Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue 8 - Evidence - June 2, 2009
OTTAWA, Tuesday, June 2, 2009
The Standing Senate Committee on Energy, the Environment and Natural Resources, to which was referred Bill C-16, An Act to amend certain acts that relate to the environment and to enact provisions respecting the enforcement of certain acts that relate to the environment, met this day at 5:07 p.m. to give consideration to the bill.
Senator David W. Angus (Chair) in the chair.
[English]
The Chair: Good afternoon honourable senators, ladies and gentlemen and those watching our proceedings on the CPAC network and the World Wide Web.
We are beginning our study of Bill C-16, the environmental enforcement act. We are privileged to have with us this evening the Minister of the Environment, the Honourable Jim Prentice and with him, members of Parliament from the House of Commons Stephen Woodworth, MP for Kitchener Centre and the Parliamentary Secretary of the Minister of the Environment, Mark Warawa, MP from Langley, B.C. We also have Renée Caron, Executive Director of Legislative Governance at Environment Canada. Welcome to you all.
For the record, this meeting of the Standing Senate Committee on Energy, the Environment and Natural Resources is being held while the Senate is in session by special order granted at about 3:30 p.m. this afternoon.
Without further ado, my name is David Angus. I am a senator from Montreal, Quebec and chair of this committee. Also present is: my esteemed deputy chair, Senator Grant Mitchell from Alberta; Senator Richard Neufeld from British Columbia; Senator Bert Brown from Alberta; Senator Tommy Banks from Alberta; Senator Gerry St. Germain from B.C.; Senator Elaine McCoy from Alberta; Senator Pana Merchant from Saskatchewan; and Senator Dan Lang from the Yukon.
We have a representative group, minister. As you know, we have had discussions about this bill and about high profile environmental issues challenging us in the global context. By way of introduction, I want to say how active you have been since this present cabinet was formed in working not only with your counterparts in the United States in the Obama administration, but also in the group of 17 countries that are working on an agenda for the upcoming deliberations in Copenhagen in December.
You have agreed with me and my deputy chair that if we can get through our discussions on Bill C-16 in an appropriate time frame, you would be willing to share your views on the macro-level from 30,000 feet to give us a sense of what we are dealing with.
The Senate today approved a special study for which we sought their authority. It is a terms of reference that we have informally discussed with you for a large study on an energy policy as it relates to climate change and other aspects currently on your plate. Hopefully, this study will be helpful to you and your colleagues as we go forward together challenging these climate change issues. These are not partisan issues; they affect all of us living on this planet. We are determined at this committee to do it on a consensus and non-partisan basis and to come to solutions that make sense. I want to reiterate, on the record, that we are at your service, minister, if we can be helpful in doing some of the spadework necessary to bring the facts out on the table.
Without further ado, I present the Honourable Jim Prentice from Alberta, Minister of the Environment.
Hon. Jim Prentice, P.C., M.P., Minister of the Environment: Thank you, Mr. Chair. Good afternoon, ladies and gentlemen. It is a pleasure to be here in furtherance of the discussions between myself, the chair and the deputy chair relative to my attendance here today.
I am joined by two colleagues, Parliamentary Secretary Mark Warawa and Stephen Woodworth who has also been a great help to us on this legislation. Renée Caron is the Executive Director of Legislative Governance. Ms. Caron has with her in the audience a team of very talented young lawyers who have worked on this legislation. It is a fine piece of legislation that we will discuss, and they have done incredible work on it.
We have an excellent group of senators, and I look forward to the dialogue. I am happy to discuss Bill C-16 today. If the committee permits, however, I would also like to take the opportunity, as we move beyond Bill C-16, to explain to you more broadly our government's plans relative to climate change and protecting the environment in a more general way.
Mr. Chair, as you know, much has been happening abroad and at home to influence the environmental legacy that our generation has been entrusted to leave for those who will follow after us.
I have just returned from London, Paris and Copenhagen — I should include Amsterdam, Oslo and Bergen, Norway, on that same six-day junket. It was a very active trip where I discussed, with my counterparts, the need for urgent action on climate change, and what Canada is doing in that regard. It was a fascinating trip not only because it involved bilateral meetings with various countries, but it also involved the second Major Economies Forum on Energies and Climate, the process convened by President Obama. It is the second set of meetings we have had, this being a forum that will be a complementary and parallel process on the way to Copenhagen.
I know that all parties are engaged on this important issue. I understand that the committee travelled last year to the Arctic and had an opportunity to see some of the perils of climate change in a firsthand way. Climate change as it relates to people living north of the 60th parallel is a significant issue for our country.
[Translation]
Mr. Chair, I share this desire, as does the Government of Canada. Rising greenhouse gas emissions are warming the planet. It is true that Canada accounts for only two per cent of global greenhouse gas emissions. Still, our geography, and to an extent, our commodity-based economy, make us one of the most energy consumptive societies in the world today, and put us among the top 15 emitters globally on a per capita basis.
It is for that reason that we sit on the newly created Major Economies Forum on Energy and Climate, with the other 16 major developed, developing and emitting economies of the world.
Our seat at that table presents us with a unique opportunity to influence the political dialogue in the lead-up to December's Climate Change Conference in Copenhagen.
Canada has a major role to play, and for us, the way forward is clear.
[English]
Canada is the eighth largest emitter of greenhouse gases in the world, but we are among the top several countries in terms of our per capita emissions. It is reflective of our geography and our climate and the nature of our primary industrial base in our country.
It is instructive that although we have among the cleanest electricity systems in the world in terms of its emissions of carbon dioxide, we are still one of the highest per capita emitters in the world.
We must address climate change by responsibly reducing our carbon emissions. We require policies that commit us to domestic action, to continental action and also to international action. At home, that target has been expressed by the government as our desire to reduce Canada's emissions by 20 per cent below 2006 levels by 2020, and to go as far as a 60 per cent to 70 per cent reduction by 2050. You may wish to explore how that compares to other major economies in the world, including some of the developing countries.
We are doing so on the strength of domestic policies that address all major sources of greenhouse gas emissions in Canada. It is not enough to target industry alone; only about one-half of Canada's emissions originate with industry — and the thermal electricity sector as part of that.
Already we have taken decisive action to reduce our emissions from other sectors of the economy as well. By next year, gasoline will have to contain 5 per cent renewable fuel; and beginning with the 2011 model year, new regulations will require that cars and trucks produce less carbon dioxide emissions. This will help reduce the emission burden that the transportation sector places on our planet.
The transportation sector generally is responsible for 26 per cent of Canada's emissions. Canada is now the first federal jurisdiction in North America to impose tailpipe emission standards addressed at those emissions. These fuel efficiency standards, or tailpipe emissions standards, have been aligned with our largest trading partner, the United States. In part, that is because we share the same economic space, the same energy space and the same environmental space as the United States; and in part, it is because it makes more sense to pursue a coordinated approach to address the challenges that we face in both areas.
This has been an objective of both countries for many years. I am pleased to say that two months ago, we achieved that realization. We now have harmonized North American fuel economy standards at the federal level.
Without question, Canada and the United States should work together to bring new energy and economic renewal to North America by taking actions that not only will reduce our greenhouse gas emissions, but also produce a larger and cleaner source of fuel and of power. The clean energy dialogue is something that I am responsible for. It emerged from the meeting between President Obama and the Prime Minister this winter, and we have already taken the critical steps to move forward.
We have embarked on a process of three working groups, which define the expanded collaboration. The first group will focus on clean energy research. The second group will focus on building a more efficient electricity grid on a North American basis, incorporating smart grid technologies to the North American marketplace. This will lead to great progress, with a key objective being to strive for a common North American cap-and-trade system that would allay competitive concerns in both countries. In addition, the third working group will deal with issues relating to carbon capture and storage, in particular, as it applies to thermal electricity — coal facilities.
