[Recorded by Electronic Apparatus]
Wednesday, May 8, 1996
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[Translation]
The Chairman: Good afternoon, ladies and gentlemen.
Pursuant to our order of reference, we'll be hearing representatives from the Canadian Environmental Law Association and their opinion on the new estimates system.
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First, I'd like to draw your attention to the report the Auditor General published yesterday.
[English]
Yesterday the Auditor General produced a number of chapters, if you like. Chapter 2 is entitled ``The Implementation of Federal Environmental Stewardship''. It sure raises a number of interesting points that I will neither elaborate on nor put on the record, except to say that one ought to read paragraph 2.57:
Environment Canada, working with other departments and agencies, should clarify those greening activities to be carried out under the amendments to the Auditor General Act and those to be carried out under the Code of Environmental Stewardship.
There is enough there in that paragraph to make you pause to think.
On the same page, I read such things as ``Somebody needs to accept full responsibility for the greening process.'' I'm sure the members of this committee would be extremely receptive to that. Another one reads ``Crown corporations remain formally excluded from the process.'' I'm reading from page 2-17 of the Auditor General's report.
What I would propose, with your concurrence of course, would be to invite the Auditor General to expand on the content of this report. As you know, he has produced some very interesting reports on the environment in the past. For instance, in 1995 there was one entitled ``Managing the Legacy of Hazardous Waste'', and also another one entitled ``Federal Radioactive Waste Management''. So the Auditor General keeps an eye on the environment and produced this report yesterday. With your concurrence, I will therefore try to arrange for a meeting or two with him or his staff, possibly for the end of the month.
Are there any comments or questions? If not, I will ask our witness, Mr. Muldoon, to come to the table. He was originally accompanied by the executive director of the CIELAP, Ann Mitchell, but apparently she is abroad.
Mr. Muldoon, we are very happy to have you with us and to hear your comments on the approach to estimates and the design of the estimates themselves. I understand there is a brief. The floor is yours. Thank you very much for appearing.
Mr. Paul Muldoon (Counsel, Canadian Environmental Law Association): Thank you,Mr. Chairman.
What I would suggest is that perhaps I could speak for about fifteen minutes, or maybe a little less. I would then respond to any questions that the members of this committee may have.
A review of the 1996-97 estimates for Environment Canada provides an opportunity not only to review proposed expenditures, current plans and a record performance, but also an opportunity to reflect on the direction and role of the agency. The purpose of this submission is to provide some general commentary on the overall role of Environment Canada in upcoming years, and then to provide some specific comments on the 1996-97 expenditure plan. Although the expenditure plan raises many questions of significance, this submission will be limited to a number of issues of particular interest to the Canadian Environmental Law Association and the Canadian Institute for Environmental Law and Policy.
The Canadian Environmental Law Association is a legal aid clinic in the province of Ontario. Our mandate is both to represent clients who have an environmental problem that meet certain guidelines, and also to ensure for better and more effective environmental law, both provincially and federally. So I'm here wearing that hat as a lawyer and as a member of the environmental community at large in the country.
I'm also chair of the toxics caucus of the Canadian Environmental Network. That is a network of groups across the country that organize themselves into certain subject categories. The category that is of interest to my association and a number of our active members is toxic chemicals, which is one of the areas I'll be focusing on in terms of the implications for these estimates.
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What I would like to talk about are two things really: some general comments on the role of the agency as it is reflected in the estimates, and some specific comments and notes about the estimates themselves.
I have to preface all of my comments into the subject of the Canadian attitude towards regulation. I do this because I think it's of fundamental importance to the members of this committee that you get input from the Canadian public as to the importance of environmental issues. In our view, the overall evidence that I'm about to suggest to you is that Canadians want more protective standards, not less. They want a strong role for environmental agencies in that protection, and this attitude is irrespective of the economic situation of the country. In fact, five recent polls in Canada suggest that the public is concerned about the direction being taken by both levels of government in terms of their approach to environmental protection. The polls indicate that contrary to the trend, the public wants stronger, not weaker, government action to protect the environment.
I will not go through all the polls, but through the clerk we did submit a submission for you to review, along with various attachments. All of the sources and footnotes, and a more detailed commentary, are provided in that submission.
The first poll was in July 1995, by Ekos Research, which found among members of a general population sample that clean environment was only second to freedom in a hierarchy of values of the federal government.
The Canadian Council of Ministers of the Environment also commissioned a series of polls. The 1995 poll indicated that the majority of respondents believed Canada has only gone 30% of the way towards a safe environment. Seventy-eight percent said environmental regulations should be strictly enforced even in times of recession.
Finally, recent polls that surveyed business attitudes confirmed the importance of strong laws and regulations. KPMG Management Consulting conducted polls of over 300 businesses, school boards and municipalities, in both 1994 and 1996. In those polls, it stated that over 90% indicated their primary motivation for establishing environmental management systems was compliance with regulations. Only 16% in 1994 and 25% in 1996 were motivated by voluntary programs.
It follows from these polls - the ones I have spoken to you about and those listed in our submission - that there is a trend to an ever-increasing support for environmental protection through regulation, rather that deregulation and voluntary measures. It also indicates that the Canadian public wants governments to take a more proactive leadership role in environmental protection.
If that's the case, then, what is the role for the federal government? Again, in the attachment there is a more in-depth paper on the issue, in which we've defined some six different roles for the federal government. Let me just identify three of them.
