Proceedings of the Standing Senate Committee on
Foreign Affairs
Issue 21 - Evidence
OTTAWA, Tuesday, December 11, 2001
The Standing Senate Committee on Foreign Affairs, to which was referred Bill C-6, to amend the International Boundary Waters Treaty Act, met this day at 6:15 p.m. to give consideration to the bill.
Senator Peter A. Stollery (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, is it agreed that the committee proceed to clause-by-clause consideration of Bill C-6, to amend the International Boundary Waters Treaty Act?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall the title stand postponed?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall clause 1 carry?
Senator Carney: No. I would like to propose an amendment. I move:
That Bill C-6 be amended in clause 1, on page 1, by adding after line 14 the following:
""removal of boundary waters in bulk" means the removal of water from boundary waters and taking it outside the water basin in which the boundary waters are located
(a) by means of any natural or artificial diversion, such as a pipeline, canal, tunnel, aqueduct or channel; or
(b) by any other means by which more than 50,000 litres of boundary waters are taken outside the water basin per day."
The reason for proposing this amendment, and all our amendments tonight, is that when the minister appeared before us, he seemed to believe and told us that to suggest the bill was open to purposes such as the export of water would require "a belief in conspiracy theories that confounds me." He said the purpose of the bill is to give a legislative context to the treaty and to make clear what the federal government's position is on the removal of water in its natural state from within the basin.
The purpose of this amendment is to do exactly what the minister has suggested and, therefore, end the possibility of conspiracy theories. This amendment lifts the definition of the phrase "removal of boundary waters in bulk" out of the draft regulations and places it in the bill for purposes of clarity.
You will recall that this bill does not mention the phrase "bulk removal of water." This amendment would clarify that. I do not know who else wishes to debate this.
Senator Austin: Unless I hear something to the contrary, I do not see the necessity of the clause. Proposed section 13 on page 2 of Bill C-6, as passed by the House of Commons October 2, 2001, makes abundantly clear that "no person shall use or divert boundary waters." I see no reason why we should specify the method, whether a canal, a pipeline, an aqueduct or a straw if the prohibition is as clear as it is in proposed subsection 13(1).
I am not at all sure from where the evidence comes to justify 50,000 litres. Perhaps we could have a response to those comments.
Senator Murray: Senator Carney's amendment takes the definition of the phrase "removal of boundary waters in bulk" out of the draft regulations and places it in the bill. The phrases to which my friend objects are to be found in the draft regulations. I have not heard any objection on his part to that, so he can hardly object to having them in the bill.
Senator Austin: What about the 50,000 litres?
Senator Murray: It is there, too.
Senator Carney: It is in the regulations.
Senator Murray: Senator Carney assures me that it is, and I think I have them here.
Senator Carney: We were told by the minister the purpose of the bill. This amendment would make clear the position. The regulations state this information, and we are moving it from the regulations into the legislation and, therefore, within the purview of Parliament.
Senator Corbin: If I may, the purpose of the bill is to better implement the Boundary Waters Treaty Act. I think we should keep that in mind throughout our discussion.
Senator Carney: We have taken as our frame of reference the minister's statement to this committee.
Senator Corbin: What quote are you taking from the minister?
Senator Carney: I am using the blues. We were asking why the Governor in Council has the power to make regulations, rather than legislating them. Minister Manley says:
That requires a belief in conspiracy theories that confounds me, I am afraid. The purpose of the bill is to give a legislative context to the treaty and to make clear the federal government's position on the removal of water in its natural state from within the basin.
I am sure that Senator Kenny, who has not followed this debate in committee, may allow you to listen to this.
Senator Kenny: Mind your own business and I will mind mine.
Senator Carney: I am minding the business of the committee. Maybe, senator, when you are free of your conversation with Senator Kenny we could continue.
The Chairman: Order, Senator Carney. No one has been unpleasant to you. If we could just keep our cool here, it will go much better for everyone.
Senator Carney: If you read the definitions now, they amount to only three terms. The first is "boundary waters," meaning boundary waters as defined in the treaty. It does not say "in bulk," and we made that point in committee. The second is "licence," meaning the licence issued under proposed section 16. The third is "minister," meaning the Minister of Foreign Affairs.
As we pointed out in debate, all other definitions of everything in the bill are to be set only in the terms of the minister under the regulatory powers. Proposed subclause 21(1) states that:
The Governor in Council may, on the recommendation of the minister, make regulations
(b) defining, for the purposes of this Act, any word or expression used in sections 11 to 26 that is not defined in this Act;
Only three words are defined in this act, and the definitions do not include any reference to bulk water. Therefore, we are proposing to add the words as I have outlined so that the bill reads as the minister says he intended. There would be reference to the "removal of boundary waters in bulk," meaning the removal of water from boundary waters and taking it outside the water basin in which the boundary waters are located.
It then picks up from the regulations what the minister said was the intent of the bill, as I have quoted: "by any means of any natural or artificial diversion, such as a pipeline, canal, tunnel, aqueduct or channel" We have taken what the minister says is the intent and the relevant regulations and inserted that in the definition section of the bill, so that there is clarity on the fact that this bill, to amend the International Boundary Waters Treaty Act, is clearly aimed at the removal of boundary waters in bulk.
The Chairman: Is it your pleasure, honourable senators, to adopt that motion?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
Senator Carney: We would like a recorded vote.
The Chairman: Senator Spivak is not a member of the committee.
