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, October 21, 1998

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[Translation]

The Chairman (Mr. Charles Caccia (Davenport, Lib.)): Good afternoon, ladies and gentlemen. This afternoon, we will be welcoming witnesses from the Canadian Bar Association. They're here today to help us in 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. Our witnesses are Ms. Thomson, Ms. Muir and Ms. Houlihan.

[English]

I understand you would like to speak in that order. The floor is yours.

Ms. Thomson, would you like to go first? Welcome to the committee.

Ms. Tamra L. Thomson (Director, Legislation and Law Reform, Canadian Bar Association): Thank you, Mr. Chairman.

The Canadian Bar Association is a national association representing over 34,000 jurists across Canada. We are here today on behalf of the National Environmental Law Section of the Canadian Bar Association.

Amongst the primary objectives of the Canadian Bar Association are improvement in the law and in the administration of justice, including the improvement of law in the public interest. It is in that light that we appear before the committee today.

The National Environmental Law Section has a long-standing history in commenting on environmental protection legislation. The comments we make today are not only the work of the members of the section on this particular bill but also stem from work, dating as far back as the late 1980s, that resulted in extensive resolutions being passed by the CBA council.

To make the substantive remarks, I will ask Ms. Muir to speak, followed by Ms. Houlihan.

Ms. Magdalena A. Muir (Past Chair, National Environmental Law Section, Canadian Bar Association): Good afternoon.

The Canadian Bar Association has provided a written submission with detailed comments on Bill C-32. I will comment on three aspects of that submission: government-to-government relations; enforcement and compliance initiatives; and sustainable development and an ecosystem approach. My colleague will comment on public participation.

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With respect to government-to-government relations, Bill C-32 increases the emphasis on partnerships with different levels and orders of government and harmonization of environmental standards and enforcements. The National Environmental Law Section of the CBA supports this emphasis, provided it does not adversely affect the environment and the protection of the environment.

A number of developments with respect to government-to-government relations have occurred outside CEPA but provide a context. These would be matters such as the Supreme Court of Canada decision in Hydro-Québec, which clarified the federal government's authority to regulate toxic substances under CEPA, and the Canada-Wide Accord on Environmental Harmonization. under the CCME. Aspects of Bill C-32 continue this, and address government-to-government relations.

With respect to first nations, the National Environmental Law Section notes and comments on the recognition of first nations as players in these government-to-government relations through such matters as the recognition of aboriginal and treaty rights, provisions for negotiating agreements with aboriginal governments for administration of the act, and the inclusion of representatives of aboriginal governments on the national advisory committee.

Within its comments on the bill, the National Environmental Law Section also comments on municipalities and their role, and that the Government of Canada consider entering into inter-governmental agreements as well with municipalities in appropriate circumstances.

To reiterate, the section supports these changes and changes such as this or expansion of government-to-government relations provided these changes do not diminish environmental protection, environmental enforcement, or public participation.

The submission contains detailed comments on specific provisions of the bill in these three different areas.

With respect to enforcement and compliance, the Canadian Bar Association as a whole supports a strong and continuing federal role in environmental enforcement. In August 1997, the Canadian Bar Association adopted a resolution on environmental enforcement where it urged the Government of Canada to reaffirm its commitment to environmental enforcement in three ways: by maintaining or increasing Environment Canada's staff of investigators and inspector; by increasing enforcement activity in areas of federal jurisdiction; and by using a flexible range of compliance promotion and environmental tools, including warning letters and tickets.

The National Environmental Law Section in its submission reiterates the CBA's position on enforcement, and recognizes that voluntary initiatives and economic instruments are valuable tools to complement enforcement and encourage compliance. However, they do not replace enforcement.

With respect to the voluntary initiatives and economic instruments, the National Environmental Law Section is concerned that clause 322 of the bill is too restrictive and does not provide for a wide range of economic instruments and market-based approaches. Clause 322 only refers to deposits, refunds and tradeable units.

The National Environmental Law Section submits that in order to make long-term progress, economic incentives for environmental protection need to be assessed and adjusted on an ongoing basis, and flexible legislative provisions would be required. Similarly, any system that is put in place must respect commercial commitments.

For example, clause 326 provides for regulations respecting systems relating to tradeable units. This provision would be problematic if it permits the Government of Canada to reverse trades and to bring into question the value or sustainability of any emissions-trading system put in place.

I'll also briefly note another resolution of the Canadian Bar Association, one dealing with environmental prosecution information. That would be resolution 95-03-A, which was a resolution requesting government to provide the public with information respecting the prosecution of environmental offences. This has been done somewhat under the bill with the environmental registry.

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The last area I'm going to comment on with respect to Bill C-32 is sustainable development and the ecosystem approach. Canadian Bar Association resolution 91-05-M addressed federal action for environmental protection and sustainable development. This is attached as appendix B to the submission.

This resolution urges the adoption of a number of measures, including that the Government of Canada take strong measures to promote sustainable development. The National Environmental Law Section's previous submission, in 1994, also referred extensively to sustainable development.

The section would like to acknowledge the significant advances by the federal government in Bill C-32, and even independent initiatives by different departments and organizations in the government.

With respect to the bill, the section notes and comments that the definition of sustainable development reflects the definition endorsed by the Brundtland commission.

The section also supports the ecosystem approach to environmental protection contained within the bill, such as the preamble to the bill, the definition of ecosystem, and the references to ecosystem throughout the bill. This is also evident with the support for pollution prevention approaches over the more traditional pollution control approaches.

Ms. Patricia L. Houlihan (Chair, National Environmental Law Section, Canadian Bar Association): Good afternoon.

I'll be addressing my comments to the issue of public participation. I note from reviewing some of the minutes of proceedings of this committee that there's been a lot of discussion of the issue. I will try to keep my comments fairly brief, but I'd like to identify the concern of NELS with some of the sections that address public participation.

We support the provisions of the bill that purport to facilitate public participation, but we have concerns that the way the bill is currently drafted, there may not be the results that are intended from the bill.

I'd just like to reiterate, in talking about public participation, that NELS represents lawyers who act for clients in all sectors—industry, government, and NGO. Despite this broad range of interests, we have consistently been able to agree to resolutions and briefs that support a strong role for the public, and that is no exception with respect to the position we take on the CEPA bill.

Some of our concerns may relate to the grave concern we have with respect to enforcement or lack of enforcement by the federal government. Ms. Muir referred to the resolution we've passed with respect to strengthened federal enforcement. Where the federal government does not enforce, there's an increased need for members of the public to have the opportunity to take steps with respect to environmental protection. I think that's where some of our concern lies.

