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, February 24, 1998

• 0914

[English]

The Acting Chairman (Mr. Joe Jordan (Leeds—Grenville, Lib.)): The chair is on his way, but in the interests of time I think we'll start. We now have, pursuant to Standing Order 108(2), consideration of the enforcement of the provisions of the Canadian Environmental Protection Act and the enforcement of the pollution prevention provisions of the Fisheries Act, including related regulations and administrative agreements.

I'd like to welcome Paul Muldoon, from the Canadian Environmental Law Association—certainly no stranger to us—and Jerry DeMarco, from the Sierra Legal Defence Fund.

Mr. Muldoon, the floor is yours.

• 0915

Mr. Paul Muldoon (Executive Director, Canadian Environmental Law Association): Thank you very much. I'm the director of the Canadian Environmental Law Association. The association is a legal aid clinic in Toronto with a litigation mandate to represent people—groups and individuals—who have an environmental problem and who qualify under the legal aid plan. We also have a law reform mandate.

This morning I'd like to address the committee on the issue of enforcement and the Canadian Environmental Protection Act. I might add that I did make a written submission, which I gave to the clerk, and I also gave a larger submission to the clerk with a whole list of appendices, which I'll only briefly refer you to. Most of my discussion this morning will be found in the brief I distributed.

First of all, I'd like to basically look at the problem of enforcement and the federal enforcement record and then look at some of the rationale or reasons for why that record is poor and inadequate. Then I'll try to give the committee some suggestions for how to improve that record over time.

First, I'd like to talk about the record itself. I'd like to remind the committee how crucial the issue of enforcement is to environmental law in general and to the Canadian Environmental Protection Act in particular. Virtually every poll taken this decade has demonstrated that Canadians expect governments to enforce the law. It is part of the legal and political culture of Canada that laws should be obeyed and stringently enforced, especially environmental laws.

When one looks at the federal enforcement record, however, one sees some clear problems. I refer you to table 1 in my submission. Table 1 compiles the enforcement statistics from the annual report on the Canadian Environmental Protection Act. Table 1 reveals that the number of inspections has actually declined between 1990 and 1996. Prosecutions in this period have ranged from 3 to 22, while convictions have ranged from 2 to 17 per year. On average there have been some 12 prosecutions per year and approximately 10 convictions per year. That's the federal record under the Canadian Environmental Protection Act.

If you look at provincial activity during the same time, one sees a starkly different picture. In Ontario between 1991 and 1995 there were over 1,000 charges laid. Only in 1996 did the number of charges drop below 1,000, to 752. In 1992, over 2,000 charges were laid. There were between 324 and 512 convictions between 1991 and 1996. While there were approximately 10 convictions per year federally, there were some 422 convictions each year in Ontario.

Those numbers raise some interesting points. First, they demonstrate the dramatic difference between the scale of the enforcement activities of the federal and provincial governments. Conservatively speaking, it's fair to say the provincial rate of enforcement alone, in terms of convictions, is at least 35 times that of the federal government, and that is a conservative number.

Another particularly interesting point is that while the enforcement rate at the federal level has remained level or has marginally declined over time, it's apparent that the enforcement rate in Ontario has dramatically declined. I refer you to tables 2 and 3. If you look at table 3, a review of the total fines from 1985 to 1996 reveals the situation. And you will see a fairly large plunge in fines from 1996 onward.

So if the conviction rate of the federal government is about 10 convictions per year and the provincial conviction rate is declining, and as the provinces like Ontario retreat from aggressive enforcement activities, I ask the committee this question: who, then, will take up the slack and enforce the environmental laws of this country?

The first recommendation I have is that a study should be undertaken to review the enforcement records in all provinces and compare such records with the federal record. Analysis should be undertaken to provide some understanding of the discrepancy between the records.

• 0920

My basic thesis, then, is that the federal record shows inadequacy and poor performance. It is simply not aggressive enough. I'd like to suggest there are three reasons why.

The first one in my view is—and it's the obvious one—the continuing lack of federal resources. This committee has stated in the past that effective enforcement will require sustained political will and adequate resources. That is positively correct. At this point in time, it's unclear what the funding trend has been with respect to enforcement in the last 10 years. It is fair to state that resources have not significantly risen and probably have fallen in recent years. Therefore, my second recommendation is that a study should be undertaken to determine the funding of federal enforcement capacity and look at those levels in terms of real or constant dollars.

The second reason for the inadequacy of the federal enforcement record, in my view, relates to the virtual abandonment of the federal regulatory capacity itself. There are many reasons for that, but it seems that the most important one is the federal desire to adopt a voluntary compliance approach.

There are a number of reasons why we think the voluntary approach, particularly with respect to pollution prevention agreements, has failed and is in fact undercutting enforcement activities and capacity.

First, it appears that Environment Canada is relying almost exclusively on the voluntary as opposed to the regulatory approach. This trend is particularly problematic because some of the environmental issues addressed in the voluntary approach are some of the most problematic in Canada. Moreover, Environment Canada's reliance on the voluntary approach continues despite the lack of external audit and verification of that data.

Second, as Environment Canada continues to rely on the voluntary approach, less emphasis will be placed on developing regulatory strategies and therefore less priority and resources will be devoted to enforcement capacity.

My third recommendation, therefore, is that Environment Canada should review its commitment to the voluntary approach and examine how to renew an effective regulatory as opposed to a voluntary approach.

The third explanation for the inadequate enforcement record is the impact of the harmonizing activities on enforcement activities.

Essentially, I'll reiterate the submissions we made in October concerning the Canada-wide accord on environmental harmonization. Our view is clear and unequivocal. In our view, that accord will devolve more enforcement activities to the provinces. This devolution is the result of both the consequences of the inspection subagreement to the accord and the proposal for a new subagreement on enforcement. In our view, these initiatives will undercut the present enforcement capacity of Environment Canada. How can the present capacity be maintained when more of those activities will be devolved to the provinces?

Therefore, our fourth recommendation is to reiterate recommendation 4 of the standing committee's report on harmonization, namely, that the Auditor General of Canada conduct an environmental audit of the effectiveness of bilateral environmental agreements between the federal government and provincial governments concerning the Canadian Environmental Protection Act and the Fisheries Act; and further, that the federal government should rethink its intention to devolve federal standard-setting and enforcement roles to the provinces under the harmonization initiatives.

That's the record and those are the reasons why it's inadequate. I'd like to suggest a threefold strategy for improving it.

The first one is to clarify the federal regulatory role. As mentioned, the federal government has virtually abandoned the regulatory approach in favour of voluntary approaches. In effect, Canada has become a facilitator rather than a regulator. It is only willing to move where it has consensus from industry—and there are many examples of that—rather than doing what's necessary and imperative for the environment.

It is essential that Environment Canada define itself as a regulator in matters within its constitutional authority and which are a priority for the environment. So my fifth recommendation is that Environment Canada must redefine its role to ensure its regulatory function.

The second step or part of the strategy is to enhance its enforcement capacity—and I've already talked about this issue. There are really two subcategories or two needed steps here. One is to inject resources into the enforcement and inspection aspects of Environment Canada, but also there's the need for institutional reform. We are calling for the establishment of an independent enforcement office under Environment Canada and a revising of CEPA's enforcement policy to ensure that there is an adequate framework for this independent office, that there is adequate training for enforcement officers and programs, and there's an adequate information regime to allow this to happen.

• 0925

So the sixth recommendation is that Environment Canada should enhance its enforcement capacity and an independent enforcement office should be created.

The third step in enhancing the environmental enforcement record for Environment Canada would be to enact a federal environmental bill of rights. A federal environmental bill of rights is not a new idea, but it's a measure to empower citizens to participate in environmental decisions and enforce environmental law.

A large aspect of an environmental bill of rights is legitimizing and consolidating the rights of the public to participate in environmental decisions, but another aspect of that deals with the rights of citizens to enforce the law. My colleague Mr. DeMarco will talk a little more about this and the record of lack of enforcement, but I just want to spend my closing minutes focusing on the benefits of citizens' rights to sue.

I should mention that citizens' rights to sue are really part of the enforcement culture of the United States. Their clear and unequivocal rights are in the Clean Air Act and Clean Water Act of the United States, and I've appended examples of that, and the legislation, to my submission.

The Yukon, Northwest Territories, Quebec, and Ontario also have environmental rights legislation that allows, in certain parts, citizens to enforce environmental laws. I've included some of these examples in appendix 2 to my submission. I've also included commentary on that in appendix 3.

