STANDING COMMITTEE ON GENERAL GOVERNMENT
ENVIRONMENTAL BILL OF RIGHTS, 1993 CHARTE DES DROITS ENVIRONNEMENTAUX DE 1993
CONTENTS
Thursday 18 November 1993
Environmental Bill of Rights, 1993, Bill 26, Mr Wildman /
Charte des droits environnementaux de 1993, projet de loi 26, M. Wildman
STANDING COMMITTEE ON GENERAL GOVERNMENT
*Chair / Président: Brown, Michael A. (Algoma-Manitoulin L)
*Acting Chair / Président suppléant: Grandmaître, Bernard (Ottawa East/-Est L)
*Vice-Chair / Vice-Président: Daigeler, Hans (Nepean L)
Arnott, Ted (Wellington PC)
Dadamo, George (Windsor-Sandwich ND)
*Fletcher, Derek (Guelph ND)
*Johnson, David (Don Mills PC)
Mammoliti, George (Yorkview ND)
Morrow, Mark (Wentworth East/-Est ND)
Sorbara, Gregory S. (York Centre L)
*Wessenger, Paul (Simcoe Centre ND)
White, Drummond (Durham Centre ND)
*In attendance / présents
Substitutions present/ Membres remplaçants présents:
Abel, Donald (Wentworth North/-Nord ND) for Mr Mammoliti
Lessard, Wayne (Windsor-Walkerville ND) for Mr Dadamo
Offer, Steven (Mississauga North/-Nord L) for Mr Sorbara
Mathyssen, Irene (Middlesex ND) for Mr Morrow
Tilson, David (Dufferin-Peel PC) for Mr Arnott
Wiseman, Jim (Durham West/-Ouest ND) for Mr White
Also taking part / Autres participants et participantes:
Ministry of Environment and Energy:
Jackson, Jim, legal counsel
Lessard, Wayne, parliamentary assistant to the minister
Shaw, Bob, coordinator, Bill 26 implementation
Victor, Dr Peter, assistant deputy minister, environmental sciences and standards division
Clerk / Greffier: Carrozza, Franco
Staff / Personnel: Leitman, Marilyn, legislative counsel
STANDING COMMITTEE ON GENERAL GOVERNMENT
THURSDAY 18 NOVEMBER 1993
The committee met at 1018 in committee room 2.
ENVIRONMENTAL BILL OF RIGHTS, 1993 CHARTE DES DROITS ENVIRONNEMENTAUX DE 1993
Consideration of Bill 26, An Act respecting Environmental Rights in Ontario / Projet de loi 26, Loi concernant les droits environnementaux en Ontario.
The Chair (Mr Michael A. Brown): The standing committee on general government will come to order. The business of the committee today is to deal with Bill 26, An Act respecting Environmental Rights in Ontario, and the purpose of this meeting is to start the clause-by-clause examination of the bill.
Mr Jim Wiseman (Durham West): Mr Chair, I believe, given the introduction you've just made, that the agenda is not in order for this afternoon, that the resolution that was passed earlier would indicate that we would have to dedicate today to clause-by-clause of Bill 26 and that really this 3:30 item should read, "Clause-by-clause consideration of Bill 26 followed by the subcommittee report." I would ask that the afternoon agenda be changed to reflect that.
The Chair: I would just point out, Mr Wiseman, that at the subcommittee meeting yesterday, all three parties agreed that this was the way we would proceed this morning and this afternoon. But of course any decisions of the subcommittee need to be ratified by the committee if there is any kind of problem members see with the way the committee has organized its work for the day.
Mr Wiseman: I would ask that you make a ruling on whether the subcommittee was in fact in compliance with the resolution that was passed by this committee earlier with respect to this item at 3:30.
The Chair: The Chair is governed by two things: One is the motion of committee on how it organizes its business, but in an effort to have the business conducted in an orderly fashion, given that there are changes from week to week around this place, the subcommittee generally gives the Chair direction on what will be considered each day.
I'm not certain that this is out of order, but I would entertain a motion saying that we will deal only with clause-by-clause today.
Mr Wiseman: Then I would like to move that, that we will deal with clause-by-clause today, followed by the subcommittee report should clause-by-clause be completed.
The Chair: Thank you. Mr Wiseman has made a motion. Mr Tilson.
Mr David Tilson (Dufferin-Peel): Mr Chair, I'm not too sure of the intent of the motion. I think we're following the right procedure. If I recall, the final sentence of your motion reads that we would start clause-by-clause discussions of Bill 26 today, and we are about to do that.
I wasn't present at the subcommittee meeting -- I happened to walk by it at one time and it looked like the usual vigorous debate was going on -- but my understanding was that all three parties did agree that notwithstanding -- and I don't think it contravenes your initial motion of several weeks ago. I'm speaking through you to Mr Wiseman, Mr Chair. We are starting clause-by-clause discussions of Bill 26, and all three parties, Mr Grandmaître, Mr Turnbull and Mr Mammoliti agreed, as the representatives of the three parties, that the topic listed on the agenda would indeed take place at 3:30. So you've rather caught me by surprise, because I understood that was an agreement of all three parties.
Mr Wiseman: I think this debate we are currently having on this issue does not conform to the resolution this committee passed.
Mr Tilson: Probably your motion's out of order.
Mr Wiseman: What I would suggest is that the Chair should rule. That was my hope, that the Chair would rule that we would just switch this around and that we would avoid a long discussion this afternoon and that we would deal with it without having to break up the flow of the clause-by-clause, which I'm sure everybody would like to move ahead with.
Mr Tilson: To repeat, there's no question that your motion did not say we would start this morning and go on ad infinitum -- in fact, actually that's what it does say, will go on ad infinitum -- but your motion says we will start debate on clause-by-clause today. I repeat your motion is probably out of order, because that's what your motion said -- right now, at this very second, we're contravening your very motion -- but that's nothing to preclude this committee dealing with the resolution that was put forward and passed by the government House leader to deal with Bill 26. A subcommittee meeting was held yesterday, as you know, in which all three parties were present and in which it was agreed upon by all three parties that the subcommittee report would be presented today at 3:30. That was the agreement of all three parties, and either a deal is a deal is a deal, or it's not.
The Chair: Are there further members?
Mr Hans Daigeler (Nepean): To deal with the subcommittee report at 3:30 was clearly an effort to accommodate in some way the desires of the government House leader to get some other bills passed, as he put that all of a sudden on to this committee. If we're not dealing with the subcommittee today at all, for sure there won't be enough time for Bill 47 in this session. It clearly was an attempt yesterday to see what can be done with regard to the motion that was put forward in the House this week and was kind of unexpected for this committee.
Mr Steven Offer (Mississauga North): I have a problem in understanding the process here, because I'm on this committee as the Liberal Environment critic and I'm substituted in and have been part of that subcommittee dealing with the EBR. I'm not part of the subcommittee that's dealing with the subject matter of the subcommittee's report, which is Bill 47.
The problem I have is that Bill 47 is here as a result of an allocation motion which I understand was passed by the Legislature, and I just don't know if there is a preference or a priority that has to be attached because of the fact that the government has sought to institute time allocation on Bill 47 and the subcommittee charged with the ordering of affairs of that bill in this committee has had a specific reaction to the time allocation motion.
It's as if we've got two subcommittees, one dealing with the EBR, which dealt with certain decisions at subcommittee and motions in the committee, and now we have another subcommittee dealing with 47, and there seems to be a bit of a grinding. My concern is, as I want to go along with the EBR, that there's a time allocation which has been moved by the government on Bill 47 that the subcommittee charged with that responsibility feels it necessary to respond to.
The only reason I wanted to speak on this was that I have a concern about how you deal with the two different subcommittees, one of which is looking to move ahead with the EBR, the other of which is very concerned with the time allocation that the government has instituted on the bill it's responsible for. It has a time problem on this matter and wants to deal with that in the committee.
Truly, I take no position on that, save that it's a serious matter, especially as the problem is the time allocation which was introduced by the government that the subcommittee wants to respond to.
The Chair: Is there further debate or comment on Mr Wiseman? Mr Tilson.
Mr Tilson: Just to again remind Mr Wiseman that the three parties did agree to this agenda, and you can't come along at the final hour, unless your -- I don't know; I hope your word's better than that. The fact of the matter is that all three parties agreed to this agenda, so I would hope he'd withdraw. You can outvote us here, no question, but I would ask you to reconsider your position, because all three parties agreed to this agenda.
Mr David Johnson (Don Mills): Mr Chairman, I'm not 100% sure of the procedure here, but I thought the House took a position with regard to Bill 47 and that Bill 47 was to be dealt with with some urgency. I rather anticipated when I saw that motion in the first instance that actually today we would be dealing with Bill 47 and not Bill 26.
I don't quite understand the hierarchy here, but it seems to me that the House as a whole should have some priority over a committee and a committee should listen to the message it's getting from the Legislature as a whole. I think, whatever we think of it, that the direction we were getting was that Bill 47 should be given urgent treatment.
When I saw the agenda, it seemed to make a whole lot of sense in that it would allow for the earliest consideration of Bill 47. I would guess that in your consideration of this whole matter, you would be entertaining the motion of the committee, but also, somehow you would have to factor in the motion that has been approved the other day -- two days ago, I guess it was now -- with regard to Bill 47 in the Legislature itself.
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The Chair: Mr Johnson, you are describing exactly what the quandary of the subcommittee was yesterday.
Mr Offer: I spoke earlier on this and I will repeat this, but I think the agenda as set out is something which I think has to be followed. Hopefully, the consideration of the subcommittee report won't take an inordinately long period of time.
I think the subcommittee has made a report and has asked for this to be brought back to the committee. I think the committee has to be bound by the wishes of the subcommittee. It would be a very strange day where a subcommittee makes a decision and wants the report decided by the committee and the committee says, "We're not going to deal with the subcommittee's request." It's different from whether you agree with the subcommittee's report. The question is, you cannot as a committee decline to entertain the subcommittee's report. That's a strange procedural problem which I think would cause some great difficulties. I think you just have to deal with it and get on with clause-by-clause right afterwards.
The Chair: Further discussion on Mr Wiseman's motion? All in favour of Mr Wiseman's motion? Those opposed? Mr Wiseman's motion is carried.
The members would note that Mr Wiseman's motion then changes the agenda of the committee, eliminating that 3:30 time to consider the subcommittee report, and that we will deal only with Bill 26 in clause-by-clause. I would point out to members, however, that motions are always in order.
Interjection.
The Chair: I am told that I did not actually have a copy of Mr Wiseman's amendment, and maybe the clerk wants to read that in.
Clerk of the Committee (Mr Franco Carrozza): The motion that was carried states, "Mr Wiseman moved that we proceed with clause-by-clause review of Bill 26 at 3:30 pm followed by the motion on Bill 47 when we finish."
The Chair: I think we better just do that vote again so that everybody's clarified.
Mr Tilson: I have a point of order, Mr Chair.
The Chair: I'll allow a point of order.
Mr Tilson: I know we voted on it and it's carried, but by this motion we've created a rather difficult technical problem. We have a House motion, and I guess it's debatable as to when this committee is to deal with Bill 47 -- before second reading, after second reading, I don't know. There's that debate that I gather is going on in subcommittee, and I don't know the details of it.
Now we have this committee saying, "Well, we'll talk about Bill 47 when we finish dealing with Bill 26." That doesn't necessarily mean we're going to deal with Bill 47 today. In fact, I would hope this committee is going to spend more than just one day on clause-by-clause of Bill 26.
We're now effectively, with this motion, contradicting a motion -- the House leader's motion was put forward by this House. This committee may go on for some time on Mr Wiseman's own motion. Mr Wiseman's motion says we will start clause-by-clause today. It doesn't say we're going to deal with it today; it says we'll start with clause-by-clause today.
Mr Wiseman: No, all it deals with is this afternoon's agenda item.
Mr Tilson: I'm sorry; that is not what your motion says. Your motion says we will deal with Bill 47 at the conclusion, at the end, of Bill 26.
Mr Donald Abel (Wentworth North): It's a debate, so it's out of order.
Interjections.
The Chair: I believe it is not a point of order, Mr Tilson, although I think it points to some irreconcilables here.
Mr Tilson: That's my point.
The Chair: I'll just read this, read Mr Wiseman's motion once more, and then we'll vote.
Interjection: We've created a nightmare, as usual.
The Chair: Mr Wiseman moves that we proceed with clause-by-clause examination of Bill 26 at 3:30 pm, followed by the motion on Bill 47 when we finish.
All in favour? Opposed? It's carried.
Interjection.
The Chair: Motions are always in order, Mr Tilson.
We will return to clause-by-clause examination. The Chair had lost his amendments, but he has now found them. We will commence with the preamble. Unless the committee otherwise orders, the preamble is postponed until all clauses, new clauses, schedules and new schedules have been agreed to. The preamble can be amended if it is rendered necessary by amendments made to the bill, or for clarification and uniformity. It is my opinion that the amendment proposed by the government should therefore be dealt with at the end of the clause-by-clause discussion. We'll then move to part I.
Mr Offer: Has that been somewhat deferred?
The Chair: That would mean deferred, Mr Offer.
All right, we will commence with part I. I see a government amendment. We need someone to put the government amendment.
Mr Wayne Lessard (Windsor-Walkerville): Yes, I'm going to put the government amendment.
I move that the bill be amended by striking out "definitions" in the beginning of the heading for part I, and substituting "interpretation."
The Chair: Pursuant to Erskine May, 21st edition, on page 490, the paragraph on amendments to headings, it specifically states, "The marginal notes or short titles of clauses and the headings of parts of a bill...do not form part of the bill and are not open to amendment." In my opinion, the amendment is out of order. However, the paragraph can be interpreted to imply that since the headings are not part of the bill, therefore legal counsel can change the word editorially without the amendment. It's out of order.
We will now start with subsection 1(1). Are there questions, comments or amendments to subsection 1(1)? Mr Tilson has an amendment.
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Mr Tilson: I move that subsection 1(1) of the bill be amended by striking out the definition of "instrument" and substituting the following:
"`Instrument', except as otherwise provided under clause 122(1)(c), means any document of legal effect issued under an act and includes a permit, approval, authorization, direction or order issued under an act, but does not include,
"(a) a regulation, or
"(b) an approval issued under the Environmental Protection Act, the Environmental Assessment Act or the Ontario Water Resources Act for a waste disposal site or a waste management system within the meaning of part V of the Environmental Protection Act."
The Chair: Thank you, Mr Tilson. An explanation for the amendment?
Mr Tilson: This amendment was encouraged by our hearing the presentation of the Ontario Waste Management Association. I will say that, speaking in general to the amendments of the Progressive Conservative Party, which include this one, the amendments that we're putting forward have two broad principles.
We're concerned that this bill has some bureaucratic duplication, as was put forward by a number of the presenters, particularly AMO, Laidlaw and the Ontario Waste Management Association, to name some. We're concerned that the bureaucratic duplication be minimized. We want to ensure that the integrity of the current environmental review processes is maintained, and we're concerned that this bill creates that. We want any environmental bill to be made fair and equitable for the proponents and operators of new and existing projects.
I think if you look at this amendment we've put forward, you will recall -- I don't know whether you still have copies of the Ontario Waste Management Association. If you have that, if you could specifically turn to page 4 where that topic is dealt with, both the Ontario Waste Management Association and Laidlaw made presentations submitting to the committee that applications submitted to the Minister of Environment and Energy "pursuant to the provisions of the Environmental Protection Act, the Environmental Assessment Act and the Ontario Water Resources Act should not be subject to parts II, IV and V" of this bill.
Waste management and other proposals under all of these acts that I've just listed require a very thorough and rigorous environmental approval process and involve affected members of the public, who have the right at those times to submit comments and make their concerns known.
That's the rationale of this amendment. I could refer specifically to some of the submissions, depending on what comments other members of the committee happen to have.
Mr Lessard: We won't be supporting this amendment. I understand what the effect of it is; however, it only deals with removing waste disposal sites and waste management systems from the application of the act, and nothing else. It would also remove all waste-management-related instruments from the requirements of the bill. This is the impact that it would have.
The public wouldn't be notified of proposals or be able to comment on waste-management-related instruments unless there was a hearing that had been required under the Environmental Protection Act. The public wouldn't be able to request a review of a waste-management-related instrument regardless of its age, whether or not there had been any opportunity for public input into the decision. The public wouldn't be able to request an investigation for contravention of a waste-management-related instrument, and the public wouldn't be able to file suit when the contravention of a waste-management-related instrument is resulting in harm to a public resource.