To that end, I just want to comment on a couple of the issues that arise in the bill. One is that we'd like to recommend that citizens be given the same rights in provincial laws that are referred to in equivalency and administrative agreements, as they are given under the bill. This would include, of course, the right to sue, the whistle-blower protection, and rights to notice and comment.

I won't go through in detail the problems with the citizen's right-to-sue provisions, because I note that you have received extensive submissions by other witnesses on that issue.

I'll refer you to page 11 of our submission with respect to that issue. I would like to comment, though, that NELS would also like to recommend that some of the numerous prerequisites to a right to a sue be removed from the bill. We believe the way in which the process is currently structured may act as a way of diminishing the benefits of providing for a right to sue.

Finally, I'd like to refer you to one of the appendices of our submission, CBA resolution 91-05-M. It's appendix B to our submission. Ms. Muir referred to part of it.

This resolution was passed not only by the National Environmental Law Section but also as a statement of the entire CBA, which, as Ms. Thomson mentioned, represents 35,000 members across the country. Again, this resolution highlights the importance we place on providing adequate mechanisms for public participation.

I'll briefly review a couple of the paragraphs of that resolution.

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We recommend, in paragraph 3 on page 32, that:

the Government of Canada demonstrate its commitment to improving public access to environmental justice by modifying relevant federal statutes:

(a) to broaden the rules of standing in environmental matters, including in respect of civil liability, injunctive and declaratory relief and upon judicial review;

(b) to improve citizen suits and civil remedies for the violation of environmental statutes and regulations;

(c) to remove statutory limits on the quantum of civil liability for environmental damages where they currently exist; and

(d) to legislate a rule-making process for the development of environmental regulations to enhance the opportunities for public input.

In the French version, that is on page 35.

Again, as an organization we've consistently recognized the importance of public participation in environmental law. We've advocated increased opportunities and simplified mechanisms for public input into environmental law and enforcement.

CEPA falls short in this regard, and we encourage the government to take this opportunity to strengthen the rights of the public in this bill.

The Chairman: Thank you very much.

We're ready for a round.

[Translation]

Mr. Casson, followed by Ms. Girard-Bujold.

[English]

and by Mr. Knutson.

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

I heard you mention municipal governments. That's my background. I think there are a lot of resources out there in municipal government that we can tap into, in many areas of many levels of government in this country. But as far as CEPA is concerned, what role could the municipal governments play, in your mind, in developing legislation or implementing it or enforcing it? What areas were you thinking of when you mentioned that?

Ms. Magdalena Muir: I'd like to address that question. We looked at that in the context of the government-to-government relationships, which would be the different administrative arrangements that would be there.

While we haven't entirely fleshed out how it would work, I think what was envisioned was that some of the greater municipalities—let's say Toronto or Vancouver, as an example—cover quite a large area and could work very well with the federal government in terms of dealing with environmental issues jointly, but we haven't entirely fleshed out how that would be.

Ms. Patricia Houlihan: I think our basic premise is that where administrative agreements will work, and where working in cooperation with different levels of government will work, to protect the environment and not to diminish environmental protection, then that's something we would support.

Mr. Rick Casson: Then do you see that the harmonization accord between the federal government and the provinces could be expanded to take in municipal government as well?

Some people are very concerned that harmonization is going to be detrimental to environmental protection, but if we're going to get the input from all levels, then we have to have some mechanism in place to do that.

Is that kind of where you're going with your suggestion?

Ms. Magdalena Muir: I don't think we've entirely addressed how that would work in the context of the different environmental accords that are out there. The accords are something that the section has looked at, but more to the extent of almost taking a neutral position that we don't necessarily oppose or not oppose, provided there's no detrimental impact on the environment.

I think you suggest one option. I guess the question then would be, how do you identify that, and how do you prevent too much of a proliferation of parties?

Mr. Rick Casson: Yes. If you're going to involve municipal government in the solutions, and have them involved in.... They did the operations in, you know, public transit, their buildings and whatever. That's one thing, but to have them involved in the creation of the laws and the legislation as well is another end of it.

Ms. Magdalena Muir: I might just reiterate that we were referring to the agreements that are in the context of CEPA, which of course are a lot narrower than the ones you're raising, which are basically a whole range of federal-provincial jurisdiction issues.

Mr. Rick Casson: Mr. Chairman, Mr. Gilmour would like to supplement my question.

The Chairman: Fine.

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

I'd like to expand on the right to sue. You're right in your opening comments that we've had many submissions, but they've been all over the park, from environmental groups saying it's not strong enough to the department saying it's basically balanced to the companies saying it's too onerous.

From your point of view, the way it's written now, is it workable? I understand that on page 11 there are some points, but could you expand on whether you think it should be rejigged, or on which direction it should go?

I think you said removal.

Ms. Patricia Houlihan: No, I definitely didn't say removal—

Mr. Bill Gilmour: Okay.

Ms. Patricia Houlihan: —and our submission does not say removal.

What we note is that there are several prerequisites that must be met prior to reaching the stage where there is actually a right to sue. We point out some of the problems with some of those prerequisites and our concern that they may act as a disincentive for members of the public to take action in a situation where it may be required.

Again, that's tied to our concern with the lack of resources and perhaps, in some cases, lack of willingness—and I'm not sure what the reasons may be—where the federal government is not enforcing. You need to have some mechanism for the public to take action.

So we definitely don't advocate removing it. We just think it's a bit cumbersome as it's currently worded.

Mr. Bill Gilmour: Okay. But the hurdles in there, you're suggesting, are too high for the ordinary citizen to come forth to launch an action.

Ms. Patricia Houlihan: Yes. There are a lot of disincentives.

Mr. Bill Gilmour: If we were to remove that, would it open the door for frivolous action on different parties, or do you feel it could still be balanced but we'd need to soften it a bit?

Ms. Patricia Houlihan: I think it's unlikely that it would open the door to frivolous actions, because our legal system has built in barriers to frivolous actions, and the court does have mechanisms for controlling frivolous actions. I think a lot of people have expressed concern about that, not just in this forum but also with respect to other legislation in this country. But I think that may be based primarily on what's happened in other jurisdictions.

Mr. Bill Gilmour: Okay.

Thank you, Mr. Chair.

The Chairman: Thank you.

[Translation]

Ms. Girard-Bujold, please.

Ms. Jocelyne Girard-Bujold (Jonquière, BQ): On page 5 of your brief, you refer to public participation. You state:

MELS supports those provisions of the bill which facilitate public participation.