Senator Spivak: I will not vote.
The Chairman: Senator Spivak will not vote. The clerk will call the vote.
Ms Line Gravel, Clerk of the Committee: The Honourable Senator Stollery.
The Chairman: I vote against the amendment.
Ms Gravel: The Honourable Senator Andreychuk.
Senator Andreychuk: For.
Ms Gravel: The Honourable Senator Austin.
Senator Austin: Against.
Ms Gravel: The Honourable Senator Carney.
Senator Carney: For.
Ms Gravel: The Honourable Senator Corbin.
Senator Corbin: No.
Ms Gravel: The Honourable Senator Day.
Senator Day: Against.
Ms Gravel: The Honourable Senator De Bané.
Senator De Bané: Against.
Ms Gravel: The Honourable Senator Di Nino.
Senator Di Nino: For.
Ms Gravel: The Honourable Senator Graham.
Senator Graham: Nay.
Ms Gravel: The Honourable Senator Kenny.
Senator Kenny: No.
Ms Gravel: The Honourable Senator Murray.
Senator Murray: Yea.
Ms Gravel: The Honourable Senator Setlakwe.
Senator Setlakwe: Nay.
The Chairman: I declare the motion defeated by a vote of eight to four.
Shall clause 1 carry?
Some Hon. Senators: No.
Senator Murray: Mr. Chairman, I move:
That Bill C-6 be amended in clause 1, on page 1, by replacing lines 24 and 25 with the following:
"sanitary purposes."
The Chairman: Would you like to explain the amendment?
Senator Murray: Colleagues will note that this amendment would have the effect of deleting the words "or the exceptions specified in the regulations." In other words, the ordinary use of waters for domestic or sanitary purposes will be in the bill, as they are now. We delete the reference to exceptions specified in the regulations because, among other reasons, there are no other exceptions spelled out in the draft regulations. How do we know what other exceptions will be devised by the mind of man or woman?
The effect of this amendment will be to require that any further exceptions to the licensing requirement be contained in the act itself. The government will have to come to Parliament and legislate any exceptions to this licensing provision, if this amendment passes.
Honourable senators know what senators on this side of the table think about the blanket, unfettered regulation-making power that would be accorded to the government by Bill C-6. We are opposed to it. We think it has the potential to negate the very purpose of the bill. We have heard the arguments to the effect that the regulations must respect the intent of the bill and must be within the parameters of the bill. However, the expert witness we have heard from on drafting, Professor Sullivan, has been quite clear on the point. She said that the intent of the bill in conferring this blanket regulation-making authority on the government is to leave the government completely in charge. In respect of several examples that were put before her, Ms Sullivan told us that, in her expert opinion, no court would find against the government because the intent of the legislation is clear in giving this blanket authority to them.
On this particular amendment relating to the power of the government to make exceptions to the licensing scheme by regulation, I remind you of what we were told by another one or two of our expert witnesses. Mr. Barry Appleton, a trade lawyer, appeared before the committee on November 28. I reference page 5 of the unrevised copy of the evidence. He said:
If the objectives of the bill were to deal with fresh water issues as part of an overall strategy, I would say that Bill C-6 is flawed. Rather than create the opportunity to develop some environmentally sustainable comprehensive water policy, this bill has created the mechanism to actually licence, in certain circumstances, water going from Canada to the United States. I am sure that is not the intention. However, under the wording of this bill, it is clearly the effect.
A bit later in the evening, Dr. Howard Mann, former legal counsel with the Government of Canada for five years who conducts a legal and consulting practice in international environment and sustainable development law, also appeared at the same meeting. I reference page 7 of our unrevised evidence. He said:
I agree with Mr. Appleton that the act constitutes a licensing scheme for diversion, as long as the water remains within the same water basin from those boundary waters. Hence, it is legislation that defines how those waters may be used and in what circumstances. That will be fleshed out in the regulations.
Honourable senators, the argument seems very strong indeed for this amendment and others that we will propose that will have the effect of limiting the exceptions to the licensing requirements set out in proposed section 11 of this bill.
The Chairman: Senator Austin, did you have anything to say to say about this?
Senator Austin: I only had an opportunity to review the amendments as we arrived in committee this evening. I had not reviewed them prior to that.
Senator Murray: We are terribly sorry we did not send them to you one week ago, senator. Really.
Senator Austin: Really? It would be the way to be persuasive, if the amendments had been available in time for scrutiny.
I do not agree with the amendments, as I understand them - a scheme to move regulatory provisions into the bill itself. I will not speak further to the policy this evening. The scheme in the bill is a good balance between legislation and regulation in this particular situation.
Senator Carney: When you say it is a good balance, Senator Austin, may I point out to you again the powers that were left to regulation? You say it is a good balance. We point out that there is little in the legislation that is set in stone; most of it is under regulations. Reading from the bill:
21(1) The Governor in Council may, on the recommendation of the Minister, make regulations
(a) specifying what constitutes a use, obstruction, diversion or work for the purposes of this Act;
(b) defining, for the purposes of this Act, any word or expression used in sections 11 to 26 that is not defined in this Act;
(c) describing the water basins to which section 13 applies;
(d) specifying exceptions to the application of subsections 11(1), 12(1), and 13(1);
(e) prescribing classes of licences and determining the persons who are eligible to hold licences of any particular class -
- all the way down to prescribing the duration of licences, the removal and the amendment of licences, the uses, et cetera.
