lot of informal meetings, through site visits, through discussions, through background research. This is what we do right now in taking account of perspectives of the poor. In law it is unclear what would be the test of performance in this particular area. We raise that as an issue.
Moving on, we've had good experience with advisory committees. We believe they can add real value and transparency to Canada's international cooperation program. We wonder, however, whether limiting advice to ministers to a single advisory committee is preferable to special purpose committees that can provide specialized advice on particular issues. In three weeks, for example, an expert panel is being established under the minister's authority to examine issues related to Canadian partnership programming in civil society. The composition of this committee has been designed specifically in relation to its particular mandate.
More can be done to strengthen reporting for accountability and results. Bill C-293 contains several provisions in this regard. The requirement to report on any activity or initiative taken under the bill is very broad, and in our view unprecedented. Other reporting provisions are the responsibility of various ministers, and we expect that the committee will want to ensure that there is no blurring of the accountability relationship that specific ministers might have to Parliament.
These are some of the operational questions, Mr. Chair and committee members, raised as we go through some of the specifics of Bill C-293. We'd be very pleased to discuss them and other areas of interest. We hope our perspectives will serve the needs of the committee.
Thank you very much.
I will address my comments to the bill as tabled in the House as well as to the amendments moved by the sponsor.
The bill raises a number of questions. I would like to comment on some of these. First, it does not seem to take into consideration the present legislative framework. Second, its wording is such that it leaves much room for interpretation, which can increase the risk of judicial reviews. Third, it superimposes development assistance criteria that will make it difficult to implement. Finally, the overlapping of some provisions with other legislation will blur accountability in the development assistance field.
Let me give you a few examples. First, I will address the present legislative framework. In the federal government, development assistance is covered by several acts that define the mandate of the ministers responsible for the administration of development assistance programs. The legislative framework is both specific and complex. For instance, it includes the Department of Foreign Affairs and International Trade Act, the International Development (Financial Institutions) Assistance Act and the Bretton Woods and Related Agreements Act.
I would be happy to say more about this, if you wish me to, but the representatives of the Department of Foreign Affairs and International Trade and the Department of Finance can also explain the issues they perceive about the impact of the bill on their respective legislations.
A second category of questions relates to interpretation and drafting issues. The bill presents some interpretation questions because of inconsistent language throughout the bill and the use of words or expressions that do not always have a precise meaning. Here are a few examples of inconsistent language.
Two different expressions, “Canadian development assistance abroad” and “Canadian development activities abroad”, are used within the same clause--clause 2. It is unclear if the expressions are meant to be different. Is the term “Canadian development activities” meant to cover the type of assistance referred to in clause 5--i.e., humanitarian assistance--as well as the defined term “development assistance”? If this is the case, humanitarian assistance would have to be provided in accordance with the principles of sustainable development. Also, the requirement to exercise Canadian development activities abroad in accordance with the principles of sustainable development is not subject to the same standard of ministerial discretion as the requirement to contribute to poverty reduction.
Also, in clause 2, the words “international human rights standards” are inconsistent with the wording found in paragraph 4(1)(c), which uses “Canada's international human rights obligations”. It is unclear why two different expressions are used.
Finally, the term “competent minister” refers to ministers designated to provide development assistance, not humanitarian assistance. However, the term “competent minister” is used in clause 5, which appears to relate to humanitarian assistance.
Examples of the lack of precise meaning in the purpose clause, clause 2, include concepts like “Canadian values” and “international human rights standards”, which do not have an easily defined ordinary meaning. A definition of the latter term, “international human rights standards”, has been offered in proposed amendments, but it still steers away from Canada's actual international obligations.
The amended definition proposed for “development assistance” is unclear. For example, the funding transfers seem to be to developing countries and multilateral institutions only. On its face, this can mean that funding transferred to NGOs for the benefit of the developing countries is excluded from the definition. It should be noted, of course, that the use of vague terms could open the door to a greater risk of judicial review.
There are two more points I would like to add in relation to drafting.
Purpose sections are usually meant to declare the principles of an act. They should not create obligations, which should be found in the more substantive provisions further in the bill, but subclause 2(2) does create an obligation that in fact goes beyond the purpose of the bill as stated in subclause 2(1). The purpose in subclause 2(1) relates to development assistance; however, the obligation in subsection 2(2) relates to all development activities abroad.
With respect to clause 7, on petitions, the petition system creates a risk of judicial review, especially taking into account the ambiguous language of subclause 7(5), which suggests that corrective measures must be taken.