Examples of waste-management-related instruments that we would be referring to in this case would include things like certificates of approval for waste disposal sites, for transfer stations and also with respect to air emissions or system certificates for waste hauling, and that can include hazardous waste as well. The public wouldn't be notified and be able to take advantage of the Environmental Bill of Rights in all of those circumstances if this amendment were to be successful.
Mr Wiseman: Hearing that, I would like to give Mr Tilson the opportunity to withdraw this amendment. I know his constituents would really want him to withdraw this amendment and hope it wouldn't pass, given the current situation they are facing in their landfill problems with the IWA. I don't think Mr Tilson would want to have this kind of amendment there which would preclude even further the rights of his residents to challenge and to have future challenges of whatever mistakes, errors, omissions or problems would be created should the site in Caledon be successful at the Environmental Assessment Board. I'm going to give him the opportunity to withdraw this.
The Chair: Mr Johnson, Mr Offer and Mr Tilson.
Mr David Johnson: It's been indicated that transfer stations and waste disposal sites would come under the umbrella of the motion Mr Tilson has rightfully put forward, but other facilities that would come under the same umbrella would include recycling plants, for example.
This may be the kind of facility that the government may say should go ahead, that we should put that in as soon as possible and let's get on with the job. Chances are, if such a facility already went through an environmental assessment of some sort, that there could well be an objector and such a facility could be held up. A compost plant could be held up, a material-recycling facility could be held up, a facility that has already gone through some environmental process and already had public hearings, could well indeed have gone through local planning hearing. There could have been planning hearings, there could have been environmental assessment hearings and now, by this bill, it would be subjected to further delays and further public hearings when those hearings have already taken place.
I think perhaps the government members may be looking at one side of the coin. They may be hit with the other side of the coin and find that facilities that they may wish to proceed indeed could be held up with the process.
I was just scanning the clippings from this morning. It's interesting that one of the articles in the Toronto Star today deals with objectors who apparently will be attempting to put the expansion of the Sheppard subway line through an environmental assessment process. This is one of the job creation activities that Mr Rae and this government, the Premier and this government, have touted.
Indeed, there is a quote in the paper today from the executive assistant to the Environment minister, Mr Wildman, that the Sheppard line is one of the two lines where the government would like to see a shovel in the ground soon, and yet we have people demanding an environmental assessment of this line. There's another quote in the paper indicating that to get a hearing for such an assessment will take several months. It could even take longer than that.
So here is one of the major initiatives that the government is attempting to bring forward. It's undoubtedly now going to be held up because there are several groups demanding an environmental assessment, the same sort of situation we're looking at that Mr Tilson is trying to address with his amendment. It's fine and necessary to have public hearings up to a certain level. Once the hearings are held, then it's duplication, it's the same thing over and over again, and it's time to get on with the job.
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The amendment Mr Tilson is putting forward allows for those hearings through the environmental assessment, perhaps through local planning procedures, but suggests that we not have on top of that again another round of public hearings. If we're going to go ahead with Bill 26, then at least let's avoid that kind of duplication and support this motion.
Mr Offer: I'm not necessarily going to respond to the comments by Mr Wiseman, but if he had any questions about how people feel about his government's choosing of waste disposal sites, it would have been nice to have had a member of his government at a meeting last night held in Caledon, where people were looking for some answers.
Mr Tilson: Not one NDP member was there. It's a disgrace.
Mr Wiseman: Nobody told me.
The Chair: Let's speak to the amendment, if we can.
Mr Offer: I was getting to that. I remember the submission made on this issue, I think it was by the OWMA and Laidlaw, and I think the concern they had was due to section 61 and what would follow and section 74 and following; in other words, the applications for review and applications for investigation.
What they were saying was that when they set up a facility of any kind, it goes through a very rigorous examination process: It goes through myriad regulations, myriad discussions between any proponent and the Ministry of Environment. I think the concern was that after going through all of that and receiving approval and then complying with the certificate, which is also defined as a regulation, somebody can come and say, under section 61 and/or 74, that the regulation should be changed.
What would happen is that particular industries would have been complying with the strict requirements of the ministry and, in compliance with the strict requirements, have received an approval. Then after the fact, under sections 61 and 74 and what follows, someone would say, "Yes, you have complied with the law, but we think the rules should be changed."
I think the concern was raised, what effect or impact would that have on amendments to certificates and things of this nature which come in the usual and normal course? I have a problem, and it's not a problem with the amendment but rather with the process which this committee has been thrown into, that the government -- and I'm not talking about government members, I'm talking about the ministry -- has not answered the question, the question being, if a company follows the rules and receives approvals and, after the fact, someone uses the EBR, section 61 and/or 74, and the rules are changed, will that have any effect or impact on the company which had been following the rules as dictated by the ministry but now the rules have somewhat changed midstream?
The government has never responded to that question. If they would say that if the company has respected and complied with the rules and will not be affected by any changes that might occur under section 61 and/or 74, I think much of the concern might be alleviated. The problem is that the ministry officials have not yet responded to what I believe was a very specific question. If you follow the rules and the rules are changed down the line, does that mean you're not following the rules? Can I ask that question?
Mr Lessard: Reality indicates that governments change, and when governments change the rules sometimes change. Information of scientific and economic and social nature changes as well, and when rules change, people are expected to comply with them. I think that would happen notwithstanding the Environmental Bill of Rights.
Mr Offer: Just to continue on that, the question is that if a company has received an approval based on rules which have been set down by the ministry, has gone through all of the processes, has received the approval, has not broken any of the rules, in fact is following that, and then as a result of the Environmental Bill of Rights, section 61 and what follows, the rules are changed, will that put the company in difficulty? They've been following the rules by the ministry. Somebody has sought to change the rules under section 61. Does that put the company in jeopardy? There's an issue of fairness involved here.
Mr Lessard: If the change in the rules took place, certificates would have to be changed, for example, and anyone whose certificate was changed would have a right of appeal as well. They could appeal to the ministry if they didn't agree with the changes to the certificate.
Mr Offer: This underscores the problem I personally have with the bill. If a company has followed the rules and has received approval by the ministry and is complying with that approval and then somewhere down the line someone seeks to change the rules, should we not deal in an issue of fairness as to whether that company should suffer a penalty because it had the audacity to follow the rules? Should there be some protection afforded to companies that obey the law?
This section 61 and what follows says a company can be obeying the law, can have received the approvals, can be following exactly what the ministry says and then one day wake up and get a note that says: "While you were sleeping, we changed the rules. Even though you were following our rules when you went to bed, overnight we changed the rules, so you are in contravention." I don't think it's an answer to say to the company, "Well, you can appeal." Appeal what? They were following the rules. The problem is that the ministry officials respond in the way I fear.
Mr Tilson: I'd like to comment on Mr Wiseman's remarks. As he knows, I have expressed concern that the Environmental Bill of Rights, as being proposed, will not apply to the process that's now going on with the Interim Waste Authority. You're quite right that my amendment would confirm that.
I can tell you that both opposition parties, both the Liberal opposition party and the Conservative opposition party, have made it quite clear that if either of us get into power in the next election, we will repeal Bill 143.
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Bill 143 creates just an awful process, and I know you're experiencing it in your riding. Constituents are most concerned that they haven't had proper discussion, that the IWA has not listened to them; that there's been a terrible process that's been created and they're not looking at all of the possible alternatives; that the IWA is following the instructions of the New Democratic government with respect to waste management, and that is simply to put garbage in a hole in the ground and not look at other alternatives, and there are other alternatives.
Mr Wiseman: Not necessarily a hole.
Mr Tilson: All right, a landfill site, to use the wonderful word, but it's a dump.
Mr Wiseman: They haven't been ruled out.
Mr Tilson: You certainly have ruled out. You've ruled out any discussion with respect to the topic of incineration; you've ruled out all kinds of things. The whole process of the IWA has been flawed from the beginning and continues to be flawed. Even as we speak it's being flawed.
The very fact that your government intends to put three superdumps in the GTA within three years is the most unheard-of proposition anyone has ever heard of, particularly when you look at places like Halton that took 17 years, and I think there's still no garbage going in there because there are still concerns going on. There are grave problems with putting garbage in holes in the ground, and you know that.
I'm concerned about the fact that the proposed bill of rights does not apply to the Interim Waste Authority, and I'll tell you how we'd do it. We'd fix the terrible, terrible mistake you've made, that the NDP has made, with respect to Bill 43. If you have a good environmental process, a good assessment process -- and it wasn't too bad before; you considered all processes. All processes need to be improved, but you've completely destroyed it. You've absolutely destroyed the environmental process.
Having said that, this motion is being made on the presumption that either a Liberal government or a Conservative government will change -- and obviously, I hope a Conservative government -- Mr Chair, I didn't mean to startle you like that.
Interjection: He'll be okay, David, just give him a minute.
Mr Tilson: I would hope another government would change the process you've created. In fact, it will, because both opposition parties have made commitments. The intent of this amendment, if I could get back to the topic, Mr Chair --
The Chair: It's always appreciated.
Mr Tilson: The intent of this amendment, to repeat what I said in my preamble to most of the amendments we will be putting forward, is to do away with duplication that is being created by the bill.
I could go on and on with Mr Wiseman's challenge to withdraw the amendment. I can assure you, Mr Chairman and Mr Wiseman, that I will not be withdrawing it, because we would be doing other things. We would be correcting the goof you people made with Bill 143 and the creation of the Interim Waste Authority. We would be disbanding the IWA and getting back to a proper procedure that existed before.
I'd like to refer very briefly to the Laidlaw report -- obviously, that wasn't listened to -- because that's the intent of this amendment.
"The MOEE has stated that one of the benefits of this bill is that `business will have a uniform and predictable process for obtaining environmental approvals.' Laidlaw is not convinced that the Environmental Bill of Rights establishes a clear-cut timely approval process. If anything, we are concerned that the bill will delay the approval process already in place, in particular, those approval processes established under" -- and then he lists the pieces of legislation, and I can assure you that Bill 143 is not in this batch of pieces of legislation, notwithstanding that Bill 143 is done, of course -- "the Environmental Protection Act, the Environmental Assessment Act and the Ontario Water Resources Act which waste management companies, such as Laidlaw, are subject to obtaining certificates of approval."
In other words, getting back to Mr Offer's excellent comments, companies expect rules and they follow these rules. They get their approvals, they get their certificates, whatever they're applying for, and then all of a sudden, someone who doesn't like the process that's gone forward under the environmental bill can come along and make them go through the whole thing again. That is the fundamental reason for this amendment.
With respect to the Ontario Waste Management Association's presentation -- for those of you who have that presentation, I'm going to refer to page 4 -- "In the case of an application for a new diversion facility, MOEE staff invite comment from the municipality(s) in which the site is to be located. In addition, the Planning Act provides for public consultation when approval of proposed aversion facility requires either a rezoning, site approval or a municipal plan amendment," and there are similar concerns with respect to AMO in its presentation.
"It is our position that making waste management industry certificate of approval applications subject to the provisions of Bill 26 would only result in overregulation." In other words, they're concerned about a fairness, they're concerned about a consistency to a process. "Current ministry practices already recognize the public's right to participate and comment. Bill 26 would only prolong and complicate an already arduous and costly process."
That is the submission for this. In conclusion, I believe that if this amendment isn't passed, because of the word "instrument" and the effect it's going to have on other parts of the legislation, namely parts II, IV and V, it will create grave concern and grave cost, a duplication process to a reasonably good process we already have.
Mr Wiseman: I have to disagree fundamentally with the approach taken by the two opposition parties. The reason is that I think we need recognize that as time passes and as technology and its abilities to ameliorate the worst effects of some of the things that are happening in our society change, regulations and other aspects of bills and other aspects of how this work is done should change too.
I do not believe that certificates of approval should be carved in stone for ever. All you need to do is look at the Brock West landfill site in my riding and you will find that its certificate of approval, which is 12 pages, does nothing to force upon Metro's works department the higher standards and better standards of landfilling.
In fact, if I've got this right, and by no means am I a lawyer, if section 38 of the Environmental Protection Act actually held any power, had any level of force -- and I'll read it to you so that everybody has an idea of what it says. Section 38, powers of the director:
"(1) The director, after considering an application for a certificate of approval, may issue a certificate of approval or provisional certificate of approval.
"(2) The director may,
"(a) refuse to issue or renew;
"(b) suspend or revoke; or
"(c) impose, alter or revoke terms and conditions in,
"a certificate of approval or provisional certificate of approval where,
"(d) The waste management system or the waste disposal site does not comply with this act or the regulations; or
"(e) he considers, upon probable grounds, that the use, establishment operation, alteration, enlargement or extension of the waste management system or the waste disposal site may create a nuisance, is not in the public interest or may result in a hazard to the health or safety of any person. RSO 1980, c. 141, s. 38."
That implies that the director has a broad scope of powers, but let's take a look at what happened in reality. If you turn to Estrin, 1985, Environmental Law, this is where we're getting to the point. It says on page 155:
"Although the regulations prescribe standards for the location, operation and maintenance of waste management systems and sites, they may not be legally binding on any person unless their observance is made a condition in a certificate of approval."
In other words, if it's not in there in the first place, if I've got this right, then you can't do anything about it. They can continue to pollute and to make a mess no matter what.
"However, the designated ministry official may order the owner of any system or site to which the part and the regulation apply and which is not in conformity therewith to conform within the time specified in the order. Where there is non-compliance the official may undertake the work and recover the costs."
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If you go to the next part of this, and I've done a little homework, in the case of Sydenham v Owen Sound, it says, "With regard to prescribed standards for other systems or sites, there is no section in the act or the regulations that specifically provides or implies that the breach of such standards is an offence."
Mr Offer: On a point of order, Mr Chairman: Could we have a moment to gown before we hear the particulars?
The Chair: That is not a point of order.
Mr Wiseman: My whole point on this is that my residents do not want to have to go through what they've gone through for 20 years on the Brock West landfill site where, because the Environmental Protection Act did not apply before June 1980, the town and the region sold the road right of way for $2 and expanded by some seven million cubic metres a landfill site with no hearing. They have suffered the expansion of the contours of the Brock West landfill site in violation of the certificate of approval, theoretically, and have had no recourse. The cover material, which theoretically should have been chargeable under the sections of the act, was not.
If standards change and the ability to ameliorate the worst effects of landfill sites changes, they need to know that the regulations will change and that the certificates of approval will change in compliance with them.
You only need to look at the Brock North landfill site, which is leaching thousands of litres of leachate per day that has to be hauled out to the tune, I believe, of some $700,000 a year in costs to the Metro works department.
My point is that if that dump -- which, I have to point out to you, is one third the size of the current Brock West landfill site and is less than one third the size of the Beare Road landfill site right on the boundary -- if that landfill site goes through and passes an Environmental Assessment Board hearing, I want to know that my residents are protected by the Environmental Bill of Rights and that they can intervene at all times to make sure that section 38 of the Environmental Protection Act, or any other instrument that can be created through the Environmental Bill of Rights and the application to the minister, in effect takes place. To take out that right, from my point of view, as a person who wants to reflect the best interests of his community, would be totally unacceptable.
Therefore, there is no way I could support a watering down or a weakening of these sections of the act. It would leave my residents, who are going to be battling landfill sites and the worst effects of them for the next 40 years, even if EE11 doesn't pass because of Brock West, with no recourse. If you go on to take a look at the Environmental Protection Act, once a landfill site is closed, you cannot come back and order a cleanup.
I think these are very serious implications from the amendment the PCs are putting forward, and I cannot in any way, shape or form support them now or in the future.
Mr Offer: Just a short point. I've listened intently to the discussions which have gone on and I'm wondering, through the parliamentary assistant to the government, whether it would support an amendment to this motion which would exclude "waste disposal site" and rather change that to "waste management system other than a waste disposal site." This would meet with the concerns that have been raised by all parties. Any concern about a waste disposal site would be excluded, but all the other concerns would be addressed.
Mr Lessard: I just want to have somebody from the ministry staff indicate what the effect of that might be.
Mr Offer: It would exclude the disposal site but would include haulage, MRFs and things of this nature.
The Chair: Identify yourself for Hansard, please.