Our collaborations with the United States have been productive, and we expect that to continue. These working groups will bear enormous promise for both of our countries over a long period of time. I expect that our collaborations with the United States will provide further growth for Canada's credibility internationally as we work with other countries as well.
Internationally, we intend to go to Copenhagen equipped with a full suite of policies that relate to all sources of greenhouse gas emissions to address our domestic challenges. This is how Canada, the United States, the Australians and other countries have agreed to approach Copenhagen. We have all said that when we get there, by the time that we set our positions out on the table, we will have put forward all of our domestic policies that relate to each source of emissions. That is the same commitment that other countries have given.
That position, as you may already know, and our position at the Copenhagen table — and this is a pivotal year; in December of this year it all crystallizes — is that we have called for a new international agreement that balances our responsibilities to the environment with our obligations for economic prosperity, both for developed countries and developing countries.
We insist upon a framework that maintains a long-term focus, that stimulates the development and employment of clean technologies and, equally important, that applies to all major emitters. If we are going to have an international protocol that applies to carbon emissions, it must apply to the people who emit carbon. Principally, that involves the United States, which is responsible for close to 25 per cent of the world's carbon emissions, and China, which is responsible for something of the same order of magnitude. We have said that this new protocol will have to apply to all major emitters.
I have already echoed these opinions repeatedly with our international partners. Over the course of the last week, I spoke in Copenhagen at the World Business Summit on Climate Change. I have also spoken at both of the preparatory sessions of the Major Economies Forum struck by President Obama in Washington, in April, and then last week in Paris.
[Translation]
Our government believes that carbon capture and storage can help us balance our energy needs with our need to protect the environment, but that it also represents the most viable emission-reducing technology for oil sands and coal-fired electricity plants.
With the right combination of financial investment, creative savvy and technical ingenuity, the potential for progress is clearly there, as is the possibility of Canada leading the world in new carbon capture-storage and clean-coal technologies.
Budget 2009 committed $1 billion over five years for clean energy research and demonstration projects, precisely to start moving us towards our objectives.
These investments are particularly important as we engage in the Clean Energy Dialogue with the United States and further collaborate on developing clean energy technologies that reduce greenhouse gases.
Mr. Chair, the Government of Canada is quite obviously engaged and committed to addressing climate change and reducing greenhouse gas emissions, and to do so on concurrent domestic, continental and international tracks.
[English]
However, our commitment to the environment does not begin and end with climate change. Thus, in March of this year, we introduced Bill C-16, the environmental enforcement bill, to properly protect these resources. It received all-party support in the House of Commons. Let me briefly outline how the bill goes beyond anything that has previously existed and why it is important to the government.
The legislation amends nine existing statutes administered by Environment Canada, as well as Parks Canada, which I am also responsible for, and it builds upon our government's commitment to protect our water, land, air, and wildlife through stricter enforcement measures.
[Translation]
I think you will agree, Mr. Chair and members of the committee, that those who break the law should not only be punished, but their penalties should be appropriate to the severity of their offences.
The Environmental Enforcement Bill does just that, by giving prosecutors and courts the necessary means to dole out stiff and appropriate penalties. We are talking higher maximum fines for both corporations and individuals, and for the first time, minimum fines for the most serious infractions committed against the environment.
The bill also directs courts to treat environmental damage, intentional or reckless behaviour and certain other factors as aggravating factors in sentencing.
It creates different fine scales for different types of offenders, to ensure fines imposed are appropriate to the specific offence.
[English]
It also establishes administrative monetary penalties to address less serious environmental offences that are often not pursued because prosecution is highly complex and expensive.
These significant measures will yield significant rewards for the environment. The bill strengthens existing laws to ensure sentences act as strong deterrents, fulfils the promise of denunciation of environmental offences and contributes also to environmental restoration.
To those who break environmental laws, these messages are clear; our laws will send a strong message that there will be consequences. With additional enforcement offices in the field made possible by some $43 million in additional money that was allocated in Budgets 2007 and 2008, and now with Bill C-16, we have brought together more people, more resources and stronger laws to provide Canada with a comprehensive, modern and effective environmental enforcement regime.
Our government believes that those who break the law should be punished to the fullest extent and this bill will help to ensure that happens in the future.
Since coming to office three years ago, we have made great progress on initiatives to protect our water, air, natural resources and wildlife. Coupled with our ongoing efforts to reduce greenhouse gas emissions and address climate change as part of our international effort, it is clear that the Government of Canada is doing its part to protect the environment.
I would like to thank the members of the committee for being here today. I look forward to answering your questions.
[Translation]
Senator Mitchell: Thank you very much, Mr. Minister. I must say your French is very good. That is an inspiration for another man from Alberta — me, in this instance — who is trying to learn French. Perhaps we can speak French together in Alberta one day. I hope so.
[English]
However, we will not do that right now.
I would like to pursue a couple of questions with you and I would like to thank you very much for being here and allowing us to talk about Bill C-16, and about pressing policy concerns.
Canadians have waited for a long time for specific policy action on climate change. We were told by your predecessor that we would actually get emissions, caps, regulations — hard regulations — this year. You have announced they will be ready next year and they would take effect in 2016.
Could you give us an idea about that schedule and whether we could move it up? It has implications, as you have acknowledged, for achieving your Canadian objectives by 2020, if industry has four years.
Mr. Prentice: I am pleased to answer that question. First, what I said publicly and what I have said consistently since I became the Minister of the Environment is that our obligation is to table at Copenhagen all of Canada's specific policies. When we arrive in Copenhagen, the policies will be clearly on the table for all Canadians to scrutinize. Essentially, the Canadian policy framework for all sources of greenhouse gases emissions in our society will be tabled before December 2009.
In 2010, we will complete the detailed regulatory process, the gazetting process, for all of those regulations because they affect everything from the kinds of automobiles we are able to purchase, right through to how our electricity system functions. All of the detailed regulatory work will be carried out. Some of it has already started and certainly it will be carried out in 2010.
In general terms, the application date — when we start the application — is January 1 of the following year, in 2011. In certain cases, some measures have already come into place. In certain cases, they will be applied sector by sector thereafter.
This approach matches what our international partners have committed to do at Copenhagen. It looks forward to the prospects of where we will be post-Kyoto, if you will. It will deal in great specificity with all the sources of greenhouse gas emissions in our society.
That is the approach that we will follow. It will allow us to fulfil the commitment of minus 20 per cent reduction in greenhouse gases by 2020.
I have never said that this will be delayed until 2016. I have simply indicated that as the policies and the detailed regulations relate to trade-exposed sectors, areas of industry that are exposed to competition and the risk of carbon leakage, we do need to be mindful of what is going on with our major trading partner, as well as what is happening elsewhere in the world. We will be attentive, in the interests of protecting Canadian jobs and investments, to ensure that we know what is transpiring elsewhere. That is the schedule as I have described it.
Senator Mitchell: One of the things that both you and I encounter all the time when we speak to heavy industry is that the leaders there are not by any means evil people. They want to get this right and they want to do what needs to be done. However, we always come down to the fact that shareholders drive them; they have a responsibility to shareholders. When you dig down into that, it is a powerful motivator. How do they justify doing things that are not necessarily exactly right for their shareholders, when those shareholders can go somewhere else?
That is an issue that needs to be addressed and solved at some level. Yes, they must make some sacrifices, but there is a limit, given financial structures.
Have you given any specific thought to how you might answer that question in this process of dealing with climate change investment?
Mr. Prentice: To answer your question in a general way, I have a view that you do not achieve excellence in public policy unless you talk to people. Extensive stakeholder consultation has been carried out, and will continue to be carried out, in relation to these policies and regulations as they relate to each area of application, including industry.
We are going to great lengths to ensure that there is consultation with industry and that we talk with them about how these regulations will affect them, as we talk to other stakeholders as well. This is being done with a great deal of care and prudence to ensure that we get it right and that we adopt, first, policies, and second, detailed regulation that is achievable, which fulfills our commitment to be stewards of the environment and which, in an effective way, reduces Canadian greenhouse gas emissions.
