Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue 2 - Evidence - November 27, 2007
OTTAWA, Tuesday, November 27, 2007
The Standing Senate Committee on Energy, the Environment and Natural Resources, to which was referred Bill S- 208, An Act to require the Minister of the Environment to establish, in co-operation with the provinces, an agency with the power to identify and protect Canada's watersheds that will constitute sources of drinking water in the future, met this day at 5:47 p.m. to give consideration to the bill.
Senator Tommy Banks (Chair) in the chair.
[English]
The Chair: It is my pleasure to welcome you to the Standing Senate Committee on Energy, the Environment and Natural Resources. My name is Tommy Banks. I am from Alberta and I chair the committee.
Before we begin, I would like to introduce the members of the committee. Senator Nolin is the deputy chair of the committee, representing the Province of Quebec. Senator Sibbeston represents the Northwest Territories; Senator Mitchell and Senator Brown are from Alberta; and Senator Cochrane represents Newfoundland and Labrador.
Today the committee will continue its examination of the subject matter of Bill S-208, an act to require the Minister of the Environment to establish, in co-operation with the provinces, an agency with the power to identify and protect Canada's watersheds that will constitute sources of drinking water in the future, as presented by Senator Grafstein in the Senate on October 17, 2007.
We have organized a panel of senior officials to help us understand the perspective of the federal government on three key aspects — namely the bill itself, the constitutional aspects of this bill and this bill in the context of the Canada Water Act of 1970.
To help the committee better understand these questions and these issues, we have with us today from the legal services of the Department of Justice Canada, Mr. Henry Schultz, Senior Mr. Warren J. Newman, and Ms. Elin O'Shea, counsel. I welcome all of you to the Senate of Canada.
Henry Schultz, Senior General Counsel, Legal Services (Environment Canada), Department of Justice Canada: I am a senior general counsel in the Department of Justice and am the director of the legal services unit at the Department of the Environment. We understand this committee is particularly interested in the views of the Department of Justice counsel on two aspects of Bill S-208, namely whether the bill would be constitutional if enacted and whether its provisions would overlap with the provisions of the Canada Water Act.
My colleagues, Mr. Newman and Ms. O'Shea, would be pleased to answer questions relating to the constitutionality of the bill. I will answer questions concerning its potential overlap with the Canada Water Act. Before we answer questions, I thought I would provide a summary of our preliminary views of the two issues you would like to discuss today.
First, as regards its constitutionality, we have reviewed this bill from the perspective of the division of legislative jurisdiction between the federal and provincial governments. We have not identified any objections to the bill on division-of-powers grounds.
Notwithstanding its long title, which might suggest otherwise, Bill S-208 does not seek to establish an agency. Rather, it directs the Minister of the Environment to consult with his provincial counterparts and with other federal ministers, and to take certain other steps with a view to establishing an agency. Thus, the bill would appear to fall within the federal peace, order and good government power in that it seeks to impose obligations on a federal institution or, more precisely, a federal minister of the Crown. It does not appear to impinge on any aspect of provincial jurisdiction. In fact, the preamble recognizes that the legislative powers that relate to the protection of watershed areas are both under federal and provincial jurisdiction. Obviously, should a federal-provincial agreement be concluded and should legislation be introduced to establish and empower the agency, it would be essential to elaborate that legislation with great care to ensure respect for federal and provincial legislative jurisdiction.
Bill S-208 does, however, raise some concerns from the perspective of the separation of powers. It is very directive and leaves little or no discretion to the minister in pursuing the proposed federal-provincial agreement and concluding it. It also purports to bind the minister to introduce, by a fixed date, a bill to establish the agency. This would appear to be interference in the role of the executive branch, and might also constitute a prima facie breach of the privileges of the minister as a member of Parliament.
As regards its potential overlap with the Canada Water Act, the obligations imposed by this bill on the Minister of the Environment, namely, the obligation to conclude a federal-provincial agreement, cannot be found in the Canada Water Act. The Canada Water Act authorizes the minister to enter into a federal-provincial agreement but in no way obliges him to do so. On its face, then, there is no direct overlap between Bill S-208 and the Canada Water Act.
However, Bill S-208 and the Canada Water Act both share the same purpose, to facilitate federal-provincial water resource management in Canada; and the Canada Water Act is, we would suggest, sufficiently broad in scope to achieve the aims contemplated by Bill S-208. It is our view that the purposes of Bill S-208 could be achieved by exercising legislative powers that can already be found under the Canada Water Act and other statutory authorities.
The Chair: Thank you. Mr. Newman and Ms. O'Shea, rather than saying something in particular, do you want to respond to questions?
Warren J. Newman, General Counsel, Constitutional and Administrative Law Section, Department of Justice Canada: Yes.
Senator Nolin: I do not know if you read Senator Grafstein's comments before the committee last week. I think it would be important for the committee to understand exactly the responsibilities of the provincial jurisdiction and also the responsibilities of the federal jurisdiction when we are talking about legislating on water.
I was reading Senator Grafstein's comments — I was not there — and I think we all agree with the aim of this bill. We want to achieve good; we want to ensure that Canadians will be able to drink safely and water is an important resource. We do not know if it is still renewable or not renewable — I pretend it is not renewable, but —
The Chair: It is renewable to a degree.
