Thursday 15 August 1991

André Raynauld

Canadian Environmental Law Association



Chair: Silipo, Tony (Dovercourt NDP)

Vice-Chair: Bisson, Gilles (Cochrane South NDP)

Acting Chair: Drainville, Dennis (Victoria-Haliburton NDP)

Curling, Alvin (Scarborough North L)

Eves, Ernie L. (Parry Sound PC)

Gigantes, Evelyn (Ottawa Centre NDP)

Harnick, Charles (Willowdale PC)

Harrington, Margaret H. (Niagara Falls NDP)

Malkowski, Gary (York East NDP)

Mathyssen, Irene (Middlesex NDP)

Offer, Steven (Mississauga North L)

O'Neill, Yvonne (Ottawa-Rideau L)

Winninger, David (London South NDP)


Carter, Jenny (Peterborough NDP) for Ms Gigantes

Marland, Margaret (Mississauga South PC) for Mr Eves

Wessenger, Paul (Simcoe Centre NDP) for Ms Harrington

Clerk: Brown, Harold


Kaye, Philip, Research Officer, Legislative Research Service

Murray, Paul, Research Officer, Legislative Research Service

The committee met at 0944 in room 151.

The Acting Chair: Good morning. I would like to call this committee meeting to order. I would like to welcome first of all those who are joining us on television today across Ontario. This is the select committee on Ontario in Confederation.

Before us today we are going to have André Raynauld. I would ask him to come and take his seat before the committee, please. Welcome. I hear you are willing to present in English, I believe, before the committee today. You certainly have the choice. We are glad to have you. You have one half-hour and I hope you will leave some time in that period for questions. Before you begin, perhaps you would introduce yourself.


Mr Raynauld: I am a professor of economics at the University of Montreal. For a time I was also chairman of the Economic Council of Canada, back in 1971 through 1976. After that I made the mistake of going into politics in the Quebec assembly. I resigned in 1980, just after the referendum, to come back to my academic career.

My presentation this morning will be relatively short, but I must say first that I am honoured by your invitation to appear before you. I sincerely hope that in these critical moments and in the name of all Canadians you will come forward with substantial proposals for political and constitutional reform.

To save time, I will try to present my observations in point form and then to concentrate on the essentials. First of all, I believe that Quebec's separation would be a tragedy for the people in Quebec, but also for the people in the rest of Canada, and among them, for people in Ontario especially. With Quebec independence, I can see no direction other than towards the fragmentation of the Canadian economic union under the erroneous excuse that a north-south alternative would be more beneficial.

The feelings and convictions of the population in Quebec since Meech Lake rule out the business-as-usual approach and the status quo. There is a political crisis going on and developing in this country. The latest evidence is perhaps the result of the by-election last Sunday when a member of the Parti québécois was elected. Therefore, I believe also that nothing less than a substantial change in our political system is needed if our country is to be preserved. Needless to say, Ontario has the most critical role to play in this reform. I had the privilege of participating in the Group of 22, along with many outstanding Canadians from across the country, and you are surely aware of the general direction taken in this report. While my combination of proposals would be a bit different, the approach is the same. Essentially I am in favour of a substantial decentralization of powers, but counterbalanced by constitutional rules and associated with the reform of institutions to preserve and enhance the Canadian union.

The more specific proposals for reform are the following:

1. The removal of all restrictions to the application of the Canadian Charter of Rights and Freedoms;

2. The constitutional guarantee of the four basic economic freedoms: the free flow of people and the free circulation of goods, capital and services within Canada. This guarantee is perhaps the most important suggestion. It calls for the elimination of all interprovincial barriers, such as in procurement, agriculture, construction, alcohol, discriminatory taxes and subsidies and so on;

3. The elimination of the federal spending power in matters of provincial jurisdiction. The use of this power has probably done more than anything else to undermine the federal nature of the Canadian political system. It has led to ruinous duplication of public services and confusion of roles between governments. It goes against any notion of a division of powers, which is supposed to be the essence of federalism;

4. With the elimination of the federal spending power, I am not sure if there is still room for the establishment of the so-called national standards. In case there is, I would want to constrain or limit the application of this notion to what is absolutely necessary to achieve the free circulation of goods, services, capital and people. Admittedly this condition may justify a more or less considerable number of standards and may be less constraining, perhaps, that it looks. Nevertheless a justification is better than arbitrariness, which is typical of the present situation;

5. There are other solutions to conciliate both the need for decentralization and the need for economic integration and mobility. A first one would be to encourage interprovincial negotiations so as to harmonize policies and regulations in fields of provincial jurisdiction. A good example of this approach is the recent interprovincial agreement on trust and savings companies. Indeed, this concertation could be institutionalized or even entrenched in the Constitution in the form of either an interprovincial agency or administrative tribunal in major fields such as health, education, training and fiscal policy. The idea is to involve the provinces in the establishment of standards. I am not against standards, but I would want the provinces to be mainly responsible for those standards because it is in their field of jurisdiction, rather than allow unilateral decisions on the part of the federal government.

6. A second complementary approach would consist in giving a federal status to the Senate and to a number of central agencies and crown corporations such as the Bank of Canada, the CRTC and several others. This could be achieved in several ways. The most obvious is to give formal representation to the provinces on the boards of directors, and in the case of the Senate, to leave the appointments or the election, as the case may be, to the discretion of the provinces.

7. Another component of constitutional reform is equalization. Having an eye on the acceptability of the package, I believe that equalization must remain a key feature of the Canadian fiscal system. By equalization, I mean unconditional grants, with no strings attached and no national standards, so as to allow poorer provinces to provide a minimum level of public goods and services if they so wish. I know that equalization may be criticized in providing wrong incentives, as all redistributive measures do. It may not be fully efficient, but equity considerations militate in favour of such a system, and being unconditional, not only does it not interfere with the true notion of federalism but it provides the resources that are necessary to the actual use of the powers and responsibilities that the provinces have. I will come back to this in a moment.


8. The precautions and assurances having been taken to maintain and reinforce the integration of the Canadian economy, the avenue is wide open for an effective and substantial decentralization of the political system. First, with the elimination of the federal spending power, the field loosely defined as social policy would return to the provinces, where it belongs anyway in the present Constitution. This includes education and training, income security, unemployment insurance, health, culture, housing, to which I add natural resources, which is already there.

A very rough estimate of the federal expenditures involved in this devolution process is 20% to 25% of total federal expenditures. By any standard, this would represent a huge transfer of fiscal resources to the provinces without any substantial change in the Constitution itself, which is a merit of the proposal. Mind you, some particular aspects of the matters mentioned would still require federal presence and central policies. International trade in resource products is an obvious example. Other federal and provincial programs should be re-examined and reassessed to see if they are really needed at that level of government in the light of efficiency requirements and significant spillover effects among provinces.

9. At the other extreme of the spectrum, the federal government would have sufficient exclusive powers to manage the economy and to deal with national and international issues of all kinds. The main fields that come to mind are defence, interprovincial and international trade and transportation, monetary and fiscal policy, competition policy, equalization and the regulation of the capital market, including securities. In a sense, the economic policy belongs to the federal government and it may be that the federal government might need additional powers to deal with economic issues. On the other hand, social policy goes to the provinces and we eliminate at that point most of the irritants that have been so widespread in recent years.

10. To this restructuring process I would add the opting out or opting in approach, proposed again recently by Tom Courchesne, in case some provinces or regions would be adamantly opposed to any decentralization. This alternative is feasible, as we already use it in some form. In the years ahead, it could become the master key to the resolution of our differences and preserve our respective distinctiveness in a stronger Canada.

To save time again, perhaps I could move a little further. After that part of the brief I was trying to explain and present the justification for this combination of proposals, but I would like to perhaps insist a little more on a piece of information that I asked to be distributed, and this refers to table 1 in my presentation. This is a little piece of original information that I prepared for this occasion. In fact, I simulated the impact on government revenue of a political transfer of $25-billion worth of expenditure programs and tax points in favour of the provinces for fiscal year 1990-91, because the question always arises, "If you decentralize things, what happens?" All provinces seem in one way or another to assume that it would not be beneficial to them. For example, I heard several people coming from the Atlantic provinces saying: "No, you can't decentralize this country, because we are going to lose. We will not be able to provide the basic services we would like to offer to the population."

I asked myself what would be the implications of a transfer of both program expenditures and responsibilities and tax points or revenue. I then assume that the transfer of tax points would be applied to the personal income tax exclusively. As you may know, the equalization system is based on 39 tax sources, but the most important one is income tax, and I assumed then the equalization, or the transfer of the resources, would take the form of points on the income tax.

The basic federal income tax at the present time generates a revenue of close to $59 billion for the federal government. If you transfer $25 billion, that represents a proportion of 42.4% of the federal income tax. If you transfer $25 billion, you are transferring in fact 42.4 tax points on the basis of the basic federal income tax. The $25 billion is an order of magnitude, an assumption I make which is consistent with what I said before, that if you transfer social policy, roughly speaking you transfer about 20% to 25% of federal expenditures. I took the $25 billion, it could be $20 billion, it could be $30 billion, but it is the basic assumption.

Since the yield of a given tax point is substantially different from one province to another, the transfer would produce different increases per capita, the poor provinces receiving less and the richer provinces such as Ontario receiving considerably more. So if you transfer tax points it is obvious that some provinces, the poorer provinces, will lose and the richer provinces will gain.

