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, March 2, 1999

• 0914

[Translation]

The Chairman (Mr. Charles Caccia (Davenport, Lib.)): Good morning, ladies and gentlemen.

We now resume our study of Bill C-32.

• 0915

[English]

I have two brief announcements.

One, last week in the Globe and Mail, our national newspaper, there was an article by Anne McIlroy on endangered species. It is being reproduced for members of the committee who may have not seen it. It is just for your information. It is a piece of legislation that eventually will come before the committee, and therefore the better informed the members are, the better will be the management of that bill when it comes before us, I'm told in late spring or sometime thereabout.

Secondly, just before 9 o'clock, I made some inquiries with members of the official opposition about the possibility of sitting next Monday and perhaps the following Monday, because time is being consumed by these examinations of amendments, such as the one related to the Canada Shipping Act or aquaculture and the like. The Reform members have indicated that they are available next Monday in the afternoon for a meeting, provided of course that the majority of the members of the committee can make arrangements to that effect.

So after this meeting, the clerk will make inquiries with the members to see whether an adequate number of people are available for a meeting next Monday afternoon and possibly also the following Monday. Let us hope this can be arranged, but I see the parliamentary secretary raising her hand.

You have the floor.

Ms. Paddy Torsney (Burlington, Lib.): Thank you.

March 8 is fine with me, but March 15 is problematic, unless it's an evening meeting. But March 8 is certainly no problem.

The Chairman: Fine, thank you.

Yesterday a number of amendments could not be moved, but they can be moved today. I wish to thank members for showing up in such good numbers.

Mr. Gilmour wants the floor. Because Mr. Gilmour gave us a notice yesterday, according to the rules, the floor is his.

Mr. Bill Gilmour (Nanaimo—Alberni, Ref.): Thank you, Mr. Chairman.

Yesterday I gave notice of motion. Today I'm moving the motion that the committee have the minister and her officials before the committee to discuss the estimates, at a time that's convenient to both the minister and the committee, but not going too far into the future.

The Chairman: You heard the motion.

Madame Torsney.

Ms. Paddy Torsney: I apologize for not knowing, but when is the end of the period that we can do estimates for?

The Chairman: The last day of May.

Ms. Paddy Torsney: Oh, great, so we can probably do it after we're finished this.

The Chairman: Yes.

Ms. Paddy Torsney: Perfect.

The Chairman: You heard the motion. Are there any further questions or comments? If not, are you ready for the question?

(Motion agreed to)

The Chairman: We have a representative from the Department of Transport in the room, as arranged by Mr. Lerer. Would he like to come forward so that we can deal with the amendment on page 291?

Having done that, we will go into the whistle-blowing amendments and other items that we couldn't manage yesterday, such as the motion by Mr. Lincoln, which has now been translated and is being distributed.

Could you please introduce yourself to the committee, Mr. Barker, and give us a brief comment on the amendment on page 291, in the name of the member for Sarnia—Lambton.

• 0920

Mr. Simon Barker (Legal Counsel, Department of Justice): Thank you, Mr. Chairman and members of the committee. My name is Simon Barker. I am a lawyer with the Department of Justice. I'm here today as a representative of the Minister of Transport and I'm here at the request of Environment Canada officials to speak to you about Mr. Gallaway's motion and, in particular, the reference to the Canada Shipping Act.

The Chairman: Please make brief comments.

Mr. Simon Barker: Mr. Chair, rather than deal with the Shipping Act—which is quite a voluminous piece of legislation—in a vacuum, I thought with your permission I would pick up from the discussion of February 11 and deal with three questions that were asked by members of your committee in my absence that day about Mr. Gallaway's motion. Mr. Gallaway's motion, just to have it on the table, reads as follows—

The Chairman: We can read it ourselves. Thank you.

Mr. Simon Barker: Sorry.

Of the three questions that were asked on February 11 by your committee, the first concerned Mr. Lincoln, and it was what harm is there if we leave part 8 as it is? Ms. Hébert asked a question with respect to subclause 200(2), and Ms. Kraft Sloan asked a question about where the clause is best placed in the legislation, if it's placed at all. I thought I would answer those three questions and then leave myself open to further questions by your committee, if that's convenient.

When I first sat down with officials from Environment Canada to walk them through Mr. Gallaway's motion, the first point I wanted to make to them was that Mr. Gallaway's motion only respects oil. There are many other pollutants out there. This motion only covers one of them. So when you look at it in that context, I think of a number of international conventions and a number of parts of the Canada Shipping Act that deal with oil and oil alone. I don't concern myself with things like PCBs or other pollutants because those are not covered.

If I were to answer Mr. Lincoln's question first, about what harm there is if we leave it as it is, I think the word “harm” is a bit of a red herring, if I might put it that way. The better question to ask is does it help the situation if we leave part 8 the way it is? And I would suggest that, no, it does not help you.

Cast your minds back to 1967, when there was a shipping incident off the southwest coast of England involving a tanker called the Torrey Canyon. The Torrey Canyon started a debate in international circles, and Canada was a large part of that debate, about how, from a legislative point of view, we address the problem of oil, oil carried by ships and, more importantly, oil getting out of ships when they hit rocks or hit other ships. In the case of the Torrey Canyon it occurred just slightly outside British territorial waters at the time.

One of the things the international movement did, and it was done through a body in London called Inter-Governmental Maritime Consultative Organization, IMCO, which subsequently became IMO, the International Maritime Organization... Canada is a large player in the IMO, and has members on the legal committee. Indeed, the chairman of the IMO legal committee is a Canadian official and we have representation on the marine safety committee at IMO and the marine environment protection committee of the IMO.

IMO addressed the issue of oil in 1969 with the liability convention. They addressed the issue of oil in 1971 with a fund, a compensation convention. They addressed the issue of oil in 1973 with a marine pollution convention dealing more with construction of ships and technical subjects. They again addressed it in 1978—

The Chairman: We don't need to go over the calendar years and each event. Could you please give your reply to those three questions?

Mr. Simon Barker: Certainly, Mr. Chairman.

I think it's important to remember the history, because all the subjects I've just mentioned are all covered in part 8, and so you really are treading a well-worn path by going down part 8.

So in regard to Mr. Gallaway's motion to take part 8 out of the oil business from a legislative point of view, if I may put it that way, because it's covered exhaustively in international conventions and it's covered exhaustively in the Canada Shipping Act, this would suggest that it doesn't help at all to repeat it again.

• 0925

If I may address part 8 of CEPA, clause 199 of your bill covers environmental emergency plans. That's already covered in the marine pollution convention and is covered in part XV of the Canada Shipping Act. Regulations, clause 200, is covered in part XV of the Canada Shipping Act and the marine pollution convention. Remedial measures are found in part XVI of the Canada Shipping Act and it picks up from the Civil Liability Convention of 1969 and the fund convention of 1971. The immunity clause, which you find in subclause 201(7), is covered in section 678.1 of the Canada Shipping Act and was exhaustively discussed by a standing committee of Parliament in 1993, when the pollution amendments to the Canada Shipping Act went through the House.

Clause 203, the recovery of costs and expenses, is a major component of the Civil Liability Convention Of 1969 and is covered in part XVI of the Shipping Act. National notification and reporting systems, your clause 204, again is covered by part XV. It's also covered by the infrastructure that the coast guard have in place today by way of radio stations, vessel traffic centres, and coast guard reporting systems that Environment Canada feed into from a national infrastructure point of view.

Clause 205, liability of owner of substance, is an interesting one because it's covered in part by the Canada Shipping Act in that part XVI of the Canada Shipping Act focuses on the shipowner.

The Chairman: Would you give us your bottom line and comment on the amendment.

Mr. Simon Barker: The bottom line, sir, if I was to address Mr. Lincoln's question, is that part 8 doesn't help; it would serve to confuse everybody, and I think for that reason, for one of the reasons anyway, Mr. Gallaway's motion makes an awful lot of sense.

The Chairman: Fine.

Do you want address the other questions?

Mr. Simon Barker: Certainly, sir. And I promise to be a lot briefer on the other questions because I think that was the main hub of all three.

The second question Ms. Hébert raised on February 11 was, will subclause 200(2) do it? I think subclause 200(2) won't do it. It certainly goes a way toward solving the problem, but it only goes part of the way, because if you read subclause 200(2), it talks about subject to subclause 200(1). It's discussed in the concept of regulations and regulation-making authorities. Mr. Gallaway's motion goes to subjects that cover the whole of part 8, and subjects that I mentioned in response to Mr. Lincoln's questions go to emergency planning, liability, compensation, which is more than you find in the regulation-making authority of part 8 of CEPA. I think it's the right idea, but it doesn't go far enough. I think Mr. Gallaway's motion is much more comprehensive and covers all of the bases.