Senator Nolin: Yes, well, the circle of life is also renewable. Everything is renewable.
Do you understand my question? I think it is important that we understand exactly who can do what. At the end of the day, if we want to do something more like Bill S-208 is suggesting — more than the actual law — we will do it, but I think we need to understand it. That was my understanding of why the Senate has agreed to do a ``pre-study,'' looking into the subject matter of the act before moving into a more thorough examination of the law.
Elin O'Shea, Counsel, Constitutional and Administrative Law Section, Department of Justice Canada: About five or six years ago, counsel from the Department of Justice, Mr. Yves De Montigny, appeared before this committee and did a review of the various federal and provincial heads of power that might affect drinking water. If you will permit, I will look at the notes for that information.
Senator Nolin: If there is a document that can also be circulated to my colleagues, I think it would be appreciated.
Ms. O'Shea: I could refer you to the transcript of the presentation he gave at that time. It was on September 20, 2001. He pointed out that, historically, the provinces have been largely responsible for the delivery and safeguarding of drinking water. He went through various heads of provincial power and other sources of provincial responsibility over drinking water, including the proprietary interest enjoyed by the provincial Crown in most of the public lands in the province. As a legal person, the province has the same sort of powers over its property as other legal persons. I believe he pointed out that nevertheless the provinces, as property owners, could be bound by federal legislation. The provinces have responsibility under section 92.5 of the Constitution Act for the management and sale of public lands belonging to the province. They have legislation governing the use of lands that could obviously affect the availability and safety of drinking water. Provinces have legislative jurisdiction over local works and undertakings other than those falling under federal jurisdiction by virtue of section 92.10 of the Constitution Act, and that would include facilities such as water treatment plants. They have jurisdiction with respect to municipal institutions in the province, and generally, municipal institutions are responsible for the delivery of drinking water. In addition, perhaps the most important sources would be 92.13, property and civil rights in the province, and 92.16, matters of a merely local or private nature in the province.
Under 92A(1), the province has legislative jurisdiction over the development, conservation and management of non- renewable natural resources and forestry resources, and over the development, conservation and management of sites and facilities in the province for the generation and production of electrical energy. Legislation governing the exploitation of those resources can affect the management of water. The provinces also share jurisdiction over agriculture with the federal government.
There is an equally long list of possible sources of federal power over matters affecting water. The federal government is also a property owner and has legislative authority to make laws in relation to federal public property; and has jurisdiction over military bases, public buildings and lands reserved for Indians, which could relate to water. There is the criminal law power. I could go into detail on that power if you wish after I run through the list.
It is possible that the ``Peace, Order and good Government'' power could have some impact on water, in particular in the matter of jurisdiction of national concern, although perhaps not quite as relevant as powers like those above and sea coasting in fisheries, under 91.12, navigation and shipping, under 91.10, and federal works and undertakings, such as canals extending beyond the limits of a province, under 91.29 and 92.10. In addition, Parliament shares jurisdiction over agriculture with the provinces. There is the power to make treaties, which could have some impact on water, as well as the power to implement federal aspects of treaties, which could have some relationship to water.
Senator Nolin: Senator Grafstein spoke to the national dimension theory as an argument to organize the responsibility of the federal government, recognizing that the provinces, in various degrees, have tackled their responsibilities, including the municipalities. However, in light of a national factor, the federal government should be the coordinating body of all that effort.
Ms. O'Shea: Well, as I understand it under this bill, the intent is to have a joint federal-provincial body.
Senator Nolin: It is clear from what you said before that it is a shared responsibility. Should the national dimension of water give Parliament the authority to move in the direction whereby it will impose on the federal authority to organize the water coordination in Canada?
Ms. O'Shea: It is my understanding that the courts prefer to look to specific heads of power to find jurisdiction rather than national concern. One cannot eliminate or rule out the possibility that national dimension of power could be relevant.
Senator Nolin: Senator Grafstein referred to the Supreme Court of Canada decision in R. v. Crown Zellerbach. Can you comment on that and on Interprovincial Co-operative Limited?
Ms. O'Shea: I did make some notes on national concern that I can run through, if that would be helpful but at the risk of repeating Senator Grafstein's words.
Senator Nolin: You do not deny that there is an area of relevant Constitutional law that is not used often but exists in the body.
Ms. O'Shea: Absolutely not.
Senator Nolin: It would be fair for colleagues who are not familiar with that area of the law to understand it better.
The Chair: Is the Canada Water Act not based on that assumption?
Ms. O'Shea: It would appear to be based, at least in part, on that. There are some other references to federal waters in it that might cover other aspects of federal jurisdiction.
Initially, the national concern branch was formulated in a decision upholding federal temperance legislation. In that decision in 1946, some other areas of national concern were suggested: war, pestilence, drink or drug traffic, carrying of arms and the sale of cattle having a contagious disease. In later cases, federal legislation relating to aeronautics, the National Capital Region marine pollution and regulation of nuclear power have been upheld under the national concerns branch. In the Crown Zellerbach case, Justice Le Dain, speaking for the majority, set out four elements that are relevant in considering whether it falls within national concern: First, is it distinct from the national emergency branch of p.o.g.g., which is meant to provide a constitutional basis for legislation that is of a temporary nature. Second, national concern can apply to new matters that did not exist at Confederation and to matters that, although they originally seemed to be matters of a local or private nature in a province, have since become, in the absence of an emergency, matters of national concern. The third and fourth criteria are the more difficult ones to meet. Third, to qualify as a matter of national concern, it must have a singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern and a scale of impact on provincial jurisdiction that can be reconciled with the fundamental distribution of legislative powers under the Constitution. Fourth is determining whether a matter has attained the required degree of singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern.