However, this transfer of income tax to the provinces would be subject to equalization. Using the present formula with no change except for the ceilings, so I do not take the ceilings into account -- those ceilings, you may remember, were introduced in 1987-88 so I put that aside and used the present formula -- one can calculate the additional payments which would be made to the provinces under this equalization system and assuming a $25-billion transfer. This time, the interprovincial distribution of the benefits goes the other way, in favour of the poorer provinces.

The most striking and I must say unexpected result of this exercise is that when you add the two sources of revenue, the revenue from the tax points and the equalization payments, one gets almost equal benefits per capita for all the provinces with the exception of Ontario. Ontario gets 20% more than the average for the other provinces in spite of the fact that it does not receive equalization payments. Ontario benefits because the yield on the tax points for Ontario is higher. It does not receive equalization, but all the other provinces, being poorer and having yield on this income tax which is less favourable, benefit from the equalization.

If you add the two you get almost equal per capita benefits, and that is on the table you have before you. I transfer 42.4 tax points. This is $25 billion. I calculate what would be then the yield on those for each province, the yield on those tax points. I add the equalization payments for each province. If you look at that column on equalization payments you will obviously see that the poorer the province, the higher the per capita payment is.

If you add the two it is really extraordinary that you find almost no difference between provinces. You have an equal per capita benefit and that is fundamental. It is very important because it means the fiscal capacity to provide public services is the same for all. This is really remarkable. This is probably, in my view, the strongest argument so far that has been found in favour of decentralization. Quite frankly, I did not expect that. I thought there would be some curious impacts, but it is probably the strongest argument in favour of decentralization and thanks, of course, to the equalization system we have in this country.

Let me add that there is a small snag in this operation, but it is a snag that can be overcome easily and is perhaps obvious. What is obvious is that if you transfer tax points or program responsibilities you increase equalization payments overall, and the federal government will have to finance this increase out of reduced fiscal resources. If you transfer fiscal resources you say, "You increase equalization payments but you have a base which is narrower than it used to be."

The interesting question is how much is involved. The $25-billion transfer implies, according to these calculations, an increase in equalization payments of $2.8 billion. Now this $2.8 billion is equal to 3% of total federal revenue after the transfer. It is not very much and one obvious solution to this difficulty would be to transfer more program responsibilities than tax points. That would be easy to do. You say, "We don't want to have increases in equalization payments," so you transfer more program responsibilities than tax points, or the federal government makes up the difference by increasing other federal taxes. But that is not easier than to anticipate any change of 3% order of magnitude. The implications, though, for the distribution of the resources across the provinces is very interesting.

That is what I meant to present to you.


M. Bisson : Bienvenue et merci beaucoup pour votre présentation. Vous avez choisi de faire votre présentation en anglais, alors, je vais faire la même chose.

I just comment before I get to my question that you say it would be as easy as raising taxes. I would say raising taxes in any jurisdiction is very difficult politically these days, for obvious reasons.

Basically, what it comes down to is that you are talking about a federal government not really having an ability, or taking away the ability to be able to set national standards. When you talk about transferring through the mechanism you speak about -- I do not understand it as clearly as you do -- you take away the one tool the federal government has to be able to set those national standards, mainly through transfer payments.

If I were sitting in the Maritimes or up in northern Ontario or wherever it might be, I would be afraid of where that leaves me because of my geographic situation, lack of population, tax base and a strong economy, where that leaves me in comparison to other Canadians when it comes to access to services, and I wonder what that does to really strengthen a nation, if you can clear that up.

Mr Raynauld: First of all, there would still be some standards, but the standards would be developed with the provinces rather than the absence of the provinces. It seems to me it is certainly essential to preserve some standards and simply to make it possible for people receiving old age pensions to move from one province to the other.

Mr Bisson: I agree with the premise that it gives more voice to the provinces and being able to work towards developing those standards. But if I understood correctly what you have in your brief, you are advocating that the provinces determine what level of service they are going to provide. What I fear is that there might be financial reasons, political reasons or whatever they might be that a province in whatever situation says, "I ain't going to provide that standard any more." Then you have two classes of Canadians, those with and those without. That is what we have been fighting against in this nation for all these years.

Mr Raynauld: You are perfectly right, except that this is the whole point of having done this little exercise. It is not true. The poorer provinces would have sufficient resources to provide the same level of services as any other Canadian under the equalization formula. So if they do not do it, it is not because they would be short of money. They would have the same amount of money coming out of the equalization payments so they would be able to provide those services.

Mr Bisson: They would also have the ability to choose not to.

Mr Raynauld: Oh, yes, they could choose not to, but are you going to impose a thing from one province to another if the population in one province believes -- I do not know what -- that hospitals should not have restaurants in them any more? Would you say, "No, you're going to have some restaurants in your hospitals," or, "You are going to provide ancillary services free"? Some province may want to charge to provide those services. It is part of the democratic process that a province would be free, effectively, to decide what it wants to do. But the very special feature of this is that they have to provide enough services to make sure there is still free movement of people in this country, that there is still free movement of capital services and goods. That would be the constraint on the provinces, but they would have the financial resources to provide the same services as others.

Mrs Y. O'Neill: Monsieur Raynauld, I have a number of questions. You are the first of the Group of 22 who has come before us. Just to continue the questioning as it has been going, would you see that services as such that we know, whether educational or health-related, are more tied than in your model to politics, to setting of priorities?

Mr Raynauld: Quite frankly I do not understand your question. I am sorry.

Mrs Y. O'Neill: Because the provinces would be given extensive new jurisdictional rights, particularly regarding taxation in your model, would that mean the standards and the services that we, as Ontarians and/or any other Canadians, are going to have access to would be much more related to who was in government at the time; in other words, to the politics of the time?

Mr Raynauld: All governments would be constrained by this rule over mobility, so they would have the duty not to impose any hardship on anybody else outside their province. That would be constant. Of course, each government would be free, as it is now, to introduce laws and change some programs. The programs may be in the end, in the social field, a little more different from one province to the other than is the case at the present time. It could be more different, but again that constraint you cannot impose costs on others, the constraint that you cannot restrict the free flow of people is a very important constraint. We would come, I think, very close to the present situation with the added benefit -- or perhaps some people would think it is an inconvenience -- of the participation of the provinces in establishing the standards needed to maintain this free mobility.

Mrs Y. O'Neill: I thank you for table 1, because it is interesting. I do not know all the names of the people on your list of 22. Were any people from the maritime provinces actually a part of the group?

Mr Raynauld: Yes, there were people from across Canada. I am not sure they were from every provincial capital, but yes, there were about three or four, if I remember correctly, from the Atlantic provinces.

Mrs Y. O'Neill: So they had input.

Mr Raynauld: Yes. I was thinking of those people when I said earlier that the assumption on their part, within the group, was that they would lose. That is why I did this exercise. At that time I was not arguing against them, I was simply saying, "Well, possible." But now I have made this little calculation to respond to that preoccupation they had.

Mrs Y. O'Neill: One of the recommendations of your group, which you have not attended to this morning, was the legislated presence of the native population. Could you tell us how you saw that happening.

Mr Raynauld: We discussed this question and the Group of 22 had some recommendations. The gist of their approach was that in the end, the aboriginal people should have the right to self-determination. I would perhaps be more specific by saying that I think there was wide agreement on that, that in the end we will have to give provincial status to the Indians across Canada. That would be the way to do it.

There was no doubt in our minds that they would have to participate in federal-provincial meetings, that they would have to be present, and that their interests should be defended by themselves, not only by us. The idea was that over time, more and more powers could be given to them, but I think it is simpler to say, and this is the way I prefer to say it, that we should give them provincial status. There are several people now who have thought about that, and I think it is a feasible solution and a concrete solution. We do not necessarily need to have contiguous territories; one province could be scattered. There would be some negotiations, of course, on what territory would be covered. But essentially, it is the people that count, and the people could organize themselves a lot better if they had provincial status. That would solve a lot of problems.


The Acting Chair: Before we go on to another questioner, I notice the Conservative Party has not put up hands. Do you have a question?

Mr Harnick: Following my colleague's question, I believe it is the Northumberland group in the Maritimes that has come up with an opposite approach to the Constitution from the Group of 22. In fact, they look more at strengthening the federal government as opposed to decentralizing. Have you had any discussions with them in terms of reconciling the positions?

Mr Raynauld: No, not with them, but if you spoke to several people in the Group of 22, they would all object to the assumption that the Group of 22 just proposes decentralization and the devolution of powers, because in that report, in some other recommendations, you have a reinforcement of the federal government. It is a matter of weighting the things to see, do we want more decentralization and less federal government? A lot of members in the group would take objection to that. They would say: "That's not what the report says. That's not what we have said." Because of the way I presented it this morning, I presented a number of measures to decentralize things, but one is tempted to forget that at the same time, on economic issues, on economic policy matters, the federal government should be strengthened, not weakened.

Perhaps some people would say it is having it both ways, but it is not really. We say, "Let's have social policy at the level of the provinces. Let's have economic policy at the federal level, and we will need additional guarantees to reinforce the federal government's power to regulate the economy." So in the end are we opposed to people who say, "We want a stronger federal government"? Not necessarily, but in its own field of jurisdiction, which is economic essentially.

That being said, we also say at the same time to decentralize in the field of social policy. It becomes a matter of judgement whether this set of proposals is more decentralization against reinforcement of the economic union.

