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Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources

Issue No. 52 - Evidence - November 22, 2018


OTTAWA, Thursday, November 22, 2018

The Standing Senate Committee on Energy, the Environment and Natural Resources met this day at 8 a.m., in public, to give clause-by-clause consideration to Bill C-57, An Act to amend the Federal Sustainable Development Act; and in camera, to consider a draft report in its study on the effects of transitioning to a low carbon economy.

Senator Rosa Galvez (Chair) in the chair.

[Translation]

The Chair: Good morning and welcome to this meeting of the Standing Senate Committee on Energy, the Environment and Natural Resources. My name is Rosa Galvez. I am a senator from Quebec and chair of this committee.

I would ask the senators around the table to introduce themselves.

[English]

Senator Cordy: Jane Cordy, Nova Scotia.

Senator McCallum: Mary Jane McCallum, Manitoba.

Senator MacDonald: Michael MacDonald, Nova Scotia.

Senator Richards: Dave Richards, New Brunswick.

Senator Woo: Yuen Pau Woo, British Columbia.

[Translation]

Senator Seidman: Judith Seidman from Quebec.

Senator Mockler: Percy Mockler from New Brunswick.

Senator Massicotte: Paul Massicotte from Quebec.

[English]

Senator Patterson: Dennis Patterson, Nunavut.

Senator Neufeld: Richard Neufeld, British Columbia.

Senator Griffin: Diane Griffin, Prince Edward Island.

The Chair: I would also like to introduce our committee clerk and analyst.

Today, we continue our study of Bill C-57, An Act to amend the Federal Sustainable Development Act. We are now at a stage where we will begin going through the bill, clause by clause.

Before we begin clause-by-clause consideration of Bill C-57, I would like to advise members that we have officials from Environment and Climate Change Canada who can be called to the table to answer questions if members wish.

I would also like to remind senators of a number of points regarding this process. If at any point a senator is not clear where we are in the process, please ask for clarification. I want to ensure that at all times we all have the same understanding of where we are in the process.

In terms of the mechanics of the process, I wish to remind senators that when more than one amendment is proposed to be moved to a clause, amendments should be proposed in the order of the lines of the clause.

Therefore, before considering an amendment to a clause, I will be verifying whether any senator had intended to move an earlier amendment to the clause. If senators do intend to move an earlier amendment, they will be given the opportunity to do so.

If a senator is opposed to an entire clause, I remind you that in committee the proper process is not to move a motion to delete the entire clause but rather to vote against the clause standing as part of the bill.

If committee members ever have any questions about the process or about the propriety of anything occurring, they can certainly raise a point of order. As chair, I will listen to the argument, decide when there has been sufficient discussion of a matter or order, and make a ruling.

The committee is the ultimate master of its business within the bounds established by the Senate, and a ruling can be appealed to the full committee by asking whether the ruling shall be sustained.

As chair, I will do my utmost to ensure that all senators wishing to speak have the opportunity to do so. However, for this I will depend upon your cooperation and I will ask all of you to consider other senators and to keep your remarks to the point and as brief as possible.

Finally, I wish to remind honourable senators that if there is ever any uncertainty as to the results of a voice vote or a show of hands, the most effective route is to request a roll call vote, which provides unambiguous results. Senators are aware that any tied vote negates the motion in question.

Are there any questions concerning the process? Seeing none, we can proceed.

Is it agreed that the committee proceed to clause-by-clause consideration of Bill C-57, An Act to amend the Federal Sustainable Development Act?

Hon. Senators: Agreed.

The Chair: Shall the title stand postponed?

Hon. Senators: Agreed.

The Chair: Shall clause 1 carry?

Hon. Senators: Agreed.

The Chair: Shall clause 2 carry?

Hon. Senators: Agreed.

The Chair: Shall clause 3 carry?

Hon. Senators: Agreed.

The Chair: Shall clause 4 carry?

Hon. Senators: Agreed.

The Chair: Shall clause 5 carry?

Senator Patterson has an amendment.

Senator Patterson: I want to propose an amendment to clause 5. The clerk has the amendment in both official languages.

The Chair: Did you all receive the DP1? Do you all have the three proposed amendments?

I see that Senators Massicotte, Griffin, Cordy and McCallum need to receive copies of the amendment.

The first amendment proposed by Senator Patterson is described as DP1. I will give the floor to Senator Patterson to present his argument on this amendment.