In your opinion, what key suggestions in your brief would need to be implemented to ensure successful public participation? What are your essential recommendations? For example, you suggest in your brief that a preamble be added to the bill. Do you think this is essential? Your suggestion is on page 10.

[English]

Ms. Patricia Houlihan: Which paragraph would that be with respect to the preamble?

[Translation]

Ms. Jocelyne Girard-Bujold: At the end of the first paragraph on page 10, you state:

The preamble should contain a statement on the desirability of information dissemination and public participation.

Do you believe this is essential? Are you saying this is something we should include in the preamble? Why would you want to include that statement in the preamble, and what criteria are you applying?

[English]

Ms. Patricia Houlihan: I haven't actually located the section you're talking about, because the page numbers are different, but the preamble doesn't—

[Translation]

Ms. Jocelyne Girard-Bujold: Forgive me, I was using the French version. The paragraph I am referring to is the first one at the top of page 10 of the English version, entitled "Section 13(1) and 13(2)".

[English]

Ms. Patricia Houlihan: I'm not certain that it's essential, because the preamble is not in itself legally binding, but the preamble can be used to guide the interpretation of the rest of the statute should there be areas where it's unclear. So by adding to the preamble a statement with respect to enforceability and public participation, that then gives the court a basis for interpreting sections that may not be clear.

In those cases, you would assume that, based on the preamble, it would be likely that it would be interpreted in favour of greater enforcement and public participation.

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So while it's not legally necessary, if the bill is drafted strongly enough, it helps in the interpretation.

[Translation]

Ms. Jocelyne Girard-Bujold: You are saying that the courts will use the preamble to apply the legislation. No? That is not what the courts will use to apply the legislation?

[English]

Ms. Patricia Houlihan: They don't rely on the preamble. The preamble is not a legally binding part. They use it as a guide. If the section is clear, there is likely to be no reference to the preamble. It's only where there's lack of clarity.

Ms. Magdalena Muir: Perhaps I can comment briefly.

The comment dealing with the preamble is referring to the environmental registry and the desire that this registry can function very well to deal with both enforcement and public participation.

[Translation]

Ms. Jocelyne Girard-Bujold: So in your opinion, this does not need to be in the preamble. It is not a key element of the preamble. You have just mentioned this in passing. That is what I understand from your last statement.

[English]

Ms. Magdalena Muir: I think all of our comments here were made because parties thought they were significant. Particularly, the dissemination of information can be very important to effective enforcement or public participation.

Patricia has already raised the comment that if there's a concern for parties with respect to enforcement by different levels of government, the public participation can have a very strong role. So for someone to make an informed and proper choice, correct information might be useful. We had a concern here that just the information and the description of the information in the environmental registry was very sketchy, and as such it couldn't live up to its obligations, or couldn't be as much as it could be.

[Translation]

Ms. Jocelyne Girard-Bujold: I'd like to talk about the paragraph headed section 22(1). Please turn to the top of page 12 of your brief.

You state:

This leaves open the question of what is "a reasonable" time.

You also state, at the bottom of page 11:

During a lengthy investigation, significant environmental damage could continue.

What do you mean by "reasonable time"? In your opinion, should we include the concept of "reasonable time" in the bill?

[English]

Ms. Patricia Houlihan: Yes, that's what we were suggesting, that it may be useful to have. Because reasonableness is something that would then have to be interpreted, it would be useful to have an actual deadline, an actual timeframe.

[Translation]

Ms. Jocelyne Girard-Bujold: But what are you suggesting we include in the bill? What do you consider a reasonable time?

[English]

Ms. Patricia Houlihan: I'm sorry; I haven't considered, actually, what a reasonable deadline would be with respect to that section.

Ms. Magdalena Muir: Arguably, it would have to depend on the length and scope of the investigation in question.

[Translation]

Ms. Jocelyne Girard-Bujold: That is very vague. I thought you had more specific answers. In your brief, you state that "significant environmental damage could continue." That is in the bill too. I would have liked you to tell us what you consider to be a reasonable time. This is very important, because if measures are not taken promptly, if the environmental evaluation and audit phase is too long, the problems we fear will in fact occur. You talked about major disasters. Investigations can be lengthy. So I would have liked you to tell us what exactly you consider to be a reasonable time. Thank you.

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

[English]

Mr. Knutson, followed by Madam Carroll.

Mr. Gar Knutson (Elgin—Middlesex—London, Lib.): Thanks very much, Mr. Chairman.

I take it—and I want to make sure I understand this—you're saying that in the spirit of harmonization, the federal government's legislation regarding public participation or lawsuits by citizens shouldn't be weaker than the provincial legislation that's already on the books.

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Which provinces have stronger or better legislation, as we speak?

Ms. Patricia Houlihan: I may have misunderstood your question, but what we're saying is that if there is an equivalency or administrative agreement entered into between the federal and provincial governments—

Mr. Gar Knutson: Which there has been.

Ms. Patricia Houlihan: Right.

Mr. Gar Knutson: The harmonization agreement is all about equivalency, harmonization in the spirit of no duplication.

Ms. Patricia Houlihan: We think one of the minimum requirements is that the protections that exist under the bill should be in place in the provincial law that's referred to in the agreement.

Mr. Gar Knutson: So you're not saying that in the spirit of harmonization, we should, if Ontario, for example, has the Ontario Environmental Bill of Rights, at least meet that standard?

Ms. Patricia Houlihan: No, we're not saying that the federal government should meet each of the individual provincial requirements. We're saying the opposite, that the provinces should not be able to adopt a lesser standard.

Mr. Gar Knutson: The Ontario Bill of Rights is higher.

Ms. Patricia Houlihan: Yes, it is.

Mr. Gar Knutson: So we shouldn't meet that standard?

Ms. Patricia Houlihan: We suggest, I think, in some of our comments that the Ontario...or maybe that didn't make it into our submission. We analysed the Ontario standards, but that's not what we're saying with respect to this. We're saying that the federal standard should be the bare minimum, and the provinces should not be able to go below that.

Mr. Gar Knutson: Other than Ontario, do other provinces currently have a higher standard, or better standard?

Ms. Patricia Houlihan: On which issues?

Mr. Gar Knutson: Public participation and citizen suits.

Ms. Magdalena Muir: I would have to say that would vary across the country, and we haven't done that type of survey, comparing the provincial and the federal.

I think the key concern is that these agreements not result in parties not at least living up to the federal standard. Now, if there's a provincial standard that is higher, the provincial government will, of course, enforce to that standard as well.

Mr. Gar Knutson: Maybe. Who knows?

