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, May 14, 1998

• 0921

[Translation]

The Chairman (Mr. Charles Caccia (Davenport, Lib.)): Good, morning, ladies and gentlemen. Welcome to this meeting of the Standing Committee on Environment and Sustainable Development. We meet today pursuant to an order of reference from the House of Commons, dated April 28, which reads as follows:

[English]

ORDERED, that Bill C-32, An Act respecting pollution prevention and the protection of the environment and human health in order to contribute to sustainable development, be referred to the Standing Committee on Environment and Sustainable Development.

We welcome the attendance of the officials at the table and in the room. We are all aware of the fact that today we start a long journey with one small step, so to speak.

We are all aware of the fact that a considerable amount of work has gone into this bill, as witnessed by the massive briefing book that the clerk received yesterday in both official languages. This book is being distributed to members at the present, to their offices.

You will see that an enormous amount of work has gone into preparing it. I will not read each part, but it is divided in a manner that is consistent with the sequence of the bill. It is probably one of the most remarkable efforts in parliamentary history, because it certainly provides parliamentarians with as much as they would want to know, and even more, on any given part of the bill.

Ms. Nadine Levin (Senior Policy Adviser, Canadian Environmental Protection Act Office, Department of the Environment): That's only volume one.

The Chairman: Oh, there is another volume, is there?

The bill itself, as you know, has been the object of changes. It was Bill C-74 until the dissolution of Parliament a year ago. It has changed number now. It has been expanded, I don't know whether to its advantage or not, but that is something we will identify.

From a cursory reading of the preamble, I have the impression that there is a lot of unnecessary weight attached to it, which will require some cleaning up when we come to it. As you know, the preamble is the last item in the examination of a bill, and therefore we will leave it for a later date.

I have asked our researchers to make contact with the Library of Parliament's research branch to request a study for us on the weight that is given to preambles in general in the decision-making process in the courts, so as to determine how important the language in a preamble is when it comes to the practical application of a law.

• 0925

We have here today a number of officials in the room. At the table there are five, and I wonder whether you, Mr. Allard—whom I welcome, of course, again to the committee—would like to introduce them and whether you would want to proceed with your presentation, keeping in mind that one meeting may not be sufficient and that we may continue with you in the week of May 25.

Welcome, Mr. Allard.

Mr. Glenn Allard (Director General, Special Projects, Department of the Environment): Thank you, Mr. Chairman. I would be pleased to introduce the people I have with me.

Three of the people here are from the office that is working on the legislation: Mike Wong, Nadine Levin, and Steve Mongrain. I also have, from the legal services of the Department of Justice, Mr. Duncan Cameron.

The Chairman: Who are the CEPA veterans in your group?

Mr. Glenn Allard: How do you describe a CEPA veteran?

The Chairman: Those who have been with it for a number of years, beginning with 1988.

Mr. Glenn Allard: As you know, I was with it then, and Madame Levin was with it then as well. The other people are more recent and have been involved in the...I'll call it CEPA 1998. Hopefully it will become CEPA 1998.

There are also two people behind me from Health Canada: Tony Myers and Jennifer Rae.

The Chairman: Could you give us their titles or their roles, please?

Mr. Glenn Allard: They both have been involved very much in the tracking and the development of the environmental protection legislation. They are basically the coordinators within Health Canada on the legislation. They will be following through with the committee hearings as well.

The Chairman: So they will be observing proceedings throughout the process on behalf of the Department of Health?

Mr. Glenn Allard: Yes, and obviously if the committee would like to have them appear as witnesses, we can arrange that as well.

The Chairman: And they've been part of the process of developing the legislation?

Mr. Glenn Allard: Correct.

The Chairman: Could we have their titles?

Mr. Glenn Allard: You're going to have to give me your titles, please.

The Chairman: Yes, please come to the table. Would you please come to the microphone, both of you, and you might as well sit at the table.

Dr. Tony Myers (Coordinator, Special Projects, Department of Health): I'm Dr. Tony Myers. I'm the coordinator for the new CEPA for Health Canada. I've been involved with the Health Canada component of CEPA since January 1989, so I have some continuity with the past.

The Chairman: Historical memory.

Dr. Tony Myers: Yes. I'll have to turn it over to Jennifer Rae, who's my colleague.

Ms. Jennifer Rae (Senior Biologist, Department of Health): I'm Jennifer Rae. I'm a senior biologist with Health Canada. I've been involved with the Canadian Environmental Protection Act since 1995, so just the most recent, plus the toxic substances management policy implementation for Health Canada.

The Chairman: Welcome to the committee.

Ms. Jennifer Rae: Thank you.

The Chairman: We will be glad to have you at the table whenever you wish, starting from today, because we consider your department equally involved and as important in the examination of the bill as Environment Canada.

Dr. Tony Myers: Thank you.

Ms. Jennifer Rae: Thank you.

Dr. Glenn Allard: Okay. My understanding of today is that we will give you an overview of the bill in the form of...I'll call it a technical briefing. I do have slides prepared, or a handout prepared that has been distributed to members.

Essentially Bill C-32 does represent the centrepiece of federal environmental protection legislation. It's a very comprehensive act, as the chairman has already referenced, and it is trying to deal with environmental protection issues that are within the federal jurisdiction. It's trying to do this in such a way that it does not overlap with the legislation of other federal departments and in a manner that promotes a cooperative approach with other governments, such as provincial and aboriginal governments.

• 0930

It's certainly complex legislation. I'm going today to try to do give you a brief overview of the content of the bill, and then I will come back and try to identify the main points that are different between CEPA in 1988 and the current legislation, Bill C-32.

I will reference the page numbers as I go through this presentation. This will hopefully help members.

On the second page, which is entitled “Introduction”, certainly there are some key new areas that the bill covers. I'll just highlight those briefly, and I'll come back to them in more detail later.

Certainly one item that is brand new in the bill is the pollution prevention approach. There is an entire part of the bill, part 4, that is devoted to pollution prevention planning for toxic substances.

There is also within the toxic substances component of the legislation a part of the legislation, part 5, that is an improved system for dealing with toxic substances. The concept is that we will be able to deal with more substances and do that faster.

In terms of the control actions required on toxic substances, there are a number of items within the bill that specify deadlines that require the minister to take action within very specific periods of time. I think this is a significant improvement over the current CEPA, which is from 1988.

We also have quite a significant transfer of legislative authorities from Transport Canada that allow the Minister of the Environment now to regulate the emissions of new motor vehicles. This is important because of the relationship between the regulation of fuels, the control of fuel quality, and the control of vehicle emissions. They work as a unit, hand in hand, so we're certainly looking forward to that addition.

There are also a number of expanded opportunities identified in part 2 of the legislation for public participation and to allow the public to have better access to information under the Canadian Environmental Protection Act.

There is also a new part to the bill on biotechnology that deals with living organisms. I think members of this committee are very familiar with that particular aspect.

The current bill we have, as has been mentioned, was proclaimed in June 1988. It was an omnibus bill that combined a number of pieces of legislation that had been under the administration of the federal Minister of the Environment.

I'll turn to page 3 now. Here I've just given an overview of what's in the bill. I listed the different parts and the divisions within one of those parts.

There is, of course, a preamble and administrative duties, which are not mentioned on this particular slide. Then there's a section on administration, which deals with advisory committees to the minister, provincial governments, and agreements the minister might enter into with industry.

Part 2 is on public participation. It contains what's commonly referred to as a citizen's right to sue. It also contains an environmental registry, which is a requirement that the Minister of the Environment develop an environmental registry.

Part 3 is on information gathering, the development of objectives, guidelines, and codes of practice. It has improved information-gathering provisions over the current CEPA and it has similar provisions to develop guidelines, codes of practice, etc.

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Part 4 of the bill deals with pollution prevention. As I've already indicated, this is a brand-new part to the bill. It's certainly one of the ones that we would like to see used extensively in the future as a means of preventing pollution before the problems occur.