In our view, the federal government must have a leadership capacity on international environmental issues, whether it be a climate change or ozone depletion or trans-boundary air and water. It must retain this responsibility for ensuring that Canada's environmental international obligations are fulfilled.
It also must have a capacity for leadership on national environmental issues. The federal government, it seems to us, must provide leadership in areas that are national in scope, whether they be toxic substances, pesticides or biotechnology. No other government in Canada has that mandate to do so.
It must also ensure that there's a minimum level of environmental protection for all Canadians. One of the most essential roles for the federal government is to ensure that it protects Canadians even when the provinces have not the capacity to act, or will not act, to ensure adequate environmental standards.
That is our view of a strong environmental role for Environment Canada. We recognize, though, that there are many challenges. I want to pinpoint for the committee two of those challenges that we think have dramatic impacts and ought to be on top of your mind during your deliberations.
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The first challenge is the continued trend of devolution of roles and responsibility from the federal to provincial governments. Two current initiatives in this regard which are being vigorously opposed by the environmental groups include the proposed environmental management framework agreement by the Canadian Council of Ministers of the Environment and the devolution of various approval and enforcement responsibilities under the Fisheries Act. I'd be happy to comment on those initiatives, but those are two we've tagged as being very problematic.
The second trend is a move away from regulatory approaches in favour of voluntary non-enforceable approaches to environmental protection. I'll want to speak to this in a few minutes.
Those are our general comments on the need for a strong federal role to protect the environment, the public mandate that supports that view, and the challenges before Environment Canada in environmental policy-making and regulation-making in Canada.
We did have the opportunity to review the 1996-97 estimates. One of the most disconcerting issues with the estimates is the continual shrinking trend of resources for Environment Canada. From 1995-96 to the next fiscal year the budget will shrink another 16%. This percentage decrease is consistent with the results of the program review calling for a $230 million reduction, which is some 30%. This includes elimination of some 1,400 positions and a number of key programs.
As in many other agencies, opportunities for cost savings through more efficient use of resources and better coordination of services certainly should be welcomed. However, one of the key concerns is that this estimate plan demonstrates that Environment Canada is in the process of reducing both its influence and its scope of activity in the protection of the environment for Canadians. While Canadians clearly want more government action to protect the environment, the institutional capacity of Environment Canada to deliver on those expectations is declining.
Let's look at some evidence for that statement. The first deals with one of the first program activities, which is Healthy Environment, and in this context the toxic section. The toxic component of the healthy environment program is reduced by some $10.5 million, which is approximately32 full-time positions. To us this is very surprising, for a number of reasons. One is that the proposed amendments to the Canadian Environmental Protection Act, amendments reconfirmed in the last throne speech, would certainly place more resource demands on the department. In particular, chapters 5 and 9 will certainly require more, not less, resources dealing with toxic chemicals.
Moreover, many members may have heard the emerging, growing debate over new areas of concern dealing with toxic substances, in particular the area of endocrine disrupters, which affect various hormone activities of wildlife and probably humans. Certainly this will present dramatic concerns for the Canadian public, and certainly Environment Canada should be positioning itself to understand this issue better and respond to it better.
While one would presume these issues would lead to an increase, as opposed to decrease, in agency capacity to deal with the new demands, the details of personnel requirements are telling. Figure 14 of the estimates reveal that one of the key areas where the personnel requirements will be dramatically reduced is scientific research. Scientific research has personnel reduced from 261 to 221 positions. When that's added in with physical sciences, it's one of the key cuts in the estimates. To us that is a problem, and we would like to have some explanation for why the scientific realm is one of the hardest hit, in our view.
Another area of concern deals with the commitments to the Basel Convention. In the estimates document Canada's obligation under the Basel Convention is clear. However, one of the work plan items under that is of concern. It states that a list of recyclables not subject to the Basel ban will be submitted to the fourth conference. The problem we have is that our understanding of the Basel ban is to ban the export of hazardous wastes from OECD to non-OECD countries for recycling and energy recovery. The ban may affect metals that are classified as hazardous substances, such as lead or mercury, that are contaminated with hazardous materials.
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The problems of such exports are well documented, especially the export of waste for disposal being disguised as export for recycling. The ban is strongly supported by other countries to the convention, particularly non-OECD countries.
Our concern is that Canada is attempting to block the implementation of the ban or to undermine it through the redefinition of ``waste''. In our view, Canada should seek to ratify the amendments as soon as possible.
It is for this reason that the legitimate question should be asked as to whether the context, purpose and substance of this list that Environment Canada is creating is to define specifically those recyclables that are completely environmentally benign, or a means of extending the literal definition of ``recyclable'' in an attempt to avoid the ban as set out in the Basel Convention. Again, we do not know, but it raises a concern to us.
The next issue is the fact that the funds will be eliminated under the contaminated sites program for the clean up of high-risk, abandoned contaminated sites. The problem with contaminated sites in Canada has been extensively reviewed by the Auditor General of Canada in May 1995. It's estimated that there are approximately 1,000 sites in Canada, with a clean-up cost of some $3 billion. About 5% of these sites are orphan sites in the sense that the responsible parties are either unknown or unable to take remedial action.
While Environment Canada seeks to eliminate funding under this, we think, consistent with the findings of the Auditor General, that there's a role for the federal government in the clean-up of the country's hazardous waste sites.
On page 7 of our submission we list specific areas in which we think the federal government ought to have a continued role. It should be noted, with respect to this last point, that at least half of the 326 federal sites need action immediately or in the near future. There is also a funding issue for the orphan federal sites in light of the fact that funding for federal sites through the national contaminant remediation program is no longer available.