My feeling at this point, having participated extensively at international tables, negotiating on behalf of Canada, is that our approach to this is gaining respect and notice and that Canada is going about this in a measured way to ensure that our emission reductions are real and that we can fulfil the commitments that we make.
Senator Merchant: Mr. Minister, welcome to our committee. I have a couple of questions for you on Bill C-16.
First, how do our environmental enforcement measures compare with those of other countries? How does Canada compare with the other countries? Are we a leader? Is there a model nation?
Mr. Prentice: Let me speak to the specific measures that we have brought in relative to Canada in previous years, which is the first measure.
We have taken steps to ensure, first, that we have more boots on the ground. We have doubled the number of enforcement officers in this country. We have 106 new recruits, some of whom I met at the Toronto airport as they are going through their training process. These are environmental enforcement officers, often biologists, who will be enforcing these new laws. We have strengthened our capacity to engage in enforcement activity.
The point is fairly made: If you adopt tough laws but do not have the enforcement arm, it will not fulfil its objective. In order to do that, we have allocated extensive dollars. Between Budget 2007 and Budget 2008, there is a total of $43 million that has been allocated for enforcement activities and for these new recruits. In addition, there is another $12 million for Parks Canada. Over the course of the last three years, there has been in excess of $50 million of additional, new funding directed to ensuring that we are on the ground and that we have enforcement officers, and the third element is to have legislation for them to enforce.
We think we are making great progress. If you look at other countries, Environment Canada, in our capacity to enforce our laws, is very well respected. We have a large country, at the same time.
Senator Merchant: Is there an arm that will educate would-be offenders so that they are encouraged to comply with the new regulations? Will there be a campaign to inform them of the new regulations? If so, can you explain your plans?
Mr. Prentice: There certainly will be consultation on implementation. There will not be a massive public campaign on public education relative to the new bill, but I think the bill is generally understood. For instance, the shipping industry is quite cognizant of the legislation. These are very specific pieces of legislation that we are amending. Certainly, the people in industry who are affected by them, whether it is the Migratory Birds Convention Act or other legislation, are familiar with the statutes. Our sense is that people will be familiar with the provisions.
Senator Banks: Thank you, Mr. Minister, and ladies and gentlemen, for being here today.
I do not often begin with a flurry of compliments, minister, but this is a good bill, in the main. It does some things that some of us have been after for a long time. I must say that while we might disagree with details of exactly how to go about it, you have brought a breath of fresh air, attitudinally speaking, with respect to matters that you spoke about when you were first talking with us today, and it is very welcome.
Mr. Prentice: Thank you, Senator Banks.
Senator Banks: However, we do have to deal with the bill. You just referred to the Migratory Birds Convention Act and to shippers. We had some interesting deliberations about that act, particularly with respect to the specific liability aspect of it and the possibility of placing foreign sailors, for example, in jeopardy of imprisonment for dumping bad water in the middle of a fog at midnight off Newfoundland and killing some birds. This bill reinforces that by reinforcing the specific liability aspect of it.
In order that we can take it into account when we are deliberating the specific liability implications of this bill, can you tell us how many prosecutions there have been, and how many convictions, if any, under the Migratory Birds Convention Act, of foreign sailors, masters, engineers, and so on?
Mr. Minister, I do not expect you to have those figures, but have there been any prosecutions? Have we put any foreign sailors in jail for breaking the Migratory Birds Convention Act?
Mr. Prentice: There have been 246 convictions under the Migratory Birds Convention Act. My understanding is that none of those convictions has involved foreign vessels, if you will, foreign captains, seafarers.
Senator Banks: I ask because international shippers were avid in their representations with respect to that bill about the implications on shipping in Canada. They asked whether Canadian ports and shippers would suffer because of what they regarded as the draconian nature of that bill.
Am I saying that accurately, Mr. Chair? Do you recall?
The Chair: You have a wonderful way of putting things, Senator Banks.
Senator Banks: I am not sure about that; I just want to be accurate.
It will help us to know whether we were seeing bogeymen under the bed when we were considering those things.
Mr. Prentice: I think so, to put it candidly. I appreciate that industry has raised these concerns, and they include ensuring compliance with the United Nations Convention on the Law of the Sea, UNCLOS. We are aware that it does not allow imposing prison terms on foreign vessels beyond their territorial sea; that is understood.
Absolutely nothing in this bill contradicts the UNCLOS. We have to accept that it is a matter of reliable practice that prosecutors and the prosecutorial arm of the Government of Canada would not seek imprisonment if it were a violation of international law to do so. That is a fundamental aspect of this legislation. The Attorney General would clearly exercise his discretion to ensure that they did not violate international law.
Senator Banks: Thank you. That is comforting.
This bill amends nine other acts of Parliament, but it also enacts a new act of Parliament, the one called the environmental violations administrative and monetary penalties act, which says how you will go about this.
Ms. Caron can probably answer this question quickly. I am sure you have all the assurances that you need from the Department of Justice, but in the event that any of the nine acts as amended, came into conflict with this act, which would prevail? Is there a simple answer to that question?
Mr. Prentice: Can you give us an illustration or an example?
Senator Banks: Which would prevail if any provision were found later, after we have amended these nine acts, to be in conflict with any of provisions of the new environmental violations administrative and monetary penalties act. I do not know what they would be, perhaps a disagreement as between a minimum sentence or the means by which the money could be collected. I do not anticipate that anyone knows of these things, but sometimes they show up later. If that were to happen, which would prevail?
Mr. Prentice: I think the environmental enforcement act would prevail as it relates to AMPS, administrative monetary penalties, because the AMPS are only found in the environmental enforcement act. They are a non-criminal mechanism created under that act.
Senator Banks: I noticed that there is a five-year limit on collecting. Anyone who has ever received a judgment in a civil lawsuit knows that is the easy part, and the collecting is the hard part. Is there a reason for the five years? Is that a magic number? It says that if you have, in effect, a judgment, if you do not collect on it within five years, it is a statute of limitations kind of thing.
Mr. Prentice: Were other periods were considered?
Renée Caron, Executive Director, Legislative Governance, Environment Canada: Is that in reference to a provision in our bill?
Senator Banks: Yes.
Ms. Caron: Is it in reference to another statute?
Senator Banks: On page 192, in proposed section 27(2), concerning the recovery of penalties, it states:
(2) No proceeding to recover the debt may be instituted more than five years after the day on which the debt becomes payable.
It appears I misstated it. You have to make the claim within five years, or you cannot.
Mr. Prentice: It is simply a five-year limitation period on the ability to collect and enforce a debt. I do not think that is unreasonable. That is within normal parameters for limitation periods for contractual enforcement.
Mr. Woodworth has some comments on that.
Stephen Woodworth, Member of Parliament for Kitchener Centre, as an individual: I wish to add that I think what you are looking at, is a provision of the new environmental administrative penalties act. We are talking about an administrative penalty and the ability of the government to collect it. In most cases, when a fine or penalty is levied under that act, the enforcement will be pretty immediate. It would be unusual for any reason to exist to want to wait five years. As a practical matter, I do not think that is likely to have much application.
Senator Banks: Thank you.
The Chair: At this point, Mr. Minister, it might be important for you to explain to us what you explained to me privately earlier, namely, that Mr. Woodworth has a special role in respect of this legislation, being a member of Parliament.
Mr. Prentice: Mr. Woodworth is recently elected member of Parliament. As all of you know from your time in politics and before, when you face a statute like this, the first thing you need is a good lawyer. Ms. Caron and I sought out Mr. Woodworth, and he has been a great help in the House of Commons committee, working with us detailing through what is dense legislation. We thank him for all of his help.
The Chair: I wanted to add that for the credibility of your answer on a specific legal question.
