ENSU Committee Meeting

STANDING COMMITTEE ON ENVIRONMENT AND SUSTAINABLE DEVELOPMENT

COMITÉ PERMANENT DE L'ENVIRONNEMENT ET DU DÉVELOPPEMENT DURABLE

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, March 10, 1999

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[Translation]

The Chairman (Hon. Charles Caccia (Davenport, Lib.)): Good morning, ladies and gentlemen. We will continue our study of Bill C-32, an Act respecting pollution prevention and the protection of the environment and human health in order to contribute to sustainable development.

[English]

There are motions by various members of this committee today. Without naming them one by one, I'm just warning that there are a number of motions coming up, so that you will be prepared spiritually and otherwise for certain amendments. I'm not saying all of you, I'm just saying some. The word is not coming down from the mountain.

[Translation]

Ms. Paddy Torsney (Burlington, Lib.): We have a problem, there is no English translation.

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[English]

The Chairman: Whether there is translation or not, these are just friendly announcements that there are so many people involved in today's potential amendments that I'm asking you to be emotionally and intellectually ready for your turn, because it may come up in the next two hours. That's all.

Can we proceed with both channels?

Ms. Paddy Torsney: We're not getting any sound. There's only French or there's nothing. It's from there that there's a problem. There's no sound.

The Chairman: Mr. Bouchard has taken over the radio waves.

Mr. Gar Knutson (Elgin—Middlesex—London, Lib.): I think number one is working over here.

You're asking why we're doing this, aren't you?

An hon. member: Paddy just wants another vote.

Mr. Bill Gilmour (Nanaimo—Alberni, Ref.): We've just passed the bill.

The Chairman: Is it possible to proceed now? Is the sound coming through for everybody?

Ms. Paddy Torsney: No, it's not.

The Chairman: It may well be that only some sections of the table are not. Perhaps the Liberals should move to that side, and then we can proceed.

The technician is already on the way. It's only a matter of a few minutes.

If you wish to make any community announcements, feel free.

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The Chairman: We are ready now to conclude with clause 2. Mr. Laliberte had the floor when we adjourned yesterday.

Mr. Rick Laliberte (Churchill River, NDP): Before we carry on, do we have a vote at 4.30?

The Chairman: We don't know the time. We know that at some time the bell will ring, but we don't know when.

Mr. Rick Laliberte: Okay.

Yesterday we were following through with a motion to amend, and a clause was deleted. At the time I had considered moving an amendment that would have brought back some context of what had been deleted, but at this time I will withdraw the motion and will not move it at all.

The Chairman: Fine. Thank you, Mr. Laliberte.

This will be the last amendment to clause 2. This is your last chance to have a kick at the cat in clause 2. Are there any further comments on clause 2?

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(Clause 2 as amended agreed to)

The Chairman: Now if we can clean up some items, as people are here today who perhaps will not be here tomorrow, you are invited to turn to page 375 in the name of Mr. Lincoln, clause 330. Is someone willing to move that particular amendment?

Mr. Joe Jordan (Leeds—Grenville, Lib.): I so move.

The Chairman: Mr. Jordan has moved it. Would Mr. Lincoln like to explain it?

Mr. Clifford Lincoln (Lac-Saint-Louis, Lib.): Mr. Chairman, subclause 330(3), as can be seen—

[Translation]

Ms. Jocelyne Girard-Bujold (Jonquière, BQ): What clause is this?

The Chairman: This is clause 330. The proposed amendment is on page 375.

[English]

Mr. Clifford Lincoln: The gist of this clause is to be able to enshrine in this legislation a different treatment for different classes of people touched by regulations. I would like to refer members to an opinion that was produced by Mrs. Hébert on behalf of the committee, which was sent to us quite a while ago. Because it would be hard for people to find it readily, I would like to read a few of the comments she made.

Clause 330(3)...would allow regulations made under the new Act to apply only to selected parts of Canada, to selected persons or classes of persons, and to selected activities or classes of activities. This...“selective” regulatory authority is, of course, in addition to the various exemptions and waivers that could be granted under specified sections of the new Act.

It should also be noted that the exercise of this regulatory authority would not be subject to any restrictions or conditions. It is thus conceivable that regulations could be made on a selective basis for reasons totally unrelated to the environment and human health.

The unrestricted power under clause 330(3) could also be used to exclude from the application of the regulations those industries or members of a given industry that were prepared to observe a regulated standard on a voluntary basis. Clause 330(3) could thus achieve what the highly controversial but now defunct Regulatory Efficiency Act (Bill C-62) sought to do. However, there would no built-in statutory safeguards regarding the “unregulated” parties under the new CEPA, as would have been the case under Bill C-62, which at least would have required the development and approval of compliance plans and subsequent compliance monitoring.

Clause 330(2) could also be used to exclude selected jurisdictions within Canada from the application of the new CEPA regulations, irrespective of whether or not their own environmental standards were comparable to the CEPA standards. This could undermine the need for and use of equivalency agreements under clause 10 of the Act. It could also lead to a checkerboard approach to protecting the Canadian environment.

In this connection, Mr. Chairman, because this is a very important issue, I would like to quote from the report on Bill C-62 at the time prepared for the Standing Joint Committee for Regulatory Scrutiny. This report talks about Bill C-62 and says:

The scheme proposed in Bill C-62 is not compatible with the Rule of Law. It would put in place a system whereby governmental authorities have an uncontrolled and unreviewable discretion to set aside the law in particular instances and substitute for it a private agreement....

They were talking about the private agreements then. They say, under equality and fairness:

If anything, the Bill consecrates “inequality” as an operating rule of government. It contemplates a system under which there may eventually be as many different rules as there were persons initially subject to a particular regulation. One person may be dispensed from the application of five sections of a regulation, a second may be dispensed from the application of the whole regulation, while a third person remains subject to the regulation because he was unable to persuade public officials to grant him any dispensation.

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I think the fundamental rule of law is if you have a regulation that is issued by a government, it must apply to all without distinction of activity or sector. If it touches a particular activity, it should touch all people involved in that particular activity. If it touches one class of persons, it should cover all these people.