The last question, sir, was on the issue of residualization, to use the in-vogue term, or where best to put the clause. I think that question was answered back in June of last year when the CPPI witnesses were before you. Their position—and I certainly agree with it—is that the clause is best placed in part 8. It's covering subjects in part 8 and talks about part 8. And it only talks about one pollutant that covers part 8, and that's oil. That's not to say that part 8 will not still be there; it will be there for all pollutants other than oil. So I think it's best placed in that part.

The Chairman: All right. Thank you.

I have two interventions listed here. One is by Mr. Lincoln and the other one by Mr. Jordan.

Mr. Clifford Lincoln (Lac-Saint-Louis, Lib.): Mr. Chairman, I've heard the arguments to the effect that Mr. Gallaway's motion should be supported. First of all, I'd like to refer to subclause 42(3):

No claim for damage caused by a ship may be made under this Act to the extent that a claim for that damage may be made under the Canada Shipping Act or the Arctic Waters Pollution Prevention Act.

So if you look at subclause 42(3), if there's a claim made already under the Canada Shipping Act, CEPA doesn't apply. I think that is a key position in there. In other words, we can't take part 8 and look at it by itself without looking at subclause 42(3), which clearly says, in regard to anything to do with the Canada Shipping Act, that when a claim involving damage caused by a ship can be made under the Canada Shipping Act no claim for damage can be made under CEPA.

So what we're talking about is the supplementary damage. I see that the intention of the drafter there was very clearly to take into account cleanup, remediation and mitigation, which of course the old companies don't want.

• 0930

This is an environmental committee, and the suggestion for this endorsement was made by the Canadian Petroleum Products Institute, so of course they don't want the rest of it. They want to deal with the oil, but they don't want to deal with remediation and stuff because it's a very costly business.

I would also refer the members to an opinion that was given by Mrs. Kirsten Douglas, who was the researcher of this committee and is now on leave, I understand, for maternity reasons. She is an environmental lawyer, extremely credible, and she addresses the whole question of part 8 and the suggestion by the Canadian Petroleum Producers Association. I would like to read from the last part of her opinion, which contradicts completely what Mr. Cameron and the lawyer from the justice department have said:

Clearly, following this advice from the industry would be consistent with the Canada Shipping Act and Canada's Civil Liability Convention obligations.

She doesn't dispute that.

However, an outstanding question is the ability of Canada, in the face of those obligations, to go beyond dealing with liability for damages in the agreed fashion, to impose clean-up, remediation and mitigation obligations on shipowners and cargo owners. CPPI argues there is already a sufficient incentive to shipowners to prevent or mitigate damage, in that their liability will be reduced to the extent that they are successful in limiting the environmental damage. However, Part 8 of Bill C-32 seeks to go beyond that type of incentive, to impose an additional duty on those who might cause environmental emergencies to limit their negative impact. The CPPI submission does not consider whether it would be possible for the proposed legislation to deal with liability for damage in the manner it is dealt with internationally under the Civil Liability Convention, while still increasing the incentive for shipowners and cargo owners to prevent environmental emergencies, or to repair, reduce or mitigate any negative environmental effect of an oil spill.

Take subclause 42(3), which says:

No claim for damage caused by a ship may be made under this Act to the extent that a claim for that damage may be made under the Canada Shipping Act or the Arctic Waters Pollution Prevention Act.

If you take that and the fact of the intention of the drafters, which was very clear at the time, it's really significant that the government itself never saw any problem until Mr. Galloway and the CPPI raised it. They were quite satisfied with this as it was drafted. It has the backing of our researcher at the Library of Parliament, who has sat with this committee on environmental matters and has huge credibility. I don't think we should back this endorsement.

It seems to me it's a typical case of the Canadian Petroleum Producers Association trying to limit their potential liability. If we look at all the cases that have happened, such as the Irving Whale and the Exxon Valdez, the oil spills themselves are only the start of the problem. It's always remediation and mitigation afterwards.

In the Irving Whale case, we're still trying to claim from the oil fund. Admittedly, the oil fund started after the disaster, but who picked up the tab? Environment became liable for lifting the wreck, and it became an environmental issue. We're still dealing with the remnants of what's happened to the Irving Whale on the sea floor.

So I think we should leave clause 194 just as it is and not back this amendment.

The Chairman: Thank you.

Mr. Jordan.

Mr. Joe Jordan (Leeds—Grenville, Lib.): My apologies, Mr. Chair, but Mr. Lincoln captured my comments exactly as I was going to put them, so I'll let that go on the record.

The Chairman: Thank you.

Are there any further comments?

• 0935

Madam Torsney.

Ms. Paddy Torsney: Thank you. One of the points that were raised in promoting this amendment was that it would reduce confusion. Since this governs emergencies, what legislation do you turn to and what are the remedies under it, and everything else? I wonder if you could address that point. If it's left in this bill, what is the sequence of events in terms of there being a problem and looking to which piece of legislation?

Secondly, the Irving Whale happened a long time ago and I'm not sure if those conventions the witness was speaking to were in place at that time. The Exxon Valdez happened in the 1980s, so I'm wondering if we have some information about how things would be different, or better or worse, with this clause or without this clause.

The Chairman: Mr. Barker, would you like to answer briefly, please?

Mr. Simon Barker: Mr. Chairman, I'd be happy to answer briefly.

The first question about confusion is a very good one. The problem we have with emergencies is they invariably don't occur within the hours of 9 a.m. to 5 p.m. when offices are open; they occur in inclement weather at night when there's very little information floating around and the potential for confusion is very high. Unfortunately, that confusion, with all due respect to my own profession, tracked through to the subsequent court case.

The one thing subclause 42(3) does not cover is costs and expenses incurred by Her Majesty. So in the event that the crown has a claim in the future, subclause 42(3) will cause some confusion for Her Majesty when she's pursuing a claim for costs and expenses. Invariably, when we pursue a claim after the fact, if we've incurred costs and expenses in a cleanup, we'll want our money back, and occasionally we'll also pursue the shipowner and various funds for oil pollution damage because of the fiduciary relationship we end up having with the environment, as the Canadian government.

I think we have no problem in the latter case because subclause 42(3) will guide us conveniently to the Shipping Act. But on costs and expenses incurred by Her Majesty, which is the more common occurrence for the Government of Canada, there would be some confusion about whether we would pursue part 8 or part XVI.

I would suggest, as a lawyer, our better chance is with part XVI, as it reads today, and the strict liability provisions in there and the fact that there's a compensation fund, for one reason and one reason only: there is an ability under our Shipping Act, and under many shipping acts around the world, for a shipowner to limit his liability. CEPA doesn't cover that subject and the shipowner can walk away once he reaches a certain financial limit.

With the concept of limitation of liability you need—and I stress the word “need”—a compensation fund for backup. Part XVI creates two funds; it creates an international fund and a domestic fund. Mr. Lincoln referred to it in the context of the Irving Whale.

If I can turn very briefly to the cases of the Irving Whale and the Exxon Valdez, there are two very interesting situations. The Valdez occurred in U.S. waters in 1989. The United States are not a party to the Civil Liability Convention and the fund convention, so to use that as an example of how it would work today would be very difficult because they aren't party to the same scheme. They came up with their own piece of legislation, the Oil Pollution Act of 1990, which was their “additional obligation upon ship owners” and we're still trying to figure out what it means today. So the confusion is rampant.

With respect to the Irving Whale, it sank before the International Oil Pollution Compensation Fund of 1971 and before Canada became a party to that convention in 1989. In the recent court case of the Irving Whale, the crown tried to argue that the convention applied. Unfortunately, just before Christmas the Federal Court came down with a decision that it did not apply.

So in the Irving Whale case, we don't have the ability to fall back on the compensation funds. We're left with the shipowner and a common law case of nuisance against the shipowner. I would suggest to you the Irving Whale is a very good example of why we need part XVI in the Shipping Act for shipping emergencies, and why we need the ability, in the light of limitation of liability, to fall back on compensation funds.

The Chairman: Are there any further questions or comments?

Mr. Laliberte, briefly, please.

• 0940

Mr. Rick Laliberte (Churchill River, NDP): I'm just trying to understand the reasoning where this part XVI plays an important role in the eyes of the Shipping Act. In part 8 how do we sidestep part XVI? The interpretation I'm getting is that part 8 is not required for oil emergencies when it deals with ships. The whole aspect of other pollutants seems to fall into that category, but oil should be exempt from this. If we keep clause 194 as it is, it doesn't exclude part XVI at all.

