Proceedings of the Standing Senate Committee on
Energy, the
Environment and Natural Resources
Issue 14 - Evidence
OTTAWA, Tuesday, March 4, 1997
The Standing Senate Committee on Energy, the Environment and Natural Resources, to which was referred Bill C-29, to regulate interprovincial trade in and the importation for commercial purposes of certain manganese-based substances, met this day at 9:07 a.m. to give consideration to the bill.
Senator Ron Ghitter (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, we have before us today the interim report concerning Bill C-29.
Senator Kenny: I believe the interim report, together with the minority report has been adopted.
The Chairman: It has been adopted and it will be tabled this afternoon.
Senator Spivak: If I can point out a small omission, I note that the majority interim report has no names on it. It does not say who the chairman is, whereas the minority report has the chairman's name in big letters. I should like to know whether there is a reason for that.
The Chairman: It is purely in the draftsmanship of those who prepared the majority report and the minority report. That can be fixed before two o'clock, if you like.
Senator Spivak: Perhaps all the names of the people who supported the majority should be affixed, but, Mr. Chairman, is not the majority report the report of the whole committee?
The Chairman: Yes. So that would not be necessary. We will table it this afternoon. That was already adopted at our last meeting and carried from there.
The next matter is the consideration of Bill C-29. I am in members' hands on this, but I would like your instructions on how to deal with Bill C-29.
The instructions we have from the Senate on the motion of December 18, 1996, was to present an interim report before submitting our final report on Bill C-29. Those are the instructions of the Senate.
How do you then wish to deal with Bill C-29? We were to deal with it today, but how do you propose to deal with it when it comes forward?
Senator Kinsella: Mr. Chairman, I move the clause-by-clause consideration of Bill C-29 be postponed until the questions listed in motion number 83 of the Senate be considered by the Senate.
The Chairman: Do you have the motion in writing for the clerk?
Senator Kinsella: No, but I can repeat it.
I move that clause-by-clause consideration of Bill C-29 be postponed until the questions listed in motion number 83 of the Senate be considered by the Senate.
The Chairman: Discussion?
Senator Kenny: Question.
The Chairman: Did you wish to discuss or debate this issue, Senator Kinsella, or anyone else?
Senator Kinsella: Speaking to the motion, motion number 83 of the Senate is the instruction that you just read to us, Mr. Chairman, that this committee is instructed to study three particular questions and to submit an interim report on that study to the Senate prior to consideration being given to Bill C-29. The logical order of doing this would be for the interim report, as we have agreed, to be tabled today, and then to be taken under consideration by the Senate.
If the Senate adopts the majority opinion that is in the report, this committee then would be apprised of that fact. If, on the other hand, the Senate adopts the minority opinion, then we would be dealing with an instruction or an order of the Senate requiring that the matter, particularly the question of whether or not MMT gums up the OBD-II devices, be submitted to the Royal Society of Canada for an objective, impartial third-party review.
That is the logic of the process, as I see it. In other words, this committee should follow the very letter of the order of the Senate, which was to do a study and submit an interim report. By definition, "interim" means a report prior to some other kind of report, and the other kind of report would be the report on the bill. The Senate has instructed this committee, and we as a committee must act in obedience to the orders of the Senate, so we must submit the interim report and learn from the Senate the instruction the Senate will give to us. If it adopts the majority opinion in the report, it would be that the conclusion on the side of the evidence brought before this committee was sufficient to allow the majority to sustain the bill.
If, on the other hand, the minority opinion is adopted by the Senate, the Senate then would be in the position of giving this committee another order, that the question on the OBDs must be submitted to the Royal Society for an objective analysis.
There are precedents for this kind of procedure being followed. The National Finance Committee operates this way. We do estimates before we do supply.
I believe it would be out of order for us to proceed with clause-by-clause review until the Senate has received the interim report.
The Chairman: Further discussion?
Senator Nolin: My colleague, Senator Kinsella, has summarized properly. That is the only thing we can do this morning.
The Chairman: I know this is a motion but I would bring to your attention the discretion that we have. The motion of the Senate could not be more clear to me -- to present an interim report before submitting our final report. We are being asked to file a final report, I take it, by going into clause-by-clause study.
As chairman, I would have to say to you that, in my view, if we went into clause-by-clause study before presenting the interim report, we would be acting contrary to the motion of the Senate. I feel bound by the motion of the Senate. I think you should consider that. I realize yours is not a point of order. Yours was a motion.
Senator Kenny: This speech happens after the vote.
The Chairman: So you will know my speech after the vote.