Senator Banks: On page 189, Mr. Woodworth, in the proposed new act, clause 11, under "rules about violations", and I have never heard or seen this before, even in environmental legislation, it states:
11. (1) A person, ship or vessel named in a notice of violation does not have a defence by reason that the person or, in the case of a ship or vessel, its owner, operator, master or chief engineer
(a) exercised due diligence to prevent the violation; or
(b) reasonably and honestly believed in the existence of facts that, if true, would exonerate the person, ship or vessel.
That eliminates 70 per cent or 80 per cent of the possible defences, does it not?
Mr. Woodworth: That makes the administrative offences that this administrative monetary penalties act is concerned with absolute liability offences. It is important to note that this is not a provision of general application. This will not apply to most of what you see in the environmental enforcement act. This will apply to minor things, for example, filing reports by particular due dates and filling them out correctly; very minor administrative acts. We are attempting to set out a summary procedure which will result in an ability to deal with minor offences without the necessity for huge legal expense for parties involved.
The Chair: This is known in our profession as a reverse onus. It is basically reversing the onus of proof, is it not?
Mr. Woodworth: It is not exactly, although I have heard that stated. The fact is that the government or the Crown must still prove that an offence has occurred by reason of the failure to file the document or failure to do what is required. In that sense, the onus remains on the Crown. However, the Crown does not have to try to prove the mental state of the individual who committed the offence. From a lawyer's perspective, it is not a reverse onus in that sense. The Crown still must prove the offence.
Mr. Prentice: It is important to note that this does not relate to the major fine increases that we have seen in the legislation. These are for administrative, monetary penalties which are de minimus offences that are subject to a stricter liability regime.
Senator Banks: They are violations, not offences.
Mr. Prentice: They are not criminal; they are not penal.
[Translation]
Senator St. Germain: I would like to speak in French, since my colleague, Senator Mitchell from Alberta, has practised his French.
[English]
Thank you, Mr. Minister, for coming here this evening and thank you, Mr. Warawa. You were my MP for years, and an excellent one. Mr. Woodworth, welcome to the committee. One day, I hope you will sit here as a senator. Do not say no; try it.
Minister, I have one question for you. In your excellent presentation, you said:
At home, that target has been expressed by the government as our desire to reduce Canada's emissions by 20 per cent below 2006 levels by 2020, and to go as far as a 60 per cent to 70 per cent reduction by 2050.
You said we might want to ask how this compares with other countries. It would be interesting to know because of all the controversy that floats out there and the questions that come through Question Period in the Senate and in the other place. How does it compare? Could you give us some examples?
Mr. Prentice: The most immediate example is the level of ambition being discussed in the United States. This is called "mitigation" at the international climate change tables, but let us refer to it as the level of ambition under discussion. In the Canadian context, we go from a 2006 baseline and it is minus 20 per cent by 2020.
In his budgetary proposal, President Obama expressed the desire to get the United States emissions down to 1990 levels by 2020. If you work out the math on a comparable basis to the Canadian targets, it would be in the range of minus 15 per cent making the Canadian target is slightly more ambitious. The so-called Waxman-Markey bill introduced in the United States Congress started with a premise of reducing American emissions by minus 20 per cent by 2020 from a 2005 base.
For our purposes, let us ignore the difference between 2005 and 2006. It was a comparable level of effort to Canada. As that bill has worked its way though the American Congress, it has been reduced to a 17 per cent reduction by 2020. It has been described to me by some as the high-water mark.
It would seem that the United States is working towards a level of ambition somewhat less than what we have talked about in Canada in terms of our minus 20 per cent by 2020.
Senator St. Germain: What is comparable in Europe?
Mr. Prentice: There is much discussion in Europe driven by concern about what has been indicated by the science. The European Union has been advocating targets that would be from 25 per cent to 40 per cent reductions by 2020 from a 1990 baseline. Part of the essential dynamic at the international table is whether those kinds of objectives or levels of ambition are achievable in the United States. The United States has clearly stated that they are not.
You then have the related question of the developing world. For example, Brazil, China and India have not adopted the same targets. They have simply indicated a willingness to file domestic sustainability plans, but are not adopting hard targets for reductions.
That is very much the subject of discussion internationally in the Copenhagen process. Michael Martin is our Chief Negotiator and Ambassador for Climate Change who works with me is in Bonn at meetings today. They will be discussing these issues at that meeting.
The long and short of it is that the minus 20 per cent by 2020 is a target that we think is attainable. It is ambitious. It is a target that we must be focused on. It is a target that reflects the realities of our Canadian circumstance.
Senator Neufeld: Thank you for being here today.
Minister Prentice, from what I understand there is not any change to the principle of any of those nine acts that are being amended in Bill C-16. What is changing is the level of enforcement, instructions to the court on how they should apply the enforcement, the fine structure and, probably, imprisonment. Is it correct to say that the nine acts are basically the same and that the amendments only reach those kinds of parameters?
Mr. Prentice: I think that is a fair summary. There was a desire to modernize the enforcement provisions of our legislation. This bill was not to get into the nitty-gritty of changing the legislation, but rather, to modernize how we deal with enforcement. That involved consideration of principles of sentencing such as deterrence, denunciation and restoration that did not find their way into the previous legislation. The nine bills represent an historic compilation of legislation for which Environment Canada is responsible. There were fines in some of those legislative provisions that went back to 1952 while some were more modern. There was a desire to standardize the provisions so that we have a more consistent regime.
Senator Neufeld: That is good to know and to put on the record. I asked that question before and received the same answer.
It seems as though the shipping industry's concerns are that they are trying to advocate that we should be changing the legislation — the nine acts — rather than dealing with the intent of Bill C-16.
Perhaps you could help me with that in relation to the shipping industry. I have a letter from the Chamber of Shipping of British Columbia from Vancouver. I will read some of it into the record:
We must point out that this legislation is seriously compromising the efforts of other government departments to advance the Asia-Pacific Gateway Initiative and promote Vancouver as an international maritime centre. A concerning number of existing IMC members see Bill C-16 as the final straw in Canada's apparent intent on generating a hostile environment for the operation of international shipping. A number of owners are therefore actively considering to close their Vancouver operations should this legislation be passed.
I am familiar with receiving those kinds of letters. I read a number of them in my previous life: If you do not do it my way, we are gone. I would like to be able to answer those people when they come to present to us in a rational way.
I understand why we are doing it and how it is really not affecting them. I have some good information to cross-examine them and to get them, not to agree, but to alleviate some of their concerns.
Mr. Prentice: We are aware that the shipping industry has expressed a variety of concerns. We do not agree with what has been put forward as either a legal interpretation or a consideration of the effects.
The government, with proposed amendments to Bill C-16, addressed a number of these concerns. For example, the Marine Liability Act was raised as an issue. We have ensured that the Marine Liability Act is pre-eminent.
There is also the concern that we discussed earlier relating to the United Nations Covenant on the Law of the Sea, UNCLOS. In our view, what is proposed does not contradict UNCLOS in any way.
The suggestion has been put forward that strict liability offences referred to in the bill are unconstitutional. Our lawyers simply do not agree, nor do they agree with what has being put forward as the interpretation of "strict liability." Some of the assertions made relate to the concept of absolute liability. That is not reflected in the legislation. We were speaking of the legal concept of "strict liability," which is well-known in Canadian law. This is not a unique concept. It is a liability to which due diligence is always available as a defence. There are other provisions we could address. However, in general terms, this is the position we take with respect to some of the concerns.
Senator Neufeld: Thank you. I think that will help us. I will keep that note close to me when they appear.
The Chair: Yes, or when they stop inviting you out for those evening cruises in Vancouver!
Senator Neufeld: I do not know whether being on a ship or an evening cruise in Vancouver would be fun.