The Chairman: Mr. Barker.

Mr. Simon Barker: Mr. Chairman, I would agree that today part 8 doesn't exclude part XVI. So for all the other pollutants and including oil, part 8 is very applicable. With regard to oil, there's a comprehensive tried-and-tested scheme out there that everybody understands. So if we were to have an emergency tomorrow morning or the day after CEPA is proclaimed, all we would be saying on the spill site is don't worry about part 8. This is an oil problem. Worry about part XVI and the system you have tried and tested for many years. If it were a pollutant other than oil, I agree with the honourable member of the committee that part 8 would be very applicable. I think the two can complement each other as long as you have something from a legislative drafting point of view in part 8 that guides a claimant or the government out of part 8 into part XVI when you have a situation of oil. It's basically, if I can use the colloquial expression, a road map for claimants to tell them where best to go to seek damages.

The Chairman: Thank you. We'll now turn to Mr. Lincoln for some brief remarks, followed by Mr. Jordan.

Mr. Clifford Lincoln: Briefly, Mr. Chairman, I want to put on record that I knew very well that the oil spill recovery fund wasn't in place for the Irving Whale. I said so in my remarks. I know the Americans are not party to it. I brought up the Exxon Valdez and the Irving Whale, cases that are familiar to us Canadians, to show that when you talk about oil spills, they also include other kinds of damage. I've talked to people in Alaska. It has taken years for the stuff to be recovered.

The intention of this bill, which mirrors Bill C-74, and what was clearly the intention of the drafter was to put another notion in there to take care of not just the oil spill itself but of what results from it, which is always the biggest part of the damage, and to bring the environmental side, CEPA, into it. To say that because subclause 42(3) excludes claims under the Canada Shipping Act there would be confusion about the costs and where the costs would be...surely if there's a claim under the Canada Shipping Act that doesn't apply to CEPA, then the costs are going to be part of that.

It was the Canadian Petroleum Producers Association that raised this. Before then, the government never raised it, the Minister of Justice never raised it, the officials never raised it, Mr. Cameron never raised it, and the drafters never raised it. It was okay. Then suddenly this thing happens, and because it was the Canadian Petroleum Producers Association that raised it, right away we should be suspicious because obviously they have a vested interest and there is a conflict of interest. They prefer it to be under the other act, because this would impose additional duties on them.

I would suggest to you strongly that we keep this clause in there. If there's confusion, there'll be confusion in favour of the environment, not otherwise.

The Chairman: Thank you. We'll now turn to Mr. Jordan, followed by the parliamentary secretary.

Mr. Joe Jordan: My question picks up on something Mr. Lincoln said. Does the wording of clause 194 put additional duties on the oil companies in the event of an oil spill? Does the Canada Shipping Act take into consideration that the long-term effects and the degrading of the biodiversity of the area constitute or may constitute a danger to the environment on which human life depends, or constitute or may constitute a danger in Canada to human life or health? Is this particular clause more comprehensive than the applicable section under the Shipping Act? Does the Shipping Act have that long-term environmental sensibility built into it?

• 0945

I was also going to talk about the Irving Whale and the Exxon Valdez in the context that, left without regulation, we have very clear evidence of how oil companies are going to behave. Not only did we have to pay the costs of salvaging the Irving Whale, but then I think the company wanted the oil back. So when you say that the costs are recoverable under the Shipping Act, that doesn't seem to be the practice. I realize that the legislation wasn't in place then, but clearly it speaks to the motives.

Does clause 194, in the way it's worded, bring new responsibilities to the shipping companies, or are we talking about two identical pieces of legislation and we just don't want to overlap?

The Chairman: This is now bordering on a political debate, so I would ask Mr. Barker to answer the technical side of the arguments advanced.

Mr. Simon Barker: Mr. Chairman, you took the words right out of my mouth. I was going to repeat that I was here as a representative of the Minister of Transport, and factual information is what I've come to this committee to discuss. I'm listening to the debate with a lot of interest, and I would be happy to answer a couple of points on a factual basis. Then I'll continue listening to the debate.

The first point was that we would be taking subclause 42(3) out of the bill. That's not my understanding of this amendment. It is that subclause 42(3) would remain and that there would be a clause in part 8 saying that this doesn't apply to oil because the Shipping Act applies. Subclause 42(3) defers to the Shipping Act. I think the concept is the same. My only point about subclause 42(3) is that it didn't cover one area that was of great interest to Her Majesty and that it might be possible to fault subclause 42(3) as worded, but I think over the years the courts will be able to solve that one.

The question I did want to pick up on was the one about clause 194 and section 677 of the Canada Shipping Act. I think the short answer is no. I don't believe there's a problem with either of those clauses. They seek to do the same thing.

I think it's important to understand that the Shipping Act focuses on the shipowner, and the compensation fund is where the cargo owner interests come into play. Cargo owners pay into the fund, and then when the shipowner can limit his liability, the claimant has the right to go to the compensation fund. So to say that the cargo owners are outside the loop in the Shipping Act is not correct. It's just a process issue. They're in a different part of the loop.

Part 8, I accept, talks about the owner of the substance, so it goes directly to the cargo owner. So it's a case of who you go to first.

Section 677 talks about the shipowner being liable for all pollution damage from the ship and for costs and expenses incurred by the minister and others in the cleanup. At some point someone claimant-wise has to determine how much evidence they have and when they want to go to the courts. There's a six-year time limit in the Shipping Act, so you technically have six years to go to the courts.

From a very practical point of view, cleanup costs and expenses will be incurred, and the bill will be known when the recovery operation is over. From a long-term environmental damage point of view, officials at Environment Canada, consultants, environmental groups, specialists, etc., will tell us from an evidentiary point of view when we have to substantiate our damages.

So the long-term issue, I would suggest, is normally resolved well before the six-year mark. To answer the gentleman's question, I don't believe there is a difference between clause 194 and section 677.

The Chairman: Are there any further comments or questions? Mr. Lincoln, very briefly.

Mr. Clifford Lincoln: I'd like to ask the members, before they vote on this, to look at page 48 of the government response, which shows very clearly that the intention of the government was to have clause 194 the way it was. I can't read it all, unfortunately, but it says:

The key to avoiding environmental damage from spills, leaks and other releases is

—amongst others; they quote five different ones—

- to restore the damaged environment and recover the costs of cleanup, restoration and perhaps seek compensation for that damage.

The government can

build on the specific actions taken to protect the environment contained in other federal Acts such as the Canada Shipping Act and the Transportation of Dangerous Goods Act 1992. Therefore, the proposed P2R2 approach in a revised CEPA would strengthen the legislative base that the Government already has for dealing with the broad range of emergencies.

It puts under 6.12 the government's recommendation:

The Government of Canada proposes to amend CEPA to include new provisions to enable the Minister to establish a legislative framework, including regulatory and non-regulatory approaches, for:

- dealing with the environmental aspects of emergencies, and

- addressing the elements of prevention, preparedness, response and recovery

• 0950

This is what they did in clause 194. If we amend this today, we will lessen clause 194 and it won't take into account that subclause 42(3) has already dealt with exclusion from the Canada Shipping Act. I think we should leave it as it is.

The Chairman: Madam Torsney.

Ms. Paddy Torsney: If I get this straight, if we passed this amendment, we would still be able to deal with any other kind of spill from a ship under CEPA, but if it were an oil spill, we would go to the Canada Shipping Act, which has a specific emergency fund that's already been paid into by the petroleum producers.

I wonder if we could get comments from the officials. If we were not to include this, if Mr. Gallaway's motion were not passed and there were an oil spill, is there such a fund that exists within Environment Canada that would deal with it? How complicated would it be to get access to the shipping fund to deal with the oil spill?

The Chairman: Mr. Mongrain.

Mr. Steve Mongrain (Representative, Canadian Environmental Protection Act Office, Department of the Environment): I can answer the first question. We don't envisage such a fund within Environment Canada to cover such instances. I'm not sure if I understand the second question. Maybe Mr. Barker—-

Mr. Simon Barker: I can answer the second question. Unless you make a claim under the Canada Shipping Act, you can't access the compensation funds under part XVI of the Canada Shipping Act.

Ms. Paddy Torsney: I still have another question. If I understand it correctly, if there's an oil spill from a ship, you want to clarify directly to which piece of legislation you would go. Obviously we would want the crown to go to the best piece of legislation where there will be access to some funds—in which case, no matter who is the proponent of this motion, other than Mr. Gallaway, it sounds to me as if we would want to go to the place that has money and the place you would want to apply under, which is the Canada Shipping Act, because it would give the best compensation and the best way to deal with the emergency. Is that correct?

