:
Thank you, Mr. Chair. I will try to be succinct, and I know you will hold me to that.
I'm delighted to be here. It's a great privilege to have tabled this bill. It is a bill that many individuals and organizations across the country have been working on for decades, and that includes me.
I'm looking forward to hearing from all the witnesses that all of the parties have put forward. I think we're going to have a really good dialogue on the bill and I'm looking forward to it. We have two particularly outstanding witnesses following me, and I'm delighted that they're been available to testify.
Briefly, the purpose of the bill is to implement the right to a clean, healthy environment, an ecologically balanced environment for all Canadians, and it imposes the duty on the government to uphold those rights. Interestingly, this is a bill that we should have no problem whatsoever to find unanimous consent for, because all four parties that have been elected to our federal House have espoused support for these principles.
I could give one example. The 2008 Conservative Party of Canada policy declaration commits to a “belief that the quality of the environment is a vital part of our heritage to be protected by each generation for the next”. That, of course, is one of the principles that this bill is founded upon.
The whole purpose of this bill is to provide a legislative measure to implement the accountability measures that all four parties of the House have espoused and have said they support. The purpose of this bill is to give them the mechanism so that we can implement those principles.
Nowhere is that principle more important than in environmental protection. We have signed treaty after treaty and international agreement after international agreement committing to public participation and transparency in environmental decision-making. What this bill does is provide the legal framework to implement those commitments and duties.
This bill is grounded in a number of international principles that the Government of Canada has endorsed. One of those is the precautionary principle. A second is the principle of environmental justice, and that includes both the substantive and procedural rights that are included under the justice principles. It also endorses the polluter pays principle. Finally, the bill is based on the premise that it is the responsibility of the government to preserve and protect the environment in the collective interest of current and future generations of Canadians.
As has been pointed out several times--and I know we're going to have witnesses today speaking to this matter--more than 130 nations, as far as I've been recently updated, have enshrined the right to a clean, healthy, ecologically balanced environment either in their constitutions or in their national laws. For example, a number of nations that we are in the process of signing trade agreements with--or that we have signed with--have incorporated those rights. They include: Colombia, Panama, Cuba, Kuwait, Indonesia, Afghanistan, Mexico, Germany, Russia, Ukraine, United Arab Emirates, Sweden, Switzerland, and South Africa. The list goes on and on. Thus far, unfortunately, Canada is one of the countries that hasn't done that, even though it has happened at the provincial level.
A number of Canadian provincial and territorial governments have already taken action, and quite some time ago; I think it was as far back as 1988 that the Northwest Territories was the first off the plate. It enacted the right to a clean, healthy environment and imposed the duty on its government to uphold those rights, and included the bundle of rights that are included in this bill that I've tabled. Ontario followed suit with a separate environmental bill of rights. The Government of the Yukon has included that bundle of rights within its environmental statute, and Quebec has also enshrined those rights.
Past federal governments have enshrined some of the rights that are included in Bill . For example, there is the right to seek an investigation of an environmental offence and, in some cases, to initiate legal proceedings, but for the most part that is only in the Canadian Environmental Protection Act. Despite some measures taken by the current federal government to provide consistency across environmental statutes--for example, through its enforcement bill tabled last year--it has not provided consistency in this arena and has not incorporated the same kinds of rights and opportunities in CEPA.
In the federal government, there is no comprehensive stand-alone law yet to incorporate these very principles that all four parties have espoused, despite the fact that there has been broad support by Canadians across the country.
What are the key purposes? As I've mentioned, the environmental bill of rights grants every resident of Canada the right to a healthy and ecologically balanced environment and, most importantly, imposes the obligation on the Government of Canada, within its jurisdiction, to protect those rights. The bill would also amend section 1 of the Canadian Bill of Rights to include the right to a healthy and ecologically balanced environment.
What new rights and duties, specifically, are created through this bill?