The Canadian Environmental Protection Act as it now stands has a right to request an investigation and limited rights to sue for violation of CEPA when a person suffers direct injury, but there is no right to sue to enforce the law.

Now, some may say, does Bill C-74, the last iteration of the Canadian Environmental Protection Act, not have a citizen right to sue? It does. My view, though, is that those provisions in part II of the bill are so inadequate, so problematic, that any rights given are illusory.

In appendix 4 to my submission we give detailed commentary on inadequacies of part II of the Canadian Environmental Protection Act. The three main criticisms are that the provisions are highly qualified and set extensive preconditions for their use; the provisions are applicable only for violations that are imminent—no preventive action is allowed at all—and an enormous number of defences in other provisions would ensure long, drawn-out litigation even in the most meritorious cases.

In our view, those citizens' rights in part II of Bill C-74 will not solve the problem. In our view, the only way to remedy this is for this committee to provide a detailed examination and propose, as it did in the past, comprehensive and strong federal environmental rights, one component of which would include effective citizen suit rights.

I should mention that when you compare Bill C-74 with the proposed endangered species act, Bill C-65, even that bill had stronger citizen suit rights, and even that bill had very problematic citizen suit rights. Appendix 5 gives an analysis of the problems in Bill C-65, but I should just mention that of all the citizen suit rights available, Bill C-74 is by far the worst.

In the end, then, to overcome political will it's imperative that a federal environmental bill of rights be developed. This bill would include a number of important public participation rights, such as the right to comment on environmental decisions, the right to ask for review, the right to certain information, in particular the right to know, in terms of release data and other important information for environmental decision-making. One of the most important rights, however, would be the right of citizens to enforce environmental laws.

Let's make it clear that the right to enforce laws or the political will to enforce laws should remain and should be primarily done by government; but to ensure government does enforce the laws, to supplement governmental activities, in our view, it is crucial that citizens have those rights to keep government honest and to do those things when government fails to act. That's one of the key components in ensuring the government does enforce its laws.

• 0930

Therefore, what's needed at this point is more resources to Environment Canada to ensure adequate enforcement. To supplement that, you need an independent office of enforcement. There needs to be a clarification of the federal regulatory role, and we're calling for an environmental bill of rights, including a citizen suit law that would enhance those enforcement capacities.

In conclusion, enforcement is a vital issue. It's central to the Canadian public, and I urge this committee to write a report on this issue, with strong unequivocal recommendations, to enlighten the Canadian public on the past enforcement record of Environment Canada, the funding situation, and then what is needed to improve that record to ensure the adequate enforcement of Canadian environmental law.

Thank you very much.

The Acting Chairman (Mr. Joe Jordan): Thanks, Mr. Muldoon.

We'll go to Mr. DeMarco and then take questions. Mr. DeMarco, you have the floor.

Mr. Jerry DeMarco (Lawyer, Sierra Legal Defence Fund): Thank you. My name is Jerry DeMarco. I'm a staff lawyer with the Sierra Legal Defence Fund.

Sierra Legal is a Canadian charitable organization specializing in environmental litigation. We provide free legal advice and representation to environmental groups and concerned citizens on a variety of environmental issues.

I'm going to be speaking mainly on the first three points outlined in the five-tab document that has been handed around, namely: Quebec pulp mills; Fisheries Act annual reports; and the problem of private prosecutions being stayed by government. The end of the report deals with a few problems that Mr. Muldoon has already dealt with, and I will only go over those in a very cursory manner.

To start, the problem of Quebec pulp mills is really a prime example of lack of enforcement and, as well, the problem of harmonization. I'll be referring you to tab 1 of the attachments to this summary of our presentation.

Sierra Legal, on behalf of two other groups, Great Lakes United and the Quebec Environmental Law Centre, tried to access documents regarding the state of compliance of pulp and paper mills in eastern Canada under the Fisheries Act regulations. Under the Access to Information Act, the federal government told us it was going to take them 556 hours and they would charge us over $5,000 to generate the information we asked for regarding compliance with our own Fisheries Act regulations.

It's broken down there: the Atlantic provinces would require 7 hours to find out who was in compliance; Quebec was going to require 489 hours; and Ontario, 60 hours. This gave us a strong indication that there was no readily available data on compliance with the Fisheries Act regulations on the part of the pulp and paper industry.

Following prolonged delays and negotiation, the government eventually began to provide those documents for a reduced fee. Although not all of the documents have been provided, we have had preliminary documentation, especially in the area of Quebec, and we have therefore published that information in the form of a report.

I'll turn now to tab 1. Towards the end of tab 1, you can see a two-page spreadsheet indicating the extent of the problem in Quebec. As you can see there, of the 62 mills in Quebec, it was found that at least 20 of those have been discharging toxic water pollution that exceeds regulatory standards, according to the government's records. In fact, one mill had 98 violations in 1996 alone; however, there was not one prosecution.

We have not appended to this presentation but have since received preliminary data for Ontario and the maritimes, and there the problem is similar. In 1996 data, of the 21 mills, 15 were in violation, and that amounted to 128 violations. There was only one charge laid. The preliminary data we have for Ontario says that of the 25 mills, 10 were in violation in 1996, and those 10 amounted to 46 violations. The records indicate, as far as we can tell, one provincial charge, but no federal charges under federal legislation. So there are obviously lots of violations going on and very little enforcement.

• 0935

If I can look further into the Quebec situation, it provides a very good example of the problems of downloading and harmonization. If you turn to the backgrounder in tab 1 and the third paragraph, “Delegation to Quebec”, I'll read out that short summary:

In 1994, the federal and Quebec governments signed an agreement that delegated to Quebec responsibility for monitoring compliance with the federal Pulp and Paper Regulations under the Fisheries Act. They stated as with the recent harmonization agreement that this was to minimize duplication and overlap.

Under the agreement, Quebec was to “act as the sole contact with pulp and paper mills”. It would be responsible for monitoring the mills' emissions to ensure compliance with the federal regulations, and advising the federal government of any corrective action required. The federal government retained the power to lay its own charges against a violating mill, after notifying Quebec, but this power has not been used.

It must be remembered that these regulations were passed back in 1992, and the data for 1996, which is the last complete year, shows continued violations even after a one-year and then a two-year grace period for trying to get into compliance with this regulation. So the industry was given a period of time to come into compliance and then given a further extension under extraordinary circumstances beyond their control up to December 31, 1995, and still the data post-dating that date indicate that violations are the rule.

Going on with this issue, it shows there's a systemic lack of enforcement and it also shows that harmonization—this mini Quebec-federal bilateral harmonization agreement—has been a failure. It's especially troubling in light of the federal government's decision to enter into a larger harmonization agreement covering the entire country, when the only good example we've had of it shows a consistent problem and a consistent failure on the part of both governments to enforce the law.

I'm going to move on to the second issue, which is another indication of the problem both of enforcement but more so of informing Parliament and the public of what enforcement activities are occurring. This is at tab 2 of our submission and it deals with a lawsuit we've had to initiate on behalf of two groups, the Friends of the Oldman River and the United Fishermen and Allied Workers Union, against the Minister of Fisheries and Oceans. This suit is aimed at remedying the Department of Fisheries and Oceans' failure to adequately inform the Canadian public regarding enforcement of the Fisheries Act.

Section 42.1 of the Fisheries Act requires the Minister of Fisheries and Oceans to produce an annual report regarding the administration enforcement of the fish habitat and pollution prevention provisions of the Fisheries Act, roughly speaking sections 35 to 40 of the act, amongst others.

Following ample notice to the department and repeated requests for compliance with section 42.1, Sierra Legal was left with no other option but to initiate proceedings against the minister last week for failure to comply with section 42.1.

You'll see the correspondence from the minister dated January 19 of this year, and you'll see in there that since we began our requests for the annual reports a couple of annual reports have been produced, namely for the year ending March 1995 and the year ending March 1996. The year ending March 1997 has still not been produced. Regardless of what annual reports have been produced, they don't contain the data that is required to be in them under the Fisheries Act.

The Fisheries Act states specifically that a summary of the enforcement activities under the pollution prevention and fish habitat provisions is required in the annual report. If you look at the second page of tab 2 and the letter from the Minister of Fisheries and Oceans in paragraph 2, you can see that he states:

With respect to inclusion of a statistical summary of convictions under section 40 of the Fisheries Act,

—a requirement of the act—

we have in the past experienced difficulty assembling the required information. In the inland provinces, for example, the provincial governments undertake enforcement of the Fisheries Act and we do not have access to their data on offences and convictions.