There were certainly a lot of members in the group, and I include myself in that group, who would say, "No, don't forget we want to reduce all interprovincial barriers in this, for example. That will be done through the federal government, not through the provinces." At the same time, we say that we will have to help the provinces come together and accelerate the process of getting things done. As you already know, as we all know, it is a very difficult process when you bring together 11 provinces to sit down and come to some agreement. So we thought there should be other institutions to help the provinces come to terms with the issues, rather than say, "We'll go home and we'll come back next year."

As I said this morning, we could think of a kind of administrative tribunal to oversee things. We could think of a different role for the Senate that would monitor these understandings and agreements between the provinces. We want to reinforce the Canadian economic union, not weaken it. That is probably the answer to your question.

Mr Harnick: What has been the reaction, from your perspective, to the recommendations from the Group of 22 in Quebec?

Mr Raynauld: There are two reactions. One: "As it is, we like it. It is a good step in the right direction." Second: "Why is it that you do not talk about the distinct society in the Group of 22? Why in the world do you not commit yourself on questions of the veto to change the Constitution, and questions of what limits would apply to the Charter of Rights and Freedoms?" This has been typical: "It is a step in the right direction, but we do not understand something, and we suspect you do not go far enough." One minister said in public that any proposal that did not start with the proposition that Quebec is a distinct society would not be accepted. My answer to that is that if we were to have the proposals we have put forward, perhaps there would be a lot more distinctiveness across Canada than there is at the present time. Perhaps we would have the substance, if not the word for it. Quite frankly, the group thought that this word -- it is not that we were against using it; it is just that we thought it had become a symbol or a myth. We said, "If we start with this, we will perhaps not achieve as much as we now do."

The Acting Chair: Merci, Professor Raynauld, for your very fine contribution, and also for the work of the Group of 22. It certainly has added another dimension to the whole discussion of the Constitution and the future of our union.

I would like to make a comment to the members of the committee. One of the concerns I have as Chair is the fact that we have been starting about 15 or 20 minutes late. The reason I mention it now is that there were a number of people on my list who I could not get to. When we begin so late it means that my ability to add speakers, and go a little bit over the time for a particular deputation, is then limited, and it means I actually have to cut people off the list who ordinarily I would be able to support. So my apologies to the people who did not get to ask questions of Professor Raynauld, and I hope you understand the kinds of time constraints I am under.



The Acting Chair: I would like to welcome the environmental panel to the select committee on Ontario in Confederation. First of all, would you introduce yourselves and indicate your respective organizations.

Ms Vigod: My name is Toby Vigod and I am the executive director of the Canadian Environmental Law Association. I guess I can quarterback the panel for you. We have Franklin Gertler who is a partner with Hutchins Soroka and Dionne in Montreal, and is a constitutional and environmental lawyer; Marsha Valiante who is an environmental lawyer, and who will be joining the faculty of law in Windsor; and Paul Muldoon, who is counsel and research director to Pollution Probe. I guess we have all written extensively in the area and we teach as well.

The Acting Chair: We have two hours for your presentation, and it is my hope that you will leave a significant part of that for questions from the members.

Ms Vigod: I am very pleased the select committee has taken the time to establish this environmental panel. I believe the members of the committee should have a copy of the brief entitled, "Environmental Protection and a New Constitution" which is under CELA's letterhead and which Franklin and I co-authored. As well, I believe a summary submission prepared by Paul and Marcia has been distributed to the committee.

I would like to outline briefly what we are going to do. Mr Muldoon is going to start by describing the rationale for constitutional recognition of environmental rights. Marcia Valiante will discuss the nature of the rights and the options for protecting environmental rights. Mr Gertler will describe the possibility of amendments to Ontario's Constitution, a creative solution. I will end up with some remarks on the issue of division of powers.

Mr Muldoon: My task in opening this debate is to discuss what is perhaps one of the most important aspects of constitutional reform. The title of our submission, I think, summarizes the best justification for the type of reforms that I will be talking about; that is, the inclusion of some sort of environmental rights within the context of the Constitution. The title of our submission is "Environmental Rights and the Constitution: Towards An Environmental Democracy".

When all is said and done, in our view it is absolutely imperative that our democracy recognize the inherent value of nature, and the inherent value of looking after the ecosystems which sustain us. In the end, it is that notion of environmental democracy which is so important. What I would like to do, then, is to go through why environmental rights are important, and why they should be included in a package of constitutional reforms.

I think it can be said in summary that there are many divisive factors, and I am sure you have heard many of them. I am sure you have heard a lot of things which divide Canada. The environment is one thing that unifies Canada. It is a shared value. We have a diversity of lands, of rivers, of different ecosystems. We have a tremendous amount of differing and wonderful urban and rural landscapes. When you put that environmental package or environmental milieu together, there is one thing that is shared by Canadians, and that is their belief and love for the environment.

It would seem that fundamental value then should be reflected in the supreme law of the land. It is that shared value which represents, we think, an intrinsic part of the social, political and economic fabric of the nation. So I think the environment does have a role to play in constitutional reform, and there are a number of roles it can play. The one I would like to talk about is the notion of environmental rights.

I have identified six reasons, six rationales, for inclusion of environmental rights in the Constitution. These reasons justify the inclusion of some sort of right to a healthy or healthful environment in the Constitution. The nature of this right, the character of this right and how to do it I will leave to my colleagues for discussion. My opening statement is trying to really convince and provide some rationale for including it. The mechanical, legal, technical parts we can get to later.

Let me just try to explain six reasons why it should be included and why we urge you as a committee to work federally to include a constitutional right to a healthy environment, and then do what you can on a provincial level to enhance and promote that right or set of rights.

The first reason is that environmental rights empower people to protect the environment that sustains them. This is perhaps fundamental to the whole notion of environmental democracy. When we talk about constitutions and supreme laws, these are not documents which are hollow. These are meant to empower people to do and to give them rights and duties under law as a part of the social contract of society.

It seems incumbent that when we talk about the environment, which is important from the point of view of the economy, in terms of social issues, in terms of people just looking after their own property, their own person, and for future generations of users, they need tools. They need opportunities to do what they think is appropriate to protect the environment. Unfortunately in Canada, especially at the federal level, there is a complete lack of opportunities to do that for the individual. By including a right in the Constitution, it would certainly enhance that.

The second reason to include environmental rights in the Constitution is that environmental rights instil the concept of accountability of governments to wisely manage natural resources. By and large, government has taken the view that it is the guardian of the natural resource base of the country and of the provinces, which is true, but it cannot do that without some sort of checks and balances, without some sort of accounting system, without some sort of notion of responsibility. In effect, they hold those resources in trust, and as a trustee, they owe a fiduciary duty, a very high-level duty, to look after those resources. They look after the resources for present users, but they also look after the resources for future users, future generations of people, of Canadians. If that is true, if they do hold these resources, then who holds them accountable?

My view is that those mechanisms of accountability are weak and in some cases devoid. Environmental rights would allow various legal mechanisms to be triggered to ensure that governments are accountable for their decisions. They are the government. They ultimately decide. There still should be room for mechanisms of accountability to ensure that the decisions are best for the country and best for the environment.

The third rationale for environmental rights is that environmental rights provide a means to evaluate and determine the appropriate allocation and use of resources. Resources are finite. Who gets what, how much and when? These are fundamental questions, but so often, although these decisions are taken in the public interest, those who bear the risk, those who bear the cost and those who ultimately must suffer the consequences of the decisions are not even included in the decisions. That is a problem.


Let me give you one example. When we talk about standard-setting, especially at the federal level, whether it be drinking water or air quality, what we find is that these standards are developed and implemented without the input of the public, without the input of those who must bear the risk of those standard-setting mechanisms. There must be some sort of regime in place to help, assist and provide the input of the public into those very important decisions.

The fourth reason is that environmental rights must recognize, simply, the inherent value of nature and natural resources. When we talk about a rights approach, we usually talk about people having rights. The question is, who represents the rights of nature, of the wildlife, of the public resources, of trees? Who is the guardian of those rights? The answer is everyone. If we all share in the common resources of this country, why is it that the people, those who are closest to it, are not able to stand up and protect the environment for its own sake? Someone must be the surrogate of the environment in the legal processes, the administrative processes, in the political processes of government. That is the basic notion of environmental rights, so that someone can speak for the environment for its own sake, to empower the environment so it can have a voice. Where others are trying to divvy up the environment, someone has to speak on its behalf.

The fifth reason to entrench environmental rights is more of a global one in that environmental rights are slowly becoming recognized as rights of international law. It is a fairly new regime. Over the years we have heard about human rights, about social and political rights, about economic rights. Gradually that is being translated into environmental rights for individuals and the public to protect the environment. Certainly in 1972 the Stockholm declaration expressly recognized this right to environmental quality, and a whole number of other international declarations have implicitly recognized the right to quality of life and probably environmental quality. By Canada taking and by this committee urging the federal government to take a proactive way and include and entrench environmental rights, what in effect you are doing is slowly codifying the global regime of international environmental rights and trying to put it in the context of national constitutions.

We have all heard about the World Commission on Environment and Development, the Brundtland commission. Certainly they are very strong on this point. In fact, the legal experts' report to the Brundtland commission recognized the need for these types of rights. In their recommendation, they suggest in their report that a right goes this way, "All human beings have the fundamental right to an environment adequate for their health and wellbeing," and, "States shall ensure that the environment and natural resources are conserved and used for the benefit of present and future generations."

