ENSU Committee Meeting

STANDING COMMITTEE ON ENVIRONMENT AND SUSTAINABLE DEVELOPMENT

COMITÉ PERMANENT DE L'ENVIRONNEMENT ET DU DÉVELOPPEMENT DURABLE

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, October 21, 1997

• 0904

[English]

The Chairman (Mr. Charles Caccia (Davenport, Lib.)): We can start by inviting our witnesses to take a seat at the table.

[Translation]

Good morning, ladies and gentlemen. In accordance with Standing Order 108(2), we will be proceeding this morning with our study of the harmonization initiative of the Canadian Council of Environment Ministers.

[English]

Would you like to introduce yourselves and indicate in which order you would like to speak?

Welcome to the committee.

Mr. Mark Winfield (Director of Research, Canadian Institute for Environmental Law and Policy): Mr. Chairman, I am the director of research for the Canadian Institute for Environmental Law and Policy.

• 0905

Mr. Muldoon and I will be doing a joint presentation on behalf of the Canadian Institute for Environmental Law and Policy and the Canadian Environmental Law Association. Mr. Beauchemin will be speaking on behalf of the Quebec environmental law association, and Mr. Shrybman on behalf of the West Coast Environmental Law Association.

The Chairman: For the benefit of the new members of this committee, would you give us a little sketch of your organization, how you function, and what your aims are?

Mr. Mark Winfield: I'll begin, and then perhaps each of the individuals can speak about their organizations at the beginning of their presentations.

The Canadian Institute for Environmental Law and Policy is an independent and not-for-profit environmental law and policy research and education organization founded in 1970 as the Canadian Environmental Law Research Foundation.

The institute has been following the CCME environmental harmonization initiative closely over the past four years and has written a number of detailed briefs on the various drafts of the harmonization agreements that have appeared. We've attached copies of those briefs to the brief I'll be presenting today and have filed those with the clerk.

I'm going to address my remarks today to the joint brief from the Canadian Institute for Environmental Law and Policy and the Canadian Environmental Law Association, of which you should have received a copy. There is a French-language summary on the first page. I apologize for not having been able to get the entire brief translated, but time just did not allow for that.

I'm going to begin with a brief overview of the evolution of the harmonization initiative from our perspective and then provide a brief discussion of our perspective on the contents of the accord and the subagreements.

Mr. Muldoon will provide a brief discussion of the implications of the agreement for environmental protection in Canada if it were adopted, as well as a brief discussion of our views on some alternative ways forward to provide for better co-ordination and collaboration between the different levels of government in the protection of Canada's environment.

The CCME environmental harmonization initiative began during Kim Campbell's brief government in 1993, at a time when there were some signals from the federal government of a willingness to reduce its role in environmental matters. Subsequently, the harmonization initiative was identified as a priority for the CCME in the fall of 1993. The first public documents began to appear in the summer of 1994, and these indicated that the purpose of the exercise was to eliminate the “duplication and overlap” between the federal and provincial governments' environmental programs.

A draft framework agreement and four schedules dealing with environmental assessments, international environmental affairs, compliance, and approvals were released in the fall of 1994. The process then stalled briefly in the summer of 1995, largely due to concerns on the part of the federal government, particularly in the area of environmental assessment. Under pressure from the provinces, the initiative was revived, and in November of 1995 we saw the release of something called the environmental management framework agreement and a set of 11 schedules that covered virtually every aspect of environmental management in Canada.

In our view, the document was seriously problematic. It effectively transferred responsibility for national environmental policy and decision-making from the federal government to the CCME and proposed to devolve most of the substantive environmental protection functions of the federal government—that is to say, environmental law enforcement and environmental assessment—to the provinces and territories.

The FMA, as it became known, was widely criticized as being unworkable. Indeed, it was creating what effectively would have been a new national level of government, which would have been unaccountable to any legislature or electorate. Indeed, in our own commentary on the FMA, we described it as a model for dysfunctional federalism.

• 0910

The FMA was drafted in the May 1996 CCME meeting in the face of opposition from a wide range of sectors and was replaced by a proposal for a shorter, Canada-wide accord on environmental harmonization and three substantive subagreements dealing with inspections, standards, and environmental assessment. These are essentially the agreements before us now and that the CCME apparently intends to sign at a meeting in early November in St. John's.

The critique, which we and others have offered on this initiative, flows essentially from two sources. The first is the rationale for the undertaking and the second is its clear direction towards the devolution of the federal environmental responsibilities to the CCME and the provinces and territories.

With respect to the project's rationale, in our view the project proponents have been unable to substantiate the problem that they claim the accord and subagreements are intended to solve, namely, duplication and overlap. There has been virtually no background research completed by anyone over the four years that this initiative has been evolving in regard to the problems the project is supposed to solve or its likely impact.

Indeed, the one study commissioned by the CCME and done by KPMG Management Consultants, which was completed in 1995, concluded that there was little actual duplication and overlap in federal and provincial environmental programs and that consequently the savings the provinces achieved through the project would be entirely marginal.

In addition, it has become clear over the past two years that the initiative is being driven increasingly by non-environmental considerations, particularly by the federal government's desire to demonstrate possibilities for the reform of the federation through non-constitutional means.

With respect to the contents of the draft accord and subagreements, a review of their content indicates to us that their primary goal is the definition of the exclusive environmental jurisdiction of each level of government and the barring of one level of government from acting within the other level's jurisdiction. Indeed, it's been said that rather than being intended to facilitate co-operation and collaboration between governments, the agreement seems designed to be an agreement among governments not to work together and to define exclusive spheres of responsibility.

This is especially evident in the provisions of the accord, the subagreements regarding one-window delivery of services, and in particular the so-called shall-not-act clauses, which appear in both the accord and in the subagreements.

The overall direction of the accord and subagreements is, in our view, also clearly towards devolution of federal responsibilities to the provinces, and this is particularly evident in the specific provisions and subagreements. The inspection subagreement, for example, would assign responsibility for the inspection of industrial and municipal facilities to the provinces and territories, including, apparently, inspections for the purpose of the enforcement of existing and future federal environmental protection requirements.

This causes us concern from a number of perspectives. One concern in particular is the capacity of the federal government to respond to imminent problems in situations where a province fails to respond. In our view, when combined with the shall-not-act language in the subagreement, it also raises some serious questions about the principle of ministerial responsibility.

Again, the standard subagreement would assign responsibility for the implementation of Canada-wide standards, which might apply to industrial or municipal facilities, to the provinces and territories. No reference is made to the use of federal legislative or regulatory authority for this purpose, and implementation of these so-called standards is to be entirely at the discretion of the provincial and territorial governments. That point, that implementation is purely at the discretion of the provinces, is repeated, not only in the accord, but no less than three times in the subagreement.

The environmental assessment subagreement has been one of the most controversial aspects of the harmonization initiative. The current publicly available draft—the April 1997 draft—of the environmental assessment subagreement essentially says that federal environmental assessments would only take place for undertakings occurring on federal lands, and that in other situations the federal government would rely on provincial environmental assessment processes to provide the information necessary for federal environmental assessment decision-making.

The subagreement has been reviewed in detail by a number of people within the academic and environmental communities with expertise in the area of environmental assessment and the Canadian Environmental Assessment Act. They are of the view that this arrangement would require major amendments to the Canadian Environmental Assessment Act that would substantially weaken the act. In the set of attachments you will find a detailed brief regarding the environmental assessment subagreement.

• 0915

Very briefly, I would also like to draw your attention to a couple of other issues in the accord and subagreements. Note well the commitments in both the accord and the subagreements committing governments to seek to change legislation, their programs, and their budgets as necessary to implement the accord and the subagreements.

I would also draw your attention to the fact that there is no clear sunset clause in the accord or the subagreements, and that all decisions or amendments to the accord and subagreements can only occur by unanimous consent of the parties. In our view this is potentially a recipe for deadlock and lowest-common-denominator outcomes.

I will leave off there. Paul will provide some discussion of the implications of the accord if adopted.

Mr. Paul Muldoon (Counsel, Canadian Environmental Law Association): Good morning.

The Canadian Environmental Law Association, located in Toronto, has a mandate under the Ontario legal aid plan to represent people who have environmental problems and who meet the guidelines under the legal aid plan. We also have a law reform mandate to promote better environmental law and policy in the country.

I'm also chair of the toxics caucus of the Canadian Environmental Network. This caucus recently had taken the task of co-ordinating input for environmental groups with respect to reform of the Canadian Environmental Protection Act.

Today I'd like to talk for a few minutes about the consequences of the harmonization accord, in particular with respect to the devolution aspects of it. Once I review the consequences, I would like to note the implications for the making of future federal environmental law, and then draw some conclusions.

In terms of the consequences of devolution, I have five reasons why devolution today is a bad move for the federal government and why it works against this agreement. The first reason deals with the historical nature of federalism in the making of environmental policy. The harmonization agreement would suggest to you that federalism is bad for environmental policy. In our view, having two levels of government with oversight of the environment is an advantage, not a disadvantage. Federalism provides checks, balances, and back-stops so that one level of government can step in when another level of government fails to act.

Our paper outlines a number of examples, but in my view the clearest example is the pulp and paper effluence regulations enacted a few years ago by the federal government. It was a controversial set of regulations controlling effluence from pulp and paper mills. Until this day we would not have those kinds of pollutants' discharges limited but for the intervention of the federal government. Some of those effluents are extremely dangerous, and those would not be limited but for the role of the federal government to provide some minimum level of protection for all Canadians. Ontario and B.C. went further than the federal government. Most of the provinces, though, rely on the federal standard.

That's clearly one example of where you need a federal system to ensure some minimum level of protection for all Canadians.

The second reason why devolution is problematic deals with the federal constitutional mandate. In a recent decision of Hydro-Québec, the Supreme Court of Canada noted that the protection of the environment was a major challenge of our time. It also noted that environment was a fundamental value and that Parliament may use its criminal law power to underline that value.

It is submitted that the federal government has an inherent duty to protect these values through the criminal law and other powers vested to it in the Constitution. In other words, while the Supreme Court of Canada is in fact enhancing the constitutional mandate with the federal government act, the federal government at the very same time is about to sign off major parts of its environmental roles and responsibilities to the provinces. We indeed have an interesting paradox happening.

• 0920

The third reason against evolution deals with the previous efforts. Harmonization is not a new idea. There have been many attempts to administrate equivalency agreements through both the Fisheries Act and the Canadian Environmental Protection Act to look at or try to harmonize federal and provincial requirements.

Our organization has attempted, through the Access to Information Act, to look at the efficiency and effectiveness of these other arrangements. Despite our best efforts in the past year we have failed to come up with clear answers to what's going on in terms of administrative and equivalency agreements. We've asked with no results. So we are now asking you as a committee to ask these questions of the federal government so you can have a clearer picture of the status of these previous efforts. I have five questions for you.