Our witnesses have told us that this is an extraordinary use of regulatory power and I would challenge your suggestion that it is balanced.
Senator Austin: I find it unexceptional. If we disagree, that is what debate is about.
The Chairman: Is it your pleasure, honourable senators, to adopt the motion?
Some Hon. Senators: Yes.
Some Hon. Senators: No.The Chairman: I will ask the clerk to call the roll.
Ms Gravel: Honourable Senator Stollery.
Senator Stollery: Against.
Ms Gravel: Honourable Senator Andreychuk.
Senator Andreychuk: For.
Ms Gravel: Honourable Senator Austin.
Senator Austin: Against.
Ms Gravel: Honourable Senator Carney.
Senator Carney: For.
Ms Gravel: Honourable Senator Corbin.
Senator Corbin: Opposed.
Ms Gravel: Honourable Senator Day.
Senator Day: Opposed.
Ms Gravel: Honourable Senator De Bané.
Senator De Bané: Opposed.
Ms Gravel: Honourable Senator Di Nino.
Senator Di Nino: Yes.
Ms Gravel: Honourable Senator Graham.
Senator Graham: Nay.
Ms Gravel: Honourable Senator Kenny.
Senator Kenny: Not content.
Ms Gravel: Honourable Senator Murray.
Senator Murray: Content.
Ms Gravel: Honourable Senator Setlakwe
Senator Setlakwe: Opposed.
The Chairman: Honourable senators, I declare the motion lost by a vote of eight to four.
Shall clause 1 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
Senator Murray: Mr. Chairman, I move:
That Bill C-6 be amended in clause 1, on page 2,
(a) by replacing line 1 with the following:
"12. Except in accordance with a licence,"; and
(b) by deleting lines 11 and 12.
Mr. Chairman, as you will see, this amendment deletes proposed section 12(2) that provides for the exceptions. It provides that the proposed licensing requirement does not apply in respect of the exceptions specified in the regulations.
We are at a particular disadvantage in respect of the exceptions to this section because the draft regulations do not currently specify any exceptions. It is left to our imagination to discover what the extent of those exceptions might be. The effect of this amendment, again, is to require future exceptions, if any, to the licensing requirement to be contained in the act itself by way of amendment rather than in the regulations.
On that point, I remind honourable senators of the extensive testimony we heard from Professor Anne Sullivan, who has also worked in our own Department of Justice, is an expert in drafting and is a professor at the Faculty of Law at the University of Ottawa. I can save much of this for third reading next week, but she told us time and again in her testimony that we have a very large transfer of power from Parliament to the Governor in Council in the form, first, of a power to make exceptions; second, there is a power to define.
I am somewhat ahead of myself by quoting this next sentence because it relates to proposed section 13, which is really the most important provision, as Mr. Fawcett noted several nights ago. Professor Sullivan said:
For me, the key problem is that proposed section 13 is useless.The Chairman: Is it your pleasure, honourable senators, to adopt the motion?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chairman: I will ask the clerk to read the roll.
Ms Gravel: Honourable Senator Stollery.
The Chairman: Against.
Ms Gravel: Honourable Senator Andreychuk.
Senator Andreychuk: For.
Ms Gravel: Honourable Senator Austin.
Senator Austin: Against.
Ms Gravel: Honourable Senator Carney.
Senator Carney: For.
Ms Gravel: Honourable Senator Corbin.
Senator Corbin: Opposed.
Ms Gravel: Honourable Senator Day.
Senator Day: Opposed.
Ms Gravel: Honourable Senator De Bané.
Senator De Bané: Opposed.
Ms Gravel: Honourable Senator Di Nino.
Senator Di Nino: Yes.
Ms Gravel: Honourable Senator Graham.
Senator Graham: Nay.
Ms Gravel: Honourable Senator Kenny.
Senator Kenny: No.
Ms Gravel: Honourable Senator Murray.
Senator Murray: Yea.
Ms Gravel: Honourable Senator Setlakwe.
Senator Setlakwe: Nay.
Senator Finestone: Did you forget I am here?
The Chairman: You are not a member of the committee, Senator Finestone.
Senator Finestone: Oh, I see. Fine, go ahead.
The Chairman: I declare the amendment defeated by a vote of eight to four.
You are definitely here, Senator Finestone, but we restrict the voting to members of the committee.
The Chairman: Shall clause 1 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chairman: Senator Carney.
Senator Carney: I move:
That Bill C-6 be amended in clause 1, on page 2,
(a) by replacing lines 14 to 17 with the following:
"use or divert boundary waters by the removal of boundary waters in bulk.";
(b) by replacing lines 18 to 26 with the following:
"(2) For the purpose of subsection (1) and the application of the treaty, the removal of boundary waters in bulk is deemed, given the cumulative effect of removals of boundary waters outside their water basins, to affect the natural level or flow of the boundary waters on the other side of the international boundary and to have a negative environmental impact.".
I move the motion and Senator Spivak will speak to it. The motion is in response to the fact that while this bill was presented in the House of Commons by the Minister of the Environment and was referred to by many of our expert witnesses as an environmental bill. In fact, the word "environment" is not mentioned anywhere in the bill. I have asked Senator Spivak to speak to this.
The Chairman: I understand, Senator Carney, that you are moving the motion for Senator Spivak. I think it would be more proper if you actually also spoke to the motion, without mixing non-members and members of the committee.