Controlling toxic substances is part 5. I often refer to this as the heart of the legislation. It's a very comprehensive scheme to deal—hopefully more efficiently in Bill C-32 than we have been able in the past—with the overall management of toxic substances.

Part 6 is on biotechnology, which deals with living organisms. This particular part of the bill is a brand-new addition.

On page 4, you will see the main title: “Controlling Pollution and Managing Wastes”. This is part 7 of the legislation. It is broken into a number of specific divisions that deal with certain aspects of pollution control and managing wastes.

Division 1 deals with nutrients and the problems that nutrients cause in eutrophication of waters.

Division 2 deals with sources of pollution in the ocean that originate from land-based sources. This is a section that's brand new to the legislation. It allows the minister to develop guidelines on what practices should take place in terms of these land-based sources.

Division 3 is disposal at sea. People will recall that this used to be called ocean dumping, which deals with any dumping of material into the ocean environments in marine environments controlled by Canada.

Division 4 deals with fuels, the quality of fuels, and the impact that will have on emissions from the combustion of these fuels, particularly on air quality.

Division 5 deals with vehicle engines and emissions, which is a transfer from the Transport Canada department.

On page 5, continuing again with this rather lengthy part of the bill, there are two divisions. One deals with international air pollution and the other deals with international water pollution. The international water pollution division is a new part. Both of these areas deal with the control of the source of a pollutant in Canada that may be impacting on another country.

Division 8 deals with the movement of hazardous wastes, hazardous recyclables, and certain prescribed non-hazardous waste. This is very much the tracking system that is used to fulfil our international obligations under the Basel Convention.

On the next page, page 6, part 8 of the legislation deals with environmental matters related to emergencies. This is the part that allows the federal minister to be involved certainly directly with environmental emergencies that relate to substances that have been declared toxic under the Canadian Environmental Protection Act. It also allows for coordination for provincial governments, to have a comprehensive regime to deal with environmental emergency matters across the country.

Part 9 deals with government operations and federal and aboriginal lands. There was a similar part to this in the existing CEPA, but it has been improved and expanded upon. Particularly, it now gives the minister the authority to develop regulations without having the concurrence of all ministers who have an involvement in a particular federal activity or federal land.

Part 10, which is a rather large part of the bill, deals very clearly with enforcement matters. There's a rather extensive treatment given to the enforcement of the legislation.

Part 11 deals with miscellaneous matters. It covers things such as the creation of boards of review for decisions that are made by the minister. It covers thing such as the annual report to Parliament. It covers things such as how we deal with confidentiality matters under the legislation.

• 0940

The last item on this particular slide deals with consequential amendments and the schedules. A number of consequential amendments have to be made to other federal statutes to fit in with the realities of the new Bill C-32.

The next slide is entitled “From Old to New”. I think the chairman has already talked a bit about this, so I will go over it very quickly. As members will know, Bill C-32 received first reading in March of this year and had second reading and parliamentary debate in May and has now been, as indicated by the chairman, referred to this committee for a clause-by-clause review.

Moving on to slide eight, we're talking about the preamble and the administrative duties section. The chairman has already indicated he will be asking for some guidance from his researchers on the actual legal status of the preamble of the legislation. From our perspective within Environment Canada, we believe the preamble sets out guiding principles and sets out a policy framework under which the legislation is administered.

There are a number of guiding policy principles put forward. They're listed here. There's pollution prevention, using an ecosystem approach, basing things on science, using a precautionary principle, considering biological diversity, and also cooperating with other governments in Canada.

The administrative duties for the most part are based on the guiding principles contained in the bill's preamble. The administrative duties, though, I think do have a more significant legal connotation to them in that they do in fact guide the department and the minister on how they should administer this legislation. That's not to say the policy doesn't guide, but this gets very specific when you start to talk about the administrative duties.

Move on to page 9. I will now go through each of these parts of the legislation and try to highlight in a little more detail what is new. It's to give you a bit of an overview of what it covers but also to highlight what is new in Bill C-32 as compared with CEPA of 1988.

The first item is the national advisory committee. The existing legislation has a federal-provincial advisory committee that, as the name would indicate, has members from the federal and provincial governments to provide advice to the Minister of the Environment.

The new national advisory committee, in recognition of an expanding role for aboriginals in self-government, will have representation not only from provincial governments but also from aboriginal governments. This committee is one the department views as being extremely important. It provides solid advice and gives us an opportunity to make certain we are proceeding in our environmental protection endeavours in a coordinated manner.

There are expanded conditions for administrative and equivalency agreements. I think it's worth highlighting here, because I know this is something your committee has dealt with in the past. We have put in place a regime where the minister will be obligated to publish in the Canada Gazette any proposed agreements she is going to enter into and have a 60-day period of comment before she finalizes those agreements.

There is also a requirement that the minister will report back on any comments that have been received during that 60-day comment period. Similarly, the final agreement will be published in the Canada Gazette or there will be a notice indicating where that agreement will be available. Certainly our intention within the department now is that agreement would be available on the environmental registry, which we intend to put into the Internet system.

In “Public Participation”, part 2 of the legislation, there is a requirement that there be improved access to information through the environmental registry, which I have already referred to. The environmental registry will have a number of items in it in addition to agreements, including all the legal documents, Gazette notices, regulations and things of that nature. Under this environmental protection legislation, we intend to include anything that is of significance in this environmental registry.

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There is also in this part of the bill an expanded “whistle-blower protection”, as it is commonly referred to. The current act allows for the protection of the identity of any person who reports a CEPA violation that results in an illegal release of a substance into the environment. The protection of that identity has been expanded in the new legislation to cover any offence under the act, whether it be a release or an offence of any nature.

The other significant change with respect to whistle-blower protection is that any federally regulated employee, such as those in government agencies, crown corporations and federal departments, will have protection from dismissal or harassment or any disciplinary measures if they report a violation under this legislation. We have done this for federally regulated employees because this is the matter that is within the federal competence. The provincial governments are the ones that have the competence to deal with labour matters under provincial jurisdiction.

This section also contains a right to request an investigation, whereby an individual can request that the minister undertake an investigation. That system can lead to what is commonly known as a “right to sue” for damage to the environment. And the significant change here from the 1988 CEPA is that with respect to this right to sue it now does not have to be the individual directly impacted who sues. If there is in fact a violation of the legislation, an individual living in any part of the country who knows that the damage has occurred elsewhere in the country has an ability to request this investigation and follow through with the action.

I must point out, though, that there is no personal gain to be made. The individual is not compensated personally, other than being compensated for any damage that may have occurred to his or her property, if that happens to be the case.

Information-gathering objectives, guidelines and codes of practice make up part 3 of the legislation. There is an expanded information-gathering power contained in this section. I think the information-gathering powers are quite comprehensive. There is also a new authority. It provides authority to gather information for research purposes on the human health impacts, and this is of particular import for my colleagues from Health Canada.

There are new powers that authorize the minister to publish information that she collects, like inventories and so on, and I think the one that is of most significance here—and this is a new provision—is the explicit obligation to create a national pollutant release inventory and to publish that information. We have been producing a national pollutant release inventory, but there have some questions about the legal basis for that, and there was no obligation on the minister to in fact produce it. So with the changes that have been made here, it is very clear now that the minister does have the authority to collect this information. And it is very specific about the fact that the minister is required to in fact release that information.

Pollution prevention is part 4 of the bill. This is on page 12 of the presentation you have. There are new powers that give the minister the authority to require pollution prevention plans. Under this legislation, she can do that for substances once they have been deemed to be toxic. There is also a provision later on in the bill, in clause 291, which, in the sentencing for a person who has violated the legislation, allows the courts to compel the individual to prepare pollution prevention plans to prevent such an event from occurring again.