How many are there and what's the nature of these arrangements between the federal and provincial governments under the Fisheries Act and the Canadian Environmental Protection Act?

How many provincial officers have been designated under the federal statutes, in particular the Canadian Environmental Protection Act and the Fisheries Act, to reform federal duties?

What are the reporting requirements and to what extent have those reporting requirements been fulfilled under these arrangements?

What has been the number of prosecutions by both federal and provincial officers under these arrangements? What has been the level of industrial performance before and after these arrangements?

I think you're going to find that the answers to these questions are difficult to come by, and I suspect you'll find that some of the responses to these questions will be disconcerting. One example is we asked for the training material given to provincial officers who have been designated federal officers. The only thing we could get was 10 pages of overheads about what a federal officer or federal responsibility is when a provincial officer is designated. So there has to be incredibly more thought put into these arrangements before they can be implemented with any degree of integrity.

The fourth reason against devolution deals with the loss of provincial and territorial capacity. What's really happening is that both the federal and provincial governments are in the midst of environmental downsizing. The federal government intends to deal with the situation by handing off its responsibility to the provinces. This is a football game and the federal government wants to hand off its football, but unfortunately there's no one there to pick it up. The provinces simply do not have the capacity, and many do not have the will, to pick up that football and run with it. The environment will be one big fumble in this game. The statistics are outlined in our submission, but just look at them briefly.

In Ontario we have had somewhere between a 35% and a 40% reduction in the ministry of environment budgets since 1995. In Alberta it's over 30%. In Newfoundland it's over 50%. The numbers go on and on. It's no wonder that the Ontario Ministry of Natural Resources on September 18 gave its responsibility to enforce the Fisheries Act back to the federal government on the basis of budget constraints. So while we have one ministry in Ontario giving back its federal responsibilities to the federal government for enforcement, this harmonization agreement is about to download enormous other responsibilities on other provincial ministries. It's another paradox that we cannot reconcile.

The fifth reason working against devolution deals with the loss of federal capacity. As outlined earlier, one of the key elements of the harmonization agreement is that when one order of government is acting, the other order of government cannot act. The question is, if standard-setting, inspections, enforcement, and policy development are devolved to the provinces, how long does anyone really suspect the federal government will retain a capacity to do that? Two years, three years or five years?

In my view, the principle of the rule, if you don't use it you lose it, will gain popularity. How can you as a committee justify in the estimates process a large enforcement capacity, standard-setting, and policy development capacity to the federal government when it's not being used? To what extent can you justify budget sums based on the vague contingency that it might be used at some point? In our view, over time the federal government may be legally able to intervene at times when it is so triggered and justified under the harmonization agreement, but there will not be the practical capability to do that.

• 0925

The clear example was a memo from deputy minister Ian Glen in September to the staff of Environment Canada—that memo is in our material—outlining that the harmonization initiative will justify another 200 staff cuts at Environment Canada, in the areas of mining, petrochemicals, and pulp and paper. Does any Canadian really understand the implications of that for future environmental law and policy at the federal level? This is after 1,500 job cuts in the last three years.

I did outline those five reasons for why devolution is problematic for environmental law and policy, but what are the implications for future federal environmental law and policy? In my view the basic line is that the development of federal law on the environment from here on in would be circumscribed. The harmonization agreement is a break in the intervention and progressive movement of law by the federal government. That is the exact reason why it is happening. The provinces do not want the federal government to act on the environment. It is not a conspiracy. It's simply a strategy to get the federal government out of environmental law and policy. If it is signed on November 4, that is exactly what will happen.

The question is what evidence do you have of that? I have three arguments. First, I alert you to paragraph 2.(1)(l) in Bill C-74, the proposed new Canadian Environmental Protection Act, which is subordinate to any interjurisdictional agreement, such as the harmonization agreement. So even though there is a commitment of this government to enact a new Canadian Environmental Protection Act, in our view that act will be hollow because of the harmonization agreement.

The Canadian Council of Ministers of the Environment also released for public comment a toxic substances policy. This policy's clear aim is to circumvent the Canadian Environmental Protection Act and essentially to divert areas of policy-making away from the federal level to the CCME.

Thirdly, I just want to point out to you that through the Access to Information Act we received at least parts of the minutes of the Environmental Management Board meeting at Environment Canada dated May 7. What we have got from the access to information request has been given to you and to the clerk. The argument we would put forth to you is that harmonization will frame how current federal legislation will be dealt with at the federal level. The minutes of that would seem to support that. The minutes read:

Harmonization, CEPA and CESPA...are interrelated files and need to be addressed in one strategy so that we can position the new Minister on his/her arrival. The strategy should factor in PCO's views.

How I interpret that is it's a package. You put harmonization in place and from that will follow how we can deal with the Canadian Environmental Protection Act and Canadian endangered species legislation. They are all one act.

I will conclude with two or three remarks. First, we must also look at where we have been in the last six months. If you read the papers we will see and we will hear about the Pacific salmon crisis, the the Plastimet fire in Hamilton, the explosion at the Swan Hills hazardous waste management facility, the announcement of Ontario Hydro—

Ms. Aileen Carroll (Barrie—Simcoe—Bradford, Lib.): Mr. Muldoon, you are going just a little too rapid-fire for us new members, and maybe even some of the old members.

The Chairman: Take your time.

Ms. Aileen Carroll: Yes, take your time.

The Chairman: He is now on page 18 of his speech.

Ms. Aileen Carroll: Thank you.

• 0930

Mr. Paul Muldoon: I was going to conclude by relating some of the things that have happened in Canada over the last few months. I refer to the Plastimet fire in Hamilton; the Pacific salmon crisis; the explosion at the Swan Hill hazardous waste facility; the release of the North American Commission for Environmental Co-operation report relating the poor performance of Canada in relation to the United States in terms of pollution; Ontario Hydro's intention to shutdown seven nuclear reactors...and the list goes on. That's listed on page 21 of our brief.

The events of these past few months and the Supreme Court of Canada decision all indicate that a different approach from that proposed in the harmonization agreement needs to be taken by federal and provincial governments.

The contents of the proposed accord indicate that they are presently defining in rigid terms the roles of the federal and provincial governments. This is a particular focus on limiting the substantive functions and autonomy of the federal government beyond federal lands. The agreement would significantly constrain innovation in environmental policy at the provincial level.

In our view, there must be instead a clear focus on the real, and in many cases, expanding challenges that Canada faces. Addressing the situation in an effective way would require genuine collaboration and co-operation between federal, provincial, and territorial governments. Efforts must be made to ensure that all functions essential to the protection and well-being of present and future generations of Canadians are carried out. At the same time, a strong federal presence is needed to backstop and support provincial and territorial efforts.

These outcomes cannot be achieved within the framework of the harmonization accord that is scheduled to be adopted in early November. A fundamentally different approach that addresses the real environmental challenges facing Canada as they enter the next generation and century is required. Thank you.

The Chairman: Thank you, Mr. Muldoon.

Calling on the next speaker, may I remind him of something, which I should have done at the beginning, namely, to stick as close as possible to the ten-minute rule.

Who is next?

[Translation]

Mr. Marc Beauchemin (President, Quebec Environmental Law Centre): My name is Marc Beauchemin and I am the President of the Quebec Environmental Law Centre.

The Quebec Environmental Law Centre was established as a non- profit organization in 1983. Its primary goals and objectives are to carry out research and to study environmental laws and regulations, whether in Quebec, in Canada or at the international level, particularly within the framework of the current free trade climate.

Another of the Centre's goals is to ensure that all citizens have access to fair treatment before the courts in environmental matters. The Centre has intervened as an interested party before the Superior Court and the Court of Appeal of Quebec and the Supreme Court of Canada in various cases involving important environmental law issues.

In these instances, the courts saw the Centre as acting on behalf of the public interest in environmental matters.

I do not wish to repeat what my colleagues Mark Winfield and Paul Muldoon stated. I fully concur with what they said. I would simply like to focus on two areas, namely the absence of rationale—I don't think that we can emphasize this enough—and the fact that the provinces have neither the capacity nor the will to act on environmental matters.

To my mind, the absence of rationale is clear. The KPMG report no longer stands up. I believe federal authorities no longer refer to it as the reason or rationale behind this harmonization initiative.

Duplication and overlap have also been the focus of other studies, notably certain ones carried out by the Fraser Institute or by the Centre patronal de l'environnement du Québec. After analyzing these same studies, law professors denounced them as lacking any concrete basis. In fact, we have to look elsewhere to find the rationale behind this harmonization initiative.

It would have been nice to think that environmental protection was the reason behind this initiative. However, the only apparent reason we can find has to do with the constitution, or at the very least, is linked to federal-provincial relations in the environmental field.

• 0935

The reason has nothing to do with the environment. The purpose of the harmonization accord is not to provide better environmental safeguards or enhanced environmental protection to Canadians. The real rationale behind the harmonization initiative is the devolution of federal responsibilities in this area to the provinces. That's the primary objective of the accord and that's the first point I wanted to make.

Secondly, as far as the lack of capacity and will is concerned, the federal government cannot consider off-loading responsibilities onto the provinces without also contemplating handing over to them the appropriate budgets. As it now stands, the harmonization accord makes no provision whatsoever for the devolution by the federal government to the provinces of the budgets required to oversee enforcement, inspections or standards. In fact, responsibility is being transferred to the provincial governments while the necessary financial resources are being withheld. This places an even heavier environmental burden on the provinces. That's what I mean by lack of capacity.

There is no denying that the provinces have made substantial cuts in the environmental field. In the past five years, the number of Quebec Environment Department employees has been cut in half. The Department's budget has also been slashed by over $100 million. Recently, the legal services of the Department of the Environment and Wildlife were completely dismantled. In other words, the Quebec government has rid itself of virtually all the tools it had to enforce provincial laws and regulations.

This new harmonization accord is off-loading new responsibilities onto the provinces. While they may be happy to get them, I'm telling the members of this committee that the provinces lack the capacity to handle these new duties.

The Environment Department's chief focus is economic priorities. We have to realize this fact and given the situation, we must ensure that responsibilities remain where they currently are, in other words, that the federal government hold on to its current responsibilities and allocate the necessary funds to the provinces so that they too can assume their responsibilities in terms of providing enhanced environmental protection.

Otherwise, we will have to concede that the rationale behind the harmonization initiative is either constitutional in nature or linked to federal-provincial relations or that it stems from the federal government's desire to reduce its deficit or Environment Canada's budgets.

Several weeks ago, as we all know, the Supreme Court of Canada handed down a ruling in a case involving Hydro-Québec. We have good reason to ask the following question: if the harmonization accord had been in place, could the Supreme Court have made this ruling? The answer is no. Why is that? Because harmonization implies that the provinces will assume total control over environmental issues.