The Chairman: Mr. Laliberte, can you comment? Mr. Laliberte, followed by Mr. Lincoln.

Mr. Rick Laliberte: I would like somebody to explain clause 194 with the amendment as it is. I have a concern with anticipated discharge of oil from a ship. I can understand pollution caused by discharge, but anticipated discharge would mean there's a remediation aspect to this, or a responsibility under remediation measures taken on an anticipated spill.

If there's a ground ship and no spill, and the owner flies over there and applies a bio-remediation product or something to that effect—a chemical release or something—around the ship to control an anticipated spill, and there's an environmental emergency caused by the remediation product, would this amendment exempt that emergency caused by an anticipated spill? Would that be covered under part XVI of the Shipping Act if remediation measures were the environmental emergency?

The Chairman: Mr. Barker.

Mr. Simon Barker: The words “anticipated discharge” don't cause me a problem. We have them in the Shipping Act today. In the context of shipping, if a ship loses her main propulsion units half a mile from shore and a wind is bringing the ship into shore, you know there's going to be a pollution emergency; it's just a case of when it's going to occur.

• 0955

The Canadian Coast Guard, the Minister of Transport and the Minister of Fisheries and Oceans would be faulted if they were not taking action when the ship was travelling that one-half kilometre before it hit the rocks. As a government, we recognize that a ship is private property belonging to another, and the remedial measures you find in part 8 and part XVI of the Canada Shipping Act allow the government to take action involving someone else's property in anticipation of a discharge and an environmental emergency.

So those words don't really cause me a problem in the context of either part 8 or part XVI. I don't think we lose anything by putting in, as the honourable member said earlier, a road map clause that sends claimants to the piece of legislation where they might best get remedies.

The Chairman: Thank you.

Are there any further questions? Mr. Lincoln.

Mr. Clifford Lincoln: I would like to refer to the earlier remarks by Ms. Torsney, almost excluding the fact that we've passed clause 42.

We have three other lawyers here in the room, apart from Mr. Barker. There's Mr. Cameron, Madame Hébert and Mr. Moffet. Can they tell me, now that we've passed clause 42 and it's been carried, what subclause 42(3) means in their eyes? When it was drafted, did it mean, as I read it, that any claim under the Canada Shipping Act is not considered a claim under CEPA?

The Chairman: Mr. Cameron.

Mr. Duncan Cameron (Legal Counsel, Legal Services, Department of the Environment): I think the words of subclause 42(3) are fairly straightforward. They mean that a claim for damage caused by a ship may not be made under this act to the extent that the claim was made under the Canada Shipping Act. In other words, the Canada Shipping Act has precedence with respect to the claim for damages.

However, we've been hearing this morning that this is a very narrow piece of the puzzle. Part 8 and part XVI of the Canada Shipping Act provide a much broader regime, with respect to the regulation of the discharge of oil from ships.

Subclause 42(3), in my view, would have the effect that's intended from a plain reading of these words, however, that does not address all the attendant issues that go along with an emergency involving the discharge of oil from a ship.

The Chairman: Thank you.

Mr. Clifford Lincoln: Mr. Cameron, you completely baffle me. You say it says what it says, and then you say it doesn't cover all the aspects of the Canada Shipping Act and the emergencies. Surely if it says any claimant of the Canada Shipping Act, it means the whole Shipping Act with whatever connotations it has. Otherwise, maybe I don't read right.

The Chairman: Between two interpretations of the same clause.

Mr. Duncan Cameron: I certainly didn't intend to baffle anyone. It's just that a claim for damages is only one piece of the puzzle. You have to consider planning, remediation and a variety of activities, in addition to a claim for damages, and they're not covered in subclause 42(3).

The Chairman: Thank you. Mr. Moffet.

Mr. John Moffet (Consultant, Environmental Law and Policy, Resource Futures International): If I may, I'll wade into this debate around clause 42.

My understanding is that clause 42 addresses claims for damage. These are claims that would be made by a party who has been damaged as a result of a spill. Let's imagine an oil spill. An oil spill has various impacts that we're concerned about. One of the impacts is that it imposes damages on individuals or companies. It ruins their fishing business, or nobody comes to the tourist resort because it's ruined. This speaks to damages to individuals.

Part 8, as Mr. Cameron and Mr. Barker have emphasized, goes much further. Part 8 doesn't just speak to damages. It also speaks to the obligation to take remedial measures and the ability of the government to recover the costs it has incurred in stepping in and looking after the problem. It also, under clause 205, imposes liability to restore the ecosystem, regardless of whether there have been damages to individuals. So clause 42 doesn't exempt, for example, clause 205, liability for restoration. Hopefully that is clear. The amendment to clause 42 does not do what Mr. Gallaway's amendment would propose to do.

• 1000

I think the real issue here—the question for me anyway, and the question I'm hearing from members—is whether part 8 is stronger than the Canada Shipping Act regime. If we exempt part 8, are we moving to a weaker regime? My understanding is that this is the question. I know it's been asked in various ways, but it may be worth reiterating and having another go at it. The memo that was prepared by Ms. Douglas, the researcher for the committee, suggested that part 8 was weaker for a couple of reasons. I'll just reiterate them. This wasn't prepared by me, I'm just reiterating these opinions.

She says that part 8 goes beyond the Canada Shipping Act in two ways. First, it imposes joint and several liability, whereas the Canada Shipping Act limits the liability of shipowners to specific levels and then has a regime where cargo owners would also provide compensation through their payments into the oil pollution fund. So there's some implication in her memo that this is a weaker regime.

Second—

Mr. Clifford Lincoln: She says this one is a weaker...

Mr. John Moffet: Sorry. No, that the Canada Shipping Act would be weaker.

Mr. Clifford Lincoln: Yes. Okay.

Mr. John Moffet: Secondly, I think there's an implication in her memo that the Canada Shipping Act does not have as strong provisions addressing liability for restoration as would be in place under part 8.

So those are the two grounds that have been asserted to explain why the Canada Shipping Act would be weaker than part 8. I can't answer the question, I'm just trying to clarify the discussion. Perhaps we could have a response.

Ms. Monique Hébert (Committee Researcher): No, I could only add that I think it's a given that the industry would like to see limited liability. Of course, there's greater business certainty for them if their liability is capped. However, this committee has always emphasized the importance of the polluter-pay principle. And if one were to adopt Mr. Gallaway's amendment, that would contradict the polluter-pay principle, because part 8 could conceivably go after some damages that would not be covered under the Canada Shipping Act.

The Chairman: Look, I think we're ready now after three-quarters of an hour.

Madam Torsney.

Ms. Paddy Torsney: No. I want to say to Madam Hébert, through you of course, that I'm not sure something hasn't been attributed to the Canada Shipping Act that might not be true. To suggest that somehow limiting liability, in the case of an oil spill, so that the polluter couldn't pay...it may be a question of what the mechanism would be to get them to pay. If the Canada Shipping Act has the shipowner paying, then when they run out of their limited liability, you go to the oil company, in this case... In fact, they've already got a fund that's much bigger than even any one of the oil companies. I don't have an understanding of how you could think it might be worse, unless we get further comment from the transportation lawyer. It sounds to me as if they have this whole system worked out that's much beyond any liability that any one company could have.

Ms. Monique Hébert: In response, Mr. Chairman, I'm not denying there is some polluter pay under the Canada Shipping Act. I think it's a question of whether it's payment in full or partial payment. I think that's the issue here.

Ms. Paddy Torsney: Maybe we need an answer on whether in fact the Canada Shipping Act is polluter pay in full or in part. We don't have that answer on the table at this point.

The Chairman: Fine. Would you like to answer it?

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Mr. Simon Barker: I have a couple of responses to some of the questions.

When you say “payment in full”, I would suggest to you that even part 8 is not payment in full, because you use the term in part 8, “reasonable cost and expenses”. Reasonable is a very subjective standard. We have some experience in the Canada Shipping Act with the term “reasonable”, and by putting the word “reasonable” in legislation you don't get payment in full, period. So you wouldn't get payment in full under part 8 and you wouldn't get payment in full under the Shipping Act.

I think the concept of limitation of liability is alive and well. It's alive and well in Canada, because the Government of Canada, through Parliament, last year passed an amendment to the Shipping Act bringing into domestic legislation the limitation of liability from the maritime claims convention of 1976. So we endorsed that concept as a government in Parliament last year. It came into force on August 10, 1998.