Ms. Magdalena Muir: Then there would be citizen rights or public participation rights under the provincial legislation. The only comment we were making was more to keep the federal standard as the minimum.

Mr. Gar Knutson: Right.

It's been strongly recommended to us by two environmental organizations—the Canadian Environmental Law Association and...I can't remember; I don't know if you know Mark Winfield or Paul Muldoon—that this legislation, the way it's written now, gives a bogus right, a phony right, and they would rather, on behalf of the Toxic Caucus of the Canadian Environmental Network, if we can't improve it and make it more like the Ontario Bill of Rights, see us scrap it entirely, because it sets a bad precedent for other legislation that may come down the pipes, such as endangered species legislation, or it would set a bad standard for provinces or whomever. They're very pointed on that, that if it can't be improved, it should come out entirely.

Do you have any views on that?

Ms. Magdalena Muir: Just to clarify, you're referring to administrative agreements and equivalency arrangements?

Mr. Gar Knutson: No, I'm referring to citizens' suits.

Ms. Patricia Houlihan: That's not our position.

Mr. Gar Knutson: Can you explain why you think that, as written, it's better than nothing? Their point is that if the bar is set too high....

Ms. Patricia Houlihan: At least there is a right to sue. We do agree that there are too many roadblocks to getting there, but we have not as an organization advocated removing that provision altogether. We think it could be improved, but we're not saying it's an all or nothing, and if it's not improved to take it out.

Mr. Gar Knutson: Okay.

At the bottom of page 6, you're suggesting that in paragraph 2(1)(a) the word “cost-effective” be deleted. Presumably we could take out the word “cost” and leave in the word “effective”?

Ms. Magdalena Muir: Our concern about that would be that it basically places a cost on preventive and remedial measures, and that if this bill is truly committed to preventive and remedial measures to protect, enhance and restore the environment, “cost-effective” should not be there, because that modifies it and provides a limitation.

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Mr. Gar Knutson: Can you expand on your phrase that it “could undermine the rest of the provision”?

Ms. Magdalena Muir: Well, in the absence of that, what we talk about is:

2.(1) In the administration of this Act, the Government of Canada shall, having regard to the Constitution and laws of Canada,

(a) take preventive and remedial measures to protect, enhance and restore the environment;

If we put “cost-effective” in there, then the preventive and remedial measures to protect, enhance and restore the environment will be modified by the fact that they be cost-effective. If there's a true concern or problem, should cost be a dominant factor in both preventing something or remediating something?

Mr. Gar Knutson: Okay.

Ms. Magdalena Muir: There's a real concern about that being an inherent limitation in what is a general principle of the act.

Mr. Gar Knutson: Does anybody else want to comment? No?

That's all I have.

The Chairman: Madam Carroll followed by the chair, unless someone else is ready.

Ms. Aileen Carroll (Barrie—Simcoe—Bradford, Lib.): Thank you, Mr. Chair.

As usual, Mr. Knutson has scooped a couple of my comments. I too had a concern on page 5, how you would reconcile the discussion that no province's legislation can in fact be less than CEPA with the harmonization agreement. I'm not sure that the Canadian Bar Association has looked at the recently signed harmonization agreement. Or have you included that in your deliberations?

Ms. Patricia Houlihan: No, we haven't.

Ms. Magdalena Muir: We didn't consider it in the context of this. We have briefly looked at it and made comments on the earlier versions, not the most recent one with the three subagreements.

Ms. Aileen Carroll: I would be most grateful, if you had the opportunity to do so, if you could give us input on any insights you might have in that regard.

I note too that on page 6—and I know we've made reference to this—in the second paragraph you say, “The right of citizens to bring an action should not be severely restricted under CEPA.”

In your opinion, is it severely restricted under the current CEPA, as proposed?

Ms. Patricia Houlihan: Neither of us remembers the current wording.

Ms. Aileen Carroll: You're making reference, then, just to what we had before.

Ms. Patricia Houlihan: No. When we were looking at this we were looking at the differences between the two, but at this time, I can't recall. So it's hard to comment on the wording.

Ms. Aileen Carroll: Okay.

The other section I wanted to draw your attention to—before I get cut off—is one Mr. Knutson has made reference to as well, your suggestion that “cost-effective” be deleted, “as the phrase could undermine the rest of the provision”. I think you've dealt with that quite well, that you see becoming dominant whether or not an action is cost-effective rather than whether or not it remedies or addresses the situation.

Ms. Magdalena Muir: I think that also flows into some of the comments within the actual submission dealing with the pollution prevention approach as well. Some of the costs that are there are often more for the remediation than for the actual prevention of the pollution.

Ms. Aileen Carroll: So the recommendation you've made really flows through the spirit of the legislation as well as to the specific reference in the preamble.

Ms. Magdalena Muir: Yes.

Ms. Aileen Carroll: I think that's important for us to know.

Perhaps I can just leap quickly to page 32 of the English version, and your resolution 91-05-M, paragraph 3:

(a) to broaden the rules of standing in environmental matters, including in respect of civil liability, injunctive and declaratory relief and upon judicial review;

I wonder if you could “lay-icize” that for the committee.

Ms. Patricia Houlihan: “Standing” is the right to bring an action in an environment case. In the past there have been problems because the courts have often said if you don't have a direct interest or are directly affected—and that has often been interpreted to mean a property interest or a direct damage to the person—then you cannot have standing to appear.

What this is saying is that we think the rules of standing should be broadened and clarified in environmental matters so that actions could be commenced by those who could not necessarily prove a direct property or individual damage case.

Ms. Aileen Carroll: Thank you.

Are we going to have a round two, Mr. Chair, or should I keep going until you cut me off?

The Chairman: No, you have time to complete your five minutes.

Ms. Aileen Carroll: Thank you.

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In your submission, you say, on page 2:

In August 1997, the CBA adopted a resolution on environmental enforcement, which remains the keystone of the CBA's position.

It goes on to make reference to the needs directly related to enforcement.

That, I assume, is still your keystone recommendation.

Ms. Magdalena Muir: It is still, and it is something that as the section and as the CBA we have followed through on, with letters and correspondence to Environment Canada, to different government departments, stressing and maintaining that position.

Ms. Aileen Carroll: I assume you would have read this committee's report with regard to enforcement.

Ms. Magdalena Muir: I have several documents from the committee, but not here in my briefcase. I have seen the continued emphasis on enforcement.

Ms. Aileen Carroll: Just so I'm clear, that's August 1997. So when we go back to 91-05-M, and you make reference to the Canadian Bar Association's meeting in Vancouver of August 1989, that's not a mistake. The date stands, right?