In the case of Hydro-Québec, the Quebec Department of the Environment and Wildlife never laid charges of any kind against Hydro-Québec, even though it was abundantly clear that it was violating the law. Environment Canada was alone in taking action against the corporation. The case went all the way to the Supreme Court and ultimately, the court ruled firstly that the federal government was justified in acting under the law, secondly that the charges were well-founded in law and thirdly that the case could go forward.

One of the consequences of harmonization is that major violations like this will likely go unpunished because the will to act is lacking or that such actions will be excused because the provinces lack the capacity to take action. In these times of budget constraints, we must ensure that no responsibilities are off-loaded without the appropriate funding.

• 0940

That concludes my presentation. As I indicated at the outset, I fully support the comments made by my colleagues, Mr. Winfield and Mr. Muldoon.

Thank you.

The Chairman: Thank you, Mr. Beauchemin.

[English]

Mr. Shrybman, would you like to wade in?

Mr. Stephen Shrybman (Executive Director, West Coast Environmental Law Association): Thank you very much, Mr. Chairman and members of the committee.

I'm the executive director of the West Coast Environmental Law Association, a public interest advocacy organization that exists to provide legal services to individuals and groups that wouldn't otherwise be able to afford legal advice and counsel.

I should begin by apologizing for the fact that my submission is presented to you in only one of Canada's two official languages. Given the short notice, we simply didn't have time to have the document translated. I should also begin by noting my concurrence with the submissions of my colleagues to you this morning with respect to the import of this agreement.

I want to raise with you issues that haven't yet been a part of the debate about this harmonization accord. Those issues concern how the accord fits within the context of Canada's international commitments under NAFTA and the World Trade Organization, because in stating the objectives of the harmonization accord one is omitted. At the end of the day, the one that is omitted may prove to be its most consequential effect, and that is to ensure compliance by all levels of government in Canada with the rules with respect to environmental regulations that are set out under the World Trade Organization and NAFTA. Those rules exert a very substantial downward pressure on the prerogatives of governments at all levels to act on their environmental mandates.

When you look at the accord in the context of Canada's international trade obligations, three issues emerge.

The first one is that this harmonization agreement, because of its timing and because of its substance, seems to be very much an expression of the harmonization rules that you will find set out in the Technical Barriers to Trade Agreement under the World Trade Organization. It establishes an international regime of standards harmonization that creates ceilings on environmental regulation, but no floor.

The second issue that emerges is that when you look at the harmonization agreement, and particularly those parts of the agreement that environmentalists would support—mainly the support in principle for the notions of precaution, for the notions of polluter-pay, for the notions of pollution prevention—you find a very dramatic contrast between those principles and those to which Canada has subscribed under the WTO. It does not mention the precautionary principle, which has specifically rejected the notion of polluter-pay and does not in any way engender the notion of pollution prevention.

The third issue that emerges is that under our constitutional arrangements provinces are insulated to some degree from the rather constraining influence of international trade rules when it comes to environmental regulation. But by promoting CCME as an important new forum for achieving Canadian environmental goals, it appears that the protection from the influence of trade regimes that now exists for the provinces will be significantly removed.

So let me try to expand on each of those three points. To explain how the two fit together—the harmonization agreement and the World Trade Organization roles—let me just give you a very brief overview of the World Trade Organization, which is by far the most important international trade regime in which Canada is a member.

Under the WTO, environmental standards are dealt with in the chapter that is entitled “An Agreement on Technical Barriers to Trade”—which tells you a great deal about where the trade agenda is going. That agreement establishes an international regime of standard harmonization. Under that regime, Canada is obliged to adopt international standards where they exist.

• 0945

Where international standards don't exist, or where Canada might want to go further than international norms, there is a very arduous process of providing all other members of the WTO with notice of Canada's intention to regulate where no standards exist, of responding to their comments and criticisms, of providing every other nation in the world with sufficient time to adjust its own productive processes to meet Canada's new standards—a very arduous regime. It also shifts the burden to Canada to prove that, in the absence of international agreement, it hasn't established an environmental standard for the purposes of interfering with international trade.

So the influence of this is just to reduce all levels of environmental standards-setting to the lowest common denominator.

It interferes with the major dynamic of progressive law reform, which has for many years now been a “follow the leader” dynamic. We all know about the jurisdictions that go first. It might be Sweden when it comes to emissions from waste incinerators, it might be California when it comes to car emissions, it might be Ontario when it comes to blue box standards, it might be British Columbia when it comes to pulp mill effluents, and then as environmentalists we try to persuade our own governments to follow suit.

If you want to interrupt that fundamental dynamic of progressive environmental regulation, what you would ensure is that no one can go first, that we can move forward only when all of us agree that movement forward is necessary and only to the extent that we all agree that environmental standards are necessary.

So the constraints that exist within the Canadian context as between provinces that are more or less committed to environmental initiatives are exacerbated when you look at this issue in an international context and where the standard for moving forward becomes agreement among all of the hundred-odd nations that belong to the WTO.

Not only has Canada agreed to submit its own environmental initiatives to this rigorous standard, but it has also committed to bring the provinces along, to use all reasonable efforts to ensure compliance by provincial governments with these trade rules. So it's interesting to regard the harmonization agreement arriving on the scene in 1993 while the technical-barriers-to-trade agreement was being negotiated in the context of GATT negotiations as being kind of an expression of Canada's international commitments to establish this regime domestically.

In other respects, though, the two agreements don't fit together, because when Canada talks about the precautionary principle or the polluter-pay principle, those are principles that were explicitly rejected during trade negotiations. You won't find them written into the technical-barriers-to-trade agreement. They're simply not there.

If governments don't live up to their obligations under these trade rules, they're punished, swiftly and certainly.

The very first case to be resolved by the WTO involved a challenge to U.S. Clean Air Act regulations that had to do with the formulation of gasoline. The complaint was brought by some foreign refiners that didn't want to invest in the improvements to the refining processes that would have allowed them to bring themselves into compliance with U.S. rules. That trade complaint succeeded, as has every other trade complaint that has challenged environmental or resource conservation regulations.

The conclusion of the panel, reaching its decision in less than 11 months—there was a panel decision, there was an appeal, and all of that was resolved in an 11-month period—was that the United States had two options available to it: get rid of the aspects of the Clean Air Act that offended international trade rules or pay damages to foreign refiners in the amount of $150 million U.S. a year.

The other trade case that has brought to light the seriousness of the consequences that are visited upon you should you fail to live up to your obligations under international trade rules is taking place right now in Canada in the trade challenge brought by Ethyl Corporation to federal regulations banning the use of MMT in gasoline. That suit, brought under the investment state suit provisions of chapter 11 of NAFTA, seeks from the federal government $210 million U.S. in damages in consequence of the federal regulations, which Ethyl Corporation claims are an expropriation of its property to manufacture and sell this neuro-toxic fuel additive in this country. These are consequences that no government in the world can refuse to ignore.

• 0950

So when Canada commits to the principles of precaution and polluter-pay and the harmonization agreement but it has undertaken to submit to trade rules that engender no such principles that would allow it to defend environmental initiatives on those grounds, the conclusion that will give when a confrontation occurs is very apparent.

The last point I'd like to make has to do with what all this means for the provincial level. The Canadian Council of Ministers of the Environment would, in our view, be regarded as an institution of the national level as far as World Trade Organization and NAFTA rules are concerned. That means that the constraints I have described that arise under the Technical Barriers to Trade Agreement and other aspects of the WTO regime, including a chapter that deals with sanitary and phytosanitary standards, which includes pesticides regulation and quality and safety regulation—those agreements apply very directly to national governments, but in Canada do not apply in a direct way to the provincial level because of our constitutional arrangement.

Remember that Canada has undertaken to use all reasonable measures to enforce those rules on provincial governments. Consider, then, what the likely implications of investing in CCME, this new authority, will be when the CCME is taken out of institutions of a national level in Canada and, for that reason, directly subject to these international trade constraints.

To sum up, it's our view that the full assessment of the potential implications of Canada's international trade commitments on the implications of federal-provincial agreements on the environment must be undertaken. No one has looked at this issue. No one has completed the assessment that I described in only a very superficial way for the committee today.

In the absence of that assessment and in light of the apparent and serious points of contradiction and discourse, it would not in our view be prudent for either level of government to include an agreement that might have serious and unforeseen consequences for the prospects of progressive environmental law reform.

Equally problematic is the likelihood that by entering into this accord, provincial governments are agreeing to submit to the constraints of the Technical Barriers to Trade Agreement and other agreements under the World Trade Organization. Thank you.

The Chairman: Thank you, Mr. Shrybman.

We have heard the witnesses. Who would like to go first?

Mr. Gilmour.

Mr. Bill Gilmour (Nanaimo—Alberni, Ref.): Thanks for coming before us.

Mr. Winfield, when you were talking about environmental assessment, it was unclear to me whether you were suggesting that there should still be two levels of assessment, both federal and provincial, or whether you were suggesting it should be refined so that it is all covered at one level.

Mr. Mark Winfield: I don't think what we are saying is that it's not necessary to invest all the process in one level's process. What one would want to see is a single environmental assessment process, but one that is a consolidation of the requirements of both levels so that the needs of both levels' statutes would be covered off.

In fact, in Ontario we have a model for that, something called the Consolidated Hearings Act, where if you have the potential for hearings under different statutes they're consolidated into a single hearing that covers off all the requirements of all the individual statutes under which the hearing would occur. The backstop, though, is that if agreement cannot be reached on a consolidated process that meets the requirements of both levels, then at the end of the day—and let me make clear, it has never actually happened—conceivably, yes, it is possible that the federal government would need to be able to retain the capacity to conduct an independent assessment. In fact, the statutory requirements of CEAA essentially would require that to be a possibility.

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Mr. Bill Gilmour: Thank you. I think where most of us are coming from is one overall assessment that does the job. Otherwise we are talking about the duplication that we've been hearing about all along.

The difficulty I have with most of your presentation is that it is a reality that both the provinces and the feds are short of money. So ideally, we would be looking to get the job done at one level or the other with the money that's available. Most of your presentations were basically saying that harmonization is a bad idea, so we should stop the train and go back.

Now unless I read you wrongly, I have some difficulty with that point of view because of the financial realities: we're short of money. Are you suggesting that harmonization is a bad idea, or are you suggesting that one or the other level of government should do it? We just have to change the way the harmonization rules have come down.

Mr. Mark Winfield: I think part of our problem relates back also to Marc's comments about the rationale for the agreement. We agree in our brief that a major piece of the problem is the loss of capacity at both levels.

But our point is that the agreement does absolutely nothing to deal with that problem. In fact, it's quite the opposite. It sets up barriers to governments working together, collaborating, and co-operating. It tries to separate them into these sort of watertight compartments in which there is no sharing of work and resources.

We think the real problem we need to be getting concerns the gaps that are starting to emerge in Canada's environmental protection system. The list of events that Paul gave is a sort of indication and manifestation of those gaps.