The sixth and final rationale for inclusion of environmental rights in the Constitution relates to my opening comments on why the environment should be on the table in terms of constitutional reform. Coming from a public interest group that receives well over 100 phone calls a day from people asking about issues dealing with the environment, and looking at the polls and looking at the broad and I think sincere public interest in protecting the environment, it is unequivocal, in my view, that the environment is a fundamental value of Canadian society. We may express it in different ways and we may understand it in different ways, but the environment is as much a part of Canada and the value fabric of it as any other value.

If it is such a fundamental, sincere and deeply held value, from the Prairies, from the west coast, through central Canada to eastern Canada, then why should it not be included in some form in the Constitution as a fundamental value worth protecting, to keep that natural heritage alive and entrenched so that future Canadians can enjoy the past and perhaps help us enhance the environment for those future users and future Canadians? In this context, the Constitution reform package, including environmental rights, would not only have a legal significance and a political significance, but also a very important symbolic significance, showing what are our fundamental values.

Those are the six rationales, in my view, for inclusion of environmental rights in constitutional reform. I just want to mention very briefly the typical arguments of why we should not include them.

One of them is the fact that they think there is going to be some notion that the courts, the administrative tribunals and the bureaucracies will take over the notion of the environment and basically strip or usurp the legislative function. This is proven wrong both theoretically and practically. The legislatures have authority over the environment in environmental rights. What the environmental rights basically allow is to allow the public a voice, a legitimate, a routine and a formal voice, in those decisions. It does not create anything new except for access by people to protect themselves in the environment.

In terms of the floodgates argument, that we are going to have litigation, empirical evidence again suggests that is simply not true. The courts have never been a convenient way to resolve issues except when there are issues that ought to be resolved. The empirical evidence which is referred to in some of the literature demonstrates that.

In closing, I urge this committee to recommend the inclusion of environmental rights in a constitutional reform package. I think it would help the environment and it would help people protect the environment.

What I will do now is turn the microphone over to my colleagues to describe more specifically the nature and content of the rights I am suggesting, and try to rationalize what they should look like and some of the options available for you to recommend in this regard.

Ms Valiante: I am Marcia Valiante, just to remind everybody. I also would like to thank you for the opportunity to talk to you today. I think it is a really important aspect of your deliberations and I hope you will listen to us.

One of the things we have included in our package, the thing that Paul and I wrote, is an article that describes in a little more detail, also in a little more legal language, some of the things we are going to be talking about today. That is part of the package you are getting.

What I want to talk to you about is the nature of environmental rights, just to describe in a little more detail what we mean when we talk about environmental rights. It seems a very general kind of statement to talk about environmental rights, and I want to flesh that out and say specifically what we mean. I am not going to give a definitive definition or language that should be included, but I want to leave you with a number of concepts that we mean when we talk about environmental rights.

I want to start by just making a distinction between substantive rights and procedural rights, because I am going to divide them between those two. Substantive rights are rights that compel a certain outcome, for example, how persons or the environment should be treated, such as the right to quality. It is the outcome of quality that the right protects, whereas procedural rights are rights that deal with process, about how decisions should be made. My major thrust that I want to talk about today is the substantive environmental rights, but I will mention the procedural ones a little bit later.


The substantive rights we are recommending be included in environmental rights are, first of all, what we have called the right to a healthy or a healthful and sustainable environment. The way the Brundtland commission refers to that is an environment that is adequate for human health and wellbeing. So the concept is an environment that is beneficial to the quality of life, however you want to refer to it, and we have chosen the word "healthful," which is kind of a mouthful, but it gets across the idea that the environment is essential to human wellbeing, and that is the essence of that fundamental right.

The breadth of that right depends a lot on how broadly you define "environment" and we would take a broad definition of "environment," to include not just the physical environment and the biological environment but the social, cultural and economic conditions that make a quality life for human beings.

The second fundamental right is the right to the conservation of natural resources and the environment for the benefit of both present and future generations. The important element to this is that a right to a healthy environment has to be sustained over time. That is why looking at both the present uses of resources and trying to maintain their use into the future is essential to any formulation of environmental rights. So it is a right that takes account of the rights of the future and not just the rights of today.

The third aspect of environmental rights is the right to the protection of functioning ecosystems and biological diversity. This is a right that ensures the environment will be healthy and sustainable into the future and includes protection for things like endangered species and biological diversity in the forms of life that are protected. This right only indirectly benefits human beings, but it more directly benefits the environment and all other species we share life with on this planet.

Those are the three fundamental elements of the substantive right to environmental quality, but these rights imply a number of corresponding duties which we would spell out in more detail and not just leave them aside, because I think one of the elements of holding a right is holding the expectation that the actions of others will be consistent with your rights and with the rights of everyone else who holds that right.

The duties we would spell out are: The duty of the government, as the trustee of public resources, to conserve and maintain those resources for the benefit of present and future generations, which is what Paul referred to as a public trust. The second element of the duty is the duty in individuals not to interfere with environmental quality, in other words, not to interfere with other individuals' fundamental right to environmental quality. The third duty, which is a positive duty, that we would include is the duty on governments to make and enforce laws to implement the public's environmental rights.

Those are the elements of what I have called the substantive right to environmental quality. I will really quickly go beyond that and talk a little bit about procedural rights. The reason to talk about procedural rights is that there are a lot of problems that individuals have right now with being able to protect the environment and a lot of those have a lot to do with the historical evolution of environmental law. The common law is a regime that has traditionally protected private property rights and left it to the government to protect public rights. So an individual is very limited in his or her ability to protect the environment generally. Unless you have some property right that is harmed, you are, in a sense, disfranchised. You have no legal access to protect your environment and the environment of everyone else in this room.

The procedural rights I am going to outline are a number that try to overcome those difficulties that are built into our legal system right now. I will just run through them quickly. One is the creation of a legal cause of action, which is just a legal mechanism for allowing people to protect their substantive environmental rights. The second one is to reform the law of standing, which are the rules about who can bring a legal action to protect the environment. The third one is to open up environmental decision-making at the administrative level and to allow the public into that process as a right and not as a discretion as is the case today, and that includes public participation in the setting of standards, in regulation-making, in the making of regulatory permits and licences and abatement orders.

Finally, one procedural right that needs changing or looking at is the difficult one of who bears the onus of proof in environmental litigation. This is getting kind of technical so I will not go into detail on it, but in environmental court cases proving causation is very difficult to do in an era of uncertainty and lack of information. So that is another procedural right.

That is a summary of the kinds of rights we are talking about when we talk about environmental rights. The next thing I want to do is just run through quickly the three options for protecting environmental rights. Those three options are, first, inclusion in the Charter of Rights and Freedoms; second, inclusion in the Ontario Constitution; third, the adoption of an environmental bill of rights by provincial and federal legislation.

The first option: Inclusion in the Charter of Rights is important as a way of making environmental rights part of the supreme law of Canada. Inclusion in the charter would put environmental rights on the same footing as other fundamental civil, political and social rights in Canada. By putting them in the charter it would recognize the environment as fundamental to the quality of life in Canada. This is the symbolic value which Paul touched on. It would give right-holders the power to bring about change to protect the environment and a certain moral dignity for the environment and for people who want to protect the environment.

In practical terms, inclusion in the Charter of Rights requires the right to be used as a yardstick in measuring actions taken that have the possibility of interfering with that right. What it does in practical terms is it creates a strong presumption that environmental rights should take precedence over less important and more fleeting considerations in day-to-day life. However, one of the limitations of using the charter is that most rights that are in the charter apply only to government action. There are ways of modifying that by including environmental rights in a special section of the charter, so it is not something that cannot be overcome, but there are many rights in the charter now that only apply to government action.

One of the other limitations of including environmental rights in the charter is that they would necessarily be put in very succinct and vague terms. One of the things you would not likely include are the procedural rights in any great amount of detail. The charter as a legal instrument is also only enforceable in an incremental way. It moves, in terms of interpretation, case by case by case, and profound change can come about very slowly because of that, just because of the nature of the charter. However, once the charter is interpreted, it can be the vehicle for very profound change. I think that while it is essential that environmental rights be protected by way of the Canadian Constitution, it is also important to recognize that this is not necessarily the only answer to making environmental rights part of the fundamental rights of every Canadian.

Franklin Gertler will talk in a moment about amending the Ontario Constitution, so I am not going to deal with that at all, but I do want to talk about including environmental rights in a legislated environmental bill of rights, which is something that is on the agenda of the Minister of the Environment right now. Because of the limitations of using only the charter, it is essential that an environmental bill of rights be part of a package mechanism for adopting environmental rights. What a bill of rights does is it allows for the possibility of very detailed prescriptions of environmental rights. Especially the procedural rights can be set out in great detail so that procedures and actions can be changed very dramatically, very deliberately and very quickly.

An environmental bill of rights would also apply without question to the actions of everyone affecting the environment, private actions as well as governmental actions. Having a package of constitutional protections, whether through the national Constitution or the Ontario Constitution, and a bill of rights would make sure that there would be no gap in achieving our ultimate goal of environmental sustainability.

That is the essence of what I have to say. I just would like to reiterate the recommendation that Paul made: that environmental rights should be pushed for in constitutional reform. There is no single right that is an absolute right and we are not saying the environment should always prevail over every other consideration, but adopting environmental rights will make it clear to all Canadians that environmental quality is the basis of our life, our health and our economic wellbeing and is therefore a prerequisite to a society where other fundamental civil and political rights can be enjoyed.


