ENSU Committee Meeting

STANDING COMMITTEE ON ENVIRONMENT AND SUSTAINABLE DEVELOPMENT

COMITÉ PERMANENT DE L'ENVIRONNEMENT ET DU DÉVELOPPEMENT DURABLE

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, March 11, 1999

• 0918

[English]

The Chairman (Mr. Charles Caccia (Davenport, Lib.)): We have a quorum.

[Translation]

Good morning, ladies and gentlemen. We are resuming our study of Bill C-32, An Act Respecting Pollution Prevention and the Protection of the Environment and Human Health in order to Contribute to Sustainable Development.

[English]

We are now at 9.20, so I was wondering if perhaps we could seek the cooperation of the heritage committee, which is scheduled to come into this room around 11 o'clock. I wish to seek their permission to sit perhaps for an extra 20 minutes beyond 11 o'clock. Perhaps a message could be sent to the minister indicating the slight change in schedule, so as to permit us to have two full hours.

Are there any comments on that?

Ms. Paddy Torsney (Parliamentary Secretary to Minister of the Environment): Unfortunately, Mr. Chair, some people have scheduled things in anticipation that the meeting would in fact end at 11 o'clock, so it will create a series of scheduling conflicts.

The Chairman: All right, then may I encourage people to help in forming a quorum in future close to the starting time so that we don't lose ten valuable minutes?

We will resume where we left off yesterday. Madame Girard-Bujold.

[Translation]

Ms. Jocelyne Girard-Bujold (Jonquière, BQ): Mr. Chairman, I would like to ask your permission to table a document with the Standing Committee on the Environment. I have brought 12 English copies and 10 French ones. This document was drafted by the Groupe d'action des riverains de Pointe-du-Lac, Québec, which has been fighting pollution generated by the munitions testing and experimentation centre for the last 47 years. I would ask that the document be distributed to committee members of the Standing Committee on Environment and Sustainable Development, and that it be put on the committee's agenda when it will study contaminated federal sites.

• 0920

Thank you, Mr. Chairman.

The Chairman: Are there any comments or objections? No, Ms. Girard-Bujold, I don't see any reason why we should not distribute this document, but I cannot guarantee that it will be put on the agenda of our committee. However, we will receive it.

[English]

We would therefore be pleased to distribute it, and we thank you.

Mr. Laliberte's amendment to clause 47 has been translated, and it has a somewhat new number. It is now called NEW NDP-18. It's essentially the same number, but the amendment is new. It is the old NDP-18(b), which we had before us yesterday, when the necessity arose to produce a French version because of the splitting of the particular amendment between parts (a) and (b).

Mr. Laliberte, would you like to introduce and explain your amendment please?

Mr. Rick Laliberte (Churchill River, NDP): Thank you, Mr. Chair.

I'll introduce the motion. It's an amendment to clause 47. In effect, we are changing the second “shall” in this clause, which would now read:

...in issuing those guidelines, the Minister may take into account any factor that the minister considers relevant, including, but not limited to,

When taking these factors into consideration, the minister should not be bound by the word “shall”. When acquiring information for distribution or for public knowledge, with the issue of the costs to the minister and the persons involved, the coordination of requests, and the manner in which the information is collected, if paragraphs (a), (b), and (c) are to stay in here, it would be very suitable that the minister be given the power to consider these under the term “may”.

The Chairman: Thank you, Mr. Laliberte.

Madame Torsney.

Ms. Paddy Torsney: I would not be in favour of this amendment. I think the minister should—“shall”—consider those things, and I think there needs to be clarity that those are the kinds of things the minister would be considering in issuing guidelines and in making sure that things are appropriate. If that is in fact what the policy and the action are going to be, it should be very clear for all those who read the bill.

The Chairman: Thank you.

Mr. Jordan.

Mr. Joe Jordan (Leeds—Grenville, Lib.): Mr. Chairman, the way this is worded, I don't know whether that amendment would have the desired effect. It goes on to say the minister “shall” or “may”, but then it gets very soft: “take into account any factor”. With the wording of the sentence, I don't know how critical that change would be, or what impact changing that word would have. I think there's a lot of flexibility in there anyway. I just don't see changing it to “may” as any real change in the implied meaning of that clause.

The Chairman: Thank you, Mr. Jordan.

Mr. Gilmour.

Mr. Bill Gilmour (Nanaimo—Alberni, Ref.): Thank you, Mr. Chairman.

I tend to agree with the parliamentary secretary. I like the “shall”, because it is much firmer and much stronger. I would suggest that it puts an onus on the minister to look into the costs—and hopefully we'll amend that to say “benefits” as well. But I like “shall”.

The Chairman: Thank you, Mr. Gilmour.

Are there any further comments? Mr. Laliberte.

Mr. Rick Laliberte: Just in terms of understanding where this amendment is going, but also in terms of what's preceding it, is there another forthcoming amendment dealing with this clause? There is, right?

• 0925

The Chairman: Yes.

Mr. Rick Laliberte: I just lost track from yesterday. It was a wild and a happy night.

The Chairman: Thank you, Mr. Laliberte.

Mr. Rick Laliberte: That's on the record now.

To keep on with the flow of the jovial spirit, I would ask that all members vote in my favour. I believe the legislation we're creating not only is for the present minister, it's for all ministers that will, from here on in, serve this department and this country. For any minister, if I can place myself in their shoes, so to speak, or their moccasins, “the Minister shall” is a very demanding job here. So “may” is something the minister should consider when taking into account the factors when collecting information. I believe it should be a “may” clause.

The Chairman: With that eloquent peroration, perhaps the committee's ready for a vote.

(Motion negatived)

The Chairman: I invite you to move to amendment L-13.4.0.2. This is Mrs. Carroll's amendment, proposed by Mr Jordan. Would you like to introduce it and explain it?

Mr. Joe Jordan: Sure. I think if the whistle-blower amendments were labelled M, this one should be labelled O, because it actually came from the officials yesterday. They suggested, on some prodding from the chair, that under paragraph 47(1)(a), the minister should look at not only costs but also benefits. It links back to the spirit of one of my amendments. I fully support this line of thinking, that we're talking about both sides of the scale when we want to look at these things. So the amendment simply inserts “and benefits” after the word “costs” in paragraph 47(1)(a).

The Chairman: Thank you.

Madam Torsney.

Ms. Paddy Torsney: Since it was a collaborative effort in writing it, I'm definitely in favour of it.

(Amendment agreed to) [See Minutes of Proceedings]

The Chairman: Now to page 104, a Reform amendment in the name of Mr. Gilmour, R-12. Mr. Gilmour, would you like to introduce your amendment?

Mr. Bill Gilmour: I will not be moving that, Mr. Chairman.

The Chairman: Thank you.