• 0940

This is federal legislation. Federal authorities have assigned some provincial officers to implement it for them, but they have no way of finding out what they're doing. There is no accountability or reporting mechanism, so essentially they've downloaded authorities under the Fisheries Act without a consequent duty to report on how that enforcement is coming along. As a result of that, the annual reports for the last four years are either non-existent or don't contain the data that's required on the enforcement activities under the act.

So we have no annual report for last year, and the three preceding annual reports are called annual reports but don't have the data in them that's required under the Fisheries Act. So they have the name right in three of the past four years, but they still don't have the content.

Regardless of the problem of provincial enforcement, we still need the federal government to indicate to the public and to Parliament—where this report is required to go—how the Fisheries Act is being enforced. Otherwise there's no accountability and there's no traceability in the process.

If it were clear that enforcement is a top priority. this would not be as troubling. However, given the poor performance of the Quebec government with respect to pulp and paper compliance issues as demonstrated previously and, as I'll state next, the interference of private prosecutions attempting to enforce the Fisheries Act, Canadians are left now without any assurance that the Fisheries Act is being properly enforced.

I alluded to the problem of government staying private prosecutions. The Sierra Legal Defence Fund has been involved in a number of private prosecutions over the years, especially in British Columbia. As a result of the government's failure to enforce the Fisheries Act in that province, and other environmental legislation including provincial legislation, citizens have had to take the initiative there and bring private prosecutions.

Unfortunately provincial governments, especially in B.C. and Alberta, routinely intervene in these private prosecutions. They stay or suspend them and violate the right for people to undertake private prosecutions. This is against the public interest.

We've been involved in at least four Fisheries Act private prosecutions in the province of B.C. and all four have been taken over by the provincial crown and stayed. Even in a situation where the crown has acknowledged there are violations—and you can see in tab 3, following the press clipping, we have noted our rivers are becoming cesspools fast enough without governments helping them—the government stayed the prosecution and essentially countenanced the continued pollution of the Fraser River.

Following that press clipping are four charges under the Fisheries Act dating over the last few years. One is against the Greater Vancouver Regional District, which is the municipality, for discharging raw sewage into the Fraser River. The next one is also against the municipality for violations of both the Fisheries Act and provincial legislation.

Following that are fish habitat violation allegations against logging companies in the province of B.C. and a further one, just from last year, against another forest industry accused of violating the fish habitat provisions of the Fisheries Act as well as forestry legislation in the province of B.C. All of those charges have been stayed. Even in situations where the provincial crown who overtook those proceedings said the data collected by Sierra Legal and others was impeccable and a conviction was likely, they were still stayed.

This is obviously unacceptable. If the government isn't enforcing environmental laws and private citizens have to take matters into their own hands and are then interfered with or prevented from doing so, there's no one left to enforce the Fisheries Act and other environmental legislation. Therefore it's not surprising that with the lax government enforcement and crowns eager to stay prosecutions, the result is an ongoing flouting of the law.

• 0945

As everyone knows, raw sewage is still continuing to be discharged, especially in places like Victoria and Halifax. Citizens who wish to uphold the laws of Canada and prevent that pollution from continuing are prevented from doing so by governments who either fail to bring charges themselves and remedy the problem or stay prosecutions brought by private individuals.

The end of my presentation deals with three main ways of rectifying the problem. Since Mr. Muldoon has dealt with the majority of those, I'll go over them very briefly.

First of all, increased resources are an obvious need. One way to help finance increased resources would be to include an administrative penalty section in environmental laws.

This was dealt with previously in this committee's report, It's About Our Health!, in chapter 14. I won't go into it in detail, but I can say that these administrative penalty provisions allow government enforcement agencies to levy administrative fines for non-compliance. These are quicker and cheaper than prosecutions, and they're much more cost-effective.

In the U.S., where they're used routinely for the majority of offences as opposed to criminal prosecutions, they actually come up with a net benefit, a net revenue, to the Environmental Protection Agency in the United States. This helps fund other environmental programs and ongoing monitoring and enforcement. Administrative fines lower enforcement costs and increase revenues at the same time. It's an excellent way of improving compliance with legislation, because prosecutions, as everyone knows, are onerous and costly, and therefore not used to the extent they would otherwise be if they were cheaper.

As Mr. Muldoon has stated, citizen suits are another way of increasing accountability. They don't need to be used very often, but if they're there, they provide an incentive for government to uphold their obligations to enforce, knowing that if they fail, their actions will be called into question in a citizen suit started by a private individual.

The citizen suit provisions in Ontario, Quebec, Yukon and the Northwest Territories are in force, and they aren't used very often. Some of them, like Ontario's, are too onerous on the party wishing to initiate the proceeding.

We recommend that federal environmental laws include citizen suit provisions through an omnibus environmental bill of rights that refers to all federal legislation in which citizens may take citizen suits where governments are not acting.

This issue has actually been covered before by the Liberal government. A report by Paul Martin, when he was Liberal Environment critic, called, The Environment: A Liberal Vision, dated March 1992, referenced, on page 22, the need for an environmental bill of rights. It's About Our Health! did as well, on page 234. So it's not a new issue. It's often recommended, but still not acted upon.

Those are some of the ways to rectify the problem. I will conclude there, and leave it to the questioning.

The Acting Chairman (Mr. Joe Jordan): Thank you very much.

We'll proceed with our first round, beginning with Mr. Casson and then Monsieur Bigras.

Mr. Rick Casson (Lethbridge, Ref.): Thank you, Mr. Chairman.

I am somewhat interested in these citizen suits, and the cost of doing this. You mentioned it's quite costly to bring a suit. Are the costs picked up by the person charging the offender? How does that work at the present time?

Mr. Jerry DeMarco: In a prosecution?

Mr. Rick Casson: Yes.

Mr. Jerry DeMarco: In a prosecution the person initiating the lawsuit has to essentially finance the accumulation of the data and the evidence as well as the carriage of the court file.

Mr. Rick Casson: Are there any government funds available for people to do that? Isn't there some government money available when they're doing interventions?

Mr. Jerry DeMarco: No. There's no intervener funding or participant funding or informant funding for this type of action.

• 0950

Mr. Paul Muldoon: The only exception may be under the Fisheries Act, where the private prosecutor gets one-half of the fine. That's still in place. I don't know of any person or any instance where people actually try to do it for that reason, but secondly, that rarely would cover the actual cost of the litigation.

Now, as was noted, there is private prosecution, but there is also the citizen suit law, and the citizen suit law is not a prosecution. It's a different route, where it's in civil courts. In that case, in virtually all the legislation, the usual rule governs: the loser pays the winner's costs. So when a group such as the Canadian Environmental Law Association or the Sierra Legal Defence Fund would invoke a citizen suit law, for instance under the Ontario Environmental Bill of Rights, it takes the risk that if it loses, it will have to pay not only its own costs but the costs of the entity being sued.

In that sense citizens have a double whammy. First, they are only acting in the public interest in trying to enforce environmental laws and seek reparation for the damage done, and usually in this case it's some sort of order to clean up or repair the environmental damage. Then they potentially have to foot the bill. The environmental bill of rights states that the court can relax that rule, but that rule still applies unless the court exercises discretion. In my view, that loser-pay rule is the single biggest disincentive from citizen suits.

So there is no free ride here whatsoever.

Mr. Rick Casson: The costs are not picked up by the government.

You both mentioned that you need more resources directed to enforcement. Both mentioned the lack of coordination and the need to centralize. Then you state that the Ontario conviction rate, for instance, is 35 times that of the federal government.

Mr. Paul Muldoon: I will explain that. Environment Canada is where the Province of Ontario was in the very early 1980s. It was only in 1986 that there was a very radical change within the Ministry of the Environment, and that was with the establishment of the IEB; the Investigation and Enforcement Branch. That was a new branch that was divorced from the abatement section of the Ministry of the Environment. You then had a specialized group of people within the ministry who focused simply on enforcement. Colloquially, they are known as the “green cops”, because they go in, inspect, and enforce the laws. That's their job. They are specialized, they are dedicated, and they do it with a sense of dedication and robustness, because that's their expertise.