Senator Massicotte: I am having trouble. Should he read it?

The Chair: I will read the first amendment:

That Bill C-57 be amended in clause 5, on page 4, by replacing line 17 with the following:

“lated to sustainable development, including matters referred to it by”.

Senator Patterson: Madam Chair, I am a little embarrassed. The amendment was intended to allow the Sustainable Development Advisory Council, not only to advise the minister on any matter related to sustainable development, but also to undertake a study of matters determined by the committee.

I am afraid the amendment I have prepared for you does not reflect that intention.

The Chair: No.

Senator Seidman: I could read it to indeed reflect that intention.

What you have is “including matters referred to it by,” which means that it isn’t only. Right here, as it reads, it says “on matter related to sustainable development that is referred to it by the minister,” meaning it only takes up that which is referred to it by the minister.

Your amendment says “including matters referred to it by the minister,” which means that isn’t all that it could take up.

Senator Patterson: What amendment would you make?

Senator Seidman: The amendment is perfect the way it is.

The Chair: We will take names.

Have you finished, Senator Seidman?

Senator Seidman: Yes. To me, it reflects exactly the intent that Senator Patterson is proposing.

We should read the language carefully. The word “including” makes a huge difference.

Senator Patterson: Senator Seidman has been of invaluable help in explaining my amendment. I take back what I said. She has it right.

The Chair: You are not sorry anymore.

Senator Patterson: I take back my apology.

The Chair: Does any senator wish to express an opinion or a comment?

Is it your pleasure, honourable senators, to adopt the motion in amendment?

Hon. Senators: Agreed.

The Chair: Thank you.

Shall clause 5, as amended, carry?

Hon. Senators: Agreed.

The Chair: Shall clause 6 carry?

Hon. Senators: Agreed.

The Chair: Shall clause 7 carry?

Hon. Senators: Agreed.

The Chair: Shall clause 8 carry?

Senator Patterson has an amendment. It is referred to as DP2.

Senator Patterson: This is about measures to enforce the development of sustainable goals in the departments and agencies of the federal government. It was recommended by Commissioner Gelfand that performance-based contracts with the Government of Canada should include provisions for meeting the applicable goals and targets referred to in the Federal Sustainable Development Strategy.

We had discussions in the committee in consideration of the bill of whether this provision of relating it to performance-based contracts would be desirable. It was recommended by Commissioner Gelfand when she said at committee that we could put this back into the act to make sure that the government does not read it as related to only procurement activities but that performance pay be linked to the achieving of sustainable development goals.

I am proposing that this recommendation from the Commissioner of Environment and Sustainable Development be included. Therefore, the amendment would read:

That Bill C-57 be amended in clause 8, on page 5, by adding the following after line 30:

10.2 Performance-based contracts with the Government of Canada, including employment contracts, shall include provisions for meeting the applicable goals and targets referred to in the Federal Sustainable Development Strategy and any applicable strategy developed under section 11.”.

The Chair: I have a number of senators wanting to react to this proposed amendment.

Senator Massicotte: I have no problem with the intent, which is honourable, but I have difficulty in practice. I am thinking to myself: Let’s say you’re a senior employee of a certain department and you meet with your boss who says, “Next year I will give you a base salary but there will be a performance element to your compensation.”

It is a typical arrangement that is usually related to matters you can control. What you’re saying is that irrespective of a contract with an employee, with this clause the employee will wake up one morning and say, “Wow, my performance contract, because it’s the law, includes the provision of meeting the Federal Sustainable Development Strategy and any applicable development.”

I would say the employment contract doesn’t mean much anymore because it’s so broad on matters. You’re not sure what it includes. Anybody could be included in the strategy. It is not operable.

Let’s think about a third party contractor who has a performance contract to repair a wall. If he does it quickly and gets a bonus, all of a sudden he is subject to the Federal Sustainable Development Strategy.

It doesn’t work in practice. I understand the intent and agree with it, but I don’t think it’s appropriate as proposed.

Senator Woo: I wonder if we could have the clerk or analyst refresh our memories on the response of the person from Treasury Board who testified when asked a question, as to that person’s view on the change in the wording and why they chose the wording they chose rather than the proposed amendment today.

The Chair: Before doing that, I want to say I agree completely that the intent is good and the intent is clear.