That will probably have to be done on a bilateral basis, whereby the federal government and the provincial government will put their resources together in each province to make sure all the bases are covered. That means the federal government may play different roles in different provinces, and you need to do that bilaterally. A sort of multilateral, one-size-fits-all kind of thing just seems to us to be a wrong-headed approach to that problem.

Mr. Paul Muldoon: Can I quickly respond to that?

Here's the question, simply put: as there is government downsizing both at the federal and provincial levels, will the harmonization agreement address that concern?

I think it's a good question. Yes, both federal and provincial governments have been downsized in terms of the budgets to cover the environment, but this is not the solution for that problem.

That's the issue we're trying to get at. We asked in the very beginning, in 1993, to see the problem of duplication, overlap, and budget downsizing. We wanted to sit around to try to figure out how best to do that. That was our approach.

What we got instead was a solution looking for a problem. So they first did the solution, and then they found that they could justify it first by duplication or overlap. The evidence didn't support that, so then they said it was budget downsizing. We asked whether this was the answer to that problem. Our suggestion is that it's not the answer.

Our view is that the problems you've noted will still be around. There will still be a problem of budget. There will still be gaps in there. We think there will still be poor performance in the environmental sector with the harmonization agreement. Even on that issue, I think one has to really assess whether or not this solution is going to fit that problem. Our conclusion is that it won't.

The Chairman: Monsieur Bigras.

[Translation]

Mr. Bernard Bigras (Rosemont, BQ): First of all, I would like to thank all of the witnesses for sharing with us their views on this accord. I think their testimony has shed some light on this issue for us.

My question is for Mr. Beauchemin from the Quebec Environmental Law Centre. You stated that in your opinion, the rationale behind this accord was constitutional rather than environmental. You also mentioned the devolution of budgets associated with enforcement, inspection and standards. Finally, you indicated that you were opposed to the harmonization accord given the fact that the appropriate budgets had not been transferred to the provinces.

My question is this: if there was a clear indication that the necessary budgets would indeed be transferred to the provinces, would you then support the harmonization accord?

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Mr. Marc Beauchemin: No. I would still be opposed to the accord as it is now worded for the simple reason that, speaking strictly from an environmental standpoint and given a desire to ensure enhanced environmental protection, I am firmly convinced that when responsibility for environmental protection is shared by the two levels of government, all Canadians ultimately benefit.

I might also add that we need a system of checks and balances. In other words, if one level of government has total responsibility for an area, since there are weak links in the chain, it is almost certain that some areas will be overlooked. If the provinces and the federal government could agree to oversee environmental matters in a balanced manner and to share responsibilities, there would be fewer weak links and fewer areas that would be overlooked.

The Chairman: Is that all, Mr. Bigras?

[English]

Madam Kraft Sloan, followed by Mr. Casson.

Mrs. Karen Kraft Sloan (York North, Lib.): Thank you.

In the subagreement on inspections, in section 5.2, it says, “the other order of government shall not act in the role for the period of time as determined by the relevant implementation agreement”. So this means there's another set of agreements that are not reflected in these subagreements?

Mr. Mark Winfield: It would seem to imply that there is to be a further round of agreements, after they have signed these accords and subagreements, to actually conclude the implementation of this. That seems to be the implication.

Mrs. Karen Kraft Sloan: Have you seen any evidence of this?

Mr. Mark Winfield: None. We have no idea. Certainly nothing has been made public. We have no idea what these further agreements might contain.

Mrs. Karen Kraft Sloan: We were assured by witnesses from the department—different officials who were involved in this process at the federal and provincial levels—that this was a very open and transparent process and that these documents are posted on the Internet and websites and things like that, so that the public has a lot of access to this information and stakeholders are consulted on a fairly regular basis. But you haven't seen anything?

Mr. Mark Winfield: Certainly nothing in terms of a further set of agreements. Indeed, if you look at the schedules, they apparently plan on doing more subagreements too. But the only thing that has been made public is the stuff that is posted on the home page, although even that's not complete.

Our understanding is that negotiations have continued, particularly on the environmental assessment subagreement. We don't know. The last version of that was posted in April. Apparently there have been further negotiations, but absolutely nothing is known publicly about that.

Mrs. Karen Kraft Sloan: So there have been changes to the environmental assessment subagreement?

Mr. Mark Winfield: This is our understanding, as the negotiations have continued. There may well have been further changes from the April 1997 draft, which is the most recent one that's been made available to the public.

Mrs. Karen Kraft Sloan: Would you care to comment on the consultation process as it has occurred so far?

Mr. Paul Muldoon: There are two issues. One is the consultation process on the harmonization accord. There was a national advisory group, of which I was a member. We were consulted after decisions were made, by and large, which was useful for the purpose of gathering information and not useful for the purpose of influencing decisions for which we were gathered and hopefully had some input.

There were a number of workshops, which were useful again for information exchange. We don't think it really influenced the process, even when there were areas of broader consensus by non-governmental actors.

The other comment underlines a deep concern about the role of public input for the CCME process generally. For years, environmental and labour activists across the country have been attempting to open up government processes, both federal and provincial governments, to public participation, with the view that not only do you get a more informed decision but you get a decision that has a broader acceptance because there has been public input.

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This has been manifested through federal and provincial policies mandating public involvement, and the classic example is the Ontario Environmental Bill of Rights. Just when we thought we had a foot in the door to legitimate routine access and participation in those decisions, they changed the forum from provincial and federal governments to this new level of government called CCME, where we're back to about 1963 in terms of understanding the role of the public in environmental decision-making.

Many of us are frustrated at the notion that we now have to re-establish those arguments of why the public input is important, the notion of legitimacy, and the notion of fairness at these rules of public participation. Our overall view is that despite the harmonization agreement, anything that goes to CCME brings up these concerns about the role of the public.

Mrs. Karen Kraft Sloan: If you were going to give me some kind of indicator as to the level of awareness in the general public on this harmonization process accord, how well informed do you think the Canadian public is on this?

Mr. Mark Winfield: At this stage I think the interested public is quite well informed. You will see attached to our brief a number of documents that have been endorsed by large numbers of non-governmental organizations from across Canada expressing serious concerns about the direction of the agreement. They're very consistent in their contents. But in terms of the public at large, I don't think there is very much understanding of this agreement or its implications at all. Only very recently have you started to see any mention in the press of those kinds of things. Other than that I don't think there's very much understanding at all of what this means.

Mr. Paul Muldoon: If I could just add to that, all the poles that have been conducted in the last two or three years have indicated that the Canadian public expects governments to do more and not less in terms of environment protection. I think it would be interesting to ask what the reaction would be if the average Canadian knew that harmonization meant devolution. I think the poles would indicate there would be opposition to that kind of initiative, especially in light of the provincial downsizing.

The Chairman: Mr. Casson, please.

Mr. Rick Casson (Lethbridge, Ref.): You keep talking about devolution and the federal government getting rid of powers or authority. Can you give me a couple of specific examples of the authority it is giving up?

Mr. Paul Muldoon: Why don't we just go through very quickly what harmonization means for standard-setting and toxic substances. Under the Canadian Environmental Protection Act the federal government will assess the worst substances that are toxic. We now have a group of substances that are toxic, and that means there is some scientific consensus that they're bad and we should deal with them.

At that point, the traditional way of dealing with them is for the federal government to move on and decide how to deal with them. For many of those substances they would pull together stakeholders, consult with provinces, and potentially regulate the substances. It's a unilateral federal regulation based on consultation to deal with the substances on a national level.

We have been critical that the government has not moved quickly enough, that there are not enough substances, etc. Having said that, the harmonization process, and particularly the subagreement on standards, would suggest that the federal government can assess the substances and help determine which ones are toxic. From that point of view the process stops. It then gets shifted to a CCME process. Then the provinces and the federal government decide some vague notion of what the national standard will be—the national objective or guideline. Then it's up to the provinces to deal with it unilaterally.

So the federal government is out of the law-making and standard-setting business and into some sort of process within the CCME regime. The very powers that the Supreme Court of Canada reaffirmed, the constitutional point of view, in the Canadian Environmental Protection Act, in my view, would not be operative most of the time because they would be diverted. Those substances that we would suggest need a federal law to ensure a level playing field would really be diverted into a process sponsored by the CCME.

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So you'll never see pulp and paper regulations as you saw before, or mining effluent regulations, or any kind of major initiative that occurred mostly because of a provincial inability or lack of will to do it. That's just one example.

Our view is that really what we're going to see is potentially 12 different regimes for one substance rather than having a federal law dealing with that substance, whether it be ozone depleters, dioxin, pulp and paper effluent, all those kinds of substances.

Mr. Rick Casson: You don't see the CCME working as they have stated it will, that they will jointly handle the problems and if one jurisdiction isn't, then the other jurisdiction has the ability to step in.

Mr. Paul Muldoon: First, you raised two issues. One is that you want to see the CCME process work. It may work in a sense that, in the most generous way I can put it, for any standard it would be a race towards the middle. My suggestion is that we race towards the bottom of commonality, because you have 12 jurisdictions in the room, all with their varied interests, trying to figure out what to do. Second, that process is immune from public input. Third, it's not a standard being created in terms of a legally enforceable standard. It's some sort of objective guideline, something out there that the provinces will strive for. There's no force of law, there's no force of commitment that we could hold them to.

So, in my mind, it's a self-generating process with no guaranteed results. When it comes to the environment for dioxin, for ozone depleters, these aren't semi-bad substances; these are bad substances that need regulatory control. The harmonization agreement will ensure that control will not happen at the federal level.

Mr. Mark Winfield: I think there are several causes to the CCME process. One is this requirement of unanimous consent in decision-making, and we know from our experience with other decision-making processes that work on a unanimous consent basis that they tend to produce lowest-common-denominator outcomes, which is the nature of the thing, because everybody around the table holds a veto. That's fundamental to the way the CCME operates.

The other problem, as Paul says, is that the end product of the CCME standard is not a regulation that is legally enforceable. It's this notion of a vague guideline, and then the agreement itself, as I said, emphasizes—in fact says three times over in the subagreement on standards—that the implementation or achievement of this is totally at the discretion of the provincial governments.

The other problem is that the agreement is really quite unclear about what happens when the level of government that's supposed to act fails to do so. There is no clear remedy. In fact, agreements disintegrate into mush at that point. There are supposed to be six months of consultations between the concerned governments. At that point, there's nothing clear about a resolution.

There's nothing that says at the end of that process the federal government can act, for example. That causes a great deal of concern around the inspection subagreement too, because what that means is the moment the federal government sends federal inspectors to things like PCB storage sites and pulp and paper mills.... Under the agreement that would stop; the province would take over those inspection responsibilities.