First is the protection of the public trust. Under existing law, some federal ministers are obligated to do a number of specific actions to protect the environment. For example, under CEPA, the federal Minister of Health has a mandatory duty to look into information about any health impacts associated with toxins that comes to her attention.
Generally speaking, these kinds of rights and duties are not imposed in other federal laws. For the purpose of consistency, because we always talk in our House about the need to be consistent and to respect provincial jurisdiction, it only makes sense that we follow consistently and prescribe these same duties in our federal law: the right to protect the public trust and the obligation of the government to protect that trust.
Second, Bill would ensure access to environmental information. We do, of course, have the Access to Information Act, but we've been having some problems with that act. Bill C-469 would compel the government to provide effective access to information in a reasonable, timely, and affordable manner.
All three of those categories are very important. Across the decades, Canadians have had problems in all three categories when accessing federal documents. We brought to your attention, as noted in my brief to the committee, the fact that just last year the Information Commissioner gave Environment Canada and Natural Resources Canada a grade of F on making environmental information available to the public. So clearly we need a strong regulatory measure to make sure the federal government responds in a timely fashion to these requests.
Third, the bill would provide a right to participate in environmental decision-making. That includes the right to participate in decision-making by the Government of Canada and also the right to appear before the courts. It would remove that extra barrier and cost for concerned members of the public, who actually have to go to court and prove standing before they bring this substantive matter before the courts. It would provide them the opportunity both to participate in environmental decision-making and to raise a serious matter before the courts, despite the fact that they lack a private or special interest in the matter. In other words, the whole point is to provide an opportunity for the public to step forward and represent the public interest.
By enacting this right and duty, Canada's commitments and obligations under numerous international laws and agreements would be enshrined in domestic law. By way of example, Canada has committed to extensive participation rights and access to information under the Rio Conventions, Agenda 21, the North American Agreement on Environmental Cooperation, and, more recently, the U.S.–Canada Clean Energy Dialogue. Consistent with this participatory right, the bill entitles any Canadian resident to apply to the Commissioner of the Environment and Sustainable Development for a review of law, policy, regulation, or statutory instrument.
Fourth, the bill provides for the right to compel the investigation of an environmental offence. Again, as I mentioned, this right and opportunity already exists under the Canadian Environmental Protection Act, as it exists under most provincial law. This bill will accord that right to all environmental statutes, whether they deal with toxins, fisheries, wildlife, migratory birds, climate change, or environmental assessment.
Fifth, the act extends the opportunity to the public for basic access to legal remedies. There are three categories of environmental remedy. One is an environmental protection action. Another is access to seek judicial review of a federal law. The third is civil action. I won't go into the details. I could answer questions about them during questions.
Sixth, the act would provide whistle-blower protection. Essentially, that means that federal employees who are scientists or technicians, or who have scientific or environmental information and who step forward to participate in decision-making, initiate an investigation, provide information, give evidence, or in good faith refuse to act, would be protected under this statute.
Finally, there is the examination of bills and regulations. Similar to the laws enacted by the provinces and territories, this bill would mandate the Auditor General, through the Commissioner of the Environment and Sustainable Development, to examine all proposed bills and regulations to ensure consistency with the purposes and intent of the Environmental Bill of Rights.
In closing, I wish to express my deep appreciation to all the people who helped me in drafting this bill. That help came from ordinary citizens. It came from communities across Canada. It came from legal experts. I am indebted to them for the extensive work they've done in this field, and we're going to hear from some of them as witnesses.
I believe that Canadians are deserving of a legal right to a healthy and ecologically balanced environment and the opportunities to pursue those laudable goals, and I think the government should be accountable for delivering those rights and opportunities. I'm open to questions.
:
That would be a pleasure.
First of all, thank you for the invitation to appear before you today.
Why does Canada need an environmental bill of rights? I believe there are four compelling reasons.
The first is Canada' s poor environmental record.