Also, I think the point made by Ms. Hébert regarding equivalence is really important. I think I mentioned before that I fought very hard for equivalence when I was in Quebec because I felt if a provincial regulation could meet an equivalent standard and it could be proven it was an equivalent standard, that regulation should be given equivalence under CEPA.

This is what we consecrated in this law. This means equivalence would be prejudiced by the application of this clause. You could have regulations made for one sector of activity in the case of any sector, on a selective basis. The whole principle of it does not comply with the basic principles of equity and fairness.

I would suggest we delete subclause 330(3) from the bill. I think it's a departure and I don't think it's justified.

The Chairman: Mr. Lincoln, could you summarize for the committee what the net effect of deleting lines 17 to 24 would be, as you just did in your last few words?

Mr. Clifford Lincoln: If these lines were deleted, what happens today with regulations would still apply. In other words, if a regulation is issued by the government it applies to all the various parties it is designed to cover. If it covered a particular sector of activity, let's say pulp and paper, then all people affected by this regulation within that industry would be covered.

The Chairman: So this is to avoid specific exemptions.

Mr. Clifford Lincoln: It's to avoid selective exemptions.

The Chairman: All right. Thank you, Mr. Lincoln.

Are there any questions or comments on this amendment? Madame Girard-Bujold.

[Translation]

Ms. Jocelyne Girard-Bujold: I am wondering about Mr. Lincoln's amendment that proposes to eliminate this provision. If we were to agree to it, would regulations applicable to Quebec stop to apply in the province and would there be an equivalence in the federal legislation?

Mr. Clifford Lincoln: With your permission, Mr. Chairman, I can answer Ms. Girard-Bujold's question.

When I was the Quebec minister of the Environment, I fought for that principle because an equivalence is needed.

Ms. Jocelyne Girard-Bujold: Okay.

Mr. Clifford Lincoln: We fought very hard for the equivalence because we believed that if we had applicable regulations which were equivalent to those that were to be inserted in the 1988 Act, we ought to remove it from the Act and apply the equivalence. This principle was entrenched in the first CEPA in 1988 and we find it again here. I can find the section and show it to you, if you want. The equivalence is already here.

This clause means that if there is already an equivalence for the provinces, we do not touch it. The federal government would today be entitled to say: Listen, we are going to make regulations that will apply to Quebec, but not to Ontario. We will make regulations that will apply to a class of individuals or to a given industry, like the pulp and paper industry, and then apply it to some paper mills but not to others. This is the issue of the fundamental fairness of the rule of law.

The Chairman: Thank you.

[English]

Madam Torsney, please.

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Ms. Paddy Torsney: Thank you.

I would not be in favour of this amendment. I think the government needs to have the flexibility to attack a problem in certain areas faster than in others.

I think Mr. Mongrain is prepared to take us through some examples where you would want the opportunity and the flexibility to perhaps go after one set of paper mills more aggressively than others. Mr. Mongrain.

The Chairman: Mr. Mongrain, followed by Mr. Herron.

Mr. Steve Mongrain (Representative, Canadian Environmental Protection Act Office, Environment Canada): Thank you, Mr. Chairman.

I'm going to take a step back to some of the history behind the clauses Mr. Lincoln wishes to amend.

When we were drafting Bill C-74 in late 1996, it was pointed out to us by our Department of Justice lawyers at the time that we would have a hard time regulating under the sections on international air and international water. If you recall those sections, they give the minister, through the Governor in Council, the authority to regulate Canadian sources of air pollution or water pollution that have an impact in another country. It only provides that authority if the government responsible for the area in which the source is located is either unwilling or unable to act.

We could take a hypothetical example. I don't want to pick on a town, so let's say southwestern Ontario—is Mr. Gallaway here?—is a source of pollution that is impacting upon Michigan. The United States complains to the federal government about that. Under the scheme in the existing CEPA and in Bill C-32, the federal government would consult with the Ontario government. If the Ontario government were either unwilling or unable to take action to correct the source of the pollution, our minister could propose regulations for that source.

We wouldn't want to have the regulation apply to all sources in Canada, because the problem is only located in a specific geographic area. So this flexibility was provided to enable this authority to be used. That was the intent in 1996 when we were drafting Bill C-74.

The Chairman: Thank you.

Mr. Herron.

Mr. John Herron (Fundy—Royal, PC): Mr. Mongrain's comments make sense to me. Given how vast the country is, we are not a cookie-cutter country and there may be different solutions for different problems in different regions. We wouldn't want to limit the flexibility of different provinces, regions, or communities to be able to use different solutions.

[Translation]

The Chairman: Madame Girard-Bujold.

Ms. Jocelyne Girard-Bujold: What Mr. Mongrain just said means that the federal government could veto any provincial decisions at these three levels. And according to Mr. Lincoln, there would be no changes to agreements made with the provinces. Therefore, I simply see no reason why we should add these provisions to the Bill.

The Chairman: Mr. Mongrain.

Mr. Steve Mongrain: This is not about a veto power.

[English]

it's an example of federal-provincial cooperation. If the government where the pollution source is located is unable or for some reason unwilling to address pollution that affects another country—in this case it would be the United States—for whatever reason, this just provides the federal government with the authority to step in if there's a gap.

[Translation]

Ms. Jocelyne Girard-Bujold: Mr. Chairman, we already have international agreements and interprovincial agreements to deal with these events. I cannot see the relevance of adding these provisions. What more can the Government of Canada get from them? To me, this is just interference. They add nothing.

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Mr. Steve Mongrain: The authority is there just in case a province would not move to deal with an environmental problem.

[English]

If it's a problem in British Columbia, we wouldn't want to regulate in Quebec as well.

[Translation]

Ms. Jocelyne Girard-Bujold: The authority exists in the present Act. We already have agreements and, as Mr. Lincoln mentioned, there is the equivalence agreement. Why do we have to repeat that?

[English]

Mr. Steve Mongrain: The power for international air is in the existing act. However, we have a gap in our regulation-making authority that was pointed out to us when we were drafting Bill C-74. That's why we've put subclause (3) into clause 330.