I invite you to turn to page 105

[Translation]

where you will find motion BQ-18 presented by the Bloc Québécois.

Ms. Jocelyne Girard-Bujold: Mr. Chairman, with this amendment I propose that we eliminate the words “shall offer to consult”, at line 18, and that we replace them with the expression “shall consult”. Therefore, clause 47(2) would read as follows:

(2) In carrying out the duties under subsection (1), the Minister shall consult with the government of a province and the members of the committee who are representatives of aboriginal governments;

[English]

The Chairman: I think we want to set it aside and deal with these kinds of clauses all together when we are ready. So it is not yet before us. We will set it aside for Tuesday.

[Translation]

Ms. Girard-Bujold, we will come back to this amendment during our next meeting.

• 0930

[English]

This allows us, then, to go on to the definition of “engine” and then to clause 140, which requires attention. The definition of “engine” was examined further by the officials. The clerk informs me that it has been distributed this morning and it is new. It is related to clause 138.

Madam Torsney.

Ms. Paddy Torsney: Thank you. I think this clause had earlier been closed by the committee, so in discussing Mr. Clifford's proposed amendments to clause 140, we realized it would be necessary to have a definition of “engine” in clause 138. To do this, you need to have consent to open. If you wanted, you could open clause 138, consider that definition, and look at clause 140 at the same time.

The Chairman: That is the next step, once you have found the page, the definition of “engine”—to ask for unanimous consent for reopening clause 138. Is there unanimous consent?

Some hon. members: Agreed.

The Chairman: Thank you.

Who is moving this amendment? Madam Torsney.

Ms. Paddy Torsney: I'd be happy to move this amendment to clause 138. The effect of this would be to insert a definition for “engine”:

“engine” means a device that transforms one form of energy into another.

This of course bumps down the “national fuels mark”, which we already agreed to earlier.

The Chairman: Thank you.

Mr. Gilmour, followed by Mr. Lincoln.

Mr. Bill Gilmour: Mr. Chairman, the definition of “engine” as meaning a device that transforms one form of energy into another seems very loose. I can hold an ice cube and melt it, or blow onto a windmill. I don't consider myself a device or an engine. I don't have a problem with it, but there must be other legislation that has a more refined definition of “engine”—as long as we don't get ourselves into a problem, either legislatively or in the justice system. It just seems very, very loose as a definition.

The Chairman: But by your own admission, you described yourself as not being a device.

Mr. Bill Gilmour: Yes. It seems extremely loose, extremely vague.

The Chairman: This is why the term “device” is being adopted in the definition. It seems to me perfectly right.

Mr. Lerer.

Mr. Harvey Lerer (Director General, Canadian Environmental Protection Act Office, Environment Canada): I'd just remind the members, through you, Mr. Chair, that this is a section that deals with fuels, and the definition of “engine” is only for purposes of this division. What we wanted to do was capture items like small engines in the traditional sense, heating fuels and things of that nature. But the definition of “engine” is only for purposes of the fuels division.

The Chairman: Madam Torsney.

• 0935

Ms. Paddy Torsney: I might also add that the other issue was that we consulted with many people who would be affected by this particular section, and one of the things they wanted was in fact a definition that was broad enough to capture emerging technologies, some of which are in the development stage. So I think it fits with the committee's desire for clarity, as well as with progressive opportunities for various companies in Canada and elsewhere.

A voice: Well said.

The Chairman: It may be that the word “mechanism” would be closer to what Mr. Gilmour has in mind. But I'm not sure that mechanism would do, because that would be a fairly narrow term, whereas “device” has a broader application. However, I'm just thinking out loud.

Mr. Lincoln.

Mr. Clifford Lincoln (Lac-Saint-Louis, Lib.): Mr. Chairman, I'm one hundred percent for the amendment to clause 138. I think the definition, broad as it is, is far wiser than any other, because as the parliamentary secretary stated, it will take in all the new technology, and we've got to look to the long-term future.

I have one question for Mr. Cameron. Shouldn't we at the same time, Mr. Cameron, so there's no confusion in the act, also change the definition of “engine” under clause 149? I know it's not the same division, but if we leave two different interpretations, then which one is the real engine?

Mr. Duncan Cameron (Legal Counsel, Environment Canada): Mr. Chairman, that was the reason we had to define in division 4 in the first place—to recognize the differences between division 4 and division 5.

Mr. Clifford Lincoln: I'm just asking you the question. So by leaving it the way it is in division 5, it won't lead to a possible confusion when there is interpretation? There would be two different interpretations of “engine” in two different divisions. You don't see it becoming a problem?

Mr. Duncan Cameron: No, sir. That's a fairly common technique in legislative drafting. When you have a term for which you want to have a very specific definition, you put that definition in the legislation. It's certainly permissible to have different definitions apply to different parts of legislation. That's the model we've proposed here.

It's clear from the legislation, for example, that the term “engine” as defined in clause 138 applies to its use in division 4, whereas the definition of “engine” in clause 149 applies to its use in division 5. I don't see that there's any possibility for confusion, given that clear language.

Mr. Clifford Lincoln: I'll ask you another way, because I don't want to belabour the point. Would there be any disadvantage in putting a broader definition of “engine” in clause 149, and leaving the provisos in paragraphs 149(a), 149(b), and 149(c) just the same?

Mr. Duncan Cameron: That's an entirely different question. I'm not sure it's a purely legal question. I'd simply point out that “engine” as it's used within division 5 means a type of internal combustion engine that's prescribed. That means prescribed by regulation.

Mr. Clifford Lincoln: All right. So we'll leave it like that.

The Chairman: Mr. Cameron, from the chair's perspective, I'm a bit puzzled by your earlier statement that it is quite customary to have different definitions applying to different parts of the same legislation. I would have thought the reverse ought to be the aim of the legislators, namely to have the same definition applying to different parts of the legislation. What is wrong in this case?

Mr. Duncan Cameron: That's certainly the more common approach, but my point was that it's not uncommon to find that legislation—certainly umbrella legislation as broad as CEPA that deals with so many different aspects—might have definitions that are unique to certain parts of it. You might also find a situation, as you have here, where the same terms may be used with different definitions applicable to different divisions. There's certainly nothing legally wrong with that approach.

The Chairman: Are there any comments? Madam Torsney.

Ms. Paddy Torsney: Just to illustrate that point, in part 3 we have six pages of definitions that stand for the entire bill. It's just in a couple of places that we've added additional definitions where necessary.

The Chairman: Thank you.

Are there any further comments on the term “device”? If not, I will call for.... Mr. Laliberte.

• 0940

Mr. Rick Laliberte: Yes, I agree that the term “engine” here is very broad, and I believe division 4 deals with fuels. But I don't know if this definition should require a device that transforms one form of energy into another supplied by fuel, because some engines aren't fuel-driven.