Mr Robert Shaw: I'm Bob Shaw. It would also include removing out "transfer stations." It is possible to establish transfer stations without public hearings. We have had experience that transfer stations quite often create problems with surrounding neighbourhoods.
Mr Offer: Do I take it that you would be supporting that change?
Mr Lessard: I'd say no at this point.
Mr Offer: In dealing with the motion on the table, because so much is centred on the issue of the waste disposal site, is it in order to question whether the Environmental Bill of Rights would be available to individuals who wish to question, on an environmental nature, the policy of the government by excluding from environmental assessment hearings waste haulage and/or any other alternative?
Mr Shaw: Can you run that by me again?
Mr Offer: Basically, under the Environmental Bill of Rights, can an individual, on the basis of what he or she believes is best for the environment, ask for a change in the policy of the government which currently excludes waste haulage and other alternatives such as incineration?
Mr Shaw: Under the provisions of part IV of Bill 26, two residents of Ontario may ask the government to review its policies concerning those matters.
Mr Lessard: I just want to bring to the attention of committee members the protections that are provided under section 68 with respect to reviews. I know that people who have been granted instruments and were operating businesses in compliance with them don't want to be the subject of continuous or endless review processes, and section 68 indicates that reviews of decisions made during a five-year time period preceding the date of the application for review, if they've been made in a manner that is consistent with the intent and the purpose of part II of the bill, aren't going to be the subject of review.
The minister has some discretion in calling for reviews, and there is that five-year time period that provides protection. There is an exception to that, and that is if there is social, economic, scientific or other evidence that the failure to do such a review could result in significant harm to the environment. It's only if there were social, economic, scientific or other evidence indicating that there would be significant environmental harm to the environment that reviews would take place more than once every five years.
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Mr David Johnson: I would submit that there will be any number of submissions that would be possible on a social or economic basis on a monthly basis, let alone on a five-year basis. As to how the minister will exercise that discretion, I think the people involved in the waste management system would really not have much confidence as to how that might be exercised. It's not just the waste management system either. We've heard from the mining association, we've heard from forestry and we've heard from municipalities in terms of capital projects that they may bring forward as well.
It's simply that the bill, as it's brought forward, seems to cast a very wide net, and if it's exercised to the fullness, there could be a considerable number of reviews. There could be a considerable number of reviews in the waste management industry, for example, that we're talking about here this morning.
I think the concerns Mr Wiseman is bringing up are undoubtedly quite valid.
Mr Tilson: Maybe.
Mr David Johnson: Well, maybe, but I would give him the benefit of the doubt. There certainly have been landfill sites, Metro landfill sites, but there are other landfill sites across the province of Ontario that have caused problems for adjacent neighbours. It's only common sense that would have happened.
I question whether we need a bill of this magnitude to address those kinds of problems. It seems to me like it's killing a fly with a sledgehammer to bring in a bill that impacts our life on such a broad basis, not only waste management sites but how municipalities do their business, the mining association and the tens of thousands of jobs that are involved there, and the forestry association. Surely, if the major concern is the leachate involved with landfill sites or the seagulls or the odour or the paper or the waste, that sort of thing, there has got to be a more direct way of dealing with those issues.
As a matter of fact, this bill really doesn't purport to give any more powers in dealing with them, it just brings people in. At least, this is how the thing is being sold. It allows two citizens to lodge a complaint. But if there are problems out there right now, the elected representatives, such as Mr Wiseman and myself and the municipal representatives, should be dealing with those in a satisfactory fashion. It shouldn't be necessary that people should have to have a bill like this to lodge complaints.
Even given that this bill is passed, theoretically there is still no more power in here to deal with the leachate other than what exists at the present time. It just allows people to make those kinds of complaints. But what it also does is throw a monkey wrench into the timing; it involves more hearings. I don't think it's possible to state too emphatically the concern that is out there in several sectors, and we've heard the deputations, that this will be a never-ending process, that there will be review after review and appeal after appeal.
I just want to be on the record. Mr Tilson has quoted from the Ontario Waste Management Association. I want to quote another piece from it, because the projects and the situations that will be impacted are not just the landfill sites that I'm sure would be of concern to all of us in terms of their impact on the community, but they will be green projects, projects that this government and all of us would hope would go ahead on a timely basis. I'm going to quote just a little piece from the Waste Management Association brief, because I think it spells that out. It says:
"As the bill now stands, achieving the province's goals for waste diversion will also be imperilled. During the past few years, the province has been anxious to expedite the approval of new 3Rs facilities. These are the types of facilities that you contemplated when the permit-by-rule regulations were promulgated. Should these same facilities, which all require certificates of approval, be subject to Bill 26, their startup would be further delayed. In a worst-case scenario, it could mean that these facilities would never get established. That means fewer jobs and fewer facilities to help achieve the desired target of waste diversion from landfill."
That target is a 50% reduction, although we had a deputation the other day that said it should be actually 86% rather than 50%. That deputation, I might say, was suggesting storage in above-ground facilities, which I'm sure would require some sort of certificate, and notwithstanding the planning process, the public hearings, all the neighbourhoods that would be invited to participate in determining whether an above-ground facility should be stored in a location, this would again be another level. How many hearings do you go through?
Just to carry on, it says, "We think that Bill 26 would work at cross-purposes with the new 3Rs regulations. This would be especially true if objections to the establishment of such new facilities were based on socioeconomic reasons rather than environmental concerns."
I think the parliamentary assistant has indicated that the minister would have the right to reconsider, on essentially any time basis, for socioeconomic reasons or environmental reasons, so I think that needs to be put on the record.
This is obviously going to go through, but when we sit back a few years from now and wonder why we don't have the 3Rs facilities we need to achieve our goals of waste reduction, why there's been such opposition and why the public sector is shying away from these facilities and not participating, my guess is we'll look back to this bill and we will see that this could be one of the prime reasons.
The New Toronto Street recycling facility, for example, on the Etobicoke lakeshore, which involved an investment of $35 million and created 60 new jobs, requires a certificate of approval. That's the very kind of facility that would come under the jurisdiction of this bill, and probably another level of opportunity to object, another reason for the private sector to stand back and say: "I've got too much red tape already. Am I prepared to go through another level, ie, Bill 26?"
There was a suggestion that the amendment be amended. I guess that's possible. The parliamentary assistant indicated that on the basis of excluding a waste disposal site, he was not prepared to accept or support that amendment. I would suggest that we go one further then, because I think his assistant there suggested that a transfer station could still be a problem. I would suggest that the amendment be amended further, that it would exclude either a waste disposal site or a transfer station, which would address the concern that has been expressed to us. I put it forward on that basis.
The Chair: Just so the Chair understands, Mr Johnson, you are making a motion to amend Mr Tilson's amendment?
Mr David Johnson: That's right.
The Chair: Would you like to read that into the record then?
Mr David Johnson: Yes. Clause (b) would read:
"An approval issued under the Environmental Protection Act, the Environmental Assessment Act or the Ontario Water Resources Act, for" -- now I would delete the words "a waste disposal site or" so it would read -- "a waste management system, excluding a waste disposal site or a transfer station, within the meaning of part V of the Environmental Protection Act."
I'm doing this on the spot.
The Chair: Have we got that written out, Mr Johnson?
Mr Lessard: Actually, I think legally that accomplishes the exact opposite of what you think it does.
Mr David Johnson: All right. I'll have a look at it.
The Chair: Could we just get the precise wording so that we can debate Mr Johnson's amendment to Mr Tilson's amendment. Mr Johnson, would you like to speak to it while we're getting the wording finalized?
Mr David Johnson: The main purpose here is that there are a number of waste management facilities that the private sector will be involved with and they are fully content to go through the public process for them, but the question comes up: How many times do you go through this public process? Once you've gone through it, once you've met all the rules, abided by all the rules and regulations that are in place, then you should be able to go ahead.
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The government is not accepting this because it has concerns with landfill sites and transfer stations. That's the message I've heard from the parliamentary assistant. So I'm saying take them out and have Mr Tilson's amendment applied to all other waste management facilities but not to landfill sites or transfer stations. That's what I'm trying to accomplish.
Mr Tilson: In the spirit of compromise.
Mr David Johnson: In the spirit of compromise. That addresses Mr Wiseman's concern, and I think it addresses the concern that's been expressed by the parliamentary assistant.
The Chair: Are there further questions, comments or amendments to Mr Johnson's amendment to Mr Tilson's amendment?
Mr Tilson: Speaking to the original amendment --
The Chair: We're speaking to Mr Johnson's amendment.
Mr Tilson: I will have an opportunity to speak to my amendment, will I?
The Chair: Yes. Further questions or comments or further amendments to Mr Johnson's amendment?
Mr Wiseman: I do not support this amendment, because fundamentally I believe that groups and people should have reasonable access to being able to challenge outdated certificates of approval or outdated instruments and that communities that are experiencing the negative effects of what the rest of society holds as being good or beneficial results of some activities should have the opportunity to challenge this, to challenge what is happening in those facilities and to cause instruments to be changed or certificates to be changed in the future. They should have the opportunity to challenge and to make sure that state-of-the-art technology is being used, that state-of-the-art techniques are being used, and they should have and should be able to make sure that there is a constant re-evaluation of the standards by which these negative effects are measured.
I will give you some examples. The tritium level in water standards in the United States is 780 becquerels per litre. That doesn't mean much to anybody. In Canada, it is currently 40,000 becquerels per litre. The AECL wants to reduce it to 7,800, which is still too high by some standards.
If this amendment were to go through, what recourse would my community have to challenge that, given that downstream from the nuclear power plant will be the intake pipe for the new water treatment plant in Ajax? What recourse do my residents have to challenge the standards of the Durham-York sewage treatment system that is in between the intake pipe and the nuclear power plant, and that coming out of that sewage treatment pipe is the leachate collection system from the Keele Valley landfill site and the Brock West landfill site?
My community -- let me make this perfectly clear -- suffers more of the negative aspects of what the rest of the community in that southern Ontario region benefits from than any other community, and there is no circumstance in which I will allow this kind of protection to be watered down in terms of this kind of amendment. So I will be voting against this amendment.
The Chair: Mr Wiseman raised a question of fact that the Chair would like to clarify. You discussed tritium, which is a federal responsibility. I think the committee members would all like to know from the ministry how the EBR affects that particular issue, just for clarification.
Mr Wiseman: Water quality standards are a provincial responsibility.
The Chair: Could somebody from the ministry please clarify how that particular issue is dealt with under the EBR?
Mr Lessard: The Environmental Bill of Rights only applies to provincial statutes, policies, regulations and instruments, so if something is regulated federally, it's not going to apply.
Mr Wiseman: The standards are, but the regulation of the water quality standards, which is probably what I should have said, in a broader sense is a provincial jurisdiction. There are a whole lot of water quality standards, regulations, that are in effect that I hope could be challenged under this. If not, I'd like to strengthen this section.
Mr Lessard: If they're provincial regulations, they are subject to the bill.
The Chair: Is tritium, for example, then governed under water quality standards in the province?
Mr Shaw: Speaking specifically to tritium, there's a provincial drinking water objective for tritium, and thus it would fall inside the broad definition of a "policy" in the Environmental Bill of Rights, and policies may be subject to review under the Environmental Bill of Rights.
The Chair: Further discussion on Mr Johnson's amendment?
Mr Offer: Just on the same general point, we heard in the committee that Ontario Hydro, and all of the things that emanate from Ontario Hydro, are outside of the Environmental Bill of Rights, it being a crown agency. Is it possible for someone under the Environmental Bill of Rights to question the exclusion of Hydro or any of Hydro's policies as being wrong in an environmental sense and that it should be included?
Mr Shaw: To try to clarify how the bill deals with ABCs in general, a policy made by a ministry or minister which affects one of its ABCs is subject to the provisions of the bill. As an example, if the Minister of Consumer and Commercial Relations made a policy statement with regard to the Liquor Control Board and it was an environmentally significant statement, it would be subject to the provisions of the bill. A policy created by an ABC is not subject to the provision of the bill.
For all instruments that are prescribed that are issued to an ABC -- as an example, Pickering and Darlington nuclear generating stations both have permits to take water and certificates of approval for discharge, both of which are proposed to be prescribed instruments -- the bill covers those instruments and would apply to those instruments. As well, the component of the bill which deals with investigations applies to ABCs, and the component of the bill which deals with suits also deals with ABCs.
Mr Offer: It raises a number of other questions, because we have the creation of new corporations, the sewer and watermain corporation and a variety of other corporations, which will be doing a number of things. They will, as of their own right, be applying for approvals and things of this nature. It's my understanding from your response that those things to which they apply in the potential construction of sewers and watermains would not fall under the Environmental Bill of Rights.
Mr Shaw: If I can clarify that, and let me go back to Hydro as the example, Hydro needed for the Darlington nuclear generating station a permit to take water. That permit to take water is subject to the request-for-review provisions under the bill. If, by the same token, the new clean water agency needed a certificate of approval to construct a sewage treatment facility, then the provisions of the bill that apply to instruments would apply to that instrument that corporation had asked for, just as it applies to the private sector ones.
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Mr Offer: There was the point made that the bill does not apply to agencies.
Mr Shaw: It does not apply to policy statements by agencies.
Mr Offer: So if Ontario Hydro issues a policy statement which the people of this province feel is detrimental to the environment, if the sewer and watermain corporation issues policies and policy statements as to what it's going to do which people do not feel are in the best interests of the environment, they cannot challenge that.
Mr Shaw: They could not ask for a review of them under this bill.
Mr Wiseman: I would just ask for a slight clarification on that. Are you saying that the policy statement itself cannot be challenged but that the policy implementation could be, that if they were to try to implement a policy under some regulation, that would be challengeable?
Mr Lessard: Only if the implementation involved obtaining certificates, a permit or something of that nature, to carry out the work.
Mr Wiseman: Would they then not also be challengeable under section 38 of the Environmental Protection Act and the director's orders with respect to cleanup, or is that just simply a waste management section of that act?
Mr Lessard: Could you repeat that?
Mr Wiseman: I hope. Would they be challengeable under the other parts of the Environmental Protection Act, and in particular sections that reflect the same intention as section 38, where it says that if there's harm to the environment, the director may act?
Mr Lessard: Yes.
Mr Wiseman: Thank you.
The Chair: Mr Tilson, speaking to Mr Johnson's amendment.
Mr Tilson: Continuing with this, what I was trying to think of, and I can't, really, is what proceedings could be undertaken -- I'm thinking of proceedings by the clean water agency, Hydro and other corporations -- that wouldn't require an application for something but which would follow through with their policy statements, to which this bill would not apply, and yet might contravene the policy statements of a particular ministry.
Interjection.
Mr Tilson: That seems quite likely. My question is to Mr Shaw.
Mr Shaw: If there was a contradictory policy statement, and I think that's the issue you have raised, what the bill provides for is that if two members of the public feel there is a need for a new policy in order to protect the environment, they may make such a request through the Environmental Commissioner to the respective minister. As an example, if Hydro came out with a policy statement which was viewed to be negative to the environment, it would be possible for two people to ask the Minister of Environment and Energy to consider the need for a new policy.
Mr Tilson: But it would have no effect on the crown agency.
Mr Shaw: Crown agencies are generally governed by the policies of their parent ministry.
Mr Tilson: I don't think so. You'd have to amend the legislation. The policies might be quite different. Hence, the bill of rights really is meaningless in this particular area.
Just some comments with respect to Mr Johnson's amendment; in fact, my comments apply to Mr Johnson's amendment and to my amendment, and some remarks that were made by Mr Wiseman with respect to matters in his riding.
I don't know whether what you're saying is correct or not, and for the moment will assume it is. What I'm looking at is that if you've got a process that's flawed. Obviously, I'm going to refer to the IWA process and Bill 143; I always look forward to your challenging me on that one. If you have a process that's flawed, why wouldn't you want to fix that process under the existing legislation instead of creating another process and another system that might come to a different result with a different set of bureaucrats, with an additional cost?
I look at the cost the IWA has encountered to date. They're talking -- I don't know whether it's true or not, whether it's higher or lower -- in the neighbourhood of $50 million to $51 million and climbing. Look at those very expensive processes. And that has nothing to do with the processes that corporations, whether it be Laidlaw or anyone that these processes apply to; very expensive, time-consuming processes. It means jobs; it means a whole slew of things. We want to make sure they're doing these things properly so that they meet the environmental process, and we have a process that's set up.