This record has been demonstrated by studies from the Conference Board of Canada showing Canada ranking 15th out of 17 wealthy industrialized nations on a range of 15 environmental indicators. A study by my colleagues at Simon Fraser University shows us finishing 24th out of 25 wealthy OECD nations on a range of 28 environmental indicators. A study by Yale and Columbia Universities shows 45 countries ranking ahead of Canada. And of course, studies from the World Health Organization and the Canadian Medical Association show that thousands of Canadians are dying premature deaths each year because of exposure to air pollution and other environmental hazards.
As put it so succinctly in his December 2006 year-end interview:
Canada's environmental performance is, by most measures, the worst in the developed world. We've got big problems.
The fact that we have major environmental problems means that we have to consider taking important steps forward, such as introducing an environmental bill of rights.
The environmental bill of rights is a concept that has many potential benefits, including: stimulating the passage and enactment of stronger environmental laws and policies; improving the enforcement of environmental laws and policies; and increasing citizen participation in the environmental decisions that have an impact on their daily lives. It's actually these potential benefits of recognizing the right to a healthy environment that have resulted in an incredible uptake and recognition of this right around the world.
referred to 130 countries where there is legal recognition. My research, which I've conducted over the past five years, shows that the number is actually 170 out of 192 UN member nations, nations that have legally recognized the right to a healthy environment, either in their constitutions and their environmental legislation, or through signing legally binding international agreements. That's 89% of the countries of the world, leaving only 22 laggards, of which Canada is one.
In light of that widespread uptake, I've done research looking specifically at the 100 countries where there is a constitutional right to live in a healthy environment. I'd like to share the results of some of that research with you, because I think it indicates the extent to which the potential advantages that I mentioned earlier are in fact being realized.
Close to 80% of the countries that I studied have improved their environmental laws since recognizing the right to a healthy environment. There has been a significant increase in enforcement in a majority of those countries. Perhaps most importantly, what we're seeing is cleaner air, improved access to clean water, and overall improvements in environmental performance. I can provide some statistics to back up those anecdotal references.
I looked at the ecological footprints of 150 nations--116 with constitutional environmental rights and responsibilities, 34 without--and globally the ecological footprint of nations that recognize environmental rights and responsibilities in their constitutions is significantly smaller. I also looked at performance indices, such as those done by the Conference Board of Canada and those comparing OECD nations, and in all cases there is a statistically significant difference, to the good side, in countries that have environmental provisions in their constitutions.
Third, in terms of the performance, what we've seen is that since 1980--and this is just looking at the wealthiest industrialized nations, the 17 countries that are studied by the Conference Board of Canada--the countries with environmental rights and responsibilities in their constitutions have decreased nitrogen oxide emissions 10 times faster than the countries without. They have reduced sulphur dioxide emissions by an average of 85%, versus 52% for those countries without. They've reduced greenhouse gas emissions eight times faster than those countries without.
So there is a powerful set of empirical facts demonstrating that legal recognition of environmental rights and responsibilities provides exactly the kinds of advantages that we're looking for in terms of having introduced those legal provisions.
The third thing I go into some detail on in my brief is the history of the right to a healthy environment in Canada, which dates back close to 40 years. The legal recognition of the right to a healthy environment has been proposed by both Liberal and Conservative governments in the past in Canada, but as of today, no federal legislation, regulation, policy, or program explicitly recognizes that Canadians enjoy this fundamental human right.
As alluded to, there are four provinces and territories that do have legislative recognition of the right to a healthy environment. There is one modest correction in that in 1978, Quebec was actually the first province, with their Environment Quality Act, to recognize the right to a healthy environment.
Canada is lagging behind the majority of nations in the world by failing to recognize the right to a healthy environment. That's why this bill, Bill , is so important for us as we move forward and attempt to improve our environmental performance.
reviewed the main provisions of the bill, so I won't go through those in detail other than to say that the general effects that we're likely to see from the enactment and implementation of Bill are improvements to the health of Canadians, improvements to the health of Canada's environment, and improvements to the health of Canada's democracy.