The other side is division 5. The definition of “engine” includes aircraft. Rolling stock would mean, of course, train and steamship, but we don't have automobiles.

The first definition of “fuel” leads to internal combustion and oxidation for the generation of energy. But in between those two, we want to hit the automobile side but also refer this definition to a fuel-driven engine, because this section is specifically on fuel. Some engines might be wind, might be nuclear, might be solar, so that form of energy. Then you have to define fuels as a subconscious knowledge of this term “engine”.

The Chairman: Thank you.

Madam Torsney.

Ms. Paddy Torsney: Thank you.

Perhaps it would be helpful if members, in trying to solve this problem, would look to clause 140, where Mr. Lincoln has an amendment.

In the desire to reflect all the emerging technologies for cars and engines, we have consulted widely. And in a desire to incorporate Mr. Lincoln's amendment into the bill to reflect emerging technologies, it was therefore necessary to have an additional definition in this part that would make sense. So this is actually about doing exactly what Mr. Laliberte would like, in the clearest manner possible.

(Amendment agreed to) [See Minutes of Proceedings]

(Clause 138 as amended agreed to)

The Chairman: I now invite you to pull out the new amendment L-15.8, which is in the name of Mr. Lincoln.

Mr. Clifford Lincoln: Mr. Chairman, I'd like to move this. We have already discussed it, and really, the reason we postponed it was to get the broader definition of “engine.”

The Chairman: Some members are still trying to find the amendment. It is in the small set distributed this morning or late last night, the front page of which reads “NEW L-13.10”. I'm told it's on page 11 of that small package. Has everybody found it?

All right, Mr. Lincoln.

• 0945

Mr. Clifford Lincoln: Mr. Chairman, we already discussed this item the other day, but we postponed it because of the question of the definition of “engine”. The thrust of this amendment is to take out the word “only” under subclause (2), so that it would say “(d) if the Governor in Council is of the”, not “(d) only if the Governor in Council”.

Secondly, it would change the wording of paragraph (a) so that we are not covering only the effects of the fuel, but the fuel itself or any of its components.

And under (b), Mr. Chair, I want your kind attention for just a minute, because I'm going to suggest a friendly amendment. It was pointed out to me by the officials that I've forgotten a word there, although I did so completely inadvertently. The word “performance” should stay. In other words, (b) should read “the fuel's effect on”—and this was purely inadvertent—“the operation, performance or introduction of combustion or other engine technology or emission control equipment.” And in French it will read:

[Translation]

“the fuels' effects on the operation, performance or introduction”.

[English]

Otherwise, it's just as written in the amendment. We have taken out the word “combustion”, for obvious reasons, and we talk about other engine technology.

(Subamendment agreed to)

(Amendment agreed to) [See Minutes of Proceedings]

The Chairman: The moment has arrived to go into the residual amendments. I am told the amendments have been duly distributed and that we can tackle that aspect.

I invite you to turn your attention to pages 3 and 4 of the very new small package.

Ms. Paddy Torsney: Mr. Chair, are we intentionally leaving clause 140 open?

The Chairman: Yes.

Your package is marked March 10 on the front page. It is identified by the words NEW L-13.10.

Mr. Clifford Lincoln: Mr. Chairman, is there some reason why we're not starting with L-13.10, which is on page 65?

• 0950

The Chairman: We are resuming the residual clauses. The first one in that category is on pages 3 and 4. We would rather get that rolling first, and then we may come back to page 1. So please turn to pages 3 and 4, on which there is a government amendment.

Ms. Torsney, would you like to introduce it?

Ms. Paddy Torsney: Lord knows what this government amendment's number is, but I have G-(08-03). It would amend clause 81 by replacing lines 27 to 46 on page 50 and lines 1 to 3 on page 51 with a new clause 7. Clauses 7, 8, and 9 are deleted, and a new clause 7 is introduced.

The Chairman: Could you explain the effect of the changes, please?

Ms. Paddy Torsney: Sure. This amendment is being proposed in light of considerations that took place at this committee.

[Translation]

Mr. Yvon Charbonneau (Anjou—Rivière des Prairies, Lib.): Which page is it on?

[English]

The Chairman: It's on pages 3 and 4 of the new book. As I indicated five minutes ago, it is the small book identified by the date of March 10. It was distributed earlier. It starts on the front page with NEW L-13.10, but we are looking at pages 3 and 4, in both languages.

Please proceed, Madame Torsney.

Ms. Paddy Torsney: Thank you.

There was some concern among members of the committee that this section needed to be changed to reflect their desire to I suppose maintain some degree of concentration in the Department of the Environment. This amendment fulfils their desire for changes. Beyond that, I'm not sure what other explanation you're looking for.

The Chairman: So in the bill—

Ms. Paddy Torsney: If you'd like an operational discussion, Mr. Mongrain can do that.

The Chairman: Perhaps Mr. Mongrain would like to explain the shift that is taking place from the text in the bill to the text of the amendment, very briefly.

Mr. Steve Mongrain (Representative, Canadian Environmental Protection Act Office, Environment Canada): Certainly, Mr. Chair.

Bill C-32, as originally proposed, would have had the minister responsible for another act of Parliament determining if that act meets the requirements in paragraph 81(6)(a) for notification and assessment of new substances. The model in Bill C-32 as originally proposed would have then had the Governor in Council schedule the act based on the other minister's determination.

The government amendment proposed by the parliamentary secretary puts the decision-making in the hands of the Governor in Council on whether another act meets CEPA requirements for assessment of toxicity. There's also a consequential change. I believe Mr. Lincoln has some amendments further on that will make the scheduling of other acts transparent. That is, there'll be a pre-publication requirement and sixty-day public comment period.

The Chairman: Thank you.

• 0955

I would like to alert members of the committee that should this amendment carry, it will make it necessary to deal with the amendments on pages 188 and 189, one in the name of Mr. Lincoln and the other one in the name of Mr. Laliberte, since they touch on the same lines.

Are there any comments or questions on the amendment before us as moved by Madame Torsney?

Mr. Clifford Lincoln: Mr. Chairman, I would like to ask if the thrust of this is to shift the responsibility to the Governor in Council to determine whether the other act is sufficient to meet the obligations under CEPA. So really it's a question of deciding whether the Governor in Council is a better substitute to the Minister of the Environment and the Minister of Health where applicable. Isn't that the key?

The Chairman: He's the other minister.

Mr. Mongrain.

Mr. Steve Mongrain: No, Mr. Chairman, as proposed in Bill C-32 it was the minister responsible for the other acts. So it would have been the Minister of Agriculture if it related to the Feeds Act or the Seeds Act.