However, on the definition of “performance-based,” there could be some confusion. Some sectors like engineering can understand something that is very well defined, but in other sectors “performance-based” may not be as defined. I have that in mind.                  

Senator Patterson: Madam Chair, perhaps I could assist Senator Woo. I have here the transcript of the committee discussion of that issue. There was an exchange with Senator MacDonald, and I will read from the transcript:

Senator MacDonald: Section 12 of the act requires the federal government to include provisions in all performance-based contracts for meeting the applicable targets in the Federal Sustainable Development Strategy and the departmental sustainable development strategies, but Bill C-57 repeals this. Why would you repeal it?

Mr. Lucas: The answer is more technical. That pertained to performance-based contracts for procurement. Because of the reference to the Treasury Board and its policies pertaining to government operations including procurement, the view was rather than have that specific mention, the reference to Treasury Board and policies would be reflected in the policies the government needed to operate by, be they performance-based contracting, other measures on greening government, or pertaining to other aspects of the act.

Senator MacDonald: Does it mean that performance-based contracts no longer include provisions for meeting applicable targets?

Mr. Lucas: . . . They will continue but through the directives and policies of government-to-government procurement, purchasing, or other matters as set out by the Treasury Board. That continues but it is framed more broadly.

Then we had testimony from Andrew Hayes, Senior General Counsel, Office of the Auditor General, that the proposed removal by Bill C-57 of section 12 of the current Federal Sustainable Development Act reduces accountability. That section at present reads:

Performance-based contracts with the Government of Canada shall include provisions for meeting the applicable targets referred to in the Federal Sustainable Development Strategy and the Departmental Sustainable Development Strategies.

Julie Gelfand, Commissioner of the Sustainable Development of the Auditor General said:

One is that you could put this back into the act, make sure the government does not read it as related to only procurement activities but that performance pay be linked to the achieving of sustainable development goals.

That is why I made the amendment. There was a reference to performance-based evaluation but it was repealed, so I am following the recommendations of the commissioner.

The Chair: Do you want to add anything?

Do any of the officials present want to comment?

Aleta McEwen, Senior Policy Analyst, Strategic Policy Branch, Environment and Climate Change Canada: The old section 12, to return to the act, was removed because we added paragraph 10.1 which provides Treasury Board with the ability to make regulations and directions on the sustainable development impact of operations of the departments and agencies under the act.

We have been advised that speaking to employment contracts might be beyond the scope of the act. Unless there are more specific questions, I think that is it.

Senator Woo: It’s very important information that 10.2, however we decide on it, has to be seen in the context of 10.1 Could you please elaborate on 10.1?

Ms. McEwen: Yes, 10.1 allows the Treasury Board to establish policies or issue directives applicable to one or more of the designated entities in relation to the sustainable development impact of their operations.

This would include things like their greening procurement policies, their big greening of government policies. As well, Treasury Board also has a role in establishing the management accountability framework for the senior executive, so they would have that role already.

Senator Woo: We are about to vote on the Federal Sustainable Development Act which would set the framework, in the first place, for all departments to abide by. This would provide the means by which Treasury Board would then issue these directives to the departments. Is that a fair summary?

Ms. McEwen: I believe so, yes.

Senator Massicotte: I appreciate the opinion, if you think it’s important. When I look at the proposed amendment to 10.2, on the second line it says, “employment contracts shall include provisions.”

Perhaps we could add the words, “shall include where applicable provisions.” In other words, on reading the sustainable act, if the paragraph is made to read “shall include where applicable” and Treasury Board issues directives to say that this is an important goal and performance bonuses should be based upon this, then it ties in.

I think you have to say “where applicable” because in some places it may not be applicable.

Senator Griffin: Quite a few of the points I wanted to raise have already been raised, but one comment I can still make on this matter is that in spite of the fact that the Treasury Board has policies on green procurement, one advantage of keeping the amendment in this act is that it provides greater certainty or greater clarity. That would be one advantage of keeping it.

I am not a voting member of the committee but I am a sponsor. I just note that as a comment.

Senator Cordy: This is something that we have heard about, but as it is written I have concerns that we’re overextending. There may be circumstances beyond the control of the person who is holding the contract.

I would either go along with Senator Massicotte or I would change the “shall” to “should.” In either case, either Senator Massicotte’s or changing it to “should” instead of “shall,” would red flag it to people to keep in mind that they have to meet particular goals. The “shall” makes me uncomfortable that it’s covering too much.