If it's wrong, if it's flawed, why don't we fix it? Why do we make these people go through another process? Because that's what is believed by the different groups I've referred to. They predict that's what's going to happen, and I haven't seen any evidence or any facts that would contradict that. They go through one process and then all of a sudden they've got to go through another process because two people at the other end of the province don't like it.
Mr Wiseman: They don't necessarily have to go through it again.
Mr Tilson: I'm sorry, but that's what the bill of rights gives to people over the age of 18, the right to put them through it. That's exactly what the bill of rights gives them, and that's why these amendments are being made. Mr Johnson has put forward an amendment in a spirit of compromise because we feel there should be some attempt to reduce the potential of duplication. You obviously don't like the amendment I proposed, so Mr Johnson has proposed another one.
Mr Wiseman: It's not just the amendment. We fundamentally disagree on the principle. I still believe that in five or 10 years or two years or three years or whatever, if the certificate of approval is being violated or if the certificate of approval should be updated to have a new technology or a new process put into place, that should happen. Currently it doesn't happen. The other thing I'd like to point out is that with this amendment the IWA will not have to subject the certificate of approval to a review process.
Mr Tilson: If you want to get into the IWA, I'd love to get into that, because you know its a flawed process; you know the people basically have no rights. If you want to get into a debate about the dumps, I'd be pleased to do it, because you're wrong, and you know you're wrong.
Mr Wiseman: No, I'm not.
Mr Tilson: I'm talking specifically about this bill. You know this bill doesn't apply to the IWA, and I tell you we would fix this IWA process. We'd can Bill 143, we'd can the IWA, and we'd start with a process that's going to work.
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I'm getting to the two amendments that are before this committee. I'm simply saying that if you've got a process that's not working under an existing system with an existing set of -- it's very expensive to run these systems, and they're needed. I'm not --
Mr Wiseman: Brock West is making huge profits -- huge -- and they do nothing.
Mr Tilson: I can't debate your particular example because I'm not knowledgeable about it. Obviously, I will be becoming more knowledgeable about that topic, because I look forward to debating.
I'm simply saying that you don't fix a problem by creating another set of bureaucracy. If you've got a problem, you fix it. You don't create duplication, and you haven't denied that's what you're doing. You're creating duplication with this bill in certain matters. For the umpteenth time, and I appreciate we're getting into repetition, that is the reason and the rationale behind this amendment. We're trying to avoid duplication.
We feel that if you repair these pieces of legislation -- I'll admit that Bill 143 has created problems, and that will be rectified, I can promise you. But there may be other flaws dealing with the situation you have raised in your specific riding, and it may mean that existing pieces of legislation need to be repaired.
What we're trying to do is to avoid going through a process under these various pieces of legislation, the Environmental Protection Act, the Environmental Assessment Act and so on, and then have to go through a similar process with the environmental bill because two people from the other end of the province object to something, when perhaps what should be done is amending the existing pieces of legislation. This process you're creating is a very expensive process, and I would hope, particularly in these times of restraint, that you want to provide fairness to the public, to give them rights, but at the same time at the minimum cost to the public.
With what you're doing with the duplication, not only to the government but, more importantly, to the people who are creating jobs in this province, whether it be the Laidlaws and all the people under the various applications, they're very concerned. They're concerned about duplication, job losses, costs to their company, whether they can perform in the future because of overregulation that will be created by the bill of rights.
The Chair: Is there further discussion on Mr Johnson's amendment to Mr Tilson's amendment?
Mr Lessard: In the event that there isn't a change in government and therefore you don't have the opportunity to amend or repeal Bill 143, you might be able to resort to the provisions of the Environmental Bill of Rights to ask for a review, and that might lead to an amendment, by referring it to the Environmental Commissioner. That would be a right you could have.
There is an attempt in the bill to avoid duplication, and that's in sections 30 and 32. Specifically, the minister doesn't need to place instruments or policies or regulations on the register and therefore be subject to the provisions of the bill if these things have already been considered in a process of public participation or are required to be considered in a process of public participation. That would mean that if there is a public process that's provided for in some other place, they wouldn't need to be placed on the register.
Section 32 also refers specifically to decisions that have been made under the Environmental Assessment Act. Clause 32(1)(a) refers to decisions that have been made by tribunals under an act, and that could refer to decisions that have been made after appeal to the Ontario Municipal Board, for example. Those provisions are provided specifically to avoid duplication of process.
Mr Tilson: To respond briefly to Mr Lessard's last comment, dealing specifically with sections 30 and 32, I'd like to take the example that was provided in the Ontario Waste Management Association's paper and presentation. They talked about certificates of approval for, for example, matters involving the 3Rs. It seems to me they go through making an application for approval of a 3Rs facility and obtain that under the existing legislation.
Then we look to Bill 26, sections 30 and 32. I emphasized in my comments during questioning of specific delegations the terrific discretionary opinion that the minister now has with Bill 26. The minister may not have been satisfied, may not have liked the existing process it went through, notwithstanding the fact that it was a fair process that went through a proper hearing, through an independent group of people, and it was decided that a particular facility should be granted.
So two people from another end of the province come along and say to the minister, who doesn't like it because he or she may have been contesting that particular application, for some reason -- I appreciate I'm creating a hypothetical situation, but it's that minister's opinion, which can work both ways. The minister says, "Well, I'll fix them," and simply says, "I agree with you two people over 18 and we're now going to put the people who are applying for a 3Rs facility through a similar process under Bill 26."
So sections 30 and 32 do say it's in the minister's opinion and provide that discretion, but that discretion could be mischievous or it could be genuine and could indeed create problems to a system which an applicant has already gone through, a proper system that is already existing in which an independent body has determined and approved a particular facility.
I emphasize that, for any number of reasons, what you're doing here is creating the potential -- and I know there are sections in the bill that talk about frivolous applications, but the fact of the matter is that it's conceivable that someone goes through a particular application and then for whatever reason, "in the minister's opinion," they can go through it again. That's the reason for the amendment. I challenge Mr Lessard on his reference to sections 30 and 32.
The Chair: Are there further questions, comments or amendments to Mr Johnson's amendment to Mr Tilson's amendment? If not, shall Mr Johnson's amendment carry? All in favour? Opposed?
Mr Johnson's amendment is lost.
Mr Tilson's amendment is now on the floor. Are there further questions or comments to Mr Tilson's amendment?
Mr Tilson: I have a question to legal counsel, which I tried to alert him on. If you go through a process under a particular piece of legislation, whether it be the Environmental Protection Act or some other similar legislation, and that reaches a certain result, and then we go through a process under Bill 26 which reaches a different result, doesn't that create a bit of a legal mire?
Mr Jim Jackson: There are several different processes provided under Bill 26. The only two that could possibly reverse it don't include the review procedure. They include an application to appeal and an appeal, in the case of Ministry of Environment and Energy statutes, to the Environmental Appeal Board. There, if that application for leave to appeal is granted, you won't have reached the end of the process yet. So you're not at the end of the process and then having the decision reversed; you're still in the process.
The other remedy that could have the effect of reversing an earlier decision would be the suit --
Mr Tilson: The civil suit.
Mr Jim Jackson: The civil suit. But that only arises or can only arise if there's been a contravention of the statute. Once there's been a contravention of the other statute, not the Environmental Bill of Rights but the Environmental Protection Act or whatever the other statute happens to be, I don't think we're in a position of somebody having an approval and having reached the end of a process and having abided by it and then having it upset on them.
Mr Tilson: My real question is that you go through a process by an independent tribunal to reach a legal decision, quasi-administrative or whatever it's called, that you reach a legal decision and then essentially it could be overturned or stalled by a commissioner.
Mr Jim Jackson: By an appeal. No, the commissioner doesn't have the right to stall anything. The minister conducting a review doesn't result in a stay of anything. If a person has an approval, he can proceed.
Mr Tilson: As I see it, someone makes an application for one of these facilities, for example, and they get their approval. Do I --
The Chair: Mr Tilson, we will have to adjourn and take up this stimulating discussion at 3:30 this afternoon.
The committee recessed from 1202 to 1536.
The Chair: The standing committee on general government will come to order. This morning, before we were called to a vote, we were discussing Mr Tilson's amendment to subsection 1(1).
Mr Tilson: I was asking a question of legal counsel and I'd like to continue with that process, if I could, if legal counsel could come to the front.
The Chair: For the purposes of Hansard, would you identify yourself, please.
Mr Jim Jackson: M.B. Jackson, legal counsel, Ministry of Environment and Energy.
Mr Tilson: Mr Jackson, you partially answered my question, but I'd like to have that clarified. We took the example of an application for a facility under one of the pieces of legislation that's in the amendment. That facility makes a decision. Then two or more people over the age of 18 decide to exercise their rights under the Environmental Bill of Rights and they start going through a process.
I guess the first question is, is the Environmental Bill of Rights able to come to some sort of result either through civil proceedings or some action of the minister? You indicated the commissioner could not, but is there some way as a result of proceedings that would be taken under the Environmental Bill of Rights by citizens that could overturn or modify or have some effect on a decision that was made by a tribunal?
Mr Jim Jackson: Yes. You started by referring to any two persons. That's the number of people who can apply for review of a policy, act, regulation or instrument. The carrying on of that review does not stop anything from happening under the instruments that have already been issued. After the review is completed, the minister or his delegate has to inform people of the conclusion of the review.
If you were talking about something happening immediately after this other approval process had been completed, it is quite likely that the minister would determine that a review was unnecessary, because one of the criteria for determining a review is unnecessary is that it is a review of a decision made during the five years immediately preceding the request for review.
Mr Tilson: Although the minister, in deciding on those sections, does have the discretion if he or she feels very strongly. Notwithstanding what that says, he or she could have the discretion to ignore that decision.
Mr Jim Jackson: You mean and carry out the review anyway?
Mr Tilson: Yes.
Mr Jim Jackson: Yes, the minister would have to determine that there is social, economic, scientific or other evidence that could result in significant harm to the environment and that particular evidence wasn't taken into account at the time of the original decision. The result of the review itself doesn't interfere with continued actions under the instrument. The person who has the instrument can still continue to act under it.
Mr Tilson: The whole principle is a tort.
Mr Jim Jackson: What could happen as a result of a review is that the minister or the delegate could determine that an approval ought to be revoked if there's an authority in the original statute that authorizes such action. Under the Environmental Protection Act approvals can be revoked if the statutory grounds provided in those statutes are met.
Mr Tilson: Yes. As well as that, it would seem to me that the principles of nuisance and tort will have been expanded as a result of Bill 126 with respect to an individual's rights and they too could bring action and conceivably make an application for and possibly obtain an injunction. My difficulty is, I'm trying to create some hypothetical situation and I don't know of any.
Take the example that Mr Johnson referred to this morning, I think in one of the papers -- whether it was a Laidlaw paper -- of someone applying for a facility and a government and/or citizens feel very strongly and object to a decision that's been made. It seems to me there are two options.
One could go through and the minister and/or the citizens could stop the proceedings by obtaining a court injunction to stop the proceedings while the process under the environmental bill is under way, notwithstanding a decision that has been made under one of those pieces of legislation and referred to in the amendment. Secondly, it would seem to me that after that process the individuals could then go to court. They may have good grounds; they may not have good grounds.
I guess the principle of this whole thing --
Mr Jim Jackson: You've already got them into court. Maybe I'm misunderstanding.
Mr Tilson: The only way you have them into court is with respect to obtaining an injunction, and I'm not even so sure they can obtain that. I'm assuming they can.
Mr Jim Jackson: Where a person has contravened or will imminently contravene an act, yes.
Mr Tilson: Yes, I'm there, but I'm also in the process simply of the bill, of having the review. Is the person --
Mr Jim Jackson: Yes, but that's a different part of the bill. You don't get injunctions in that other part of the bill.
Mr Tilson: I'm trying to separate them. You're right. I'm trying to separate them. I guess my point is that the Ontario Waste Management Association, Laidlaw, AMO, the three main ones that came before the committee, are right that the potential of duplication is there because of court challenges or delays or otherwise, which in the past -- and I'm not asking you a question, I'm making a statement. It's unfair of me to ask you if it's a policy question, I suppose. I would like to. I'd love to --
Mr Jim Jackson: The bill has been drafted in order to not entirely eliminate but greatly reduce any possibility of duplication because you have to cross over hurdles. In the case of the review, for example, one of the hurdles is that it not be a recent decision unless that ground we were talking about is satisfied.
Mr Tilson: In the discretion of the minister.
I believe the point has been shown, the concern of duplication, by three groups. AMO, the Ontario Waste Management Association and Laidlaw -- there may have been some others -- all said the same thing, the fear of duplication. It may be remote, it may not be remote, but the fact of the matter is it's there.
That is the purpose of the amendment, to stop or reduce potential duplication. Members of the public have their rights under these existing pieces of legislation. Mr Wiseman has given a number of examples in his own personal experience, his own riding, where some of the legislation may be faulty. I would say, if that is the case, those pieces of legislation should be changed, if what he says is true, not creating another bureaucracy that's going to end up duplicating an already very thorough system and hence creating uncertainty.
There's no question, to do things in this world -- just to pick on Laidlaw, because they are one of the ones that made the application, they have to get funding together. They have to get moneys together to do things. They have to have some sort of certainty as to what they're doing. If they know they may have to go through two hearings or two processes, not necessarily hearings but two processes, very expensive processes that could be time-consuming, and time is money, they won't like that. People who work for them won't like that or what they're trying to do.
I would just ask the government members that if they don't like this amendment, they at least stand this provision down. I don't care if you think of something else, but at least consider some effort to stop or reduce the duplication that I believe has now been admitted by counsel for the ministry.
Mr Offer: Just to carry on on this point, and I appreciate counsel's answers to the questions, under the EPA there is a process whereby approvals can be reviewed and revoked, I would imagine. Under the Environmental Bill of Rights as proposed, there is also a process in which approvals can be reviewed and potentially revoked.
Mr Jim Jackson: No.
Mr Offer: They cannot be revoked?
Mr Jim Jackson: No. What could happen as a result of the review under the Environmental Bill of Rights is that it draws to the attention of the person who has the jurisdiction under the other statute to revoke an approval that he should commence applying the process under the other statute.
Mr Offer: I just have to get this clear in my mind. An individual wishes to have an approval reviewed. The approval is so reviewed under the EBR, which triggers another process potentially under the EPA which might result in the revocation of that approval.
Mr Jim Jackson: Yes. That process under the EPA can be triggered by the EBR or any one of a number of other ways.
Mr Offer: That was my next question, but that process can also be triggered directly through the EPA or a variety of other ways.
Mr Jim Jackson: Yes.
Mr Offer: I'm envisaging a fork and I see a number of prongs going down to the same stem. One is the EBR, one is the EPA, a variety of other things, going down to the single stem of revoking this, whatever the decision may be.
The question is, if that is the case, and I think that would be the case, are there different standards for each of the different pieces of legislation, and if there are, is someone excluded from using those other standards if the first route that they take they fail?
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Mr Jim Jackson: The standard for revocation will be the standard that is in the act the instrument was originally issued under.
Mr Offer: Let me, then, in my question be more blunt. If two individuals attempt to use the EBR to have a particular decision reviewed and/or revoked under another piece of legislation and they fail -- it's decided by the minister that the criteria just were not met -- can they then go under the EPA? Are they stopped from taking another route if the first one has been unsuccessful?
Mr Jim Jackson: Just as in the present case, they can take whatever routes they want.
Mr Tilson: There's a choice.
Mr Offer: Mr Tilson mentions choice, and that's correct. It's try the A route, and if you're not successful, then you'll try the B route, and if you're not successful, then you'll try the C route, and if you're not successful, then you'll try the D route.
The question that we have to ask in the committee in terms of this matter is, is it proper that a person, first, have the ability to take a route? I think we would all agree yes. But the second question is, if that is the case, should we give every individual the ability to continue on different routes even if they are met with a negative response each and every time? I'm just trying to figure out the fairness of this thing.
Mr Jim Jackson: There are many routes available at the present time. "Many" is perhaps an exaggeration. However, if people are trying subsequent routes, the people those routes run through usually pay attention to the fact of what has gone on before, and it becomes easier for them to deal with a matter quickly, unless somebody has come up with new information or circumstances have changed over a period of time.