Mr Gertler: My name is Franklin Gertler. Being an attorney from Montreal, ça ne me dérangerait pas, évidemment, de répondre aux questions en français, mais je vais faire mes remarques en anglais.

I am going to try to be brief. I do not want to make too many promises I cannot keep and I am sure I will get kicked under the table when I get to be too long-winded.

Mrs Marland: We experience the same thing.

Mr Gertler: You get kicked under the table, do you?

Mrs Marland: Right.

Mr Gertler: I am going to be dealing with some rather technical matters and I do not want to snow you under. You have our brief. If you have any questions after we have finished our presentation or at a later date, of course we would be happy to try to clarify any matter which is not entirely clear, or if there are questions from the legislative research side or counsel about any points, we would be happy to answer those.

First, I should say it is a real pleasure to be here. I am a Montreal lawyer but I am also a graduate of Osgoode Hall, so it is nice to be back in Ontario, back in Toronto and participating in local affairs.

I would like to take you first right to the end of our brief, to appendix C, which is the brief on the Canadian Environmental Law Association letterhead. Right there you have a copy of a very brief and important piece of Alberta legislation, which is called the Constitution of Alberta Amendment Act, 1990. I have included this not because it is an environmental bill of rights, but because it illustrates that the notion of enshrining important rights and values into the Constitution of a province is not something I cooked up out of the blue which has no reality in Canadian constitutional law but in fact is a living and possible way of proceeding.

Just to give you a little bit of background -- as you see, it is a very short act -- what happened was that Alberta and the Metis have negotiated a very large package of legislation which creates a land base and a form of self-government for Metis settlements in Alberta. Part of that package is a thing called the Metis Settlements Land Protection Act, which provides for the protection of the lands given to the Metis settlements from alienation, from being mortgaged or expropriated, and so forth. It was a desire to see that those land rights were given constitutional protection. Because Metis rights are not adequately protected in the federal Constitution, in the charter, they saw fit to amend the Constitution of the province.

If you look at the act, the third and fourth "whereases" reflect that. This is on the second-last page of our brief.

"Whereas Her Majesty in right of Alberta has proposed the land so granted be protected by the Constitution of Canada, but until that happens it is proper that the land be protected by the Constitution of the province; and

"Whereas section 45 of the Constitution Act, 1982 empowers the Legislature of a amend the Constitution of a province," and so forth. Then you get into the body of the act.

Section 1 simply says that the Constitution of Alberta is amended.

Section 3 perhaps is the next important one, because it protects the lands against expropriation.

Section 5 is perhaps the most important one. Normally a legislature in a province has full powers over the land and resources in the province and the management and sale of public lands, and also powers over property and civil rights in the province. What has happened here, though, is that the Legislative Assembly has said, "We are adopting legislation that says, for the future, the manner and form in which we will exercise our legislative power will be limited by certain procedural guarantees so that the rights we're protecting cannot be lightly tampered with."

What they say is that the Legislative Assembly may not pass any bill that would amend the Metis Settlements Land Protection Act, revoke the letters patent granting the lands or dissolve the council that administers the lands without the agreement of the Metis. The parallel we would draw would be to say that the kinds of rights we are proposing to be included in the Constitution of Ontario could only be repealed or overridden by a special majority of the Legislature, so this is a way of achieving, if you like, quasi entrenchment at the provincial level.

You could say, for the future, that the rights can only be repealed or legislation which is inconsistent with environmental rights can only be passed by, for example -- one could choose different numbers -- a two-thirds majority of the Legislature, or perhaps to make it even stronger, a two-thirds majority not of those present but of all the members of the Legislature. That is a way of doing something positive for environmental rights while waiting for, or in addition to, amendments at the federal level, which are more difficult to achieve, and as Marcia mentioned may also not allow for the kind of detail we are talking about here.

Perhaps another analogy which may be helpful to you is to think of human rights legislation. Maybe the best example in Canada comes out of Quebec, where we have the Quebec Charter of Rights and Freedoms, which has been described by the Supreme Court as being quasi-constitutional and which combines the elements of a bill of rights in the sense of a document that gives people rights against government and limits present and future legislation, controls that and has the effect of rendering it inoperative if it is inconsistent with the rights protected; for instance, rights to equality or rights to life, liberty and so forth.

The second element has the elements of a human rights act, which we are of course familiar with, that protects individuals primarily against the illegitimate or discriminatory actions of fellow citizens, whether it be corporations or private citizens that are discriminating in housing or discriminating in employment.

That is the kind of document we are talking about. There will be substantive rights to a healthful environment and environmental quality that bind government and impose positive obligations on government and also impose obligations on private property owners and private actors, corporate actors, to manage their resources and to take decisions in their affairs in a way which is consistent with those rights.


I will just see how much more I want to tell you. I think we have shown that there is such a thing as the Constitution of Ontario. As our brief says, it is specifically mentioned in the Constitution Act, 1867, that there is a provincial Constitution. That is part V of the Constitution Act, 1867. It mostly deals with the constitution of this Legislature -- the powers, the membership and so forth of this Legislature.

An example of constitutional legislation in the Ontario context is the Legislative Assembly Act, for example. But as the Alberta example demonstrates, the Constitution of the province can be more than simply statutes dealing with the length of a Legislature or how you get elected or membership and other matters of that sort.

The amendment of the Constitution of the province is entirely within the power of the Legislature here. There is no need for approval of the federal government or of any other province. I am not saying this is not a difficult area. There are potential discussions about where you would overstep the bounds. The primary limit is that the Legislature of Ontario cannot legislate any part of its Constitution which would amount to a derogation from the fundamental bargain of Confederation. You could not, for instance, increase the legislative powers of the Ontario Legislature in areas of federal jurisdiction through what would be a purported attempt to amend the Constitution of the province.

On the other hand, it is our submission that the province can, and I think that is demonstrated by what Alberta did, legislate so as to say, "We have a certain list of powers, mostly in section 92 of the Constitution Act, 1867" -- what we used to call the BNA Act -- "and we are going to limit the way in which we exercise those powers so as to ensure that those powers are exercised only in conformity with certain fundamental values," in this case environmental rights. The idea is that the amendment to the Constitution can be made by ordinary legislation.

I mentioned the Legislature act and some of the other legislation in the Ontario context which is part of the Constitution of the province. What we are suggesting goes a bit beyond that. Frame the legislation so that it would actually be inserted into the Constitution Act, 1867, so that every time the federal government prints up the statutes of Canada -- which includes, in an appendix, the constitutional documents of the country as a whole -- everyone would see that Ontario, in its part of the federal Constitution, if you like, has taken this step and moved forward. I think that would be a positive contribution to the constitutional debate.

The nice thing about what we are here to talk about today is that it really would be a positive contribution. There has been a lot of negative talking. There has been a lot of doom and gloom. This is something that could be done that would help us say: "What really makes us Canadians? What sets us apart? What is our new agenda?" Certainly when we go abroad people talk about our record on immigration or talk about our health programs and services. Maybe the next thing Canadians can be proud of as they go abroad would be to have a real, functioning set of environmental rights that is constitutionally protected.

Of course, you will see in our brief that it has been practically the norm to have environmental rights in a Constitution. What we propose might have a little more teeth than what has been done in other places. I think there are some countries which have honoured these constitutional obligations in the breach. The eastern European countries are one example.

Just very briefly, and this gets a little bit complicated, at pages 14 and following of our brief we set out some elements of what would be a substantive right to environmental quality in the Ontario context. They are as follows.

First, the rights, as we said, would be in the Constitution of Ontario and would therefore be binding on the government of Ontario, on the municipalities which are essentially the creatures of this Legislature, on public and private corporations, and on individuals in all matters where they are within Ontario's jurisdiction. You obviously cannot, as I mentioned before, legislate on federal matters. Those provisions would be protected by, as I suggested, a repeal provision which would say that substantive rights of environmental quality could only be repealed by, say, a two-thirds majority of all the members.

The second point, and Marcia talked about this a bit -- I am not going to get into details -- is the question of how you define environment. That is a nice question and it has to be done carefully.

The third thing is the right itself. What are we talking about? We are talking about a substantive right -- Marcia mentioned the distinction between substantive and procedural rights -- to a healthful environment. It would have to be made very clear. This is perhaps where the distinction would be drawn with some of the other Constitution's provisions we mentioned. We are not simply declaring this pious hope where everybody is lovely and we all love each other and there is apple pie and we have environmental rights. The idea would be that we are not merely declaring that this exists, but that there be a positive duty on government and on individuals to protect environmental rights.

When I say "positive duty," that is an important point, because Paul mentioned the question of a government of judges or a flood of litigation, not that we think it is a problem in any case, because what we are really talking about is a dialogue between courts and Legislature with the opportunity for the public to participate. One of the ways of avoiding any kind of inkling of an overactive judiciary is to say, "Look, these are positive, first-order duties of government, corporations and individuals which they should carry out, which they will have a constitutional obligation to carry out without waiting to be told by courts." Probably the most important way of avoiding a government of judges is to have good government to begin with.