Ms. Magdalena Muir: I think what these resolutions show—and there's another one I've referred to as well—is that the CBA as a whole has a very ongoing interest in environmental protection and in the federal role with respect to the environment. These are almost like evolutionary resolutions that have been passed by the bar as a whole.

Ms. Patricia Houlihan: It's a consistent theme, and something the entire organization supports. So it is a theme that runs through our organization's policies.

Ms. Aileen Carroll: Indeed, then, it reflects the meeting of the bar as a whole. It brings the weight of that.

Ms. Patricia Houlihan: Yes.

Ms. Aileen Carroll: In addition, it brings the historical perspective and ongoing consistency.

Ms. Magdalena Muir: Perhaps Tamra can comment on how we make these resolutions.

Ms. Tamra Thomson: There are a number of resolutions that have been adopted by CBA council that really do build on each other. We have not provided all of them to the committee, in the interests of paper to you, but they really do build on each other.

The CBA council is like the parliament of the CBA, so even though they are brought by the National Environmental Law Section, or by its predecessors, they have been adopted by the parliament of the CBA as a whole.

Ms. Aileen Carroll: As such, we could probably assume they represent the priorities of the provincial branches of the CBA?

Ms. Tamra Thomson: That's correct.

Ms. Aileen Carroll: Thank you.

That's all, Mr. Chair.

The Chairman: Thank you.

If there are no other questions on the first round, then I have a couple of questions.

Mr. Herron? No? Okay.

I would invite you to take us back to your 1996 reply to the government response, appendix C, and enquire whether those positions are still held by you. Because they are strong and helpful.

On the precautionary principle and science, which is the first item in that reply, as you do already on page 6 of your brief, when you suggest the deletion of “cost-effective”, the statement is made that the inclusion of cost-effective would completely undermine this fundamental guiding principle of the precautionary principle.

This is a very important statement you make there. Do you still hold that position?

Ms. Patricia Houlihan: Yes, and I think that's reflected in the brief we've now provided.

The Chairman: And that is what you intended in reply to Mr. Knutson earlier?

Ms. Patricia Houlihan: Yes.

The Chairman: Good.

Moving to reporting, are you still of the view that it should be a five-year review instead of seven?

Ms. Magdalena Muir: Given the duration of this five-year review, I would certainly advocate that.

The Chairman: That was a diplomatic answer.

Moving on to the right to sue, does that position still stand?

Ms. Magdalena Muir: Patricia can comment on the specifics of that, but one thing that might help is that we deliberately made this submission on the bill not as comprehensive as the one before, because we hold by and stand by the earlier 1994 submission. This is to complement or to touch base on where things were not implemented.

Ms. Patricia Houlihan: At our meeting on how our submission would be drafted, that's what it was based on, that we've made these submissions in the past, and those would become part of our current submission.

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The Chairman: That's very helpful. On the right to prosecute, for instance, you are recommending that a citizen's right to undertake a private prosecution should not require the consent of the Attorney General.

Ms. Patricia Houlihan: Yes.

The Chairman: On the next page, when it comes to spills, leaks and other incidents, there is still need for federal regulation to fill the current void.

Ms. Magdalena Muir: I would have to mention that this is quite a detailed comment here, and we haven't turned our minds to it again specifically in the drafting of this submission. But there is no reason why that position is not still being held. I just have to inform you that we did not specifically look at this matter in drafting this submission.

The Chairman: Fair enough.

I'll move into biotechnology, which is as hot now as it was then. Your view, when Marshall Burgess, your distinct predecessor, was the chair, was that the government should accept the recommendation of the standing committee to develop national standards to regulate biotechnology environmental effects.

Are you satisfied that they are not in existence yet?

Ms. Magdalena Muir: I can respond a bit to that. I think we would support the idea of CEPA trying to regulate biotechnology and genetically modified organisms. As you can see by the detail of some of the comments we have in our submission, we have some degree of concern about how well it's done under the bill itself and the actual drafting of the language and how well it deals with the science. However, I think there is a perception, particularly from the members involved in this who work in this area, that there is a real gap with respect to the legislation and the policies, particularly at an international level.

The Chairman: Hence, do I take it that you believe a regulatory scheme is desirable under CEPA?

Ms. Magdalena Muir: There is a need to have a regulatory scheme that is up to date, that is timely and that reflects different events in development that are happening both nationally and internationally.

Ms. Patricia Houlihan: A comprehensive scheme; as it says in this recommendation, we do think there should be a comprehensive scheme.

The Chairman: Then on toxic substances and their control, the statement is made that the public be given authority to file notices of objection when new substances are classified. The government, in its response, said that it rejected this idea because it would “thwart the rapid decision making process ” in this area. Then you went on to comment that the government had so far classified only 44 substances in 5 years.

At present, the proposed legislation ends at accelerating the process of putting substances on the list. Are you satisfied that the process is sufficiently fast to make this particular recommendation unnecessary, or do you still feel it is necessary?

Ms. Magdalena Muir: I'd make the observation that historically there have been real problems with classifying substances as toxic under CEPA. I know a number of the other parties, including the Canadian Environmental Law Association, have quite a few concerns on that matter. However, I don't know if we could say with any degree of confidence, or even opposition, whether or not the process as contemplated now will be more effective.

The Chairman: Fair enough.

Finally, going to page 7, perhaps you could elaborate for a moment on your last paragraph in terms of what you intended to communicate when you wrote:

The definition of pollution prevention seems to require that both “pollutants and waste” be avoided or minimized. This raises the meaning of “pollutant” and how it differs from “waste”.

Can you carry your thinking here a little bit further?

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Ms. Magdalena Muir: Just hold on one second. I'm going to turn to the actual legislative provision, if I may.

The Chairman: Yes.

Ms. Magdalena Muir: I can tell you that a bit of the background thought in there was just the nature of what is meant by both “pollutant” and “waste”. Obviously, things can be a waste but don't necessarily have a toxic impact—sand, let's say, or a substance like wood. We just thought this might have been something where it might be useful to have, given the use of the phrase in there, a definition of what it means.

The Chairman: Are you recommending a definition of “waste” in the act? Is that what you're saying?

Ms. Magdalena Muir: To the extent that it's used and has a significant role, yes.

The Chairman: And what would be your suggested definition?

Ms. Magdalena Muir: I don't think I could give it to you right now.

The Chairman: Do you think you could at another date? A week from now?

In other words, do you have the resources to investigate that subject, which is certainly bedevilling this committee? I should tell you that by way of background. We also are groping with that particular definition.