It is relevant to consider what the effect would be on extra-provincial interests of a provincial failure by one or more provinces to deal effectively with the control or regulation of the aspects of the matter that fall within provincial jurisdiction. I would add that it should be noted that a matter will not necessarily qualify under the national concern branch of p.o.g.g. simply because it is important or because it would be desirable to have uniform legislation on it.
Senator Brown: Mr. Schultz, you seem to be saying that the Canada Water Act covers what we are trying to do in this bill. I raised this point once before in a committee meeting and I wonder if it is mentioned anywhere in legislation. Virtually everywhere that drinking water is used in this country, it falls to the municipal governments of cities, towns and even hamlets to provide suitable drinking water that does not cause ill health, such as happened in Walkerton. I understand that the province ends up wearing the can for the failure of a municipal water supply so I would believe that the province has much of the jurisdiction.
Mr. Schultz: I agree. In most cases, municipalities have control of the operation of drinking water, with the exceptions of Indian reserves, military bases and perhaps others, but generally speaking, you are right. My point is that the Canada Water Act seems to cover the basic purposes of this bill. The purpose of the Canada Water Act was to establish a process for enabling the federal and provincial governments to develop, in partnership, programs for managing water resources together, recognizing that control over water is shared between both jurisdictions. The Canada Water Act does not refer specifically to drinking water, which is clear, but it does cover the management of water broadly and could include that. You could set up water management plans under that act that clearly recognize the significant role that municipalities play in controlling drinking water. I hope that answers your question.
Senator Brown: Is this law necessary and would it not create an incredibly large bureaucracy just to deal with all of the municipal treatment plants that exist today?
Mr. Schultz: I can give an observation based on the bill. First, I will respond to what the bill provides at face value and then to what it can lead to. This bill contemplates new legislation. I cannot imagine what kind of bureaucracy any legislation could provide. The enactment of the bill will not necessarily lead to the creation of a new bureaucracy. This is because it requires a process where the Minister of the Environment must consult with provincial colleagues and some of his cabinet colleagues in an attempt to negotiate and conclude an agreement seeking to create an agency to manage federal-provincial water issues.
Senator Brown: The act itself might not result in any regulation, but it is the stepping stone to legislation being drafted. Is that right?
Mr. Schultz: Two results are contemplated. If agreement is not reached, the minister will report why it was not reached. If agreement is reached, the minister is to come back with legislation at that point. That is the time to ask what sort of regulatory regime will result from that second piece of legislation.
The Chair: You mentioned earlier that the Canada Water Act could do the same things that this bill could do, the difference being that the Canada Water Act is voluntary and this legislation is somewhat ``more mandatory'' and indicates the minister ``shall'' make an attempt to negotiate an agreement. There are parts of the Canada Water Act that have been repealed. Can you talk about how effective it has been or is with respect to these matters? Is any part of it in force anywhere?
Mr. Schultz: Yes, there were originally four parts. The third part dealt with nutrients and that part has been repealed. Its provisions are replicated in the Canadian Environmental Protection Act, 1999. The fourth part covers general miscellaneous items. The second part deals with water pollution quality management. It is common knowledge that the enactment of this part in the early 1970s was contentious and has never been applied because it has provisions that involve following conditions regarding the management of certain types of waters. These were unilateral assumptions made by the federal government. It has been seen as too politically contentious to operate and the federal government has dealt with the issues covered in this act either by other statutory authorities or other means of dealing with the issue of water quality.
The first part, entitled ``Comprehensive Water Resource Management,'' has been utilized much more than the other parts. The act has existed for 35 years. There was more active use of this part in the first 20 years and less in the last 15 years. I cannot advise you on why that decision may have been made by successive governments.
Senator Adams: We do not even know the concerns of people living in Northern communities and on-reserve. We have many different things happening than down south and in the cities where some people may have water cisterns under the house. We live with permafrost and cannot do that. Of 26 communities in Nunavut, only two communities have running water and sewer — Rankin Inlet and Iqaluit. Depending on the water levels, other communities may have septic tanks. With septic tanks, you have a pump system in the house for water delivery and as soon as it fills with sewage, the pump will not start and you do not have water. There is a question of how effectively the water tanks and systems can be cleaned. Some families have 10 or 12 kids and have to ask for water delivery twice a day using a 500- gallon tank.
Are they able to get safe drinking water? Municipalities are going crazy because everyone is concerned and we do not have the money to build a better water system in the community. We have over 700 reserves across Canada and they have problems with water. People need to be protected. Most of the time, we have to build a reservoir and fill it during the summer. I would like to ask the experts, if that reservoir freezes down to a depth of six or seven feet, how much does that affect the water? Fish cannot live without rivers and lakes. As soon as the rivers run out of water, the fish die. That has happened many times. There had to be some way to test the water. Are you protecting the people in the Arctic and in the territories?