The fourth element, and I think I have already mentioned this, would be to say that any legislation that would be inconsistent with the right, whether it be prior to the coming into force of the amendment of the Constitution or subsequent, would be made of no force and effect to the extent of the inconsistency. In the context of a non-entrenched, if you like, quasi-constitutional protection, this is what was done in the Diefenbaker Canadian Bill of Rights, which did not attract as much good and judicial interpretation as it could have, but ironically seems to be being given some new teeth by the Supreme Court of Canada now that we have a proper constitutional charter. It is not something that cannot be done. As I mentioned, the Quebec Charter of Rights has that kind of controlling, overriding provision.

The fifth point was that there be appropriate remedies so that the public could, when necessary, and we hope this would not be necessary that often, go to court to get injunctions to get other remedies to enforce the right.

The final thing, and I hope no one jumps out of his seat, is the idea of having some kind of "notwithstanding" clause which said the right could only be repealed by a special majority of the Legislature and that the right would override other kinds of legislation, would have a controlling effect on other legislation, but that there may be circumstances where, short of repealing the rights, you want to set them aside.

I can think of one example. It would be where you are trying to cite a hazardous waste facility, for example, and that will surely at least have some potential danger for the local environment. We do not want to place the government in the situation of having its hands entirely tied and unable to go about some environmental management activities because of absolute environmental rights. Ultimately the Legislature has to bear a good bit of this responsibility and therefore we propose some kind of possibility of a legislative overrider or "notwithstanding" clause, but that would require, again, a special majority and would be renewable, would have a sunset clause that there would have to be ongoing evaluation of whether the derogation from environmental rights is justified. That gives a kind of political accountability.

Those are my essential points. I hope I have not bombarded you too much. I would be happy to answer any questions you have. I am also very interested in some of the things Toby is going to talk about, the division of powers. I have an abiding interest in that too, so maybe we will all get our oar in.


Ms Vigod: I am going to conclude with some discussion on the thorny issue of division of powers and the role of federal and provincial governments in a new Constitution. I think everybody is well aware that the Constitution Act, 1867, did not allocate legislative responsibility for the environment to either level of government. The environment was not a major concern back then, and as a result we have had a large degree of overlapping jurisdiction because of the generality of federal and provincial powers.

This has led to some very practical problems in the environmental field. Often when there are decisions as to which level of government has the responsibility, these decisions are very difficult. We have often had the case where one level of the government declines to take responsibility and what I always call jurisdictional buck passing takes place. A famous example in the 1970s was the failure of either the federal or provincial government to take steps to close the English-Wabigoon River to sport fishing in the face of high mercury levels. I remember that debate very well, and the buck passing was at an extraordinary level.

As well, we have had situations where constitutional issues arise in the environmental field as to which level of government should legislate in respect of an emerging issue; for example, biotechnology. The question is always, is it the feds or the province that should legislate? Cleanup of hazardous waste sites: I know the debate on whether Canada should have superfund legislation to deal with abandoned sites has been a controversial one, and constitutional issues have been raised in that context.

Finally constitutional challenges have often been raised by polluters in a number of situations when faced with environmental charges under either federal or provincial law. This has proven to be very time-consuming. I know certainly in the early days when we had our Ontario Environmental Protection Act there was a challenge that went through the courts. It is interesting that there were arguments it was ultra vires the provincial Legislature because pollution was a national concern, and of course we have seen companies challenge federal law, the Clean Air Act being one recent example, where they have said, "No, air pollution is a provincial matter."

I guess the most recent important case was the Crown Zellerbach case, which took eight years to wend its way up to the Supreme Court. That case involved a challenge to the provisions of the Ocean Dumping Control Act by Crown Zellerbach, and ultimately the provisions were upheld and the Supreme Court found that at least marine pollution was a matter of national concern that could be upheld under the "peace, order and good government" clause. But I think we have all come to a conclusion that there is some need to clarify the situation with respect to the constitutional division of powers. It is very time-consuming and resource-consuming to have to go through these eight years of court proceedings to find out where we all stand.

Our organization, CELA, and, I think, a number of other commentators and environmental groups have taken the position that there is a role for all levels of government to play in environmental protection. We have certainly also argued, though, that there is a very important role for the federal government to take. First of all, we know that air and water pollution do not respect provincial boundaries. We also see that there is a need for national standards and a centralized authority to ensure that pollution havens are not created -- I think this is a real concern -- as well as a need for some national enforcement standards. We have a patchwork of enforcement across this country. As well, there are federal resources and federal research capabilities that can be brought to bear.

We do not support the recommendation of the Allaire report that environment be an area of exclusive Quebec authority, the position it took, nor do we support the Group of 22's recommendation that environment be a provincial responsibility, except for, I believe, they have used the terms "international" and "interprovincial air and water flow standards." I am not quite sure what that means. It is very narrow definition. As well, the Group of 22 has recommended that common minimum legally enforceable provincial standards be established by provinces and monitored by an agency under the supervision of the House of the Federation. If I have heard of one oxymoron, it is "common provincial standards." I think that is highly unworkable and a position we would not advocate. I think it really also takes away from the discussion we have been having about the fundamental value of environmental protection.

Our recommendation is that there be concurrent jurisdiction, with federal paramountcy. When we look at our existing Constitution, there are areas of concurrency that have been recognized, areas of agriculture, immigration, old age pensions. As well, certainly in the environmental field, we have a developing concept of functional concurrency where we may have a single subject matter of legislation that has both federal and provincial aspects that can be dealt with by both levels of government; for example, water pollution. In Ontario we have the Ontario Water Resources Act, and as well there is the federal Fisheries Act.

While this has been a developing theory, and certainly the theory also includes the fact that federal law would be paramount in the event of conflict or inconsistency, there have been cases that have left sort of a lacuna or a gap in the coverage of federal-provincial law, and that is why we say we really need a clarification of this type of regime.

On page 19 of our brief we have recommended some language. It is of course subject to debate and further discussion, but our recommendation is -- we would urge the committee to make such a recommendation -- that the federal Constitution be amended to include a clause that both the Parliament of Canada and provincial legislatures may make laws in relation to environmental protection and resource conservation and that in the event of any conflict, the federal legislation shall prevail to the extent of the conflict.

I think the courts have been very wary to find conflict in legislation, the example of water pollution and air pollution being areas where they found the legislation can exist at both levels.

The other area or gap that we have identified is the whole issue of the immunity of federal agencies and departments from provincial law. I think people might be aware that a number of years ago there was a prosecution of Eldorado Nuclear Ltd under the Ontario Water Resources Act that ultimately resulted in charges being dismissed because the courts found that Eldorado was a federal crown agency and not subject to provincial laws.

We have recommended that this committee recommend that the Constitution be amended to provide that federal government agencies and enterprises be subject to provincial and municipal laws, except to the extent that they are specifically granted immunity by federal legislation. In other words, the general rule should be that provincial law does apply to these agencies.

The Brundtland commission that we have heard talk about has also recommended a clear role for national governments in the establishment of clear environmental goals and laws. Their recommendation is that there should be a strong role for the federal level, with local governments being empowered to exceed but not to lower national norms. I think Ontario has the leadership role in this area and certainly we have seen this used effectively. Our transportation of dangerous goods law is an example of federal legislation where the provinces have their own legislation that can also be more stringent.

In conclusion, what we have tried to bring forward is the position that we feel environment is a fundamental value that should be protected in the Constitution, that we think there are a number of rights and a number of ways of framing these rights. We are urging this committee to recommend that the federal government give consideration to entrenching environmental rights in the new Constitution.

Franklin has talked about the opportunity for Ontario to take a creative role in amending its own Constitution in this right and setting a leadership role, and we have talked about the need to clarify the division of powers but to ensure that there is a strong federal presence because of the nature of the environmental crisis we face, but also that there be a strong provincial role and the opportunity for the provinces to act and take a more stringent role.

There is certainly a lot of room for discussion here and we would like to entertain any questions you have.


The Acting Chair: First of all, I would like to thank you very much for your very good presentation. There are many issues that you have put out on the table for us to respond to and we have a number of people who are interested in doing so. I would like to begin with Mrs O'Neill.

Mrs Y. O'Neill: This is a very detailed report. There certainly has been a lot of experience brought to us today.

Ms Valiante brushed over this and someone else in your group made reference to it quickly, but I think it is really important that we understand what you mean when you say "environment includes," and particularly the areas I would like you to talk to are the social and cultural aspects. You must have thought about that or it would not be here. What does it mean?

Ms Valiante: You can go with a broad view of social and cultural aspects of the environment, or you can take a fairly narrow view. In Ontario legislation, in the Environmental Assessment Act, the definition of "environment" includes social, economic and cultural rights as well as the built environment.

The social environment, within the framework of the Environmental Assessment Act, includes things like recreational values and aesthetic values. It is more than just physical environment. It can go as far as including rights to employment. Certainly at the international level, in the international covenant on economic, social and cultural rights there are a lot of rights, to health, to food. Those kinds of things would come under the rubric of social and cultural. Cultural would include the rights of aboriginal people to their culture.

I do not necessarily have one definition that I want you to adopt. I think the importance of including it is to say that health includes mental health as well as physical health. I am not being poisoned, but it should be an environment that allows me to develop to my potential.

Mrs Y. O'Neill: This is much easier expressed than even put into legislation or recommendations, as I am sure you can well appreciate. It overrides so many other jurisdictions and even within our own format of ministries it certainly is a very challenging concept.

Ms Vigod: Could I just add one point on your question? In our brief we discuss this on page 14, and I think what we are saying is, the stronger, in some way, that the right becomes, there has to be balance with a definition that may have to be circumscribed enough that it is practically applicable. In other words, we focus on the ecosystem integrity and the natural environment, because otherwise we would be talking about everything under the sun. I think in our concept, the stronger you make the right, the definition would have to be perhaps narrower.