Unfortunately, with the limitation of liability concept alive and well, it puts a dent into the polluter-pays principle, there is no doubt about that. The fact that it puts a dent into it is not fatal so long as you have a compensation scheme out there available, because if a shipowner can limit his liability you want to go to the fund. We have access to the international fund through being a member of the international convention, and we have access to our Ship Source Oil Pollution Fund, which is our domestic fund. So we have, through part XVI, access to two funds.

The question was raised about whether the Canada Shipping Act is weaker than CEPA. As I'm here providing facts and information I can't crystal-ball-gaze, but I can offer you a personal comment, if I may, Mr. Chairman. The personal comment is, having been involved in the emergency business for the last six years and pursuing claims for costs and expenses on behalf of Her Majesty, I find the Canada Shipping Act does the job and I get money back. I don't believe it's weaker than CEPA.

I believe that in the case of the Rio Orinoco, which was a tanker that went aground off Anticosti Island in 1998, just after we joined the international conventions we got money through the international compensation fund when we couldn't have received money from the shipowner. So it does work, and because it works, I tend to think it's a good option and I tend to agree with the CPPI proposal.

Shipowners—just one last point for you—have a habit of being offshore and they happen—

The Chairman: We can't determine which piece of legislation is stronger. But what you said is very helpful.

Mr. Herron, Ms. Torsney and Mr. Lincoln.

Mr. John Herron (Fundy—Royal, PC): My question is which act becomes the trigger? If Mr. Gallaway's amendment were to pass, my interpretation, just by looking at it, is that if there were an anticipated discharge of oil, or a discharge of oil, then the Canada Shipping Act would apply versus CEPA.

Mr. Simon Barker: That's correct.

Mr. John Herron: What happens if after perhaps a couple of years, or even a year, as in the case of the Irving Whale, they discover that there's not only oil within the barge but it is also laced with PCBs? Which act applies at that point?

Mr. Simon Barker: That's a very interesting question, because one of the issues that we had before the Federal Court last year was whether—

The Chairman: Just give an answer.

Mr. Simon Barker: The answer is that PCBs, according to the federal government, are oil for the purposes of part XVI of the Canada Shipping Act. So in that context we were arguing that the Canada Shipping Act applied. But really, if you're a claimant and you're sitting down after the fact and asking, to use Ms. Torsney's words, what is the best place I can go to get recovery, then you can either go to CEPA or you can go to the Canada Shipping Act. If Mr. Gallaway's amendment is put into the legislation, what the legislation is telling you as a claimant is that if it's oil and if it's a ship involved you go to the Canada Shipping Act. It's a road map type of clause.

Mr. John Herron: I didn't quite understand the answer. I'm sorry, maybe it's just me.

The Chairman: Ms. Torsney, followed by Mr. Lincoln.

Mr. John Herron: If there were PCBs inside the oil, then it's perceived to be oil. But if it were just, God forbid, a tanker load of PCBs—I need a better example than that—then it would be under CEPA?

Mr. Simon Barker: You're correct.

The Chairman: Mr. Herron, Mr. Barker answered your question already.

Mr. John Herron: I missed the answer, I'm sorry. I wanted to make sure I understood it, Mr. Chair.

The Chairman: All right.

Mr. Simon Barker: The answer, for the record, is that the gentleman is correct.

Mr. John Herron: Thank you.

The Chairman: Fine. Thank you.

Ms. Torsney, and Mr. Lincoln.

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Ms. Paddy Torsney: So if Mr. Gallaway's amendment is not passed, if there's an oil spill and somebody goes to CEPA for remedy, can they get access to this international fund?

Mr. Simon Barker: Not if the claim is under CEPA.

Ms. Paddy Torsney: Thank you.

The Chairman: Thank you. Mr. Lincoln.

Mr. Clifford Lincoln: Mr. Chairman, there are obviously two sides to the story. Mr. Barker has one side, and he's very clear about what side he's on, but at the same time there are other people like Mrs. Douglas and others who have different ideas from his. I was going to suggest that even if we've joined treaties such as the 1976 treaty, it doesn't prevent us from expanding the scope of liability against shipowners. That's what we're trying to do in CEPA.

I'd like to ask Mr. Moffet—and he's read page 48 of the government response—whether part 8, the the way it's written now by the drafters of this bill, reflects what the government was trying to do on page 48. If this is the government's response and we're trying to make it so in CEPA, isn't that what we're trying to do?

The Chairman: Mr. Moffet, a brief answer please.

Mr. John Moffet: The government response describes the kind of prevention, preparedness, response and recovery framework that the government wanted to put into CEPA. The main elements of that framework are indeed in part 8 of CEPA. I think the key, though, is the sentence:

...it can build on the specific actions taken to protect the environment contained in other federal Acts such as the Canada Shipping Act...

I think it's a matter of interpretation. Yes, 6.12 describes what will be in part 8 and I think that is what is in part 8. It's:

a legislative framework, including regulatory and non-regulatory approaches, for:

dealing with the environmental aspects of emergencies, and addressing the elements of prevention, preparedness response and recovery.

That's what's in part 8.

The Chairman: Thank you.

Madam Torsney, Madam Carroll, and then the chair will make a brief comment and call the vote.

Madam Torsney.

Ms. Paddy Torsney: Thank you. Certainly lots has been attributed to Ms. Douglas. I'm wondering if Ms. Douglas has any comments following the debate about the benefits or drawbacks of Mr. Gallaway's motion.

The Chairman: Since she's not in the room, a memo that is being read by Mr. Lincoln was written addressing the amendment.

Madam Carroll.

Ms. Aileen Carroll (Barrie—Simcoe—Bradford, Lib.): I'd like to ask the gentleman from Justice one final thing. If the amendment in front of us is passed, does that negate joint and severally liability existing under part 8? It exists now as the bill has been put forward by the government. It now includes a joint and severally liable action. But if this amendment is passed, does it negate that?

Mr. Simon Barker: It doesn't negate it in that it will stay in part 8 for all substances other than oil. The joint and several in part XVI is a strict liability regime focused on the shipowner. So there is not a joint and several concept in that part.

Ms. Aileen Carroll: Right. Thank you.

The Chairman: Thank you.

Are there any further comments or questions? Before calling the vote, I would put forward the following observation.

As in many other difficult situations, what really counts is the significance of words. When everything is said and done, the ultimate effect of the amendment before this committee is that part 8 would not apply to environmental emergencies caused by the discharge of oil. What part 8 attempts to do is to impose an additional duty on those who might cause environmental emergencies. That is what really counts, and it is right in front of you and it is in print:

This Part does not apply to environmental emergencies caused by or otherwise attributable to a discharge or anticipated discharge of oil...

That is what is before us and that is what we are now going to vote on, because we have devoted a good hour to it and it is now time to call the question.

• 1015

Ms. Paddy Torsney: Could I just ask one question?

The Chairman: Yes, Ms. Torsney.

Ms. Paddy Torsney: If this were not to pass, and there were a spill, then someone could still go to the Canada Shipping Act, and they could still get caught up in everything else that's related to CEPA.

The Chairman: The point is that this amendment before us—

Ms. Paddy Torsney: Yes. I just would like to—

The Chairman: —creates an additional duty to what the Canada Shipping Act does. That's what the kernel of the issue is all about.

Are you ready for question?

Mr. Roger Gallaway (Sarnia—Lambton, Lib.): I'd like a recorded vote, Mr. Chairman.

(Amendment negatived: nays 10; yeas 3)

(Clause 194 agreed to)

The Chairman: Now we move on to M-1, which we postponed yesterday. Now Mr. Moffet is ready to proceed.

A voice: No, they want to defer again. It's turning into a political hot potato.

The Chairman: Sorry?

[Editor's Note: Inaudible]

A voice: —

The Chairman: Until next Monday? All right. Then we will defer M-1, M-2, M-3, and M-4, at the request of the parliamentary secretary, and we'll briskly move to Mr. Lincoln's amendment of yesterday, the one that has been circulated.

Ms. Paddy Torsney: I wonder if we are ready to do PIC, clauses 100 to 104?

The Chairman: Yes, we are also ready to do that. But first we'll do Mr. Lincoln's amendment, the one that was dealt with extensively yesterday, which we changed. It is now ready in both languages. It has been redrafted and distributed by the clerk. It's called the new L-15.8.

Ms. Paddy Torsney: Mr. Chair.

The Chairman: Parliamentary secretary.

Ms. Paddy Torsney: It's my understanding that if this were to pass, we would perhaps need to have a definition of “engine”, which is not prepared at this point—

The Chair: Definition of “engine”?

Ms. Paddy Torsney: It is not defined in this part of the bill, and that is of some interest to some members. So I would suggest—

The Chairman: Could we hear the reason that a definition of engine is required?