• 0950

Certainly, the concept of this pollution prevention planning area is here very much to encourage the private sector to take voluntary actions and to do voluntary pollution planning on a very comprehensive basis, planning that would cover off more than the toxic substances within the particular jurisdictional competence of the federal government. As a part of that, we have included a new information clearing house to promote voluntary pollution prevention. Announcements on the creation of that clearing house were made at the conference that took place at GLOBE '98 in Vancouver this year.

The subject of toxic substances is one of the most detailed sections of the bill. I have prepared a number of slides that will hopefully give you a general idea of the approach that the legislation contemplates the department taking to address toxic substances. On page 12, there is just a little bit of background. You'll see fancy things like “DSL” that probably don't mean a whole lot to you. DSL means the domestic substances list, which is in the legislation. I think the more classic description of that is that they are substances existing in trade and commerce at the moment, along with the control of those.

In the existing legislation, we had a priority substances list. We looked at 44 of 44 substances. We ended up declaring 25 of them as toxic under the Canadian Environmental Protection Act. There is now a system where we have a priority substances list 2, which has 25 substances on it. Clearly, there has been concern expressed by this committee and by others that for 23,000 substances, dealing with 44 and dealing with 25 is not moving fast enough, so there are improvements within the legislation to try to come to grips with that question and have us move a little more expeditiously in dealing with this large number of existing substances.

On page 14 of our presentation, I get into the new process. There is a process that allows us to categorize substances into groups and to do a screening level assessment. I think probably it's best if I turn right now to page 15, which is a bit of a schematic. It's very complex, but I'll try to simplify it.

We are starting with these 23,000 existing substances. Then we have a categorization of those into different groups. There is enough scientific evidence to know that some areas warrant more attention than others. For example, one category would be chlorinated organic chemicals. Many of the chemicals we find that are impairing the environment or are impacting on human health are halogenated or have chlorine or other similar elements associated with them.

So our approach here would be to categorize this list of 23,000 into a number of different groups. Then we would have a screening level assessment. For example, under the legislation, if you had a classification categorization of chlorinated organics, you would look at those chlorinated organics and you would be able to rule out some of them as really having a significant possibility of being toxic, based on their structure, the size of their molecules or the fact that they may be polymers and are less likely to break down. You could also look at things that should be looked at in more detail if they are persistent, bioaccumulative and inherently toxic.

So this screening process, this screening level assessment, would then divide things up. There would be some for which we would say we're not concerned, and there would be another list of substances that would be candidates for immediate action or immediate assessment, depending on the extent of that information.

• 0955

The other system we have is shown in the upper right-hand side of the box on this page. Again, this was one that was recommended by this committee—that we should learn about and use assessments done by other countries. It's very difficult to do all the science within your own country, so there is very much a concept that we will be reviewing work done in the industrialized countries in particular, through the Organization for Economic Cooperation and Development. We will use that as sort of a screening level to boil this down to a number of substances that should be looked at in more detail.

Once we have these systems in place—and these are in addition to our existing priority substances list—hopefully we will get down to talking about candidates for immediate action or assessment much more quickly and hopefully we will be able to handle the 23,000 substances in a more expeditious manner.

After we get through this screening process, if we have enough information the ministers can in fact deem the substance to be toxic under the legislation. Or if it is one that we need to have a little bit more assessment of, we would put it on a fast track and run it through a more detailed assessment process to determine whether it is toxic or not.

I'll turn now to our page 16 and a couple of the other new concepts in this legislation. We've defined virtual elimination. We've tried to embody the toxic substance management policy that was developed in 1995 in this legislation. It calls for the virtual elimination of toxic substances that are persistent, bioaccumulative and predominantly from human sources.

For those that do not fit the virtual elimination category, we then go into the more traditional life cycle management, trying to control and reduce the entry of these chemicals into the environment at various stages of the life cycle.

Page 17 is a continuation from the previous schematic. It just basically describes what I've already said about the previous slide. If something has been deemed to be toxic under CEPA, it moves into the triangle shown on this page, and then if it meets the criteria for virtual elimination it will move over to the left, to the category of substances that are persistent, bioaccumulative, inherently toxic and come mainly from human sources. If all of these criteria are not met, it would move into life cycle management.

There are of course many other steps and so on, but I probably have a complicated enough drawing for you at the moment. So that's the overall intent of what we're trying to do here.

On page 18, again entitled “Toxic Substances”, we're very much trying to operate in a more wholesome manner, using the precautionary principle, which is one of the statements in our preamble. I've already talked about the improvements in terms of the timeframes to deal with the risks of toxic substances.

We have a requirement that once a substance has been deemed to be toxic, the minister must, within two years, propose a regulation or control instrument, and within eighteen months after that, this control action must be finalized. Within the bill, as there is currently in CEPA 1988, there is still a requirement that any substance added to the priority substances list should be assessed within a five-year timeframe.

But I think what's important is the two years for proposing preventive control actions and the eighteen months of finalizing that exact regulation or control action.

With respect to toxic substances, we have expanded—

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The Chairman: Can I interrupt you, Mr. Allard? Maybe I missed your comment, but it seems to me you did not touch upon the five years to assess the PSL—or did you?

Mr. Glenn Allard: Actually, I did, and then I came back to the second point. That's why I confused you.

The Chairman: I see.

Mr. Glenn Allard: There is a five-year period in which we must assess the priority substances list. This is similar to what is in CEPA 1988.

Let's move to page 19. We have an expansion in terms of the way in which we can address toxic substances. There are provisions within the legislation now to allow us to use economic instruments. I've already talked about the fact that there is a section that allows us to produce pollution prevention plans. Through the initial sections of the bill on guidelines and codes or practice there is very much an ability to sign agreements with industry and have voluntary instruments where they would commit to reducing particular substances.

A good example of that would be the Motor Vehicle Manufacturers' Association. They have agreed to reduce the discharges of volatile organic compounds that impact on smog around the Toronto area. Of course, the Windsor-Quebec corridor is where motor vehicle manufacturers are concentrated.

There is also a new provision—again, it's quite significant—that allows us to require mandatory reporting on any significant new activity. The way the legislation works at the moment is that if a new substance or chemical is brought into Canada and goes through all the testing, it can be approved because we feel it is going to be well managed. In the current legislation, that's the end of it. If somebody else wants to use it for a different purpose, then it happens. There is no mechanism to stop that.

The new legislation will allow the minister to specify that, yes, if this particular substance is used for a new purpose or activity, you should let the Minister of the Environment know so it can be reassessed to make certain that there aren't more exposures associated with that particular use or activity. So I think that's a significant improvement to the legislation as well.

I'm a little bit concerned about my voice, because I was at the hockey game last night, and I'm not sure I'm going to be able to last here.

The Chairman: Would you like a five-minute break?

Mr. Glenn Allard: No, it's fine. A glass of water will get me going again. Thank you.

Next, page 20 deals with biotechnology. Again, this is a new part to the legislation. It is dealing specifically with living organisms. If there are other products of biotechnology, i.e., that were engineered through biotechnology, that are actually chemical structures, they would be dealt with under the toxic substances component.

We very much in this legislation are providing a safety net for new products that are not dealt with and for which there is not already an evaluation of their health and environmental risk under another act of Parliament. Many of the products of biotechnology will be covered under other legislation. There is no question about that.

The Pest Control Products Act will cover a number of items. I probably have the wrong one here—and my friends from Health Canada can help me—but the Food and Drugs Act, I think it is, will cover some of the foods and pharmaceuticals as well.

So we are very much, within the Canadian Environmental Protection Act, endeavouring to be the safety net. Certainly one of the areas of most significance that we will end up dealing with, and I guess already are, is in bio-remediation of contaminated lands and sites. Many people are using little bugs to eat up the dangerous chemicals and so on. That is one that will be traditionally controlled under the Canadian Environmental Protection Act.