Senator Spivak: I must clarify this. Frankly, any senator has a right to speak at any committee. Furthermore, I intend to exercise my right as a senator to move amendments in the Senate. I will not say that there is a Taliban aura about not allowing a woman to speak.
The Chairman: Would you like to speak to the amendment, senator?
Senator Spivak: Yes, I will speak to the amendment. The reason I wish to speak to this amendment is because I know that this meeting is being transcribed for posterity and I want my prose to be recorded.
The effect of the amendment to proposed section 13(1) is to clarify the government's stated intent that the prohibition only applies to the removal of boundary waters in bulk, a requirement currently spelled out in the draft regulations but not in the bill itself, which simply refers to a prohibition against removing any water from the boundary waters. An amendment to the deeming provision in proposed section 13(2) is consequential to the amendment in proposed section 13(1).
The amendment to proposed section 13(2) makes reference to the removal of the water in bulk from boundary waters and also to the negative environmental impact.
When the minister was here, he made it very clear that this was simply part of a three-pronged policy for water. I suggest that there would be no need for a three-pronged policy on water were there to be no environmental impact to the removal of water in bulk from boundary waters.
I want to quote Mr. Nigel Bankes, who was here as a witness. This is taken from unrevised evidence of Tuesday, December 4, 2001, at page 1820-1:
In my view, there is a legitimate concern about out-of-basin removals. For me, that concern is an ecological or environmental one rather than a nationalistic or trade concern....
It follows from that that I agree with the intent behind the proposed bill -
- as do I, speaking for myself, and the rest of my colleagues, I am sure, assembled here -
- and the emphasis in the accompanying literature on environmental concerns. It is, of course, curious that one can read the bill and not see the words "environment" or "ecology" anywhere within it.I would suggest that this is almost a tautology to suggest that, in a bill which has as its substance, its heart and its core the concern to prevent an environmental or ecological impact upon this country, that there is no such word in here.
I would also add that were it not for the fact that there are hardened hearts sitting around this table - and I do not say where - it might be possible to look at this kind of basic amendment. This amendment is not harmful in any way to the intent of the bill. In fact, it reinforces the intent of the bill. Given the fact that even the natural governing party may not be in power forever, it would seem to me very useful to agree to this amendment.
The Chairman: Personally, I would not want a wrong impression left. As I heard the evidence, this is an amendment to the International Boundary Waters Treaty Act. The basic premise of the act is to maintain the level of the Great Lakes and the level of the boundary waters. I believe we had evidence here that environment, important as it is, is not in the purview of this act. That is a different subject.
Senator Spivak: With the greatest of respect, Mr. Chairman, this does not happen very often, I am sure, but I do believe you are not correct. Why put in the deeming provision and why have the literature and the rhetoric from those who support this bill? Why not acknowledge that, in spite of the fact that in 1909 there may not have been any ecological concerns? Certainly the reason for this right now is environmental concern. That is a weak argument indeed, with due respect.
Senator Andreychuk: I have spoken on this issue before, but I want to support Senator Spivak's comments and this amendment by Senator Carney.
I think we will spend more time talking about the resource of water than oil or anything else. By the very nature of this bill, it will not give comfort to citizens across Canada. On the one hand, the minister is saying it is not about exporting water but, on the other hand, all of the powers seem to be somewhere other than in this bill. It is extremely important that this bill send a straightforward signal as to what it can and cannot do.
This amendment clarifies the allowable purposes for the removal of water. In 1909, there was some concern for the environment, but we know that there were also diversions that did not take into account what can take place when people tamper with waters.
The amendment clearly states that environmental issues should trump all other issues, or at least be seriously taken into account before we interfere. Even a hint in the public is an unnecessary debate if it was not intended by the minister and, therefore, a clarification is required.
The Chairman: Is it your pleasure, honourable, to adopt the motion?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chairman: We will have a recorded vote, Madam Clerk.
Ms Gravel: Honourable Senator Stollery.
The Chairman: Against.
Ms Gravel: Honourable Senator Andreychuk.
Senator Andreychuk: For.
Ms Gravel: Honourable Senator Austin.
Senator Austin: Against.
Ms Gravel: Honourable Senator Carney.
Senator Carney: For.
Ms Gravel: Honourable Senator Corbin.
Senator Corbin: Opposed.
Ms Gravel: Honourable Senator Day.
Senator Day: Against.
Ms Gravel: Honourable Senator De Bané.
Senator De Bané: Against.
Ms Gravel: Honourable Senator Di Nino.
Senator Di Nino: Yes.
Ms Gravel: Honourable Senator Graham.
Senator Graham: Nay.
Ms Gravel: Honourable Senator Kenny.
Senator Kenny: No.
Ms Gravel: Honourable Senator Murray.
Senator Murray: Yea.
Ms Gravel: Honourable Senator Setlakwe.
Senator Setlakwe: Against.
The Chairman: I declare the motion defeated by a vote of eight to four.
Shall clause 1 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
Senator Carney: Senator Bolduc has an amendment. The paperwork to reinstate Senator Bolduc is being done as we speak.
Senator Di Nino: I believe Senator Bolduc is now a member and I am not. Is that correct?
The Chairman: Things are moving very fast here. I have to keep up with it. Senator Bolduc is now a member of the committee.
