When a bill is big, complex and nearly unreadable, you can get away with a lot
The budget omnibus bill was best described by Terry Glavin the other day as a “statutory juggernaut that introduces, amends or repeals nearly 70 federal laws.” (Ottawa Citizen, May 5, 2012 “Something’s fishy with Bill C-38”).
What Canadians are beginning to realize is that the budget omnibus bill, or Bill C-38, is an outrage. There is much in the budget that was never hinted at, but there are also claims of what is in the bill that simply are not there.
Aspects never even hinted at in the budget itself include removing over-sight from the Canadian Security Intelligence Service and changing entitlement to Employment Insurance (this is still vague but appears to allow refusing EI to anyone if there is any job available, even not in their field).
Nearly half of the budget implementation bill is directed at re-writing Canada’s foundational environmental laws. The budget never mentioned that the Fisheries Act was to be re-written, gutting habitat protection and restricting federal action in many instances to commercial, recreational and Aboriginal fisheries. Rumours abounded due to a leaked memo to retired Fisheries scientist Otto Langer, but there was nothing in the budget about it at all. But C-38 devotes a lot of space to the overhaul of protection of fish habitat. If a human isn’t catching a fish, there is no protection for its habitat. There was nothing in the budget about changes to the Species at Risk Act, putting the National Energy Board (NEB) in charge of permitting destruction of endangered species and their habitat found on the proposed route of a pipeline; nor for the supplanting of the NEB as arbiter of pipelines under the Navigable Waters Protection Act (NWPA). The NWPA is amended such that pipelines are no longer considered an obstruction to navigation – even if they are.
Although it was abundantly clear that a large focus was to be “streamlining” the environmental assessment process, the advanced hype focused on time limits for hearings. It was nowhere mentioned that the Canadian Environmental Assessment Act was to be repealed. C-38 wipes out the law and introduces an entirely new approach to environmental assessment.
With so many new laws and repeal of old laws and complex text, the Conservative ministers speaking in the House in support of C-38 frequently claim the Act will include measures that are simply not there at all, or mis-state how the new laws will operate.
I have heard members and Cabinet ministers claim the Act adds to environmental protection through increased tanker safety – but that is not in Bill C-38. I have also heard members and ministers claim that the substitution of a federal environmental review is only allowed if the province has an “equivalent process” or as Parliamentary Secretary Michelle Rempel would have it, only if the provincial review is, “As good or better,” Whenever opposition members ask about the appalling nature of the omnibus bill, the Conservative talking points include a gratuitous insult, “Perhaps if the Member opposite would actually read the bill...”
I would find it refreshing if any of the Conservatives speaking for the bill had read it. I went over to one Conservative MP to inquire where he found the equivalency provisions and he pointed to the bill’s summary -- not a legislatively operative section. True, the summary section claims the processes must be equivalent, but the bill itself falls short of that or any other objective criteria. The provisions allowing for a provincial government to sign an agreement to substitute the federal environmental review with a provincial review are a strange combination of discretionary and mandatory language.
Discretionary: “If the Minister is of the opinion that a process for assessing the environmental effects of designated projects that is followed by the government of a province...that has the powers, duties or functions in relation to an assessment of the environmental effects of a designated process would be an appropriate substitute (mandatory) the Minister must, on request of the province approve the substitution.” (Section 32, on page 51 of C-38.)
What would make the minister think it was “appropriate”? “Appropriate” is not defined. Maybe Environment Canada is short of cash? Maybe the province is looking for a major development and wants it rubber-stamped quickly? There is nothing to rule out an exercise of discretion without any ability to justify it as “equivalent.” Once the Minister has reached that conclusion and a province requests a substitution, there is a mandatory duty to pass over the federal role to the province.
I am unsure if I have found everything alarming in C-38. I cannot, for example, figure out why one section of the Fisheries Act is placed more than a hundred pages removed from the rest of the Fisheries Act changes, and I also cannot figure out what the stranded “Fish Allocation for financing purposes” (page 289, section 411 of Fisheries Act) amendments are supposed to do. It looks like a scheme for selling fish or equipment for financing government activities. But that is pretty bizarre.
I am sure that putting all this in a fast-track budget bill, with time allocation on debate and heading to the Finance Committee, is a direct assault on the principles of Parliamentary Democracy.
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