Mr Offer: Yes. I appreciate the response. There are just so many other questions that should most properly be asked in this matter, especially around section 68 and what follows. Thank you.
Mr David Johnson: Maybe to give a specific case then, since we're talking about cases, let's deal with a case that's before us in this morning's paper.
Mr Jim Jackson: I haven't read this morning's paper yet. I've been busy.
Mr David Johnson: Let me describe it to you. The Toronto Transit Commission has had numerous public hearings. They've had an environmental assessment document that's filed with the Ministry of Environment with regard to the Sheppard subway, the creation of the Sheppard, and the Scarborough RT.
The paper says it's part of Premier Bob Rae's "major job creator" and, to quote the paper, it is "now threatened with delays by environmentalists," among others.
It quotes here an Anne Woodsworth, who is --
Mr Jim Jackson: I'm familiar with her.
Mr David Johnson: You're familiar with her. Well, according to Anne Woodsworth, "Scarborough and Sheppard `are two of the lines the government would like to see a shovel in the ground soon...next year.'"
Then it comments on a Mr Serge Bastien.
Mr Jim Jackson: Yes, I've heard of him too.
Mr David Johnson: You've heard of him too. It quotes him as "the provincial official who is reviewing the environmental assessment documents prepared by the Toronto Transit Commission in support of the project," and he says that he'll try to resolve the issues. But he goes on to say that it will take several months before they could get a hearing. I don't know how long the hearing would take if you did have one, but those hearings usually take years rather than months.
If these groups are successful in getting an environment assessment review of the Sheppard line, then obviously it's going to be some considerable period of time before that project goes ahead. If during that process they're unsuccessful in stopping it, would they then be able to invoke the Environmental Bill of Rights either after that process or at the tail end of that process? What would stop them from invoking the Environmental Bill of Rights and starting another process in place to delay the project even further?
Mr Jim Jackson: What you have said indicates that an environmental assessment has been submitted by the TTC or Metro. It's in the process of a review being prepared. Perhaps the minister has issued a notice of completion of the review, I don't know.
The next step would be for the minister to consider comments that were received as a result of that notice and then decide to either accept or amend and accept the document, the environmental assessment, as being a reasonable basis on which to make a decision with respect to whether the work should be approved. Then he would determine, with the approval of the Lieutenant Governor in Council, whether the work should be approved.
So we're assuming we've got through to that stage, either one of those two decisions I mentioned for the minister to make: acceptance of the document or approval of the work. It could have gone over to the Environmental Assessment Board for a hearing there. We assume the minister's either approved it or it's gone through an Environmental Assessment Board hearing and the Environmental Assessment Board has approved the work.
The bill of rights provides that the decisions that are made under the Environmental Assessment Act and the sort of little decisions that get made after that to implement the environmental assessment decision are not instruments that are subject to the appeal process.
In connection with the review process, somebody could think up a question that would fit under the act, but the minister would be faced with the provision of the Environmental Bill of Rights that says if you're asking for a review of a decision that has been made within the previous five years, it won't be done unless one of those things happens.
If somebody could dream up a way of doing it, it could be dealt with quickly and the original decisions and the outcome of them confirmed by the minister, assuming it's the Minister of Environment that it's referred to, determining it's a recent decision and therefore ought not to be reviewed further.
Mr David Johnson: This is the scenario that I'm a little bit worried about: Suppose that, as you say, this document goes before the minister; the minister has the Better Transportation Coalition indicating we must have an environmental assessment, he has Energy Probe saying we must have an environmental assessment and he has several individuals who apparently call themselves environmentalists.
Mr Jim Jackson: There is an environmental assessment. So it's not a matter of there must be an environmental assessment; there is one.
Mr David Johnson: All right. Well, there seems to be some doubt here.
Mr Jim Jackson: I think people are probably using their terminology differently.
Mr David Johnson: I'm talking about a hearing.
Mr Jim Jackson: You're talking about a hearing; that's different from an environmental assessment.
Mr David Johnson: A hearing, that's right. I'm sorry. All right. So there must be a hearing, let me say that. These people are saying there must be a hearing and the minister, with the information, wanting democracy to rule the day, says, "All right, we'll have a hearing."
Mr Jim Jackson: He's got some statutory responsibilities under the Environmental Assessment Act. He can determine that the requirement for a hearing is frivolous and vexatious.
Mr David Johnson: They don't do that very often, though.
Mr Jim Jackson: I assume that's not going to be the case. They'll have legitimate reasons for requiring one. He can also determine that a hearing would cause undue delay and make a decision instead of referring it to a hearing.
Mr David Johnson: That's dangerous ground, though.
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Mr Jim Jackson: Maybe it is, maybe it isn't. It would depend on the circumstances of the particular case. He can also determine that the issues that are provoking the requests for a hearing have already been adequately dealt with and therefore a hearing is unnecessary. Therefore, you don't need to have a hearing about the whole thing because the issues have already been dealt with.
Mr David Johnson: Right. All of that's possible, but it's quite within the realm of possibility that he could choose to go ahead with the hearing and then the hearing would take -- I don't know how long a hearing would take --
Mr Jim Jackson: Months.
Mr David Johnson: -- months to schedule it.
Mr Jim Jackson: You said years rather than months. I think it's months, but it's probably many months.
Mr David Johnson: Many months, so we're certainly beyond next year in terms of getting a shovel into the ground, as Anne Woodsworth has indicated, if we go through an environmental hearing. All right then, whatever period of time that takes.
Suppose that is completed and concluded and suggests that the project should still go ahead. The door is still open, as I understand it, for members of this coalition of Energy Probe and the environmentalists who are involved to say, "The hearing did not consider these social and economic concerns that we have. We've put these forward, but they didn't understand them," or "There are a few new ones that we have thought of since the hearing. We have these concerns and we are invoking the Environmental Bill of Rights and we want a review under the Environmental Bill of Rights," notwithstanding that they've still had the hearing. That's a possible scenario. You're saying that --
Mr Jim Jackson: That's a possible scenario, that review being requested under the Environmental Bill of Rights or being carried out under the Environmental Bill of Rights doesn't prevent the TTC from continuing to act in accordance with the approval it got.
Mr David Johnson: It doesn't, but they're doing so against the risk that the Environmental Bill of Rights process could determine that there is some problem, could uphold the groups, could implement certain measures that cause great difficulties in the plans that the TTC has rendered. But it's one more possible step in there. You may say there's some likelihood that it would happen or wouldn't happen, but at least it's possible that there could be that one additional step.
Mr Jim Jackson: Yes, it is possible.
Mr David Johnson: I think that's the concern that AMO's expressing too with regard to some of the municipal planning, and I think that's the concern that the Ontario Waste Management --
Mr Jim Jackson: That's not a new concern. Most large municipal undertakings require approval by the Ontario Municipal Board, and the Ontario Municipal Board Act, since it was passed in the last century, has had a provision in it that enables people to apply to the Ontario Municipal Board to review their decisions at any time. It hasn't interfered with the municipalities' ability to undertake large projects.
Mr Wiseman: I'd like to go down this route just to make sure I understand the process. If an undertaking is being put forward and suggested by a municipality, it usually runs an ad in the newspaper. That's either required by bylaws or just out of protocol. I think there's also something in the Planning Act and the Municipal Act that requires that they do this ad. Am I correct?
Mr Jim Jackson: It's subject to the Environmental Assessment Act, if he wants any hope of getting through to the end of the process, a proponent is going to carry on public consultations and publish advertisements before he submits his environmental assessment to the minister.
Mr Wiseman: Having placed the ad, then all the concerned citizens who would like to participate in the process would be brought together with the proponent and would discuss the plans, the process and the issues. Am I correct?
Mr Jim Jackson: Yes.
Mr Wiseman: At those meetings, they would be asked -- actually they're negotiations, if my experience has anything to do with this -- to sign off on the things that they all agree to. In so doing, then you can put that particular issue to rest and you don't need to worry about further complications. If somebody doesn't agree at that process, it is their right to request a full environmental assessment hearing.
Mr Jim Jackson: If the matter is subject to the Environmental Assessment Act, yes.
Mr Wiseman: I don't know if it's a colloquialism or whatever, but it's usually referred to as a bump-up.
Mr Jim Jackson: It's referred to as a bump-up when somebody is proceeding under a very general type of approval they've received under the Environmental Assessment Act. For a class or a group of undertakings, then the individual project can be bumped up, yes.
Mr Wiseman: Okay. They request that.
Mr Jim Jackson: Yes.
Mr Wiseman: At that point the minister will be asked to review it and to say either, "Yes, we are going to go to a full environmental assessment hearing," or say, "No, we're not."
Mr Jim Jackson: That's right.
Mr Wiseman: If the ministry decides that it doesn't want to go to a full environmental assessment but that there are still outstanding issues, it can go to the Environmental Assessment Advisory Committee, ask it to make an investigation and give a time period and ask it to make suggestions.Is that correct?
Mr Jim Jackson: Yes. Sometimes staff members such as Mr Bastien, who was mentioned, may try to resolve things at an early stage before they get to the formality of an EAAC review. If that fails, then it can be referred to the Environmental Assessment Advisory Committee.
Mr Wiseman: Up to that point, a lot of people have been involved in that process and really there is no cost involved or relatively little cost involved except for time on the part of the participants, and perhaps there's some money on the part of the proponents to pay for people to come to evening meetings. But it's not really an expensive process up to this point.
Mr Jim Jackson: No. The EAAC process itself is very informal.
Mr Wiseman: There can be recommendations, say 10 or 15, and, "Fulfil all of these and then you can go ahead."
Mr Jim Jackson: It doesn't often get that far, but when it gets that far that kind of outcome is not unusual.
Mr Wiseman: At this point everything will be done under the Environmental Protection Act and under the Environmental Assessment Act or the Planning Act or the Municipal Act or one of these acts.
Mr Jim Jackson: Yes.
Mr Wiseman: If the issue can be resolved, it will be resolved there.
Mr Jim Jackson: That's right.
Mr Wiseman: We've heard from a large number of environmental groups which have said, "We really don't have the funding and we don't have the inclination to go that far, to take it to court, to environmental assessment." So how likely is it that the next point is to go to a full environmental assessment hearing?
Mr Jim Jackson: If they do go to a hearing under the Environmental Assessment Act, intervenor funding will be available under the Intervenor Funding Project Act. However, that doesn't pay all the costs of a party, so it'll still have a significant financial outlay that it'll have to make in order to do that.
Mr Wiseman: Last question: Under the Environmental Bill of Rights, after all of that has taken place, they can ask the minister to review the decision, review the law and ask for a different policy to be created. What will the Environmental Bill of Rights give them the right to ask for after that whole process has gone through? Can they ask them to do it all over again?
Mr Jim Jackson: No.
Mr Bernard Grandmaître (Ottawa East): Is there an appeal process?
Mr Tilson: No.
The Chair: Order.
Mr Wiseman: In other words, they can ask the minister to review the law or the regulations and ask for new ones.
Mr Jim Jackson: That's right.
Mr Wiseman: But they cannot go back and say, "Minister, we want you to do the full environmental assessment over again."
Mr Jim Jackson: No.
Mr Wiseman: They can say: "This item within the certificate of approval doesn't comply with current regulations. We'd like you to take a look at it."
Mr Jim Jackson: If it didn't comply with the law, they could ask the minister to enforce the law, yes.
Mr Wiseman: At the end of the day, if the environmental group cannot convince all of these people that its position is right, my guess is that it won't be going to court; my guess is that it will feel it won't win and it won't go to court. I just wanted to get that process out. I'd really like to move along now.
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Mr Offer: Following up on this last series of questions by Mr Wiseman, if that so-called group were rejected after going through all of that process, could it use another process to do the same thing?
Mr Jim Jackson: I don't know. People have obstructed roads and --
Mr Offer: No, I don't mean that. I don't mean it in that way. Can they use another piece of legislation possibly to restart the whole process again?
Mr Jim Jackson: It's difficult to answer that question in the abstract.
Mr Offer: I understand that.
Mr Jim Jackson: But generally the answer is no, there aren't any other pieces of legislation by the time you've --
Mr Grandmaître: They can't appeal to cabinet?
Mr Wiseman: Well, you can always appeal to cabinet.
Mr Grandmaître: I'm asking him the question. Thanks, Jim.
Mr Jim Jackson: There is no provision for an appeal to cabinet under the Environmental Assessment Act, but there is a similar process that is available under the Environmental Assessment Act if they can persuade the Minister of Environment that the matter ought to be brought to cabinet, because under the Environmental Assessment Act it's not an appeal process. It provides the minister can change a decision of the Environmental Assessment Board, with the approval of cabinet, within I think 30 days of the decision having been made.
Mr Grandmaître: You just said --
The Chair: No, Mr Tilson's next.
Mr Tilson: He's on a roll.
Mr Grandmaître: You just said if the minister wants to bring it to cabinet. Isn't it the responsibility of the Premier to bring it to cabinet and not the minister?
Mr Jim Jackson: Under the Environmental Assessment Act the statutory provision in it for changing a decision by the Environmental Assessment Board is for the minister, within 30 days of the Environmental Assessment Board having made its decision, to obtain the approval of cabinet to change it. There's a bit of red tape involved in getting approval to cabinet, so there's a provision in the statute that during the 30 days, if the minister is inclined to be asking cabinet to do that, he can extend the 30-day period. But once the 30-day period is up, it's final. If the minister himself has made the decision on the approval, if there hasn't been a hearing, the minister does need the approval of cabinet to make that decision. Then there's no provision in the act for review of it. It's final.
Mr Grandmaître: And the minister has no responsibility to bring it to the attention of cabinet within those 30 days?
Mr Jim Jackson: He has a political responsibility to do what is right, and I would expect in many cases he would bring it to the attention of cabinet.
Mr Grandmaître: You would or you hope?
Mr Jim Jackson: He may get some off-the-wall, frivolous request from somebody and decide it's not worth cabinet's time to bring it to their attention.
Mr Grandmaître: So the minister can, on his own judgement, say it is frivolous, and that's it.
Mr Jim Jackson: Yes.
Mr Grandmaître: And that's the end of the road.
Mr Jim Jackson: Under the Environmental Assessment Act it's completely in the control of the Minister of Environment, subject to him having to get cabinet approval if he's making changes.
Mr Tilson: Listening to the processes that were walked through by Mr Johnson and Mr Wiseman, does the Environmental Bill of Rights provide any additional rights than what he or she already has now?
Mr Jim Jackson: It provides the right to get fully reasoned answers. Anybody can always write to a minister and ask him to review a decision anyway, but under the Environmental Bill of Rights there's a process that has to be followed and the minister has to respond with reasons to the issues that are raised in a request.
Mr Tilson: That's assuming the minister cooperates and he or she exercises his or her discretion. That's assuming that.
Mr Jim Jackson: To conduct a review.
Mr Tilson: That's right. So assuming that we have a responsible minister --
Mr Jim Jackson: If he exercises his discretion not to conduct a review, then he has to give reasons for that.
Mr Tilson: All right, but let's get back to rights, because that's what this bill's all about. Doesn't a person who's applying under the bill of rights have those same rights under the rights that were described in the process in the hypothetical situation Mr Wiseman was talking about or the factual situation Mr Johnson was talking about?
Mr Jim Jackson: He doesn't have the legal right to get full reasons for whatever decisions are made --
Mr Tilson: Wouldn't it be very simple for an amendment to be made to the existing legislation to require that?
Mr Jim Jackson: It would be very simple for an amendment to be made to the existing legislation. The Environmental Bill of Rights, however, applies to many pieces of existing legislation, so it would take many amendments to do it.
Mr Tilson: To different pieces of legislation.
Mr Jim Jackson: That's right.
Mr Tilson: At least the three that are in the proposed amendment before the committee now. How many pieces of legislation would there be?
Interjection.
Mr Tilson: Did someone say 20?
Mr Shaw: Yes, 20 pieces of legislation are currently under the bill.
Mr Jim Jackson: With the possibility of additional ones being added by regulation.
Mr Tilson: I guess, sir, it's really a response to Mr Wiseman's argument against the amendment. Couldn't you have an omnibus bill that would cover all of these acts, in an effort to avoid additional bureaucracy, to give rights to citizens of this province, to give citizens of this province additional rights under those bills without creating a very expensive bureaucracy? Perhaps I shouldn't ask that question. Perhaps it's just a question I'll leave open for the committee. It's unfair of me to ask you that. It's a question I leave open to the government members.