• 1020

Ms. Paddy Torsney: Because the entire desire for a change in clause 140 is related to different types of technology, some of which do not exist yet.

The Chairman: So engine is engine.

Ms. Paddy Torsney: No, engine is not engine.

The Chairman: Mr. Cameron.

Mr. Duncan Cameron: Thank you, Mr. Chairman.

The term “engine” is defined in clause 149 on page 105 of the bill. However, I should point out that this definition is limited to division 5, which deals with vehicle engine and equipment emissions.

Because the term is defined in a way that's limited to division 5, and we are talking about a different division, it seems to me...well, I guess there are two things. First of all, if a term is not defined in legislation, the normal dictionary definition would apply. However, when a term is defined in one part and not in another, I can't help but think it would be confusing to a judge trying to interpret it later on to see a very specific definition that is quite narrow. Here “engine” is defined as being—

The Chairman: Could you please indicate the page for me.

Mr. Duncan Cameron: Page 105, sir.

The Chairman: Page 105. Which line?

Mr. Duncan Cameron: Line 16.

“Engine” is defined as being a prescribed internal combustion engine. So it's defined as only being within the class of internal combustion engines, whereas conceivably there are types of engines other than internal combustion engines, such as engines that are fuelled by fuel cells and other technologies.

The point I'm trying to make is that because this definition is narrow, I can't help but think it would tend to confuse one later on trying to interpret the word “engine” somewhere else in the bill. My advice is that the better approach would be to keep intact this narrow definition for clause 149, but have another definition when we refer to the term “engine” elsewhere. That would create the greatest legal clarity and certainty.

The Chairman: Thank you.

Mr. Lincoln.

Mr. Clifford Lincoln: I don't often agree with Mr. Cameron, but I do today. I know we are speaking about a different part of the bill, but just for purposes of clarity I think we should really change “engine”.

What I wanted to ask Mr. Cameron is this. You would propose to modify “engine” in division 5, to broaden it so it would fit in with the amended clause 140. Could you tell me if you agree with the thrust of clause 140 as it is?

The Chairman: In a moment, yes. Would you like to intervene before he answers, Ms. Torsney?

Ms. Paddy Torsney: Yes. I was going to suggest that the desire is to work with Mr. Lincoln to make sure it achieves the goal he wants, and to do that we would be prepared to come back on Monday with both a definition and the amendment.

The Chairman: Thank you. That will help. We therefore put aside this amendment.

Could you please turn to the small package, pages 17 and 18. But here we wanted to hear from officials of the Department of Agriculture who have negotiated biotechnology in Cartagena. Wasn't that the gist of the discussion yesterday, when we tackled this item? Am I dreaming or having hallucinations? You don't remember it? There was no reference yesterday to the desirability of consulting officials who are back from Cartagena? Someone said it. I don't remember who.

Mr. Clifford Lincoln: I did. I suggested it for all the export and import stuff, yes.

The Chairman: So this is an item that we could perhaps tackle on Monday, as well.

Mr. Mongrain.

Mr. Steve Mongrain: Mr. Chairman, I heard a comment related to Mr. Lincoln's comment yesterday about the negotiations in Colombia. It was probably our intent to implement those not through the PIC clauses but through clause 115 in the biotechnology part, specifically paragraph 115(1)(a), which essentially indicates that the Governor in Council can make recommendations for purposes of implementing an international agreement, such as the biosafety protocol.

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Mr. Clifford Lincoln: Could I ask Mr. Mongrain a question, Mr. Chairman?

The Chairman: Yes, go ahead.

Mr. Clifford Lincoln: If that is the case, we can deal with PIC without any problems. There's no connection between PIC clauses and the biosafety protocol. It does talk about the import and export of substances. But because of the paragraph you have quoted, does it exclude anything to do with biotechnology?

Mr. Steve Mongrain: No, it does not exclude. You're quite correct, sir.

Mr. Chairman, Mr. Lincoln is quite correct. It doesn't exclude using those clauses. I was only wanting to indicate that when we were drafting the bill, we knew there were going to be negotiations on a biosafety protocol, and that's why we put in paragraph 115(1)(a). It's probably our intent to implement whatever comes out of those negotiations over the next couple of years through that paragraph. But Mr. Lincoln is quite correct that it does not exclude using clauses 100 to 104, I believe it is, related to the import and export.

The Chairman: Perhaps we could ask the clerk to make arrangements for this item, which is a rather important one, to be thrashed out possibly on Monday.

Madam Torsney.

Ms. Paddy Torsney: But that doesn't exclude us from dealing with clauses 101 to 103 now. That's a separate issue. Clauses 101 to 103 are the ones we can do right now, and we have the necessary officials with us.

The Chairman: In reviewing them, I can see that actually they all deal with exports.

Ms. Paddy Torsney: The issues being discussed in Colombia may not be solved even at this point. Nonetheless, this bill will have the opportunity to implement whatever is decided in Cartagena, and we can still have that discussion with them at some point in the future. But clauses 101 to 103 are the pieces of legislation we need with regard to export and the PIC convention, and everybody is here who can deal with PIC, including Mr. Mongrain.

The Chairman: Can anyone tell us whether there is in the room any official from the department who has participated in these negotiations?

Ms. Paddy Torsney: Which negotiations are you referring to, the PIC negotiations?

The Chairman: I'm referring to the ones that took place in Cartagena.

Ms. Paddy Torsney: Mr. Chair, I really don't understand what the problem is.

Mr. Clifford Lincoln: Mr. Chairman—

The Chairman: Mr. Lincoln.

Mr. Clifford Lincoln: —why I brought it up yesterday is that the negotiations in Colombia have to do with biosafety, which is a huge field, but they also cover the whole question of the implications of the biosafety protocol with regard to imports and exports. I wanted to find out in what sense they would impact on these provisions here—in other words, what did Canada propose there—because I understand that we were leading the field in the area of import and export negotiations. This is why I asked Mr. Mongrain whether the parts about biotechnology were exclusive of what goes on here in clauses 101 to 104, and he seemed to say that we talk of substance here and that would include what was discussed in Cartagena.

The Chairman: Thank you.

The big issue last week in Cartagena was the fact that importing countries were taking a position vis-à-vis exporting countries, which includes Canada, to the effect that they did not want to be subjected to a convention that would force them to accept products of biotechnology they would consider not desirable.

• 1030

There is an enormous issue hiding behind these harmless words on page 17. This is why we are trying to get a reading of what has transpired when we go through this particular clause.

Mr. Mongrain, would you like to comment?

Mr. Steve Mongrain: Yes. I will reiterate what I indicated before. There is a clause in the biotechnology part that could be used to implement the Biosafety Protocol to the Convention on Biological Diversity. It was put in there specifically for that reason. But as Mr. Lincoln indicated, because the clauses before the committee now related to PIC relate to substance and are broad enough, they could also be used, depending on what arises out of those negotiations on the biosafety protocol.

Mr. Harvey Lerer (Director General, CEPA Office, Department of the Environment): Mr. Chairman.

The Chairman: Yes, Mr. Lerer.

Mr. Harvey Lerer: Just to follow up on my colleague's comments, in no way are the provisions in clauses 101 through 103 or the clauses on biotechnology limiting in any way to amendments or regulation that would allow Canada to devise a scheme, depending upon what the protocol finally is, that is negotiated on biosafety. The difficulty we have now is there is no protocol. We don't know what shape it will be. But the bill is broad enough that whatever comes out of those negotiations can be done under the biotechnology part or, for that matter, under the import and export amendments you have before you now.

The Chairman: Mr. Lincoln.

Mr. Clifford Lincoln: It looks as if we can deal with it.

The Chairman: You're sure, Mr. Lerer, it is as broad and flexible as that?

Mr. Harvey Lerer: I am sure of what I have said. I see Mr. Moffet nodding as well. My colleague on the legal side is nodding. I'm confident what I've said is correct.

The Chairman: I hope we won't regret it. Would you like to move your amendment, Ms. Torsney?

Ms. Paddy Torsney: I'd be happy to move government amendment 10.8. Do you want to do them one at a time? I need to make a friendly little amendment to G-10.3.

I would just remind members that clauses 101, 102 and 103 are being completely replaced in light of the Prior Informed Consent Convention that was agreed to in the fall after this bill had already been tabled. It focuses on an export notification system that would ensure that countries have prior informed consent of substances that are clearly of concern around the world.

The Chairman: Thank you. Are there any questions or comments? Mr. Laliberte.

Mr. Rick Laliberte: I'm just a little confused. The highlight of this section is export and import of substances, but the whole context of these clauses deals specifically with only export. Where is the import issue of substances here?