I'll move now to page 21. I am now starting on a number of divisions that are all components of part 7 of the legislation, and part 7 of the legislation is on the controlling and managing of wastes. And so there are a number. I'll go through them, but they are things like nutrients, disposal at sea and fuel quality and things like that, and they're all within this general title of controlling and managing wastes.

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Division 1 of part 7, on nutrients, basically deals with substances that can cause eutrophication of our lakes, and the most significant example we've had of that, of course, was Lake Erie in the 1970s when the weed growth was very prevalent. We're getting back into the same situation in Lake Erie now for a different reason, with the zebra mussels. The water is so clear now that the sunlight is getting through and there's tremendous weed growth again, but of course of a different origin.

There are new provisions here. The definition has been made a little simpler. The authorities are referencing ecosystem health, but certainly the main thrust of this is maintained in that we're trying to address questions of eutrophication.

Division 2 of this part, which deals with land-based sources of marine pollution, provides the minister with authority to issue environmental objectives, guidelines and codes of practice. I should point out that these are not mandatory in nature. There is no sanction applied to these. These are guidelines in the pure sense of the word, in that they are recommendations for people on how they should conduct their activities to deal with sources of pollution on land that potentially impact on the marine environment.

The next division, division 3, is on disposal at sea. As it says on the slide, it was previously known as ocean dumping. This section has a few new twists to it. One thing is that anyone who is applying for an ocean dumping permit must demonstrate that they have looked at other alternatives. Is disposal of this material on land a viable alternative? The other thing we have done, and I believe this was at the suggestion of this committee as well, is that we have in fact put in place a schedule of those sorts of things that may be disposed of at sea as opposed to just listing things that you cannot dispose of at sea. There are also cost-recovery provisions in this portion of the legislation as well, which would allow the recovery of the costs of the monitoring that is done by the department to determine that the dumping is in fact being done safely and that the environmental requirements are being met.

On page 24, dealing with fuels, I've talked about this already, but we are basically talking here about a section that allows us to deal with the performance characteristics of fuel and what those characteristics and constituents of a fuel should be so that we do in fact end up with as little air pollution from combustion sources as we possibly can. It does have authority to address these impacts, both directly and indirectly, in that it can be directly from the combustion of fuel or the fuel characteristics can impair some of the pollution control equipment, for example, in an automobile.

There is also a national fuel mark, which can specify a range of requirements. It could be something as simple as dying of fuel, so that you could differentiate a fuel of a certain, for instance, sulphur level in diesel fuel from another fuel, so that you could make sure it was being used for the right purpose.

On page 25, engine emissions, again, as I have already indicated, there has been a significant transfer to CEPA of the Motor Vehicle Safety Act provisions for setting the emission standards for new on-road vehicles. I think, as most people know, this continues to be a very important subject. The air quality in our urban centres is very much impacted by automobiles. There's a lot of new technology coming down the pipe. and it's important that we keep these standards in place and keep the technology moving as we move to lower- and lower-emission vehicles.

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There is also an authority to address other engines. The Motor Vehicle Safety Act only dealt with cars. We have an authority within this legislation to deal with other engines. It could be things such as generators, it could be lawn mowers, it could be skidoos, things of that nature.

This division of the legislation also covers a national emission mark, which is a mark that is put on an engine and must be on an engine before you can transport it across international borders or across interprovincial borders. This national mark would basically specify that, yes, that particular engine does meet the vehicle emission requirements that are in effect under this legislation.

I'll go on to international air pollution. This is a very similar provision to what is in the existing CEPA, CEPA 1988. Again, it allows us to address situations of pollution sources in Canada that are impacting on another country. It is particularly important that we have this sort of provision in our legislation because it does give us rights in the U.S. It gives us a right to intervene in the U.S. if there is any source of pollution in the U.S. that is impacting on Canada. The only way the U.S. will give that sort of right is if we have a similar provision within our legislation.

I'll cover off the next page fairly quickly, page 27, because it is basically a mirror image of the air pollution provisions. It is brand new to CEPA.

If the truth were known, we would've included it in 1988, but we ran out of time when we were preparing the legislation and we couldn't get it done. It's always been something that we thought we should have in the legislation and it is now being proposed.

The one I should mention that is new, and which is quite important, is that if there is a very urgent situation, both in international water pollution sources and international air, there is a provision for an interim order that allows the minister to take action very quickly to address the source of that pollution.

I should also point out that there are mechanisms, as there were in the previous legislation, to cooperate with provincial governments, where there is a dialogue with provincial governments and a determination as to whether the province is in fact willing to take the action within a reasonable timeframe or not. That is still in this legislation and is also included in this new division on international water pollution.

I'll go on to page 28, hazardous and non-hazardous wastes. This is division 8. There is, I think, a good notification system, control system and tracking system on wastes in operation in Canada now. It's very carefully integrated with the provincial governments to cover off interprovincial movements and movements within provinces as well. This part of the legislation has been carried over and strengthened in Bill C-32.

We now have ability to define by regulations what is a hazardous waste, what is a hazardous recyclable material and what is a prescribed non-hazardous waste. And I'll get to the reason why we deal with non-hazardous waste in a moment.

I think what is important here is that much of the operation of this division is to deliver on our international obligations under the Basel Convention and also under the Canada-U.S. Agreement on Transboundary Movement of Hazardous Waste. And one of the reasons that we have left things to be prescribed by regulation is that these international agreements change from time to time, so we felt it was wise to leave the flexibility and leave an enabling authority here so that we could define these aspects by regulation. As you know, it's a little easier to modify a regulation than it is to modify legislation.

• 1015

There is also a new concept in this legislation that requires exporters who are exporting material for final disposal to come up with plans on how they would reduce or phase out the amount of waste. They have to consider this: is there a way we can reduce the amount of waste we are transporting for final disposal? This again is consistent with provisions in the Basel Convention.

On the next page, page 29, we're dealing with hazardous waste and hazardous recyclable material. We're trying to differentiate between wastes and recyclable materials, because if a material is being transported for recycling and you can't reduce the amount of material, obviously our department is very fully supportive of the recycling concept. New authorities will allow the minister to ban exports or imports if the situation justifies. There's also specific mention of fees for cost recovery of the specific charges the department incurs in administering this particular system.

I said I would come back to the non-hazardous waste concept; this is on page 30. There is an ability to deal with non-hazardous wastes. One might ask, as I did, why are we worried about non-hazardous wastes in the federal government? Some very specific provisions in both the Basel Convention and the Canada-U.S. agreement deal with the transboundary movement of wastes. The non-hazardous wastes must be prescribed under these legislations. The two particular items that have been prescribed and that Canada has an obligation to do some tracking and control on are municipal solid wastes—I guess we call that garbage, a more traditional word—and also incinerator ash. Of course there are concerns about incinerator ash.

They are requirements we have under these international obligations, so we have put in place the legislative authority to deal with it. It's important to realize that in exercising that authority, we will have to prescribe these by regulation, so there will be a standard regulatory approach and a regulatory impact analysis as we develop these particular regulations.

I'm moving on to page 31, and I see I only have 34 pages, so I think my voice will make it through. This is part 8 of the legislation. It deals with environmental matters related to emergencies. What we have new here is we've tried to expand our ability to provide this safety net where no other federal or provincial regulation exists. We're really trying to get a seamless web across the country to deal with environmental emergency matters. As I've already alluded to, very good cooperative mechanisms are in place federally and provincially to address these questions.

Also, the minister is able to request emergency preparedness plans under this legislation. The emergency preparedness plans would be ones where a substance is toxic. She has the ability to request that sort of plan for toxic substances. So if someone is handling a toxic substance under this legislation, they could be required to have a plan in place as to how they would deal with any particular spill.

I'll go on to part 9 on page 32, which is covering the so-called federal house. There are authorities here to regulate environmental protection matters within the federal government. Obviously the federal ability to regulate its own house is unlimited; it can regulate any aspect of environmental protection within its own jurisdiction.