Senator Hays: I will make a comment further to Senator Kinsella's. I have not discussed this with anyone but it seems to me that it is best to leave this matter to the Senate itself and that the sequence of these reports is clear. The interim report must be tabled before the report dealing with the bill, and there will be an opportunity then for the Senate itself to decide whether or not it wished to delay dealing with the bill, or a matter in the bill, pending discussion or debate on the interim report or not, as the case may be.
I think that is the proper place for that to be determined, not in this committee.
The Chairman: Are you ready for the question? Would those in favour of the motion of the Senator Kinsella please raise their hands?
All those opposed?
The motion is defeated.
Senator Kenny: Mr. Chairman, I move that the committee adopt the bill in its entirety and forward it to the Senate today.
Senator Bonnell: With or without amendments?
Senator Kenny: Without amendments.
The Chairman: I must say at the outset that the motion is out of order, just to be consistent with what I previously stated. I am in the hands of the committee, of course. As chairman, I think we must first present the interim report and then take the instructions of the Senate before we can do that.
Senator Kenny: If I may speak to it, first of all, the motion that you referred to says:
That, notwithstanding Rule 98, the Standing Senate Committee on Energy, The Environment and Natural Resources present an interim report, before submitting its final report on Bill C-29, to regulate interprovincial trade in and the importation for commercial purposes of certain manganese-based substances, relating to its findings on the following questions:
And then the questions are listed. The key words here are that this committee, the Committee on Energy, the Environment and Natural Resources, present its interim report before submitting its final report on the bill.
We have just agreed as a committee to present the interim report. You have undertaken on behalf of the committee, this afternoon, to get up and to present the interim report. In doing that, you will have discharged this committee's obligation to the Senate to provide the Senate with the interim report. Then, assuming this motion passes, it is your duty to present this bill unamended to the Senate. Nowhere here in this order is there any suggestion that there be any delay or debate or that there be any time between the presentation of interim report and the final report. It simply instructs this committee to present an interim report before submitting a final report, and that is exactly what you will be doing if this motion carries.
Senator Nolin: Senator Kenny, what would be the meaning of that request from the Senate, if it is not meant to instruct us to bring an interim report, to let the chamber consider it and then to await further instruction?
Senator Kenny: If I may, through you, Mr. Chairman, respond to the question, Senator Kinsella is a knowledgeable and experienced parliamentarian. He drafted this motion. He could have, if he had wished to when he drafted the motion, put in the motion that the committee should present an interim report and that it should be debated in the Senate before this committee continues with any further discussions.
If he had done that, then our hands would have been tied. He did not do that. He simply asked for the presentation of an interim report, and we are presenting an interim report first, exactly as he asked.
Senator Nolin: Technically, after Senator Kinsella proposed his motion and it was voted on, this became the decision of the Senate. If the Senate decided to receive an interim report, that does not mean to receive an interim report and a final report at the same time.
Senator Kenny: No, that is precisely right. It says to give an interim report first.
Senator Nolin: Before.
Senator Kenny: Exactly. That is exactly what the chairman must do. He must rise at 2:15 p.m. today to present the interim report. If the motion that I just presented carries, he says, "I have a second report of this committee." He then presents the next report. That is following this order to the letter.
Senator Nolin: I think, Mr. Chairman, that we cannot proceed. We must respect the decision of the Senate, and the Senate will give us more instruction. We cannot decide it this morning.
Senator Kenny: With respect, we have a ruling.
The Chairman: Senator Kenny, you can come back to this debate later. Senator Kinsella wanted to come in at this point, and then we can hear from you.
Senator Kenny: I am simply responding to Senator Nolin, Mr. Chairman. He raised the question and said we could not do it.
The Chairman: You made your point as to why we can.
Senator Kenny: No, I had not made my point.
The Chairman: Carry on, then.
Senator Kenny: On September 26, 1990, the Speaker dealt with this matter very clearly. It related to Bill C-62, ironically, where the question came up about how committees manage themselves and whether they have the authority to decide. It is on page 1250 of the Journals of the Senate. The Speaker says:
As some senators noted, in particular Senator Everett, it appears that this procedure has not always been followed by Senate Committees. Traditionally, Senate Committees are masters of their own procedure and some have made use of the clause by clause while others have not.
This reference to committees being masters of their own procedure means that we do not have to wait for further instructions from the Senate to report back this bill.
Senator Nolin: So we will ask the Speaker to decide.
Senator Kenny: When the report comes forward, it can be challenged in the chamber, yes. However, as far as it being reported, this committee is its own master, and it can vote to report this bill today and will.