Mr. Schultz: If you are asking whether the Canada Water Act dealt with that issue, then no, I do not think so. When this was enacted, Nunavut as a territory did not exist and there was more direct federal control over the territories.
Senator Adams: How much has been amended today? Are there regulations to protect the health of northern people?
Mr. Schultz: What I am suggesting is that it is still possible. If you take the example of Nunavut, it is possible for there to be federal-territorial arrangements that would deal with problems like recognizing that the Nunavut territory has authority over municipal affairs and municipal drinking water. I assume it is possible that you could have water management programs under the Canada Water Act in respect of Nunavut. The problem that you are referring to is the responsibility of municipalities, even in Nunavut. I do not know that this act would have addressed that sort of thing directly.
Senator Adams: On any project like that, funds have to come from the federal government. We have 26 communities and only 30,000 people. Every time a reservoir has to be built, it costs millions of dollars in order for the water to be drinkable. The first time I went up into the territory in 1964, a reservoir was built right in the middle of the town. They used clay to build that. These days it is possible to have a better system, but you still have to have a reservoir and the water has to be pumped every summer to get it filled for the next winter. The municipalities have their own regulations. We have 30,000 taxpayers in Nunavut that will put up millions of dollars. In the meantime, you better have regulations that people in the municipality understand with regards to the system and Canada Water Act. However, there is nothing in there for those regulations for Canada.
The Chair: I will remind senators that while they are connected and sometimes the difference between them is subtle and difficult to see, there is a separate bill — Bill S-206 — that deals with questions of the actual delivery of water out of the end of a pipe or reservoir. Senator Grafstein has characterized that bill as the downstream bill but this bill is the upstream bill, and deals with watersheds and the protection of the means of getting the water to municipal systems and the like. I remind you to observe that distinction.
Senator Milne: I will point out that you do not have a watershed when it is frozen and I think Senator Adams' questions were quite in order.
I apologize for being late; I was the official host to the Association of Canadian Publishers, which is holding an event on the Hill tonight. I picked up a book on politics and the environment for our Chair.
This committee has consistently heard that Canada's aquifers are not fully mapped out. Does the federal government maintain an inventory of Canada's watersheds and aquifers, and are there any current federal projects and initiatives to identify and map them? What sort of budgetary provision is there this year for that project?
Mr. Schultz: Senator, I always feel badly taking the lawyer's defence, but I am here in the capacity of legal counsel. I do not know the answer to that question, and I think it might be better posed to a senior official in my client department, Environment Canada.
Senator Kenny: Is he taking the fifth?
Senator Milne: Yes. Will we have senior officials before us?
The Chair: I think we should.
Senator Milne: In the meantime, Mr. Schultz, I hope that you could attempt to find the answer for us.
Mr. Schultz: You have raised an interesting issue. One point I would make is, again: The Canada Water Act, at the very least, confers power on the federal government in consultation with the provinces to do things like mapping. In fact, it has in the past. I reference section 7 of the act. I will not read it for you, but that is the authority for doing research on water management. I want to stress that the scope of the Canada Water Act is broad enough to include, not just surface water, but things like aquifers, I suspect. The authority is there in the Canada Water Act to do that sort of thing, but you should speak to my client officials to get an answer to your question.
Senator Milne: Aquifers are one of the most important sources of drinking water right across this country. I will certainly ask the same question of the officials when they appear before us. On the other hand, my own government as well as the present government has been guilty in starving the people doing this type of research and investigation. Those governments have starved them of money and thus ended the program. Therefore, I am concerned about this program because I feel it is necessary to the future of Canadians and should be started up again. Once more, I come back to my question: What budgetary provisions have been made?
Mr. Schultz: Again, I can safely say that I do not know the answer to that question. I am here in the capacity as legal counsel to Environment Canada and it is not my responsibility to deal with budgetary issues.
Senator Milne: Legally, this is part of their responsibility.
Mr. Schultz: As I indicated, Senator Milne, the Canada Water Act clearly addresses the issue of conducting research, collecting data, establishing inventories respecting any aspect of water resource management. I agree the legal authority is there, however I cannot answer your questions about budgetary commitments.
The Chair: We will invite officials from your client department to do that. Perhaps you could give them a heads up so they know what one of the questions will be.
Mr. Schultz: I will, senator. Looking at Senator Milne, I do not think I will be able to avoid giving a heads up to my clients.
Senator Milne: I am really quite nice.
The Chair: Yes, Senator Milne is nice but tenacious.
Senator Mitchell: I am interested in your comments, Mr. Schultz, to the extent that they address the relationship between a bill that would be passed by the Senate and ultimately by the House of Commons that might be directive of something for a minister to do. You said it might be a question of privilege if the minister was directed to establish an agency or perhaps to do this agreement. I wonder how strong you are in that position. It seems to me that the House of Commons, the elected representatives, have every right to direct the government to do something. It has become an issue currently because it has only been several years since the House of Commons actually had the ability to vote definitively for private member's bills. Now we have a minority government where, in fact, the opposition has already done exactly that under Bill C-288. Could you elaborate on that and defend your position more strongly, and how definitive a problem is it, in your estimation?