You have my brief. I have a few specific recommendations for minor improvements to the bill, which include shifting the responsibility for responding to requests for reviews from the minister to the Commissioner of the Environment and Sustainable Development. That would simply make the mechanism more effective. Another recommendation is to add a provision to the bill recognizing that Canadians not only have the right to live in a healthy environment but also have a responsibility to protect the environment. The third one is adding some rules that would actually expedite legal procedures--for example, strict timelines, so that cases don't drag on for years. Another specific change would be to add specific legal remedies to the section on civil actions.
I've also provided some recommendations that are slightly outside the clause-by-clause parameters of Bill , such as actually bringing into force the Environmental Enforcement Act, which was passed in 2009, so that we have stronger environmental penalties. That's a step forward. I think it's important to understand that Bill actually works hand in glove with the government's Environmental Enforcement Act by allowing citizens of Canada to contribute to the improved enforcement of our environmental laws.
As well, if Canada wants to improve its reputation internationally with respect to human rights and the environment, then we need to ratify the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters. It's also long overdue for Canada to ratify the American Convention on Human Rights and the associated San Salvador protocol, which recognizes the right to a healthy environment.
The last thing I would say is that my research, as I mentioned, looks at constitutions and constitutional environmental rights and responsibilities. An analogy can be drawn here with human rights legislation, which we had in Canada for many decades and which didn't result in an improvement in the protection of human rights in Canada. Also, I would note that ultimately we're going to require constitutional amendments so that we have a constitutional right to a healthy environment and constitutional obligations to protect that environment. That really represents the gold standard and, as we've seen from my research, it results in positive outcomes in terms of health, the environment, and democracy.
Thank you very much. I look forward to answering your questions.
:
Thank you. I am going to speak in English today, since I don't speak French very well, as I've already demonstrated. However, if you speak slowly, I will try to answer questions in French.
[English]
Thank you.
I don't believe I've been before this committee for over one year or so. It's my pleasure to be back here on this particular bill. This is an important day for Canada, and a day that's long overdue, I would say.
You have my bio in front of you. Let me say briefly that I've practised and taught environmental law for 20 years in Canada, and for two years in the United States along the way. I have had the privilege of working with all of the environmental bills of rights in Canada and several of them in the U.S., so I have some experience on this, but no doubt I have a lot to learn.
Let me start with why we need this law and then move on a little to what I think one can anticipate the effects of this law will be.
Why do we need it? As Professor Boyd has said, the starting point for me is that Canada is blessed with a rich and diverse natural environment, perhaps more so than almost any other country on earth. Not only is it important ecologically, but it's a deep source of pride for Canadians and an important part of our identity. For example, a poll done a few years back showed that after the Charter of Rights and Freedoms, our connection to nature is the most prominent identity symbol for Canada--ahead of even hockey and poutine, shockingly enough.
Not only is it a source of importance to our identity, it's the fundamental basis for our health and the fundamental basis for our quality of life. As Bobby Kennedy Jr. says, the economy is a wholly-owned subsidiary of the environment, so it's hard to think of a more important and more fundamental right that we could be looking to protect.
As David Boyd said, Canada has not always done a great job in its stewardship of the environment. I won't repeat his statistics, except to say that you could go to many other sources and see that Canada's ranking among OECD countries on environmental performance has traditionally been near the bottom for years. That should be troubling environmentally, but also troubling economically.
If you look at the environmental performance index that Professor Boyd referred to, put out for the World Economic Forum at Davos each year, we ranked 46th. You'll see there a very strong connection between the environmental performance and the economic performance of the countries. Of the top 15 countries in environmental performance, nine of them rank in the top 15 in competitiveness as well. So this isn't just about our environment; it's ultimately about our long-term economic wealth as well.
In a larger sense, getting away from the periods and the i's and t's, what will this bill do for Canada? I think three main things.
One of them is that it will make a statement that a healthy environment is a core value, a fundamental value for Canadians. Second, it will empower individual Canadians to participate more in environmental decision-making. Thirdly, and perhaps most importantly, it will lead to increased government accountability and, with that, strengthened environmental protection. All of these are important.