Senator Bolduc: Honourable senators, I move:
That Bill C-6 be amended in clause 1, on page 2, by replacing lines 27 and 28 with the following:
"(3) Subsection (1) applies only in respect of the portion of the following water basins that are located in Canada:
(a) Great Lakes - St. Lawrence Basin, being composed of the area of land that drains into the Great Lakes or the St. Lawrence River;
(b) Hudson Bay Basin, being composed of the area of land that drains into Hudson Bay; and
(c) St. John - St. Croix Basin, being composed of the area of land that drains into the St. John River or the St. Croix River."
[Translation]
My argument is quite simple. The regulations are vaguely worded and would apply only to those water basins listed. In the current regulations which have been in effect for many years, given that Canada's geography is unchanging, three basins are identified. I propose that they be identified as well in the act. We cannot go on giving the minister discretionary power for an indefinite period of time. The act prohibits the diversion of water from these basins. If the minister and the commission agree on the number of basins, then these should be identified. It is always preferable to have things stated clearly, particularly when it comes to content. I am not talking about procedure here. This has nothing to done with how the regulations are applied. I just want to know what exactly they apply to. This is important and it should be clearly stated in the act.
[English]
Senator Carney: I want to thank Senator Di Nino for his loyalty and gallantry in sitting in for Senator Bolduc.
This is another example of the issue that we raised of the meat and potatoes of this bill being in the regulations. There have been fears expressed that this could be extended to other water basins.
Under "Regulations," proposed section 21(1)(c) of the bill gives the Governor in Council, which is any three ministers on a Saturday afternoon, the power to describe the water basins to which section 13 applies. Our consistent theme here has been to limit the power of the minister and to ensure that the intent of the bill is carried out in the legislation itself and therefore responsible to Parliament.
With regard to the executive authority in the bill, Professor Ruth Sullivan said in her testimony that:
There is no legal limit on what can be done in this case. Parliament chooses to delegate and it can delegate the shop; there is no limit. From a legal perspective, there is no objection to what is happening in this bill. It is purely a political judgment, whether this is an appropriate exercise of the delegation-making authority on the part of Parliament.
It is our view, which we have expressed consistently, that the authority to deal with bulk water exports should be with Parliament and not with bureaucrats and the powers of regulation.
Senator Corbin: Senator Carney, were you quoting Professor Sullivan?
Senator Carney: Yes.
Senator Corbin: On page 1710 she said:
I do not believe there is any legal problem with this bill whatsoever. There is a slight confusion in the drafting of the provision I drew your attention to, the deeming provision. There might be an error there - I am not sure - but that is the only drafting difficulty that I perceived.Senator Di Nino: Colleagues, I would like to add to the comments made by expressing my concerns. Over the past number of years, and certainly most recently with Bill C-11 and some other bills, we have seen an increasingly disturbing trend by this government to govern by regulation instead of legislation. A witness on the study of another bill referred to it as government by bureaucracy.
What is happening here is the whittling down of legislative parliamentary authority, replacing it with regulatory powers, which in my opinion is absolutely wrong. I want my comments recorded on this issue.
I believe that the amendments proposed by this side principally deal with this issue in a way that I think we should take very seriously. The disturbing trend to govern by regulation is something that should make us all pause and take a second look.
Senator Murray: I want to say a word in response to Senator Corbin's intervention and the quotation he read from Professor Sullivan. The quotation where she said that there is no legal problem with the bill underlines the weight of her testimony and of her criticism of the bill, which was not legal in a narrow sense but rather quite substantive.
For example, on the very point that we have been talking about - that is, putting the basins to be defined into the act rather than in the regulations - I said to her, at page 31 of our unrevised evidence of November 27, that the Governor in Council "would be able to delist any basins that were already listed." She answered:
That would, and that would effectively cut the guts out of proposed section 13. They need not enact exceptions that draw attention to what they are doing. The exception making power permits them to carve out exceptions in a different manner. There are two ways you can narrow the scope of proposed section 13. You can describe only one, or two or none of the basins or, if you have described a significant number of basins, then you could carve out exceptions from that. I cannot foresee any court ever objecting to that, because it is clearly contemplated by the act.
Again, getting slightly ahead of myself on these regulations, in the very next breath I asked her:
Is the idea that the Governor in Council can define almost any word in the act that is not already defined a normal type of regulation?
Ms Sullivan: No. Definition-making powers are given by way of regulation, but I have never seen such a striking one before.
Senator Carney earlier was speaking not only of the regulation-making power of the Governor in Council but of the enormously wide discretion given to the minister. Professor Sullivan spoke about that on November 27. She says:
Apart from having conferred quite a large regulation-making power on the Governor in Council, this measure gives a huge power to the minister. The discretion conferred on the minister is quite extraordinary, in my view. There is little in the bill itself to control that discretion. There is the treaty and various provisions in the treaty that might be appealed to, to narrow the discretion of the minister. For the most part, it is an untrammelled discretion.A little bit later:
Here, the minister can act, grant licences, fix the terms and conditions of licences and withdraw the licences. In fact, the minister can do any of these things without benefit of guidance by regulations. How he exercises his power or why he is exercising it does not even have to be public. If the Governor in Council chooses to enact regulations, then they will structure his discretion and limit it in the way set out in the regulation. However, there is nothing in the act that requires the Governor in Council to do that.She was providing, I think, a very cogent analysis of what can be done by the government acting and using its authority to make regulations or simply abstaining from doing so. To come back to Senator Bolduc's amendment, it would require that the basins be listed in the act and any changes to them be made in the act. Professor Sullivan has made it clear what the consequences could be of leaving that vital decision in the hands of the Governor in Council by regulations.