• 1020

The important change here is that the minister can now do this by regulation with the approval of Governor in Council, without seeking the concurrence of all the other affected ministers. I was only involved in one of those, but I can tell you, trying to get 17 ministers to sign the same document is not an easy task.

The regulatory powers are also expanded. They will cover all federal entities, all federal lands, and all operations, and they will also cover those tenants who are occupying federal lands. So if somebody is using federal property and carrying out an activity, they will be covered by this legislation as well.

Now I'm going to deal with enforcement in one page, page 33. As people know, the actual bill has a lot of pages on enforcement. I'm sure when we deal with clause-by-clause, we'll get into a lot of the specific details. I'm going to mention just a few things.

One, there is an environmental protection compliance order. This is a brand-new feature within the legislation. It's included in clauses 234 to 242. It basically allows an inspector to stop an illegal activity and issue directives to take corrective action right on the spot. A very significant power, it is fettered with some reasonable process. The investigator can take this action on the spot, but then there is a right to review, and an independent review officer can look at whether that action is reasonable. So we've tried to balance the need to take immediate action on the spot for a given violation of the legislation with reasonable process if the person is being pushed around unduly.

Environmental protection alternative measures are an additional tool that allows, under the jurisdiction and guidance of the Attorney General, for the party to negotiate a settlement. The concept here is you would not go to court. You would save the expenses and the time of the court case and hopefully you would come up with a reasonable agreement. That obviously can be done for certain provisions. I don't think it would be likely that we would want to do that if somebody were practising a fraudulent activity or something of that nature. We wouldn't use that sort of mechanism, nor would the Attorney General want to be party to it.

There are new sentencing guidelines as well. There's a clause outlining sentencing guidelines that allows the court to put in some pretty innovative approaches to sentencing. And we now have defined an investigator in the legislation, so there will be a separate category of investigator who will have more powers. They will have most of the powers of a peace officer, with one exception I know of, which is they will not be allowed to bear firearms. The inspector's powers will also be expanded a bit. They'll be allowed to do things such as seeking warrants for non-residential inspections or for premises that have been abandoned and where there is nobody present, or where they have been refused entry.

In part 11, “Miscellaneous Matters”, there are some important areas, such as economic instruments. If we can in fact find some innovative ways to get the market principles encouraging better environmental protection, we should be quite open to those. So we now have a tool that will allow us to do that.

I've talked in a number of places as I've gone through this presentation about cost recovery. There is also a general cost recovery regulation-making authority in the act. Of course, we are trying to apply this in situations where we feel somebody is receiving a specific and direct benefit, where it would be better that they pay for the service rather than having it come out general tax revenues. So that is a new area.

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There is also a general regulation-making authority that allows us to make regulations on a province-specific or regional basis. This is designed to allow us to address situations where an environmental problem may exist in a certain part of the country and not in others, so we can in fact target the regulations to where the problem occurs. We still have in here an annual report to Parliament, which is a carry-over from the previous legislation. Then there is a compulsory review of the act that is now specified as every seven years. The previous one specified every five years. It is now every seven years. Previously, it was the one-time review.

I have finished, Mr. Chairman. I thank you and members of your committee for your patience. It is a very complex piece of legislation, and it is difficult to give an overview in a short period of time. Certainly when we come to clause-by-clause review we will obviously be quite prepared to answer whatever questions we are able to.

As you pointed out, we have given you a treatise for the clause-by-clause review. It was so big that the first time we printed it we broke three printing machines. It is a massive tome. Thank you very much.

The Chairman: Thank you, Mr. Allard. Does any other official from your department wish to speak?

Would any officials from the Department of Health wish to speak?

Dr. Tony Myers: I don't think we have any prepared presentation today, because it was—

The Chairman: Would you like to improvise something? We are good at improvisation in this committee.

Dr. Tony Myers: We are certainly here in full support of our colleagues at Environment Canada. At some later date, if the committee wishes, we can give a particular perspective from Health Canada.

The Chairman: We certainly look forward to that. Thank you very much.

We will make a round of questions, short ones so as to allow perhaps two rounds.

Mr. Gilmour, would you like to start.

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

There are clearly a number of players most interested in this bill, whether it's the native community, industry, environmental groups, and in fact, other government departments. What was the degree of consultation that has gone into this, and what is the feeling of those groups?

I am trying to get a level of comfort. Are people reasonably comfortable with what we have in front of us? Are we going to end up with a bunch of head knocking? Where are the different groups coming from in regard to what we have in front of us now?

Mr. Glenn Allard: You like to put poor bureaucrats on the spot, but I don't mind.

Basically there has been, in my view, extensive consultation on this bill. There was a round of consultation that Environment Canada and Health Canada were involved in even before the committee first reviewed the legislation as required under the act. There were then very extensive consultations during that committee hearing process, and Environment Canada has embarked upon a number of consultation processes as well.

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Between the time of Bill C-74 and Bill C-32, there were again some consultations. I will openly admit they were not on a multilateral basis; they were with specific interest groups. We did meet with provincial governments, with industry representatives and with other government departments, and we had rather informal meetings with environmental groups.

In connection with the degree of comfort, my view is that we have a balanced bill here. I don't think anyone is 100% happy. That's a situation that I guess you run into when you have competing views on a particular subject.

I think there is a recognition federally, within the federal family, from other government departments, that we have a reasonably balanced approach here. They won't be happy with every provision in this legislation, but I think they feel that we have come up with a reasonable balance.

I think provincial governments, for the most part, are relatively satisfied. I have this difficulty, because when I speak of provincial, there are senior bureaucrats and there are ministers, and sometimes ministers and senior bureaucrats don't say exactly the same thing. Certainly among the bureaucrats in the provincial government, I think there's a reasonable level of comfort and a tradition of having worked with Environment Canada on this legislation and with Health Canada for a number of years, and I think there is a reasonable degree of comfort.

From the industry perspective, I think they feel that we have a balanced approach. I think they would prefer that we had greater recognition of the role of science in the legislation, and perhaps they feel it is there now.

From the environmental community, I think there is in fact—and I'm sure this committee will hear from representatives of the environmental community—a concern with the legislation. I don't share that concern on many of the points they are raising.

So basically nobody is 100% happy, but I think most people, with the possible exception of environmental groups, feel that we have come up with a reasonably balanced approach.

Mr. Bill Gilmour: Thank you.

[Translation]

The Chairman: Mr. Bachand, do you have any questions?

Mr. Claude Bachand: Yes. Thank you, Mr. Chairman.

I understand that Bill C-32 is supposed to replace Bill C-74 which died on the Order Paper in the last Parliament. Do you think that this new bill has more teeth, that the enforcement clauses are stronger and that it gives the government more authorities?

Personally, I am very attentive to anything which has to do with human rights and I can see that under this legislation, people can get search warrants, but can also search some premises without a warrant in emergency situations .

Could you tell me whether this bill is more coercitive, has more teeth and includes new requirements, as compared to Bill C-74, or if everything was already in the previous bill.

[English]

Mr. Glenn Allard: Specifically addressing the question of search warrants and so on, these provisions are similar to the provisions that were in Bill C-74. That area has not been expanded from Bill C-74. There have been some changes with respect to the existing legislation, the Canadian Environmental Protection Act from 1988.

I think, though, it is fair to say that the provisions we have to deal with inspection and enforcement are consistent with the Charter of Rights. That has been very carefully vetted with my colleagues in the justice department, and I think it is also fair to say that we are consistent with what is being done in other legislation as it is being brought up to date and modernized.

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[Translation]

Mr. Claude Bachand: Can I ask another question, Mr. Chairman?

Sometimes, there are problems when it comes to enforcing a legislation. My colleagues have indicated that there might be such a problem in terms of human resources within the Department. In other words, you can have the best legislation in the world, if you don't have the necessary resources to enforce it, it won't be of much use. It won't be possible to enforce it in such a way as to respect the intent of the legislator. Can you tell me whether, at the moment, the available resources within the Department will allow you to efficiently enforce this legislation?