A third category of questions I have relates to the superimposition of the various applicable criteria to ministerial decisions with respect to development. Beyond the issues of reconciling the various mandates expressed in the other statutes, Bill C-293 itself presents a challenge in the application of the various criteria or filters it sets for the provision of development assistance.
Let's look first at the definition of development assistance. The definition incorporates the definition provided by an international body, the OECD, and it is ex post facto that the OECD determines that funding already provided by a donor country constitutes ODA for the purposes of the OECD.
The amendment to this proposed definition includes a substantive dimension beyond the formal criterion: the transfer must promote the economic and social development of developing countries. This criterion, which defines the scope of the bill, will make it more complex to interpret and implement as drafted.
Let us now examine the criteria defined in subsection 2(2). This subsection about Canadian development activities abroad requires these activities to be provided in accordance with the principles of sustainable development.
Subsection 4(1) adds three conditions to the exercise of ministerial discretion about whether or not development assistance will be provided. Assistance must contribute to poverty reduction, take into account the perspectives of the poor and to be consistent with Canada's international human rights obligations.
The wording of paragraph 4(1)(c) is particularly problematic. It goes without saying that any minister is required to honour Canada's international obligations. However, given the interpretation principle of effectiveness, which provides that everything the legislator says has a purpose, there is a risk that the wording to the effect that the minister must honour Canada's international human rights obligations be interpreted as introducing a new requirement in Canadian law.
In addition, according to the amendment moved by the bill sponsor, in arriving at the opinion that development assistance contributes to poverty reduction, the competent minister must consult with international agencies and Canadian civil society. Beyond implementation issues, this requirement could open the door to a greater risk of repeated judicial reviews.
A final category of questions relates to
redundancy and blurred accountability.
The reporting sections of the bill create two levels of difficulty: they create requirements for reporting that are repetitive when taking into account the obligations under other acts and within this bill, and they appear to blur the accountabilities of the ministers involved.
For example, under clauses 9 and 10, both the Minister of International Cooperation and the Minister of Finance have to submit a report relating to the bill.
The Minister of International Cooperation has to submit a report containing a description of any activity or initiative taken under this act, while the Minister of Finance must submit a report containing a summary of operations under this act. The distinction between the two reports is not clear and begs the question of who is truly accountable for reporting under this bill.
Under the current legislation, it is the Minister of Finance who submits a report under the Bretton Woods and Related Agreements Act. The requirement in paragraph 9(1)(c) to submit a summary of that report is an example of duplication of the tasks of the Minister of International Cooperation and the Minister of Finance.
This was a brief outline of some of the issues raised by Bill C-293. This is what I would call a horizontal bill impacting the mandates and responsibilities of several ministers which are already included in other acts of Parliament, such as the Department of Foreign Affairs and the Department of Finance acts.
I will leave it to officials of these departments to give you more information on this.
Ms. Verdon and Mr. Wallace, I will follow up on the questions of my colleague, Mr. McKay. In my humble opinion, he's been very kind to you since, as I understand it -- and please correct me if I'm wrong --, you do not want this bill to go forward. However, in your presentations, you were both -- I'm trying to be kind -- very vague and somewhat fuzzy. Perhaps it's because we did not get your presentation in writing but you repeated several times that the bill is unclear and open to interpretation. When you want a bill, you offer practical suggestions to improve it. When you don’t want it, you just say it’s vague.
I just want to remind you, as well as my colleagues, that some time ago, the present prime minister wanted international aid to be entrenched in legislation.
Many people have issues not only with the amounts given as international aid but also with the transparency and effectiveness of aid. As representatives of CIDA, you say you don’t want this bill because it’s vague, but you’re not offering any suggestions to amend it, make it better and let Canada have some aid legislation.
This is what I want you to comment about.
The U.K. legislation at first seems similar to this bill because it has this lens of poverty reduction, but there are big differences between what this bill proposes to do and what the U.K. legislation does.
It's interesting, because we have a past history with the U.K. on the legal front, but there are quite a lot of differences between Canada and the U.K., particularly in the organization of government. Here in Canada, we have statutes that establish departments. In the U.K., that's not what they do. They have the statute that gives, in this case, powers to one minister. That statute doesn't have any impact on other statutes, because there are no other statutes creating other departments. In this case, in the case of the bill here in Canada, this bill does have an impact on other statutes that I've mentioned exist.
Also, another big difference in the U.K. legislation is that the legislation, this focus on poverty reduction, applies only to one minister, whereas under this proposed legislation here, there is a definition of “competent minister”. We assume there could be more than one competent minister, so it may apply to many, like two or three or I don't know how many ministers. So that's another difference.