Mr. Prentice: For example, one of the assertions put forward is the concept of a true accident. They are suggesting that if there is an accident, the offence could result in their not having a defence. We do not agree with some of the illustrations that have been put forward. If due diligence can be shown, that is a defence in Canadian law.
The Chair: Mr. Minister, what you have been saying is that you are comfortable insofar as the legality and legal framework in which these provisions are being enacted or have been enacted already. What needs to be said is these same provisions exist in some of the law — for example, American law — and we are just doing this to be consistent with them. Is that your position?
Mr. Prentice: I am not going to get into a detailed jurisdiction by jurisdiction assessment of Canadian shipping law relative to other jurisdictions. However, in general terms, we are adopting principles that are applicable throughout Canadian law. They are well-known concepts; their constitutionality is well known, and the concept of due diligence as a defence is well known. These are not unique Canadian principles; they are found elsewhere in marine law.
Senator Neufeld: To put it on the record, there was unanimous consent by all parties in the other place on Bill C-16, as it was amended, correct?
Mr. Prentice: That is correct. I emphasize that we are all trying to be constructive about this legislation. You may, in a separate informal session, want to speak with Ms. Caron and Mr. Woodworth about some of the specific illustrations that have been brought forward by the shipping industry. They will be available to assist you.
The Chair: On that, Mr. Minister, I understand there is a certain moment in time coming up when you may have to leave. I was hoping you would say that these officials could stay with us. I know there are seven or eight others, including Ms. Caron, that could stay and answer any of our questions. Is that something you would be comfortable with?
Senator Neufeld: I would like your comments on the 20 per cent below 2006 level by 2020 and introducing a cap-and-trade, which is heavy industry.
I guess you feel comfortable that you will be able to get enough tonnage out of the heavy emitters only to get to that level by 2020. I will use British Columbia as an example. I think you said 26 per cent of the emissions across Canada are from transportation. British Columbia is, I think, 39 per cent or 40 per cent, right in that area.
There have been moves in British Columbia to do a few different things to try to curb those emissions. Some of them are along with yours — the ethanol in gasoline and biofuel in diesel. I use natural gas; it is a great way to heat my home. However, all of those kinds of things emit greenhouse gases. Are you saying you will get all those emissions only from the heavy emitters and nothing else will happen with anyone else, or is there something else that I am missing?
Mr. Prentice: Let us go back to what the constituent elements of our greenhouse gas emissions. About 30 per cent of Canada's greenhouse gas emissions come from trade-exposed industries. These are rough numbers, so bear with me, but probably another 20 per cent of our emissions originate from thermal coal facilities and other electricity generating facilities that emit carbon. There is another 25 per cent from the transportation sector and then the final 25 per cent is everything else. That includes this building, your house and all kinds of other facilities — everything from landfill sites and so on.
We have indicated that in arriving at Copenhagen, we will have tabled policies that relate to all sources of emissions. That has been what is under discussion in the United States. That is not simply the industrial emitters; it is all sources of emissions and what our public policy framework will be that applies to that issue.
That is the same analysis that other countries are going through as well. For example, one of the first policies that we announced two months ago was the new tailpipe emissions standards for automobiles. That will reduce Canada's greenhouse gas emissions.
Senator Neufeld: Is that a California standard?
Mr. Prentice: We adopted the dominant federal North American standard and we were the first ones to take that step. The United States since then has moved toward accelerating that standard. We will ensure that on an annual basis, we update the standard so that Canada and the United States, sharing the auto industry and the auto marketplace, will have the same standards every year. My point is that those standards on emissions will reduce our greenhouse gas emissions.
We need to be scientific about all the sources of our emissions and dealing with how we will reduce those emissions, sector-by-sector and source by source.
Senator McCoy: Mr. Minister, it is always a pleasure to see you and to hear your very eloquent presentations.
I have three questions, one of which has to do with the details regarding the Clean Energy Research Fund. Before I begin on those, though, I would like publicly to thank you for your support in Banff National Park for the bike path that I think you announced just last week. I chaired the Bow Corridor Regional Mobility Strategy. It was a long desired hope of all of us to see that particular infrastructure. To see your support for it was very much welcomed in all parts of Alberta, I can assure you. It truly has an environmental impact that will have long-range plans. We appreciate the many things you do for the environment, even though we recognize that the constraints under which you operate are sometimes considerable.
Turning to the $1 billion Clean Energy Research Fund, several of us have asked this question, but we have not been successful in hearing all of the details. We know that $141 million was announced a month or so ago for a variety of carbon capture and storage, CCS, projects. The Government of Alberta has put up $2 billion for pilot projects in that area. Many of us would be thrilled if the federal government would match that figure; nevertheless, I am wondering where the government plans to spend the other $850 million.
Mr. Prentice: I am pleased to answer those questions. First, thank you for your kind comments about the bike path from Canmore to Banff. It is a fairly modest investment by Parks Canada, but it was an announcement that was quite moving in terms of the people there, the community support, the enthusiasm and the excitement about it. People who live in the mountains are quite concerned about the ecology and it was an announcement that I will always remember.
In terms of the Clean Energy Fund of $1 billion, Environment Canada does not administer those monies; they are administered by NRCan. For details on the programmatic elements of it, you would need to speak with Minister Raitt, which I am sure you will do.
The fund also forms part of our clean energy dialogue with the United States because they are making similar investments in technology and science, specifically in carbon capture and storage. Canada has really done extraordinary things in the area of carbon capture and storage. To be sure, it is not a silver bullet for all of the challenges because the world will continue to emit carbon as long as it continues to burn coal.
Close to 2,000 coal burning thermal facilities will be built over the next 20 years; that is a rate of almost 100 facilities per year. The only technology at this time available for discussion is sequestration of that carbon. As long as you burn coal, you will have a smoke stack that emits carbon.
This is pivotal technology that the United Nations science community has identified it as such, and Canada leads the way. There are four large-scale sequestration projects at work in the world today. Forty per cent of the global carbon globally is stored in Canada by EnCana's Weyburn project in Saskatchewan. Norwegians and Canadians have led the way on this technology. Much of the world is beating a path to our door to find out what we have done, how we have done it and to learn about our progress.
Certainly, the $1 billion fund is not directed exclusively to those technological investments but it is a big part of it. Minister Raitt is working through the details and can make those known to you.
Senator McCoy: Will you encourage her to share the details with us as soon as she knows them?
I was pleased to read that the Council on Foreign Relations in the United States recently issued a report with a more balanced appraisal of the oil sands projects and said not only that they are cleaner than has been alleged by some but that they also represent a multiple benefit to the United States. I believe that they said the oil sands are not only a secure supply, from the United States' point of view, but also there are some economic advantages to buying from Canada as opposed to from Venezuela, for example.
I am sure that this is part of your dialogue with the United States. I thought it might be worthwhile having you expand on that perspective since we will launch an energy study soon. Do you wish to comment on that aspect of your discussions?
Mr. Prentice: The Council on Foreign Relations study that you refer to is extremely important because it is quite thoughtful. The Council on Foreign Relations is well respected as an organization that puts out probative pieces of public policy analysis. It is a very good report in that sense. It makes a number of points that are currently topical.
As the United States works through the specifics of their cap-and-trade legislation, they and we need to be mindful that we occupy the same economic space, the same energy space — the largest free-trading energy marketplace in the world, and the same environmental space.
The report of the CFR is one of the first to draw attention to some of the continental implications. It provides a caution to the United States on a number of items, including the so-called low carbon fuel standard, which, as suggested, would not be helpful either to Canada or to the United States. There are other suggestions as well and is a valuable contribution to the discussion.
Senator Lang: Mr. Minister, we talk about enforcement and enforcement officers. What is the policy on the use of firearms for the enforcement officers under the various acts?
Mr. Prentice: As I recall, the new recruits are trained in firearms but not all of them carry firearms. As I recall, they are available to some of the officers in certain circumstances. In the context of parks, there has been a controversial discussions as to who will be designated as the enforcement officers that carry firearms. The proposed legislation does not change that in any way because it does not deal with the use of firearms.