Senator Kinsella: I think Senator Hays is on a good tack. At the end of the day, this must be determined by the Senate.
At the junction we are at now, the wording Senator Kenny read for us was correctly read, but a fundamental principle of interpreting what is written is the plain and clear language of what is written. In the motion, which is in order, this committee is to present an interim report before submitting its final report.
Senator Kenny has argued that what will happen in the future, this afternoon, will somehow discharge the responsibility to be in obedience to the order that is in the here and now. The order before us and under which we are obliged to operate is that we must present an interim report. That must be done before anything else happens, but no action may be taken until that order has been obeyed. Senator Kenny's argument is trying to anticipate what will happen in the future.
The order is very clear. It says that the interim report must be submitted before this committee submits its final report. What is illegitimately being attempted this morning is to produce the final report on Bill C-29 -- and we have heard Senator Kenny's motion to bring that into being -- prior to the interim report being submitted, which is a complete contradiction to the order under which we are now operating.
We are ordered to submit an interim report "before" submitting a final report. This is an attempt to have this committee now make a judgment on the final report prior to the first order under which we must operate, which is to submit an interim report before submitting a final report.
Clause-by-clause this morning would be an attempt to act in direct disobedience of a house order, and I do not think we can go down that road. We can meet tomorrow or the day after. The committee will know that we are operating within the spirit of the order and within the letter of the order of the Senate.
I do not know what the big rush is, and I think this is a very dangerous precedent for committees. We have heard the argument made several times that committees are masters of their own destiny and of their own fate.
We can all count. We know the Liberal members on this committee are seven and the Progressive Conservative members are five. You will always win, whatever you want to do, but some principles go beyond the principle that might makes right. That is why we have rules in the Senate to protect the minority.
Senators, this is dangerous precedent, and for what? This committee could meet this evening. It could meet at its regular time tomorrow or the next day. However, for us to act against what I read in the clear language of a house order is a very dangerous step that will lead to chaos and anarchy if the whole exercise has not been a charade from the start.
Senator Kenny: Senator Kinsella's imagination is working overtime if he thinks I am not trying to follow the order to the letter. The order says that this committee will present an interim report before submitting its final report. We have just approved the interim report, and the chairman is obliged to present that report in the chamber first. Once that report has been presented in the chamber, this committee is free to present its final report.
There is no requirement in this motion anywhere for a pause. There is no requirement in this order for debate. You may have in your mind the idea that this should take place at some later time, but the Senate, in the wording that it passed, did not say that. It did not suggest that we do something after a pause or after a debate or after a consideration. It simply said "before." It simply talked about the sequence of events, one after another, that things must happen.
The motion which has been put to you, Mr. Chairman, is perfectly in order, and it is consistent with what the house has asked us to do.
Senator Taylor: I want to congratulate Senator Kinsella for a very noble effort on what might be a weak cause. Having been a house leader in opposition for many years, I almost anticipated every move. Sometimes I admire him, but sometimes I wonder.
The Chairman: But your debate on this motion?
Senator Taylor: In this particular case, my honourable friend jumps on either side of the logic question. We just defeated a motion of his to postpone almost indefinitely any consideration at all, not even the interim report. Surely in all the years he has been in the Senate, interim reports have been so exhaustively pursued in many cases that they become final reports. There is really no need to go back to sitting again. We are saying that the interim report has been explored so exhaustively and thoroughly that we can immediately follow it with the adoption of the final report.
As was pointed out, this motion was cleverly drafted by the Leader of the Opposition so that the interim report and the final report were put together. In Latin, that is called being hoisted on one's own petard.
The petard in this case, where the final report was to follow the interim report, is not a lot of time. We feel that the interim report is certainly exhaustive. The fact that they filed the minority report and came up with a conclusion proves conclusively that they were able to reach a conclusion. If the minority report that the senator signed had said, "We need more hearings because we have not made up our minds," then that would have been logical. However, he says in his interim report that he has made up his mind. We have also made up our minds. Let us file the final report.
Senator Hays: I claim no special knowledge or expertise in the rules but I listened carefully to the concerns of Senators Kinsella and Nolin. If I understand them correctly, their concerns are that, to respect the rule, there must be an opportunity to consider, in proper sequence, what it is that the Senate has asked this committee to do, namely, to make an interim report and, after that, to deal with the legislation before it.
The rules wisely provide notice periods before debate can occur. As I understand it, on the interim report, it is at least one day and on the bill it is also one day, if it is unamended. That day is there for a good reason. It is for people in the chamber to prepare for what the committee presents to the Senate. If the committee deals with both the interim report and the bill today, that one day would be well used, as provided in the rules, by members of the chamber who have that period of notice to prepare for debate on the floor of the Senate.