Mr. Clifford Lincoln: I understand that fully, Mr. Chairman. What I was trying to say is when we change it, there are two ways you could change it. You could change it to make the Governor in Council responsible for deciding that, or you could leave that responsibility to the Minister of the Environment and the Minister of Health if appropriate. And maybe that is the fundamental issue here. Are we better off to send it to the cabinet or leave it with the Minister of the Environment to decide whether CEPA should be the overarching legislation?

The Chairman: May I draw to your attention that in the bill the onus is on the minister responsible for another act.

Mr. Clifford Lincoln: I know that, Mr. Chairman.

The Chairman: That is what is being amended.

Mr. Clifford Lincoln: I realize that fully. I'm just saying that if you amend it, right now we're shifting it over to the Governor in Council. After all, we're amending it. So should it have been the Minister of the Environment and the Minister of Health as appropriate, rather than the Governor in Council where the Minister of the Environment would be one of 25?

The Chairman: So the amendment is well explained.

Are there any further questions or comments? Mr. Laliberte.

Mr. Rick Laliberte: In this process here of residual...a big part of this bill is the public right to know and public participation. Maybe our researchers would like to comment on the different roles of the ministers and the realms the public has access to for information or tracking the decisions that will be made along this line, because I believe it could have major implications as we hop from one jurisdiction to another and decisions are made.

The Chairman: Mr. Lerer, go ahead.

Mr. Harvey Lerer: As my colleague mentioned before, there is another amendment forthcoming, I believe, in the name of Mr. Lincoln that ensures the transparency of this process should the committee choose to adopt it.

The Chairman: Thank you, Mr. Lerer.

Madame Hébert.

Ms. Monique Hébert (Committee Researcher): I'm not sure I have much to add to what was already said.

Basically there are three options before the committee. The first option is in Bill C-32 right now, and this is that it is the other minister responsible for the other act who determines whether his or her legislation will apply, thereby bumping CEPA.

The second option is the one that is being proposed in the government amendment, and basically it's no ministers decide but it is cabinet itself that will determine whether the other legislation will apply, thereby bumping CEPA.

And the third option—and this I believe is the one Mr. Lincoln was referring to—is the Minister of the Environment and the Minister of Health, where appropriate, would decide whether the other legislation such as the Pesticides Act would bump CEPA.

So those are the three options before the committee. It's really up to the members to decide which option they feel would best serve the public interest.

• 1000

The Chairman: To be precise, we have at the moment only two options to choose from: the existing Bill C-32 and the amendment. We do not have any wording for a third option, do we, Madame Hébert?

Ms. Monique Hébert: No, we do not.

The Chairman: Mr. Laliberte.

Mr. Rick Laliberte: Can I propose then that we stand this until we have the third option, which seems to be of interest?

The Chairman: Mr. Herron.

Mr. John Herron (Fundy—Royal, PC): Mr. Chairman, that was precisely going to be my question as well. I think Madame Hébert's brought forth something the committee might want to consider to be able to have all three options before us to do. So can we move on to another clause perhaps?

The Chairman: Madam Torsney.

Ms. Paddy Torsney: If we could review, these amendments have been before us for a couple of days now, and if people had an option on another amendment that they would prefer, they've had the time to do that.

Secondly, whether this passes or does not pass, and people can indicate their support or lack of support for this amendment, they can choose to put another amendment before the House at report stage if they think something would be flawed as a result of this vote you're about to take. But clearly we could wait forever and a day for everybody to come up with fifth and sixth options about every clause that's in this bill. There has been enough time for people to come up with an amendment if they wanted a different option here.

The Chairman: Mr. Herron.

Mr. John Herron: I would like to suggest to the parliamentary secretary that we could move on to another clause. We still have an awful lot of work to do. And, yes, we've had probably sufficient time to be able to table a lot of amendments since we've been at clause-by-clause, since last November in that regard. But it would be quite easy for us to be almost a little bit cynical and ask why we're even getting government amendments now, now that we're in March. Why didn't we see them in November and October? It's because we've actually learned some things as we've gone through the process. This is another opportunity for us to take from this example that we've learned that there's possibly a third option. We don't necessarily know the exact language on it, so we don't know what we'd be voting for per se. So I think it would be more prudent for us to move on.

The Chairman: Mr. Laliberte.

Mr. Rick Laliberte: I think maybe on my part, the communication side of dealing with the residual has been misinterpreted or misunderstood. These amendments came on March 10, which is just yesterday. I expected that the residual package would have had an explanation. We have to interpret all these legal terms in our minds and to vote yes or no on it, and to also take into account the other amendments that are in place from the different members. So this is a very complex question you're asking us as members to make a decision on here.

I would beg a little bit more time. I expected there would be an explanation. I know when my researcher and I present something, we try to put an understanding and an argument to it. But I thought in our case, on the residual aspect, maybe the researchers would have mounted an explanation of where these things are, these different options in it. I thank Madame Hébert for raising this issue. It clarifies it that way and makes our decision a lot clearer.

The Chairman: Madam Torsney.

Ms. Paddy Torsney: It's my understanding that we have a motion before us. So there could be several options. We could vote on this motion and see what the results would be. We could leave the clause open, which we've done on many occasions, and if someone wanted to make a further amendment to this section, then that would still be within their option. Or again, people could have their researchers for their various parties do their work and come up with a third option for report stage, if that's the desire they wish to have. I think we have a motion before us and there's every opportunity to take a vote.

The Chairman: Let me make the following observations. It makes the work of the chair and of the table here extremely difficult to leave clauses open. Now that we are in the final stretch, we have to conclude and move ahead. However, a good point has been made that the date of these amendments is that of March 10 and that today is March 11, and therefore—

Ms. Paddy Torsney: They were distributed March 8.

• 1005

The Chairman: Excuse me, I have the floor right now.

March 10 is only yesterday, and therefore there is a good reason for claiming that more time would be required in order to prepare a possible subamendment, if you like. I'm told that if this amendment were to carry, then the amendments on pages 108 and 109, because they are on the same lines, would be wiped out, here in committee, at least. It's true, as the parliamentary secretary says, there is an option at the report stage, but that is a different story.

So I would be inclined to say that we leave this clause open for determination on Tuesday so as to give members the weekend to determine whether they want to prepare a subamendment or not. But on Tuesday that will be the time when a decision must be made so that we can clean up this portion of the bill.

Madam Torsney.

Ms. Paddy Torsney: I have a couple of points.

First of all, Mr. Chair, these were in fact given to people on March 8. Secondly, there would be four options before the committee: one, to leave the bill as it is; two, to vote for this amendment; three, vote for the amendment that the opposition members have already put forward; or four, something new that they are going to create.

My last point would be that I gather you need unanimous consent for us not to take a vote on my motion, which is before the committee right now. If it would help the workings of the committee, I'd be happy to vote in favour of delaying this until Tuesday, at this point.

The Chairman: Fine. Is there consent, then, to delay until Tuesday? I see there is consent. We will put it aside. Thank you.