Mr. Newman: In fact, senator, had there not been such a question, I might have asked the indulgence of the committee to further the points made by my colleague in this regard. Having looked at the bill in the Constitutional and Administrative Law Section, and I am not giving you a legal opinion, we think the bill raises, beyond the federal- provincial division of powers issues that are our usual concern in constitutional law, issues relating to broad constitutional principles.
The first such issue is the separation of powers as Mr. Schultz alluded to in his opening remarks. If I may quote the Supreme Court, Chief Justice McLachlin, in the New Brunswick Broadcasting case, which is a parliamentary privilege case, stated in relation to the separation of powers:
It is fundamental to the working of government as a whole that [the several branches of government] play their proper role. It is equally fundamental that no one of them overstep its bounds, that each show proper deference for the legitimate sphere of activity of the other.
This bill is very directive. There is not one clause in the bill that gives any discretion to the minister in terms of the minister ``may do this,'' the minister ``may look at that,'' the minister ``may consult,'' which are the usual words one finds in legislation in terms of drafting conventions in relation to the executive branch. Here, all the way through the bill, it is the minister ``shall'' do this. It is presumed the minister shall reach an agreement and, if the minister has not reached agreement, then the minister will report on when the agreement will be reached. That is the scheme of the act.
The next principle that I would raise in connection with this is the principle of responsible government. Because the government must maintain the confidence of the lower house, the House of Commons, the other place, and defend Parliament's legislative product in general elections, it is generally understood that the executive is the branch that proposes policy to the legislative branch through the introduction of government bills, as a general rule.
Here we have a private member's bill that sets policy for the government, and in that regard, this bill reverses the normal dynamic of responsible government. I would refer you to the evidence of Professor James Hurley before this committee on May 8, 2007, in relation to another private member's bill, Bill C-288, which also imposed policy on the government. This is another initiative where, by way of the vehicle of private member's bill, it is ultimately Parliament that will impose policy on government, an executive function as a rule.
Clause 4(2) is unprecedented in its interference in the minister's role and in principles of cabinet government which flow from responsible government because it would remove the decision from the Governor-in-Council and the minister whether to bring forward legislation, legislation which may perhaps require a Royal Recommendation under section 54 of the Constitution Act, 1867. What is the minister to do? The minister would be forced to say to his cabinet colleagues, ``Well, I am bound by a duty set by the act to bring forward legislation. We cannot have a discussion about this in cabinet. It is already determined by this legislation.'' What if, at that time, the government says, ``It would require spending to create this agency, and that is a question of a Royal Recommendation,'' which is under the Constitution Act, 1867, a key consideration for the government and one on which there are Speaker's rulings as a rule. All of this would be obviated by this.
I do not think there is any precedent whereby legislation requires a minister to introduce further legislation, and that leads to the third principle of constitutional law I would like to invoke, parliamentary sovereignty. The Supreme Court emphasized this in the Reference re Canada Assistance Plan (B.C.). It was a decision of 1991 that, ``A restraint on the Executive in the introduction of legislation is a fetter on the sovereignty of Parliament itself.''
I think that should give this committee pause as to whether clause 4(2) is in order.
The Chair: The restraint in that case was not a restraint that derived from Parliament, was it?
Mr. Newman: That is true. You are absolutely right, senator. This was in response to an argument that there were legitimate expectations that would have resulted in a legal conclusion that the minister was bound not to introduce legislation that would have, in a sense, undermined the federal-provincial agreement then in place. However, I suggest to you that, in the context of parliamentary sovereignty, even though any legislation that is within the constitutional jurisdiction of Parliament under section 91 of the Constitution Act, 1867 will ultimately be upheld as constitutionally valid. I think you may also be interested in underlying constitutional principles and the precedents that are set by bills, and once this provision goes in, it will be in how many other private member's bills henceforth to say, ``Let us bind the government to introduce legislation in this area or that area.'' It is certainly a concern that we have in the Department of Justice and that our legislative services branch has flagged as well.
That leads to your specific question, senator, and I thank you for your indulgence for listening this far. I will be brief on this point, and that is the actual privileges of the minister as a member of Parliament. Again, it would seem to be prima facie, as my colleague Mr. Schultz said, an infringement of basic parliamentary privilege to oblige a member of Parliament to introduce a specific piece of legislation. It is really up to the minister as a member of Parliament, once he has received the consideration of the issue from his cabinet colleagues, as to whether or not to move forward with a piece of legislation. Again, parliamentary privileges can be overridden by a statute of Parliament. We know that privileges can be circumscribed by Parliament itself under section 18 of the Constitution Act 1867, but we would raise it as a constitutional policy concern. We are only flagging these issues. We are officials. We are not here to decide the merits of the legislation, but we thought it was important to put these concerns on the record at this time.
The Chair: I am sorry to interrupt. Senator Mitchell, you have the floor, but I want to make sure before we proceed that we understand. I think what I heard you say was that if Parliament were to make a direction and instruction, if you like, to the Governor-in-Council, then that would be a constraint on Parliament?