Ms. Magdalena Muir: It's not the word; we're just discussing it in terms of what commitment we can make in what timeframe, part of the reason being that a number of parties from the National Environmental Law Section now are scheduled to have meetings in Ottawa until the end of this week. So it's the time commitment.

The Chairman: Let them know that if they wish to include us in their prayers, and they rush to let us know in a couple of weeks, if they have a definition, we would welcome it.

Ms. Magdalena Muir: I'm interested that you've picked up on this point. Perhaps a useful thing we could agree to do would be to address this paragraph and to clarify it, and perhaps provide a letter within a two-week period. That would be acceptable and fit within your deliberations?

The Chairman: Yes, that would be very helpful. Thank you.

This ends the first round.

Who is ready for the second round? Mr. Knutson.

Mr. Gar Knutson: The issue of the act being residual to other federal acts has been a major point of contention. Subclause 2(2) makes it residual. Some people think this is a step backwards from CEPA 1988. I wonder whether you share this concern.

Ms. Magdalena Muir: Would you reiterate the question, please?

Mr. Gar Knutson: Sure.

Ms. Patricia Houlihan: I don't think we've adopted a position on that.

Mr. Gar Knutson: Do you have any views?

Ms. Patricia Houlihan: Personally, yes, but....

Mr. Gar Knutson: Why don't you share them with us?

Ms. Patricia Houlihan: We're here to speak on behalf of the CBA.

We thought that should be clarified, and I think that's what this paragraph is getting at. If CEPA is supposed to be residual, it should be clearer. We weren't certain that it was really clear in the legislation, that a court wouldn't look at that and say, well, it's really—

Mr. Gar Knutson: If it was clearly residual, isn't that bad news for the environment?

Ms. Patricia Houlihan: That's our overriding theme, in any event, that any changes with respect to enforcement, public participation, any changes to the act, should only be such that the environment will not be disadvantaged as a result. That's sort of the same thing as the harmonization agreement. We support them to the extent that the environment will not be harmed as a result.

Mr. Gar Knutson: But that's easy; everybody can agree on that. The pulp and paper guys can agree on that. Everybody can agree on that. David Pratt can agree on that. It's getting to the finer points...and I appreciate that your whole organization isn't here.

Ms. Paddy Torsney (Burlington, Lib.): That was a bit of a shot at David Pratt.

Mr. Gar Knutson: No, I—

Ms. Magdalena Muir: I think one of the issues in there really is that this is the act that we're looking at now, and to the extent that it's not going to apply, or parties agree that it not apply, or the circumstance is that it not apply, it should be clearly stated that it shouldn't be really an area of ministerial discretion or discretion between different government departments.

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I think it's a pretty clear position we've been taking with respect to the administrative as well, that what the rights are there should be very clear. It's no different to harmonize between the different government departments who often don't have the same view or necessarily collaborate on all issues.

Mr. Gar Knutson: Right. And you think this section...if you have some environmental problem and Environment Canada says, oh, it's really Ag Canada, and applies under such-and-such an act. So the citizen goes to Ag Canada, and they say, no, go back to Environment Canada; it applies under CEPA.

Ms. Magdalena Muir: There's that aspect, but I think there's also the other aspect, where let's say there's a clear public participation right under CEPA and then the two ministers get together and they decide that another piece of legislation is sufficient to address the issue and CEPA is not required—but there are no public participation rights under that other piece of legislation. The Canadian Environmental Protection Act has quite extensive public participation, at least compared with other older pieces of federal legislation.

Mr. Gar Knutson: The 1988 version does? Is that what you mean?

Ms. Magdalena Muir: Yes, because I'm referring to public participation rights compared with, say, a statute that might regulate agriculture, or transportation.

Mr. Gar Knutson: Right.

I noticed, on page 37 of your brief, the right to prosecute. This was the appendix C analysis of the CEPA five-year review.

You say, “NELS believes that a citizen's right to undertake a private prosecution should not require the consent of the Attorney General.” This is the first time this has come up, that I know of; it may have been raised while I was away.

Can you educate me on what the law is now in terms of trying a private prosecution under a federal statute?

Ms. Patricia Houlihan: You do have a right to prosecute as a citizen, to bring a private prosecution. There have been problems, however, in that, for example, in British Columbia, the AG will step in, in all cases, and decide whether to either take over the prosecution or stay it. In effect, you don't as an individual have a right to prosecute where the government fails to do so.

That's one of the concerns NELS has been looking at. If a statute such as the Fisheries Act gives a right for an individual to take an action, that's a right that should be guaranteed and not subject to the discretion of the AG.

Mr. Gar Knutson: Where is it written? I don't doubt you, but what law would I have to change? Where does the AG get his authority to stay prosecutions brought by them?

Ms. Patricia Houlihan: We may argue that the AG doesn't have the authority to do that, and that's one of the problems in British Columbia.

Mr. Gar Knutson: You “may”? Has that been sorted out by the courts?

Ms. Patricia Houlihan: No, that's one of the positions we may be taking.

Ms. Magdalena Muir: I actually had to look at this on another matter, which is the only reason I can comment a bit on it. It's partly under the responsibility for the courts that the Attorney General, whether in the province or the federal government, can have the right to a common law, and during the interpretation of the court system to move in there and to basically stay a prosecution that's enforced. That's just through the overall jurisdiction of the courts.

However, if the actual act said that the Attorney General, either in right of the province or the federal government, had no right to stop a prosecution, and that perhaps the only check would be the courts deeming that it wasn't frivolous or vexatious, in that instance that right would not be there.

So seemingly, it's more a right that exists just on the administration of justice, or in practice how the courts work, and to take that away, one would just have to say that is not the case. You would almost need a negative provision to take it away.

Mr. Gar Knutson: Any suggestions on the language or where we should write it in?

Ms. Magdalena Muir: We haven't actually put together wording on that. Given that we've agreed to provide you a response on the other matter, perhaps we could give you at least a preliminary suggestion at the same time, if that's deemed to be of interest.

Mr. Gar Knutson: I wouldn't spend too much time, because I think the sky will start to fall if we start to do this. AGs in provincial governments will get really annoyed with us.

Ms. Patricia Houlihan: Fortunately, it's only been, I think, British Columbia that's taken the policy statement of always stepping in, but it is an area that could cause problems.

Mr. Gar Knutson: It might be worth looking at.

That's all I have.

• 1635

[Translation]

The Chairman: Thank you.

Ms. Girard-Bujold, please.

Ms. Jocelyne Girard-Bujold: On page 10 of your brief, in the paragraph on clause 14, you state:

The prohibition against civil or criminal proceedings for disclosures made in good faith through the Environmental Registry is open to abuse in the absence of criteria for the inclusion of information in the Registry.