Professor Boyd has gone over the fact that 89% of countries in the world have such an environmental right already. The very first environmental bill of rights that I'm aware of was passed by the State of Michigan in 1970. Canada's first environmental bill of rights came out of the Northwest Territories in 1988-89. Ontario, Quebec, and the Yukon have now followed suit. As he said, even before its current charter of rights, Quebec had a provision recognizing an environmental right. These provincial bills of course vary in their strength and their form. We can get into that in questions, if people want to talk about some of the specifics.
At the federal level, an environmental bill of rights has been either discussed or promised by a variety of Conservative and Liberal governments going back to 1991. I've counted at least five different commitments that have occurred since that date by the two parties, but it's yet to have happened, for a variety of reasons, so this is a very welcome day indeed.
What would this bill do? You have the bill before you, but obviously this is a new and weighty piece of legislation. It would do basically six things at a fairly high level.
Obviously, the first thing it would do is establish a right to a healthy environment. With that right, it would establish a public trust obligation on the government as the steward of the environment for the present generation and also for future generations. These are fairly standard provisions that one finds in environmental bills of rights around the world.
Second, it establishes a right to participate in environmental decision-making, particularly in regulatory and legislative decisions of the government. Again, such a right exists under certain statutes—CEPA and SARA, for example—but does not exist across the board under environmental land use and resource statutes generally. This would be an important expansion.
On access to information as a basic right, again, that exists, more or less, under ATIP already.
On the right to request review of federal policies, regulations, and laws, currently a similar power exists under the Commissioner of the Environment and Sustainable Development act, and I'll talk in a minute about what its effect has been. But again, this also exists under Ontario's Environmental Bill of Rights.
On the right to request an investigation, when citizens have information about a violation of environmental law, they can play a sort of crime stopper role--but an eco-crime stopper role--by providing that information to the authorities. You'll have a set of eyes and ears all around the country trying to pick up environmental violations.
On access to justice, there's no point in having a right if you don't have anything to do with that right: you need a remedy. This will create a right to bring a legal action either against the government for a violation of an environmental right or against a private party for infraction of an environmental statute when the government is not enforcing the law. Without such a remedy, the right of course would be hollow.
I should distinguish, by the way, that this right is not the same as a government prosecution. It couldn't lead to jail time or heavy fines. The main remedies are restoration and cleanup, basically to put people back where they started; the rule of punishment occurs under the criminal law power.
Of course, these kinds of provisions exist in almost all environmental rights at the national and provincial levels.
Last but not least is whistle-blower protection. For employees who are making authorities aware of environmental infractions or participating in environmental processes, there cannot be employer reprisals.
In crystal-ball gazing, what might we expect to be the effect of such a law? We can look to other jurisdictions and learn a little bit from what has happened there. Let me offer a few observations based on my experience.
The Ontario Environmental Bill of Rights is probably the closest analogy to what we see before us here, although it's not identical. Has it worked? One, there has been a very significant increase in public participation. Public engagement, notice, and comment around rule-making and regulations have gone up a lot. About 30,000 people a year visit, read, and comment on regulations and instruments posted under the Ontario Environmental Bill of Rights. So democratic engagement gets high marks.
On the power to request reviews, what we've seen in Ontario is that about 20 to 25 times a year a citizen requests a review or an improvement of environmental legislation. The parallel power federally, the commissioner of the environment, sees about 30 to 40 a year. In Ontario, about 13% of those requests lead to some action: some review or upgrading or improvement of the request.
I'll give you an example. The Oak Ridges Moraine Conservation Act passed by the Harris government in Ontario was originally initiated by a citizen request for review about protection of the Oak Ridges Moraine, as was the McGuinty government's overhaul of the Ontario parks act.
I filed one of these requests for the residents of Beckwith, which is out near Perth. They had a toxic substance called TCE leaching into their drinking water from an old abandoned tannery. If you've ever seen the movie A Civil Action, with John Travolta, they had the same thing happening there.