You can imagine a situation in which the federal government becomes aware of, say, a problem at a PCB storage site. Under this agreement it can't send an inspector. It has to rely on the province. If the province says there isn't a problem, then that shall-not-act clause applies. The only recourse the federal government has is to engage in what could be up to six months of consultations with the province, and if they can't produce a resolution then, the only way the federal government can get an inspector onto the site is to abrogate the agreement, which requires another six months' notice. So it could conceivably take up to a year, under the language of the agreement, for the federal government to get a federal inspector onto a site where it thinks there might be a problem.

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The Chairman: Mr. Knutson.

Mr. Gar Knutson (Elgin—Middlesex—London, Lib.): Mr. Beauchemin, you could take me through the example of Hydro-Québec, and assume I have not read the court decision and I do not know a thing about the facts. Could you just take us through what the original problem was, how it was dealt with, how it was dealt with under the current legal regime, and how, if the same thing were to arise say two or three years down the road, after this harmonization agreement is in place, the outcome would have differed?

[Translation]

Mr. Marc Beauchemin: The problem is quite simple. There was a PCB spill at one of Hydro-Québec facilities.

Environment Canada sent in an inspector who spotted the violation, ordered Hydro-Québec to rehabilitate the site and informed it that it was in violation of federal law.

From the outset, Hydro-Québec decided to ignore the position of the federal investigators and of the federal government on the issue in dispute, namely the PCB leak at its facility. When it realized this, the federal government initiated criminal proceedings in Quebec Superior Court in Montreal. In court, Hydro- Québec argued that certain provisions of the federal legislation were unconstitutional.

Quebec Superior Court found in favour of Hydro-Quebec, ruling that certain provisions of the federal legislation were ultra vires in relation to federal powers. The ruling was appealed to the Quebec Court of Appeal which upheld the Superior Court ruling. Finally, the federal government appealed to the Supreme Court of Canada which ultimately struck down the rulings of the two lower courts and upheld the federal powers in this area. Among other things, the Supreme Court justices argued that federal powers over criminal matters gave the federal government the authority to act in environmental areas.

To answer your question, let's assume that two years have passed since the signing and coming into force of the harmonization accord. Repeating what my colleague Mark Winfield said, would we then have been able to send in a federal inspector? No. I stated earlier on that the Quebec Environment Department was perfectly aware of the offence, knew perfectly well what had happened and could have brought charges under Quebec's Environment Quality Act, but did not. The circumstances would have been such that both the federal and the provincial governments would have been aware of the facts, no action would have been forthcoming on the part of the provincial government and the federal government's hands would have been tied. Therefore, nothing would have been done. Furthermore, we are not talking about a heavy oil spill, but about a PCB leak. That's very serious.

In conclusion, to answer your question, I would say that yes, two years into the harmonization accord, Hydro-Quebec would have gotten off and that no, no charges would have been laid; and no, the site would probably not have been rehabilitated.

[English]

Mr. Gar Knutson: I have a more general point, and I will raise it with anyone who wants to answer.

On the whole issue of environmental regulation of the provincial utilities, do you think there is an argument to be made that the provincial governments are too close, they do not operate at arm's length from their own utilities, and there could be political interference? Therefore, if we sign this agreement, are we going to leave a potentially huge problem in terms of regulating big players like Ontario Hydro or Hydro-Québec?

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[Translation]

Mr. Marc Beauchemin: To ask the question is to answer it in part. Yes, they are bound, and no, they neither monitor nor enforce their laws as they should. In the case of Hydro-Québec, and probably in the case of Ontario Hydro, the corporation manages the greatest environmental risks. The question is knowing if, yes or no, there is a problem in terms of objectively enforcing the laws and regulations.

Recently, there was an angry outcry in Quebec over the harnessing of certain rivers, in particular the Chaudière River near Quebec City. The Department of the Environment and Wildlife decided against the construction of a hydro-electric power station. In so doing, it decided to stand alone and to set aside the findings of the Bureau d'audiences publiques sur l'environnement.

The Minister of Energy and Resources succeeded in having the Environment Minister's decision set aside and in getting the go- ahead for the harnessing of the river and the construction of the dam.

I think the answer to your question speaks volumes.

[English]

Mr. Gar Knutson: What about in the rest of the country? Do you think it's an issue?

Mr. Mark Winfield: Certainly our experience over the last four months with Ontario Hydro in Ontario would confirm the view that there is potentially quite a serious problem with potential conflict of interest in terms of the provincial government. One thinks of the very weak response we saw from the province to the reports that for many years Ontario Hydro had been emitting large amounts of heavy metals from some of its generating plants into Lake Ontario. We certainly did not see a very strong response from the province. Quite the opposite—the Minister of the Environment seemed to dismiss the significance of the events.

Even more seriously—

Mr. Gar Knutson: Is there room now, under the current regime, for the feds to intercede in that?

Mr. Mark Winfield: It depends—

Mr. Gar Knutson: Somebody behind you is saying yes.

Mr. Mark Winfield: Potentially, yes.

Mr. Gar Knutson: That's under CEPA?

Mr. Mark Winfield: No, the best approach there would most likely be under the deleterious substances provisions in the Fisheries Act, because it does contain a fairly absolute prohibition on the deposition of deleterious substances. CEPA would kick in only if there were some lead in the emissions as well. Lead, mercury, or cadmium, one of the CEPA-regulated heavy metals, would need to be there.

An even stronger example, now that I think of Ontario Hydro, has been in the aftermath of the announced shutdown of the seven nuclear plants: Hydro's decision to fire up a number of its older fossil fuel plants, it's not clear how many. There's going to be an enormous increase in sulphur dioxide and carbon dioxide emissions. It's not at all clear if Hydro is even going to be able to stay under the existing count in the acid rain control program regulation in Ontario. The minister has been the epitome of equivocation on that issue and refuses to come up with a clear answer.

Even more seriously, our understanding is that Ontario has now been going forward into CCME processes around global warming, and in the aftermath of the National Air Issues Coordinating Committee, or NAICC, report on acid rain, arguing very strongly against strong action on CO₂ and SO₂ precisely because of the enormous increases in those kinds of emissions which are going to come from Ontario Hydro because of the nuclear shutdown. This is the provincial Minister of the Environment and his ministry.

So you see almost completely the opposite. The province is going forward promoting the interests of the provincial utility at the expense of environmental protection.

Mr. Gar Knutson: So my general point that provincial governments don't do a good job of regulating their utilities is a valid one?

A witness: I might contribute here. I think from time to time they do a good job, from time to time they do a very poor job. The virtue of having a dynamic system is that there's a stopgap. Where the provinces fail to do their job there's another opportunity here, and that is federal intervention.

There are other ways to accomplish that. You can allow citizen suit provisions. In the province of British Columbia, for example, the province has a policy of intervening in all private prosecutions. That's not a helpful policy. Where you can provide a check or a balance against a government that isn't doing its job, you want that kind of dynamism in your system. We have it now, and this agreement would write it out.

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[Translation]

The Chairman: Go ahead, Mr. Charbonneau.

Mr. Yvon Charbonneau (Anjou—Rivière-des-Prairies, Lib.): Mr. Chairman, I would like to start by thanking our witnesses for appearing this morning to share with us the views of their organization. I must say that after receiving a letter from the harmonization working group dated September 15 and signed by Mr. Muldoon, among others, my attention was drawn to the harmonization process and I began to have a number of concerns. As you can see, it is sometimes useful to write to members of Parliament.

Judging from your overall presentation this morning, I see that you are raising a red flag as far as the harmonization initiative is concerned. You are not just raising the yellow caution flag. If you were in a position to make a decision yourselves, it is my understanding that you would stop the whole process rather than try and complete or improve the agreements now on the table. I think you would put the brakes on the entire process. That's my interpretation and if it is inaccurate, please correct me.

This red flag comes only a few days before the scheduled signing of the accord. I believe the date mentioned was the beginning of November. This doesn't leave us a whole lot of time for discussions and for making changes to agreements as complex as these.

My second question concerns more specifically the proposed sub-agreement on environmental assessment. Mr. Muldoon, you indicated on pages 9 and 10 of your brief that this was one of the most controversial aspects of the initiative.

[English]

The environmental assessment subagreement has been one of the most controversial aspects of the harmonization initiative.

[Translation]

However, your comments about this sub-agreement are fairly succinct. You refer us to attachment number 9. I don't know which document you're referring to. Do we have access to it? In any event, I would like you to elaborate further and to summarize for us the content of attachment number 9. Getting back to my question, on reading the proposed sub-agreement on environmental assessment, I found that it contained some interesting features in that it allows undertakings, whether public or private, to know with whom they are dealing when it comes to development or investments.

It lets them know that an environmental assessment will be carried out and gives them a better understanding of the time frame they have for making a decision. In my view, this is a rather significant effort to clarify the process. However, you seem to be saying that there are major problems surrounding this issue of environmental assessment. I would like you to elaborate further on your position vis-à-vis an issue of such import to a committee like ours.

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As you know, our committee is not concerned solely with the environment, but with sustainable development as well.

[English]

Mr. Mark Winfield: I'll respond, if you don't mind.

On the issue of environmental assessment, the attachment I referred to is one of a number of attachments that we filed with the clerk. We didn't have copies of all of them, but that particular attachment, which has a very detailed commentary on the current draft of the environmental assessment subagreement, is available, and in both official languages. So it's there.

Specifically, with respect to the subagreement, the concern again is.... Again, others will be appearing before the committee who are more expert in the area of environmental assessment than I, but they make a number of points.

The primary one is that, rather than providing a structure for the consolidation of federal and provincial assessment processes into a single assessment process that meets the requirements of both jurisdictions, the assessment essentially says that that doesn't happen and the federal government just relies on the information that is generated by the provincial assessment process.

That creates a number of problems, not the least of which is that many of the provincial assessment processes don't gather as much information about the undertaking as the federal requirements through the federal environmental assessment act. There are also a number of procedural safeguards in the federal act that aren't addressed at all by the draft subagreement. So, in effect, it becomes a kind of downwards harmonization of environmental assessment processes.

So that's the source of the concern.

Indeed, a number of people, who could be rightly described as scholars in this area, have looked at the subagreement and at CEAA very carefully and are of the view that legally the two cannot be reconciled. If the federal government attempted to proceed in the manner that is proposed in the subagreement, it would almost certainly result in litigation. So there's a concern there.

It has also been pointed out that there is potentially a loss in the degree to which the different structures of environmental assessment in different provinces provide for a certain degree of innovation. That can be accommodated through joint processes and consolidated processes. The problem here is that you lose, effectively, the Canada-wide backstop of a federal framework of some sort. There's some consistency across the country. I think that loss is our concern.

We have no objection to the notion of trying to produce consolidated processes that would produce one assessment and for which the road map is clear. Our concern is that this really doesn't do that. This just leaves the federal side out of the picture altogether, and that's problematic from a number of perspectives.