We might have to obtain a more fulsome answer on that question.
Senator Lang: You mentioned China, India and Brazil and the international debate on cap-and-trade and the various other aspects we have to deal with. Are China, India and Brazil around the table when you are dealing these items? Are they prepared to make some commitments as well?
Mr. Prentice: This is one of the questions, of course. The Major Economies Forum on Energy and Climate that President Obama has convened, which is a complementary or parallel process to the UN process at Copenhagen, consists of the world's 16 largest economies, plus Denmark, because they are hosting at Copenhagen. Those 16 countries account for close to 80 per cent of the world's carbon emissions. Collectively, they are responsible for 80 per cent of the emissions and 100 per cent of the solutions. China, Brazil, Indonesia, South Africa and India are at the table.
Part of the essential discussion in that UN forum is that the developing countries take the perspective that the developed world has "saturated," to use their term, the atmosphere with carbon dioxide. They take the perspective that it is unfair to restrict their capacity to grow and their ability to provide electricity to their citizens because the developed world has essentially saturated the atmosphere. These countries believe there needs to be some give and take. That is their argument and they have been reluctant to agree to specific targets but have talked more generally about domestic commitments and sustainability. That is one of the issues at the heart of the Copenhagen process.
Increasingly, the developed world has been saying that it needs to see more specific targets from the developing world. It ties to the question of the level of ambition held by the United States and by China.
Senator Lang: I have been reading about the cap-and-trade system and I notice that in Australia, the Prime Minister had to pull back from his commitment for at least a period of time until he instituted a program. As well, I read that in Europe, the cap-and-trade program is in place and causing many economic changes.
The question raised in some articles is whether cap-and-trade is really working. If Canada is going in that direction, what model will we follow to ensure that we get it right?
Mr. Prentice: That is a wise caution. There are different public policy mechanisms you can use to bring in a climate change regime. A cap-and-trade system is one; carbon taxes are another; and a third is an approach on regulation.
It does not matter how you go about it, you need to calibrate it very carefully and ensure that you have done the specifics and consultation with stakeholders and industry to know the implications. In our context, we are pursuing a regulatory approach. We have been very clear about that. We will not pursue a carbon tax. We are pursuing a regulatory approach and the United States has a similar approach, which involves cap-and-trade. We have indicated a willingness to explore those, ensuring that, on a North American basis, we have a system that is workable and potentially a North American regime.
However, it must be approached carefully. What you are referring to in the Australian experience is a piece of legislation that was tabled and which the Australian government has now retreated from because of the public input they have received. Australia is not the only country which has had that experience. I think one could even see the dynamic in the United States as they wrestle with the Waxman-Markey bill in terms of how to calibrate the bill properly as it relates to individual sectors. It is very detailed work.
I would emphasize that Canada has already done much of the heavy lifting on this issue. We have been wrestling with this assiduously for several years. We have done a lot in terms of consultation and knowing the economic implications. In many respects, we are well ahead of our American neighbours on the detailed analysis.
Senator Lang: Perhaps you can tell us where the provinces are on this because they bear many of the responsibilities, either directly or indirectly. Are they directly involved as you go down this path?
Mr. Prentice: That is a very good question. We have been working closely with the provinces. For example, after I became the minister, I made a commitment to the other environment ministers that we would consult with them before going to Copenhagen. Therefore, we now meet with the representatives of the provinces before we go to any of the meetings along the way. Our climate change ambassador, Mr. Martin, meets with them and shares where we are going as a country, what perspectives we are putting forward, and solicits their input. They are very much at the table. They are very much engaged in a dialogue with us about the specifics. Generally speaking, if you reflect on the last six months, there has been a sense of cooperation as we work towards some of the details. Both Ontario and Quebec have recently tabled short cap-and-trade bills, which were essentially philosophical statements asserting they are prepared to move towards a cap-and-trade system, which we welcomed as a constructive contribution.
I feel that we do need national policies that link up with American national policies, and sub-national standards are not the best way to go.
Senator Mitchell: Thank you, Mr. Minister. This has been very interesting. As you can see, we have a great committee.
In order for us to have achieved Kyoto, we would have had to reduce about 250 megatonnes. When you do the math on your 20 per cent by 2020, which will probably not get started — and I accept your points it will be before 2016 — let us say in 2013 or 2014, you are actually looking at probably a reduction of considerably more than 250 megatonnes. Yet, it was said by many, including your party and government, that we could never do Kyoto; we could never achieve that 250-megatonne reduction. Yet you will be requiring more in a relatively short period of time: 2013 or 2014 to 2020 and maybe 2015 to 2020.
Therefore, where do you and your government get the resolve, when it was so adamant that Kyoto, which, in the end, might have been of less significance than your target would be? How will you do that?
Mr. Prentice: We may need to have a more detailed discussion about that with some the charts and graphs relative to megatonnes and the comparison between Kyoto and where we are.
However, I would say that, generally speaking, we believe that the 20 per cent by 2020 is achievable, from a 2006 base. Kyoto, of course, was a 1990 base. It is achievable, provided we adopt the right policies and move forward.
This will also be part of the post-Kyoto period; the second so-called "second compliance period" beyond 2012, which will involve all of the things that we agree upon at Copenhagen.
That is where we are headed and we are satisfied that we will be able to get there. I am happy to have that discussion in more detail at another time.
Senator Mitchell: I am looking at the numbers as I understand them and I think it will be more than 250 megatonnes but I stand to be corrected.
President Obama's program will have a very significant target for alternative and renewable energy. Will you have a similar target in the Canadian program? Have you determined what portion of these cuts will have to come from alternative energy sources?
Mr. Prentice: We have. This is a really important point because the circumstances of the American electricity industry and the Canadian industry are quite different; in fact, they are the opposite of each other in a way. We value renewables as a contribution. We have very specific policies that will be directed to renewables such as hydro, wind, solar and others.
Overall, the Canadian electricity system is one the cleanest in the world; it is 73 per cent non-emitting. By comparison, the system in the United States is close to 75 per cent emitting. It is quite different. They have a different imperative in terms of renewables.
One of the unique but positive circumstances that we face is our natural resource endowment. We have the capacity to bring on very extensive megawatts of hydro-electricity in Canada in a number of provinces, perhaps as much as 25,000 megawatts of additional hydro over the course of the next 25 years. That would contribute enormously to "greening" the electricity system, not only for Canada, but for the United States. Therefore, while we have a similar objective, our national circumstances are quite different.
The Chair: Mr. Minister, we appreciate that you have taken your valuable time and shared with us some very important matters for our ongoing interest and discussions on these important subjects of environment, climate change and energy.
Will it be okay if the officials stay behind?
Mr. Prentice: I will leave the Parliamentary Secretary. You may carry on for the next half hour and explore some of the details with the officials.
The Chair: Mr. Minister, thank you very much and good luck in your ongoing discussions with the group of 17.
We are privileged to have with us now, on our study on Bill C-16, the Environmental Enforcement Act, Mark Warawa, M.P. from Langley, British Columbia and Parliamentary Secretary to the Minister of the Environment. Thank you very much, Mr. Warawa, for staying on. We also have with us Mr. Stephen Woodworth, M.P. from Kitchener Centre. Mr. Woodworth is a lawyer who has had intimate connection with Bill C-16.
We are having this ongoing session because a number of senators have further questions on the bill. However, there is no obligation to ask questions.
In addition to the three witnesses that I mentioned, we have, from Environment Canada, Ms. Renée Caron; and Ms. Sarah Cosgrove, Manager, Legislative Advice Section; Darlene Pearson, Legislation and Policy, from Parks Canada; and Linda Tingley, Legal Counsel, from Justice Canada, which would go to the constitutional and intra vires aspects of this legislation.