So although more resources were put into it, it was also an institutionally designed feature that they are not there to win industry over or show it how to do the right thing. That's for the abatement people. Their job is to ensure compliance with the law. They are specialized, they are designed, to do that.

It's not only a matter of resources and money, it's a matter of institutional design. That's why my recommendation focused on that. In Environment Canada there is not an analogous situation. Therefore, at times things get quite muddled.

Mr. Rick Casson: The municipalities, of course, control a lot of the waste water and sewage. In your experience, how are municipalities handling their responsibility at their level of government?

Mr. Jerry DeMarco: We've actually issued a sewage report card on that issue. There are very poor performers, such as Vancouver, Victoria, and Halifax. The better performers tend to be in areas where there is not an ocean nearby where they can just discharge and forget about it. That's mainly because their source of drinking water is often the same source as the receiving water. So it seems to be only a matter of self-interest that a lot of municipalities will improve their performance. Those who have the option of flushing and forgetting about it often take advantage of that situation, because there's relatively no enforcement.

The Acting Chairman (Mr. Joe Jordan): Mr. Bigras.

• 0955

[Translation]

Mr. Bernard Bigras (Rosemont, BQ): I would like to come back to the Canada-wide accord on environmental harmonization.

When the committee spent over a month considering that issue, different groups including, I think, the two that are here today urged us not to ratify that accord. First of all, I want to remind you that Québec has neither signed nor ratified this agreement. That's one thing.

I would like to know what is your interpretation of the way the legislation is being enforced, given the fact that Québec has neither signed nor ratified the agreement. Do you think that the status quo will be maintained? According to your interpretation, what is the impact of the non-ratification of the agreement by Québec?

[English]

Mr. Paul Muldoon: That's a difficult question.

I do not know the motivations for Quebec not signing the harmonization agreement. One of the explanations I understand is that the Province of Quebec would like to see the new version of the new bill of the Canadian Environmental Protection Act and see how that reflects the overall federal harmonization agenda. That's the only comment I have.

With or without the harmonization agenda and harmonization agreement, I think there's a larger question of understanding what is the role of the federal government in environmental protection and what is the role of the provinces in environmental protection.

The thrust of my submission is that they have different roles, and those different roles are separate but complementary. What I have heavily criticized the harmonization accord for is that it removes that notion of separateness. It basically states that rather than having two complementary regimes, you will only have one. Therefore, if one of those governments failed to act, the environment becomes that much more at risk.

We're not saying that less should go; we're basically saying that we should improve the cooperation. We should improve the coordination between federal and provincial roles and responsibilities of the environment, not devolve them so that only one level of government has them. That has been our approach.

[Translation]

Mr. Bernard Bigras: I must say that I'm not an expert in environmental law. I would like to know what practical implications this will have for Québec as opposed to a province that would have ratified the agreement. We now have a province that has not ratified the accord and another that has. In terms of enforcement, what consequences would this non-ratification have inside the Québec territory?

You have often told us that the agreement was unacceptable from an environmental point of view. Québec has not signed the agreement. I would like to know what impact this will have tomorrow morning.

[English]

Mr. Paul Muldoon: I'm not sure of the immediate impact, but it would seem to me that the very thrust of the harmonization agreement or accord was to decentralize or devolve federal roles and responsibility to the provinces. The fact that Quebec has not signed would seem to undermine that particular goal of the overall agenda. Therefore, Quebec's absence of signing may undercut the intended effectiveness of the harmonization agreement itself.

I'm not sure what the long-term implications are. You're really asking the wrong person. Our view is that the agreement should not have been signed at all.

[Translation]

Mr. Bernard Bigras: You are telling us that it probably would have been better for Québec to sign the harmonization agreement to improve the environment. I don't know whether this is what I should make of your answer. My question will be fairly simple. Did Québec do the right thing in deciding not to ratify the accord, given what you have been telling us for the past few months? This is my question.

• 1000

[English]

Mr. Paul Muldoon: I'm not sure where you want to take this question, but my view is that no province should have signed the agreement and the federal government should not have signed the agreement. The agreement makes no sense in terms of environmental policy. I'm not sure of the implications of Quebec not signing.

We've appeared before the committee at least once, giving our profound problems with the agreement, with the accord, and I think the kind of evidence that Mr. DeMarco stated about the enforcement record completely reinforces our view that devolution of federal environmental roles and responsibility is a problem. I'm going to leave it at that.

The Acting Chairman (Mr. Joe Jordan): Thank you, Mr. Muldoon.

Madam Kraft Sloan.

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

I hope you'll understand the naivety of my question, but why have these prosecutions been stayed? I don't understand.

Mr. Jerry DeMarco: It's difficult to lift the government veil in this case to find out exactly what is behind the staying of them. Some provinces do not routinely stay private prosecutions in environmental matters. For some reason, B.C. and Alberta do it as a matter of course; they'll do that routinely.

I've attached some of the legal documents in one of the cases, just to show that this is not a case where these were frivolous or vexatious lawsuits. In tab 3, starting at the faxed page 12 in the top right-hand corner, the facts of the raw sewage going out from the Greater Vancouver Regional District sewer outfall on Clark Drive were as clear as can be. There was no doubt that this raw, untreated, unscreened sewage was going out, and that's certainly a violation of the Fisheries Act.

Sierra Legal took these cases on only when our staff were of the view that there was a very strong case to be made. Indeed, when the government took them over, they indicated to us that the evidence supporting the charge was good and there was a substantial likelihood of conviction—and I'm reading from paragraph 15 of the pleadings there. However, after a series adjournments they decided that they would stay the charges.

We've tried to challenge that, but because of the wide discretion on the part of the crown, it's difficult to find out exactly what the motivation is. They talk about handshake agreements between the Province of B.C. and the municipality as being the municipality's excuse for continuing to discharge pollution. That could possibly be a defence under provincial legislation, but these charges dealt with both provincial and federal legislation, so that's really no excuse for staying the charges under the Fisheries Act.

We're at a bit of a loss to determine really why they are stayed. In other cases we've been involved with in other provinces, the prosecutions are not always stayed. It's a difficult problem, but it's certainly an indication that giving powers over environmental prosecutions slowly to a province that is not interested in seeing them through is another one of the adverse by-products of harmonization.

Mrs. Karen Kraft Sloan: I'm from the province of Ontario, and so it's from that province's perspective that I can most usually speak.

I wonder if either of your organizations have done some work in terms of what the current government in Ontario has been devolving around environmental regulation enforcement issues to the municipal level, because I've been hearing some talk about what's been going on in that regard. I wonder if you can comment about the Province of Ontario and the municipal level, and what may be down at that level.

Mr. Jerry DeMarco: As Mr. Muldoon noted in table 2 of his report, in the province of Ontario charges have gone down from 1,500 in 1994 to 700 in 1996 under the new provincial regime. So there has certainly been a reduction in enforcement in Ontario in the last couple of years. There's no indication that the municipality has any of the powers or, at all, the budget to be taking on this sort of responsibility.

• 1005

The municipalities, in certain instances, are actually part of the problem in terms of pollution. For example, Kingston is facing charges at the moment, so the interplay between the provincial and the municipal level is not one.... We can't keep devolving environmental enforcement down the ladder from the federal government to the provincial government and then from provincial to municipal, because these are not municipal issues.

As the Supreme Court stated in the fall, in the Hydro Quebec case, essentially, pollution prevention is a matter of superordinate importance and one of the greatest challenges of our time that requires action from the federal level all the way down. So we can't keep passing the buck one step further, because there's certainly no capacity at the municipal level, in Ontario in particular, to be the safeguards of these matters of federal and provincial importance.

Mr. Paul Muldoon: I do think you've hit on an interesting point. My guess is that there will be a tendency to try to devolve more issues to the municipal level over time. One indication of that in Ontario is a recent bill—a recent law, now—that devolves septic systems to the municipalities; municipalities will be in charge of enforcing compliance with septic systems. Even though they have in part been delegated that, it's now legislated. For those municipalities that have septic systems as the main sewage system, that's going to be an enormous challenge. I think that's the trend and I think it's a worrisome trend. The municipalities do not have the capacity.

There is often another issue, too. Again, the reason we've traditionally advocated the view that each level of government should enforce its own laws by and large is because it's difficult in some instances for one level of government to enforce its laws because of its relationship with the regulated community. Some of the provinces want to be kind to some regulated communities because it's to their advantage, so in that case it's only appropriate that the federal government be the watchdog. As you can see, there are some underlying social and economic policy reasons for separate levels of enforcement.