The Chairman: Thank you.

Mr. Laliberte, followed by Mr. Lincoln.

Mr. Rick Laliberte: When it comes to regulations, you're quick to remember all of our thoughts on enforcement. We do have a major enforcement problem in this country already. It has been alluded to time and time again. When you start checkerboarding your regulations, as Mr. Lincoln is in highlighting this through our researchers' perspective, I believe it's there. I think we could be creating a loophole here. People could be stepping and tiptoeing through the country. It depends on the regulators, it depends on the interpretation, and also on the enforcement ability of Environment Canada.

I just think this piece of legislation should be embodied with the powers to control and protect our environment throughout the country. If you're alluding to harmonization agreements, if that's a specific concern, then there's nothing applicable in paragraphs (a), (b), and (c) to deal with those. That's the problem.

The Chairman: Can we have a brief answer, please?

Mr. Steve Mongrain: Subclause (3) doesn't take anything away. Our intent is not for a checkerboard. It applies when there's a local problem that needs a local solution. It probably will happen very rarely, but we want to have that flexibility for that situation, so that we're not using a tool that is overly broad and applies to the whole country when it's a very specific and localized problem. That won't be the general practice.

Maybe my colleague from the Department of Justice wants to add to that.

Mr. Duncan Cameron (Legal Counsel, Department of the Environment): If I may, Mr. Chairman, since the issue of enforcement was raised, I think it's a very valid point to emphasize the utility of having this flexibility. Without being able to tailor the regulations to the environmental problem on a region-by-region basis, we would essentially have in place national regulations that may have no application in certain regions of the country, because the industry that's being regulated is not present in those regions, or it's not present in a way that affects the environment to the same degree.

Mr. Steve Mongrain: With respect to international air.

Mr. Duncan Cameron: Whether it's international air or some other type of regulation, what you would end up having is enforcement activities that are on the books. The regulations would be on the books and they would have to be enforced, but the subject matter being enforced may not be present. It would be a moot, almost academic exercise. That would take up more enforcement resources, and it would be less streamlined to the enforcement issue that Mr. Laliberte raised.

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The Chairman: Thank you, Mr. Cameron.

Mr. Lincoln, followed by Madam Kraft Sloan.

Mr. Clifford Lincoln: Frankly, with due respect to Mr. Mongrain and Mr. Cameron, I think they are playing very loosely with this thing, and I think it's a very serious question.

First of all, I question why it should be in the general powers. If it's something specific to international air or international water pollution, as Mr. Mongrain suggests, why not have it put in under international air and water?

As for this idea of saying something in British Columbia doesn't apply in Quebec, I'll remind Mr. Mongrain and Mr. Cameron that this says: “A regulation under this Act may be made applicable... (b) in respect of any person or class of persons;” —so it's not just provinces, it refers to individuals—“and (c) in respect of any activity or class of activities.”

Certainly in the report prepared by Mr. Bernier for the joint standing committee, he certainly takes a very different tack, and so does Mrs. Hébert on this issue. He says that to describe such a system of selective regulation as one that respects the principle of equality before the law strains credulity. He sort of says that if you have a regulation, it has to apply to all persons equally. If it's within an activity, it has to apply to all the people in that activity. This has been the basic principle under CEPA 88, and it has been the basic principle of all our instruments of law.

Furthermore, they haven't addressed the question that Mrs. Hébert raises. She compares what we're trying to do here to Bill C-62. She says:

...there would be no built-in statutory safeguards regarding the “unregulated” parties under the new CEPA, as would have been the case under Bill C-62, which at least would have required the development and approval of compliance plans and subsequent compliance monitoring.

Bill C-62 was this famous regulatory efficiency act, under which they were going to regulate some people and let some people....

When you read any text of law, it's okay when Mr. Mongrain gives us the nice easy examples and we all agree. But what happens to abuse of this power? This is a huge power, whereby you can make selective regulations “in respect of any person or class of persons” and “in respect of any activity or class of activities”. What happens if the person making that regulation happens to be wrong? It then doesn't cover everybody equally. It seems to me that you don't find this in many of our statutes. I wonder if Mr. Cameron could tell me whether this does appear in many others. I don't know which ones it appears in, but it would be interesting to know in how many it appears, and whether this is now new mantra for the Government of Canada. I would also like to ask Mrs. Hébert to speak on it, because she wrote that opinion, after all.

The Chairman: Thank you.

Madame Hébert, briefly.

Ms. Monique Hébert (Committee Researcher): What struck me about this particular clause is its sweeping nature, Mr. Chairman. It's not limited to specific instances under part 5 or part 6 or part 8 of the bill; it would apply across the board. This is basically the way I saw it: Parliament is signing a blank cheque for the Governor in Council to apply regulations as it sees fit.

I think that if one were to use this power, it could be used, for instance, to allow voluntary initiatives to be undertaken by those members of a particular industrial sector who have a good record. They could be allowed to go the voluntary route, whereas those who have a bad record would be subjected to the regulation.

It may well be that it is the intention of the government to use this power under the very limited circumstances described by Mr. Mongrain. However, the way the provisions are currently drafted, it is basically wide open, and one doesn't know how that power will be utilized in the years to come. That is my concern, particularly since the exercise of this power isn't linked in any way to environmental considerations. It's just a very bald provision that certain regulations could be drafted for certain industrial groups or certain parts of the country.

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There are no safeguards built into the provision to ensure that the use of this power is done in accordance with Parliament's understanding of the way these powers should be exercised. It's a very bald authority that's being granted here, with no parliamentary oversight.

The Chairman: Thank you.

Mr. Mongrain, briefly please.

Mr. Steve Mongrain: I was going to say something about bald, but I'll refrain.

The Chairman: He's bald, and we all know that.

Mr. Steve Mongrain: The minister always has the option to recommend or not recommend regulations to the Governor in Council. The minister also has the option to employ non-binding instruments or pollution prevention planning. CEPA is a very broad enabling authority, but the minister is accountable to Parliament—there's a safeguard there—just as the minister and the Governor in Council are accountable to the Canadian public. Sure, this could be used very broadly, but many provisions in CEPA are very broad.