Senator Banks: I have a simple question, Mr. Warawa. I am proud to say that I was the author of an act of Parliament called the Statutes Repeal Act. I am referring you now to the coming into force provisions of this bill. That Statutes Repeal Act arose because I stumbled across more than 50 sections of acts of Parliament, all of which had received Royal Assent, none of which had been brought into force, and all of which were older than 10 years and some more than 25 years old.
Parliament, when it gives the government this kind of discretion, gives the Governor-in-Council the discretion when to bring an act into force but not whether to bring an act into force. Hence, the Statutes Repeal Act says that if it is not brought into force within 10 years of receiving Royal Assent, it is gone.
I am sure there are good reasons for the existence of a coming into force act, without which it would come into force on the day it receives Royal Assent. What are the triggers to cause the Governor-in-Council to bring this act into force? Do you see a drop dead date by which it could be brought into force?
Mark Warawa, M.P. Parliamentary Secretary to the Minister of the Environment: I want to thank Senator Banks for his work. You have done more than that; you have provided the requirement to report on the sustainable development to both the House of Commons and to the Senate. I want to thank you for your work on the environment.
Ms. Caron: Some work will need to be done, assuming that the bill before this committee is eventually passed and that it receives Royal Assent. Environment Canada and Parks Canada will work to update our respective enforcement policies so that they are in keeping with the requirements of the bill. In addition, some regulations will need to be developed.
In particular, I point the members of the committee to the Environmental Violations Administrative Monetary Penalties Act which cannot be brought into force without a regulatory regime being established for that act in practice. While I do not have a specific timeline to give the committee at this point, there would be a couple of years worth of work because there will be consultations in both the development of new policies as well as in relation to the development of regulations. We are looking at a couple of years at least for the time frame to bring everything into force.
Senator Banks: Do you anticipate that it will be brought into force in one fell swoop or that some parts, for example, amendments to some of the acts, might be brought into force before the expiration of that period of approximately two years?
Ms. Caron: Certainly, it is possible for all of it to be brought into force at one time. Having said that, who knows the vagaries of what might happen in the future. We work closely with Parks Canada but we have two separate organizations as well that will be responsible for the different statutes. Environment Canada administers six of the acts; Parks Canada administers three. There could be some differences.
Senator Banks: I have looked and I cannot find anything in the present act that would preclude the regulations to which you have just referred being statutory instruments. Am I right in assuming that those regulations will be statutory instruments for the purpose of scrutiny?
Ms. Caron: Yes, those will be regulations under the Statutory Instruments Act.
The Chair: When we studied Bill C-15, which was part of the framework legislation in this bill, pursuant to that legislation I understand that a memorandum of understanding was developed between Environment Canada and Transport Canada for the enforcement activity. During our studies we were presented with a lot of evidence about things like who should act first. As an example, we asked the question: Which department would act first if there were a high seas oil spill where migratory birds were injured or killed. We asked if there were a delay in correcting the problem, which department should initiate legal proceedings. I believe I saw a draft MOU.
What are the plans in this case, especially since we are now getting into major penalties, fines, imprisonment and sanctions?
Ms. Caron: Environment Canada and Transport Canada do have an MOU as of the summer of 2006. My understanding, based on my review, is that in the Atlantic region, there was also an MOU at the time, but now we have a national MOU from 2006. That MOU is maintained between the organizations. This bill will certainly be an opportunity to go back again and ensure that the MOU is updated appropriately in keeping with the changes under this bill.
In terms of the Migratory Birds Convention Act, my understanding is that if an oil incident is involved, most often charges will be laid, from the Environment Canada perspective, under the Migratory Birds Convention Act. On occasion, charges are laid under the Canadian Environmental Protection Act and sometimes under the Fisheries Act, but the bulk of the charges are laid under the Migratory Birds Convention Act. On the Transport Canada side, the Canada Shipping Act is the statute that is typically used.
My understanding is that in cases where there have been multiple charges, they have been upheld under the Canada Shipping Act. My understanding is that it is not permitted to convict under two statutes for the same offence. The Canada Shipping Act is the act that has been used in the past by the courts, but charges are brought under both and they are brought cooperatively between Transport Canada and Environment Canada.
The Chair: I was quite surprised at the minister's answer earlier when he was asked by Senator Banks how many prosecutions there had been under this group of laws. He mentioned about 246 convictions, but I did not hear of a time frame. Does that mean ever, or does that mean since Bill C-15 was passed two or three years ago here?
Ms. Caron: The number of 246 relates to convictions in the past five years under the Migratory Birds Convention Act.
I think the question asked was specifically with regard to jail terms in relation to a foreign vessel that might commit an offence. That number did not relate to that. In fact, the number is zero, if you are looking at jail terms for foreign vessels.
The Chair: Zero jail terms meted out and zero convictions or prosecutions?
Ms. Caron: There have been prosecutions, but my understanding is that they have been in concert with Transport Canada enforcement and have involved the Canada Shipping Act as well. When those two charges are brought, they have always prevailed under the Canada Shipping Act, but the prosecutions have been brought under the Migratory Birds Convention Act.
The Chair: We are pursuing this line — and I think all my colleagues are on the same page with me on this —because we have been advised in this chamber of sober second thought that there was all-party agreement in the other place and in your chamber, Mr. Warawa and Mr. Woodworth. We are pursuing this also because we are being lobbied quite aggressively in terms of stakeholders. I have been approached by three specific groups. I have been approached by the Chamber of Shipping of British Columbia and by BIMCO, which is an international organization like the Chamber of Shipping. It monitors all aspects of shipping issues, if you will, and this is a big issue in international shipping, we are told. Then there is the International Maritime Centre of Vancouver, which was established to encourage shipping companies to establish in Canada. They created sort of a tax haven in British Columbia whereby if they were to establish an infrastructure and office and have a base in Vancouver, for example, they would receive special tax treatment. The State of Connecticut has the same thing, and there are a number of jurisdictions where it exists. It is just part of business competition.
These people are complaining — I suspect my colleagues have been lobbied to the same extent — that they feel the shipping industry and the Vancouver deal are being discriminated against and that they are not being properly defended by our federal government, that they are scaring them away. One of the stakeholders has said: If you go ahead with this, this is the last straw. We will move away from Vancouver.
This is just a preamble. I am asking for some comments on that, because this is the main issue.
There is also the International Transport Workers' Federation, the ITWF, which are the seafarers. They feel they could all end up behind bars for issues that they did not have anything to do with or did not know anything about, and they are troubled by it. This is the gist of what we are being told.
We know that you do not want to alienate these constituencies in British Columbia and elsewhere. We need something on the record; otherwise we will have to hear from them. Some of them are coming here next week, but the minister has indicated that he would like to have this bill back un-amended. Give us your ammo.
Mr. Warawa: That is a very good question. Of the meetings that we had, we heard from witnesses from the department and the only industry we heard from was shipping. We knew there were some concerns there. When they did come before us, they expressed their concerns. As the minister mentioned, strict liability was their major concern.
Some of their recommendations and clarifications in the bill were incorporated, the bill was amended, and that is why we received unanimous support within committee. However, the point was made by the shipping industry that this legislation would put a chill on the shipping industry. One of the witnesses said that he had been in shipping for years and would highly recommend to his children, and generations to follow, to avoid shipping because of the liability issue.
The point was made to the witness that this legislation amends nine different statutes and it affects all industry within Canada, not just the shipping industry. All industry would be impacted in order to provide a cleaner environment. I do not know if that provided solace, but it was clarified that not just shipping was affected but all industry.
One question was what kind of offence shipping would be involved with in the dumping of oil into the water. Whether it was shipping or industry on a river or in the ocean, it would be the same sort of impact and would provide a similar chill to all industry that we must protect our environment, and there will be consequences if we do not. It is not the cost of doing business; there will be a consequence.