You will recall that one of the issues we've always brought up is that we think enforcement resources should be spent wisely and efficiently. The allegation is that there is some overwhelming degree of overlap and duplication, but that overlap and duplication has yet to be established empirically. That's what we've been calling on; where there is a big problem it deserves the kind of solutions that are being proposed. We can't find them.

The Acting Chairman (Mr. Joe Jordan): Thank you. We'll finish up round one with Mr. Lincoln and then I have Mr. Herron and Mr. Laliberte.

Mr. Clifford Lincoln (Lac-Saint-Louis, Lib.): I recall in the 1980s when I was involved quite a bit with Jim Bradley, I used to drool because at the time we had, if my memory serves me right, 100 inspectors and investigators, mostly ex-RCMP and provincial police people, and something like 36 lawyers on contract and otherwise to push prosecutions and enforcement. The other day we were getting statistics from the feds that showed that they had 60-odd people in enforcement and investigation and inspections. Of those, 11 were chiefs who didn't do field work, so that leaves 49 people to enforce 32 federal regulations. I guess the answer is right there.

What I was wondering is if both of you or any of your organizations or the environmental organizations have ever thought of spending time, if possible, comparing numbers as they used to be in Ontario in the 1980s with what they are today. Based on averages and so forth, how many people should the federal government have? We have tried to get this answer from the federal people who have appeared before us. Nobody will tell us. In fact, when we asked them if they needed more resources, they said, “No, no, we're just fine as we are. It's just better administration. We have computers and so forth and we'll do it.”

• 1010

So how 49 people can enforce 32 regulations, including toxic waste, cross-border criminal activity, CEPA and all the other federal legislation...it's crazy.

I was wondering if you have any statistics for the various provinces of how many people, all in all in Canada, are involved in enforcement and investigation, and how many we should push the federal government to have. That would be really useful to us.

Mr. Jerry DeMarco: I don't have any data on that, but I think it would be useful. I did read the transcript from last week and found it interesting with respect to some of the evasiveness in answering the questions, both with the annual reports, in our case, and staffing.

I think if you had field staff here you'd get a different answer. When I was prosecuting for the Ministry of the Environment in Ontario there was no doubt, in my dealings with the field investigators, that they couldn't possibly uncover all the problems that were out there, and that was the largest investigations branch in all of Canada. Certainly it's been reduced since then. But the consensus amongst field staff, I'm sure, would be that they need probably an order of magnitude more staff out there to deal with this. And through the use of administrative penalties a lot of that can be financed.

Mr. Clifford Lincoln: I will ask you two other questions so that I'm clear on this, because the other day I asked Mr. Swanson and he was very evasive about giving me a clear answer as to what the deficiency is in the Fisheries Act reports. The way I understand it now, the last complete one was in 1994—the last one that would be seen as complete under the statutory requirement. Is that correct?

Mr. Jerry DeMarco: No. The one from 1994 was the only one that existed at the time that we started our demands for the 1995, 1996 and 1997 reports. When we issued our original requests for the newer reports, we told them not to make them like the 1994 one, because the statistical summary of enforcement was missing. We said we recognized that they had that deficiency in the past and we asked them to please rectify that in the next three. Two of those three have since come out and they both suffer from the same problem as before.

Mr. Clifford Lincoln: So in effect, what he said to me was that it will be one year deficient, maybe two years, but not more. But in effect, according to the statutory obligation, then, it's four years, because he did admit that the provinces have not accumulated the data according to the requirements of the act. They don't keep it. They can't furnish it. I asked him what happens if he doesn't get it all, what would he do. He said they'll just approximate the thing and publish a report.

So in effect, what you're really saying is that the federal government is breaching its own law four years in a row. So your suit against the minister covers those four years?

Mr. Jerry DeMarco: The suit, I believe, goes back just three years in terms of dealing with reports, but we have looked at the one going back four years and it is also deficient.

The obligation isn't on the province to collect this data under the act.

Mr. Clifford Lincoln: I realize that.

Mr. Jerry DeMarco: The obligation is on the feds, and if they're going to devolve that to the provinces, the obligation still remains at the federal level, so it's not appropriate to say, “Well, they don't collect it, so what are we supposed to do?” You don't assign those responsibilities to the province if you don't have an accounting mechanism going the other way.

So yes, it is our view that none of the reports issued, even though they're called annual reports, contain what is required. And for last year there's none at all.

Mr. Clifford Lincoln: With respect to Ontario as such, the piling up of these cases, which are not being touched at all by Ontario because of a dispute with the federal government about swapping money and so forth, in your view wouldn't that mean that the situation is getting much worse before it gets better, certainly in regard to Ontario?

• 1015

Mr. Paul Muldoon: My understanding is there's no doubt that since September 18, which is the date when the Province of Ontario basically denounced its agreement with the federal government to deal with subsection 35(2) of the Fisheries Act, the federal government has been very much scrambling in trying to deal with the gap.

Our view historically was that the province wasn't doing all that great a job, so with the withdrawal of provincial involvement in that issue, I think many situations out there are a problem because of the lack of federal aggressiveness in dealing with its own legislation.

Mr. Clifford Lincoln: This is to follow up on what Ms. Kraft Sloan was asking you. You say that the Province of British Columbia has stayed the cases that you took on a private basis. The way I understand it, the prosecutors take over the cases, and then the province and the prosecutors decide not to pursue.

What remedy do you have, if any, as representing private prosecutors? Can you challenge the crown prosecutor in law? Is there any way whereby you can enforce something against the province for staying what was obviously a bona fide case?

Mr. Jerry DeMarco: We attempted to do that by way of judicial review. I actually attached the petition for that for the court from a couple of years. Because of the wide discretion the crown enjoys with respect to overseeing, intervening in, and staying prosecutions, we have been unable to successfully challenge them in taking on those prosecutions.

So in our view, the environmental legislation should be amended such that there are constraints placed on a provincial or federal attorney general intervening in and staying prosecutions. There should be a test added to the legislation putting an onus on them to demonstrate why it's in the public interest to overtake a prosecution and then to stay it. This is rather than having the onus on us, who have no way of finding out their motivation for doing it. So there certainly need to be legislative amendments in that area because judicial review has not been adequate in protecting the private informant's right to proceed with a private prosecution.

Mr. Clifford Lincoln: Or a bill of rights could do the same.

Mr. Jerry DeMarco: It could be a section in the bill of rights. It's probably more appropriate in a bill of rights, because through a bill of rights, you can reference all the other legislation that it deals with, as the Ontario one did, although the Ontario one suffers from other problems.

Mr. Clifford Lincoln: Thank you.

The Acting Chairman (Mr. Joe Jordan): Thank you. Mr. Herron.

Mr. John Herron (Fundy—Royal, PC): Thank you, Mr. Chairman.

I have a quick question that builds on Mr. Lincoln's first question.

In terms of setting benchmarks in terms of capacity for the federal government with respect to inspectors, I know there are other countries, like Sweden and Finland, that are very pulp and paper intensive an dthat would have similar populations to the province of Quebec or even Ontario. Do you have any numbers comparing their pulp and paper industry with respect to ours? And what do you know in terms of legislation with respect to their effluent regulations as compared to ours?

I see that as being a natural comparison. We could say that this is perhaps what the Swedes are doing in very similar industries, so this is perhaps what we should be doing or not doing. Maybe we're not as bad as some of the other people are. My impression is that we're probably not quite where they are.

Mr. Jerry DeMarco: We have no such data. Comparisons to other similar countries and situations would be most useful indeed. It would be a useful recommendation for Environment Canada or DFO to undertake such a study.

Whether we're better or not than those other countries is not really the benchmark, though; the benchmark is compliance with the legislation. Certainly, we're fundamentally failing at that.

Mr. Paul Muldoon: I agree. The first recommendation I have really speaks to the need for that comparative analysis, but I think that if one was going to do a comparative analysis, it would include not only European countries but also the U.S, and look at the relative enforcement capacity and the differences there. My guess is that there would be a stark difference.

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Mr. John Herron: It would be a very measurable tool to utilize on a departmental basis when they're asking for increased capacity.

The Acting Chairman (Mr. Joe Jordan): Thank you. Mr. Laliberte.