• 1035

Ms. Paddy Torsney: If we sign and implement the convention, we also benefit from the clauses. Mr. Cameron also wants to make a comment.

Mr. Duncan Cameron: As I mentioned at a previous meeting, the administrative heading of this part, which appears just before line 35 on page 70, indicates “Export and Import of Substances”. The words “and Import” are misplaced there and should be deleted from the title. Mr. Laliberte is correct that these provisions deal with the export of substances only.

The Chairman: Thank you.

Mr. Laliberte, does that answer your question?

Mr. Rick Laliberte: That extenuates my concern. Where do we deal with the import of substances? I understand that in Cartagena liability was a big question. If substances are imported into our country, is there a liability trail with the biosafety protocol? That's my big concern here on liability.

The Chairman: Mr. Cameron.

Mr. Duncan Cameron: There is a variety of legislative regimes that deal with import into Canada. Clauses 100 to 103 are intended to give us the legislative tools to implement the PIC Convention. As I've mentioned to this committee on previous occasions, the purpose of the PIC Convention is to create an export notification regime. It's appropriate that these clauses are limited to creating an export notification regime.

[Translation]

The Chairman: Go ahead, Ms. Girard Bujold.

Ms. Jocelyne Girard-Bujold (Jonquière, BQ): I'd like Mr. Cameron to explain to us why he wants to overhaul these provisions. Such substantive amendments are unusual. This is the first time that I've seen someone recommending that three clauses be deleted entirely from a bill and completely rewritten. I haven't had time to read everything, but I would like Mr. Moffet to enlighten me.

The Chairman: Could you repeat your question?

Ms. Jocelyne Girard-Bujold: We have here a motion calling for three clauses of the bill to be completely amended. I'd like to know why this motion has been put forward and what these amendments would mean. I fail to see the rationale behind these proposed changes.

[English]

Mr. John Moffet: The bill was drafted before the Prior Informed Consent Convention was fully written. The bill was written in anticipation of that convention, and some assumptions were made about the way the convention would be structured. As it turns out, those assumptions were slightly wrong. They had the main focus of the convention right, but some details of the convention differed from the way the bill was drafted.

These amendments bring the bill directly into line with the convention. For example, the bill was drafted on the assumption that the Prior Informed Consent Convention would essentially talk about two categories of substances. In fact, the convention talks about three categories of substances and has different rules for each of the three categories.

These amendments clearly establish the authority in Canada to create those three categories of substances, and for Canada to act in accordance with the convention, with respect to those three categories.

For that reason, the changes had to be made to the entire clauses. The department couldn't just change a word here and a word there; they had to restructure all the clauses.

• 1040

[Translation]

Ms. Jocelyne Girard Bujold: To which convention are you referring?

[English]

Mr. John Moffet: I'm referring to the Prior Informed Consent Convention. I prepared a memo for the committee that briefly describes the convention, but I also understand there are government officials in the room today who would be prepared to speak about the convention.

[Translation]

Ms. Jocelyne Girard-Bujold: Yes, I'd appreciate that.

[English]

Mr. John Moffet: No. I apologize...

The Chairman: I think it's asking quite a lot at this point.

Mr. John Moffet: I can summarize the convention, if you like. The drafting of the convention essentially was finished late last year, and it has not yet been ratified by the required number of countries, although a large number of countries have indicated that they intend to sign the convention. When it has been ratified, it will create an internationally legally binding framework that will guide the export and import of hazardous chemicals and pesticides. It's important, I think, for the committee to understand that this convention will create a legal framework for what has been, until now, a voluntary framework. It's making legally binding that which has, until now, been followed by most of these countries on a voluntary basis.

The convention, in my view, is fairly straightforward. It requires that exporters obtain the prior informed consent of the proposed importing country's government before exporting substances that are designated in the convention. The convention itself names some of those substances, and then it creates a process by which signatory countries can add additional substances to the list. In other words, it says, here's the core of those substances around which we're going to require prior informed consent, and as international scientific understanding advances, here's the process by which we can add additional substances. That's the gist of the convention, and that is precisely what the proposed amendments will allow Canada to comply with.

The Chairman: Thank you.

[Translation]

Ms. Jocelyne Girard-Bujold: I'm sorry, Mr. Chairman. I'd like to know what the process will be for adding substances to the list. Has a process already been clearly defined?

[English]

The Chairman: Mr. Lerer.

Mr. Harvey Lerer: It is very well defined in that it is essentially a scientific process that is carried out amongst countries as part of the convention and the protocol.

[Translation]

The Chairman: Thank you, Ms. Girard-Bujold.

Ms. Torsney.

[English]

Ms. Paddy Torsney: I have a final comment. Of course, if members are looking at the list, schedule 3 is going to be replaced, because there's a new schedule 3 based on the fact that there are now three different categories.

The Chairman: Thank you.

Ms. Paddy Torsney: That is assuming these pass.

The Chairman: Are we ready for the question?

Mr. Laliberte, briefly please.

Mr. Rick Laliberte: There's a substance definition on page 49 that says it means a “substance other than a living organism”. Does this definition flow through this section as well? And does this Prior Informed Consent Convention deal with biotechnology products, or is this specific substances?

Mr. Steve Mongrain: Mr. Chairman, I can answer that.

The Chairman: Yes, Mr. Mongrain.

Mr. Steve Mongrain: The definition that Mr. Laliberte is referencing on page 49 only applies to substances and activities new to Canada, and it's for the assessment of new substances. We assess new substances under part 5 for toxicity. We assess new living organisms, products of biotechnology, under part 6. That's all that definition of “substance” does on page 49. Otherwise, we use the definition in clause 3, which is very, very broad.

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The Chairman: Are you ready for the question, Mr. Laliberte?

Mr. Rick Laliberte: Yes. I was just trying to backtrack in the bill to where it deals with the importation of substances. That's where I ended up. I believe clause 81 deals with importation and only deals with substances under the definition.

The Chairman: Mr. Mongrain.

Mr. Steve Mongrain: Actually, if you look at clause 93, there's a broad regulatory authority to control or prohibit the import of quantities or concentrations of substances. If you look at page 62, paragraphs 93(1)(l), (m), and (n), it's very broad.

A second point is that by entering into the PIC Convention, Canada will be informed of countries that are desiring to export PIC substances to Canada, and we have to provide our consent for that import.

The Chairman: Mr. Laliberte, does that answer your question?

Mr. Rick Laliberte: That's clearing up the trail a bit. I had my concern with the broad title, but I think I understood it's going to be changed.

The Chairman: Madam Torsney.

Ms. Paddy Torsney: Certainly there's an opportunity for members to indicate at this point that they would like the title changed, and that's not a problem. Otherwise it could be done administratively.

The Chairman: Yes.

Ms. Paddy Torsney: But certainly in my book, I've already crossed out “and Imports”.

The Chairman: Mr. Laliberte.

Mr. Rick Laliberte: Yes, it's just that before we take “Imports” out of this title, maybe I'll ask Mr. Moffet a question. Is there something missing here? Was it half-finished; somebody didn't do the complete work here? The title had a well-intentioned purpose, but is there something missing? I'm not thoroughly—

The Chairman: Perhaps your question should be why the title was different from what is proposed now. Maybe Madam Torsney would like to answer that.

Ms. Paddy Torsney: Just to refer back, this is something that was written in advance of something being signed. The bill was written in advance of the PIC Convention coming into existence. So these amendments govern exports, but they also govern the process by which things are therefore imported. If they export from one, they import to the other, and people who have signed and ratified the agreement, when it comes into force, will benefit from its existence when imports are destined for their country too.

So it's an indirect benefit. If it makes it clearer for you to say “exports”, Mr. Chair, through you to Mr. Laliberte, fine. We can leave that one for discussion later, if you like, and just move on with the vote on clause 101. You can leave the title for discussion later.

[Translation]

The Chairman: Thank you.

Ms. Girard-Bujold.

Ms. Jocelyne Girard-Bujold: Mr. Chairman, what connection do these clauses have with clause 185 in part 8 entitled "Control of movement of hazardous waste and hazardous recyclable material and of prescribed non-hazardous waste for final disposal"?

What connection is there between the control process set out in these three clauses and the provisions of clause 185? Is something being taken away from clause 185? What will this ultimately mean?

The Chairman: We have already passed this clause.

Ms. Jocelyne Girard-Bujold: I realize that, but what are the implications?

[English]

The Chairman: Madam Torsney.