Senator Massicotte: You agree with the addition of “should.” Do you also agree with the addition of “where applicable?”

Senator Cordy: Yes, that would probably clarify it even better: “should where applicable.”

Senator Patterson: When the officials were here, I too expressed some doubts about the ability of the Treasury Board through a policy or through a directive to actually produce results at the departmental level.

Senator Massicotte has made a good point. There are performance-based contracts where employees may not have the authority to inspire or require their employers to meet sustainable development goals.

This is clearly intended for deputy ministers and senior managers. If we agree it is desirable to have those senior managers accountable through their annual performance evaluations, then Senator Massicotte’s subamendment makes sense to me. It need not apply to every performance-based contract throughout the government, so I am fine with that subamendment and I think it works.

We all want this bill to produce results. Frankly, I am skeptical about the chance of Treasury Board directives or policies trickling down to 90 departments and agencies, but good luck to them.

Senator Seidman: I was going to ask Senator Patterson if he would accept that friendly subamendment. I think it matters. It makes a big difference to say “where applicable” based on everything we heard. I am fully in accord with that.

The Chair: Before we proceed, we have to ensure that the French version of the subamendment and the amendment are clear.

Is it agreed that we can continue until the text is prepared?

Hon. Senators: Agreed.

The Chair: We will come back to this.

Shall clause 9 carry?

Hon. Senators: Agreed.

The Chair: Shall clause 10 carry?

Hon. Senators: Agreed.

Senator Griffin: I am not a voting member of the committee, but I want to speak to clause 10.

This consequential amendment to the Auditor General Act will be moved by Senator Woo. It affects another piece of legislation. It was recently discovered that this change had to be made to the act in order to make the two compatible.

I don’t know if you want me to read it. It’s a fairly long page and you all have it.

Senator Patterson: It has to be read.        

Senator Woo: It reads:

That Bill C-57 be amended by adding after line 25 on page 8 the following:

Consequential Amendments to the Auditor General Act

10.1 (1) The definition category/department in section 2 of the Auditor General Act is repealed.

designated entity has the same meaning as in section 2 of the Federal Sustainable Development Act; (entité désignée)

10.2 The portion of section 21.1 of the Act before paragraph (a) is replaced by the following:

Purpose

21.1 In addition to carrying out the functions referred to in subsection 23(3), the purpose of the Commissioner is to provide sustainable development monitoring and reporting on the progress of designated entities towards sustainable development, which is a continually evolving concept based on the integration of social, economic and environmental concerns, and which may be achieved by, among other things,

10.3 Subsection 22(1) of the Act is replaced by the following:

Petitions received

22 (1) Where the Auditor General receives a petition in writing from a resident of Canada about an environmental matter in the context of sustainable development that is the responsibility of a designated entity, the Auditor General shall make a record of the petition and forward the petition within fifteen days after the day on which it is received to the appropriate Minister for the designated entity.

10.4 (1)Paragraph 23(1)(a) of the Act is replaced by the following:

(a) the extent to which designated entities have contributed to meeting the targets set out in the Federal Sustainable Development Strategy and have met the objectives, and implemented the plans, set out in their own sustainable development strategies laid before the Houses of Parliament under section 11 or 12 of the Federal Sustainable Development Act; and

(a) the extent to which designated entities have contributed to meeting the targets set out in the Federal Sustainable Development Strategy and have met the objectives and implemented the plans, set out in their own sustainable development strategies laid before the Houses of Parliament under section 11 or 12 of the Federal Sustainable Development Act;

(c) the exercising of the authority of the Governor in Council under the sections 12.2 and 12.3 of the Federal Sustainable Development Act.

Senator Massicotte: Could somebody describe what is the intent here? Why do we have these amendments? What are you trying to get at? Is this a request by the Auditor General?

Senator Griffin: This has been a request. We’ll have Ms. McEwen come forward to give you the exact history of it.

My understanding is that it is to make compatible the two acts, the Sustainable Development Act and the Auditor General Act so that they’re not at conflict.

Senator Massicotte: This is a request by the Auditor General to satisfy that objective.

Senator Griffin: I am not sure which department requested but we’ll find out now.

Ms. McEwen: You’re correct. In her testimony the commissioner identified that consequential amendments needed to appear for her act to realign them with the FSDA.

