Liberal Party of Canada Dissenting Report
Bill C-38, Part 3

Kirsty Duncan, Member of Parliament

Introduction

This dissenting report first thanks all witnesses who testified during the subcommittee’s review of Part 3 of the over 400-page, omnibus, budget implementation bill, which devotes an astonishing 150 pages to destroying 50 years of environmental oversight.  The report thanks witnesses for their good faith and good will.

Sadly, not all perspectives are to be found in the subcommittee’s report, but rather largely those voices that support the government’s ideological and narrow perspective or a quote cherry-picked from lengthy testimony that could be construed as supportive of the government’s agenda: namely, the gutting of environmental protection to fast-track development, rather than the promotion of sustainable development--development that meets the needs of today without compromising those of the future.

It is extremely unfortunate that the subcommittee’s report does not strike the necessary balance between the economy and the environment, but instead focuses largely on development. Hence, this report will centre on the environment in order to give the perspective which is largely missing from the subcommittee’s report.

While the government claims a balanced approach to protecting the environment and promoting economic growth, its actions are in direct opposition. The government should: (a) recognize that it does not face a choice between saving our economy and saving our environment, but rather between being a producer and consumer in the old economy, and being a leader in the new economy; (b) initiate discussions with provinces, territories, municipalities, labour organizations, industry sectors, First Nations and others to develop a green economy strategy for Canada, with goals for 2015, 2020, 2025 and 2030; and (c) ensure that its development strategy include skills development, training programs, certification courses, and transitional policies for workers and communities.

Real democracy would have allowed for: fulsome debate on this “kitchen-sink” bill; the subcommittee to invite the three relevant ministers (whoever took the decision to schedule the three ministers for one hour was not acting on the authority of the subcommittee); and the environment sections to be separated out, and to have been sent to the environment committee for clause-by-clause scrutiny--rather than being buried at the finance subcommittee.

If the Minister of the Environment, whose job it is to stand up for the environment and to conserve our country’s natural heritage, really believes that Bill C-38 is good for the environment, he should have the courage to end this affront to our democracy and ensure careful, public study of the Bill’s changes.

Recommendation 1: That the environment sections of Bill C-38 be removed, presented as a stand-alone bill, and be sent to a legislative committee for clause-by-clause study.

National Chief Shawn Atleo stressed that Canada endorsed the United Nations declaration on the rights of indigenous peoples which reflects the recognized customary international legal standard of free, prior and informed consent in November, 2010. Free, prior and informed consent, he reported, is not mentioned anywhere in Bill C-38.

The National Chief said:  “To date, First Nations have not been engaged or consulted on any of the changes to the environmental and resource development regime proposed within Bill C-38 …In its current form, part 3 of C-38 clearly represents a derogation of established and asserted First Nations rights. If enacted, it will increase the time, costs and effort for all parties and governments, as First Nations will take every opportunity to challenge these provisions.”

The Union of BC Indian Chiefs wrote in an open letter, “Unacceptable Request for Comments on Proposed Regulations to Implement CEAA 2012”: “The federal government’s unilateral and draconian approach to amending the environmental assessment process is not being quietly accepted by First Nations, environmental organizations, or the general Canadian public.”

Recommendation 2: That the government engage in regulatory overhaul for environmental laws that respect constitutionally protected Aboriginal Title, Rights and Treaty Rights, with appropriate engagement across the country.

After a mere 16 hours to study what the Environment Commissioner calls among the most significant policy developments in 30 to 40 years, the committee is left with many questions: for example, what proportion of current assessments will no longer receive federal oversight given the repeal of the Canadian Environmental Assessment Act (CEAA); what are the projected costs of changes to the CEAA for each province and territory; what assessments of the adequacy of the environmental assessment process in each province and territory have been conducted; how will a federal project define whether or not a provincial process is equivalent to the federal process, etc.

Recommendations: 3  That the government table in the House of Commons what types of projects will be included/excluded under the proposed changes to CEAA, and specifically, the proportion and types of current assessments that will no longer receive federal oversight.

Recommendation 4: That the government table in the House of Commons assessments  of the environmental assessment process in each province and territory, how the government will define whether or not a provincial process is equivalent to the federal process, and how assessment of cumulative impacts will be undertaken.

Recommendation 5: That the government table in the House of Commons the projected costs of changes to the CEAA for each province and territory.