I am repeating myself to a degree, but the report clearly outlines differences between the majority and the minority. I think the minority has an obligation to take its views to the whole chamber for sober, second thought, as does the majority. That is the proper place for that view to be considered and addressed. I believe that the rules, as drafted, provide adequate opportunity for that to occur and for the Senate, if it wishes, to delay dealing with the bill that is before it, by report, until such time as it is satisfied that it has fully taken into consideration the interim report.
The voting situation is close in the Senate. One never knows what the outcome will be, but I think that is where it should be determined and this committee should not make that decision for the whole Senate.
The Chairman: Any other discussion?
There is an old Latin legal expression which states that one should place a reasonable interpretation on reading legislation or terminology, as we are doing today. We have before us an instruction from the Senate that this committee is obliged to present an interim report before submitting its final report. Rule 97(4) concerning reporting a bill without amendment, which I assume we will be doing, states:
When a committee reports a bill without amendment, such report shall stand adopted without any motion, and the Senator in charge of the bill shall move that it be read a third time on a future day.
Basically, that means that if we give Bill C-29 a third reading at this point in time, we are foreclosing the situation. By reasonable interpretation, the Senate would deal with the interim report and then determine what it wants to do with it, which could entail giving instructions back to this committee.
Contrary to what Senator Taylor was suggesting, I think there were recommendations in the minority report. The Senate could well examine that and then determine to send it back to this committee to examine the minority report's point of view, relative to whether it should go to a third party to do the examinations that were suggested in the minority report.
The Senate could do a number of things to instruct this committee. My reasonable interpretation of the situation would be that the Senate should have the opportunity to examine the interim report and then instruct us to deal with it and pass it, or vote on it, or whatever. They also have alternative options to send it back it to this committee.
If we proceed with the clause-by-clause study and adopt the bill, then, under this rule, we are adopting it and potentially foreclosing that situation.
I must rule --
Senator Taylor: Point of order! Are you saying that if it is adopted without amendments, it cannot be referred back on third reading as well as on second reading?
The Chairman: We have adopted it.
Senator Taylor: What is the use of third reading, then?
The Chairman: It does not come back to us after third reading. The normal process of the bill carries on.
Senator Taylor: Once it is adopted, the Senate must still do a third reading.
The Chairman: Yes, the Senate does.
Senator Taylor: At that time, the Senate can put forward a motion to send it back to committee.
The Chairman: I suppose the Senate can do that.
Senator Taylor: My point of order was that I do not think you have foreclosed it when you have done what you have said you have done.
The Chairman: My ruling is that we must first have the interim report dealt with by the Senate before we can move on.
Senator Kenny: Mr. Chairman, there is a motion on the floor, although we did not ask for a ruling.
The Chairman: I am saying that the motion is out of order.
Senator Hays: On that basis, I challenge your ruling.
The Chairman: Any discussion on the challenge? I am not sure if it is debatable.
All those in favour of the ruling of the chair?
Some Hon. Senators: Yea.
The Chairman: All those opposed?
Some Hon. Senators: Nay.
The Chairman: The chair was overruled. The motion is lost.
We will move on to clause-by-clause consideration of the bill. From my point of view, I am now dealing with the bill clause by clause. In that I think it is inappropriate that we deal with it, I will act as chairman but I do not intend to vote on it because the procedure is inappropriate, in my opinion, and not in keeping with what we should be doing. Nevertheless, as chairman, I am obliged to carry on.
You have a motion on that, Senator Kenny?
Senator Kenny: I will repeat my motion.
I move that the bill be adopted in its entirety, without amendment, and be reported to the Senate today.
The Chairman: Is there any discussion? If not, all in favour?
Some Hon. Senators: Yea.
The Chairman: Opposed?
An Hon. Senator: Nay.
The Chairman: Abstentions?
Some Hon. Senators: Yea.
The Chairman: There are four abstentions, my own included.
The motion is carried.
Is there any other business of the committee that anyone wishes to raise at this time?
Senator Kenny: When did you contemplate considering the next piece of legislation that we have coming down the pipe?
The Chairman: It is my understanding that we have not received the nuclear bill as yet. We expect to receive it soon. We will get together next Tuesday morning to deal with it and then we will have lengthy hearings on endangered species. I understand that that bill will be coming to us relatively quickly as well. That is the future business of the committee. If there is nothing further, we will adjourn.
The committee adjourned.