Could you explain these criteria in greater detail? This is on page 10 of the English version of your brief.

[English]

Ms. Magdalena Muir: In terms of the criteria for the environmental registry, what we have in the bill as it stands now is subclause 13(2), which says:

(2) The Minister may determine the form of the Environmental Registry, how it is to be kept and how access to it is to be provided.

So I do not believe there is extensive detail in the bill as to what the criteria is.

Ms. Patricia Houlihan: That's the problem—the absence of criteria. That's what we're talking about, that there isn't any criteria.

[Translation]

Ms. Jocelyne Girard-Bujold: You should tell us what criteria you feel should be considered.

[English]

Ms. Patricia Houlihan: Not at this moment, no. We haven't considered that in detail.

Ms. Magdalena Muir: I'm not going to answer it with real specifics, but this section deals with the information that's available there. I think what one would want to avoid is that in the absence of detailed criteria, you would not want to have a situation where someone discloses something and by virtue of that disclosure, they're immune for civil or criminal proceedings, because in essence you might be protecting parties by allowing them to disclose.

So that was really the concern, that if there is a prohibition or protection for disclosures made in good faith in the registry, it be carefully defined what kind of information is provided, because it should not be conferring a degree of immunity.

I'm looking at clause 14 in there as a whole. It says:

14.(1) Despite any other Act of Parliament, no civil or criminal proceedings may be brought against any person mentioned in subsection (2) for the full or partial disclosure in good faith of any notice or other document through the Environmental Registry or any consequences of its disclosure.

I think we're just pointing out that if there's going to be some degrees of protection, be very careful to define what you're providing.

One power that's not really under the act but that you sometimes see discussed quite a bit in environmental law is the whole nature of environmental audits. Can a prosecution arise based on the fact that someone discloses a breach?

I'm not saying that's the identical to this, but that's where you have some of those issues coming up.

The Chairman: Thank you, Madam.

Mr. Gilmour, please.

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

To follow up on Mr. Knutson's comments about the Attorney General, it wasn't during these hearings but during enforcement, when we had one of the enforcement officers from B.C., who wasn't happy that they had what they thought was a clear pollution charge and yet the Attorney General did go in and stay the procedure.

Now, in this legislation, with the right of the Attorney General in it, are we breaking new ground, or is it common in federal legislation that the Attorney General would have the right to stay?

Ms. Patricia Houlihan: It's nothing new.

Ms. Magdalena Muir: It's the impact of the operation of the courts and who administers and manages the courts. For example, in a criminal charge, I can lay a private prosecution in the criminal courts, but if the Attorney General always has the right—and this would be in right of the province, because they tend to administer the criminal system in the provinces—to go in there and to first of all say, no, you cannot proceed with this, or to supplant me with its own prosecution, as soon as it puts its own prosecution in, then my role as a private citizen in launching a private prosecution is removed, and the Attorney General, acting on behalf of all the public, follows through on that. This can be problematic if, let's say, they then don't pursue it as aggressively as I would as an individual. So I would give that example.

Ms. Patricia Houlihan: It's problematic where people perceive that it's done for political reasons as opposed to being based on the true tests that are normally applied.

Mr. Bill Gilmour: Thank you for the clarification.

Thank you, Mr. Chairman.

The Chairman: Thank you, Mr. Gilmour.

• 1640

On page 33, in your appendix B, there is a paragraph in your resolution that dates back probably several years, judging from the preamble. Resolution 5, which is still of actuality today as it was when it was drafted, reads:

that the Government of Canada adopt a national strategy to address the problem of toxic contamination and

—these are the key words—

set a national regulatory goal of zero discharge for persistent toxic chemicals.

Would you have any suggestions to make as to how this goal of zero discharge is to be pursued? It seems to be rather elusive despite the lapse of time.

Ms. Magdalena Muir: I think any suggestions we have—and Patricia can perhaps complement this—would be more general in the sense that, you know, we've endorsed the precautionary principle approach, a pollution prevention approach, and the idea that there be a mix of solutions that are out there, that there not only be a command control approach but also at least the potential use of a broad range of economic instruments or market-based approaches.

Unfortunately, we couldn't give more than that other than to suggest that there be a range, that the act itself act as an empowering tool to have a range of solutions there, and that not all be focused on just the prohibition.

Ms. Patricia Houlihan: I think part of the problem may be that there isn't, to my knowledge, at this time a national regulatory goal of zero discharge that's being pursued with any vigour. So no matter what steps you take to try to achieve improvements, you're not going to achieve the goal when you don't have it. When you don't know where you're going, you're not going to get there—that type of thing.

The Chairman: Thank you.

Mr. Pratt.

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

On page 10 of the submission, you have comments with respect to paragraph 16(4)(d). Rather than go through the entire section, I'll let people read it on their own, but the last line in your submission says, “The intent and breadth of this section is unclear, and needs to be considered carefully.”

It seems to me, just on the face of it, that you'd want as large a breadth as possible in terms of protection for whistle-blowers. What specific suggestions do you have for the wording of that section?

Ms. Patricia Houlihan: I think the primary crux of this section is that you can't regulate like that. You're talking about employer-employee relationships with respect to the whistle-blower protection, but that's not really clear in this section the way it's currently worded. It's mainly a drafting comment as opposed to some sort of policy suggestion.

Ms. Magdalena Muir: At a policy level, we would support very broad whistle-blower protection. The concern here was how this section was drafted and what it's intended to refer to. For example, what is meant by “dismiss or harass”?

A bit of a concern, too, is who is considered an employee, and just the degree of different parties that may be affected by this.

Mr. David Pratt: Do you have any specific recommendations for that section?

Ms. Magdalena Muir: If you ask whether we've thought of redrafting it, no. We haven't considered alternative drafting for it.

Ms. Patricia Houlihan: I think it just needs to be clarified, which is something the legislative drafters can do quite simply. I mean, it just needs to be restricted, or clarified, in terms of who it is applying to and what it mean, exactly.

The idea of whistle-blower protection is one that we support; it's just making sure that people understand the meaning of it. I guess the goal is to ensure that each of these sections doesn't end up in court, with two sides arguing over what the section really means.

Ms. Magdalena Muir: We've made a couple of comments through our document. In some ways—and I think the intent with the act is to go for the full range of federal authority—there sometimes can be a concern with the nature of how that's defined within the act. The key concern here was what was a “federal work or undertaking”.

We had a specific comment on that, I believe, in the definitions section, if I can turn to that.