Mr. Clifford Lincoln: Then, Mr. Mongrain, maybe the next question is why you need this additional one if you have all these broad powers already. It gives you even more powers. Where do we stop with this stuff?

You say the minister is responsible to Parliament, is responsible to the Governor in Council. Of course. So are any ministers. But so was Bill C-62. It was responsible to Parliament and the Governor in Council, but we found that it was completely unacceptable, so we fought very hard, until, thank goodness, the government pulled it off the table. It was consecrating two systems for two different sets of people. The good guys were exempted from regulations because they could produce a compliance plan. The little guy who didn't have the power to do that was regulated.

This is just the same as what you want to do here, because you give the right to the Governor in Council to produce regulations “in respect of any activity or class of activities” or “in respect of any person or class of persons”. It's far beyond the norm.

I would like to ask Mr. Cameron how many statutes of ours this clause appears in.

The Chairman: Mr. Cameron, are you in a position to answer?

Mr. Duncan Cameron: No, sir, I'm not in a position to answer at this time.

The Chairman: Thank you.

May I draw the attention of the members of the committee to one of the instruments that has been available to each member of this committee since the very beginning of our work? It is the legislative summary prepared by Sonya Dakers, Kristen Douglas, and Monique Hébert. I'm sure you have it in your file. It is dated April 21, 1998, and it is an examination of Bill C-32. In that document, on page 78, in relation to this clause, the authors wrote:

Subclause 330(2) could also be used to exclude selected jurisdictions within Canada from the application of the new CEPA regulations, irrespective of whether or not their own environmental standards were comparable to the CEPA standards.

The unrestricted power under clause 330(3) could also be used to exclude from the application of the regulations....

Members are perfectly within their rights to make whatever use of this opinion they wish. All I'm doing is drawing to their attention that they have available to them this particular document, for their use on specifically complex issues such as this one.

At this stage, I would like to come quickly to a conclusion here, so I'll entertain some very brief interventions. Mrs. Kraft Sloan and Mr. Gilmour.

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

A number of the points I wanted to raise have already been raised.

There are no qualifiers in this. It doesn't say anything about when a province or an area is unwilling or unable to take action, so obviously the flexibility is a flexibility that can go both ways. It is very selective. It's not just to provincial governments. It talks about “persons or class of persons” and “activity or class of activities”. In this, it is very similar to Bill C-62, the Regulatory Efficiency Act. There was a coalition of environmental, labour, and health groups that lobbied the government vociferously against Bill C-62, the Regulatory Efficiency Act, for these very same concerns.

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Small business was against this act because it put them at risk of not having the kinds of resources that were required to negotiate separate regulatory regimes. It was a new paradigm, as some people suggested, of regulation-making in this country, and I'm very concerned about it being in this bill.

If it's in this bill for specific reasons, it needs to have qualifiers, and it does not have those qualifiers.

The Chairman: Thank you.

Mr. Gilmour.

Mr. Bill Gilmour: Thank you, Mr. Chairman.

Mr. Moffet, I'd appreciate your reading on this. Do you see this as broad and sweeping powers, or do you see them as reasonable powers within the bill?

The Chairman: Mr. Moffet.

Mr. John Moffet (Committee Researcher): I'm not going to be brief.

I find this to be an extremely difficult issue. To answer your question directly, yes, I find this provision very broad. I agree that it is open to the potential for abuse that was described by Mr. Lincoln and Ms. Hébert's memo.

On the other hand, I see some very legitimate reasons as to why the federal government would want to have the authority to regulate selectively. Mr. Mongrain has provided a couple of good examples: the international air and international water pollution provisions. Those provisions are explicitly set up to allow the federal government to step in where there is an international air or international water pollution issue that a province is either unwilling or unable to address. So the federal government needs to have the power to step in and address that specific issue in that specific place. That's one reason why we would want to have selective regulation.

Another reason is perhaps even more complex. In an ideal world, all environmental regulations, in my view, would be focused on the environmental conditions, the ambient air quality, the ambient water quality, if you will. We can't always do that, though. Let me give you an example. You have a factory emitting a substance in downtown Toronto. Dozens of other factories are emitting the same substance. How do we know what this factory is contributing versus that factory? We don't. So in many cases it's very difficult to establish that kind of regulation.

So what the government does is it regulates on the basis of the kind of technology that must be used or the level of emissions that can come out of the individual factory. That's the second-best kind of regulation, but in many cases it's the only kind of regulation. Does it make sense—and this is a value judgment you have to make—for the government to have to impose that kind of regulation on all factories emitting that substance in Canada, regardless of whether they're located in downtown Toronto or some remote part of northern Ontario where there's only one of those factories? The emission of that level or even double that level would pose no threat to the environment or to human health because the threat is posed by the cumulative impact of all the factories in downtown Toronto.

So it's an issue that the federal government wants to regulate. It's a toxic substance.

In my view, it would make sense for the federal government to be able to intervene and say that they're imposing this regulation on this area for this reason. Those are a couple of reasons why I think the government should have this kind of authority.

On the other hand, I find the argument that the way the authority is granted here is very broad and it's potentially open to abuse.

I'm wondering about an unsolicited proposal. Would the committee be willing to take a little time and figure out whether there is a way to re-craft these provisions to achieve the government's objectives while providing the kinds of safeguards that Mr. Lincoln and Mrs. Kraft Sloan are understandably looking for?

The Chairman: Thank you.

We have Madam Kraft Sloan, Ms. Torsney, and Mr. Lincoln.

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Mrs. Karen Kraft Sloan: I would echo Mr. Moffet's concerns and Madame Hébert's concerns. I agree that having selective regulation-making powers is a good idea; however, they have to be qualified. In consideration of the way this clause currently exists, and what the Treasury Board guidelines say about regulation-making, I'm afraid that the loophole opportunity is going to be left wide open for abuse. In order for this clause to be effective in the way it's intended, it needs some qualifiers on it.