Senator Carney: I have some supplementary evidence to enter in regard to this point. Ms Sullivan also said on page 24, at 1710 on November 27, 2001, that:
The problem is that we have a very large transfer of power from Parliament to the Governor in Council in the form, first, of a power to make exceptions. Second, there is a power to define. For me, the key problem is that clause 13 is useless. It will not operate unless there are regulations in place which describe water basins.
Our amendment goes further than that. It takes the description of water basins and places it in the legislation itself. I think that would be a fairer presentation of Ms Sullivan's testimony.
The Chairman: Is it your pleasure, honourable senators, to adopt the motion?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
Ms Gravel: Honourable Senator Stollery.
The Chairman: Against.
Ms Gravel: Honourable Senator Andreychuk.
Senator Andreychuk: For.
Ms Gravel: Honourable Senator Austin.
Senator Austin: Against.
Ms Gravel: Honourable Senator Bolduc.
Senator Bolduc: For.
Ms Gravel: Honourable Senator Carney.
Senator Carney: For.
Ms Gravel: Honourable Senator Corbin.
Senator Corbin: Opposed.
Ms Gravel: Honourable Senator Day.
Senator Day: Against.
Ms Gravel: Honourable Senator De Bané.
Senator De Bané: Against.
Ms Gravel: Senator Graham?
Senator Graham: Against.
Ms Gravel: Honourable Senator Kenny.
Senator Kenny: No.
Ms Gravel: Honourable Senator Murray.
Senator Murray: Yea.
Ms Gravel: Honourable Senator Setlakwe.
Senator Setlakwe: Against.
The Chairman: Honourable senators, I declare the amendment defeated.
Shall clause 1 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chairman: For the information of the members of the committee, I believe I have three more amendments.
Senator Andreychuk: You think we have three amendments. Obviously, you have heard the most compelling comments made from Professor Sullivan's testimony. It will not surprise you that this is another amendment that I will propose that falls in line with that thinking. I move:
That Bill C-6 be amended in clause 1, on page 2, by replacing lines 29 and 30 with the following:
"(4) Subsection (1) does not apply to boundary waters used
(a) as ballast in a vehicle, vessel or aircraft, for the operation of the vehicle, vessel or aircraft, or for people, animals or products on the vehicle, vessel or aircraft; or
(b) for firefighting or humanitarian purposes in short-term situations in a non-commercial project.".
The Chairman: Would you like to speak to your motion?
Senator Andreychuk: Yes. We are echoing that all of the powers that would necessarily stay in an act under normal circumstances seem to have been whittled away to give the minister unfettered power through the use of regulation. This particular amendment is to put back those things that were in regulation that the minister wished in the exceptions. We are placing them in the act. This amendment is in line with the other amendments.
Senator Austin has stated that this use of regulatory power is normal and unexceptional. I am afraid he is right. For the last number of years, this government has consistently moved into regulation what should be within the purview of Parliament. You have heard Senator Di Nino say, as one witness testifying Bill C-11 said, that it is government by bureaucracy as opposed to representative democracy through Parliament.
This situation is worrisome because we are taking substantive legislation that properly should be within the purview of Parliament and we are moving it to the unfettered discretion with the minister. We have seen terms like "child," which should be defined by Parliament, moved into regulations. We have seen that in the Standing Senate Committee on Legal and Constitutional Affairs. In the Standing Senate Committee on Social Affairs, Science and Technology, we saw the definition of "terrorism" moved from a legislative base to a regulation base. Here we are discussing one of our most cherished commodities, water. With no malice or bad intent on the part of the minister, again, the draftsmen - that is, those who worked in putting this legislation together - somehow have won the day to say that it is more efficient and easier to put the discretions in the regulations because they can be so efficiently amended. That is exactly what we do not want. We do not want some of our fundamental issues moved quickly through regulation without the kind of dialogue and debate and, hopefully in some cases, compromise on issues that Canadians are facing.
Water is the single-most natural resource that I worry about. You can go to the United Nations, you can travel throughout Canada, and there is a quiet unease about water.
The minister signals that he does not want to export water, but if he wanted to do that and give people an assurance, surely he would put in the bill the main points about how water would be utilized, making it an absolute certainty that nothing could be changed until Parliament spoke with an all-party debate and decision.
Also, regulations have a habit of becoming pro forma. Perhaps Parliament would be alert to the first amendment, but thereafter we lose interest in regulations because we are overwhelmed with legislation.
I ask honourable senators to think about this fact: How often do you look at and scrutinize regulations? We do have a Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations. I have attended that committee. It is difficult for them to make a meaningful analysis of all subject matters. It is far from that kind of exercise.
At some point, honourable senators opposite should carefully consider how our powers are being whittled away by regulation. The House of Lords has taken a stance in England where the same tendency seems to pervade in the name of efficiency. They are now stopping legislation. They are putting up boundaries and we will see whether they are effective.
Honourable senators, we must do something about this problem. By virtue of these amendments, I think senators here are saying that we do not want to gut bills and put them into regulation. Keep the essentials of a bill in the bill and do not give unfettered power to ministers. As we continually have said, it is not this minister we are worried about. It can be the next one or the next one who may read the bill differently and may not feel bound by the same values and opinions as this minister. We cannot afford to keep chipping away at parliamentary power in this way, and we cannot afford to deal with fundamental issues such as water in this way.