The Chair: I have Mr Offer and Mr Wiseman. I would remind members we're speaking to a motion concerning the definition of the word "instrument." I realize this is a broad-ranging discussion but maybe we could make sure we at least pay some lipservice to always coming back to debating that motion.
Mr Offer: Speaking directly to the amendment at hand, and especially in response to your last question, you said the difference between this legislation and other pieces of legislation is that in the EBR there is the onus, responsibility, on the minister to respond to, for instance, an application for review, which doesn't appear in other pieces of legislation unless you had an omnibus piece of legislation to deal with the 20 pieces of existing legislation.
Mr Jim Jackson: That's right. There's one other level on top of that: The bureaucracy, which may or may not be expensive, does get to report on the minister's response to the Legislature.
Mr Offer: I have a feeling that might be discussed later on. However, one of the things I see in the bill, based on your question, is that the responsibility on the minister is to give a brief statement for the reasons for his or her decision. I'm wondering why would there be the word "brief." To me, this reads that the minister's going to send the person a letter, as opposed to what I sort of envisaged as more of a real response. I just wonder why a brief statement of the reasons is required. It's just a strange section.
Mr Jim Jackson: I wasn't involved in choosing that word. Somebody else might know why.
Mr Offer: How about staff? Do you know? No one knows why they inserted the word "brief." At least, that's what I'm hearing from the ministry staff.
Mr Jim Jackson: I assume it was chosen to indicate that somebody wouldn't be expecting something the equivalent of a long judgement from a court.
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Mr Grandmaître: A yes or a no.
Interjection: That's a brief answer.
Mr Wiseman: Since I am the last speaker on the list, I think my questions have been answered. I'd just like to call the question.
The Chair: Mr Wiseman is moving that the question now be put. I find that motion to be in order. All those in favour of Mr Wiseman's motion that the question now be put? Opposed? Mr Wiseman's motion is carried.
We will now deal with Mr Tilson's motion.
Mr Tilson: A recorded vote on that.
The Chair: Mr Tilson is asking for a recorded vote. All in favour of Mr Tilson's amendment to subsection 1(1), the definition of "instrument," raise your hands.
Ayes
Grandmaître, Johnson (Don Mills), Offer, Tilson.
The Chair: Opposed?
NAYS
Abel, Fletcher, Lessard, Mathyssen, Wessenger, Wiseman.
The Chair: The motion is lost.
The next amendment that I see is also one from the Progressive Conservative caucus.
Mr Tilson: I move that subsection 1(1) of the bill be amended by adding the following definition:
"`wetland' means:
"(a) lands that are seasonally or permanently covered by shallow water so that the presence of abundant water has caused the formation of hydric soils and has favoured the dominance of either hydrophytic or water tolerant plants, and
"(b) lands where the water table is close to or at the surface so that the presence of abundant water has caused the formation of hydric soils and has favoured the dominance of either hydrophytic or water tolerant plants,
"and includes swamps, marshes, bogs and fens but does not include land used for agricultural purposes."
Could I speak to the amendment?
The Chair: I would appreciate it.
Mr Tilson: This amendment is put forward as a result of submissions that were made to us by the Ontario Farm Environmental Coalition and the Ontario Federation of Agriculture. I think there were two or three of them here who raised this concern. In their written presentation, which I'll be referring to, on page 3, it is the contention of the Ontario Farm Environmental Coalition that a definition of "wetlands" should be entirely consistent with the definition outlined in the wetlands policy statement which was issued in May of last year, 1992, by the ministries of Natural Resources and Municipal Affairs -- a definition, I might add, that I think people in the province had been looking for for a long time.
If you will turn to the definitions section, in reference to the definition of "land," it includes "wetland" in that definition of "land." It is a submission of this group and a submission of our caucus that wetlands should be defined separately, since they serve as an important interface between traditional land and water resources.
This amendment is being proposed to obtain consistency with the policies of other government ministries, specifically Natural Resources and Municipal Affairs, and to expressly determine what does and what does not constitute a wetland, an issue which concerns many environmentalists, the whole issue of wetlands. There are books and videos and all kinds of things which many of us have seen dealing with the topic of wetlands and the concern of how they are gradually disappearing from our environment.
Just to read the definition section for "land," where wetland is mentioned, it simply says, "`land' means surface land not enclosed in a building, land covered by water (which, for greater certainty, includes wetland) and all subsoil."
That is the rationale of the proposed amendment as suggested by the Ontario Farm Environmental Coalition and our caucus.
Mr Lessard: The definition of "land" that currently appears in the Environmental Bill of Rights doesn't exclude wetland, and I would assume this would include wetlands as they are suggested to be defined by Mr Tilson.
The definition of "land" in the Environmental Protection Act doesn't specifically refer to wetlands. In fact, the definition is very similar to, if not exactly identical to, the definition in the Environmental Bill of Rights.
If we were to provide a definition of "wetlands" in the Environmental Bill of Rights, we would have two different definitions. It could be interpreted that the definition in the Environmental Protection Act is actually narrower and would thus exclude wetlands and therefore not apply with respect to the contamination of wetlands. That's not a result the government would like to see.
Mr Grandmaître: I have a question to staff members. Does that mean the ministries of Municipal Affairs, Agriculture and Food and Natural Resources all have different definitions of "wetlands"?
Mr Lessard: As far as I know, the only place where wetlands are defined is within the wetland policy.
Mr Grandmaître: When they are considering an official plan, when an official plan is being circulated, for instance, Municipal Affairs and Agriculture and Food are concerned about wetlands. My question was, is it different from the original "wetlands" definition used by Agriculture and Food and Municipal Affairs?
Mr Shaw: The Ministry of Natural Resources developed a wetland policy, and that was developed in cooperation with the Ministry of Municipal Affairs, the Ministry of Agriculture and Food and the Ministry of Environment and Energy. That wetland policy is being moved as a provincial policy statement underneath the Planning Act. Therefore, that will be the single definition of "wetland" which is used by all of those agencies.
Mr Grandmaître: As Mr Tilson pointed out, they're missing two sentences. Does that mean the definition of "wetlands" is different? Why are they saying two sentences are missing? I don't have the Planning Act before me.
Mr Shaw: I'm not quite sure whether that's what they're saying. The point is that the current definition which is in the Environmental Protection Act has been interpreted to include wetlands by the courts, and that's the same definition which has been carried into the Environmental Bill of Rights.
If the Environmental Bill of Rights were to contain a distinct and different definition of wetlands, there is a risk that the definition that occurs in the Environmental Protection Act would be considered narrower and be exclusive of wetlands. Thus, the protection provided by the Environmental Protection Act for wetlands could be removed.
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Mr Offer: To carry on with this, under the EPA, the definition of "land" is inclusive of wetland, as you just indicate.
Mr Lessard: I can read the definition from the Environmental Protection Act, if you'd like.
Mr Offer: That would be fine, but the only point that I was making, as I've heard you and Mr Shaw indicate, is that "land" has been interpreted under the Environmental Protection Act as including wetland.
If there is a definition of "wetland" in the Environmental Bill of Rights, then it could be taken in one of two ways. The first way is an argument given to individuals under the EPA to say: "Well, look at the Environmental Bill of Rights. The government has distinguished "land" and "wetland." Hence, if we follow that reasoning, we should be doing the same thing under the Environmental Protection Act."
The other suggestion could be that the Environmental Bill of Rights containing its own definition of "land" would be construed in a narrower sense, and not including wetland.
Mr Shaw: The first supposition you put forward is definitely true. The second one was that if the Environmental Bill of Rights contains a definition of both "land" and "wetland," then it lends credence to the argument that the definition of "land" in the Environmental Protection Act does not include wetland.
Mr Offer: That's correct. To carry on, that also obviously would be the case in the Environmental Bill of Rights. However, those concerns could be dealt with if there were corresponding amendments to every section in the Environmental Bill of Rights where the word "land" occurs to also add the words "and wetland." It wouldn't get over the concern under the EPA, but it certainly would be one which would broaden the definitions of what "land" and "wetland" mean under the Environmental Bill of Rights.
Mr Shaw: The definition, as it is currently put forward for "land" under the Environmental Bill of Rights, is inclusive of wetland.
Mr Offer: But there is no definition of how "wetland" is defined. Is there a way in which one can continue with the assumption that land includes wetland while also adding to the words "and wetland" what they do and do not mean -- that is not under the EBR -- without running afoul of concerns under the EPA?
Mr Shaw: I think I prefer to refer that question to legal counsel.
Mr Jim Jackson: The short answer is yes. If we reviewed the Environmental Bill of Rights all the way through and then carefully reviewed the Environmental Protection Act and the Ontario Water Resources Act and the Environmental Assessment Act to make sure that there were no conflicts or that this bill had consequential amendments in those acts, any possibility of the amendments to the Environmental Bill of Rights having an effect on the application of the other statutes could be eliminated.
I think probably the main problem with the motion is that putting a definition of "wetland" in the Environmental Bill of Rights wouldn't serve any legislative purpose. The term "wetland" is only used one place in the bill, I think, and that's in the definition of "land." The term "wetland" was put in there because of some concern by some people that perhaps "land" didn't include wetland.
It has certainly been held by the courts under other statutes to include wetland, and I think it would just lead to confusion to try and put a scientific definition in, because if we brought in seven scientists, we'd probably end up with at least seven different scientific definitions. There's no point in doing that if it doesn't serve any legislative function within the bill.
Mr Offer: Then let me ask you this: I'm just keeping in mind the definition of wetland as proposed, but moving up to what "land" means, "surface land not enclosing a building, land covered by water and all subsoil," does that include land used for agricultural purposes?
Mr Jim Jackson: Yes. That's why land used for agricultural purposes is specially dealt with in some parts of the bill, to exclude it from the public resource definition.
Mr Offer: So a definition of wetland, which excludes from its definition land used for agricultural purpose while retaining the definition of land which includes land for agricultural purposes, would be or not be confusing?
Mr Jim Jackson: It would be confusing. You wouldn't know whether land used for agricultural purposes that was wetland was ever affected by the bill.
Mr Tilson: It's obviously the exemption of the agricultural land that the agricultural people were concerned with, and just so that their position is clear, I'm going to read a portion of what they said back into the record.
"The draft bill included in the Environmental Bill of Rights task force report contained the definition of wetlands that we objected to as being incomplete. Our objection was based on the fact that the definition, while largely consistent with that contained in the wetlands policy statement, omitted two sentences dealing with the exemption of agricultural land," and then they indicated what those two sentences were.
"Our comments of October 5, 1992, call for the wetlands definition used in the Environmental Bill of Rights to be entirely consistent with that used in the wetlands policy statement. We were shocked upon receiving Bill 26 to find that the wetlands were not defined at all, but rather dealt with parenthetically as a subset of the land definition.
"Wetlands serve as an interface between land and water resources, but as such, should be defined separately. There's no more reason to define wetland as a subset of land than there is to define it as a subset of water. Indeed, given the strong public support for the preservation of wetlands, it is essential" -- I think the statement that I'm now reading is important to emphasize -- "that legislation such as Bill 26 clearly indicate what does and does not constitute wetland."
There's no question, there's been considerable debate by environmentalists, by members of the public, on the whole topic of wetlands and their fear of its disappearing. We're talking about the rights of the public, yet notwithstanding what has been said by legal counsel, there is no definition of wetlands. It is for that reason that the Ontario Farm Environmental Coalition recommends that a definition be put into this bill as provided in the wetlands policy statement, and I think it's a reasonable request.
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What with the controversy that's been going on over the years, Mr Grandmaître, I'm sure, could tell us stories in his experience in cabinet on that topic. It has been a controversial issue over the years, and there's no reason we can't properly define what "wetlands" means. For legal counsel to come in here and say, "We could have all kinds of people come and give us definitions, explain what definitions mean" -- well, let's put a definition that everybody understands, and what everybody appears to understand to date is the wetlands policy statement.
That's the rationale, Mr Chair. We were only given during the hearings literally two or three minutes to ask questions of each of the delegations. I don't know whether Mr Lessard or Mr Shaw would like to comment. I'm sure Mr Shaw in particular has read that presentation, if he or Mr Lessard would wish to comment.
Mr Lessard: I'll just go at this one more time. The definition of "land" that's in the Environmental Bill of Rights includes wetlands. That's right in the definition. The definition of "wetlands" is in the wetlands policy statement. I think it's important only to have one definition of wetland. I've already indicated the problems if we have a definition of wetland in the Environmental Bill of Rights and no definition in the Environmental Protection Act, what problems we might encounter as a result.
Mr Shaw might be able to provide some further input about what happened at the task force when this matter was dealt with there, if he can.
Mr Shaw: The concern that arose that resulted in the removal of the definition of "wetland" from the draft bill was the one Mr Lessard has just alluded to, and that is the fact that the bill may have had the opposite effect of what was intended; that is, it may have rendered the protection provided by other pieces of legislation obsolete because they themselves did not contain separate definitions of "wetland."
Mr Tilson: My only response to either Mr Shaw or Mr Lessard is that when you have a bill and you're talking about something we know environmentalists are going to be concerned about -- we know they're going to be concerned with wetlands; we know that's an issue -- why don't we tell them what it means? You can say, "Look to the wetlands policy statement." Well, maybe somebody will, maybe somebody won't. If that's the case, put in a definition so the bill's clear about what it means and then we can properly deal with it. Right now, it's put in parentheses under the definition of "land." Quite frankly, and I'm starting to repeat myself, I understand the concern of the farm coalition group.
Mr David Johnson: A question to Mr Shaw, if I could. I'm looking at the deputation from Ducks Unlimited. They talk about the wetlands as well, perhaps from a different point of view. Quoting from their presentation, it says:
"While in principle we support the ideals of Bill 26, we're generally fearful that such legislation will bring this valuable habitat management work to a halt. Some so-called environmentalists hold a preservationist philosophy. Their ideal is to protect areas from any form of human intervention, whether it be positively or negatively motivated. There is the perception that ambient conditions should be maintained at all costs even if such habitats are no longer wilderness areas functioning under so-called natural forces."
Essentially, their message -- and they mention on the previous page loosestrife and eroding soils and carp -- is that they may be prevented from doing the work they have been doing on the existing wetlands that are remaining. It seems to me that they're probably not in conflict with the farming association, but they're concerned that environmentalists might use this bill to stop them from doing their management of the wetlands that are in place today. I wonder what your response is. Is that a valid concern? It seems to me it might be.
Mr Shaw: I had the opportunity to meet with representatives of Ducks Unlimited and explore their concern. I do not believe their concern is a valid one. For the projects that Ducks Unlimited carries forth, the approvals they may require from the provincial government are not approvals given under the Environmental Bill of Rights. There are no approvals under the Environmental Bill of Rights. They require approvals such as an approval under the Lakes and Rivers Improvement Act of the Ministry of Natural Resources. They might require an approval under the Ontario Water Resources Act of the Ministry of Environment and Energy for some of their works.
Their concern, I believe, stems from the fact that two members of the public may seek to have a review done of one of the approvals that is issued to them, and they may seek to have that review done on the basis that the purpose of this act says, "to protect, conserve and, where reasonable, restore the integrity of the environment." They're questioning: At what point do you measure? How far do you restore it? The review provisions require that it be established that there may be harm to the environment to determine whether or not a review will be undertaken. I find those two different --
Mr David Johnson: I gathered from your comments that there are entry points at which two people could at least ask for a review.
Mr Shaw: They could ask for a review, but as has been discussed before, asking for a review does not affect the approval that has been granted.
Mr David Johnson: What you're telling me is that the ministry is under the assumption that if an approval is granted, even though a review has been requested, the body, in this case Ducks Unlimited, would proceed, even with that cloud of a requested review hanging over top of them?
Mr Shaw: Again, as in the discussion on the previous point on instruments, the bill sets out that the minister would find it's not in the public interest to undertake a review of a decision which had been rendered within the five years previous, unless new evidence is brought forward. Even if it is past the five-year point, the bill sets out the factors for the minister to consider in determining whether a review should be undertaken.