Ms. Paddy Torsney: Mr. Chair, it's waste versus substances. Clause 185 is waste, and clauses 101 to 103 will be substances. There is generally broad support for the PIC Convention, if that helps anybody.

The Chairman: Does that answer your question, Madame Girard-Bujold?

• 1050

[Translation]

Ms. Jocelyne Girard-Bujold: Mr. Chairman, this control would be exercised pursuant to clauses 101 to 103. You're telling me that we have already passed clause 185, but I'm wondering what effect these new provisions will have on clause 185. Ms. Torsney has said that these provisions are about waste, whereas the others pertain to substances. Will the additional control provisions set out in clause 101 affect clause 185? My question may be somewhat far-fetched, but I was wondering about this.

[English]

The Chairman: No, it's not a silly question. Madam Torsney, would you like to answer it?

Ms. Paddy Torsney: Maybe we could consider all three clauses at the same time and that would solve some of the anxiety that perhaps some members have. But Mr. Cameron, when we presented these clauses earlier, had given a fairly succinct description of how this entire section would work. Perhaps we could ask him to do this again so that members who may not have had the full benefit of reflection will understand how the section works. If they refer also to schedule 3, the amended schedule 3 that is also in the small book, it might help guide their discussions.

The Chairman: It would be very helpful to expand the presentation to clauses 101, 102 and 103, and maybe the schedule.

Ms. Carroll, do you want to comment? No. Mr. Cameron.

Mr. Duncan Cameron: Mr. Chairman, thank you. Before I get to PIC, let me say that clause 185, which deals with waste, is intended to allow us to implement the Basel Convention, which is a different regime. It deals with waste, not substances.

I think Mr. Moffet has done a pretty good job of talking about this. PIC is notification of substances. It deals with three types of substances; prohibited substances, PIC list substances, and substances that are severely restricted. Clause 101 to clause 103 allow us to implement PIC along those lines. I think the explanation has been given.

(On clause 101—List of Substances Requiring Export Notification)

The Chairman: All right. You have before you right now the amendment on page 17 on clause 101.

Madame Girard-Bujold.

[Translation]

Ms. Jocelyne Girard-Bujold: Mr. Chairman, I realize that. I'm simply curious about the connection between the two.

I'd also like to return for a moment to clause 3 in which the word "substance" is defined, but not the word "waste". Shouldn't we give some thought to including a definition of "waste" in clause 3? I'm confused, Mr. Chairman.

The Chairman: You've made yourself quite clear. Mr. Cameron will repeat what he said earlier about clause 101.

Ms. Jocelyne Girard-Bujold: Fine.

[English]

The Chairman: Would you please specifically indicate to Madame Girard-Bujold what is the intent of clause 101?

Mr. Duncan Cameron: Certainly. Again, I must say that the regime dealing with wastes, which is dealt with in another part of the bill, is a separate regime. Clauses 101 to 103 deal with the notification requirements for the export of substances. Clause 101 has four parts to it. Subclause 101(1) creates a prohibition. It indicates that no person shall export a substance unless they provide notice of the substance in accordance with the regulations. Those regulations are provided for in clause 102.

Subclause 101(2) deals with the first category of the three types of substances that Mr. Moffet referred to earlier. Just to repeat, the three classes of substances provided for under the PIC Convention are those substances the international community has listed. Those are the ones that are referred to generically as being on the PIC list. You will find those substances listed in part 2 of schedule 3. PIC also deals with two other categories of substances. First is substances that are prohibited in a signatory country. You will find those substances listed in part 1 of schedule 3. Also, the third category are those substances that are severely restricted within a signatory country. Those substances are listed in part 3 of schedule 3.

• 1055

[Translation]

The Chairman: As Mr. Cameron said, this applies only to substances.

Ms. Jocelyne Girard-Bujold: That's fine, Mr. Chairman. Thank you.

[English]

(Amendment agreed to—See Minutes of Proceedings)

(Clause 101 as amended agreed to)

(On clause 102—Conditions governing export of substances)

Ms. Paddy Torsney: I propose government amendment G-10.9,

[Translation]

on page 20 of the French version and on page 19 of the English version.

[English]

I'd like to direct members' attention to the second line of the underlined product, which states that “the Governor in Council may, on the recommendation of the Minister or the Ministers”. We would prefer that it just say “of the Ministers”. We don't need “the Minister or the Ministers”. We can go straight to “of the Ministers”. It's just unnecessary. It's also reflected in subclause 102(2). We would prefer “recommendation of the Ministers”. It's just unnecessary to have “Minister or the Ministers”.

The Chairman: I agree with you, it is unnecessary. The question is, how do these amendments get drafted? There must have been an idea originally to have a minister or ministers, which is now being replaced by another idea. Can an explanation be given as to why this kind of change happens so suddenly?

Ms. Paddy Torsney: Well, there's probably no great explanation, but clearly we have two ministers who sign the bill, so it should be ministers. And we preferred that we have the changes made. But I know where you're coming from. There's no great explanation.

The Chairman: The parliamentary secretary has moved an amendment to the amendment, a subamendment, that “the Minister or” be deleted in both subclauses 102(1) and 102(2). Is that correct? Are there any questions or comments?

(Subamendment agreed to)

(Amendment agreed to—See Minutes of Proceedings)

(Clause 102 as amended agreed to)

(On clause 103—Publication of List of Substances Authorities)

Ms. Paddy Torsney: Mr. Chair, I'd like to propose government amendment G-10.10 on page 21 in English in the small package, and on page 22 en français. That's all. I hope you'll support it.

The Chairman: Are there any questions?

Mr. Laliberte.

Mr. Rick Laliberte: Clause 103 deals specifically with the publication of the exporter and these products that are in schedule 3. I'm just trying to wrap my mind around it again.

The PIC agreement is an international agreement among nations, but we seem to assume that we're a mere exporter. What if there are imports of these substances that are on the PIC list? If there were an importer who wanted to bring it into Canada, wouldn't we want to subject them to publishing that as well?

The Chairman: Mr. Lerer.

Mr. Harvey Lerer: There are a couple of things. If we are an importer, we benefit from the provisions of the convention. The other thing is that our regime of notification and assessment of substances, both chemical and animate, is covered in the relevant sections of the bill; that is that notification assessment is required for anybody who wants to bring any substance into Canada.

The Chairman: Thank you. Mr. Laliberte, is that adequate? Speak quickly, because there is another committee that wants to use this room.

Mr. Rick Laliberte: My highlight was that schedule 3 has a specific list of an international agreement. If we were going to bring them into our country, why wouldn't we be able to publish this as part of the public's right to know?

• 1100

The Chairman: Mr. Lerer.

Mr. Rick Laliberte: If there is transboundary activity of these substances, why are we assuming that we're the only exporters in the world? If something is going to enter this country, why shouldn't the public have a right to know it's coming into this country? Why are we assuming an exporter role only? We're importers as well. There are very highly developed countries in the world that do use Canada as a place of business.

The Chairman: Ms. Torsney.

Ms. Paddy Torsney: Just to clarify, this deals with the export of substances, that's all. There are other parts of the bill that deal with the import of substances. Furthermore, this is providing a notification that somebody in Canada is intending to export a substance that is on that list and where they are exporting it. I would think some people may want to have input on that. If you're advocating that we don't publish, I'm a little surprised.

The Chairman: Mr. Lerer.

Mr. Harvey Lerer: Mr. Chairman, some time ago the committee agreed to an amendment with regard to the environmental registry, which said:

available by the Minister, and shall also include, subject to the Access to Information Act and the Privacy Act,

(a) notices of objection and of any approval granted under this Act;

As a beneficiary of the Prior Informed Consent Convention, where that requires explicit approval by the government before you can import, this would be the clause that would ensure that it would be on the environmental registry.

The Chairman: Thank you, Mr. Lerer.

Mr. Rick Laliberte: That was my question. I was in no way excluding the need to publish. I wanted to make sure that if there's something entering our country, the public has a right to know about it and there would be access to it.

The Chairman: Thank you, Mr. Laliberte. That's very helpful.

(Amendment agreed to—See Minutes of Proceedings)

(Clause 103 as amended agreed to)

Ms. Paddy Torsney: Before you close the meeting, can I just note for members that on page 73 of the bill, the next part is currently titled “Biotechnology”. I think when we had the debate about this, many people expressed a desire that it in fact say “Animate Products of Biotechnology”, and there is a mechanism where we could agree to that. That is exactly reflective of the debate at the time. Do you want me to do that now or later?

The Chairman: You can do it at the next meeting.

Thank you very much for your cooperation. If there is consensus following consultations by the clerk, we will meet on Monday at 3.30 p.m.

This meeting is adjourned.