[English]

Mr. Glenn Allard: This is obviously a very difficult question to answer, because one of the things the legislation does do is have a number of enabling authorities that allow you to do certain things but do not compel you to do them. So when you ask the question, it depends on the degree to which you in fact do some of these things that the act allows you to do.

I guess what I could say more directly in response to your question is that certainly in terms of the priority thrusts of the legislation and the priority environmental problems the legislation addresses, I do feel we have the resources within the department to deal with them.

Furthermore, we're into a review process now where we are looking at the resource allocation we have that deals with matters related to a clean environment. We're in the process of reviewing exactly whether or not there are changes required to make certain that we can in fact implement this particular law.

[Translation]

Mr. Claude Bachand: Thank you.

The Chairman: Thank you, Mr. Bachand.

Mr. Knutson.

[English]

Mr. Gar Knutson (Elgin—Middlesex—London, Lib.): Thanks very much, Mr. Chairman.

My questions are primarily for you, Mr. Cameron. I would like to draw your attention to paragraph 2(1)(l), under administrative duties. If Parliament passes this law, it's telling the executive branch to “act in a manner that is consistent with the intent of intergovernmental agreements”. Presumably this isn't anticipating the harmonization accord and all the agreements that are going to flow from that.

If the province wanted to challenge the legitimacy of a regulation and they wanted to use the harmonization accord to do that, does paragraph (l) provide them with a hook? Does it open the doorway to say, well, here you have the Parliament of Canada telling the government that it has to act in a manner consistent with, for example, a harmonization accord, and pass this regulation, and now we're going to make an argument that it's duplication? Could the courts use paragraph (l) to strike down a federal regulation simply because it wasn't consistent?

Mr. Duncan Cameron (Legal Counsel, Department of Justice): Thank you. That's a very good question, but as a legal adviser to the Department of the Environment, I can tell you it's a question that's currently before the courts in a litigation matter involving the Canadian Environmental Law Association. I think we'll be in a much better position to answer that question once we have the benefit of the court's decision in that case.

Certainly the position we're taking in that litigation is that the harmonization accord you've referred to is a non-legally binding agreement. It's a political instrument.

Mr. Gar Knutson: But paragraph (l) would make it legally binding.

Mr. Duncan Cameron: I'm not sure it would have that effect. I think it has the effect that the government would be required to act in accordance with agreements with the provinces. The question is whether or not the harmonization accord, which was signed in January of this year, would be considered such an agreement. That's the very same issue that's currently before the Federal Court, so it's very difficult for me to answer that.

Mr. Gar Knutson: Maybe you could get back to us with an opinion. I'm not sure what in the wording would exempt the harmonization accord. It says if Parliament passes this law, the government has to act in accordance with agreements.

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Mr. Duncan Cameron: Right. What I would be saying is that it's whether or not in the accord itself there are substantive requirements that require the government to act in a certain way. I think on closer examination of the accord, certainly the position we're taking before the Federal Court is that there's no substantive requirement in the accord itself or in subagreements. Those substantive requirements would come into force, perhaps, through the development of implementation agreements later on.

Mr. Gar Knutson: The language of paragraph 2(1)(l) is very broad. It says the government must “act in a manner that's consistent with the intent”. The harmonization accord lays out intent.

Mr. Duncan Cameron: Right. It lays out a number of governing principles, but perhaps I could take you up on your offer and get back to you with something in more detail later on.

Of course, part of my concern or hesitancy here is that this issue is currently before the courts. So it's a little bit difficult to answer in relation to the specific details of the harmonization accord since that's the question that's currently before the court.

Mr. Gar Knutson: Notwithstanding that, I have this curious notion that if I'm going to vote on something, I have an obligation to understand what it means. I'd like to understand what paragraph 2(1)(l) means. I think it's pretty broadly based. Those are powerful words.

Mr. Duncan Cameron: They're very powerful words, and it creates on its face a legal obligation, as you indicated, to act in a manner consistent with the intent of intergovernmental agreements. The question would be: what is the intent of any particular intergovernmental agreement?

Mr. Gar Knutson: Well, we'd have to read them.

Mr. Duncan Cameron: That's why I suggested that in the case of the accord, you'd have to look at the language of the accord to determine that. As I said, the language of the accord is currently being interpreted, or it's an issue, before the Federal Court.

Mr. Gar Knutson: The other thing that paragraph 2(1)(l) does is sort of give a blank.... We're passing this law in 1998, and government may sign an agreement five years down the road that we don't know anything about. That's obviously because we're not there. This gives those agreements some fairly significant legal weight, whether we've anticipated them or not, or whether Parliament in 1998 has anticipated them. Does that raise any problems for you in terms of powers flowing from the legislative branch to the executive branch?

Mr. Duncan Cameron: I guess it would all depend on what's in the agreement. Presumably, for agreements entered into subsequent to this, if paragraph 2(1)(l) is in its current form when this law is proclaimed into force, then that would be a consideration for the minister and the executive branch to keep in mind when entering into those subsequent agreements. Quite possibly, those subsequent agreements would include language to reflect that consideration.

Mr. Gar Knutson: I'd like to turn your attention to this advisory committee, if I could, in clause 6. It's my view that the minister can consult with whomever she likes. If she wants to set up a committee and consult with ministers of the environment, that's her business.

But here, if Parliament passes this, we're going to make it mandatory. I was just wondering: does this provide a hook for the provinces to say this particular regulation that passed under this particular law is illegal because you didn't follow clause 6? They could say they weren't consulted on it, they didn't agree with it, or whatever. Are we throwing them another sword to strike down federal regulations?

Mr. Duncan Cameron: I think what you'll find is that clause 6 itself doesn't create a legal obligation, but elsewhere throughout the act there are provisions that require that the minister shall offer to consult with certain groups before she may exercise certain powers, such as the development of objectives, guidelines, codes of practice, and regulations. It would seem to me that legally the hook would be in those other provisions as opposed to the language of clause 6, which simply creates the advisory committee.

Mr. Gar Knutson: Look at the language of paragraphs 6(2)(a) and 6(2)(b). Paragraph 6(2)(a) means that we're giving the provinces the right to consult. We're obligating a federal minister of the crown to consult with the provinces before we pass regulations. Right?

Mr. Duncan Cameron: Yes.

Mr. Gar Knutson: Is there any other federal act that you're aware of that does that?

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Mr. Duncan Cameron: I'm informed by Mr. Allard that CEPA 1988 does that perhaps.

Mr. Glenn Allard: I guess I'd just like to point out that, yes, CEPA 1988 does have an advisory committee and does have this obligation imposed on it. As a matter of policy, yes, I guess we do live with this, we do respect it, and we do in fact carry out these consultations with the provinces. We've got a 10-year track record of doing that.

Mr. Gar Knutson: What if we have some lawsuits along the way, such as the federal government versus Hydro-Québec?

Mr. Glenn Allard: I don't think that has anything to do with the advisory committee; that has something to do with the constitutional jurisdiction question that Quebec has questioned from the day CEPA was put in place. I don't think it really has anything to do with this particular provision.

Mr. Gar Knutson: My sense was that the lawsuit was around the whole issue of PCB regulations and provincial utilities. That aside, I'm just wondering what other departments or ministers are obligated by Parliament to consult with a provincial counterpart.

Mr. Glenn Allard: The only one that comes to mind is the Canada Oceans Act, which does have a similar provision in it.

Mr. Gar Knutson: I'm just wondering what happens if the provincial government goes to court, as they did in Hydro-Québec, and they use the language of paragraphs 6(2)(a) and 6(2)(b) to say that this particular regulation—let's say it was PCBs or something else—wasn't passed in the spirit of a cooperative, coordinated, intergovernmental approach. It wasn't passed in that spirit. Have we given them another sword to strike down federal regulations?