Mr David Johnson: From the perspective, let's say, of Ducks Unlimited, who are collecting money from the general public and who have to be shown to be stewarding that money very carefully and not squandering that money, obviously, or else they will get no more donations, Ducks Unlimited's concern may be that if there is a review that's been requested, they may be in some jeopardy to proceed with work and spend money until this whole matter is clarified; otherwise, they may find they're spending moneys that have been donated to them and they may have to backtrack to some degree. Isn't that a possible scenario?
Mr Shaw: It's a possible scenario, but can I walk through from the beginning of getting an approval. Let's just say Ducks Unlimited needed a permit to take water; that they were going to be ponding up some water behind a dam, so they needed a permit to take water. Their application, first of all, if this bill were in place, would have to be put on the registry for the public. The public would have 30 days to provide comment to the ministry on that proposal by Ducks Unlimited. The public comments would have to be taken into account prior to a decision being made on the Ducks Unlimited application, and then the minister would have to give the public notice of the decision on the application, along with a brief summation of what effect the public comments had on the ministry's decision.
Now, having issued the instrument, the permit to take water in this case, the hypothetical situation here is that two residents turn around and apply to the Environmental Commissioner to have that permit to take water reviewed, because their contention is that something should be done to that approval in order that the environment may be protected.
I think the bill fairly clearly sets out the types of factors the minister is to take into account in determining whether a review should be undertaken. Having gone through the previous process, I believe a minister would very quickly find that a review was not warranted.
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Mr David Johnson: That would be in the eye of the beholder, I suppose. It would be a little difficult for us to speculate on what the minister may or may not consider to be relevant information or new factors or whatever. At least that door would be open and there'd be that uncertainty.
Mr Shaw: That door would be open. Hypothetically, the door is open today, the difference being that there is no requirement today for the minister to respond to such a request and, in particular, respond with reason for a decision to such a request.
The Chair: Further questions or comments regarding Mr Tilson's amendment?
Shall Mr Tilson's amendment to subsection 1(1), the definition of "wetland", carry? All in favour? Opposed? The motion's lost.
Further questions or comments to subsection 1(1)?
Shall subsection 1(1) carry? Carried.
Subsections 1(2), (3), (4), (5), (6), (7): Are there questions, comments or amendments to those subsections?
Shall subsections 1(2), (3), (4), (5), (6) and (7) carry? Carried.
Shall section 1 carry? Carried.
Section 2.
Mr Wiseman: Carried.
The Chair: Nice try.
Questions, comments or amendments to subsections 2(1), (2) and (3)? I see Mr Tilson has an amendment to clause 2(1)(d).
Mr Tilson: I do, Mr Chair. I move that subsection 2(1) of the bill be amended by adding the following clause:
"(d) To ensure that activities impacting on public land, as defined in section 82, and on public resources, as defined in section 82, are in compliance with environmental laws."
This amendment as well, as you can imagine, was encouraged by the Ontario Farm Environmental Coalition. If you still have your paper open, it's at pages 3 and 4 of that paper, which I will be referring to.
The agricultural community is concerned that farmers have "assurance that citizens philosophically opposed to the application of crop protection products, for example," and I'm reading from the paper that was presented, "could not use Bill 26 to champion their cause before the courts, at the expense of a farmer engaged in legal activity. As well as providing assurance to farmers, clarification of the purpose of Bill 26 would also provide direction to overzealous protectors of the environment."
I know the Minister of the Environment has said: "Everything's okay. The farmers will be looked after. It's clear." Obviously, the farmers are not clear on this issue, and this is of course the "public land" definition they are concerned about.
Interjection.
Mr Tilson: Mr Chairman, to continue with the rationale for this proposed amendment, Bill 26 applies to public lands and public resources as opposed to private lands and resources. That appears to be clear. Therefore, in an effort to provide some assurance to the agricultural community, it is felt it would be appropriate to explicitly state at the beginning of the legislation, namely, in the purpose section -- in the margin it's called "purposes of the act" -- what the overall intent is with respect to public and private lands.
The coalition, you may recall, argued that the inclusion of this clause would explicitly state that farmers would be protected against complaints on crop protection products and other legal activities in which the agricultural and other industries engage on a regular basis. That has clearly been expressed to be the intent of the ministry, although I certainly recall some vagueness in the brief. That was the problem during these hearings, of course, that we didn't really have an adequate opportunity to ask questions and have time spent with these delegations, the few that did appear before us, to hear their elaboration on their concerns.
In my view, and that is why the Conservative Party has put this forward, the question is up in the air as a result of the oral presentation that was made by this delegation. That is the rationale of this amendment, Mr Chairman.
Mr Offer: Mr Chair, could we hear from the parliamentary assistant?
Mr Lessard: The purposes of the bill are set out in subsection 2(1). They're fairly general in nature and they're set out fairly generally purposely. The amendment that is being proposed really duplicates many of the principles that are covered in those first three clauses (a), (b) and (c), but actually narrows those purposes.
The biggest concern I would have is that it refers to compliance with environmental laws, and you'd really have to try and determine what is meant by "environmental laws." For example, would it mean the Occupational Health and Safety Act, Health Protection and Promotion Act, the Mining Act? Who knows? There could be a long list of acts that might be considered environmental laws, and we really don't know how they might be defined.
Mr Tilson: In response to that, the agricultural community is quite concerned, and they want to be clear about whether private lands are included. You have indicated some concerns with respect to the public. If current laws are being breached, would that satisfaction not be obtained in other pieces of legislation? Either it does include both or it doesn't.
These papers are more concise than I am, and rather than I go on about it, I'll read from it. They say, "We are pleased to see that the `public land' definition provided in the Environmental Bill of Rights task force report has been modified for Bill 26 to indicate that land leased for agricultural purposes from either the crown, a municipality or a conservation authority is not deemed to be public land." The bill does say that. "However, we would prefer that both the `public land' and `public resource' definitions be moved to section 1" -- and of course we've put it into the purposes section -- "of the document from section 82. It is our belief that reference to both public lands and public resources in section 2 would add clarity to the purposes of the bill."
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Then they go on to personalize their concerns that the agricultural community, being "owners of 14 million acres of land in Ontario, have concern with the very broad nature of the purpose statements in part I of Bill 26. When Bill 26 is considered in its entirety, it is clear that it will apply to public lands and public resources as opposed to private, and that it will only be used to deter illegal activity. Therefore, would it not be useful to state this early in the document with a purpose statement that `The purpose of this act is to ensure that activities impacting on public land and public resources are in compliance with existing environmental laws.'" Then they go on to the first statement I read.
They are correct. When you read that, they are concerned, and they are looking for clarity. There is no doubt what the intent of this bill is, and they feel it should be put at the very outset of the bill.
The Acting Chair (Mr Bernard Grandmaître): Comments, parliamentary assistant?
Mr Lessard: I can just add to the explanation I've given. That is, private land is covered by the Environmental Bill of Rights; however, it's excluded with respect to the right-to-sue provisions. The reason private land is covered is that if, for example, somebody decides to open up an illegal landfill site on the farm next door, you have the right to ask for an investigation, or if he's conducting farm practices that involve overspraying of toxic pesticides, for example, you would have the ability to ask for an investigation as well. I think that's reasonable.
Mr Tilson: Can you do that now?
Mr Lessard: Yes.
Mr Tilson: So why are we doing it again? Why are we putting it in another place and causing problems, in this legislation?
Mr Lessard: It formalizes the process within the Environmental Bill of Rights, not only with respect to the example I've given but other examples as well.
Mr Offer: The amendment is specifically referable to section 82. I know we're talking about the issue of clause 2(1)(d), but in fact we are talking in essence about the wording around section 82. It was clear when we heard the presentation that there was a very strong concern. The first question was, did the EBR, in terms of the sections up to 82, apply to agricultural land, private as well as public land? I think the ministry has indicated clearly that it does.
Dealing with the issue of section 82 and onward in the right to sue, the question was, does that right apply to private as well as public land? The ministry I think attempted to indicate that section 82, the right to sue, did not apply to the private land or the agricultural land issue. But the problem is that the wording -- and I think this amendment is important in so far as it focuses on section 82 -- surely could be clearer to give to those who came before the committee an absolute assurance that that which the ministry has stated is in fact going to be found in the legislation and outside the purview of some future discretion.
I think it's important that we realize it states that "public land" means land that belongs to (a) the crown, (b) a municipality, or (c) a conservation authority, and then it goes on to say, "but does not include land that is leased from a person referred to in clauses (a) to (c) and that is used for agricultural purposes."
I think that there could be a clarity, and maybe it's more of a technical type of change, where it is clear that the right to sue, part VI, does not apply to land used for agricultural purposes. That's what the ministry has stated. In fact, that's the concern that was brought forward to the committee. I know I speak to section 82 when we're talking about section 2, but we're really talking about 82. Surely there can be a change in the wording that specifically states part VI, the right to sue, does not apply to land that is used for agricultural purposes.
I think that would clearly deal with the concern that was raised. I'm wondering if the ministry officials and the parliamentary assistant would look to rejigging this opening statement under section 82, to give to the agricultural community the assurance that it wants. It says, "but does not include land that is leased from a person...and that is used for agricultural purposes."
Somebody might actually try to argue that they're talking about leased agricultural land and not land owned and used outright. I mean, those are the types of problems that you can fall into. Why can't we just give to the deputants the change that they want, which is in keeping with the position of the ministry?
Mr Lessard: Part of the reason we're conducting clause-by-clause is to entertain amendments to the bill that might satisfy the concerns that deputants made known to us. I don't know if we have an amendment before us that deals with section 82 to make it clearer, but if you're proposing one, I suppose that the ministry staff could have a look at it.
Mr Offer: We're certainly a tad away from section 82.
Mr Tilson: That's what the amendment says. It goes to 82.
Mr Offer: But I certainly would be prepared to present an amendment when we reach 82. I would like to know, though, from the ministry whether in principle -- so I'm not asking for anything definite -- the ministry is in favour of a position which under part VI, right to sue, excludes land for agricultural purposes.
Mr Shaw: Section 84 clearly states when you may bring a suit, and it speaks to "harm to a public resource." "Public resource" has been defined in the bill as including "unimproved public land." "Public land" has then been defined in the bill to mean these things. The reason the "but" shows up after (c) is that there are public lands which have been leased for agricultural purposes, and we wanted those public lands excluded from the definition of "public resource." That's the reason for that "but" statement after (c). No private lands are included in the definition of "public resource."
Mr Offer: So in fact the "but" under clause (c) is talking about public lands leased for agricultural purposes.
Mr Shaw: That's correct.
Mr Offer: That underscores the need for the amendment, because no one read it that way. That just underlines the need for an amendment. We had a group come in that said: "Listen, we're taking a look at this bill. We're concerned about part VI, the right to sue. We're concerned about agricultural lands. We want to make certain that we don't fall under part VI." They saw that phrase "used for agricultural purposes" and it followed that they said, "Well, it looks a little fuzzy to us."
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I appreciate, Mr Shaw, how you've taken us through that, but it seems to me that we have areas in this bill where it says and doesn't include this, this or this. I do not know why we cannot put in something that's a little bit more definite for the agricultural community because it's in keeping with the principle you want to maintain in the legislation and, as well, meeting their concern. It's not done for any other reason than to allow some very important people in our province to see what part of the bill doesn't apply to them, clearly.
I don't think we'll probably hit 82 by --
Mr Lessard: Not by 6 o'clock, I don't think.
Mr Offer: I think maybe we should be looking at some more specific amendments.
The Chair: Thank you. Mr Johnson and Mr Tilson.
Mr David Johnson: A question to Mr Shaw: It's your contention that 82 does not pertain to any private land whatsoever. Is that correct?
Mr Shaw: That's correct. Section 84 is in fact the section you want, which is the section which allows you to bring suit, and that section does not apply to private land.
Mr David Johnson: Because it uses the words "public resource" and if you go back to public resource, there's no mention made of private land.
Mr Shaw: That's correct.
Mr David Johnson: Then one way perhaps to address this would be to specify under "public resource" a kind of a negative. I don't know if that's possible, that this does not include private land sort of thing. Do you have a problem with that? Given that it's omitted -- you know, I can see where you're coming from. But just to clarify the whole thing, if it was specifically stated under "public resource," maybe (f) or something, "does not include private land."
Mr Lessard: Private land isn't referred to in the definition section. If we wanted to have an exclusion that applied to private land, we'd have to define private land as well, and I think that's part of the difficulty that was considered in drafting these sections.
Mr David Johnson: You did consider that then, did you?
Mr Lessard: It was considered.
Mr David Johnson: Did you consider a definition of private land?
Mr Shaw: The difficulty would be that to define private land, it would have to be an all-inclusive definition and, if we fail to include everything, so by omission we forgot something, then it would be caught by these right-to-sue provisions, and that's the risk we're running. Whereas the way it is structured, by talking only to public land, public resource, it excludes everything else, which, of course, excludes private land.
Mr David Johnson: Going back to 84 that you mentioned, subsection (4), for example, mentions the Farm Practices Protection Board and the Farm Practices Protection Act and subsection (5) mentions agricultural operation, it mentions odour, noise and dust. These are the things that I think the agricultural representatives are concerned about. What is this referring to?
Mr Shaw: This is referring to the fact that you could have a hypothetical situation where you have active agriculture occurring adjacent to a conservation area and a conservation area is public land. What this provides for is that if somebody wishes to bring suit against that person operating the farm, the farmer --
Mr David Johnson: Can I just ask one question? That farm they're operating: Is it on private property or is it on the conservation property? Could it be on private property, let's say?
Mr Shaw: Oh, yes. I'm assuming it's private property. It's a privately owned farm.
Mr David Johnson: All right.
Mr Shaw: Before suit can be brought against the farmer, the matter has to be disposed of. In other words, the complaint leading to the suit has to be disposed of by the farm practices review board. So it's not an automatic jump that you just simply bring suit against the farmer for what is alleged to be harm to the public resource.
Mr David Johnson: Is there any provision under either (4) or (5) -- because it does talk about odour, noise, dust. You need to be a corporate lawyer to understand this, and I suspect that's part of the problem that the agricultural people have. Is there any provision underneath there where somebody under either of those subsections could bring a suit or a review against a private operator, a farm operator on private property?
Mr Shaw: Yes. These provisions allow for the public to bring suit against a farmer if the farmer's activities are resulting in harm to a public resource, the public resource not being the land that is being farmed but, say, an adjacent piece of property owned by a conservation authority.
Mr David Johnson: So if you happen to be out in an area where there's no public land nearby, just farmer next to farmer next to farmer kind of thing, or farmer next to --
Mr Tilson: A road.
Mr David Johnson: -- a road or maybe a village or something like that, then I presume in that situation, somebody living in the village couldn't take action against the farmer.
Mr Lessard: Public resource is defined more widely than just land, though.
Mr David Johnson: But if you happen to be next to a conservation property, then the conservation authority could bring action against the farmer.
Mr Shaw: Or if you happen to be next to any stream or river or lake, which are all defined as public resource.
Mr David Johnson: So if people going to a conservation property don't like the smell of the farm next door, then they could bring action against the farmer?
Mr Tilson: I think so.
Mr Lessard: No.
Mr Shaw: No. They have to first of all deal with the farm practices review board. Only after the farm practices review board has disposed of the matter could they then proceed to bring the suit, and the onus is on the people bringing the suit to demonstrate to the court that in fact the farming practices are resulting in harm to the environment.
Mr David Johnson: All right, but that door is open that if there's a conservation authority next to a private farm and somebody doesn't like the smell, doesn't like the noise of the tractor, doesn't like the dust that's being kicked up when the farmer is plowing his field, then there's a process open, the Farm Practices Protection Board or the act, whatever, first, but secondly, the Environmental Bill of Rights would be there that they could take action for noise, dust, odour against that farmer on his own private property.
Mr Shaw: On the basis that his activities on his private property were resulting in harm to a public resource.
Mr Wiseman: Not those three. This is not in 84.
Mr David Johnson: No. I think that's what they're concerned about.
Mr Tilson: That's exactly the concern that was raised in the very brief time we had to discuss it. The doubt was left with the delegation and it's for that reason the amendment has been put forward. There's no question that in those situations it does apply to private land.
Having said that, can you tell me, to either Mr Shaw or Mr Lessard, does the farm practices review board not give adequate protections, because really, someone who proceeds to the farm practices review board, if they fail that, it's like all these other discussions we've had with legal counsel and Mr Wiseman's example and Mr Offer, I suppose. If you don't like A, if you're unsuccessful with A, then you go to B.