The Chairman: Thank you.

Madam Torsney.

Ms. Paddy Torsney: Thank you.

Just in keeping with Mr. Moffet's example, it's highly possible that we would want to reduce the emission of whatever the substance is from this factory right across the country. The regulation stands for the whole country, but the first point of need is in Toronto. It eventually will go after all the other ones in terms of enforcement and applying that regulation in his example.

Secondly, regulations are published. They're open. They're transparent to the public.

Thirdly, there is a check and balance. The minister and the House of Commons is the check and balance. The public can ensure our accountability on the application of this provision.

Finally, it all boils down to whether your cup is half full or half empty. In this case it could be a very valuable tool to achieve some of the objectives the committee has before it.

The Chairman: Thank you, Ms. Torsney.

Ms. Carroll.

Ms. Aileen Carroll (Barrie—Simcoe—Bradford, Lib.): Mr. Moffet has made a reasonable request. I'm wondering if the government would be willing to take a look at what he has suggested and see if they could come back to us some time next week.

The Chairman: I have to say something.

Ms. Aileen Carroll: Sorry, through the chair....

The Chairman: Mr. Lincoln.

Mr. Clifford Lincoln: First of all, the paramount thing is what we value more. Is it the question of equality of rights under the law, or practicality in regard to a statute? That is the key question here.

Secondly, if we look at the examples Mr. Mongrain has given of air pollution and water pollution, you should look at clause 167 and clause 176. You're going to find that the minister has all the power he needs there. Under clause 167 it says:

The Governor in Council may, on the recommendation of the Minister, make regulations with respect to a substance released from a source in Canada....

You'll find the wording under “water pollution”, so surely that is enough.

Thirdly, in regard to Mr. Moffet's remarks about one plant in Toronto creating more pollution than the other, so we can confine ourselves to technology, I would remind Mr. Moffet of what happened in the acid rain debate. Mr. Caccia was minister then, and would remember it very well. We had just a few plants. There was one plant in Rouyn—Noranda that caused the total emission of Quebec. In Ontario there were just a few: Falconbridge, Inco. What did we do? Did we say that we were going to ensure a regulation just for Noranda? We issued a generic regulation that set certain thresholds. Those that didn't apply to the thresholds were not covered by the regulations because it didn't apply to them. Those that were above the thresholds, such as Noranda, had to comply.

In effect, it was just one plant that complied, but the regulation was written in such a way that it was not a selective regulation saying that we were going to target a certain type of activity, a certain person, a certain industry. This is the big point here.

You suggest an example yourself. You use technology. You regulate a certain technology because the others don't have the technology.

The people who make regulations have all the wherewithal to be able to issue regulations that are fair to all but at the same time only apply to those who are polluters, because obviously it can't apply to all. I know because I sat in with them at the time in Noranda for acid rain in Quebec. The regulation is not written with a specific targeted activity or targeted class of persons, which this one does.

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If by any chance we study this thing, let's not study under the general provisions. I think it's awful to put it in the general provisions. It's such broad, sweeping language.

The Chairman: Thank you.

At this stage, I'm sorry the chair has to make a brief intervention and convey the following thought, which is mainly addressed to the officials.

You have heard the trend of the discussion. It has been wide-ranging and it has been very much in depth. There are obviously some reservations about this particular clause, particularly subclause (3), which one must take into account and weigh very carefully.

In his intervention Mr. Moffet has suggested a certain course of action. In light of what he said, I would like to ask the officials from the department whether they think it would be possible for them to come back next Tuesday, or next Wednesday if you like, with a clause that would be revised and that would take into account the reservations expressed during this discussion this afternoon.

Ms. Paddy Torsney: Mr. Chair, is the question whether we are standing down this clause?

The Chairman: I'm asking the officials of the department to answer my question first.

Ms. Paddy Torsney: Why don't we ask if we're going to stand down the clause?

The Chairman: Of course we would not proceed with the clause.

Ms. Paddy Torsney: Why don't we undertake to stand down the clause and consider what the options might be?

The Chairman: Excuse me. Would you allow the chair to proceed according to his limited judgment and do his best job under the circumstances? I need first to know from the officials whether this is a reasonable request.

Mr. Harvey Lerer (Director General, Canadian Environmental Protection Act Office, Environment Canada): Yes, it is. We will undertake to do that for Tuesday.

The Chairman: So we would then, on Tuesday, look at an alternative clause prepared by the department.

Ms. Paddy Torsney: Perhaps.

The Chairman: If it is possible, of course. If not, you will inform us accordingly, taking into account what transpired this afternoon.

Mr. Harvey Lerer: We'll do our best.

The Chairman: Madam Torsney, do you want to have the floor?

Ms. Paddy Torsney: Thank you.

I would like to ask Mr. Mongrain to clarify the comments that were made on clauses 167 and 176, simply because if people are going to commit certain thoughts to their mind over the weekend, I want them to be clearer.

Mr. Steve Mongrain: It's the point, Mr. Chairman, that the regulation of authority in clauses 167 and 177 I believe is with respect to a substance, not specifically the source. This is the advice we received at the Department of Justice at the time in 1996. And as I stated before, this is the intent behind subclause 330(3).

As Mr. Lerer indicated, we'll do our best over the weekend to look at all options.

The Chairman: Thank you, Mr. Mongrain.

Mr. Lincoln, very briefly.

Mr. Clifford Lincoln: I would ask Mr. Moffet and the officials, if we're going to look at an alternative clause, maybe the solution might be—I don't know, if they sit together and put their brains together—to specifically address those areas that could be a problem. In other words, it may not be just done by one general clause in the general section. That's really what the rub is right now. If it was addressed where the problems might lie, then that's one way.

Mr. Harvey Lerer: Mr. Chairman, I took your request to try to find a solution to the problem, given the conversation, not to come back with a specific clause.

Mr. Clifford Lincoln: Right, thank you.

Mr. Harvey Lerer: Not necessarily come back with a specific clause.

The Chairman: Fair enough. I think we may make some good progress in that respect.

Mr. Laliberte, briefly.