I'd like to turn to page 208 in the large book, a motion in the name of Mr. Laliberte.

Mr. Rick Laliberte: To keep the pleasant spirit going of this morning, I'll withdraw NDP-47.

• 1010

The Chairman: If you'd like to turn to page 209, there is a motion in the name of Mr. Lincoln, who is momentarily absent to table something in the House. The decision on this determines a number of others; there is a complex sequence that follows.

Madam Torsney.

Ms. Paddy Torsney: I had previously indicated to Mr. Lincoln that I would be in support of this amendment. So if you just want to have someone move it, then we can vote. Some of us will be voting in favour of it.

The Chairman: That's very helpful.

Mr. Jordan is moving the motion for the absent Mr. Lincoln, I take it. Thank you.

Is the intent of the motion clear to the members of the committee?

Ms. Paddy Torsney: To clarify, it deletes the obligation for the minister to consult with the Minister of International Trade prior to recommending regulations to the Governor in Council on the export or import of toxic substances.

(Amendment agreed to) [See Minutes of Proceedings]

The Chairman: Amendment 48 on page 210 can no longer be moved. The next one you will find on pages 211 and 212.

Madam Torsney.

Ms. Paddy Torsney: I'm happy to move government amendment G-10.3 on page 211 in English or 212 en français. The effect of this amendment is to delete subclause 93(5), which gave the Governor in Council authority for providing exemption to regulations.

The Chairman: Are there any comments or questions? Mr. Gilmour.

Mr. Bill Gilmour: Can I have some clarification? I still don't understand why it's being removed.

Ms. Paddy Torsney: We don't want the Governor in Council to have that authority, or such broad authority as they might have should it remain in the bill. It's reflective of various discussions that took place among the committee members.

(Amendment agreed to) [See Minutes of Proceedings]

The Chairman: I'd like to go page 213, NDP motion 48.1, in the name of Mr. Laliberte.

Ms. Paddy Torsney: I have a a point of order. I think this is very similar to L-15.2 on the next page, and.... Oh, Mr. Lincoln's back, sorry.

The Chairman: The NDP motion is on an earlier line and therefore it comes first.

Mr. Laliberte, would you like to introduce the motion?

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Mr. Rick Laliberte: I'm just reading L-15.2, which has a little extended terminology. I would ask if the members would consider standing this one and allow the other one to go first.

The Chairman: Yes, that can be done. We would then move to page 214.

Madam Torsney.

Ms. Paddy Torsney: Thank you.

There is also a government amendment that was in that March 10 package, and before you agree to stand it down you should think about all three.

The Chairman: The extended package?

Ms. Paddy Torsney: Line 22. It reads “Clause 93 be amended by replacing line 22 on page 64 with the following”, and there are three lines, two of which are underlined.

The Chairman: Well, in the western alphabet G comes before L, so page 5 and page 6 are the amendments before us, as indicated by the parliamentary secretary. We will start there, and if that carries, of course the other two amendments would become redundant.

Madam Torsney, would you like to explain your amendment, please?

Ms. Paddy Torsney: Again, Mr. Chair, this amendment to clause 93 reflects considerations the committee has had about this bill and the best way to protect human health and environment in Canada. It clarifies the intention of this piece of legislation and the role of the ministers and the Governor in Council.

The Chairman: Thank you.

Are there any questions or comments?

Mr. Clifford Lincoln: Mr. Chairman, I think if you look at the amendment that I proposed, L-15.2, you will see that, first of all, we include biodiversity, and for the same reasons that, if you look back on the definitions and if you look back at paragraph 2(1)(j), we do say “environment including biological diversity”. So this is one difference. The second one is that my amendment talks about “equivalent to a regulation”, which is very different from “sufficient”. Who decides? “Sufficient” is a very subjective notion.

I think there should be a notion of equivalence, which puts a definite standard. After all, we use the notion of equivalence in regard to provinces under the act. They why shouldn't we, in regard to another act by another ministry, use the notion of equivalence as well?

And of course the third difference is a Governor in Council introduction. But certainly the points of biodiversity and equivalence are key points, and I don't see why we can't introduce these two notions in any event.

The Chairman: In order to translate your intervention into legislative language, Mr. Lincoln, it would be required to make a subamendment at this stage, because if this amendment carries then we will not be able, I'm told, to bring in your amendment L-15.2.

Mr. Clifford Lincoln: Well, I would like to make a subamendment to introduce after the words “the environment” the words “including its biological diversity”, and substitute the word “equivalent” for “sufficient”.

The Chairman: You heard a subamendment by Mr. Lincoln.

Mr. Gilmour has the floor.

A voice: No.

The Chairman: No. Would you please read it once again, then, for the sake of the translation and better understanding, please.

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Mr. Clifford Lincoln: It would read:

any other Act of Parliament in a manner that provides, in the opinion of the Governor in Council, equivalent protection to the environment, its biological diversity and human health.

The Chairman: Now, comments or questions? Madam Torsney, followed by Mr. Herron.

Ms. Paddy Torsney: I just want to let the committee know that I'm not in favour of the subamendment to this clause. I think it's very clear the way it's been written and I think it could be very subjective as to whether things were exactly equivalent on that one issue. So I don't think it's necessary or desired.

The Chairman: Mr. Herron.

Mr. John Herron: I'd like to say we'll be supporting the subamendment. I think the comment Mr. Lincoln referred to was that we require that level of equivalency with respect to federal and provincial organizations. I think to have the same kind of level of equivalency for the protection of our environment within the federal government just makes a lot of sense.

The Chairman: Mr. Lincoln.

Mr. Clifford Lincoln: Mr. Chairman, if we decide that equivalence is subjective, then we'd better amend the key clause about equivalence regarding the provinces. I mean, this has been tested in the CEPA 1988, it's been in Bill C-74, it's in Bill C-32. Equivalence is recognized as being something that can be defined, that can be assessed. Surely if a regulation by a province needs equivalence, why shouldn't it also need equivalence in any other act? And what is “sufficient”? Sufficient is far more subjective than equivalent.

The Chairman: Mr. Laliberte.

Mr. Rick Laliberte: I'd like to speak in favour of the subamendment. I did stand down my clause to open up the whole context of amendment L-15.2, not realizing that the government was coming in. I would ask for support in including biodiversity and the equivalent aspect, for the opinion of the Governor in Council. It would be a much more honourable opinion to be made on the equivalence as opposed to sufficient, and that would be a hard-struck decision to be making in Governor in Council.

The Chairman: Madame Hébert has drawn my attention to the fact that clause 10 deals with agreements respecting equivalent provisions, which the members may want to look at for a moment.

(Subamendment negatived)

The Chairman: Are there any comments or questions on the main amendment? Mr. Herron.