I understand there was a lot of preparation work before the U.K. legislation was enacted. There was a white paper that had been published by the government at the time.
There's no petition system, no consultative committee in the U.K. legislation. It's a simpler mandate. It's clear that humanitarian assistance is separate from development assistance, because of course the situation is very different. When you deal with humanitarian assistance, you focus on saving lives, period, first.
The U.K. legislation also has its own definition of “development assistance”. It did not include the OECD one.
I hear there was a lot of debate in their House of Commons about whether or not they should refer to international human rights or human rights in the legislation, and the government decided that, no, they did not want that.
So there are differences, the main one being that it applies only to one minister and not to the whole U.K. government.
Thank you very much, Mr. Chairman.
The parliamentary secretary's expression of frustration perhaps calls upon all of us to reflect a little bit on the context in which this bill was brought forward in the first instance. I think it's fair to say that it was a context fraught with frustrations and problems. Over a period of more than two years, we had been hearing from a series of many, many international witnesses before this committee about how disappointed and horrified—I think some people went to the point of saying that—they were at the level of Canada's official overseas development assistance.
Secondly, there was something of a vacuum at the time, because we were waiting and waiting for an international policy review paper. You referred to it being helpful to have had a white paper in the U.K., as the broader context in which their legislation was developed. We waited for that. When it finally came, it was stillborn after about two years' gestation. It actually didn't create the opportunity for a broader discussion, because it was quickly transformed from what was supposed to be a review into a statement, end of discussion.
In that context, there was a genuine attempt, across party lines and in the best tradition at this committee level, to say that we want the government to address this question of a legislative framework, one that clearly makes poverty reduction the principal purpose of our overseas development assistance and so on.
The frustration that I'm now feeling—I don't presume to speak for anyone else—is that it seems to me that we have now heard from two governments in a row that there actually is legislation in the works. It's like, “Hold your horses here. There's legislation in the works.” Meanwhile, we have had representation after representation from NGOs, from academics, from researchers, domestically and internationally, telling Canada to clean up our act here.
We've just come back from travelling in four Nordic countries and in the U.K., where it was actually quite humiliating. I think we shared the humiliation of Canada's ODA being at 0.32% at the moment. Actually, Finland, which is probably the worst off of the five countries we visited, was at 0.98%.
So I'm going to ask the broader question. You're here representing CIDA. Is there legislation forthcoming from the minister? In that case, it doesn't make sense for us not to at least have some kind of notion about that if we're going to proceed in good faith. Secondly, if that's not the case, if you're not in a position to speak to that—and perhaps the parliamentary secretary is right that it's the government's responsibility—at the very least, can we ask you for a written analysis of what we have before us?
I have to say it's very difficult to deal with quite a lot of wandering comments but not what you could consider to be a detailed analysis that would allow us to move forward to the next step of drafting. Certainly, some of your criticisms are very sound. On further reflection, I would think we would be saying that, yes, we see a problem here, but I think there is a genuine all-party commitment here to move forward. Four parties agreed to go to look at some of these questions abroad, and now we're trying to figure out where to go from here. Any concrete suggestions that you could make to help us with that would be much appreciated.
Mr. Chairman, Parliament has spoken twice on this issue. The last time, 178 MPs supported it. You indicated the U.K. has it. Sweden has it. Sweden has poverty, and they have human rights as well. There were about six examples.
I guess I'm a bit confused here. This bill has been floating out there for quite awhile. You agree in principle. Then, at the eleventh hour, we get all these technical amendments. I would suggest--and I will have a motion in a moment, Mr. Chairman--that this is consistent with CIDA's goals and with what the minister has certainly indicated in the past.
We talk about problems of interpretation. I'm going to suggest, Mr. Chairman, if we propose a motion today to pass on Thursday, that we deal with this issue clause by clause next Tuesday. In the meantime, I presume that will force a cleanup of these technical amendments.
In fact, if it's consistent with CIDA's goals and if we see this legislation is operating in other jurisdictions, given that Parliament has spoken twice on this and that this isn't something new, I'm a bit surprised. I asked the mover of this bill whether he had any indication prior to today about these technical issues. He indicated there wasn't any comment to him.
I'm a bit concerned, Mr. Chairman, that the will of Parliament may in fact be dragged out the door by what would seem to be technical changes.
I would suggest that if it's the will of the committee to vote on this on Thursday for clause-by-clause discussion on Tuesday, then we proceed, and in the meantime, we get those drafting changes.