In the end, Environment Canada must come to grips with the contaminated site clean-up in Canada. The jury is still out, in our mind, as to how the department intends to deal with many outstanding issues on this topic.
Similarly, like the contaminated sites situation, the problem of storage of PCBs is well known. In 1993 there were some 110,000 PCB-containing items in use or in storage at 6,000 locations across Canada. The amount of PCB waste totals some 125,000 tonnes.
It is disconcerting, therefore, that Environment Canada is eliminating the PCB destruction program without a comprehensive plan. Moreover, the options that were considered during the time of the Auditor General's report, namely the use of Swan Hills facility or the export of the waste to the United States, are simply inappropriate in our mind.
It should be submitted that the Auditor General's recommendation that Environment Canada should continue its leadership and its coordinating role in assisting departments to dispose of their PCB waste is an appropriate one. In particular, this leadership is essential if the goals are to be met that deal with the 50% reduction of PCB waste stored in Ontario by 2000, as outlined in the 1994 Canada-Ontario agreement.
The next issue I'd like to move to quickly is that of compliance under the healthy environment program. As a result of the budget reductions for the 1996-97 fiscal year, Environment Canada is proposing to utilize resources from other agencies to enforce CEPA. In our view, this is a problem.
As you might be aware, at this point Environment Canada has a disappointing record on the enforcement of CEPA and the statistics of that are outlined in our submission. In our view, the dispersion - if you could call it that - of enforcement activities for CEPA is a problem. It's a problem because of the consistency of the approach.
Also, since enforcement staff in these agencies will only be accountable to their own departments, Environment Canada will be unable to exercise any authority to prevent inconsistent or ineffective responses to violations. Moreover, the enforcement personnel in other agencies will not have the necessary familiarity with the act or the requisite technical training to undertake environmental investigations.
By devolving environmental enforcement functions to other federal and provincial agencies, the government is pursuing an option that is directly counter to your committee's report titled It's About our Health! Towards Pollution Prevention.
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It's recommended that even with these budget cuts Environment Canada should focus its efforts on finding innovative ways to achieve the standing committee's recommendations to strengthen, not weaken, its enforcement functions and attempt to find ways other than to devolve responsibility for enforcing CEPA to other federal and provincial agencies.
I'd like to address two other areas. One deals with the healthy environment section dealing with the Great Lakes 2000 program. There are two areas here. One is that throughout the estimates it is apparent that the trend for Environment Canada is to move to a voluntary approach in many of its areas. I'd like to pinpoint two examples for you.
One with the Great Lakes program is that efforts to reduce substances of concern in the Great Lakes agreed to by the Canada and Ontario agreement will ``involve the promotion of voluntary actions as a complement to existing regulatory approaches''. Similarly, there is a commitment to extend voluntary agreements that are already in place. The basic thrust of these voluntary agreements is to have industry reduce specific pollutants through a series of actions.
Each of these agreements is different, so it's hard to generalize, but overall we have two problems with this voluntary approach. One, it appears as if Environment Canada is relying almost exclusively on a voluntary, as opposed to a regulatory, approach. This is particularly problematic in light of the fact that some of the substances that they tend to deal with through a voluntary approach are in fact the most dangerous ones.
What's at issue is the question of whether over time Environment Canada is losing its capacity to regulate. The capacity to regulate cannot be easily regained, and that's of major concern to us. The second is that Environment Canada's reliance on the volunteer approach continues despite lack of an external audit, verification of data, or overall clarification of how it's going to approach.
The primary motivation of industry still is compliance with regulations. I gave those statistics earlier. A number of studies critique the voluntary approach, and we have appended those studies to our submission. We urge you to look at that, because we think some legitimate questions ought to be raised when one relies on the voluntary approach. I will simply tag three. There is a loss of accountability of the regulated community, as well as of government decision-makers. There is a loss of due process. In particular, we should note that most of the voluntary initiatives dealing with pollution were negotiated between the regulated community and government to the exclusion of the public.
Most importantly - I should just mention this - as a general rule voluntary agreements expressly recognize the ability of governments to regulate regardless of the agreement. However, in practice this presumption by the regulated industries is that government will not be acting or regulating in the areas covered by a voluntary agreement. In other words, industry is willing to risk a short-term detriment as defined in the voluntary agreement in order to cover the field and anticipate other, more stringent, regulatory action by government.
We think that in many of the areas covered by these voluntary agreements the legitimate public debate as to whether or not the provisions are strict enough, whether they're appropriate, and whether they are comprehensive in effect has been pre-empted. That's a major concern. The research papers we have given to you outline in detail some of our concerns there.
Let me close with two comments in particular. The last comment deals with the Action 21 program, which is the program that essentially gives grants to non-governmental groups. This replaces the Environmental Partners program.
In preparation for today I had the occasion to call some of my colleagues and ask about the direct action program, and the concern was this. Although it gives resources to some very deserving groups, they tend to be more or less on-the-ground issues and void some of the grant-making to the issues of a more controversial nature.
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One example is that in the early 1970s the classic treatise in environmental law, Environment on Trial, was heavily funded by the Environmental Partners Fund. In fact, it's fair to say the book would probably not have come about without that program. This book is now a standard text in most university courses on environmental law, and in law school and outside of law school.