Mr. Glenn Allard: Well, I guess my view would be that if we had not carried out the consultation as required in the legislation, yes, we would be doing that. But it is also my view that we intend to carry out that consultation.

Mr. Gar Knutson: What's the lawyers' view?

Mr. Duncan Cameron: From a procedural point of view, if there are substantive requirements in the legislation for certain procedures to be followed, and if those procedures are not followed, then certainly that could be used in a legal challenge.

Mr. Gar Knutson: So the courts could review the quality of those consultations.

Mr. Duncan Cameron: No, I'm not sure they could review the quality. I think they would be more concerned with the procedural application.

For example, in the provision I referred to earlier, whereby “the Minister shall offer to consult”, it's quite conceivable that a province or another member of the national advisory committee might not accept the minister's offer and might not consult, in which case there would be no consultation. But the minister would have met her statutory obligation to make the offer in the first place.

Mr. Gar Knutson: Yes, it doesn't use the language “shall offer to consult”. This language is different. We're going to establish a national advisory committee. This committee's going to have representatives from the provincial ministries. This goes well beyond simple language of “shall offer to consult”.

Mr. Duncan Cameron: Agreed, but my point was that when you look at the specific enabling powers that appear elsewhere in the legislation, it refers back to the national advisory committee. It's at those subsequent points when the ministers may have obligations to consult with members of the national advisory committee.

Ms. Nadine Levin: It's “to offer to consult”.

Mr. Duncan Cameron: Yes, “to offer to consult”, exactly.

Ms. Nadine Levin: It's to give them an opportunity to provide their advice. The wording has been crafted in such a way as to ensure that the minister is not hamstrung. The minister can move forward if her offer to consult is not accepted.

I realize what you're saying here.

Mr. Gar Knutson: I'm just reading paragraph 6(1)(a). They can establish a committee “to advise the Ministers on regulations proposed to be made under subsection 93(1)”.

Maybe we'll come back to this. I don't want to take up too much time. The chair has asked for short rounds. So I'll turn to subsection 93(1), and then we'll pick it up on the second round.

The Chairman: Yes, we'll definitely have a second round.

Mr. Gallaway, followed by the chair.

• 1050

Mr. Roger Gallaway (Sarnia—Lambton, Lib.): Thank you, Mr. Chair.

I'm just trying to wrap my mind around a couple of things here. One is on clause 140, starting at that part with fuel standards. Where does this differ from the present regime?

Mr. Glenn Allard: Briefly, there are a few changes here. One, we have a provision that allows for the establishment of a national fuels mark, which requires specific characteristics in a fuel before it could have this national fuels mark. That could deal with things such as a driveability index, which would be the performance of the car when you use the fuel and so on, which relates through to pollution control. That national fuels mark would be something that is really a parallel to what we're doing with vehicle engines. If the minister prescribes the requirement for a national fuel mark, any fuel that crosses an interprovincial border or is imported into Canada would be required to meet the specification of that particular fuel mark.

There is also a definition of fuels. The definition of fuels has been broadened in such a way that it's now not just the combustion of the fuel, it's the properties of the fuel itself. There is an authority to deal with the impact the fuel will have on pollution, a regulatory authority to deal with the impact the fuel will have on the vehicle emission control system, as well as what is going out the tailpipe.

There's also a system that has been put in place that allows us to look at a broad range of characteristics of the fuel and specify a basket of characteristics that would result in an emission, for example, out the tailpipe of a car. You could vary within this range to achieve the emission that is required. Those are essentially the new areas in the fuels. There is a fuels component to CEPA 1988, and it was significant as well.

Mr. Roger Gallaway: Maybe I should be more specific. In the last Parliament we passed a piece of legislation that came from Environment Canada, which dealt directly with an attitude to gasoline. Would you avoid the need to come to Parliament to avoid the importation of a product under this section? Under the present regime, it appears you have to come to Parliament to say if you want to ban the importation of a particular product. Is this giving to the minister or to the cabinet through order in council the right to unilaterally move to ban the importation of a product directly related to fuels? In other words, you're using this section to circumvent Parliament.

Mr. Glenn Allard: No. We are dealing with fuels on the basis of their significant contribution to air pollution. There is a component of the bill that defines what a significant contribution to air pollution is.

You're not mentioning the name of the product, but if there is a product that is in fact identified as toxic under this act, under the toxic components we can control it. But it has to meet the criteria for that. In the same vein, in the regulations that are done under clause 140 in this legislation you have to ensure that you're controlling that constituent of the fuel, because it has a significant impact on air pollution.

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Mr. Roger Gallaway: Let me ask you another related question, then. If this act had been passed five years ago, would you have been required to come to Parliament to pass the bill, which I think was known as Bill C-29 or whatever it was?

Mr. Glenn Allard: I'm actually not certain. Can I get back to you on that question? I'm really not certain.

Mr. Roger Gallaway: Yes, I'd like you to answer that.

The other part is that I believe a couple of years ago the Minister of the Environment in British Columbia wanted to embark upon, in that province, a regime of what I would call California reformulated gasoline. How does this allow for provinces to dictate what the gasoline blend will be in that province if they want to go over and above what you have referred to as a national standard, I believe?

Mr. Glenn Allard: It would be an authority that would be required under provincial legislation. There is nothing in this legislation that would provide the province with that sort of authority. But there is nothing in this legislation that would preclude a province from asking for a more stringent fuel standard, just as California does in the United States. The only area where you might run into a conflict, which is normally just a theoretical consideration, is if there happened to be some conflict between the two requirements. If the federal government said do something and doing the other meant you couldn't meet the federal requirement, then there is a problem.

Mr. Roger Gallaway: Mr. Chairman, I have two more quick questions. One is that under clause 140 and the subsequent clauses, it would appear to be that the order in council powers are rather extensive in the sense that you can directly affect in a very profound way the price of a product. Let me give you an example.

At the moment in the Liberal caucus there is a group of people who are investigating or studying, if I can put it that way, gasoline pricing. If you were to move to, let's say, some hybrid reformulated gasoline, the price of a litre of gasoline could possibly go up 4¢ a litre. What concurrent obligation is there upon the department in moving to protect the environment to explain the cost of the action to the consumer? The consumer is the one in many respects who's going to pay. Is there a concurrent obligation?

Mr. Glenn Allard: Basically, anything that would be done to control a constituent of fuel must be done by regulation, and as soon as we get into the regulatory process there is a policy that the federal government has that has been issued by Treasury Board on what I believe is called the regulatory reform policy. I'm not sure I have exactly the right words. But it very clearly indicates that we must look at what the benefit....

First of all, you have to have a problem. You have to be dealing with a problem. Secondly, you have to identify what the benefits of the regulation are, and you have to look at the cost of those regulations, and you have to do a regulatory impact analysis that shows you are in fact going to get more benefits than the costs you're going to incur. So I think there is a safeguard there because it is a regulatory process, and the regulatory process in the federal government has very significant safeguards built into it.

Mr. Roger Gallaway: I have one final question, and it deals with clauses 185 to 192. I must confess I've only scanned them this morning, but I wanted to ask you about the provision for the phase-out of hazardous waste exports. As I understand it—and this is a gross simplification, I'll give you the Reader's Digest version—in fact a corporation or a business enterprise that is exporting hazardous waste exports must have a plan to decrease the volume.... And when I'm wrong, stop me.

Mr. Glenn Allard: No.

Mr. Roger Gallaway: There are in Canada along the Canada-U.S. border a number of corporations, for example, Chrysler corporation in Windsor. And I don't know that they do this, I'm not even from Windsor, but let's assume they have a particular hazardous waste, and for various business reasons it's just very easy for them to send it across the Ambassador Bridge to Michigan, where there's a facility for them to dispose of that.