That's exactly what this is all about and that's the concern of the farmer, why the farmer would like this amendment, because if someone is not successful with the farm practices review board in having their concerns addressed, they can go to the Environmental Bill of Rights; hence the public lands abutting the private land getting into the bill in that way. So in effect, as Mr Lessard said, if I recall -- I hope I'm not misquoting him from the outset -- in some situations private lands will be addressed under this bill and are affected by this bill.
Mr Lessard: If, as a result, what's happening on the private lands is causing environmental harm to a public resource.
Mr Tilson: I understand. You've made that quite clear. That is a concern of the farmer and that is the purpose of the proposed amendment.
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Mr Wiseman: If there are no other comments on this, would we be voting on this section at this point?
The Chair: There isn't anyone else on the list, but I'm about to ask if there are questions, comments or amendments.
Mr Wiseman: Could you do that?
The Chair: Are there further questions, comments or amendments to Mr Tilson's motion to clause 2(1)(d)? Mr Johnson.
Mr David Johnson: With the risk of having Mr Wiseman angry at me, it seems to me that I can't quite understand why this applies if you're next to, let's say, a conservation authority or public property, but apparently doesn't apply otherwise. Is it just because we're concerned about our government property or something? That's the impression I get.
Mr Lessard: No. We're concerned about public resources and public resources are defined as including more than just public land or the conservation authority that you referred to. It includes water and air as well. So if you live way downstream from a conservation authority that was next to a farm, for example, it would still be covered.
Mr David Johnson: What it raises in my mind is the prospect of being unlucky in the draw. If you happen to have a farm in the vicinity of a public resource, then you're subject to complaints under the Environmental Bill of Rights, but if you're lucky --
Mr Lessard: Water and air are in lots of places.
Mr David Johnson: So it's anywhere where you're in contact with water or air, is it? If that's true, then what private property does it exclude, if I might ask? I'd like to know someplace that isn't in contact with air or water. That flies in the face of -- you were saying that private property is not included.
Mr Tilson: Here's the counsel. He's going to straighten us all out.
Mr Lessard: Maybe we can hear from Mr Jackson on this one.
Mr Jim Jackson: What those provisions do, what the definition of "public resource" does, is it prevents the farmer from being sued for an alleged violation of a statute which is only damaging his own land. It doesn't prevent the farmer from being sued for an alleged violation of a statute that damages a public resource.
As has been discussed at length, if the cause of the alleged violation is one of the practices under the farm practices review board, the matter has to go there first before the lawsuit can be started. The farm practices review board will either settle the matter as it usually would or it would express an opinion as to whether the farmer was farming in accordance with good farming practices and not causing any unnecessary problems.
That kind of opinion being expressed by an expert panel would have a considerable effect on the likelihood of success in a lawsuit and would discourage the bringing of lawsuits unnecessarily against farmers arising out of alleged violations of statutes that had an off-farm effect.
Mr David Johnson: Do you agree with the interpretation then, that if there happens to be a conservation authority next to a farm, the Environmental Bill of Rights could be used by parties because of the effect of odour, noise and dust impacting on the conservation authority?
Mr Jim Jackson: Just as it could if the farm was next to any public resource, and every farm is next to a public resource. It's either next to a road or next to the air lying over it or next to a nearby water body. So the conservation authority is only one example on a long list.
Mr David Johnson: Then from what you've said, this applies to all private farms in the province of Ontario.
Mr Jim Jackson: If they're causing damage to a public resource in violation of a statute, yes, potentially it does.
Mr David Johnson: Why have we been getting the message that this doesn't apply to private farms?
Mr Jim Jackson: It doesn't apply to damage to private farms, just like it doesn't apply to damage to your own property.
Mr Tilson: Oh, that's different.
Mr Jim Jackson: There has to be damage to a public resource before you can sue.
Mr David Johnson: But I think the concern of the -- what's their official title?
Interjection: The Ontario Farm Environmental Coalition.
Mr David Johnson: I think their concern is, and maybe I'm misinterpreting what their concern is, that you have urban people who move out there and then they start lodging complaints against all the farmers. They say: "I don't like the smell of the pigs. I don't like the trucks going up and down the road. I don't like the dust when you go out and plow."
Mr Derek Fletcher (Guelph): Chicken and turkey farms, they're the worst.
Mr David Johnson: "I don't like chicken and turkey farms."
From what you're saying, it's not their own farm they're concerned about, they're concerned about other people, particularly urban people, coming out into the rural areas and lodging these complaints that the urban person's property is affected because of this dust, this odour etc. Then the farmers are going to have all of these complaints; they're going to have thousands of complaints under the Environmental Bill of Rights.
Mr Jim Jackson: I think the farmer's major concern would be somebody who came out from the city and didn't like the way somebody was farming and was claiming that he was injuring the soil characteristics on his own farm and that he should be farming it better and claiming there was damage to the farm.
Mr David Johnson: Really? To the farmer's farm?
Mr Jim Jackson: To the farmer's farm. And trying to control the way the farmer farms by applying pesticides, or his plowing practices or whatever.
Mr David Johnson: I guess that's possible.
Mr Jim Jackson: Secondarily, but still importantly, the farmers are concerned that their neighbours might try to pursue them by any number of means with respect to the effects the farming operations are having on the neighbouring property.
Mr David Johnson: Yes, exactly.
Mr Jim Jackson: If it's having effects on private property, then this part of the act will not enable the person to bring a lawsuit.
Mr David Johnson: But if it has an impact on the air over it.
Mr Jim Jackson: However, if it's having an effect on a public resource, they will be able to bring a lawsuit, but only after going through the farm practices review board first. That act was passed recently by this Legislature to protect farmers from the effects of frivolous nuisance complaints that arise out of ordinary farming practices, because city people's noses aren't adjusted to farm life.
Mr David Johnson: I think the farming community's most concerned with the second concern, which you say the Farm Practices Protection Act protects them against. Having gone through that process and being ruled out of order -- I'm talking here about the public resource of air, which conducts odour, "The air is fouled over my property because the farm next door smells," -- the door's open through the Environmental Bill of Rights to lodge a complaint.
Mr Jim Jackson: Yes, but if they have a report from the Farm Practices Protection Board that says it's the result of an ordinary and proper farming practice, they're not going to get much sympathy in a lawsuit and they're probably not going to want to be paying costs to the farmer.
Mr David Johnson: They may not, but the farmer's dragged through all this. That's another process that the farmer has to live through. He may well be victorious at the end of the day, but --
Mr Jim Jackson: He can be dragged into court at common law or under other statutes as well. As with many provisions of this bill, it parallels existing processes but formalizes them.
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The Chair: Mr Tilson.
Mr Wiseman: No, I'm next.
The Chair: Oh, are you? Mr Wiseman.
Mr Wiseman: Yes. In view of the fact that it doesn't look like we're going to complete Bill 26, I would like to return to the subcommittee report. I'd like to move that we return to the subcommittee report.
Mr Tilson: We're in the middle of -- on a point of order, Mr Chairman: How dare he interrupt my amendment?
Mr Wiseman: Hold on.
The Chair: Hold on. I was about to say the same thing, Mr Tilson.
Mr Tilson: Perhaps in a more gentle way.
The Chair: Perhaps. It seems to me that we are debating Mr Tilson's amendment. We can deal with that; then we will deal with the motion.
Mr Wiseman: But --
The Chair: When we dispose of this item we can deal with a new item.
Mr Tilson: It's a shame that we couldn't have had more time with the agricultural community, the different groups that came here, the coalition. I can just see Mr George. He'd be absolutely furious if he heard what has come forward today, because I don't think the agricultural community believed what has just been said. They were led to believe that private lands are excluded. I'm not going to read it again, but if you read the section in their paper, there's no question, that was the belief. Although there was a little bit of doubt as to what the position was, they say, "Well, let's put it into the purpose, let's make it quite clear."
Now I can see quite clearly why Mr Lessard is opposing the amendment, because it does apply to private lands. Mr Johnson has put his finger right on it. Whether you're in a conservation area or a road, or whoever you are driving down the road, it definitely applies to private lands, and the farmer should be most concerned because he or she is going to go through the expense under the farm protection or practices -- whatever it's called -- a considerable expense in that process. Now they're going to have to go through another process that they believed wasn't going to apply to them, and the farmer, as we know, is put to more and more difficulties in operating a farm operation.
It would seem to me, without repeating what Mr Johnson said at length, that someone who isn't used to rural smells, who simply may -- to use the the group's words, the fear of the "overzealous protectors of the environment," and to simply repeat that sentence, the farmers want to have "clarification of the purpose of Bill 26" that "would also provide direction to overzealous protectors of the environment."
There's no question, as a result of Mr Johnson's questioning of legal counsel, and Mr Lessard, that this bill is exactly what the farmers think it's not. I'm sure their presentation would have been much more forceful if they'd known what they do now. I'm amazed in fact that Mr Lessard sat through that presentation and didn't clarify it, because that group sat there and were led to believe, "Oh, well, you're going to be okay, you can just go to the farm practices review board and that's where the problem will be dealt with," and everything would be dealt with, everything would be fine. But now we find out that's not the case. Mr Lessard sat in his place, allowed the rural people, the agricultural people, to make their presentation and didn't correct them. I find that just shameful.
I guess my concern is that I would hope this section could be set down. I think this government has some obligation to enter into some sort of discussions with the rural community to clarify this position. It may well be, as Mr Offer has suggested, that there may need to be further amendments to section 82; I think that's the section.
I have great concern now that we didn't make the amendment stronger. I would like some direction from Mr Lessard or Mr Shaw as to precisely what discussions -- they indicated they have had discussions with I assume Mr George and some of the other agricultural people. What impression did you leave with them as to what this bill says?
Mr Lessard: Mr Shaw indicates that he hasn't spoken with Mr George, and I haven't spoken with him. There may have been other people who did and I don't know whether they're here.
Mr Tilson: I'm not talking about Mr George, I just picked his name because that's the only one I could recall. The group that appeared before us, the Ontario Farm Environmental Coalition, Mr George I believe is one of them. He represents the Ontario Federation of Agriculture.
Mr Offer: Do they think they're in the bill at all?
Mr Tilson: Mr Offer has just commented, do they think they're in the bill at all? That's what I'm trying to say. They don't think they're in the bill. All they're asking is for a simple amendment to confirm that they're not in the bill. It's quite clear from what has been said by counsel and Mr Lessard, they're as much in the bill as anybody. They're in deep trouble, and I think that someone has misled them.
There was obviously some consultation made with the farming community. I gathered that from the coalition that appeared before the staff, or some of them, perhaps not Mr Lessard or the minister but Mr Shaw or his staff. I'd like to know exactly what was said to them because they believe they're not in the bill.
Mr Lessard: I don't know if there's anybody here who is prepared to entertain that question or not.
The Chair: Good afternoon. If you'd identify yourself.
Dr Peter Victor: Yes, I'm Peter Victor. I'm the assistant deputy minister for the environmental sciences and standards division. I have a certain responsibility for the bill of rights.
I think the question that was asked related to whether we had discussions with representatives of the farming community about the application of this bill to the farming community.
In fact we had extensive discussions with them. A number of representatives of the farming organizations came into the ministry on two or three occasions. We also arranged meetings for the same group with the chair of the task force. This issue, the one that you're dwelling on at the moment, was discussed at great length with them.
They also involved themselves in discussions with the Ministry of Agriculture and Food, and we had further discussions with OMAF about this very point. There's no doubt in my mind that the people we met with, which included Mr George and some of the others whose names I can't remember right at the moment but I could get for you, had no misunderstanding about the fact that the bill does apply to damage or harm to a public resource if that harm is caused by activities on private land, but it doesn't apply to harm to private land.
Mr Tilson: I'd like to hear what they said because I'm simply amazed as to what's coming forward now. I'm not being critical of staff. I believe they're clear on what the bill says. What does concern me is -- I don't know how many there were, I recall three or four of them who sat there -- no one corrected them. No one corrected even what they said in their paper. All you've got to do is read the bottom of page 3 and the top of page 4 as to what the purpose of section 26 is.
All they are asking for is simple clarification. They believe that it doesn't apply to farmers. In fact the minister has made statements in the House as I recall, "Don't worry, farmers, the farm practices review board will deal with all of it." Well, it doesn't. Once you're finished with the farm practices review board, two people who are walking through a conservation area or along a road don't like the smell of the farmer's field, and I don't mean to be flippant but --
Mr Wiseman: They can't do anything about that.
Mr Tilson: Well, they don't like some practice of the farmer. They don't like what he or she is doing.
Interjections.
Mr Tilson: What's going on over here? I can't hear with people babbling along.
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Dr Victor: I think it's already been said. I don't know that I can say it any more clearly than Mr Jackson has, but the way the bill is set up is that if you had such people who didn't like the smell from a farm, they could not bring a suit under section 84 of this bill without first going to the Farm Practices Protection Board. That's what they would have to do first, and that was one of the accommodations that was made in designing the bill to address their concerns.
I think they also understand that when they go before that board, that board will rule whether the farm practice which is giving rise to the odour in this case is a normal farm practice.
Mr Tilson: But were these people made aware that the farmer is no different from a Laidlaw that is making application for a facility or something and they go through a process and somebody doesn't like the results of that process so they can come back to the environmental bill?
I guess I'm getting to the overall theme of what our amendments are on the issue of duplication. Mr Offer's quite astute comment is, "If you don't like A, you can go to B." Was the farming group made aware that someone who may not like the result of the farm practices review board could then go and use this bill, the environmental bill? Were they made aware of that?
Dr Victor: Yes.
Mr Tilson: Boy, oh boy, I certainly don't recall that when they made this presentation.
Dr Victor: I think the understanding we reached was that farmers should not be given 100% protection against harming a public resource any more than industry is given that kind of protection. That's what this bill is about. It's a bill which says that if you are breaking an environmental law, which is defined in regulation, then you can be brought before the court under section 84 if you're also causing significant harm to the environment. That applies to farmers.
The big distinction here, and perhaps this is where there's some confusion, is that it doesn't apply to a farmer damaging his own land. To that extent, this part of the bill doesn't apply, to my understanding, to the agricultural community. But if farmers, through their farming activities, cause significant harm to a public resource, then given that there is this additional hurdle, an additional protection to the farmers given by that clause which says they have to go the Farm Practices Protection Board, they are still ultimately affected by this bill. Otherwise you would be giving complete and absolute protection that anybody could do anything on a farm regardless of what it does to the public resource.
Mr Tilson: You're as much as saying, sir, that the farm practices review board is useless.
Dr Victor: No, not at all.
Mr Tilson: You're saying if someone goes through a proper hearing and they don't like what's heard, they can go -- this is the same type of question we had with the Laidlaw type of application. If you don't like A, you can go to B. That's exactly what all this means, and that was the fear of the farmer, except the difference between the farmer and the Laidlaw and the AMO type of person was that they didn't think this bill applied to them.
Now we find out that they have. Now we're going to go through with this committee, after sitting here, and I'm amazed that members of the government would sit here and not draw it to the attention of the agricultural community that the bill applies to the farmers in the same way as it does to the people who are applying for permits, the Laidlaws and others.
Dr Victor: I don't think I've anything else I can add to this discussion.
The Chair: Ms Mathyssen and then Mr Offer.
Mrs Irene Mathyssen (Middlesex): I move that we put the question.
Mr David Johnson: Mr Chairman, is that a valid motion in the middle of questioning of the staff member? You certainly can at the municipal level, but --
The Chair: The Chair has the opportunity to rule whether this is in order and it's the Chair's decision whether there has been appropriate discussion of the matter before the committee.
Mr David Johnson: Regardless of whether people are speaking or whether they're questioning staff or at any point in time?
The Chair: It's not debatable either, Mr Johnson. I just want to check with the clerk, because I was not here during all the discussion of this.
Mr Tilson: To put you out of your misery, I'd like to caucus this.
The Chair: I haven't decided whether it's in order yet, Mr Tilson.
Interjection.
The Chair: I know you are. I believe Ms Mathyssen's motion would be in order. Ms Mathyssen has moved that the question now be put. Mr Tilson has requested 20 minutes; 20 minutes will take us past the adjournment time. This committee is adjourned. We will meet next Thursday, barring some other significant measures which may occur.
The committee adjourned at 1746.