In our view, publications like that, which critique and in fact serve to advance the development of policy and law, would not be funded by the Action 21 program. That's a real concern to many people out in the community.
Again, let me just state that many of the detailed comments on the issues I've raised are in our submission.
My last comments relate to this: one of the things we did attempt was to look at the longer-term trend of funding to Environment Canada. And the estimate plan did not allow us to look at the changes to the funding base and at the changes to programs at Environment Canada over the last decade, let's say. This is of major concern to us, because we take your request for our comments very seriously. We do not have the basic baseline information to give our comments on the trends because the business plan is very short term. It says here are a couple of fiscal years and here's the trend. We'd like to know the long-term view of what's happening and we simply don't have that information. Because of the realignment of programs year after year, we can't - with any degree of credibility - give that to you.
So if there are questions you may be able to give to the Environment Canada personnel, we ask you to ask for that kind of long-term view of where Environment Canada is going in terms of funding and program development, because we certainly have problems trying to get that evidence to you.
Thank you very much.
The Chairman: Thank you. Madame Guay, s'il vous plaît.
[Translation]
Ms Guay (Laurentides): If I understood the gist of your report, or at least your deductions concerning the new Environment Canada budget, there's a concern about the huge cuts that will be harmful to our environment. I know that environment used to be a priority, although it seems to have dropped on the list recently, not necessarily in the public's view but maybe in the government's.
When we see the number of suits brought against a certain number of polluters, we can only say that they are very limited in the scope and that very little work has been done in that area. You didn't say anything about it, but I think it should be emphasized.
You said something about volunteer programs that are also a concern because no consistent follow-up is done. There's not much control at that stage either.
Could you briefly summarize the improvements we could bring? We can't change anything about the cuts, but maybe we can change the affected sectors with a view to improving our environmental situation. Earlier, you mentioned the scientific programs in environmental research that are seriously affected by these cuts.
[English]
Mr. Muldoon: That's a very difficult question, but you have correctly pinpointed the three main areas of our concern. The scientific capacity seems to be diminished. The regulation capacity of Environment Canada seems to be diminished. And the enforcement capacity of Environment Canada seems to be diminished. It seems to me that these are three of the very core responsibilities of Environment Canada, and it's very hard for us to figure out how to realign Environment Canada to work towards those three core capacities. That is certainly worth an in-depth look.
In terms of how you realign that, we're not sure. In terms of the science, the environmental community per se has often stated that we don't rely on science enough and that in fact we rely on bad science. In our view, it's quite the opposite. We want the scientific basis for our policy and legal reforms, because, quite frankly, we think science is on our side. Science verifies the kinds of reforms we have. That's one of the disconcerting things within Environment Canada. In our view, the scientists at Environment Canada are the best way of establishing the argument for a stronger environmental program.
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I'm afraid I can't give you a specific response as to how we realign and reassign the funding, but in our view those three core capacities - the science, the regulation-making, the enforcement - certainly ought to be front and centre. Then you can see how everything else can fit around those core capacities.
[Translation]
Ms Guay: Thank you for that information. Your summary was also excellent. Many concerns still remain. Have any of the environmental groups approached you about these new estimates?
[English]
Mr. Muldoon: One of the responsibilities I have as a chair of the caucus on toxins is to ensure that those comments of members of the caucus - the work group dealing with those groups interested in the issue of toxic chemicals - are filtered through committees like this. I have spoken to a number of groups and I think there is a fair number of groups within the circles in which I travel that would be very sympathetic to the comments I've made today.
Many are worried about and have grave concerns about the emphasis on volunteerism versus the regulatory approach. Many groups are very concerned about the lack of capacity for enforcement, and many are concerned about the overall capacity of Environment Canada for a strong scientific base. I think the answer is yes. I think there are many groups who would, in effect, sign on to the kinds of comments I've made today.
[Translation]
The Chairman: Thank you, Ms Guay. Ms Kraft Sloan.
[English]
Mrs. Kraft Sloan (York - Simcoe): On page 4 you have outlined a few challenges. For the committee members, could you talk about the devolutions under the Fisheries Act? Could you please give us an overview of that, and tell us your concerns about those things?
Mr. Muldoon: There's a footnote in the response that gives the source for a very in-depth paper.
The Chairman: Where?
Mr. Muldoon: There's a footnote in the paper that gives the source of a very in-depth paper undertaken by the Quebec environmental law centre on that issue. I would urge you... I can certainly submit a copy of that paper. It's a very in-depth analysis of the proposal, a reponse by the environmental community, and a large number of groups signed on to that response. I forget the number of groups, but it was quite large.
There are a number of concerns. One of the most important is that one of the core responsibilities of the federal government in the Constitution is fisheries. It's in section 91 of the Constitution Act, 1867. In our view, to devolve the ability to issue authorizations and enforce that provision flies in the face of the core responsibility of the federal government.
Second, the devolution of those responsibilities to the provinces presumes that a province is willing to take on that responsibility. In our view, there are some provinces that do not have the capacity to undertake the responsibility for issuing authorizations and enforcement responsibilities under the specific sections of the Fisheries Act, and there are provinces that will not take on those responsibilities.
In my view, the issue for the Fisheries Act is not devolution, because there's no one you're handing it off to. It's abrogation. That's the effect of this proposal. That's why we're very strong on the issue. It ought to remain a core responsibility of the federal government.
Third, the other issue is that the authorization issue under the Fisheries Act is a trigger to the Canadian Environmental Assessment Act. In other words, where there's an authorization under section 35 of the Fisheries Act, it's a trigger for a federal environmental assessment. By devolving that to the provinces, that trigger is removed from the Canadian Environmental Assessment Act.