The problem was that Canada's standards for TCE hadn't been upgraded for almost two decades. Under U.S. standards, the level was three or four times higher than acceptable and the residents would have been eligible for things like bottled water so that they didn't have to bathe in this stuff or have their kids bathe in it. But because our standards were outdated, they didn't have that ability. This request led to those standards being upgraded and brought up to where scientists and modern nations say they should be and left the residents of Beckwith not having to drink and bathe in poisoned water.
So there are real effects from this stuff.
What about the requests for investigation? In Ontario, 36% of requests for investigation have led to investigations with some sort of enforcement actions arising out of them. As counsel, when I was practising in Ontario I filed a number of these on behalf of different clients. In almost every case, I would say, the government, even though they may not have taken the exact action my clients wanted, took what would have to be called reasonable action--action that would sort of stand up as reasonable enforcement action.
That included enforcement actions against steel companies in Hamilton for toxic pollution and chemical companies in Sarnia for emissions that were affecting the health of local residents. Again, those were initiated by the citizen process and likely would not have happened without that process. So there have been real improvements.
On legal actions—that will get everyone's attention--the track record is that they've been used very sparingly. The high-water mark is Quebec, which brought in probably the strongest environmental right in Canada in its charter, in 1996, I believe. There have been four actions in four years.
I will conclude.
Ontario has seen only two actions in 16 years, largely because it imposes a number of obstacles—probably unnecessary obstacles—in its statute. If you look to the United States and the equivalent provisions under all U.S. federal environmental statutes, for clean air and clean water particularly you see about 60 lawsuits a year. So if you extrapolate a 10:1 ratio, and recognize as well that in the U.S. they're twice as litigious as we are, a ballpark guess for what you might see under this bill is probably about three legal actions a year in Canada. But there will be far, far more participation through the other mechanisms. This is really a last resort.
I won't go into detail on some of the specific changes I would recommend, but let me at least give you the top lines and we can follow up in questions on them.
As Professor Boyd said, there is I believe perhaps a drafting oversight in the bill, in that the power for citizens to bring a civil enforcement action doesn't have any remedies associated with it. That could be corrected simply by incorporating the remedy section of the act into section 23. I would add a section allowing a court, as a remedy, to order compensation for environmental damages. Right now, if a polluter causes damages and isn't required to compensate the public for them, the public will be left to bear those damages, and that is simply not good economics or good environment.
I would put a maximum on the penalties under this law. If citizens are going to bring an action, it is not like the crown bringing a case. U.S. statutes cap penalties at $30,000 per offence. We're not talking about jail time or multi-million-dollar fines, and I would say that something like that would be appropriate here. The main goal here is restoration.
Finally, last but not least, I would probably even add some provisions to really ensure that litigation is used only as a last resort. One of the most important would be a requirement to give notice to the Attorney General 30 days in advance of bringing any type of enforcement action or environmental bill of rights action, so that the government has a chance to bring an enforcement action or to remedy the violation itself without having to resort to court action. The U.S. has this kind of advance notice requirement, and more than half of the notices get resolved without ever having to go to litigation.
I would hope for friendly amendments in each case.
Thank you very much.
First of all, I want to thank both witnesses for taking the time to testify. I know you're both very busy working on exactly this kind of work and I know Canadians appreciate it.
You're of course being put on the spot because of my bill, and my committee members chose not to ask the questions of me, so I'll help you with the answers to some of them.
On the issue of whether or not private prosecution is affected by this bill, I'd be interested in your response to this. Certainly this bill would enable private prosecutions, because it allows people under any environmental law to request an investigation and also to access information. So while it does not do so directly, it does indirectly.
The Yukon bill does specifically accord the right to file a private prosecution. The Criminal Code already allows that. I had actually preferred that this be in the government's Environmental Enforcement Act and consistently across the laws, if we're being consistent. I want to thank Dr. Boyd for bringing to our attention the fact that the government's Environmental Enforcement Act is not yet proclaimed. So thank you for that.