Mr. Paul Muldoon: Just to reiterate that point, the environment community is for co-operation and for certainty and predictability of law-making and administration of those laws in Canada. Having processes that are uncertain, unpredictable, does not help the environment. So we're for that. The question is that we think just the exact opposite of the consequence of this agreement.

If you look at the agreement, there are many drafting issues that raise far more questions than they answer. There's a whole number of implementation issues, which will lead to greater uncertainty, greater unpredictability and confusion for those who must abide by this. The agreement also raises a large number of explicit or implicit policy discussions, on which the public really deserves more input.

So if you look at the drafting issues, the implementation issues, and the policy debate that have yet to happen, it's our view not only that the agreement should be deferred at this point so that those questions can be dealt with, but also that this is not the right approach to the problems that we've all identified.

This is not a solution that came from a broad consultation; as I said before, this is a solution that came from the CCME, who think it's going to work. What we're saying to you is that we don't think it will.

So we've tried to think through how it can be fixed quickly, but we don't have any answers for you. In our view, it would need substantial rewriting, after we have thought through and had greater public debate on some of the policy issues that we've tried to raise here today.

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The Chairman: There's no other name on the list, so the chair will proceed to conclude the first round before we start the second round. But I don't want to go ahead with my own questions without inquiring whether Mr. Laliberte or Mr. Pratt or anyone else who hasn't asked a question would like to go ahead.

Mr. Pratt.

Mr. David Pratt (Nepean—Carleton, Lib.): I'm interested in the views of any one of the witnesses as to which provinces have particularly weak environmental assessment processes in terms of the amount of information that is generated from the EA process. Can you single out particular provinces that are problematic at this point?

As well, in terms of the direction you're moving in with respect to this entire agreement on harmonization, would a solution be to attempt to standardize the provincial processes to a higher level with respect to, again, the amount of information generated through the EA process?

Mr. Mark Winfield: I'm inclined to defer somewhat to other witnesses who will appear later and who have more expertise in the area of environmental assessment. Remember that you have to look at the EA in terms of substantive content and the amount of information, but there are also a number of procedural questions.

There have been particular problems identified in the way assessments have been taking place, particularly in Alberta and a number of other western provinces. It's hard to point to one as being particularly weaker than the others. The other problem, which is almost as significant as the problem of black-letter legal context, if you like, has been the degree of will to apply these processes appropriately. Unhappily, in almost all provinces that will seems to be lacking quite seriously.

In terms of standardizing processes, one needs to be very careful. One needs to provide for a certain degree of consistency across the country so that you don't have the phenomenon that people refer to as forum-shopping, trying to go somewhere where the process is easier.

At the same time, you want to be somewhat careful not to make the processes so rigid that you wipe out the possibility of innovation, particularly at the provincial level, because that's a very important benefit of the nature of the federal system; the provinces have a potential to be centres of innovation within the context of some sort of framework of basic national standards.

The Chairman: If there are no further questions on the first round, the chair has a couple of questions, and then we'll start the second round with Madame Kraft Sloan first and then Mr. Bigras.

Mr. Shrybman, in your presentation you concluded by indicating that a full assessment is necessary of the potential implications of Canada's trade commitments on the implications of the federal-provincial agreements on the environment. In your view, who should undertake that kind of assessment? When should that be done? How long would it take?

Mr. Steven Shrybman: I would encourage governments at both levels to do it. I think it should be done now. I think it could probably be accomplished in a matter of months. I'm not sure how long it would take to do a thorough study and to consult with interested stakeholders for their input.

The Chairman: Thank you. My next question has to do with overlaps and duplication. This committee heard yesterday about this particular concern and about the undesirability of an accord with one window, one stop and the like. To the knowledge of any of the witnesses, has a study been conducted by any department on overlaps and duplications? And if not, on what basis is the claim being made that there are substantial overlaps and duplications?

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Mr. Mark Winfield: To our knowledge no formal or extensive study of this issue has been completed. The only study—indeed, it is the only background study which has been conducted over the entire four years—which exists of the harmonization initiative was a study commissioned by KPMG Management Consulting Ltd. by the CCME. That was completed in August 1995. It concluded that it could find virtually no evidence of actual duplication and overlap. In fact, it concluded that the benefits from the agreement therefore would be entirely marginal. That study was qualified by the fact that it was done on an extremely short time line, but they could find no evidence of significant duplication and overlap.

Indeed, I think most of the witnesses before us would agree that in our best knowledge and professional judgment and expertise in this area we don't see or know of very much evidence of this actual duplication and overlap either; quite the opposite. We are increasingly concerned, though, by the gaps that are starting to emerge as a result of the reductions in capacity at both levels of government. Those seem to us to be a much more serious problem, and one which should be being addressed.

The Chairman: My final question has to do with the fact that the issue of enforcement is not covered by the currently proposed accord. Would you care to comment on the fact that inspections are included but enforcement is not? Is that an oversight? Is that an item that is politically too hot to handle? Regardless of the two possibilities, what does the fact that enforcement is not included do to the accord?

Mr. Mark Winfield: Enforcement was explicitly in the earlier drafts. They have now changed that to inspection. I think this is partially a cosmetic change so the federal government can say it's not devolving responsibility for enforcement to the provinces. But in our view, this is somewhat disingenuous. From our understanding of the way in which the enforcement process works within Environment Canada, without inspectors and without inspections enforcement is going to be almost impossible, because the inspections are the primary vehicle through which the enforcement process works. It's essentially how the department gathers intelligence and how it confirms compliance. In practice it will be very difficult for it to maintain its enforcement regime—in fact, virtually impossible.

There is also the point that it does not, from an environmental policy perspective, make a great deal of sense to separate the inspection function from the investigation and enforcement function. As a purely operational matter, that does not seem to us to make very much sense. It introduces a two-step.

So far as we can tell, what would be supposed to happen would be a provincial inspector would go on site for the purpose of conducting an inspection for compliance with both federal and provincial requirements, and if he or she saw evidence of non-compliance with a federal requirement, he or she would then have to go back to the office, pick up the phone, and phone the federal government, which would then apparently have to send what it termed an “investigator”, in CEPA language, someone who would actually conduct an investigation, and then try to pursue the prosecution, if that's warranted. Obviously this presents all kinds of problems in terms of whether the evidence or the violation still exists by the time an investigator gets on site or a prosecution is initiated. It simply seems to us to be impractical. It seems this is really a way for the federal government to claim that it's not giving away enforcement when in practice it effectively is, and at best it's creating an extremely difficult or awkward regime for actually enforcing the law.

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Mr. Paul Muldoon: Let me just add one or two points.

In a document released by the CCME last November on the Canada-wide accord, it does state that they will initiate a formal subagreement on enforcement within either eighteen months or three years. So although the November agreement, if signed, would not include a specific subagreement, it is an agreement to agree to negotiate a specific subagreement.

Secondly, one should also be cognizant that the harmonization agreement is really a surrogate for the larger devolution plan, in my view. That plan is to negotiate many more specific bilateral arrangements where certain areas are devolved to the provinces under the Fisheries Act and the Canada Environmental Protection Act, and that does include enforcement. In my presentation, what I've asked the committee to do is to ask for an inventory of all the bilateral arrangements under those two statutes, and for the enforcement record, in order to get a clear view of what happens when there is devolution in enforcement. We were unsuccessful in getting that information.

The Chairman: I was going to ask you that question.

We'll begin our second round

[Translation]

by Mrs. Kraft Sloan, and then by Mr. Bigras.

[English]

Oh, sorry. Yes, by all means, go ahead, Madame Carroll.

Ms. Aileen Carroll: Is this part of the second round?

The Chairman: No, you're first round.

Ms. Aileen Carroll: Mr. Muldoon, you asked five questions. Having read quickly through my material, I didn't see those five questions. If they are in here, please draw my attention to them. If they are not, could I have a copy of them?

Mr. Paul Muldoon: I'll give you a copy of them.

Ms. Aileen Carroll: If you get a copy for me, I'll make sure Monsieur Charbonneau gets one.

Mr. Paul Muldoon: Sure.

Ms. Aileen Carroll: Thank you.

The Chairman: Madame Kraft Sloan.

Mrs. Karen Kraft Sloan: If you refer to section 4.4 in the harmonization standards draft, it says, “Legislative authorities are not altered through this Sub-Agreement.” If you then turn to section 5.2 in the inspections draft, it says, “Legislative authorities are not altered through this sub-agreement.” If you go to the environmental assessment draft, section 5.12.0 says, “The Parties agree to seek to amend their legislation and/or assessment processes as necessary to comply with their obligations under the terms of the Sub-agreement”.

So for standards and for inspections, the subagreements are saying that the legislative authorities will not be amended. For environmental assessment, it says they're going to seek to amend these legislative authorities. However, when I asked the president of the Canadian Environmental Assessment Agency, he said he felt there would be no amendment to the Canadian Environmental Assessment Act. So that's one thing I would like you to respond to.

Secondly, two subagreements on standards and inspections are saying that legislative authorities will not be altered. Is that because those legislative authorities take CEPA into consideration before the harmonization agreement, as you've suggested?

I'd like you to comment on those two issues.

Mr. Paul Muldoon: On the first one on standards and inspections, probably the best answer I could suggest is that the federal government always has discretion on whether or not to regulate. In effect, these agreements do not formally state that they will change federal legislation to reflect the harmonization agreement, except for EA, but they will in effect fetter the discretion not to exercise federal prerogative, their federal jurisdiction. They will basically circumscribe their discretion in the way that is conforming to the harmonization agreement.

So they're arguing that it's not a formal delegation but an administrative delegation. One could argue with that, but that's what they're saying.

In terms of environmental assessment, what I would like to point you to is that while you read section 5.12.0, which states that the parties will agree to amend their legislation, section 4.1.0 sets up an interesting dilemma. Section 4.1.0 outlines the things that ought to be included in environmental assessment, and it says the parties “shall consider”. They'll think about whether or not to include these things. Interestingly enough, the Canadian Environmental Assessment Act says you “shall consider”.

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So the harmonization agreement basically makes it discretionary whether or not to consider all these factors. The Canadian Environmental Assessment Act makes it mandatory. The end result is, therefore, how can one be consistent with the other without some change? Either the harmonization agreement has to change or the legislation. Some reconciliation of that is needed.

Of course our fear is that they will change the Canadian Environmental Assessment Act to conform to this agreement; that's our real fear.

Mr. Mark Winfield: This issue has been discussed at some length within the Environmental Assessment Caucus of the Canadian Environmental Network, and I think there are other witnesses who will address it directly. Their conclusion is very clear: the contents of the subagreement cannot be reconciled with the current text of CEAA.

With respect to the commitment to amend legislation, it's important to note that in the overall accord, there's also a provision that very specifically says that “governments will review and seek to amend as necessary their legislation, regulation, policies and existing agreements” to implement the subagreements”. This is the Canada-wide accord, the subagreements section, article 9.