Mr. Rick Laliberte (Churchill River, NDP): There's an article in this presentation dealing with pulp and paper polluters under the Fisheries Act and CEPA. Why do you think the federal government is continuing to devolve responsibilities to the provinces when there are blatant inabilities to enforce polluters?

Mr. Jerry DeMarco: Again it's hard to discover the motivation, but my most educated guess is that of the two priorities involved in this issue of harmonization—one being fiscal priorities in terms of cutbacks, budgeting and so on, and the other being environmental priorities in terms of enforcing the law—the desire to reduce spending is trumping the desire to protect the environment.

This is occurring at a time when, as some of you may have noted in last week's Ottawa Citizen, the polling data indicates people across Canada want the environment protected as a priority. To cut protection to the environment for budgetary reasons is certainly at odds with public opinion. If a proper enforcement mechanism were put in place, it wouldn't necessarily have to be a huge cost item.

Mr. Paul Muldoon: I would add two other issues that I alluded to in my presentation. I think there's a broader context and the federal government, especially Environment Canada, is questioning whether or not it wants to retain and aggressively pursue its role as a regulator. My observation is it sees itself more as a policy broker trying to appease industry and other stakeholders rather than recognizing that it is a regulator and that as a regulator it has a job to do. Part of it is to make standards and regulations, and the other part is to enforce those regulations. So in effect, it's a retreat from its traditional role and the role I see fundamental to it under the Canadian Environmental Protection Act. I think there's a broader context.

The other broad context for it is the issue that the federal government at large sees decentralization or devolution as a good thing. Therefore the extent to which on the environmental front it can devolve inspections, environmental assessment or enforcement to the provinces is seen as a good thing. Many of us reject that presumption. Our presumption is that each level of government has its own special environmental role and responsibility and those should be cautiously, jealously guarded, and that's not happening. The prime example is what Mr. DeMarco was saying about the bilateral accord in Quebec and the results of it.

Mr. Rick Laliberte: If we look at the activities of the present government, statistically in 1990-91 enforcement activities were at an all-time high with close to 2,800 inspections. In 1995-96 there were less than 1,000. Then you have Environment Canada officials saying they have adequate resources, as Mr. Lincoln mentioned.

What is your scope of involvement over the years? What's your analysis of the last decade of inspections and enforcement and the function of the leadership in this country?

Mr. Paul Muldoon: I think your last comment is exactly right. It's the lack of federal leadership that is reflected here. I can't entertain the thought that resource capacities, enforcement budgets or staff within Environment Canada—or within the enforcement agencies in other departments—are adequate.

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One of the things Environment Canada kept telling us was that there will not be a diminishment of federal enforcement capacity under any of the harmonization initiatives. I don't understand that argument either, because the numbers speak for themselves. I suspect those numbers will further decline as more areas are devolved to the provinces.

I don't have an answer other than to repeat the usual position that we state: this is reflective of a broader governmental problem, but also a specific problem within the political will to actually do the right thing and to get resources to the people who can help protect our laws.

Mr. Jerry DeMarco: You're asking the right questions about resources and staff, but I don't think it's the Minister of the Environment or her senior staff who are likely to give you the right answers. Obviously, the senior staff are not going to want to bite the hand that feeds them, even if they are just getting tidbits these days.

If you go to the public through polling, or if you go to the field staff, you'll find there is no possibility that staffing or resources are adequate in this country for environmental enforcement. For those of us who have actually been on the government side and the non-government side, it's a ludicrous proposition. It's not one I believe this committee should accept from any senior official.

The Acting Chairman (Mr. Joe Jordan): Thank you.

I would like to welcome Mr. David MacDonald and his class to this committee hearing. It's always a pleasure.

I have Mr. Gilmour, followed by Mr. Charbonneau and Mr. Pratt.

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

To follow up on Mrs. Kraft Sloan's and Mr. Lincoln's comments on sewage, whether it be Vancouver, Victoria or Halifax, I'm trying to find out where it's falling apart. Victoria is the Minister of Fisheries' riding, yet he's saying it's okay to flush raw sewage into the strait. The Americans come unglued on a regular basis because they think this is absolutely nuts, as do I.

My question is whether it's a lack of political will at the federal, provincial and municipal level. In Victoria that is clearly a problem. Is it the legislation that lacks teeth? Is it the courts? Is it a combination of the two?

Mr. Jerry DeMarco: It's an interesting question. The one obvious answer on whether or not there's a lack of political will is yes. Typically, at all levels for this situation with respect to the sewage, because the municipality is the polluter, the province can usually stop the situation through imposition of provincial laws. Because of the strong provisions of the Fisheries Act, the federal government could also step into the fray to prevent the situation from occurring. If any of those three levels had the will—and in some municipalities they do—in the situation in Victoria, for example, they could help to see it happen.

I think there are political realities that are preventing it from occurring. To the extent that the law needs to be changed to prevent those political gains or handshake agreements from interfering with the public's right to a clean environment, I think we do need changes in legislation with things like citizen suits or limits on the power to stay a prosecution or to overtake a prosecution. Those sorts of things would help shift the balance more towards what the legislature or Parliament intended to protect through the Fisheries Act and other environmental legislation.

Mr. Bill Gilmour: From a layman's point of view, the Fisheries Act is federal. On the Clark Drive case that you were talking about with sewage going into Burrard Inlet, how can the province stay it when it's a federal statute? Is the province filing the suit, rather than the federal government? I just don't understand.

• 1030

Mr. Jerry DeMarco: The administration of a lot of our criminal laws in Canada is done through provincial attorneys general, so it's through that route that.... Just as in a lot of criminal cases, you have a provincial crown on the case rather than a federal crown. It's the same situation with the Fisheries Act. The provincial crown does have the power under our legislative system to come in and take over those prosecutions. I don't think they would do so if it were the federal crown itself bringing the prosecution, but so long as it's a private individual they have taken the initiative.

Each time they do it, frankly, they look worse in the press. But for some reason they are continuing to do so.

The Acting Chairman (Mr. Joe Jordan): Mr. Charbonneau.

[Translation]

Mr. Yvon Charbonneau (Anjou—Rivière-des-Prairies, Lib.):

[Editor's Note: Technical difficulties]... establishing that since the beginning of the 1990s, that is for the last 8 to 10 years, the federal government leadership in law enforcement has waned. About ten years ago, in the very early 1990s, Lucien Bouchard was federal minister of the Environment. Then, according to your analysis of the situation, leadership in the environmental field has eroded.

On the other hand, you must know that the Québec network of environmental groups called the Réseau québécois des groupes écologistes has released its assessment of the Québec government record in environmental matters over the last two years. And during these last two years, the Réseau québécois has given a generally failing grade in environment to the Bouchard administration in Québec. They make an assessment of promises not kept. They say that the Bouchard administration is taking after the worse "dunces"—I'd like to hear how this is being translated—as far as environmental matters are concerned, that is the right wing of the U.S. Republican Party and the Harris administration. According to the Québec environmentalists, these are used as benchmarks by the Bouchard government for environmental matters.

Could you give me your own assessment of the environmental law enforcement trend over the last 10 years both in Canada and within the province of Québec which forms a big part of Canada?

[English]

Mr. Paul Muldoon: I don't have any specific knowledge of the environmental record in Quebec. I haven't studied it. We've studied the environmental record in Ontario in depth. What we can say is that in Ontario the budget cut of the provincial Ministry of the Environment has been over 40%. That's well over 750 staff positions. That applies to laboratories, standard setting, policy, and enforcement. It also includes restructuring some of the aspects of the Ministry of the Environment.

So we know provincially, in Ontario, there has been dramatic and profound deregulation and downsizing. My understanding is that it's reflected in the same way in Alberta and Newfoundland, and in Quebec too, but I don't have the exact data in front of me.

Mr. Jerry DeMarco: Political winds certainly change. I believe the Quebec data are in line with Newfoundland: in the range of 50% cuts in the environment in recent years. Notwithstanding the fact that Mr. Bouchard enacted the CEPA regulations that were before the Supreme Court in the fall when he was the federal environment minister, his government sided with Hydro-Québec in trying to strike those down. It's hard to guess the motivation. But certainly things change, and someone who may be concerned about the environment in one year may find political implications dictate taking an opposite position a few years later.

The situation in Quebec and Ontario, as well as in Alberta and Newfoundland, is unacceptable in the nature and size of the cutbacks. There certainly isn't the capacity at the federal level, especially in light of harmonization, to fill those gaps in enforcement.