Mr. Woodworth: I appreciate the opportunity as well, senator, to comment on this and to try to give you that ammunition, if I may. I will try to confine my comments to three points, the first of which Mr. Warawa has already touched upon.
The shipping industry is the only industry that has come forward with these concerns, whereas the legislation affects, for example, the mining industry, the electrical industry, the fisheries, and other industries that interact with the environment. The shipping industry is the only industry that has come forth with these concerns and is asking for special treatment.
The Chair: Their point is that there is actually special treatment negatively for foreign shipping because of the mobility of the capital assets in which they ply their careers. Although I may be wrong, I believe that it is not that they are asking for special treatment. They would like to have the same treatment as Canadians.
Mr. Woodworth: In fact, they are getting the same treatment as Canadians. That is the point I would like to make. For example, mining companies, whether based in Canada or elsewhere with operations in Canada, will also have to comply with our environmental legislation, and the mining industry has not requested any exemption. These are laws of general application that will apply to Canadians and non-Canadians alike.
Second, these laws will apply regardless of where a company is based if a company is doing business in Canada. In addition to having to move one's head office out of Canada, one would have to refuse to sail in Canada's waters in order to avoid the application of this act. That seems to me to be an unlikely consequence of this legislation.
Third, we heard some obvious misconceptions from witnesses at the House of Commons committee. For example, people looked at the administrative penalties provisions and said that they apply to everything, and they do not. People saw that the legislation contained prison penalties and said that it might offend the UN Convention on the Law of the Sea, when in fact prosecutorial policy under the Canada Shipping Act and other acts does not seek to impose prison penalties on foreign-owned ships.
There were certain misconceptions about which I hope the witnesses left our committee with some clarity. I asked them to go back to their counterparts in international industries and try to undo some of the misconceptions and set the record straight. I hope that they will do that. If they do, perhaps some of these concerns will be allayed.
Mr. Warawa: I want to share two more points with this committee. First, the shipping industry opposed strict liability in the previous Parliament in 2005. They were consistent in that opposition and their challenge of it as being unconstitutional. The courts have upheld that, but they continue with their position of opposition.
The Chair: We do not have any evidence that there was a specific challenge made and the courts upheld it on that bill. If you have some information, it would be interesting to see.
Ms. Caron: Mr. Chair, I believe Mr. Warawa was referring to the fact that the Supreme Court of Canada has upheld R. v. Wholesale Travel Group three times. Wholesale Travel was the first decision; it was a tight five-four case. Perhaps that left an impression that the decision was not air tight, but it has since been upheld three times.
The Chair: Right. Those were on strict liability issues generally. The act that Senator Banks and I both worked hard on has not been challenged in the court, that we are aware of.
Ms. Caron: Not that we are aware of, Mr. Chair.
Mr. Warawa: Finally, there was unanimous support for the amended Bill C-16 to move forward and come to the Senate. However, there was discussion about the Species at Risk Act and there were questions on why it was not one of the statutes being amended. SARA is going through a legislative review in the Standing Committee on the Environment, and that is why it was not included in this legislation.
Senator Banks: Mr. Woodworth, is our reading wrong? Does the Migratory Birds Convention Act not provide for the imprisonment, in certain circumstances, of foreign seamen?
Mr. Woodworth: A number of the environmental acts do provide generally for imprisonment as does, for example, the Shipping Act, which is not an environmental act and which is not referred to in Bill C-16. However, the Government of Canada will not offend any international convention to which it is a party and, therefore, instructs its prosecutors that where seeking a prison sentence would offend the UN Convention on the Law of the Sea, no prison sentence will be sought.
If memory serves me correctly, Bill C-16 improves on the Canada Shipping Act, because in that act that policy is simply laid out in a prosecutorial policy directive. I believe that under Bill C-16 prosecutors may be required to seek the consent of the Attorney General of Canada before looking for a custodial sentence for a foreign vessel. That should provide an additional level of assurance.
I hope I have not spoken out of turn there. Perhaps that is just a difference from the Migratory Birds Convention Act —
Senator Banks: It is.
Mr. Warawa: — which did not require the Attorney General's — it did, sorry. That will now be applied across the board.
Senator Banks: I think that prosecutors require an Attorney General's imprimatur before they proceed with a prosecution, do they not?
Mr. Woodworth: I do not think so. I think what we are talking about is an added requirement in these kinds of cases.
The Chair: When an international treaty is involved in things, you need the Attorney General, but normally the local enforcement authorities can initiate proceedings.
Senator Banks: Have we passed a law, the Migratory Birds Convention Act, that contains a provision that offends against UNCLOS? We do not like passing laws that cannot be enforced. Have we passed a law that offends against UNCLOS but it is okay because the Attorney General would not approve prosecution under that law?
The Chair: That is basically what you are saying.
Mr. Woodworth: I would not characterize it as a law that offends UNCLOS. It is a law of general application that applies to anyone who offends against it, but UNCLOS is a special case that will result in the Government of Canada not seeking a prison sentence under our environmental enforcement law. The law itself does not offend UNCLOS, but the Government of Canada undertakes not to act against a foreign vessel in circumstances where it might offend UNCLOS.
Senator Banks: As a rule, I think we ought to have amended that bill.
The Chair: I thought we were planning to, until one night the bells started ringing.
Senator Banks: Thank you.
The Chair: This clarifies the issue. We heard a lot of evidence to the effect that there was a conflict with UNCLOS. However, we did not know — at least, I did not know — that there was a policy in place — which you call a prosecutorial policy, as opposed to a Prentice pathway — and that is probably the protection. Whether it has the force of law I am not sure. It is what it is.
Ms. Caron: I would like to underline that I am not here in the capacity of legal council. I am not member of a bar, so I am not speaking in that capacity, but I would be pleased to help the committee in any way I can.
I would like to refer to section 13 of the Migratory Birds Convention Act as it stands today, and that is not in the bill before you. As Mr. Woodworth mentioned, the provision is one of general application.
It reads:
A person or vessel commits an offence if the person or vessel contravenes
(a) a provision of this Act or the regulations;
(b) an obligation or prohibition arising from this Act or the regulations;
(c) an order or direction made under this Act; or
(d) an order, direction or decision of a court made under this Act.
This is what we mean by a provision of general application. It is not targeting foreign vessels; it is not even limited just to vessels; it is a provision that captures all of the offences here and puts them in one spot and says if you violate these items, then you commit an offence under the act.
That is why this provision would not be, per se, a violation of UNCLOS. If you took the provision and prosecuted a foreign vessel seeking imprisonment, that would be a violation of UNCLOS; but as we have mentioned, it is a matter of reliable practice that prosecutors do not do that and they do prosecute in keeping with our international obligations.
The Chair: We understand, but what I think Senator Banks is suggesting and what the chair here would likely agree with is that that clause of general application could be more helpful in these circumstance if said "to the extent that they would not violate any of Canada's international treaty obligations." However, it does not, and there is a policy. Personally, I think the industry is comfortable with that, and that is why this discussion is useful, because it is getting legislative history on the record.
Senator Mitchell: I would like to go back to the climate change issue. Is that something that you would feel comfortable with, Mr. Warawa?
Mr. Warawa: We would prefer to stay on Bill C-16 if we could.
The Chair: That was the understanding. The minister basically was way out on policy, and I asked for these officials to stay. Have you any questions on the bill itself?
Senator Mitchell: I am good with Bill C-16; I have real problems with the climate change.
The Chair: The world does, but we will all work together in a non-partisan way to deal with those problems.
We will now bring this sitting of the Standing Senate Committee on Energy, the Environment and Natural Resources to a close. We would like to thank our two colleagues from the House of Commons for being here today. Your contributions were useful and to the point, and we are grateful for them; and the others, ladies if I may say so, you were also very helpful and we appreciate it.
Without further ado, I suspend the formal part of the meeting and we will go in camera.
(The committee continued in camera.)