Mr. John Herron: Again, the concern I have with the government amendment here, and I'll be supporting Mr. Laliberte's amendment if he chooses to move it later on, is I think the term “sufficient” is drastically too vague in this case and that the equivalency aspect of it.... We should have our own federal laws to be the equivalent for the protection of the environment if we insist on our provinces doing it.

(Amendment agreed to) [See Minutes of Proceedings]

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The Chairman: I've been told this amendment deals with an earlier line. Therefore I will require unanimous consent, if he wishes to move it, to entertain that motion.

Mr. Laliberte, what is your intent?

Mr. Rick Laliberte: I would probably understand the government's intention not to review line 22 and on. I would change my amendment to go from 18 to 21. Let me check it out.

I want to beg your patience here. The first section of my amendment deals with an aspect of a substance. In the bill it says “in respect of a substance”, and I understand that the other portion of my amendment has been dealt with by the government's motion just recently passed. But the focus on the issue of regulating “an aspect of a substance” and “in respect of a substance”.... Maybe I can ask the researchers—

The Chairman: Mr. Laliberte, before we ask, we have a procedural problem here; namely, that your amendment touches on earlier lines, and in order to even entertain that possibility, we need unanimous consent to do that. Yes, line 18.

Mr. Rick Laliberte: I'm not sure about procedures. When I stood my amendment, my understanding was that we would consider G-15.2, and then we went on to G-8/3. I feel like I'm being compromised on earlier lines, which weren't dealt with by G-8/3 here.

The Chairman: Mr. Laliberte, according to our record you did not move your amendment. It was just set aside and stood without moving it.

Yes, Madam Torsney.

Ms. Paddy Torsney: Mr. Chair, when the decision was being made on standing NDP-48.1 and the reference was made to 15.2, I clearly put on the record that before people agreed to that they might want to think about the fact that there was another government amendment that would be considered and would in fact have priority. So I feel there was full disclosure. In our fifth month of clause-by-clause, I think people are getting a feel for the process. Clearly we've given unanimous consent for people to withdraw motions when they could have just been voted on. There is no unanimous consent to go backwards now and open up a clause when I think full disclosure was provided.

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The Chairman: Mr. Laliberte, I regret very much that we cannot go back to a previous line unless there is unanimous consent. Perhaps I should have been clearer in my earlier ruling and in entertaining the motion by the government. Perhaps I will be more careful in future.

Mr. Rick Laliberte: For the record, when NDP-48.1 was being considered I stood it because the context of L-15.2 was a little more precise and to my liking; I would have appreciated going that way. When I realized the government motion was being considered, I could have asked for the privilege of going back to my motion. I apologize for that, because I could have also amended mine in its context to include a strength of Mr. Lincoln's amendment, and we could have considered it. Now I've missed that opportunity, and it's very unfortunate.

The Chairman: You would probably like to consider taking the opportunity, Mr. Laliberte, at the report stage.

Mr. Rick Laliberte: So at report stage we can ask for amendments to the amendments? I thought the amendments that were stood in this committee were not to be considered by the Speaker of the House.

The Chairman: You have the option to move an amendment to the bill as amended and reported to the House at the report stage. It is my understanding that avenue is open to you.

Ms. Paddy Torsney: If it wasn't defeated at committee, and yours wasn't.

The Chairman: Your amendment, in other words, is intact because it has not been touched. If it had been touched you would not have that option. Thank you.

Mr. Jordan.

Mr. Joe Jordan: I just want to say on the record, from my recollection of the events, I hold the same opinion as Mr. Laliberte. I've been to a lot of these meetings too, and I understood there was a kind of loose procedural agreement there. Technically it might have been wrong, and that is unfortunate, but I would hold the same opinion he holds under the same circumstances.

The Chairman: Thank you, Mr. Jordan.

I can assure you it was also an experience for me to be more careful in the future.

We will now move to page—

Ms. Paddy Torsney: On a point of order, when I pointed out we could move to L-15.2 and that it was a government amendment, I specifically said “Be careful”.

The Chairman: You are out of order. It's a debate now. On what happened or what didn't happen, the matter has been threshed very thoroughly.

(Clause 93 as amended agreed to)

The Chairman: Now we will go to page 215, clause 94, and an amendment in the name of the government.

Ms. Paddy Torsney: Mr. Chair, I'm happy to move amendment G-10.4 to clause 94. Should this pass, its effect would be to change the cross-references, because subclause 93(5) was deleted. It would no longer make sense within the bill, so I'm cross-referencing subclause 93(1).

(Amendment agreed to) [See Minutes of Proceedings]

(Clause 94 as amended agreed to)

The Chairman: Please turn to page 230.

Ms. Paddy Torsney: I think there's a government amendment before that.

• 1035

The Chairman: The amendment touches lines 26 to 45. We'll start with NDP-48.4 on page 230. If this amendment were to pass, it would eliminate, I am told, L-15.3 in the name of Mr. Lincoln and also the government amendment.

Mr. Laliberte, are you ready to introduce and explain your amendment?

Mr. Rick Laliberte: If I introduce this motion and it's defeated, will L-15.3 still be considered?

The Chairman: Yes.

Mr. Rick Laliberte: Okay. I will introduce the motion as it is to delete this portion. We've had witnesses who focused on this area and cautioned our office about it. I would introduce the motion as it is.

The reason I was taking my time, Mr. Chair, was line 26. I apologize to the members, but in deleting line 26 specifically, I haven't added anything to finish that sentence. On page 75, we're deleting lines 26 to 45. If we leave line 25 intact, it does not finish the sentence “a living organism that is manufactured or imported for a use that is regulated under any other Act of Parliament that provides...”

The Chairman: Make sure you're on page 75 of the bill, Mr. Laliberte.

Mr. Rick Laliberte: I'm using the wrong reference line. I'm using the French reference line on the other side. All right.

The Chairman: So the text is in order.

Mr. Rick Laliberte: I apologize. That's good. The motion is in place.

The Chairman: The parliamentary secretary.

Ms. Paddy Torsney: There are two components to this that members should consider. The effect of this amendment, were it to pass, would be to delete subclauses 106(6), 106(7), 106(8) and 106(9). If I can deal with 106(7), 106(8) and 106(9) first, there is a government amendment to delete those as well and put in a new subsection 106(7), which would be very similar to what we just did in clause 81.

With regard to subclause 106(6), paragraph 106(6)(a) is in the existing CEPA legislation and paragraphs 106(6)(b) and 106(6)(c) are the toxics from the old CEPA as well. So I'm not sure why the member has specifically targeted subclause 106(6).

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The Chairman: Almost a hundred years ago we were holding hearings on this. I have a vague recollection and a note I wrote on the bill whereby a witness indicated that the current law is stronger. That was in connection with the insertion of subclause 106(6) on page 75, where the amendment begins. The witness, CELA, went on to say the existing CEPA provisions regarding equivalency of notice and assessment of toxicity are stronger. Could I ask you to refresh our memories on that? Are my notes accurate?