Senator Massicotte: It is merely a mistake in somebody’s initial draft.

Ms. McEwen: There was some oversight in the drafting and administrative mistake that happened along the way. We’re adjusting that here.

Senator Massicotte: The Senate is being asked to correct somebody else’s mistake.

Ms. McEwen: It is an opportunity to ensure that the two acts are properly aligned so that the commissioner can do her job.

Senator Massicotte: What is the definition of “petitions” under 22.1? Is a simple letter a petition?

Ms. McEwen: Yes. The commissioner receives letters from the general public and she can refer them to a set list of departments to respond.

Senator Massicotte: Every time she receives correspondence, a letter or an e-mail, she must follow the procedure of filing it within 15 days, and so on and so on.

Ms. McEwen: No, I think there is a specific process for incoming petitions that she receives. She then refers them to departments.

Senator Massicotte: That is my question. What is the definition? She gets an e-mail or comment by somebody saying that you should study this and this and this. Does that qualified to be a petition under paragraph 22.1?

Ms. McEwen: I don’t know specifically on that, but my understanding is not. There is a specific submission process for petitions themselves.

Senator Massicotte: If I look at us, with all the correspondence we get, including e-mail, we’ll spend all our time talking. She won’t have time to do her job.

Do you think petitions are much more limited and not encumbering?

Ms. McEwen: Yes, that is correct.

The Chair: It’s safe to say that this is considered as a technical amendment.

Senator Griffin: Yes.

Senator Massicotte: Miss McEwen, who do you represent?

Ms. McEwen: Environment and Climate Change Canada.

Senator Massicotte: Is your department consistent and okay with this amendment?

Ms. McEwen: Yes, my department is okay with this amendment.

The Chair: We have to adopt clause 10 because this amendment is after that. Shall clause 10 carry?

Hon. Senators: Agreed.

The Chair: Agreed.

Shall the amendment carry?

Hon. Senators: Agreed.

The Chair: Shall clause 11 carry?

Hon. Senators: Agreed.

The Chair: Shall clause 12 carry?

Hon. Senators: Agreed.

The Chair: Shall clause 13 carry?

Hon. Senators: Agreed.

The Chair: We will go back to the clause 8 subamendment in the French replacement.

[Translation]

It is a matter of replacing “doive” with “devrait, s’il y a lieu”.

[English]

Is that agreed?

Senator Massicotte: Could you repeat that?

The Chair: The subamendment in the English version is to replace “shall” with “should where applicable.”

Senator Massicotte: I agree my colleague who says that before and after the words “where applicable,” there should be commas.

The Chair: Yes.

Senator Massicotte: Including the translated version.

The Chair: Yes, commas. Commas can change everything.

Senator Griffin: Is it “should” or “shall?”

The Chair: It is “should.”

Is that agreed, in English?

Hon. Senators: Agreed.

Senator Patterson: My proposed amendment included the word “shall,” not “should.”

Senator Griffin: Senator Cordy has suggested “should,” but the “where applicable” may have taken care of that.

Senator Massicotte: I think “where applicable” is okay with “shall.”

The Chair: We will leave the word “shall.” I will read it again.

Senator Cordy: I think the words “where applicable” take care of that. It has to be across the board, and I agree with that.

Senator Massicotte: I agree. Don’t forget to correct the French version.

[Translation]

The Chair: In French, we will replace “doive” with “devrait, s’il y a lieu”.

[English]

And in the English we’ll say, “shall, where applicable.” Is that agreed?

Hon. Senators: Agreed.

The Chair: Shall the motion, as amended, carry?

Hon. Senators: Agreed.

The Chair: Shall clause 8, as amended, carry?

Hon. Senators: Agreed.

The Chair: Shall the schedule carry?

Hon. Senators: Agreed.

The Chair: Shall the title carry?

Hon. Senators: Agreed.

The Chair: Shall the bill, as amended, carry?

Hon. Senators: Agreed.

The Chair: Is it agreed that consequential changes be made to the numbering of provisions and cross-references as a result of the amendments to this bill?

Hon. Senators: Agreed.

The Chair: Does the committee wish to consider appending observations to the report?

Senator Massicotte: No, thank you.

The Chair: Is it agreed that I report this bill, as amended, to the Senate?

Hon. Senators: Agreed.

The Chair: Thank you very much.

(The committee continued in camera.)