Mr. Newman: It goes to the type of instruction that is proposed. The instruction is to introduce legislation that will come before another Parliament at some point in time, perhaps another Parliament. We do not know if it will be in this session or when this agreement will be concluded, although there are timelines in the legislation. Normally, as a matter of legislative drafting convention, Parliament does not attempt to bind a future Parliament. All I have suggested is that the Supreme Court has pointed to the idea that fettering the executive in terms of what legislation it may introduce can amount to a fetter on Parliament itself. It now has to deal with the matter, and that relates to the relationship between Parliament and the executive. It may not be wise to introduce this type of provision into legislation because of the precedent it might set and because of the consequences that might flow from it.
Senator Mitchell: Are you saying that the problem arises because this legislation would require a minister to bring in other legislation, or simply because this legislation requires the minister to do something?
Mr. Newman: I raise both issues, the first being that it is all the way through the bill. It requires the minister to adopt a certain line of policy and conduct. The clincher, is the final provision where after having engaged in all of this policy set by a private member's bill, the minister is then to bring forward legislation to arrive at what the long title of the bill suggests is the purpose of this bill, that is, to establish this agency. In that sense, it is extremely directive. Again, there are more precedents now to the effect that the minister shall do this or do that; it is not necessarily the best drafting practice, as I think legislative drafters would suggest. Usually one leaves some discretion to the executive branch to implement legislation, and there are good reasons for that, because the legislative branch is not the executive branch; it is for the executive to administer law.
Senator Mitchell: It is interesting you should mention Professor Hurley's testimony. I had a very interesting discussion with him when he was here. His point was that Bill S-288, which, in effect, had elected members of Parliament telling the government what to do, was unprecedented. Of course, it is unprecedented because it has only been very recently the case that private member's bills have come to a point where they can be voted upon in an effective way. I believe this will occur more and more frequently given that there is now in the House of Commons the ability for private member's bills to be more effective. That falls back on an important principle, not a constitutional principle but certainly a democratic principle, and that is the power of backbench members of Parliament. The reason they are getting these powers is because of this democratic reform initiative and so on. I think it will become increasingly an issue.
Second, it seems to me you could rule every single Senate bill out of order on the basis of your analysis, because we have the right to do bills. We absolutely have that right and if a bill is to mean anything, surely it will tell the government to do something. It just seems to me that your argument cannot withstand that test.
Mr. Newman: My argument, such as it is, and it is not an argument as much as a series of propositions, is that there are the legal powers that Parliament has under the Constitution Act, and Parliament can exercise its authority absolutely as it wishes in terms of enacting legislation, but there is a web of constitutional conventions surrounding the exercise of legal power, both legislative and executive, and when those constitutional conventions are disturbed and the precepts upon which they are built — responsible government, separation of powers — a fusion of powers of the executive with the legislature and a system of parliamentary government, but a form of separation of powers, nonetheless — it begs other questions.
For example, in our system there is no veto exercised by the executive on legislation, but that is simply a rule of convention. As a rule of law, it is always open to the Crown not to assent to legislation. The assent is predicated upon the fact that if both Houses duly pass a bill, it would be unthinkable for the Crown not to assent to legislation. I am not here to suggest that that constitutional convention would ever be put into question in these circumstances, but there will be situations where legislative policy imposed on an unwilling government will lead to these questions being asked at some point in time. If one convention can be breached, where does it lead?
I am only saying that there are questions of forbearance. Yes, you can enact clause 4(2) in this legislation, and it would be law once it is assented to, but should you enact clause 4(2)? That is not for me to answer, but it is something for you to consider. That is all.
Senator Mitchell: It is very interesting and I value your comments greatly. One of the remarkable things about a parliamentary system is that it always seems to find a way to work. It has been successful longer than any system of government on the face of the earth because it works in such remarkable ways. We must be very careful about reforming it.
Having said that, the government can always declare it to be a vote of confidence if they say, ``You are going to force us to do this; it is confidence.'' They do not like to do that all the time and that is what happened with Bill C-288, but there is that provision to make it work.
Mr. Newman: That is true.
Senator Mitchell: Finally, you talked about parliamentary sovereignty. It seemed to me you were saying that this kind of bill might be an affront to parliamentary sovereignty to the extent that it is an affront to the cabinet, the role of cabinet and the privilege of a cabinet minister, but that seems to be a complete juxtaposition of concepts. Either Parliament is sovereign or it is not. I do not see how one could confuse parliamentary sovereignty with cabinet sovereignty.
Mr. Newman: This is where I would now say that of course we have a separation of powers but it is not a strict separation of powers, as the courts also tell us. We do not I have presidential system and the executive sits in the lower house for the most part and is represented in the upper house as well. However, the proposition is that parliamentary sovereignty itself, which is simply that Parliament is sovereign within its sphere of legislative authority under our constitutional system, is one that is again predicated for the most part on recognizing the normal role of cabinet and what the normal role of the executive is when it is a question of proposing broad public policy initiatives. Private member's bills have been enacted in the past; there will be in the future; but one has to bear in mind when those bills relate to broader issues of public policy, whether it might be more appropriate for the government to bring forward legislation in that area or to suggest alternative solutions as to how to arrive at the same result. Mr. Schultz pointed out that example under the Canada Water Act.
The Chair: There are people who think that Parliament ought perhaps more often instruct the government, particularly when the government, any government, including the ones before this, fail to do things.