My comments are to this amendment and to all the others. I wanted that on the record.
Senator Murray: Mr. Chairman, there was a magic moment on December 4. It is to be found at page 12 of our unrevised evidence. The moment occurred when Senator Austin's candour and professionalism won a close battle against his partisanship, and he was engaged in a legal or constitutional argument with Professor Bankes. Professor Bankes made the point that this is a prohibition provision and therefore outside the scope of the treaty, as I understand his argument, and it is rather a licensing provision, et cetera. Senator Austin wanted to say that this is not a prohibition at all. There he is, on page 12, he said:
Proposed section 13(4) reads:
Subsection 1 does not apply in respect of the exceptions specified in the regulations.
Therefore, it is not a blanket prohibition...
To which we say, "Just so." That is exactly our point.
The Chairman: May I put the question?
Is it your pleasure, honourable senators, to adopt the motion?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
Ms Gravel: Honourable Senator Stollery.
The Chairman: Against.
Ms Gravel: Honourable Senator Andreychuk.
Senator Andreychuk: For.
Ms Gravel: Honourable Senator Austin.
Senator Austin: Against.
Ms Gravel: Honourable Senator Bolduc.
Senator Bolduc: For.
Ms Gravel: Honourable Senator Carney.
Senator Carney: For.
Ms Gravel: Honourable Senator Corbin.
Senator Corbin: No.
Ms Gravel: Honourable Senator Day.
Senator Day: Against.
Ms Gravel: Honourable Senator De Bané.
Senator De Bané: No.
Ms Gravel: Honourable Senator Graham.
Senator Graham: Nay.
Ms Gravel: Honourable Senator Kenny.
Senator Kenny: No.
Ms Gravel: Honourable Senator Murray.
Senator Murray: Yea.
Ms Gravel: Honourable Senator Setlakwe.
Senator Setlakwe: Against.
The Chairman: I declare the motion defeated eight to four.
Shall clause 1 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
Senator Carney: We have another amendment to propose. Our amendment is:
That Bill C-6 be amended in clause 1, on page 4,
(a) by deleting lines 13 to 22; and
(b) by renumbering paragraphs 21(1)(e) to (m) as paragraphs 21(1)(a) to (i), and any cross references thereto accordingly.
Again, this amendment is consistent with our belief that the minister's unfettered powers in this bill should be constrained. The powers to specify "what constitutes a use, obstruction, diversion or work for the purposes of this act" and the words "defining, for the purposes of this Act, any word or expression used in sections 11 to 26 that is not defined in this Act" should be deleted. The minister's power to do anything he or she wants must be limited.
We have renumbered the rest of the proposed subsection because the rest of the powers are more or less consistent with normal ministerial powers. We would take exception with some of them, but a lot of the powers that are listed there respecting the form of the licences, information they must include, prescribing fees and things like that we consider to be a normal use of ministerial discretion and, therefore, subject to regulation. It is on the wide, extraordinary powers of the minister that we take issue.
On the question of the intent of the bill, I do want to refer to the evidence of Dr. Howard Mann, who repeated the fact that there is nothing in this legislation that prevents the licensing regime at the federal level to licence commercial exports. He has said that repeatedly. There is nothing in the legislation that prevents that from happening, meaning that the licensing regime can be used at the federal level to licence commercial exports.
We think that a bill this wide open - that is, one size fits all - that allows the minister to prohibit water exports from tablespoon size up, because bulk water is not in this bill, while at the same time giving ministerial discretion to authorize the licensing of water exports is not in the public interest and is not good legislation. We think our amendments will achieve what the minister himself came here and told us was his intent.
Does anyone else wish to speak on that amendment? Do you not want to repeat the minister's intent?
The Chairman: Is it your pleasure, honourable senators, to adopt the motion?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
Ms Gravel: Honourable Senator Stollery.
The Chairman: Against.
Ms Gravel: Honourable Senator Andreychuk.
Senator Andreychuk: For.
Ms Gravel: Honourable Senator Austin.
Senator Austin: Against.
Ms Gravel: Honourable Senator Bolduc.
Senator Bolduc: For.
Ms Gravel: Honourable Senator Carney.
Senator Carney: For.
Ms Gravel: Honourable Senator Corbin.
Senator Corbin: Opposed.
Ms Gravel: Honourable Senator Day.
Senator Day: Against.
Ms Gravel: Honourable Senator De Bané.
Senator De Bané: Against.
Ms Gravel: Honourable Senator Graham.
Senator Graham: Nay.
Ms Gravel: Honourable Senator Kenny.
Senator Kenny: No.
Ms Gravel: Honourable Senator Murray.
Senator Murray: Yea.
Ms Gravel: Honourable Senator Setlakwe.
Senator Setlakwe: Against.
The Chairman: I declare the amendment defeated.
Shall clause 1 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chairman: This, I believe, is the last amendment.
Senator Murray: I move, Mr. Chairman:
That Bill C-6 be amended in clause 1, on page 5, by adding after line 12 the following:
"(3) The Governor in Council may only make a regulation under subsection (1) where the Minister has caused the proposed regulation to be laid on the same day before each House of Parliament and
(a) both Houses of Parliament have adopted resolutions authorizing the making of the regulation, or
(b) neither House within thirty sitting days after the proposed regulation has been laid, has adopted a resolution objecting to the making of the regulation.