On the whistle-blower protection, the question is whether or not this is necessary. The whistle-blower protection measures are under CEPA, but the purpose of the environmental bill of rights is to apply to all environmental statutes. It would extend those kinds of protections to officials under all those statutes. Perhaps you might want to comment later on whether that's worthwhile.
I wanted to thank you for your recommendations on amendments and just clarify those that are brought to my attention. There are drafting errors in the course of many drafts of the bill and your recommendations are very welcome.
I wanted to ask this of both of my witnesses. I mentioned in my presentation that among the purposes of this bill one of them is to actually provide the domestic federal mechanism to implement, in domestic law, many of the obligations and commitments made by Canada for access to information and for participation in environmental decision-making, for example, under the North American Agreement on Environmental Cooperation, under NAFTA, under the more recent agreements that have been signed, and under commitments made through the G-8 on biodiversity.
Would you comment on that? Do those international laws and commitments not become fully binding and enforceable--for example in our courts--unless they are implemented in domestic law?
Nature Québec thanks the members of the Standing Committee on the Environment and Sustainable Development for inviting us very recently to comment on the nature and effect of Bill C-469 and to answer questions from parliamentarians.
Nature Québec believes that Bill C-429, an Act to establish a Canadian Environmental Bill of Rights, is an important and positive piece of legislation that is within the authority of the federal government.
In the Quebec legislation, there are similar provisions. The Quebec Act recognizes the right to environmental quality. Section 19.1 of Quebec's Environmental Quality Act provides that "[e]very person has a right to a healthy environment and to its protection, and to the protection of the living species inhabiting it". Section 19.2 then provides that "[a] judge of the Superior Court may grant an injunction to prohibit any act or operation which interferes or might interfere with the exercise of a right conferred by section 19.1." In addition, since 2005, section 46.1 of Quebec's Charter of Human Rights and Freedoms has provided that "[e]very person has a right to live in a healthful environment in which biodiversity is preserved, to the extent and according to the standards provided by law."
In concrete terms, including a right to environmental quality in Quebec's Charter of Human Rights and Freedoms opens the door to awards of "punitive damages", formerly called "exemplary damages", for any "unlawful and intentional" interference in that right. That section actually reads as follows: "Any unlawful interference with any right or freedom recognized by this Charter entitles the victim to obtain the cessation of such interference and compensation for the moral or material prejudice resulting therefrom. In case of unlawful and intentional interference, the tribunal may, in addition, condemn the person guilty of it to punitive damages."
Apart from the possibility of obtaining an injunction, the Quebec Act does not have as detailed and clear an enforcement mechanism as the one set out in Bill C-429. The bill is more complete, and its mechanisms are better balanced. In addition, recognition of the right to environmental quality islamite to Quebec, for instance by the numerous constraints in legislation regarding access to the records of public bodies and the protection of personal information, which dramatically limit its effect. In a way, there are so many exceptions that there is less transparency. In Quebec, the provisions of the Environmental Quality Act, the Charter of Human Rights and Freedoms or the Sustainable Development Act do not provide for public participation in setting broad public policy, and this also limits their effect. Nor are there any provisions to protect government employees who blow the whistle on their employer, as is the case in clause 25 of Bill C-429.
That being said, we are naturally not arguing, and we do not want Bill C-429 to replace the provinces' legislation in any way. It will be administered by the federal government, and that is fine.
In Bill C-429, there are enforcement mechanisms that are missing from the Quebec legislation, apart from injunctions, only. Those mechanisms are also, to our knowledge, missing from the legislation of most of the other provinces. I am referring in particular to the power of individuals to go to court when the government does not comply with its own laws. That kind of measure, to enable individuals to make sure that the government acts in accordance with those laws and makes sure they are enforced, is very important.