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Part of the negotiations - which are multi-stakeholder - for the development of that regulation under the Canadian Environment Assessment Act was that trigger would be there. So we feel there's a real problem there. But second of all, it is to us a cornerstone of federal responsibility that the Canadian Environmental Assessment Act be triggered in areas where there will be an impact on Canadian fisheries.
So those are the three main reasons. And again, I urge you to look at the research paper submitted by the Quebec Environmental Law Centre. It's an excellent review of the issue.
Mrs. Kraft Sloan: What are they proposing to substitute for the devolution of this section?
Mr. Muldoon: My understanding is that they're trying to think through some of the proposals.
I can state quite unequivocally that the dozens of groups that signed on to the position paper on this issue have stated that what's needed is federal regulations to clarify when the trigger for the Canadian Environmental Assessment Act can be undertaken, and to clarify and scope out the authorization so that it works more efficiently and works to address some of the concerns raised by the Department of Fisheries and Oceans and the regulated communities.
We do not support the devolution, so the only option in our books is to issue regulations that clarify the situation to address the concerns on the table rather than to devolve it.
Mrs. Kraft Sloan: What are the concerns by DFO around them?
Mr. Muldoon: I think there are a number, but the main one is capacity. They feel that this, in part, is an issue that it is too much of a strain on the department - and I don't want to speak for them. Our issue, how to get around that, is to define more clearly when this provision would trigger the Canadian Environmental Assessment Act.
Right in the Fisheries Act itself, there's authority to make regulations to clarify that. To us, that's the way to do it. Clarify the situation. Don't hand it off to the provinces, some of which don't have the capacity to deal with this action.
Mrs. Kraft Sloan: How widespread is this concern, and strongly felt is it -
Mr. Muldoon: By the environmental community?
Mrs. Kraft Sloan: - and are there other groups out there?
Mr. Muldoon: I'll dig it up in my notes here, because I actually have it. But I know there was a broad, public-interest series of groups that signed on to the document and were very strongly opposing the devolution. I forget the exact number, but I can dig it up for you. It's a large number, and it's not just environmental groups. It's community groups...a broad array of public interest groups.
This is one of these issues that has not really made front-line press, but it certainly has consumed a very considerable amount of time of environmental groups across Canada because of the very serious implications they perceive resulting from it.
Mrs. Kraft Sloan: Have you had discussions with DFO on this?
Mr. Muldoon: Various members of the working group from the environmental community side have met with various officials of the Department of Fisheries and Oceans. It's been one of these conversations where we have put our views on the table very clearly. We're hoping they're listening, but we don't know.
Mrs. Kraft Sloan: Thank you, Mr. Chair.
The Chairman: Mr. Muldoon, thank you.
Following up on this line of questioning, as you know, this committee is facing estimates that are the result of a 1995 budget. That budget drives down the levels of funding available to a number of departments, including Environment and Fisheries. That has the effect of bringing down the capacity of these departments. So we know where the source is, if we want to go far enough upstream. We know where the cause of the problem is.
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What we don't know and what this committee is trying at times to establish is at what point of reduction does a breaking point set in whereby the statutory performance of the department under scrutiny, which is in this case the environment department, is not only seriously endangered but is damaged? At what point in the budgetary reduction process can this committee raise the cry, saying this is the furthest you can go, but not beyond this line, otherwise you are putting this department in the position of being in non-compliance with its own mandate? Therefore, we need some help here in determining where that breaking point is.
We all appreciate very much your study and the fact that you're bringing to our attention how the person-years have been reduced in each department and where we are already failing to implement. But we need to know at which point the weakening of the budget is going to have that counterproductive effect, in legal terms vis-à-vis the instrument or the various instruments under which the department operates, and secondly, in terms of ecosystem protection, keeping in mind that at the same time, the provincial government of Ontario is dismantling seriously and yet wants to be given certain powers in the environment and is likely to demand them in June.
So there is a weakening in the capacity at the federal level and at the provincial level, yet there is a desire for a shift in powers. Are the municipalities going to become the custodians of the environment? Are they going to be the last line of public responsibility in the implementation of statutes that are federal and provincial? It would be rather absurd, but I'm trying to give an indication how a certain line of thought could go.
Could you please give us the benefit of your comments?
Mr. Muldoon: I suspect that my overall comment is one that will probably couch as being naïve. We have spoken strongly against the program review commitment, which was a 30% reduction. We said at the time, and I'll reiterate now, that -
The Chairman: We know that, but now we are in the soup.
Mr. Muldoon: You see, we haven't given up on it. Every department suffered a 30% across-the-board cut. We said there should be exceptions to the rule, and Environment Canada should be one of them. Its mandate is to protect public health and the environment, and we haven't given up on that fight. That's why I prefaced my comments, saying here's a naïve environmentalist again. But we have not given up that fight. We think, and I've always thought, that a special case can be made for relaxation of the 30% rule.
Having said that, though, we then would underline to this submission, Mr. Chairman, the standard Environment Canada set for itself. On page 38 of the estimates, for instance, it says that CEPA, the Canadian Environmental Protection Act, will be a vehicle providing national leadership and standards in environmental and health protection, ensuring government complies with its own laws. So that's one standard it creates for itself.
Our argument is, with those kinds of budget reductions, will it have the scientific capacity to set standards, will it have the regulatory capacity to set standards, and will it have the enforcement capacity to enforce them?