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[Translation]

Mr. Yvon Charbonneau: Mister Chairman, I will take this opportunity to make a comment.

We have with us today the Canadian Environmental Law Association. When we ask questions to its representative on what is happening in Québec, he says "Well, I know what is happening in Ontario, in Alberta and elsewhere, but I don't know about Québec." Why do you call yourself a "Canadian organization" if you are unable to tell us about Québec with as much expertise as you do when talking about Ontario and Alberta?

Given the answer, Mister Chairman, I think that this committee should invite the Québec network of environmental groups to appear before us so that we get answers to our questions and find out about the situation in all of Canada. I am sending this message today because it is not the first time that we hear organizations with the word "Canadian" in their name that don't know whatever is happening in Québec. I would like to hear your comments. Either you are a Canadian organization or you are an organization...

[Editor's Note: Technical difficulties]... of Canada.

[English]

The Acting Chairman (Mr. Joe Jordan): Thank you, Mr. Charbonneau. I think that's an issue we struggle with on a number of fronts. A Quebec group is invited to appear after the break. That's an issue we're looking at. It's the first nations in Quebec, their environmental groups.

[Translation]

Mr. Yvon Charbonneau:

[Editor's Note: Inaudible]

[English]

The Acting Chairman (Mr. Joe Jordan): So noted.

Mr. Paul Muldoon: To respond to the member's question, though, I'm happy to bring the data. I didn't come here to talk specifically about the Quebec environmental record. If you want me to, please invite me back, and I'll come back with that data. I'm afraid that wasn't the question posed for me, so I didn't bring the data.

The Acting Chairman (Mr. Joe Jordan): And actually the chair has allowed a certain amount of latitude with the questions because of the encompassing nature of the legislation. That may be one of the reasons we've gone down these roads.

Mr. Pratt.

Mr. David Pratt (Nepean—Carleton, Lib.): Thank you, Mr. Chair.

We've certainly heard about the devolution of federal powers to the provinces over the last number of years in connection with the environment. I'm interested in knowing what the trend lines are to the south of us with regard to what's happening in the U.S., because obviously what happens from the standpoint of the continental environment is also important. Do you have any feeling whatsoever for what's happening in U.S. federalism in terms of the ebb and flow of state versus federal power there? And what's happened with cutbacks in the U.S.?

Mr. Paul Muldoon: I can make some general comments. One is that in the early 1990s, with the Republican Congress, there was clearly a severe backlash against the environment. And it was severe. There were bills in Congress to repeal major sections of the Clean Air Act and the Clean Water Act, as far as I understand.

But that backlash was in effect bridged. It was halted, at least in great part, in part because of public opinion and in part because of Republicans themselves rethinking the severity of what they were asking. For instance, there was a large campaign for a 30% cut in the budget of the U.S. Environmental Protection Agency, which did not transpire.

Clearly that's what we're hoping for in Canada: that the same kind of public reaction to what's going on in government actions causes decision makers to rethink what they're doing.

Certainly, the tension of devolution is also apparent in the United States, where there was and continues to be a struggle between federal and state levels. The difference is that in the United States the Constitution now gives a clear and unequivocal power over the environment to the federal government. Under both the Clear Air Act and Clean Water Act, big portions or components of the federal legislation are formally delegated to the states. If the states do not exercise those powers appropriately, the federal government then comes in and takes back the delegated power.

So there's a very different constitutional context in the United States, compared to Canada. It's clear, and therefore, I think, there's a greater sense of accountability in the United States in part of it. In Canada, because many of the areas are shared, you don't have that. The tension is somewhat different.

• 1040

But clearly the whole devolutionary notion is certainly not a specifically Canadian issue. It tends to be continental.

Mr. Jerry DeMarco: An interesting point to build on Mr. Muldoon's comments is that if you turn to the final page of the final attachment in my presentation, there's a footnote there regarding the effects of that Republican initiative. In that period from 1980 to 1983 when there was an assault on the environment, essentially, from the federal level in the U.S., the Environmental Protection Agency enforcement actions dropped by over 50%, but there was a safety net in the U.S. with citizen suits.

In those same years citizen suits went up and helped fill that gap. That's not a long-term solution, but that showed the public still wanted these matters enforced and eventually the Republican agenda, along with a lot of other inputs, decided to back away from that assault on the environment.

In Canada with harmonization, if we put all the eggs down in the provincial basket and they hold all the control, both through staying prosecutions or deciding on what gets enforced and what doesn't and we have no citizen suit provision that is effective—even the Ontario one is too weak—there's no check and balance. There's no one left to fill in the gap.

That's where the legislation needs to be changed, so that in a situation like this where the federal government devolves power to the provinces and the provinces don't act, or actually actively discourage those who do act, then there has to be some sort of mechanism there to uphold legislation and protect the public interest. It's something that Canada does not have.

Mr. David Pratt: The general comment is that you would say we have a few things to learn from the Americans in terms of their experience. Is that correct?

Mr. Paul Muldoon: My approach is that you look at other jurisdictions for information. I think whatever we do in Canada has to be a made-in-Canada solution; you know, the legal culture and the constitutional framework are different. There are some lessons to be learned, both positive and negative, but our view is that it's a good learning experience to see what has happened there, but I think whatever happens in Canada has to be a made-in-Canada solution.

Mr. David Pratt: Fair enough. Thank you.

The Acting Chairman (Mr. Joe Jordan): Thank you, Mr. Pratt.

I've got four more intervenors: Mr. Knutson, followed by Mr. Laliberte, Madam Kraft Sloan, and then we'll finish with Mr. Lincoln. Mr. Knutson first.

Mr. Gar Knutson (Elgin—Middlesex—London, Lib.): Thank you very much. I apologize for coming in late, especially if this question has been asked.

It seems to me, taking us down the road a little bit, that we're going to write a report that says the federal government has cut its department fairly dramatically. We'll cite all sorts of cases, examples of where there's evidence of lack of enforcement, and we'll put forward a sort of reasoned request that the federal government increase its enforcement and then we'll ask for a response. The federal government will come back with words like “partnership” and “efficiencies” and “use of technologies” and so on.

In your mind, is there one single core piece of information we could use to really highlight that enforcement is lax, something that somebody from a first-year university course could understand, that in essence makes the case?

Mr. Jerry DeMarco: I don't know if there's a one-line answer, but certainly the NAFTA report on pollution that came out last year and gave Ontario number three on the entire continent showed that we have a long way to go. The fact that the Great Lakes still cannot be safe to swim in, or used as a source of clean water, shows we have a long way to go.

The answer at the bureaucratic level can always be, well, we have enough people here, and it's really another agency's problem to deal with. But when you look at it on a big scale and just look on the ground or look in the water, it's obvious that pollution is still a major problem in Canada. So long as we can't drink the water that surrounds us, we have to increase our monitoring and enforcement resources until we achieve that goal on the ground.

Mr. Gar Knutson: What if they come back and say we'd lose too many jobs; we'd close too many industries; we're trying to take a balanced approach; Rome wasn't built in a day; one step at a time, or whatever? That's what they'll say.

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Mr. Paul Muldoon: I think what we're advocating is bigger than environment in the sense that what we're advocating is not radical. We're advocating the respect of Parliament and legislators, to respect the rule of law. We don't have a partnership arrangement when we drive too fast on the highways. Policemen don't regard us as partners in speed. No, we get our laws enforced.

The Hydro-Québec decision was mentioned earlier. That decision stated that the environment is a fundamental value of Canadians, and it underlies Parliament to ensure that those laws are protected. The criminal law aspect is a good way to go about it, or is an appropriate way to go about it.

It's analagous to the rule of law in the sense that the laws are there, and legislators are meant to make laws. So if the laws are made, a necessary component of that is that they're enforced.

There is a partnership to train people about how to comply with law, and there's a partnership in making sure the laws are fair and appropriate. But once they're there and in the books, certainly it's a fundamental precept of democracy and the rule of law that they're enforced.

I don't know whether or not that responds to the question, but I see it as being of a very fundamental nature.

Mr. Gar Knutson: Was there ever a time—say, in the last 15 or 20 years—when Environment Canada did a thorough job of enforcement, or is there evidence that shows we've taken a significant step backwards?

Mr. Paul Muldoon: My statistics only go back to 1991. One must recall that the ozone-depleting regulations, the pulp and paper regulations and the mining effluents regulations all have different histories. The pulp and paper regulations in fact were 1991-92, so history doesn't go back that far.