Madame Hébert, I'm referring also to page 43 of the summary of submissions. I would like to hear Madame Hébert's comments on this particular subclause of the bill as it compares to the current legislation, and whether that remark by CELA is accurate.

Perhaps Mr. Mongrain would like to make an intervention while Madame Hébert....

Mr. Steve Mongrain: Thank you, Mr. Chairman.

The NDP motion to delete those sections would have two impacts. If you look at paragraph 106(6)(a), it sets a standard for other acts, like the Feeds Act and the Seeds Act, for notification and assessment. It brings those other acts up to the CEPA standard. The second point relates to the scheduling of other acts. There's a government amendment to subclause 106(7), I believe, that would delete subclauses 106(8) and 106(9) and address the concerns raised by the Canadian Environmental Law Association.

I should also point out that in your committee's report It's About Our Health! Towards Pollution Prevention, recommendation 69 states:

The Committee recommends that CEPA be amended to require the Governor in Council to publish a list of statutes considered to be at least equivalent to CEPA with respect to their assessment process....

We're meeting the spirit of that by our amendment in subclause 106(7) by providing the Governor in Council an opportunity to determine that. The effect of Mr. Laliberte's motion would be to simply vacuum all of these sections from the bill.

I should also point out to committee members that this is parallel to the issue we were discussing under clause 81.

The Chairman: All right, thank you, Mr. Mongrain.

Madame Hébert, do you have any comments?

Ms. Monique Hébert: I'd just like to point out to the members that at least paragraph 106(6)(a) is not dissimilar to what one finds in the current legislation. The current legislation would give precedence to other legislation that provided for notice to be given prior to the manufacture, import, or sale of the substance, and for an assessment of whether it was toxic.

Notice and assessment are the two ingredients one finds in paragraph 106(6)(a). However, in Bill C-32 it goes a bit further, in that it specifies substances capable of being toxic, and not just substances that are toxic, as in the existing legislation under subsection 26(3). However, Mr. Laliberte wouldn't just propose to delete paragraph (a) of subclause (6); he would also delete paragraphs (b) and (c).

• 1045

Just off the top, Mr. Chairman, I don't think there is an equivalent for that in the existing legislation. Paragraph (b) deals with exemptions that would be developed by regulation to the living organisms, and (c) deals with impurities and contaminants related to the preparation of the organisms. As far as I can tell, these would be new additions to matters that would be exempt from the purview of part 6, on products of biotechnology.

Of course, the following subclauses, (7) through (10), are basically the same kind of approach that was discussed under clause 81, dealing with situations that arise when there is another act of Parliament that could apply. What happens in that case? Who determines which piece of legislation would prevail? Of course that particular discussion and those aspects were deferred until next Tuesday.

The Chairman: Thank you.

Mr. Mongrain.

Mr. Steve Mongrain: I'm looking at the existing act, on page 17. The researcher had indicated, Mr. Chair, that paragraphs (b) and (c) are not in the existing act. They are—under section 26(3), paragraphs (c) and (e). The sequence doesn't follow identically, but certainly the substance is there.

The Chairman: Madame Hébert did qualify her statement by saying it was just from memory.

Ms. Monique Hébert: And I do stand corrected, thank you.

The Chairman: Mr. Laliberte.

Mr. Rick Laliberte: You mentioned something about next week. You said some clarification will be made on biotech and dealing with other acts or other ministries.

Ms. Monique Hébert: No, Mr. Laliberte, this has to do with the residual status of CEPA that we touched upon earlier. That residual status is basically subclauses (7), (8) and (9).

Mr. Rick Laliberte: Okay, then I'll tell you the reason I raised this, and if the government officials want to concur and recognize it.... The intent of this amendment is that it would make it CEPA-specific that biotech.... The whole issue of information, assessing, and listing takes place in subclauses (1) and (4). In this case, subclauses (1) and (4) do not apply to what is listed in subclause (6). That's what is being deleted in (1) and (6).

Is it your understanding that if we take (6) out, it makes it specific that anything that says CEPA would have implications for biotech?

Mr. Harvey Lerer: Mr. Chairman, just to reiterate a comment that I believe was made by one of my colleagues when we were discussing the parallelism to toxics, what Bill C-32 has in that clause now allows for the minister responsible for the other act to make the determination. What the government amendment will do, once it is placed before the committee, is take that to the Governor in Council, as opposed to leaving the sole responsibility for the recommendation to the minister responsible for that other act.

With the modification that would be proposed by the government in terms of the Governor in Council, what subclause (6) does is specify where those sections do not apply in those others. That would be the effect of it.

The Chairman: Now, this is a very important discussion, but we would like to bring it to a conclusion, possibly.

Mr. Lincoln.

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Mr. Clifford Lincoln: Well, I have L-15.3, and it touches on paragraph 106(6)(a). I want to bring up the point that I don't know at what point it will come in, whether it's after Mr. Laliberte's amendment has been dealt with or now.

The Chairman: If the amendment by Mr. Laliberte carries, we will not raise your amendment. If it does not carry, then we would go to your amendment.

(Amendment negatived) [See Minutes of Proceedings]

The Chairman: We can now move to amendment L-15.3, in the name of Mr. Lincoln.

Mr. Clifford Lincoln: Mr. Chairman, if you look at 106(6)(a) as it stands now, it says:

Subclauses (1) to (4) 4 do not apply to

(a) a living organism that is manufactured or imported for a use that is regulated under any other Act of Parliament that provides for notice to be given before the manufacture, import or sale of the living organism and for an assessment whether it is toxic or capable of becoming toxic;

So there is an assessment, but it doesn't set any standard in terms of what we're excluding. Where is the standard that has to be met? This is why my amendment says there must be regulation or control of any potential risks to the environment identified by that assessment, including to biodiversity and human health.

In other words, an assessment is fine, but the result of the assessment and what action is taken once there has been an assessment and all of this is completely absent. It's good to make an assessment, but if the assessment shows X or Y, what do you do with it? It seems to me to be of extreme importance to make sure there's a regulation or control of any risk to the environment, biodiversity, and human health that this assessment produces. This is the sense of the amendment.

The Chairman: Thank you, Mr. Lincoln.

Any comments or questions?

Mr. Steve Mongrain: Mr. Chairman, when reading the section in isolation, Mr. Lincoln makes a very good point about the question of sufficiency of regulation. However, the structure of the biotechnology part, as with the toxics part, is divided up into the assessment phase, for which CEPA sets the standard for notice and assessment of toxicity, and then there's the management phase, which is dealt with in the biotechnology part, in clause 115, the regulatory authority. There is a government amendment to clause 115 in the new small package, and it provides the sufficiency test for regulations under another act.