The subcommittee heard from, among others, the Hon. Thomas Siddon, who had previously been quoted as saying: “They are totally watering down and emasculating the Fisheries Act”. “They are really taking the guts out of the Fisheries Act and it’s in devious little ways if you read all the fine print ... they are making a Swiss cheese out of [it].” ... “The real scary part of this is that the one minister in Canada who has the constitutional duty to protect the fishery, which includes habitat, is the Fisheries Minister and these amendments essentially parcel out and water down his fiduciary responsibility, to the point that … he can delegate his responsibility to private-sector interests and individuals.”

At subcommittee, the Hon. Thomas Siddon reported:  “I'd refer to clause 147, the ‘let them off lightly clause’ … ‘the minister cops out clause’, clause 150. I think this is probably one of the most important defects in this legislation, that the minister is able to download not only to provincial government under a previous clause, but even to private sector interests, even to delegating enforcement. … I'd be happy to hear Mr. Ashfield stand up, as all former Ministers of Fisheries that I recall have done, and say, ‘I understand what my job entails. I am there to look after the fish, full stop. That's what I am appointed by the Prime Minister to do, period.’  …The bottom line, and my message—if this is my final word, Mr. Chairman—is to take your time and do it right. To bundle all this into a budget bill with all of its other facets, is not becoming of a Conservative government, period.”

Recommendation 6: That the government protect fish and fish habitat, not erode 144 years of history, and that the Department develop new fisheries act policies and regulations in collaboration with all stakeholders.

Recommendation 7: That the government define which fish will fall under Aboriginal, commercial, and recreational fisheries, and the criteria used.

Recommendation 8: That the government table in the House of Commons the projected costs to each province and territory resulting from the downloading of responsibilities from the Department of Fisheries and Oceans.

Recommendation 9: That the government table in the House of Commons the projected costs to Canadian fishers resulting from the ability of the Minister of Fisheries and Oceans to take fish quota, fishing gear, or equipment away from them in order to finance scientific and fisheries management activities, and a complete analysis of why such measures would be taken, and when they would be taken.

Unfortunately, it is impossible to highlight all problems with the subcommittee’s report in a short dissenting report.

In summary, therefore, this report makes the following over-arching recommendations:

Recommendation 10: That the government table any and all analysis to justify or substantiate all of the individual measures.

Recommendation 11: That the government table any and all consultations.

Recommendation12: That the government take the time to consult, to undertake the necessary clause-by-clause study, in total, “to do it right”.

Mr. Stephen Hazell, Senior Counsel, Ecovision Law said: “Less haste will yield more speed, and a better law. My recommendation is that this subcommittee remove the proposed CEAA 2012 from Bill C-38, and propose to the finance committee overall that it be referred on to the House of Commons environment and sustainability committee for its review. I would further suggest that review be done in collaboration with some multi-stakeholder group. I would have suggested the national round table on environment economy, but obviously that's not possible.”

Unfortunately, the “blues” from Thursday, May 31^st are not yet available, as I would very much like to directly quote Rachel Forbes, Staff Counsel West Coast Environmental Law. As such, I will paraphrase from her testimony yesterday. The government’s four stated pillars of its plan are to have more predictable and timely reviews, less duplication in reviewing projects, strong environmental protection, and enhanced consultation with Aboriginal peoples. Ms. Forbes said that we do not believe the proposed amendments and the new legislation in Part 3, Bill C-38, as currently drafted will accomplish any of the pillars, and may actually hinder them.

Governments worldwide are concerned with making the shift to the green economy—to stimulate growth, create new jobs, eradicate poverty and limit humanity’s ecological footprint. One of Canada’s reforms must be a shift to the green economy. It is therefore extremely unfortunate that the bill pits the economy against the environment, and that the debate was so polarized; Canadians deserved a real discussion.

Conclusion

The bottom line is that our world-renowned natural heritage is at-risk, and being further imperilled by a government that is destroying 50 years of safeguards through Bill C-38 and Economic Action Plan 2012 — namely, severely cutting the budget to Environment Canada, gutting environmental legislation, canceling the National Roundtable on the Environment and the Economy, silencing dissent from environmental non-governmental organizations, and continuing to muzzle government scientists — and in so doing, impacting our economy today and in the future.

Finally, it is absolutely negligent that the government, which inherited a legacy of balanced budgets, would sacrifice the environment and the health and safety of Canadians in order to satisfy one particular short-term private financial interest, and cover-up its own economic mismanagement.