(4) for the purposes of paragraph (3)(b), "sitting day" means a day on which either House of Parliament sits."
Mr. Chairman, in the committee we have lost all of our attempts to remove some of the extraordinary regulation-making authority, the unfettered regulation-making authority proposed in this bill for the Governor in Council, and to transfer some of these powers to the bill itself and put these powers where they belong, in the hands of Parliament. We have lost all of our attempts to do that.
What I have here is what Senator Grafstein, were he here, would describe as an elegant amendment, which accepts for the moment, pending third reading, the fact that the Governor in Council would have all these extraordinary regulation-making powers, but that the government would have to table them before they become law, would have to table them in both Houses of Parliament, and that either or both Houses of Parliament would adopt resolutions authorizing the making the regulation, or by letting 30 sitting days go by without doing anything, they automatically come into force. Either House would have 30 sitting days after the tabling to adopt a resolution objecting to the making of the regulation. It is an elegant way to ensure that Parliament has the upper hand on the executive with regard to these regulations.
With respect to some of the expert witnesses who were here, none of those witnesses, I think it is fair to say, was against the intent of the bill. None of them, however, wanted to see the bill passed in its present form. All of them made quite constructive suggestions for changes that would help us to achieve the intent of the bill.
In the case of Mr. Appleton, for example, he said the following:
It is important for all senators to recognize that this bill, with warts or not, is the only piece of legislation that has come from Parliament dealing with this very important issue. It is difficult to get time on the parliamentary agenda. This bill addresses the issue of bulk water and the boundary waters.
... There are fundamental assumptions in the bedrock of this bill that are faulty. Some terms in the legislation are faulty. There are things that can be corrected ... If you can, deal with some of the domestic exceptions. Deal with the licensing regime so it is less of a wholesale licensing regime and something more akin to an environmentally sustainable regulatory framework that places a ban rather than anything else.A bit later, in an exchange between Mr. Appleton and Senator Corbin, Senator Corbin said:With those issues and the expansion of coverage through definition, a much better answer would be found. Rather than saying to this committee that you should not pass this flawed bill, I am suggesting a more constructive approach.
This bill, this initiative, does it make the whole process better in terms of our obligations to implement the contents of the treaty?Senator Corbin: Senator Murray, what is the significance of Version E of your motion? Is that a draft?Mr. Appleton: With all due respect, Senator Corbin, I would have to say "no" because of the flaws in the bill. I would like to agree, but I just cannot. If you remedied some of the flaws, I would say "yes," and I would like to say "yes."
Senator Carney: We have other amendments we could introduce should you wish. If this passes, we will drop the other amendments.
Senator Corbin: I was not being facetious; I was just curious.
Senator Carney: Speaking in support of Senator Murray's amendment, I do want to remind committee members that there is precedent in Parliament for bringing regulations back before the Houses of Parliament. It has been done in the environmental act. It has been done in other cases where there is a public issue of great concern and where parliamentarians are asked to scrutinize, comment on and debate the proposed regulations. That is what we are proposing that Bill C-6 be amended to include.
We have said consistently throughout our presentation that we support the intent of the bill as outlined by the minister, but we oppose the fact that it gives the minister unfettered powers to use extraordinary ministerial discretion to make regulations, possibly in secret, that could prohibit but could licence water exports. Let us not kid ourselves. That is what this bill does.
Our last-stand remedy at this point is to say that if you want to adopt ministerial discretion, if you want to use these extraordinary powers, if you want to do it in secret, then at least bring the regulations back to Parliament where they can be publicly scrutinized and examined.
My final point is that this issue will come back to haunt us. This bill will come back to haunt "you" because the record will show that the Liberal government knew that this bill gave powers to the government to export water in secret, without public scrutiny, that the evidence was presented, that it was well understood, and the government decided to proceed with this bill in the face of that evidence. That will come back to haunt you.
The Chairman: I will call the vote. Is it your pleasure, honourable senators, to adopt the motion?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chairman: Madam Clerk.
Ms Gravel: Honourable Senator Stollery.
Senator Stollery: Against.
Ms Gravel: Honourable Senator Andreychuk.
Senator Andreychuk: For.
Ms Gravel: Honourable Senator Austin.
Senator Austin: Against.
Ms Gravel: Honourable Senator Bolduc.
Senator Bolduc: Yea.
Ms Gravel: Honourable Senator Carney.
Senator Carney: For.
Ms Gravel: Honourable Senator Corbin.
Senator Corbin: No.
Ms Gravel: Honourable Senator Day.
Senator Day: No.
Ms Gravel: Honourable Senator De Bané?
Senator De Bané: Against.
Ms Gravel: Honourable Senator Graham.
Senator Graham: Nay.
Ms Gravel: Honourable Senator Kenny.
Senator Kenny: No.
Ms Gravel: Honourable Senator Murray.
Senator Murray: Yea.
Ms Gravel: Honourable Senator Setlakwe.
Senator Setlakwe: Nay.
The Chairman: Honourable senators, I declare the amendment defeated by a vote of eight to four. If it is acceptable to honourable senators, I shall continue.
Shall clause 1 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chairman: Carried, on division.
Shall clause 2 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chairman: Carried, on division.
Shall the title carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chairman: Is it agreed that this bill be adopted?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chairman: Carried, on division.
Is it agreed that I report Bill C-6 to the Senate?
Hon. Senators: Agreed.
The committee adjourned.