Mr. Clifford Lincoln: In that case, we had better deal with the two together to make sure we cover that point. If we just leave it on the basis that we are going to pick it up in clause 115, and then clause 115 doesn't carry as amended, we're stuck.

The Chairman: Mr. Mongrain, a moment ago you were referring to an amendment by the government to clause 115.

Mr. Steve Mongrain: That's correct, sir.

The Chairman: Is it the amendment on page 9 of the very small package, which says “provides...sufficient protection to the environment and human health”?

Mr. Steve Mongrain: That's correct.

The Chairman: It's the same kind as we discussed before, Mr. Lincoln.

Mr. Clifford Lincoln: Mr. Chairman, there we go again. I think the government now has found a wonderful little catchphrase in “sufficient protection”, which doesn't mean very much. It means what the Governor in Council at any one time in the future, in any other government or this one, decides what is sufficient and what is not sufficient. It's very loose.

• 1055

We talk about regulation and control. I think there should be far more. We had this debate about equivalence and sufficiency. If the government has now decided to kind of go away from equivalence and just seek sufficient, does sufficient mean that this standard would be met without regulation, without any particular instrument of control? What does it mean?

The Chairman: Are there any further interventions? Mr. Moffet.

Mr. John Moffet (Committee Consultant): I have a practical question or observation about Mr. Mongrain's explanation about the way this part of the bill fits together.

It strikes me that it is conceivable that under CEPA, because of subclause 106(6), Environment Canada and Health Canada would not be able to require information and assess information about a living organism if that living organism could be assessed under some other act, even if no action could be taken under that other act. That's the impact of subclause 106(6). Then you're saying don't worry, because under clause 115 that same substance could be regulated under CEPA if it's not regulated under that other act.

Is it conceivable that Environment Canada and Health Canada would or could regulate a substance that they didn't assess because they couldn't assess it because some other department had assessed it under some other act, but didn't regulate it because they didn't have authority to do so?

Mr. Steve Mongrain: Mr. Chair, I have two points in response. Other acts have requirements for assessment of new products. Let's be clear that we're dealing only with living organisms, or in the case of toxic substances, things that do not exist in Canada. Either a proponent brings them in or proposes them for import or for manufacture. So they've never been assessed; they haven't existed in Canada. Other acts and CEPA provide for their assessment to determine if they would be harmful to the environment or human health.

If it's not assessed under CEPA—and this is a hypothetical situation, because I'm talking about government amendments that haven't passed—clause 115, if it were amended, would read that the Governor in Council shall not make regulations unless.... This is the substance of the government amendment:

...if, in the opinion of the Governor in Council, the regulation regulates an aspect of the living organism that is regulated by or under any other Act of Parliament in a manner that provides, in the opinion of the Governor in Council, sufficient protection to the environment and human health.

That's a pretty powerful lever for the Minister of Environment in dealing with her cabinet colleagues for other issues. It did not exist in the current CEPA, in CEPA 1988. In CEPA 1988 it was merely the Governor in Council deciding, well, it's regulated. There were no sufficiency tests. So we're quite excited about these new developments and this new sufficiency testing. It strengthens the bill.

Mr. John Moffet: My question wasn't clear. I understand that the legal authority is there, and that you've strengthened the legal authority. The question was more of a practical one.

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You have substance A. It's a product of biotechnology. It's not in Canada. Some act other than CEPA provides for its assessment. Agriculture Canada assesses it, so it can't be assessed under CEPA. Then you come to the regulation issue. For whatever reason—lack of legislative authority, lack of political will or whatever—the Department of Agriculture doesn't regulate it. I fully appreciate that in theory and in law, Environment Canada could step in and regulate it, under clause 115. The question was a practical one. Is it conceivable that they would or could do so when they didn't assess it and they don't have the assessment information because the assessment was done by Agriculture Canada?

In practical terms, how do the assessment and regulation fit together, when it's conceivable that they could be done by different departments that aren't required to cooperate under this act, unlike Health Canada and Environment Canada?

The Chairman: Madame Hébert.

Ms. Monique Hébert: I don't know if this will help, but the exemption under subclause (6) applies only when the substance is regulated under the other act of Parliament. It's not simply that Agriculture Canada may have had the authority to assess it. There is the requirement under subclause (6) that at least the use of the substance be regulated by the other act of Parliament that has notice and assessment provisions.

Mr. John Moffet: But that doesn't answer the question.

Ms. Monique Hébert: No?

The Chairman: Mr. Lerer.

Mr. Harvey Lerer: If I may, if one were in that hypothetical situation and one were about to regulate because another department hadn't, in the building of the scientific case—which is an important case to be built, along with all the other cases—I cannot conceive of a situation in which we would not ask for and actually require the assessment conducted by the other department. That doesn't mean necessarily that our scientific opinion would be the same, but our scientific opinion is the one that would have to be brought forward, given that Environment Canada would be the regulator.

Mr. John Moffet: And then my question is about the fact that you said you would require it. I'm sorry about belabouring this point, but would you have the authority to require it, given that you can't request that information because of subclause 106(6)? It says you can't get that information if some other department has the authority to request it, whether that authority is exercised or not.

Mr. Steven Mongrain: Mr. Chairman, on the difference between a new substance or new living organism and an existing living organism—and we really are getting into the hypothetical here—after another department has assessed the substance and made a decision, it falls into the realm of existing substances. As Mr. Moffet pointed out in his presentations to the committee last spring, Bill C-32 significantly strengthens our information-gathering powers under clause 46, for example.

I think we might be able to use those tools in this situation, which I would call a wildly hypothetical one. But they are there to gather information about that living organism, make a determination, and make a case for regulations, and then it's up to the Governor in Council to determine if what's done under the other act is sufficient or not.

The Chairman: Thank you, Mr. Mongrain.

Mr. Lincoln.

Mr. Clifford Lincoln: Mr. Chairman, I wonder if Mr. Mongrain would tell me why the words that I've added by amendment to paragraph 106(6)(a) couldn't be inserted. How would the conflict, in any case, with government amendment G-08/03 to clause 115. Why couldn't the two apply? In other words, I don't see any conflict within that and the amendment to 115. Putting this in under paragraph (6)(a) just clarifies an action to be taken, which again is qualified under clause 115 in the amendment. What is the clash there?

Mr. Steve Mongrain: Mr. Chairman, I think we're getting into legal and drafting questions that are beyond my scope, and they would probably put my colleague from the Department of Justice on the spot here. It is a complicated issue and a complicated structure.

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The Chairman: Well, this has been a very useful exchange that has taken place. It's unfortunate that we cannot continue for another hour in this room. This is a very important clause, so we will resume the discussion on Tuesday.

The meeting is adjourned.