Mr. Rick Laliberte: I wanted to ask, in terms of the whole context of the quality here, if there were loopholes being created by this. Would Mr. Moffet comment? In terms of the enforcement side, would there be any comment on the political interference, of there being specific problems with enforcement and these regulations being designed to appease those?

• 1650

The Chairman: I don't think Mr. Moffet is in a position to comment on that, nor anyone in this room. But if Mr. Lerer is so bold, by all means, try.

Mr. Harvey Lerer: I'm not so bold, Mr. Chairman. No, sir.

Mr. Duncan Cameron: I can perhaps clarify that.

The Chairman: Mr. Cameron, you're so bold. Fine.

Mr. Duncan Cameron: Actually I'd like to clarify a point of law that surrounds this debate. It's established law. There's case law to this effect from the Supreme Court of Canada. The criminal law can be developed on a regional basis and can be made to apply on a regional basis in the country. This is old law. It goes back to the early days in our confederation when the administration of justice was being divided along provincial lines. There are in fact parts of the Criminal Code that apply only in certain provinces. So it is established law that we can use the criminal law power to make distinctions based on provincial and regional lines, and this is a criminal law bill.

The Chairman: Thank you, Mr. Cameron, for that clarification. Then we will stand the clause.

(Clause 330 allowed to stand)

The Chairman: I invite you to move to page 64 to a motion in the name of Mr. Gilmour, R-6.

The motion by Mr. Gilmour was withdrawn. That's correct.

(Clause 13 as amended agreed to)

The Chairman: I'd like you to turn to page 99 of the large book, to the motion in the name of Mr. Laliberte.

Madam Torsney.

Ms. Paddy Torsney: This particular amendment in paragraph (a) is about issuing guidelines, not about consultation.

The Chairman: Yes, you're quite right. Thank you.

Mr. Laliberte, are you ready and willing to move your amendment?

Mr. Rick Laliberte: I am ready and willing and seek support of all parties. I move amendment NDP-18.

Mr. Clifford Lincoln: Mr. Chairman, we still have something in clause 47; it is “shall offer to consult”.

The Chairman: Could we please allow Mr. Laliberte to proceed?

Mr. Rick Laliberte: The clause is dealing with guidelines. The motion would, in effect, change the meaning of “shall issue guidelines respecting the cost-effective use of powers provided for by subsection 46(1)”.

• 1655

I believe this should be a “may” clause, “may issue”, because some of the guidelines and powers that will be provided may not be cost-effective. That's the whole context: “...in issuing those guidelines, the Minister may take into account any factor that the Minister considers relevant, including, but not limited to,” and (a), (b), and (c) follow there.

I think it requires a “may”, and to give powers to the minister, as opposed to a responsibility. If you give the responsibility for the cost-effective side, I think she should have the benefit of the doubt to make a decision that may not be cost-effective.

The Chairman: The parliamentary secretary, then Madam Kraft-Sloan.

Ms. Paddy Torsney: First of all, I'm not in favour of this amendment, because I think the minister should—“shall”—issue guidelines. We want clarity, and we in fact have an amendment on the next page that would remove the use of “cost-effective”. The “shall” is really modifying the issuing of guidelines, not the points the member has raised.

The Chairman: Thank you.

Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: I'm sorry, I just need a clarification. We're dealing with both of the “mays” in this first paragraph? There are two “may” changes, right?

Mr. Yvon Charbonneau (Anjou—Rivière-des-Prairies, Lib.): In French, there's only one.

Mr. Rick Laliberte: In our motion there are two, yes.

Mrs. Karen Kraft Sloan: Okay, so in Bill C-74 it said “the Minister may”?

The Chairman: Madame Hébert.

Ms. Monique Hébert: Mr. Caccia, just as a quick clarification, actually, no, in Bill C-74 the counterpart clause did specify “shall issue guidelines respecting the cost-effective use”. However, the difference between the two bills is that Bill C-74 basically stopped after subsection 46(1) and didn't go on to specify the kinds of factors that should be considered in developing those guidelines. But in Bill C-74 it was indeed mandatory that guidelines respecting cost-effective use be developed.

Mrs. Karen Kraft Sloan: But my point is the second “shall” was a “may”.

Ms. Monique Hébert: Yes, all of the wording after 46(1), from lines 3 to 16 in Bill C-32, was not part of Bill C-74.

Mrs. Karen Kraft Sloan: Okay, thank you.

The Chairman: Are there any further comments? Mr. Laliberte.

Mr. Rick Laliberte: In light of the parliamentary secretary's intervention on the cost-effective issue, would the chair be willing to accept my motion as NDP-18(a) first? We can then move NDP-18(b) as a subsequent motion.

The Chairman: We certainly can split it. We can certainly deal first with NDP-18(a).

Mr. Rick Laliberte: The reason I'm suggesting this is that if you take “cost-effective” out, it totally changes the context of the reason for my motion. It deals with two separate issues in clause 47. The first one is “The Minister shall issue guidelines”, and the second one is “the Minister shall take into account”. There's a big difference between issuing guidelines and taking into account.

On the issue of “take into account”, it looks at “the costs to the Minister and the person to whom the notice under subsection 46(1) is directed”. Well, that also begs maybe looking at somebody's account balance to find out if they can afford it, so all these things of costs come into play. It's a cost-effective use of powers in the first part, and it's also dealing with the budgetary or purchasing power of the people inflicted in the guidelines. I think they're two different and separate issues.

The Chairman: All right, then we are now dealing with part (a) of Mr. Laliberte's motion, NDP-18.

Madame Kraft Sloan.

Mrs. Karen Kraft Sloan: I need some guidance here. If “cost-effective” is taken out of this clause, paragraph (a) still refers to costs, so are we still dealing with this concept of “cost-effective”?

• 1700

The Chairman: We will have to ask the government officials to tell us what happens to paragraph (a) in this particular clause if “cost-effective” is removed from the second line.

Ms. Paddy Torsney: Is the question about what other amendments are before us right now? The amendments are in the book.