Mrs Y. O'Neill: I thank you for bringing before us all that has been done internationally and the inclusion of those clauses is most helpful. I wonder if you could tell us a little bit about the implementation successes.

In discussing the social rights, for instance, we have looked at some of the difficulties of including social rights in constitutions, whether that be implications for the judiciary or implications just in setting standards in enforcement. Certainly the European Community has come across some of those hurdles. I am wondering if you can bring us up to date or give us some examples from the other jurisdictions' implementations of the clauses that you have quoted.

Mr Muldoon: I am just trying to think of what are good measures of success. I think there are different ways of looking at it.

In the United States, various states have constitutional guarantees for it. One of them is Pennsylvania, which does not have a rights legislation per se but does have a constitutional guarantee of environmental quality. Minnesota and Michigan are other good examples. The measure of success there -- it probably is difficult to show whether or not their environments are any cleaner. What is clear is that the citizens have better access to the institutions which decide on environmental quality. What happens is that those institutions -- the tribunals, the court, the bureaucracy -- recognize that everyone has a stake in the environment and therefore must have some input in some fashion.

Mrs Y. O'Neill: Could you say what the instruments are that give them access?

Mr Muldoon: They range; everything from freedom to information to standing in courts to enforcement rights. They do change from jurisdiction to jurisdiction based upon the legal and social culture of that particular jurisdiction. There is no magic formula and there is no model which I think is completely adaptable to the Ontario or Canadian experience. But certainly the idea is that there are certain principles which it furthers: access to the courts, fair and equitable decisions, those kinds of principles. I think there are a lot of jurisdictions which have measurable success in that realm, but again there is no transferable model. I think that in Ontario and in Canada, it has to be home-grown in light of our social and legal fabric and history.

Mrs Y. O'Neill: I was surprised to see several Third World countries listed. Could you tell me why that happened or how that happened? Is it the infancy of their governments, getting in on the ground floor, so to speak?

Mr Muldoon: I think there are a lot of reasons. It is very hard to generalize, putting Third World countries in any sort of typology. One of the reasons you suggested is, I think, obviously the most important, and that is the fact that they have had an opportunity to look at their constitutions fairly recently. As Franklin mentioned, I think it is now the norm rather than the exception that these types of rights are included in constitutions. If you look at some of them, for instance, you will notice that they have very broad rights which then have to be implemented through domestic legislation. Certainly that is where the weakness has been. It has not been a failure of the concepts; it has been a failure of the implementation. I think that is probably understandable. But what is clear is that, first of all, that allows a framework for development in terms of implementation down the road. It also contributes to the overall notion that maybe this is an emerging facet of international law, an emerging norm of international law.

What is interesting is that I think Canada missed the opportunity in the early 1980s, when we did look at the charter, to include these kinds of rights. I know many environmental groups and environmentalists are now scratching their heads and saying, "Is there a way to include the environment, and how do you do it?" This is why, when the opportunity is now before us, we are quite eager to look at it. We hope we do not miss that again.


Mrs Marland: First of all, I would like to congratulate you. I think this is a very exciting presentation that you bring to this committee this morning. I am not a regular member of this committee, although I have enjoyed the opportunity of being substituted in for this week. But your contribution, the aspect from which you come, is in my opinion very important and very vital. I do congratulate you very sincerely both on the expanse and the thoroughness of what you have been telling us this morning.

Interesting, is it not, when you think about our 1867 beginning? I think, Toby, you referred to the fact that nobody was thinking about the environment then, nor in the 100-plus years since, while we have been destroying it in many senses. I think the fact that you are here today and the fact that your brief is realistic says a lot about where the public is today in dealing with this subject and in dealing with the future of the country with this subject.

It is interesting to look at the list of the 18 countries you have in the brief that have in their constitutions, in different wording, protected the environment. It is also interesting if you think about 18 countries as being perhaps 5% of the countries in the world. I also found it interesting that it is almost 40 years since Poland enshrined the protection of the environment for its people and that all the other countries are only in the last 20 years. We can only hope that other countries make the same kind of progress.

There are two things I want to ask you particularly, and I am speaking as a 20-year environmentalist who was an environmentalist before it was fashionable to be one. That word was not even used in the late 1960s.

When we talk about air and water and we look at the jurisdictional challenge that air and water provide, do you agree that this has to become totally a federal government responsibility? What I want to suggest to you is that when it breaks down to a provincial jurisdiction, first of all, we end up as a nation -- everybody does not get protected because the standards are going to be different from province to province. Am I going to live in the province that has the strongest ability to enforce the protection because of funding? If I live in a wealthy province, are my water and air going to be better protected because we have more money to do that, or can we look at it being totally a federal jurisdiction and therefore a federally funded enforcement? It is no good putting it in there if it is not going to be enforced.

Ms Vigod: As a general comment, environmental protection really does not lend itself to being the total purview of one level of government or the other. We would take the position that it should not be totally a federal responsibility, in the sense that there certainly are local pollution problems that should be dealt with at a local level. The people are closer to the environmental problems. We do not see it totally being a function of the central government to look after air and water pollution.

On the other hand, there are the transboundary aspects of it. I think the need to be able to set national minimum standards is the key role for a central agency, whereas I think the province has a role in dealing with pollution, certainly within its boundaries, and also in saying, "We know the watershed or airshed in our province and want to enforce a more stringent role." I guess that is why we keep coming back to some sort of concurrent jurisdiction.

What we have seen at the federal level right now is in some ways an abdication of some of the responsibility to take that leadership role. That is why we would like it spelled out more clearly in any new Constitution. It is very hard, because environmental protection covers so many aspects of our lives, to put it into one level or another. The concern is that while we do see a role for the federal government in setting minimum standards, there be certainly a provincial role as well.

Mr Muldoon: I just want to add something. One of the themes I think we are trying to get across is that it is concurrent jurisdiction. It has to be by the way the environment works and the way political institutions work. But what we are desperately in need of is clarification of who has power to do what. With clarification comes something which we think is vitally lacking, which is accountability.

Toby mentioned this whole notion of buck passing. I think if you look at the Great Lakes, there is a tremendous amount of that. The federal government blames the United States, the United States blames the International Joint Commission, the International Joint Commission -- it just goes around and around. The basis of that is that the diversity of jurisdictions means diversity of roles, means unclarity of who has what roles, and then we end up with everybody pointing the finger at someone else for the environment degrading.

Because we did not get the opportunity to do it a hundred and some odd years ago, we have to clarify who has what role so that we can make people accountable, make government and bureaucracy accountable for their action or inaction. I think that is a very important theme we are trying to get across, rather than saying it is one jurisdiction or the other.

Mrs Marland: It is very depressing, is it not, with these international commissions that sit down annually and discuss the same thing they have discussed for the last 15 years, and no progress has been made.

Mr Gertler: I think in answering the question of division of powers, one obviously has to be quite practical. For instance, a problem between Windsor and Quebec City, what we call the Windsor-Quebec City corridor, is ground-level ozone levels. These are caused by, among other things, emissions of nitrous oxides. I have clients in the Eastern Townships near Montreal who are in the business of rubber-coating fabric, and that puts volatile organic materials up the stack. They have to comply. They are in the process of putting in a $1-million solvent recovery system to keep those things from going up the stack.

Probably the appropriate way to approach that problem is to say, "Yes, this is a problem which affects the airshed" -- if you will permit that term -- "of both Ontario and Quebec, and there should be national standards." That does not mean that in the negotiation of when the system should be installed and the schedule and whether they are actually complying, Quebec should not be involved. So we really have to have a practical approach to these problems, it seems to me.

Maybe the overarching principle should be that the environment is for people and the Constitution is for people. It is not so governments can feel better and say, "Oh, yes, we have more legislation than you do," or look better. The real measure of where these powers should lie and how we should divide them is how well they protect the population, how well they protect the environment. I think our submission -- and maybe we distinguish ourselves from the witness who preceded us -- is that Canada is more than a common economic space. It is also a common environmental space and it is our home, and those are some of the values that should govern the division of powers.

Mrs Marland: Has your organization, the Canadian Environmental Law Association, been consulted? I am looking at you, Toby, as executive director. Have you been involved in the formulation of the Ontario bill of rights?

Ms Vigod: Everybody at this table has been involved. The need for an environmental bill of rights was one of our founding principles back in 1970, 20 years ago, and it has taken a long time to get where we are now. We certainly see the environmental bill of rights being an important tool. Again, each one of these aspects is not a total panacea, but it is certainly an important tool in giving citizens access to decision-making, to the courts, and in raising the consciousness about environment protection. It is the same for the need for a constitutional amendment. It is another tool. It again enshrines it as an important value. We think all these things can work together. So it is not an either/or situation.

At this point in time we are talking about new constitutional arrangements. Now is the time to ensure the environment is part of that. The bill of rights, as Marcia was saying, can include many more specific provisions on procedural rights, access to the day-to-day decision-making. Another option is also having a federal environmental bill of rights, which we have put forward in the past. Ontario can again take the lead, but certainly having those kinds of rights enshrined in a federal statute is also an important option.

Mrs Marland: Did you make your presentation to Spicer or the other federal commission?

Ms Vigod: Not to Spicer. We will obviously be sending our brief around to some of these other commissions.