So where is the breaking point? I think I could probably get into a very good argument with colleagues at Environment Canada, but I can assure you that looking at the polls, which I have outlined to you, and talking to the groups and citizens I have occasion to deal with on a daily basis, I think Environment Canada right now is on the brink of being incapable of living up to the public's expectations and delivering on its own commitments. I think we're at that point.
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I don't want to sound overdramatic, but coming from Ontario I can see what you quite rightly point out, the dramatic move towards deregulation and devolvement provincially. I should add that this is not just in Ontario but in other provinces as well. Who's going to pick up the slack?
I think that overall, both levels of government are out of sync with public expectations. There has not been a single poll which suggests that environment should be sacrificed at the cost of the economy, yet we see the kind of evidence before us and partly demonstrated in the 1996-97 estimates plan.
I don't want to sound dramatic but I'm afraid that from the public expectation point of view we're at the breaking point. I don't know how better to respond, but that's unfortunately the case, in our view.
The Chairman: Will we be at the breaking point also next year when you come before us at the next set of estimates, or will we have crossed that threshold?
Mr. Muldoon: In the next set of estimates I'll probably be doing an analysis of what needs to be done in terms of the Canada-Ontario agreement, which is very strict timelines, and the Canadian Environmental Protection Act and all the other commitments. Let me give you the Canada-Ontario agreement. I will hopefully be submitting to you some very detailed analysis of what was committed in 1994 and what was able to be delivered. I'll leave to you whether or not that's sufficient.
We argued very strongly in 1994 that to clean up the Great Lakes you needed an agreement with the province with very strict timelines. We were gratified when the two levels of government did put in timelines and specific goals and commitments. Now it's time to see whether or not they live up to that. We're going to provide you with both good and bad evidence, hopefully next year, of what happens.
The Chairman: As a citizen and not as an environmentalist, are you satisfied that the ratio of 3% of deficit in relation to the GNP that the Government of Canada has reached is an adequate ratio to turn the tide and resume an expansion of the budget?
Mr. Muldoon: Let me just rephrase the question and put the response like this. If you just look at the contaminated sites issue, the PCB destruction issue, these are environmental disasters but they're also economic disasters. Strong environmental regulation is like an investment: you suffer a little pain now to prevent the kinds of clean-up costs that are now faced by both the federal and provincial governments. So spending on environment is not a cost, it is an investment. Over time it pays back. That's what we're concerned about.
We will not support silly regulation. We agree that the regulatory system has to be improved, streamlined, and made more efficient, but to us, moving towards non-regulatory approaches and non-action is a bad environmental decision and a bad economic decision. Looking at the numbers in our submission, just on contaminant sites alone, I think those add a lot of evidence to that view.
The Chairman: Would you urge the government to go below the 3% ratio of deficit to GNP?
Mr. Muldoon: I'd have to couch that in terms of environmental matters. Our submission states that more money has to be put into the kind of capacity building we're talking about.
The Chairman: Would you rather seek the funds from a lateral shift from national defence, for instance?
Mr. Muldoon: With some thought I'm sure we could come up with a plan to reallocate the moneys. One of the issues, which you've heard in this committee before, is subsidies to industry. I think there has been some work done on that already, in terms of which industries you subsidize and which ones you don't. Could some of that money be put towards preventative programs rather than other programs?
I think there needs to be that broader discussion and I wish we had the time for it. It's a complex picture.
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Our view is that there certainly is room for reallocation and reprioritization of government spending that could be put towards the environment.
The Chairman: Mr. Finlay, did you wish to ask a question?
Mr. Finlay (Oxford): Yes, Mr. Chairman.
On page 7 - and Mr. Muldoon just referred to it again - I'm particularly concerned about the development of a national action plan to complete the clean-up of remaining orphan sites and funding for the clean-up of federal contaminated sites, which it seems to me has been seriously curtailed by the budget cuts. When you say that at least half of the 326 federal sites will need action immediately or in the near future, is that because of deterioration of the containers? What are some of the major...?
Mr. Muldoon: It's twofold, as you've stated. One is because they've understood that the sites there need to be dealt with, or the containment regime that's in place will need maintenance and upgrading.
Again, we could have elaborated on the figures here, but they're directly from the Auditor General's report. I think that's as credible as you get.
The Chairman: Madam Payne, please.
Mrs. Payne (St. John's West): Mr. Muldoon, I want to proceed along the lines of Madam Kraft Sloan with regard to the Oceans Act. I wonder if any member of your group in fact appeared before the fisheries committee during the discussion phase of the Oceans Act.
Mr. Muldoon: I could find out for you, but I don't know offhand.
Mrs. Payne: The reason I ask is that I was on the committee and I don't recall seeing anyone from the organization there. That sort of eliminates my next line of questioning, Mr. Chairman. Thank you very much.
The Chairman: Mrs. Kraft Sloan.
Mrs. Kraft Sloan: I wanted to go back to your final page on the Action 21 program and the elimination of the environmental partners fund. Because Action 21 has replaced the environmental partners fund, there is no money for background research, educational materials and public education activities. How is that being -
Mr. Muldoon: The focus of Action 21 is different from the environmental partners fund. The fund is more like a matching fund program where you could fund a whole range of activities. Action 21 is directed towards very concrete, on-the-ground endeavours, which we support. I think it's good to see something happen and get people directly involved in the communities.