Senator Sibbeston: I can see that this bill is drafted by a senator who is very determined and concerned about the federal government's inaction on the issue of water. I can see the senator's concern that the government is not acting nationally for the people of our country with respect to ensuring that we have good, safe drinking water now and in the future.
I agree with the advisers here that it is like setting out policy. A senator says that the government should be doing this and specifically lays out how it should carry out its work and bring about the regime that he feels necessary regarding drinking water.
I also accept and I have heard that within our system of laws, the water act and many other acts that come play, anytime a development occurs, such as a mine or a pipeline, many laws and regulations come into effect. These laws ensure that the environment is safe and that the water is not contaminated and the fish are not in danger. There are many laws that come into play. We have a system in place except it is not specific or focused on what the senator wants to accomplish. I notice that there is emphasis on the bill in the future. The last words in the name of the act read ``drinking water in the future''. It is not for today but it is to be concerned that we have sufficient good drinking water in the future.
While I understand the constitutional opinions, what we really need is the minister to come here a say, ``Get on with it. Do what you are supposed to do.'' There are many people in the country who may feel that the government is not really doing what it ought to with respect to water in our country and ensuring that we have good, safe water for the future.
Will we have a chance to deal with the minister? Instead of having a senator come forward with a bill like this, could not the government — and, I know you cannot answer that because you are legal advisers — do what needs to be done?
The Chair: That is the $64,000 question.
Senator Sibbeston: I know of many discussions with the government before this bill. However, they do not seem to want to act on it. It sometimes takes the initiative of a senator such as in this case. Perhaps senators are doing their jobs by doing things like this; initiating private member's bills that will eventually end up being part of government policy. In this regard, maybe most of our questions, initiatives or work that we do as a committee ought to be with a minister and asking him, or her, these questions. These legal advisers are correct in stating that there are some concerns, for example, giving too much direction to the government and fettering his discretion, and so on. It may be unconstitutional to a certain extent.
The Chair: We have heard it is unconventional but not unconstitutional. Is that fair to say?
Mr. Newman: This issue does not go to the constitutional validity of the legislation because these unwritten constitutional principles are, for the most part, of a conventional character, as you pointed out. However, they may go to constitutional concerns in the sense that conventions themselves are part of the Constitution of Canada. They are simply not enforceable rules of law; they are political rules of conduct.
The Chair: They are not written down.
Mr. Newman: That is right.
The Chair: If you used Senator Grafstein's bill — and, if I put it in backyard terms — the Canada Water Act has been in place since 1974. We have water problems in this country. This committee, and others, have asked successive governments — not just this one but the government before and the government before — to do something about these things and they have not. I do not want to put words in his mouth, but I think Senator Grafstein is saying this: All right, then we will oblige the government to do what it is supposed to have done beginning in 1974. That was 35 years ago, as you pointed out. I appreciate the comment you made, Senator Sibbeston.
Senator Cochrane: What would happen if the Parliament of Canada were to pass this bill but the provinces were not in agreement with it? They would say, for example, ``No, we are not passing this bill.'' What would happen? We were told that nothing would happen.
Mr. Schultz: If the minister consulted with his provincial counterparts and with the cabinet colleagues named in the act and was unsuccessful, presumably he would have to make a reasonable effort to consult and to conclude an agreement. If he did not, he could not do anything. According to clause 4(1)(b) of the bill, he would have to present to both the Senate and the House of Commons a statement of the reasons why the agreement had not been concluded and an estimate of the time when it would be concluded. I think it is fair to say that, if this were to pass and if the minister were to make reasonable efforts to conclude an agreement and he was not able to, the minister would simply make a statement to the effect that ``I have made these efforts but was not able to do it. My estimate is it never will be.'' That is the scenario for that.
[Translation]
Senator Nolin: I would like to go back to the issue of federal-provincial relations. The act of 1974 provide for consultations and the possible conclusion of federal-provincial agreements on water management. The Minister of the Environment has had this responsibility for more than 35 years. The act gives him the option to establish this type of negotiation or relation with his provincial colleagues.
We will hear the testimony of your colleagues from the public service. Nevertheless, I would like to know a little more about the functioning of the federal administration. Are you the only one, Mr. Schultz, to advise the minister on the legality of these powers or must the Privy Council be consulted as well? Does the office of federal-provincial relations must also be consulted?
You mentioned it earlier, the political aspect of this agency could make it illusory, if one the players decided to impose the implementation of an objective on which there was an agreement.
The wording of section 4 of the act that has existed for 35 years sounds a bit like a prayer.
For the purpose of facilitating the formulation of policies and programs with respect to the water resources of Canada and to ensure the optimal use of those resources for the benefit of all Canadians, having regard to the distinctive geography of Canada and the character of water as a natural resource, the Minister may...
One can see there a complete political framework that allows for the assessment of the possibilities given to a minister.
As an advisor to the minister, could explain us the inside mechanics of the government? Who should we talk to if we want to understand the workings of the system? Why, after 35 years, have we not had any results? Well, maybe we got some but they are poorly assessed.