The Chairman: No, the question is what happens to the words “the costs” in paragraph (a)—

Ms. Paddy Torsney: I don't think there's an amendment to that effect.

The Chairman: —if the “cost-effective” portion is removed from line 2. That is the question posed by Madame Kraft Sloan.

Ms. Paddy Torsney: I think in everyone's book we have an amendment G-5.2 that would remove “cost-effective” from line 2 on page 29, and there is not another amendment before us at this point.

The Chairman: So that is your answer?

Mrs. Karen Kraft Sloan: Can I have an answer to my question, Mr. Chairman?

The Chairman: The answer was just given: that there is no proposed amendment.

Mrs. Karen Kraft Sloan: I'm not talking about proposed amendments, I'm talking about the effect of removing “cost-effective” and the fact that “costs” is still in paragraph (a).

Ms. Paddy Torsney: But Mr. Chairman—

Mrs. Karen Kraft Sloan: I was asking if the officials could give me an answer, please.

Ms. Paddy Torsney: The amendment that's being debated right now is on issuing guidelines, so perhaps we could deal with the amendment that's before us. It's NDP-18(a), and it's about issuing guidelines: whether we “shall” or whether we “may”.

The Chairman: It cannot be dealt with in such a narrow, line-by-line way. There is a whole sentence, and there is a thought that is before us that goes beyond just the issuing of guidelines. It is on the what. So it's perfectly legitimate for a member to ask a question related to the second line. I don't see anything wrong with that. However, possibly we could get an answer as to why it is felt that paragraph (a) should remain intact if “cost-effective” is removed from the second line. Perhaps there is a reason for that.

Mr. Steve Mongrain: Mr. Chairman, the government amendment would remove the term “cost-effective”, as the parliamentary secretary pointed out—if passed, of course. Under paragraph (a), which reads “the costs to the Minister and the person to whom the notice under subsection 46(1) is directed”, that would remain. There is no amendment to remove it. That would be one of the things considered by the minister when developing the guidelines, as would be the coordination of requests. And I think it's important to point out that these are guidelines on the use of the information-gathering powers in clause 46.

The Chairman: The reason that question is asked, I suspect—and it would be also on my mind—is that if the costs are to be considered in (a), why is there not also reference to benefits?

Mr. Steve Mongrain: Sir, I think you're reading my mind this afternoon. We were having the same discussion, and I think that is an excellent suggestion. Why not have 47(1)(a) read “the costs and benefits”? That would also be in the spirit of the intent of Mr. Jordan's motion the other day on clause 2, which is what triggered us to also think of benefits. That's a very good point, sir.

The Chairman: So what do we do, then, as we go through clause 47? When we reach paragraph (a), do we reopen it for a discussion and for a possible amendment?

A voice: That would be fine.

The Chairman: All right, with that kind of hint, we can gradually make our way through this. We'll do what's before us first—namely, deal with the first line and the amendment by Mr. Laliberte.

Mr. Rick Laliberte: Can I pull this motion because “cost-effective” is going to be pulled out?

The Chairman: Yes.

Mr. Rick Laliberte: We can then go to NDP-18(b).

The Chairman: All right, then is there unanimous consent to withdraw this portion of motion NDP-18(a)?

Some hon. members: Agreed.

The Chairman: All right, the first half is withdrawn with unanimous consent. Thank you.

Let's go now to part (b), which I'll suspend, because I'd like you to move to pages 100 and 101.

Madam Torsney.

Ms. Paddy Torsney: Mr. Chair, I'd be happy to move this amendment. The effect of it, should it pass, would be to remove “cost-effective” from the sentence “respecting the use of the powers”.

• 1705

(Amendment agreed to) [See Minutes of Proceedings]

The Chairman: Do we now go back to NDP-18(b), Marc, or do we go to PC-10?

Ms. Paddy Torsney: It's the same as G-5.2, so it's out of order. NDP-19 is next.

The Chairman: Then we go to line 3, clause 47, and motion NDP-19 on page 103.

Mr. Laliberte.

Mr. Rick Laliberte: In effect, this motion would reflect the previous CEPA.

Mrs. Karen Kraft Sloan: CEPA 1997.

Mr. Rick Laliberte: What I would like to say is that if the officials are considering the issue of cost, the whole clause from there on in is deemed to be deleted here:

...in issuing those guidelines, the Minister shall take into account any factor that the Minister considers relevant, including, but not limited to,

(a) the costs to the Minister and to the person to whom the notice under subsection 46(1) is directed;

(b) the co-ordination of requests for information with other governments, to the extent practicable; and

(c) the manner in which the information collected under subsection 46(1) is to be used.

This whole aspect is very much directed to a minister being challenged to take into account these factors. The factors seem to be the cost-effective factors and coordination factors, but there may be some missing. You mentioned the benefits. Maybe the officials would like to speak in terms of what the effect of deleting this would be, in their view.

The Chairman: Thank you.

Madame Torsney, please.

Ms. Paddy Torsney: Thank you.

I would not be in favour of this motion, because I think the addition of paragraphs (a), (b), and (c) adds clarity and precision to the process that the minister will undertake in issuing guidelines.

The Chairman: All right, then are there any further comments or questions? Mr. Laliberte, briefly please.

Mr. Rick Laliberte: I had directed a question to the officials in terms of the legal side. Maybe Mr. Cameron would like to say something.

Mr. Duncan Cameron: I could simply add that if paragraphs (a), (b), and (c) were removed, the minister would not be under an obligation to consider those factors. As Ms. Torsney pointed out, we think it's appropriate that she do so.

(Amendment negatived)

The Chairman: I would ask you to go back to (b), on page 4 of the small book.

Ms. Paddy Torsney: What's the date on that book, Mr. Chairman?

• 1710

The Chairman: This is a motion by Madam Carroll.

Ms. Aileen Carroll: It's in the small book, page 4.

The Chairman: I'm informed by the legislative clerk that your motion would affect the first line of paragraph (a), namely line 8, where a few minutes ago in a discussion Mr. Mongrain indicated that the word “costs” be balanced, let's say, by the inclusion of the term “and benefits.” You may want to consider including that kind of amendment in your amendment, since we are dealing with that particular line also.