So that does indicate that there is a commitment at the political level to seek amendments of legislation necessary to implement all the aspects of this agreement. In fact this is an interesting clause, because the original drafting actually said governments would amend their legislation, and it was pointed out to the parties that as governments, they didn't have the authority to do that; only Parliament and the legislatures do.

But it still raises some very serious questions about the principles of responsible government, because it in effect says Parliament and legislatures are going to be asked to draft legislation and make budgets on the basis of what the CCME has decided, rather than what is decided through their own processes.

Mrs. Karen Kraft Sloan: Isn't this in contradiction to the standards in the inspection subagreement, if it says legislative authority will not be altered in the subagreement? Or are you just outlining the fact that in this particular subagreement, they're not altered, so it's subsumed under...?

Mr. Mark Winfield: The particular language of that altering authority is.... There were also some debates that occurred in the course of the drafting. The clause is actually a mess. I think what it's trying to say is that nothing in the agreement affects the legislative authority of Parliament or the legislatures, which obviously has to be the case.

What we would have liked to have seen is a very clear statement that nothing, as Paul said, fetters the discretion of the exercise of executive authority—that is to say, the right to make regulations, to conduct inspections and to do all of those kinds of things. But that's not what that clause says. It's a bit of a muddle, really, the end product.

Mrs. Karen Kraft Sloan: Thank you.

The Chairman: Thank you, Mrs. Kraft Sloan.

Mr. Bigras, Mr. Knutson and then Mr. Herron.

[Translation]

Mr. Bernard Bigras: Several of my colleagues, as well as the two witnesses here today, have referred to the case involving Hydro-Québec and to the decision handed down by the Supreme Court.

I would like more details about the ruling that was handed down. If I'm not mistaken, it was not unanimous. Five justices were in favour of the decision, whereas four dissented, including Justice Antonio Lamer.

The five justices in question ruled that the federal government had full authority to legislate pursuant to section 91 of the Constitution Act, 1867.

For our benefit, could you elaborate further on the position of the four dissenting justices and their position on the sharing of responsibilities in the field of the environment and criminal law.

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[English]

Mr. Paul Muldoon: You're quite right that the decision was split 5 to 4. In my reading of decision, the majority decided that the Canadian Environmental Protection Act was constitutional under the criminal law power, based on a number of recent cases they decided under that. The dissent in the case focused on two issues in particular—a number of other ones, but two in particular.

One is whether or not the Canadian Environmental Protection Act would be justified under the peace, order and good government power, if for a number of reasons they decided it would not have been justified under that, although the majority decided not to raise that issue at all. The importance of that discussion is that it opened up debate, but it wasn't raised by a majority.

In terms of criminal law power, my recollection is that the dissent in the Hydro-Québec case did state that the environment is a valid criminal law purpose or objective. In other words, within the realm of criminal law, which is federal jurisdiction, the environment is a legitimate part of criminal law.

Where they parted ways, though, was that usually for criminal law you need prohibitions and penalties. Things are either good or bad, right or wrong. It is a clear line. You cannot import all kinds of administrative regulatory types of matters within the criminal law sphere. They said that the Canadian Environmental Protection Act, in that context, was going more towards the regulatory rather than the prohibitory side. So they in fact agreed in part with the majority decision. It is the implementation of that criminal law objective that they parted ways with.

In my view, on the criminal law side, the dissent was obviously a dissent, but clearly they agreed in part with the majority in terms of the relationship of the environment to the criminal law objective. I think that is very important to note at this point.

The Chairman: Mr. Knutson, followed by Mr. Herron and Mr. Laliberte.

Mr. Gar Knutson: Going back to my original example of Hydro-Québec or Ontario Hydro, I'm trying to picture what the department would say in response to your answers.

Is there not an argument—I cannot remember who made the point—that if we wanted to send a federal government inspector in, we would take six months? We would have to give the province notice and abrogate the agreement. Are there not provisions in the agreement to act quickly under emergency situations and thereby we wouldn't have to wait for the six months?

Mr. Mark Winfield: The short answer is, in our view, no. There is a clause making reference to emergencies in the accord. That's subagreement section article 10. But it's “respond to...emergencies”. So in our view, that only applies once the emergency exists. It is once the PCBs are already on fire, or Plastimet is already going up in smoke.

What it doesn't do is allow the federal government to deal with an imminent emergency—in effect, to get there before, in some cases, it quite literally blows up. The concern there is that the accord makes no provision in that context, and you would have to go through this process if you have an intransigent province, which they said could take up to a year and require abrogation of the agreement in order to get a federal inspector on site. The problem there, obviously, is that if it's an imminent emergency it's likely to have turned into a real emergency by the time the year is out.

Mr. Gar Knutson: Do you have any idea what the department would say if I were to put this question to them with these two examples of Pickering 1 and the—

Mr. Mark Winfield: My own organization wrote to the previous Minister of the Environment, Mr. Marchi, pointing out this specific example around the idea of a PCB storage site in which the federal government might see a reason to want to get an inspector on site. We never got a response to that letter—that might be partially because of the election and other things. So we have never actually had a formal response from the department.

Mr. Paul Muldoon: What was brought up earlier was the whole issue of the large heavy metal discharge over a long period of time from a number of the Ontario Hydro facilities. Until September 18, of course, it was the Ministry of Natural Resources that looked after the Fisheries Act issue, but that's now been booted back up to the federal government. So I don't know what will happen now, especially after harmonization. We're not too clear.

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Mr. Stephen Shrybman: May I just make a brief comment as well?

It's very important to note that we live in a time when governments have lost their enthusiasm for regulatory initiative on the environmental front, when they have lost their enthusiasm for increasing their enforcement resources at both levels. We're in retreat, indeed, in most jurisdictions in Canada. The enforcement capacities of most governments and staff responsible for enforcement have been diminished.

It's just very curious that at that moment, when everybody seems to be retreating from the environmental agenda, there's a great interest in avoiding duplication and overlap of effort. It just begs credulity.

Quite to the contrary, this agreement, as do our international trade agreements, makes efforts to lock in this kind of lower common denominator status quo. So should a future government ever revive its interest in an environmental agenda, it's going to confront a new obstacle, a new impediment.

Mr. Gar Knutson: I guess I'm not as black in my view in terms of motivation. It's a somewhat academic point, but certainly I'm more optimistic in my view because I think the public is interested in having governments take a more aggressive stand.

Unfortunately, as all governments in the western world have had to deal with the issue of balancing budgets and making cuts, it makes sense in the mind of a bureaucrat or administrator that they say, well, I have fewer resources and less money, so why don't I sign an agreement so I can get better co-operation with other people that have similar purposes.

On its face, that doesn't seem like a bad thing. But when we bring in the argument that one person's overlap and duplication are another person's backstop and insurance and redundancy for safety reasons, I think we get to the heart of the issue.

I don't know that I need to be convinced that people are acting in bad faith, but as I said, it's a somewhat academic point.

Mr. John Herron (Fundy—Royal, PC): Part of my question seems just to have been asked. It referred to intervention and enforcement.

A number of comments were made earlier about the CCME and whether this accord would be a workable arrangement. Doesn't the fact that they don't have enforcement as one of the protocols to be discussed in conjunction with inspection get us off on the wrong foot in being able to make it a workable piece of legislation?

Mr. Mark Winfield: It seems to us, just from a practical viewpoint, to be not a sensible arrangement. To divide the inspection function from the investigation and enforcement function just doesn't make any sense, because it introduces this somewhat bizarre two-step into the enforcement process where the inspector goes on site, sees something and has to go back and phone the federal government to send an investigator to initiate the enforcement process, by which time, in most cases, the evidence and the violation are long gone. It just doesn't make a lot of sense.

Mr. Paul Muldoon: From pure speculation, I suspect there's another factor in the division of inspection and enforcement, and that speculation deals with monetary transfer resources. This is an agreement that will devolve a significant federal responsibility to the provinces for free. There's no money. The federal government is getting a good deal. They're downloading. Provinces are accepting responsibility for free.

If you look at the various subagreements, where does the pavement hit the road in terms of that? Where it hits the road is enforcement. That's where provinces will all of a sudden realize that they have signed a deal and they may actually have to do more in terms of inspectors, prosecutions, those kinds of things, which require money.

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So my guess, based on speculation, is that is why enforcement was deferred: because it raises the big money-sign issue. That's where probably you're going to have some real issues, because some provinces will need money just to implement the agreement, and my understanding is that wasn't on the table right now. Money wasn't an issue, even though, interestingly enough, if my recollection serves me correctly, the first environmental management framework agreement did have a section in there talking of the need to negotiate resource transfer agreements.

So that's my guess. One of the issues is money.

An hon. member: Just to follow up on this same theme, on assessment and whether a company to a municipality to an organization should not concur with a given assessment, do you think this process will make it that much more difficult to appeal any decision that's made?

Mr. Mark Winfield: It's a complex question. I suspect in practice most of the appeals would come from public interest and community interveners in assessments. You will find some industry sectors are enthusiastic about what is proposed on environmental assessment because they think the process will move faster, but in practice I suspect if what is proposed here happens, virtually every assessment would end up in litigation because of the problem of what is proposed in the environmental assessment subagreement and the conflicts with CEAA, and also because we're already seeing that with what are in effect harmonized assessments or consolidated assessments such as the Cheviot Mine in Alberta, BHP, and Voisey's Bay, all three of which either were or are in litigation for a number of reasons, ranging from procedural problems to potential accusations of bias. If those things aren't going to be better resolved under this framework—in fact, I suspect those kinds of problems are going to get worse—the result is going to be more litigation around environmental assessments, not less.

The Chairman: Mr. Laliberte.

Mr. Rick Laliberte (Churchill River, NDP): I guess my concern is more the big picture. We pick up this accord and it opens up very specific doors, but you don't see the whole design or the architecture of the environmental responsibilities and where we're going, nationally, provincially, or internationally. This EMFA, the framework agreement, which seems to have started the process and the subagreements.... There's no end to subagreements to this, is there? There was some mention yesterday that enforcement may be negotiated in a future context. What other aspects or terminologies would be coming from subagreements in the future?

Mr. Mark Winfield: In the accord that was released last November there's actually a list of the things they are thinking about. You can see monitoring and reporting, emergency response, research and development, policy and legislation.... That's a very interesting one, and we're not sure what it means. Another very important one is international agreements. Then finally there is state-of-the-environment reporting. These are in fact the topics that were in the sub-schedules of the original Environmental Management Framework and Agreement, which they said they were dropping at the May 1996 CCME meeting. In effect what is coming back is a kind of cut-down version of the EMFA, but underlying this is an intention to continue along this path.