Mr. David Pratt: Yes, a definition of “undertaking”. I was looking at it a few moments ago.

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Ms. Magdalena Muir: The one that was the most concern, if you look at the definition of “federal work or undertaking”, is that there's a list of a whole bunch of matters that, under constitutional law, typically fall within the jurisdiction of the federal government.

Then there's the final definition, under 3(1)(i), which seem quite problematic, under the definition of federal work and undertaking, in connection with this other provision that was problematic. Because what it says is:

(i) a work or undertaking outside the exclusive legislative authority of the legislatures of the provinces.

Well, given our constitutional system, nothing is ever really exclusively within the jurisdiction of either level of government.

Mr. David Pratt: I'm sorry; could you repeat that?

Ms. Magdalena Muir: I'm talking about this phrase:

a work or undertaking outside the exclusive legislative authority of the legislatures of the provinces.

Mr. David Pratt: I'm sorry; where is that?

Ms. Magdalena Muir: I apologize. That's under the definition of “federal work or undertaking”, part of these discussions. This is why there was a concern about the other aspect—that is, how did that definition interrelate with paragraph 3(1)(i) under the definition of “federal work or undertaking”, in CEPA?

I apologize for not giving you the numbers.

Mr. David Pratt: Okay, I see it here now.

Ms. Magdalena Muir: You'll see that in our comments under clause 3, as well. We say here:

This definition of a federal work or undertaking seems overly broad, and unnecessary. The matters listed in (a) to (h) are exhaustive, and few matters are entirely within the exclusive jurisdiction of the province or the federal government. NELS suggests this (i) be deleted.

Mr. David Pratt: Okay.

Thank you, Mr. Chair.

The Chairman: All right.

Just to conclude, Madam Torsney, please.

Ms. Paddy Torsney: Thank you.

I'd like to follow up on one issue. In your brief, it's page 15, section 64, and in your appendix it's page 33, item 5, referring to the “national strategy to address the problem of toxic contamination and set a national regulatory goal of zero discharge”.

My understanding from some in the scientific community—and based on, I think, legal interpretation—is that you can't define “zero”. So I guess I'm surprised to see zero in your document. I gather that this section of below “any measurable quantity or concentration” is based on some legal precedent.

So I'm trying to figure out, if you were to change it to zero, how you'd...or would you be happier that it's a policy goal or something rather than making a change to zero? Because in your presentation on page 15, you don't actually include the reference to “zero”.

Ms. Magdalena Muir: That's a really good point. This is where there's a been a little bit of an evolution of the language. This was set up as a general principle of zero discharge, but not getting into the whole of scientific certainty.

We wouldn't necessarily have a problem with the use of the word “virtual” instead of “zero”, knowing that you could never go to zero. The concern we had more was not the phrase “virtual elimination” but how it was defined within subclause 64(1).

Ms. Paddy Torsney: For instance?

Ms. Magdalena Muir: We have the comment that's provided here:

The concept of virtual elimination should include the containment or treatment of the dangerous substance so as to effectively limit its future introduction into the environment.

That was one aspect where it was raised.

Ms. Paddy Torsney: I guess I'm trying to figure out where would that go. Is that in one or in two, or where?

I think.... I'm not sure I understand the problem clearly; I can't even phrase the question.

Ms. Magdalena Muir: You're asking where our second sentence in the comment on page 15 would most appropriately be inserted in clause 64.

Ms. Paddy Torsney: Right.

Ms. Magdalena Muir: Because we haven't put an actual clause number.

Can you just hold for one second?

Ms. Paddy Torsney: No problem—as long as it's okay with the chair.

• 1650

Ms. Magdalena Muir: I can give you a sense about a couple of different issues. Our phrase here is “the containment or treatment of the dangerous substance so as to effectively limit its future introduction into the environment”. I would think if you...one of the places where some language is similar—not this exact language, of course—would probably be in subclause 64(1), immediately previous to “as defined by the regulations”.

One other wording in there that was also, I guess, vague and that created some concerns was the whole discussion of “ultimate”, because “ultimate” seems to suggest that the reduction can happen in the quite-distant future or a very phased-in approach—very general.

I'm making two comments, then. First, the idea of a containment or treatment to limit its future introduction to the environment could go after the word “quantification” in subclause 64(1), with the drafting to be consistent with some of the wording here. But there's also some concern that has been raised with respect to the use of “ultimate”, as being a very vague word, on a time-limited sense.

Ms. Paddy Torsney: Okay. Then I guess I have a concern that in the definitions section, you're actually trying to get into some policy issues in that it might actually not go in clause 64 but somewhere within controlling toxic substances. I guess I wasn't sure that we wouldn't be further complicating the drafting rather than clarifying it, and sort of mixing apples and oranges. But maybe in that whole praying session there can be some thought to that.

The Chairman: It goes to show that it's dangerous for politicians to become legal drafters. Nevertheless....

Ms. Paddy Torsney: There you go.

Ms. Magdalena Muir: It's dangerous for us, on a very quick basis, to decide where it would go in there, too. But I think the idea was that this seemed to be something in the definition; whether or not it should all be defined here, or the definition should be as complex as it is, I guess is another question. They want to introduce the problem of the future, though, the future issues

Ms. Paddy Torsney: Right. The “ultimate” thing I think needs to be looked at.

The Chairman: Thank you.

Madame Carroll, to conclude.

Ms. Aileen Carroll: Thank you, Mr. Chair.

Although I agree with the difficulties in terms of what Ms. Torsney was saying, I would thank you for the clarity you bring on page 11 to clause 22, when you point out that the use of the word “significant” is essentially redundant. I think this has been mentioned before, but perhaps not as clearly as you've put it, that once Parliament has created an offence, and has so deemed that an action does result in harm, it would appear that you are in agreement with others, myself included, who feel that the use of the word “significant” does nothing to clarify further but indeed is a legal redundancy.

Ms. Patricia Houlihan: It also is an additional hurdle, because then you're going to get into the problem where you're in court arguing, “Was this significant?”

Ms. Aileen Carroll: So it would be, then, the suggestion of the Canadian Bar Association that we merely delete the word “significant” from that clause?

Ms. Patricia Houlihan: Yes. Our second sentence says, “The only requirement should be any harm to the environment.”

Ms. Aileen Carroll: Right. So we need no further clarification on that one.

Thank you.

The Chairman: Your brief has been very helpful to us, and we thank you for appearing today and for having given us the answers to so many questions. We'll keep in mind your advice. We look forward to your letter, if you decide to write us one, possibly within the next two weeks.

This meeting stands adjourned.