Mrs Marland: At this point you have not made your presentation to a federal commission on Confederation?

Ms Vigod: No, except that CELA did make a brief back in 1978 to the committee looking at what was then Bill C-60. Some of it is déjà vu, but we certainly intend to enter into the debate at the federal level.


Ms Valiante: Can I make a comment on the division of powers as well?

The Acting Chair: If you could do it very quickly, the reason being that we have quite a long list of questioners.

Ms Valiante: Okay, I will make it quick. One of the things we have come to in understanding the environment and one of the reasons environment was not included in 1867 is that we now see that the environment affects so much of our lives. The work of the Brundtland commission reinforces this, that environment touches on the economy, on health and all kinds of things. To say the environment should be provincial or federal really is a complete misunderstanding of what is included in the idea of environment.

When you are talking about resources you are talking about air and water, which you were talking about, but it is not limited to just air and water quality. To try to divide it up or give the whole package to one level of government gives a lot more than air and water quality. I think the Crown Zellerbach case made that clear.

Mrs Marland: I was not suggesting that.

Ms Valiante: I am not saying you are suggesting that, but in terms of a recommendation, in terms of an understanding of what division of powers is all about, I think the only practical way of dealing with it is at both the provincial and the federal levels.

Mr Winninger: When Marcia was canvassing the various options for protecting environmental rights such as the Constitution, the charter or the environmental bill of rights, I was reminded of a presentation by the Advocacy Resource Centre for the Handicapped only a few days ago. Their approach was this: If we enshrine these principles in a charter, then they will be subject to the section 1 override and the section 33 opting-out clause.

We also had a presentation by Anne Bayefsky who suggested, because of the abysmal record of provincial governments opting out on some very vital issues, that we had to have real teeth in our Constitution when it came, in that case, to protecting social and economic rights. You were providing your own opting-out clause. I was quite surprised because I wondered how effective these proposals can be when any provincial government can find some rational basis for justifying an override or an opting out.

Mr Gertler: First of all, if we are talking about reforming the federal Constitution and you are of the view -- I do not say it is not a legitimate view; some days I share it -- that section 1 and section 33 are something to get alarmed about in the Constitution, there is the option of protecting these rights, as Marcia mentioned, in a separate part of the federal Constitution that is not subject to section 1, limits that are deemed justifiable, or to section 33, the "notwithstanding" clause. A good example of that is section 35, aboriginal rights in the Constitution, which is not subject to either of those limits. That is an option.

The question of an override: We mention it; we throw it out. Maybe you would want to put it in the waste-basket in terms of an amendment to the Constitution of Ontario, but you will notice it was suggested that it be only with a two-thirds majority of all the members of the Legislature. You are talking about a very tough standard, because the "notwithstanding" clause that now stands in the Canadian Charter of Rights and Freedoms operates by simple majority of those present, which is a much lower standard. That may be a basis for distinction.

Mr Winninger: It is certainly a debatable issue. Thanks for your observations.

The Vice-Chair: I will leave it to the discretion of the committee. We have gone overtime, but there are two questions. If we deal with them quickly, is it the will of the committee? Okay.

Mrs Marland: If there are other questioners, I think that is fair.

Mr Harnick: Toby, you have talked about the environmental bill of rights and the development of a new cause of action in regard to lawsuits or potential lawsuits between private individuals. What do you envision as that cause of action containing?

Ms Vigod: I will give you this one.

Mr Muldoon: I think there are three distinct problems and we do not have a set answer. The first traditional problem with the cause of action is that we have never been able to invoke it because we do not have standing to sue. In other words, there are historical barriers. Unless my property or my health is being affected, I cannot sue or enforce laws for the sake of the environment. I have to show personal, proprietary or pecuniary problems.

That is usually the first problem when you talk of the guise of cause of action. We do not really get the cause of action because I am not even in the courtroom yet. I am still banging on the door. If we deal with that problem and we are in the door, then we are at the cause of action problem.

Then there are two other issues. The first question is, does a present common law or a tort law allow people -- does it protect the environment? in other words, are the traditional causes of action -- nuisance, trespass, negligence -- sufficient to allow people, victims of pollution, victims of environmental degradation to do it adequately, conveniently and equitably? The answer is that we are not sure. We have not done it enough, in a way, but we do know there are some real problems. There are problems of causation, problems of trying to fit these environmental problems in these historic, many times antiquated causes of trespass, which has its own little rules, and nuisance has its own little rules and negligence has its own little rules, especially when dealing with things like toxic chemicals where the injury may be a decade or two decades after the actual event.

There is that whole problem and of course the remedies: monetary, injunctive and all that. Once in the courtroom door we have to ask, is it sufficient? That is why the cause of action issue has become quite interesting. Should we then go through years and years of trying to figure out whether or not the present cause of action is sufficient, or should we create a new one to deal with the kinds of problems we foresee so that the rules are clear and we can just simply tell everyone what the rules of the game are, make them predictable, make them fair and effective to protect the environment and compensate those affected by environmental degradation? We do not have the wording but those are the principles underlying it.

Mr Harnick: Does the proposed class action legislation go far enough to provide you with the standing you need in terms of prosecuting a civil action?

Ms Vigod: It is really almost one of these chicken and egg problems. You need reform to the law of standing almost before you reform class actions, because the class action bill deals with the opportunity for many victims to bring a lawsuit together. It is a much-needed reform. Certainly we support the class action bill, but it does not deal with the issue of standing. In other words, if I am barred from the court it is not going to help that I can bring 10 people along with me.

We have always said you almost need the reform in the standing before you do class actions. We are now sort of getting up to speed with both aspects of reform to the law. The class action thing really just deals with the opportunity to bring in a number of people and deal with it efficiently and effectively that way.

Mr Harnick: That is interesting. We have seen the draft class action bill and we hear that the environmental bill of rights is on the horizon. We have not seen anything regarding standing but I suspect we may.

Ms Vigod: Paul and I are both on the advisory committee on the law of standing. Certainly our deliberations have concluded and there will be something soon on that.


Ms Carter: I also would like to thank you for bringing this brief. I cannot think of any subject which is more important and more vital for all of us. Some of the most pressing environmental problems are things that happen on a global scale, such as global warming and the thinning of the ozone layer. It is hard to pinpoint those and give them some kind of local base. I am just wondering how we could look towards solving those problems right from where we are.

Ms Vigod: I guess that is another reason why we need all levels of government involved, because it is of course the "think globally, act locally." We have to look at all levels. Again, we cannot pass the buck up to the international level, which has sometimes been done and say: "We can't act. We're paralysed because it can only be done internationally." That certainly is a clear role the federal government should be taking an aggressive role in, pushing an international environmental agenda, which we have not seen happen.

In global warming, as you well know, there is a lot of scope for provincial and local governments to take initiatives. We know what the causes are. We know we have to start reducing emissions at all levels of government. We cannot pass the buck up even further. Certainly in Ontario and Canada it is an opportunity to take a role, live up to our rhetoric and put our action where our rhetoric is.

Ms Carter: The causes are so bound up in the way we live, for example, the use of cars. It is not just the carbon dioxide from the use of gasoline, it is the CFCs in the air-conditioning and so on. It is hard to see how we are going to act collectively to really change this.

Mr Gertler: You are asking the cosmic questions, obviously, and it is difficult for us to give much of an answer. We should not assume to be able to answer all these things. I think the importance of what we are talking about is that if we are going to start to change on these issues down the road, we have to decide these are fundamental values, that these are the essential things for which our society exists: the protection of the environment. Once you have done that, it may be easier to build a social consensus to take action on specific problems which would otherwise seem unthinkable. It is a question of getting on a war footing, essentially.

Ms Carter: So would you need a kind of lead?

Mr Gertler: Rallying.

Ms Carter: Rallying, yes.

Mr Gertler: The other thing is that by enshrining these things at the Canadian level, we may also push our federal government to be very active. We have the 1992 United Nations conference on environment and development coming up, which will be addressing exactly many of those global issues. It is 20 years since the Stockholm conference. If Canada has taken a strong environmental rights stand, we may go there with a stronger hand and more conviction to address those issues at the global level, and also with cleaner hands. We will not be living in a glass house.

Mr Muldoon: I just want to mention that in working for a public interest group, we do not find a lot of cosmic responses to those cosmic questions. They are very difficult. In our view, experience has been much further ahead and making those very difficult lifestyle decisions and changing consumer habits and doing all kinds of things unimaginable even five years ago.

The question then is, if that is the answer, if those kinds of very fundamental but easy things ultimately are the answer, how are we going to change our regulatory and administrative systems to facilitate and promote them? We think environmental rights are the key element of that. I guess we are frustrated. The top-down approach has not really worked to change the environment. Let us try bottom-up.

The Acting Chair: Thank you very much for responding to the questions the members of the committee have had. Do you have a brief final word you would like to say to the committee before we end this part?

Ms Vigod: We certainly think this is a real opportunity; this is the time. We are looking at a new Constitution. As Franklin said, putting environmental rights in is a very positive message that can come out of this committee, as well as the leadership role Ontario can continue to take. We really urge you to examine our briefs and develop some recommendations. We thank you very much for setting this up panel.

The Acting Chair: Thank you very much, and be assured we will be looking through the brief very carefully.

I just say to the committee that at this point we are pretty well ready to move into the subcommittee, which will be in room 230. We will adjourn until 2 o'clock on Monday.

The committee adjourned at 1157.