The only issue we're bringing up is that at times it's important to have other activities funded - background research, development of public education materials, public education activities. Some of these activities may be critical of government, but they do serve an educational function. That's why I gave the example of Environment on Trial, written by leading scholars and practitioners, which does serve public education tremendously. Of course we haven't applied it so we don't know, but our view is that publications like that probably wouldn't be granted funding under Action 21.
What I'm trying to do is raise some concern from my colleagues about Action 21. We're not saying that it's fundamentally problematic. We're just saying that we're raising some concern. The concern is that the scope of funding seems to be more narrow than we would like. We think there are other activities it ought to fall under. We're basically asking for a broadening of the criteria to allow other activities also to be funded that have traditionally been funded under the environmental partners fund.
Mrs. Kraft Sloan: I think anyone who sat through this committee, through the CEPA review and other things we have looked at, can sincerely appreciate the high quality of research that organizations like yours and other NGOs have brought to the table. I know that their resources are very limited. It's the same issue in government. If you don't have the scientific research capacity, how are you going to do environmental protection? So part of the community activity is around the development of education materials, etc. I guess I'm still trying to understand. There are really no other sources.
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When you talk about groups that would be undertaking some of this background research, is this a local community group or is it more of a national organization? Who are we talking about exactly?
Mr. Muldoon: It actually is at all levels. Some of the best background work, believe it or not, is done by community groups. They understand the issues intimately, so some of the very best work is done by groups you'd never suspect have that kind of capacity. With just a little bit of seed money and with their expertise, they turn what you think is something they couldn't do into a wonderful piece of research and advocacy literature.
So it really spans all groups: small groups, provincial groups and national groups. Certainly no one size of group has domain over that. But when I phoned around and asked my colleagues who has been funded by Action 21, I found out most of the groups I associate with, which are on the policy side, have not. That's why I bring up the concern today. There was some concern over that.
As you know, it's always difficult for non-governmental groups to be funded. Many thought the Environmental Partners Fund was a legitimate funding source that they could...not rely upon, but certainly have access to at appropriate times. I guess there's a more cautious approach being taken to Action 21 because of the narrow criteria.
Mrs. Kraft Sloan: So Action 21 is directed at local community groups, as opposed to any kind of regional or national group?
Mr. Muldoon: No, no. I think the way to put it is it's directed towards direct action, not the size of group.
Mrs. Kraft Sloan: Okay. So the size of the group doesn't matter?
Mr. Muldoon: That's right. That's my understanding.
Mrs. Kraft Sloan: Okay. And I understand it is direct action.
Mr. Muldoon: Yes.
Mrs. Kraft Sloan: Okay. Thank you.
The Chairman: Mr. Adams, please.
Mr. Adams (Peterborough): Paul, this is the latest I've ever been to a committee, so I don't want you to think I make a practice of coming in at this time, but I really made an effort to try to be here because I knew you were going to be here.
I very much like your articulation of the national and international roles of a federal government. That sort of thing is very useful to us. I remember we've discussed that kind of thing before.
I notice Environment on Trial is not in the bibliography of this report. Have you read into the record today the full reference for it?
Mr. Muldoon: No.
Mr. Adams: Would you care to do that for us?
Mr. Muldoon: Sure. The book is called Environment on Trial. It's edited by David Estrin and John Swaigen and it's co-published by Emond Montgomery Publications and the Canadian Institute for Environmental Law and Policy. It's from 1993, and this is the third edition. Again, it's what I would suggest is a standard text in graduate school for environmental policy, in undergraduate school for environmental policy and in many law courses.
Mr. Adams: Thank you.
The other thing is I heard your discussion with our chair about the cuts - the 30% cut in Environment Canada and so on. As a government, we've tried not to cut across the board, so naturally, then, choices are made. Over the three years our largest cuts are, for example, in Transport, at 55%. At the other extreme, one ministry will increase by about 3%. The average comes out at 20%. Obviously the 30% is above the average.
You mentioned Industry. I believe Industry has been cut by 42%. I know quite often you wouldn't think the research capacity in Industry was environmental research, but a lot of the basic research capacity of the federal government - a lot of the support, the grant councils, for example, and the university funding - come through Industry. They have been cut less than 20%, to give you some sense of these various things.
You know we're more than two-thirds of the way through that process. It's sort of on autopilot; that's the expression that's used. I don't know what advice you have for us at this point.
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The chair, as you know, and some members of this committee have gone to great lengths to lobby for this particular part of the government. But do you have any advice on how we can focus resources on some of these areas, such as you live with, in which we should be national leaders? Have you any ideas on that?
Mr. Muldoon: To stop further reductions over the years. That's one.
As for any agency, the 1990s are a time to reflect on what the core responsibilities are. After the budget cuts you can say, well, for the last decade we've been cutting, cutting. At some point you have to say, well, this is going to be the stable level, so what are those things we're going to deliver?
That changes over time. But certainly, as the chairman noted, the 1990s are not only a time of fiscal restraint but also a time where the provinces are going through a lot of introspection over what their role is. Our experience is that one of the roles they're not particularly fond of being champions of is the environment. What level of government but to the federal government do we as citizens of Canada go to provide, as we stated, at least some minimum level playing field protection for all Canadians?
So the advice is to recognize, okay, there have been cuts - is this it? Can we say there is going to be some stable amount of funding for Environment Canada to plan out the programs, to engage in dialogue with the public and other stakeholders about what the core functions ought to be, to give some security?