If what we saw in the EMFA subagreements on things such as policy and legislation and international affairs are any indication of where they will go, and we suspect it is, then that has to be of enormous concern, given where we've already seen them go in that. They have retreated and then seem to want to put those items back on the agenda.

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Mr. Rick Laliberte: The other one in this accord—and I'm new to this aspect—is realizing the responsibilities. It refers to “parties”. The CCME is made up of thirteen memberships. Is Canada only one party to the accord? Are we only one player in this? So it's not Canada and twelve agreements, such that we have an ace we can hold. We're inundated by twelve other votes, and compliance, as you said, could come down to the lowest common denominator to appease that one person who may have.... Okay. I understand that.

The other one was in that this whole evolution of the agreement what seems to be a caution rang yesterday. This is not devolution, this is not a constitutional agreement, it's a political contract. But this could lead to that. People are cautioning us that this is not devolution, this is not a constitutional issue, but this opens the way and paves the way towards this. In your view, what is the end result on that journey?

Mr. Mark Winfield: I should take up a couple of points. One is that the precise legal status of the accord and subagreements is unclear. On occasion we have asked for some clarification on the exact nature of the obligations which are being entered into and that has not been made clear to us. Those who are negotiating this claim it's simply a political accord and it has no legal weight at all.

One of our research associates took it upon herself to conduct a preliminary investigation of that situation. Her conclusion was that it's not so clear at all. Indeed, I've heard legal scholars speak to this, particularly at a conference on this at Queen's University last February, where it was suggested there was in principle no reason why this could not be considered to be in effect a civil contract between the two levels of government. The only question around whether or not it was actually enforceable in a court was whether the language of the agreement was specific enough for the court to be able to consider it enforceable. That has to be of concern, particularly around those “shall not act” clauses, which are pretty categorical. So that's one question for which there has been no really clear answer.

The second one is a point that has been made on a number of occasions by members of the harmonization working group of the CEN and others. In some ways the accord, and particularly the FMA, did seem intended to achieve something through an intergovernmental agreement which was unacceptable to the public as a constitutional amendment. Indeed, at one point I think we described the FMA as a de facto constitutional amendment. There is a question whether in the longer term this opens the door to a formalization of these arrangements. It's not clear if that's on the agenda or not, but clearly it makes the federal position much harder to defend in the future.

A witness: Let me just add to that. This is not a formal delegation, like a constitutional delegation, in part because of the enormous complexity and problems that would occur, but clearly this is an administrative arrangement and I suspect it would be, in the government's view, second best. So the question is where is this leading? On paper it looks like an administrative agreement, but if this is concluded, over the years, in my view, what was once an administrative agreement becomes a matter of practice and tradition, and those traditions and customs become very hard to change. Once it has happened that certain large areas of environmental responsibility are devolved to the provinces, it then becomes a provincial domain and then that is really a precursor or it sets the foundation for more formal change.

So really we are at a crossroads, and the crossroads ask what is the role the government in environment protection and what are those avenues to improve provincial cooperation. This agreement states that provincial cooperation can be achieved only through decentralization and the cost of that is a much lesser role for the federal government in environmental protection.

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We are asking today for the committee to put that to the test of the general public. Does the average Canadian expect less of the federal government to protect the environment even under this arrangement, which is less formal than a constitutional arrangement?

The Chairman: I have a question from the chair, and then we will adjourn.

Mr. Muldoon, you are predicating your argument on the assumption that the provinces will be given the responsibility to do everything.

Yesterday the witnesses said to this committee that, depending on competence and who is capable of doing things best, there will be allocations of responsibility and powers that will at times be given to the province and at other times to the federal government. In other words, the witnesses from the two levels of government do not share your view that powers will be devolved to the provinces. It will be a practical arrangement whereby in some instances, in some parts of the country, and in relation to certain issues, certain powers will be devolved, while in some other cases it will not. Do you have any comment?

Mr. Paul Muldoon: When you read the agreement, it does not talk about federal or provincial responsibilities; it always talks about an order of government. How one determines which order of government deals with a particular environmental situation falls under the definition of finding who is best situated for that.

Under the previous agreement, my recollection is that the term “best situated” was not defined; under this agreement, it is defined under a set of criteria. My suggestion to you is that if you read the criteria closely, it's skewed to what goes more toward the provincial definition of what is best situated in terms of proximity to the issue, etc.

That's one issue; the other one is much more practical. I would urge you to canvass the federal government for their views and each province as to their views of who would be best situated to deal with pollutants or inspections.

My hypothesis to you, based on my cursory interviews with various officials, is that the provinces think that most of the time they are best situated for it. In other words, regardless of what the agreement reads, the practical response to an argument by the provinces almost invariably is that they will be best situated to deal with these kinds of matters.

The Chairman: They may argue that, but in the Great Lakes, Ottawa could argue that these are international waters, so therefore Ottawa is best situated for this. When it comes to air pollution, because of its nature, Ottawa could argue that it's better situated because that's interprovincial, and so on and so forth. The interpretation of who is best situated could work in favour of either party.

Mr. Paul Muldoon: It could work in favour of either party, but consider the practical consequences of it. Don't forget that you are at a table with 13 jurisdictions. In our view, over and over again, despite the debate around that table, the best-situated body will fall to the provincial order of government as the operative—

The Chairman: Not entirely, because you could have the territories and the Atlantic provinces siding with Ottawa.

Mr. Mark Winfield: The accord actually does include quite specific language that does indicate the move toward the provincial level. The language in the standard subagreement in articles 6.8 and 6.9 make it clear that the provinces would have the lead in the implementation of standards related to industrial and municipal facilities.

There is similar language in the inspection subagreement that again says the provinces have the lead or the main function—that's the actual language—in relation to inspections for industrial and municipal facilities. This is especially clear in the most recent draft of the environmental assessment subagreement, which uses what is called the land criteria for deciding who the lead party is. What it means in practice is that the federal government is only the lead party. In fact, in the current draft there would only be a federal assessment where the undertaking is on federal land.

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The federal role is clearly in the back seat—if they are there at all—if the undertaking is on what are defined as provincial lands, which are going to be the bulk of the places in which assessments occur. There is some language in the accord that makes the thrust towards the provinces clearer.

The Chairman: But it could be reversed. It could be interpreted in reverse order, if you want to make an argument.

Mr. Paul Muldoon: If that's the case, we're delighted with the fact that this leads to at least maintaining or increasing this present level of federal involvement. As a matter of public policy, though, I'm not sure I want to leave it to that chance. I think the agreement and the constitutional powers make it clear who has what responsibilities, when, where and how.

The Chairman: Doesn't it boil down to an issue of political will?

Mr. Paul Muldoon: It does. And that's why the dynamic nature of the relationship between federal and provincial governments acts as that backstop. The history of environmental law and policy is a dynamic between different levels of government having varied levels of political will to act.

The fact that Canada has two levels of government sharing jurisdiction of its environment really does provide the benefit of allowing one government to pick up where the other leaves off. To the extent to which we can accept that as a viable principle of federalism, a viable principle of policy-making is basically usurped by this agreement.

Rather than deciding whether or not the federal government should act, we would be asking ourselves who is best situated. And does the average Canadian care who's best situated when you have a major problem of dioxin or a major project that needs assessment? It seems to me that this will confuse the issue rather than clarify it. And I thought one of the actual purposes of this agreement was to lead to certainty and predictability. My argument is that it leads to the exact opposite.

The Chairman: Thank you. The other question is this. There are three subagreements here which call for the development of implementation agreements, right? They are supposed to define the various roles and responsibilities in greater detail. Are we facing a situation comparable to that of signing a blank cheque?

Mr. Paul Muldoon: In my view, it's not only a blank cheque because it talks about implementing the details of a vague agreement, but it's the signing of a blank cheque by and large behind closed doors. There have been a lot of public policy debates our group has been involved in where we have not really won the arguments, but the very fact that we participated at least gives some assurance that there is some public oversight over the process.

Here, in our view, it is a blank cheque, but it's a blank cheque being signed in a room that does not allow access to Canadians. It's not only a blank cheque. It raises other concerns about legitimate public policy-making.

The Chairman: Are there any further questions?

Mr. Mark Winfield: I'm not so sure the cheque is entirely blank in the sense that the subagreements are already providing some pretty clear direction about what they should say in terms of devolution. The direction of the implementation agreement seems to me to be already set somewhat by the subagreements, and the direction is clear.

That's reinforced as well by the consideration of Environment Canada already cutting front-line staff in relation to some of these areas on the explicit justification of the harmonization accord. So it again gives us a hint...the accord has been very cleverly redrafted in relation to the framework agreement, which was much more explicit about the devolution issue. If you read the accord very carefully you can still catch glimpses of where that devolutionary agenda comes through clearly. We've highlighted some of those clauses in our brief.

The Chairman: Are there any further questions?

Madame Kraft Sloan, and then we'll conclude.

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Mrs. Karen Kraft Sloan: Please make just a few comments on how this harmonization agreement and the subagreements would affect our ability to meet international commitments.

Mr. Stephen Shrybman: We don't have the subagreement on Canada's international.... I presume this is the Framework Convention on Climate Change, or the Biodiversity Convention, and I haven't seen any documentation that indicates....

Mr. Mark Winfield: We did see a glimpse of where they are heading in the international affairs schedule of the FMA. That was quite clear. It was that Canada's negotiating position on international issues such as climate change and biodiversity would be determined by consensus within the CCME. Similarly, moves to implement any obligation entered into again would occur through the CCME process.

This is problematic, obviously, from the lowest common denominator perspective. It's also problematic from an international law perspective, because ultimately, under the Vienna convention on the law of treaties, it is the federal government that is legally obligated to the other parties through an international treaty for Canada's implementation of its treaty obligations. The buck stops in Ottawa. The convention says quite explicitly that it's not interested in hearing excuses about federalism.

So there's a serious concern there. You can already see the difficulties, around climate change and things like that, to which this kind of consensus-based approach is leading.

Mrs. Karen Kraft Sloan: If you're talking about climate change, the climate change file is jointly held by the Minister of the Environment federally and the Minister of Natural Resources federally. So if you have a CCME process for environmental issues, when you start talking about climate change are you going to have to have a joint CCME-Natural Resources...? Is that what you're saying?

Mr. Mark Winfield: There is an effect already, because it seems as if the environment and energy ministers get together around the table.

Mrs. Karen Kraft Sloan: Yes, they have a joint meeting, but should this be more formalized?

Mr. Mark Winfield: Yes, one would assume that if they did proceed with an international affairs subagreement, then in effect you would see a formalization and in effect a written commitment on the part of the federal government to that kind of a process, both in the determination of Canada's positions going into these kinds of negotiations and also on the issue of how Canada would implement any obligations that are entered into.

The Chairman: On behalf of the members of the committee, we thank you very much. It was a very productive morning. We will see each other again this afternoon at 3.15 or thereabouts, in the same room.

The meeting is adjourned.