That's why I go back to the point of asking, first, what is the history of enforcement, and second, what is the history of its zeal to regulate? When did it regard itself as a regulator?

I would suggest that in the eighties it saw itself much more as a regulator. So part of it is that we're not just going to be partners with the regulator industry; we're also going to play the role of a regulator. Part and parcel of that role is that if we're willing to regulate, we're going to be willing to enforce.

That's where I go back. I think history is clear that it saw itself, a decade ago, much more clearly as a regulator than as a partner of a regulated industry. I look at it as a bipolar relationship. The regulator must therefore be arm's length to the regulated industry, and everything else in the middle gets mushy.

Mr. Gar Knutson: Let me change the subject and go to a narrower question. Was the citizen suits provision in Bill C-74 adequate?

Mr. Paul Muldoon: That's a good question. Appendix 4 in our enlarged submission goes through, in excruciating detail, why it's inadequate. In fact, we called part II “illusionary ”, in the sense that it's an illusion that they're actually giving any rights at all. There are so many qualifications on it that, as a lawyer, I would severely have to question whether or not I'd recommend it to a client to pursue it that way.

In a way, then, it has to be overhauled. In my comments I noted that it's more restrictive than the Ontario Environmental Bill of Rights Act. That itself has been heavily criticized because it's so restrictive. It's never been used. The Environmental Bill of Rights Act's section on the right to sue has never been used. I don't have the exact reason why, but I suspect one reason is that it itself it is so restrictive. Bill C-74 is even more restrictive.

When government officials refer to and start boasting about part II, I hope reference is made to appendix 4 of our submission. There is more than enough argument in there to suggest the inadequacies of those provisions.

Mr. Gar Knutson: We have that?

Mr. Paul Muldoon: Yes. It's in the large version I gave to the clerk this morning.

Mr. Gar Knutson: Okay. Thanks.

The Acting Chairman (Mr. Joe Jordan): Thank you, Mr. Knutson. Mr. Laliberte.

Mr. Rick Laliberte: I've kind of taken off on the comment made on the loser-pays rule, and also the citizen suits. The other aspect is a citizen's right to know.

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In hearing Environment Canada's admissions of its heavy reliance on intelligence, what is your view of whistle-blower legislation in CEPA? I don't know if it should be labour act legislation; maybe it should be CEPA legislation. Do you have ports and industries out there where labour has a growing interest in environment, along with their workers' health and safety? But it's community wellness—environment issues. What protection do you have for citizens in labour and workers out there? What vision do you have for that?

Mr. Jerry DeMarco: I'll respond briefly and then turn it over to Mr. Muldoon.

Probably the best way to deal with that situation of both the public's right to know and workers' right to know, and protection for whistle-blowers is again through a broad piece of legislation, like an environmental bill of rights that puts in rights for citizens to sue, the right to request investigations, protection from employer reprisals, and access to information. Those sorts of things should be done in broad-brush strokes with all of the legislation pertaining to environment, with occupational health and safety reference included in it. That's the mechanism.

In terms of the specifics, I'll turn it over to Mr. Muldoon.

Mr. Paul Muldoon: The right to know aspect is only partially addressed under the National Pollutant Release Inventory. Certainly if you look at the U.S. counterpart, it goes much further. We also think the right to know should be enshrined in legislation. It should be part of the legal fabric, along with the other rights just mentioned by Mr. DeMarco.

Whistle-blower laws are fundamentally important. Clearly in the last few years there has been a growing positive relationship between workers and environmentalists because workers tend to be on the front line and see what's going on. One of the issues is whether or not they can act without fear of reprisal, and that's really fundamental to whistle-blower laws. They should protect workers from reprisal when they reveal environmental infractions and issues, and should also give workers a more independent right to refuse to work when there are environmental problems going on.

These are the kinds of issues we think would be fundamentally important to discuss in the context of a federal environmental bill of rights.

Mr. Rick Laliberte: Within that context—and I may have missed it in your presentation—what do you envision with this environmental bill of rights? It's not CEPA.

Mr. Paul Muldoon: Right now there are some rights in CEPA. We see an overarching piece of federal legislation that would give citizens certain rights, not only in the context of CEPA but also in other pieces of federal legislation.

I see two or three main categories. One is the fundamental right to participate in environmental decisions. That would ensure the public had adequate access to decisions and information and would be able to participate in government decision making by way of notice and comment, better access to information and those kinds of issues, so there would be some preventative action going on.

But then as you move down that road there would also be the opportunity to bring citizen suits to allow citizens to supplement government action and enforce the laws on their own. Then there is the whole category of whistle-blower rights to protect those people using the rights in the bill from reprisal from their employers.

The Acting Chairman (Mr. Joe Jordan): Thank you, Mr. Laliberte.

Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: Thank you. In your brief, Mr. Muldoon, in recommendation three you said Environment Canada should review its commitment to a voluntary approach and examine how to renew an effective regulatory approach. I'm just wondering how this review should take place and what key elements should be addressed through the review. What are the kinds of things you're looking for and how should they be carried out?

Mr. Paul Muldoon: The context for the recommendation is the view that Environment Canada has become much more of a broker of policy issues and is not taking a leadership role and exercising the traditional role of a regulator. It sees a dichotomy between voluntary initiatives and a regulatory approach. In our view it's not a dichotomy at all. Its duty is to regulate under statutes. We see a role for voluntary initiatives when they are used to supplement, to build on a regulatory base that's already there, but I think in retrospect what we are seeing is that many of the voluntary initiatives in fact pre-empt or supplant a regulatory base. That's our real concern.

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Our experience has been that Environment Canada's reliance on the voluntary approach continues despite the fact that there's a lack of comprehensive external audit and verification of the effectiveness of the voluntary approach. They have bought into an approach without the empirical evidence that it's working, that it's more cost-effective, and that there's no better way to do it.

Our approach always has been to try to find some way to review the effectiveness of the voluntary approach, but more importantly to review the regulatory approach and to make that more effective. In other words, our view is that we agree that the regulatory approach needs updating, needs clarification, so let's attempt to review the regulatory approach and make it more efficient before we rely on the voluntary approach.

Over time a number of studies have looked at the regulatory approach. They have stated that it needs to be more timely, it needs to be more inclusive, and it needs to focus on performance and issues such as that. Once that is undertaken, I think we can then see what the role, if any, is for voluntary approaches.

Mr. Clifford Lincoln: I wanted to ask Mr. DeMarco about access to information—his request to get various data about New Brunswick, Nova Scotia, Newfoundland, Ontario, and Quebec through access to information. I was just looking at the figures and I find them outrageous.

With regard to Ontario, for 25 mills, Ontario region will take 60 hours. For Quebec, with 62 mills, Quebec will use 489 hours, which I worked out to be 61 working days. Isn't that just absolutely stupid? If it is stupid, and I am sure the evidence shows they can't spend 61 days amassing or monitoring data they are supposed to have on the computers anyway, plus compliance status reports for the year 1996—for only one year it takes them 61 days.... Then that costs you $5,000. Isn't that a clear sign that these are purely delaying tactics, or that the evidence shows there is bad faith there? Do you see that work taking 61 days?

Mr. Jerry DeMarco: There are two possibilities. One is acting in bad faith and using the access to information or freedom of information process to try to shield from the public the data they have a right to access. If the numbers are inflated, then that certainly is an indication of bad faith. However, the other alternative is that they don't have quick access to the enforcement data or compliance data and they don't actually know what is going on. That's probably more realistic and more troubling. It's actually the explanation I would prefer.

Mr. Clifford Lincoln: What is your recourse?

Mr. Jerry DeMarco: Our recourse again is political accountability. If they are telling committees such as this, or the public, that enforcement is okay, there isn't a problem, yet they are telling private individuals, if you want to know what the enforcement state of affairs is, it's going to take us 61 days to find out, those two things aren't in accord. Obviously on either avenue something is amiss. Whether that's bad faith or just no will, I'm not sure; but it's one or the other.

Mr. Clifford Lincoln: I'm certainly going to suggest to the chairman that we follow that up, because it just doesn't make any sense at all.

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The Acting Chairman (Mr. Joe Jordan): Thank you, Mr. Lincoln.

That concludes our session for today. I want to thank the witnesses for their testimony and the materials they provided.

We'll reconvene tomorrow at 3.30 p.m., room 269, where we will have the investigators and inspectors at the field level from CEPA testifying.