I find it unfortunate that we're here trying to stop the slide down rather than to say, more proactively, here are the things we ought to do. I find that disconcerting. Again, I just don't believe the public really wants such strict cuts in the environmental realm, and I really think it's going to backfire on politicians who support environmental cuts. I'm a firm believer in that.
My best advice is to ask you to ask, is this it, and can we now start rebuilding by understanding core functions and building programs around those core functions?
Mr. Adams: And I'd like to say to you about the cuts, even if you ignore the deficit and the debt and those arguments, my view is that the federal government was, and still is, too large. Times have changed, and if we were looking at it as, for example, an efficient organization to maintain national standards, it's too large. So I don't pretend to you I have not supported the downsizing.
My ideal federal government is really quite small, very, very efficient, often doing very little, but we would have the powers to reach out whenever it was necessary in the national and international interest to do things. It's something like that. That's the way I would like to see it.
The reason I say I think it was and still is too large is that it had become very cumbersome. So even when it had the powers it wasn't in fact reaching out and doing these things.
At its best the process we're going through is a streamlining. If we weaken it, so in the end it loses some of these powers just because of fiscal restraint and so on, I think that would be very bad. But in my mind we've been trying to streamline it and not throw away some of these key powers.
Now, do you think we have? Do you think it's too late? If we stopped it now and we did what you said, which is stable funding and focusing it, would you think we've lost any powers yet in the area of the environment, the backstop powers?
Mr. Muldoon: Potentially you're on the verge of it. That's why I brought up the proposed environmental management framework agreement. There you would...
I don't think our positions are completely in counter-position to each other. I cannot stay here and say we want bigger government. I think as Canadians we want not bigger but better; and if better means a streamlined, more focused government, so be it. But certainly it has to be big enough to discharge its core constitutional responsibilities, to protect those areas given to it. To us that's where the starting point is.
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With the environmental management framework and agreement, which is an agreement that will devolve areas to the provinces, we asked very clearly, saying the rationale by the provinces and the Canadian Council of Ministers of the Environment for this initiative was duplication overlap. We admitted that we did not think that duplication overlap is always a good thing, so we said let's see those areas where there is duplication overlap and let's work through them. I'm speaking for many environmental groups that said let's sit down together and work through them.
It should be clear that despite repeated requests for detailed analysis of duplication overlap, it was never presented. It has never been presented to this day. So how can I respond to the question? What does that focused government look like unless we have a clear understanding of what the problems are? So the environmental community is faced with trying to oppose an agreement based on a rationale that we don't have.
There has to be some real introspection on these kinds of proposals as to what really is behind the agreement. Is it to try to overcome duplication overlap, or are there other motivations? If it is duplication overlap, then we have some very constructive proposals on how to deal with it.
We're saying don't come to us with this big new environmental management framework and agreement and devolve responsibilities without the kinds of considerations we'd like, which are what is the role of the federal government, what are the things it can shed and what are the things it can't shed?
Mrs. Kraft Sloan: I was going to ask you about that issue, because we have a first ministers conference coming up in June. You've answered on the overlap and duplication, which is something that's always come before this committee. We always talk about what the federal government can do. What can the provinces do in the area of environment?
Mr. Muldoon: I'm not sure how to respond to that, because, as you know, the provinces have significant legislative power over the environment. In many areas it's their domain. So their job is to provide the front-line regulatory framework for the environment: land use planning, many areas related to toxic chemicals and discharges into the air and water, a large part of the contaminated... Not only that, but also they're the owners of the majority of natural resources.
So I would put the question in this way: what are the areas for which the federal government has responsibility, such as fisheries, and what areas, even though they may encroach upon some area of provincial responsibility, are truly of national concern, rise up from a sole provincial concern to be national concerns that ought to have the intervention of the federal government?
So that's how I see it being carved out. In other words, here's the provincial baseline. How can we ensure that Canadian international obligations are being met, federal areas are being met under the Constitution, and the areas of truly national concern will be carved out, which transcend provincial concern and rise to that level of national concern where the federal government clearly should intervene.
The Chairman: Maybe one day the fish will be forced to take the Government of Canada to court. Who knows?
Mrs. Kraft Sloan: They should.
The Chairman: Mr. Muldoon, in moments of need the human mind becomes very creative and proposes alternative approaches. For instance, lately, as an alternative to a non-regulatory system for the protection of the environment, the term ``covenant'' has been floated on a few occasions. Do you have any views on that?
Mr. Muldoon: We've tried to look at the issue of covenants, but it seems as if nearly everyone defines them differently. It ranges from being a purely voluntary issue to being one of, really, another form of regulation.
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The term ``covenant'' comes from the Netherlands, and their legal institutional framework is very different. My understanding is that the covenant system in those countries essentially is translated into enforceable instruments. The legal frameworks are so different that in my view one should be very cautious in using the term ``covenants'' from a different legal experience and transposing that into Canada.
That's why we have concerns about the covenant approach, depending on how it's interpreted and applied. I'm afraid it's a very mixed-up term, so that's why I need to know what it actually is before I can provide a really good comment for you.
The Chairman: The bell has its own demands. You gave us today an excellent paper, for which we are definitely most grateful. We will certainly keep it for some time and look at it from time to time in search of the critical points. We will come to you for advice again, probably in one year if not sooner, and if not sooner, perhaps on other subjects.
On behalf of the members of the committee, thank you very much.
Mr. Muldoon: Thank you.
The Chairman: The meeting is adjourned.