[English]
I can only answer a small part of your question. Again, I think it would have to be the minister himself or a senior official who would explain how advice is given on how to implement a federal-provincial agreement like this. The role of the Department of Justice is to give legal advice. Under the Department of Justice Act, it is made very clear that the Department of Justice is responsible for giving legal advice to the government, which includes cabinet officials. If the minister were to consult me or one of my colleagues on the scope of the powers available to him under this bill, it would be incumbent upon his colleague, the Minister of Justice or justice officials, including myself, to advise him on what the scope of the act is. The role of the Department of Justice would be that, namely, to advise him on simply the scope of the legal authority there. If he were to pursue a federal-provincial agreement like that, certainly senior government officials would consult with central agencies and that sort of thing, but I cannot even speculate how the minister would undertake this himself. Does that answer your question?
Senator Nolin: I think that tells us that we will have to meet and hear from all officials and not only from your department — thank you very much for coming — but also from central agencies to understand. This is a motherhood bill. I read proposed section 4, it is black and white.
Everyone wants that, but how do we make it possible and how do we get the desired results? We need to understand how to do this. We already have an act. There is a new bill that we will study, and in both cases, nothing can happen.
The Chair: Unless the hammer is brought down. The interesting thing and witnesses, please correct me if I am wrong — there is no hammer in Bill S-208. There is a hammer in the Canada Water Act.
Senator Nolin: If there is a hammer, why has the department not tabled in Parliament reports from 2002?
The Chair: Is my observation correct? That is, I think that the Canada Water Act says, at base — and no one wants to go there — that if the provinces fail to do the right thing, the federal government can invoke a federal power and take action under the Canada Water Act. No such thing exists in Bill S-208. There is no hammer, no compunction, no compelling factor in Bill S-208, but I believe there is in the Canada Water Act. Am I right?
Mr. Schultz: You are correct that under the Canada Water Act there is a provision where the minister, with the approval of the Governor-in-Council, is able to implement unilateral water resource management programs, but in respect of only certain types of water defined under the act. One is inter-jurisdictional waters, waters going between two provinces, and international or boundary waters. Again, consistent, I am sure, with the common understanding of the operation of the peace, order and good government power, the power to implement even those unilateral rules is circumscribed in that the Governor-in-Council has to be assured that all reasonable steps have been made to try to develop a cooperative arrangement with the province before unilateral action is taken.
Senator Milne: Unless we know the location of the aquifers and how they flow, we do not know if they fall under international waters or interprovincial waters.
Mr. Schultz: I am just a lawyer, but I like to read maps. I assume that the scientists will tell you that the definition of inter-jurisdictional and boundary waters is fairly clear. Getting back to your point, Senator Milne, which deals with aquifers, Environment Canada officials would be better placed to inform you on the work that has been done on aquifers.
Senator Brown: I have all the sympathy in the world for anyone concerned about water. I am as concerned about water as anyone. I know that water can make you deathly ill, or at least very ill, if it is not potable. However, I do not know of a single town or even a village in Canada — and I have toured this country three times now — that does not have some kind of water test for the public water system. I think water is either chlorinated or filtered, or a combination thereof, in virtually every corporate town or municipality that exists. I was told this bill is three years in the making, this act we are dealing with right now. If that is true, then I think we are trying to create a horse and buggy when the automobile has already been built. I think this Canada Water Act has worked reasonably well, with the exception of a very few minor problems. I have never heard of the federal government intervening. I have heard of the provincial government intervening. In the case of Ontario, it cost the government. After Walkerton, the matter went all the way to the premier's office. We have not had many of those cases.
With respect to the aquifers, I go back to my point. I do not know of a municipality or town that is not treating its water. That is because chemicals, solids, or something that comes from nature, not necessarily human pollution, sodium sulphate, salts, et cetera contaminate the aquifers. Many water supplies that everyone uses, including wells, which I have lived with all my life, have filtration systems and water tests.
The answer to Senator Adams, not to forget his concerns, is that Nunavut has the legislature and must have some kind of municipal government. Senator Adams raises the problem of funds. I would think that it would be possible for his legislature to come forward to say: We are in a serious situation here, and you do not want to see us in the kind of situation in which we have seen a number of Aboriginal communities, where they have had a major problem with their drinking water because it was not properly treated. In order to properly treat it, we need the funds. Since we are a small community, we do not have the necessary funds for a proper water reservoir and treatment, and it would have to come from the federal government, the territorial government, or a combination of both.
Senator Adams: We do not drink the water from the pipes, especially the elders. We are even worried about the water that is delivered to us. We make tea from the ice that people bring to our homes. In the summertime, the elders ask someone with a five-gallon water jug to go up the river and get fresh water. Some of the stores are selling a litre of water for $3 or $4, and some people do not have the money to buy a bottle of water. This is the system we have in the community. The elders cannot tolerate the chlorine in the water. We have a circulating system of pipes to ensure that the water runs up to the lake all of the time. If it stops for two or three hours, it will freeze. So many litres are chlorinated and everything goes back and forth.
One of the lakes in Rankin Inlet has drinking water but there is so much chlorine in it that the fish are changing colour. That is the kind of thing that happens when you get too much chlorine. The inlet and the outlet are very close together. The fish start down the lake and come back to the line again. That is the kind of thing that happens in the North.
The Chair: It is important. It is, however, a different question.
Do senators have any further questions of our witnesses?
Thank you very much. We appreciate your time. You have been most informative. We will pursue this further. Please give our regards to your client agency and give them a little heads-up.
The committee adjourned.