It would be worthwhile for the provinces to follow the model proposed in Bill C-429, in the federal sphere, a model that we would not hesitate to support, if that were done. A number of proposed measures simply do not exist in the legislation of Quebec and the other provinces. What is interesting is that Bill C-429 can be used as a reference point or benchmark for provincial legislators, and even better, does not decree national standards or standardizing legislation that would somewhat impinge on areas under provincial jurisdiction. It also would not seem to risk creating confusion or duplication.
These types of measures, although their objectives are often broad and expansive, are not consistent with the principle of subsidiarity, to do what it is possible to do at the best level, to act at the best level so it will be as effective as possible. So these types of measures are not consistent with the principle of subsidiarity and the effectiveness of environmental legislation. Federal legislation has been enacted in the past, for example on threatened species or protected areas, that contain these kinds of pitfalls, that have consequences opposite to the intended aim, particularly when, for example, it comes to creating protected marine areas. When a government acts unilaterally in areas under other governments' jurisdiction it is generally not effective, it is not the right way to proceed.
Fortunately, Bill C-429 does not repeat that mistake, it respects the division of powers and aboriginal rights. This bill is much more worthwhile, in that sense, and can be used as a model or inspiration, but does not impose anything on the provinces, which work within the areas under their jurisdiction.
We should note some other important measures. Bill C-429 provides that the security that may be required in the case of an injunction, for example, in an environmental protection action, may not exceed $1,000.
At Nature Québec, in 2005, in the case of an injunction to stop the construction of an oil pipeline in Oka National Park, in order to enforce the judgment we had obtained and have the construction stopped, we had to deposit $50,000 security under the Quebec Parks Act. Unfortunately, we did not have that money, and we could not enforce the injunction.
It should be noted that Quebec's Environmental Quality Act, which unfortunately did not apply in the case I referred to, provides that the security required may not exceed $500. The maximum of $1,000 proposed in Bill C-429 therefore seems to us to be entirely reasonable and entirely in order. We also welcome the provisions for counsel fees to be paid if there is no abuse of process. We should also point out that in Quebec, when the right to a healthful environment was incorporated in the Charter of Human Rights and Freedoms, the government refused to fund the Centre québécois du droit de l'environnement, which was the only legal organization that the public could use to exercise their right to a healthful environment. That component is essential, in that it is easy to grant rights on paper without anyone ever being able to exercise them, for lack of resources. Access to justice is still a problem in all situations.
On the other hand, Nature Québec is not afraid that if Bill C-429 is enacted there will be a surge of legal actions with the effect of clogging up the system. I know this is a fear among some parliamentarians, that the legal system might be choked, that this opens the floodgates to all sorts of potentially far-fetched actions.
The Quebec experience, after the enactment of the Sustainable Development Act, which in fact contains very broad principles, does not show that there have been abuses of process. We have no reason to think it would be different with Bill C-469. In fact, we will be providing the committee with information in that regard. The chair of the board of directors of Nature Québec, Michel Bélanger, has done a brief overview of legal actions used, or proceedings in the courts, relating to Quebec's sustainable development and environmental protection legislation and under Quebec's Charter of Human Rights and Freedoms. It seems there have been absolutely no problems in that regard, but we will provide you with that information.
In closing, we would like to point out, once again, the fundamental nature of the proposed Act. From a legal perspective, it is well drafted and is based on solid principles, and at the same time respects provincial powers. There can be no society or development, or even economy, if we do not ensure that resources are conserved and the ecosystems essential to life are preserved. The right to a healthy environment and balanced ecosystems must be recognized as a fundamental right that must not be subject to the vagaries of battle in politics and the media. Bill C-469 proposes a social contract, within the limits of federal powers, between citizens and the federal government, to ensure that there can be no loss of control in future, no evasion or abandonment of this fundamental right, without the public having a means of recourse. As in many countries, we have environmental legislation that may look good on paper, but unfortunately, if the inspectors and the will to enforce these laws do not exist, there is no real environmental protection. Bill C-469 provides balance and enables the public to make sure the government abides by the laws it enacts.
Nature Québec invites all parties to unite behind this legislation, which has all it takes to become an inspirational model in a world where cynicism and indifference all too often rule.