Mr. Lincoln.

Mr. Clifford Lincoln: May I ask an explanation of Mr. Mongrain, or anybody else? Under paragraph (a), if we add “the benefits”.... We're saying “the costs to the Minister and the person to whom the notice under subsection 46(1) is directed”. We don't want to say “the benefits to the minister”. We're talking about the benefits to the person. We'd have to place the benefit somewhere else, wouldn't we?

Voices: No.

Mr. Clifford Lincoln: No?

Mr. Steve Mongrain: Mr. Chairman, I believe the benefits would probably be more weighted toward the minister, but I think there would be ancillary benefits to the person to whom—

Mr. Clifford Lincoln: I agree it's to the person. But what are the benefits...what are you talking about in regard to the minister?

Mr. Steve Mongrain: The benefits of the information the minister would receive.

Mr. Clifford Lincoln: Oh, I see. All right, yes. It makes sense.

Mr. Harvey Lerer: Mr. Chair, may I add something?

The Chairman: Mr. Lerer, please.

Mr. Harvey Lerer: Once again, the thing that moved us toward this was the explanation that Mr. Jordan gave in terms of his amendment, when he talked about the positive benefits, both economic and otherwise, related to environmental protection matters. That's the way we're using the term “benefits” here.

You've already explained that in the administrative duties in the amendment that was presented by Mr. Jordan and accepted by the committee.

Mr. Clifford Lincoln: I agree with you, Mr. Lerer. I was just wondering where you would put it so it would make sense. That's fine.

Ms. Aileen Carroll: Make it consistent with Mr. Jordan—

Mr. Harvey Lerer: My belief is that paragraph (a) would read “the costs and benefits to the Minister and the person”. I believe that's the correct place for it.

The Chairman: Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: Could we have comments from Madam Hébert and Mr. Moffet, please?

The Chairman: Are there any comments from the table?

Ms. Monique Hébert: Well, Mr. Chairman, when this issue was raised a bit earlier, my first reaction was that the benefits really are to Canadian society as a whole for the minister to be able to have this information upon which to take action. I really viewed it as a benefit to Canada, and not one that was limited to the minister. I just leave that for the members' consideration.

The Chairman: Thank you, that's very helpful.

Mr. Moffet.

Ms. Paddy Torsney: She's a representative of Canada in what she's doing.

Mr. John Moffet: I would be comfortable with reading “benefits to the Minister” in that we would be referring to the minister not in her capacity as an individual, but in her capacity as minister of the crown, on behalf of all Canadian people.

Ms. Paddy Torsney: That's a star on your report card, Mr. Moffet.

The Chairman: Mr. Moffet for the Order of Canada.

Ms. Carroll, with respect to your amendment, we are waiting to hear from you whether you want to include what has been discussed now.

• 1715

Ms. Aileen Carroll: Yes, I do, if the clerk can help me with wording that.

Ms. Paddy Torsney: Perhaps I can help, Ms. Carroll.

The Chairman: We should first deal with part (a). Would you please introduce it and move it?

Ms. Paddy Torsney: No.

Mr. John Moffet: That's redundant, because the government amendment has already been passed.

The Chairman: Sorry, that's true. That has been done. Then we will move with part (b).

Ms. Paddy Torsney: Wait a second. Line 4 comes beforehand, and we have to deal with NDP-18(b) beforehand. And then, Ms. Carroll, if you would accept this note....

The Chairman: Yes, thank you. You're quite right.

Madame Carroll, we'll come back to you in a moment. We'll first deal with the second half of page 99, and NDP-18(b).

Mr. Laliberte.

Mr. Rick Laliberte: Under (b), this is a very good amendment. This deals with the guidelines that would be—correct me if I'm wrong—issued by the minister with respect to information gathering.

Mr. Steve Mongrain: It deals with the use of the minister's information-gathering powers. The guidelines there provide guidance. They're not legally binding on the minister, but they give an indication of how she would use her powers. In making those guidelines, she would look at the factors outlined in paragraphs (a), (b), and (c).

Mr. Rick Laliberte: Okay, and that's where—-

[Translation]

The Chairman: Mr. Charbonneau, please.

Mr. Yvon Charbonneau: Mr. Chairman, did we get to page 99?

The Chairman: Yes.

Mr. Yvon Charbonneau: What is the meaning of the French version?

The Chairman: We seem to be missing a clause.

Mr. Yvon Charbonneau: There is only one amendment in French but two in English. Where is the second half?

Ms. Paddy Torsney: Is it possible that different words were used in the Bill, at page 29?

Mr. Yvon Charbonneau: I am asking a question because he is the expert.

The Chairman: Mr. Charbonneau, the wording of the French version is completely different from the English version and it seems a second amendment is not needed. Do you agree?

Mr. Yvon Charbonneau: The amendment proposes to replace, in the French version, the term “établit” with “peut établir”. This term is only used once in the whole subsection, while there are two sentences in English. How would it be possible to divide the text in French?

The Chairman: Thank you, Mr. Charbonneau.

Madame Hébert.

Ms. Monique Hébert: Mr. Chairman, I agree with Mr. Charbonneau. The French version of Mr. Laliberte's amendment is defective. He should have proposed the following text: “Le ministre établit des directives et, en établissant ces directives, il peut tenir compte”. Since Mr. Laliberte withdrew his amendment, the Minister is required to make guidelines and the factors he has to take into consideration are equally binding. According to the proposed amendment, these factors were discretionary.

[English]

Ms. Paddy Torsney: Just speaking in Mr. Laliberte's defence, once it was split, it became irrelevant in the second part. It needs to be changed.

• 1720

Mr. Yvon Charbonneau: There's no more room.

Ms. Paddy Torsney: So you probably need to come back with something to do the equivalent of what you were trying to say in the (b) part of the amendment.

The Chairman: All right, we have nine minutes for the vote. It may be that we'd better adjourn at this point, with the understanding that Madame Hébert and the clerk will get together to sort out the language that will resolve this problem.

This meeting is adjourned.