• 1100

What possible business reason or environmental reason can there be for Chrysler Corporation to be required to file with you a phase-out plan on hazardous waste, whatever this waste is, when in fact they are in a contiguous market area in a business district, although it cuts across two countries? Why would we want to force them to enter into a phase-out if in fact they are disposing of this in a way that meets the laws of either the State of Michigan or the United States of America?

Mr. Glenn Allard: It's a general policy thrust to try to reduce the generation of wastes, particularly hazardous wastes. The particular provision that deals with this in this legislation is an enabling clause. It allows the minister to do it; it does not require her to do it.

What we're looking for is consistent with international conventions Canada has entered into. All countries that have entered into this agreement are trying to reduce the creation of hazardous waste. Where it is possible, under reasonable economic circumstances, to reduce or eliminate the creation of that hazardous waste, that is a reasonable environmental policy, from our perspective, to follow.

But it must be clear that this is an enabling provision where the minister may ask for this. If there is no possibility or if the cost is too extreme to be able to do this, then the request will not be made. But it is consistent with our policy thrust of reducing wastes and it is consistent with our international obligations.

Mr. Steve Mongrain (Representative, Canadian Environmental Protection Act Office, Department of the Environment): The situation you explained in the Windsor-Detroit example is covered specifically under clause 191 in the regulatory power. If you refer to subparagraph 191(g)(i), it says respecting the plans, when a regulation is being made, the Governor in Council must take into account “the benefit of using the nearest appropriate disposal facility”. That's in recognition of such situations, the fact that much of our commerce is along the Canadian border and Detroit is much closer to Windsor.

The Chairman: Thank you, Mr. Mongrain.

We will go for a second round in a few minutes. Allow me also to ask a few questions.

The reference you just made, Mr. Allard, to the regulatory process presently required by Treasury Board, is that a process that was approved by Parliament or is it an initiative by Treasury Board that does not require a legislative measure?

Mr. Glenn Allard: I don't believe it has been approved by Parliament. I think it is a policy of the Government of Canada. It probably has been approved by cabinet, although I would have to verify that.

The Chairman: Because it has immense implications, as we can all appreciate, if you have to produce a cost-benefit analysis for every piece of regulation that is in existence or that you want to introduce. Could you please confirm it in writing?

Mr. Glenn Allard: I will confirm in writing and I will include a copy of the policy as well.

The Chairman: Yes, that would be very helpful.

A bill in the last Parliament, which died on the Order Paper, intended to introduce a new regime on the regulatory process. From what you said, it sounds as if it emanated from a piece of legislation that did not see the light of day.

Mr. Glenn Allard: No, I don't think that's correct, because I think this policy predates the legislation to which you refer.

The Chairman: It does?

Mr. Glenn Allard: Yes.

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The Chairman: Mr. Allard, I'm very interested in the administrative duties as outlined in clause 2. I noticed that under paragraphs 2(1)(d), (j), (k), (n), and (o), the word “endeavour” precedes the operative word, so to say—“endeavour to act”, “endeavour to protect”, “endeavour to act” again—which of course weakens the mandate. Was there any discussion on the terminology used in the mandate that led to the softening of the language?

I'm asking this question because obviously if paragraph 2(1)(d) were to read, “act in cooperation”, it would be much stronger than “endeavour to act”. The same with (j), (k), and so forth. Was there any discussion in the department or consultations as to why this “endeavouring” approach was introduced?

Ms. Nadine Levin: Mr. Caccia, some of the administrative duties you refer to are in fact new, but some of them are repeated from the existing CEPA. I don't have the other bill in front of me, but I do believe “endeavour” also appears there in certain instances.

The Chairman: So are you saying there was no discussion?

Mr. Glenn Allard: Certainly the reason I haven't answered the question is I have not had any discussion on it.

The Chairman: All right; fair enough.

Ms. Nadine Levin: There would have been discussion with the Department of Justice on the actual drafting and wording.

The Chairman: In subclause 2(2) on page 4, line 27, there is a reference to “the other Act”. Which act is that?

Ms. Nadine Levin: It would be whichever other act dealt with the same subject matter or had measures in it that were able to be used to deal with the subject matter covered also by CEPA.

The Chairman: So it's only the respective acts of the Minister of Health and the Minister of the Environment that these refer to?

Mr. Glenn Allard: No, no, that's not correct.

The Chairman: Well, then, can you give us an illustration of how the subclause would work?

Mr. Glenn Allard: Let me tell you what the subclause is intended to do. It's basically intended to cover off those cases where more than one act of the federal Parliament covers a given situation and where there has not been any specific reference to whether one act takes precedence over the other one. In that case, this particular item really sets in place a process whereby the Minister of Health and the Minister of the Environment would discuss with the other federal minister responsible for the particular act that covers the same subject matter—

The Chairman: So it could be Transport, for instance?

Mr. Glenn Allard: It could be, yes.

The Chairman: It could be Agriculture?

Mr. Glenn Allard: Yes. And then they would come to an agreement. It basically sets out a process to come to an agreement as to the appropriate way of addressing that particular matter.

The Chairman: Does this clause exist in the present legislation?

Mr. Glenn Allard: No, it does not.

The Chairman: Thank you.

Mr. Glenn Allard: But I must point out this really is intended to set in place a process to adjudicate when these conflicts come up.

The Chairman: I see.

Following up Mr. Knutson's line of questioning, there are at least nine places where the “offer to consult” clauses appear in this bill. I won't read them into the record—it doesn't matter—but they are in nine locations. Is this a new trend particular to this bill?

Mr. Glenn Allard: Yes, this is a change that occurred between Bill C-74 and Bill C-32. It is in fact a new trend in terms of the words in the bill. It is not a new trend in terms of the way we normally conduct our business. On regulatory matters—and you mentioned it's in a number of places in the bill—we do have that consultation with the provincial governments.

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I think it's important to reiterate that the reason we have put down “shall offer to consult” is the obligation on the federal minister to make that offer to consult. If there is no response to that offer, then there is no obligation on the minister to go any further. But yes, it is new in this legislation, and no, it is not new to the way we have normally conducted our business.

The Chairman: Take, for instance, clause 121, marine environment protection. There you have in paragraph 121(2)(a):

121.(2)...the Minister

(a) shall offer to consult with the government of a province and the members of the Committee who are representatives of aboriginal governments and may consult with any government department or agency....

Isn't that a recipe for inaction?

Mr. Glenn Allard: I guess what this is doing is providing for a consultation on guidelines that we would be developing for land-based sources of marine pollution, and if we are dealing with a land-based source in a given province, it is reasonable to consult with the province that is affected by that action.

The Chairman: If the consultative party recommends against action, what will then be the outcome?

Mr. Glenn Allard: It is only a consultation. The minister has the authority to do whatever she decides to do. Her only obligation is to consult and listen to what is offered. The decision on what has to be done rests with the minister. There is no devolution of her authority.

The Chairman: Would it be easy for the minister to take a different course of action, against the advice received from the consultation?

Mr. Glenn Allard: I guess that would depend on a given circumstance, and it depends on what basis the particular advice is being offered. I would think the minister would have to look at what the environmental consequences of this were and make her decision based on the facts of the situation. I don't think she has to be bound by the advice at all.

The Chairman: Fair enough.

Mr. Allard, can I take you to clause 7 and ask you to tell the committee what would be the composition of this type of advisory committee, which apparently would differ from the advisory committee you discussed with Mr. Knutson earlier, in clause 6? When would this advisory committee be struck and for what reason?

Mr. Glenn Allard: I think this provision is similar to provisions in CEPA of 1988, and it is really providing the minister with an enabling authority to have advisory committees on any given topic. It could be a very subject-specific group. It could be something that deals with discharges from the mining industry, for example.

The Chairman: Could this override the advice received under clause 6?

Mr. Glenn Allard: I don't know why you would use the word “override”, particularly, because if there is advice coming from two committees, the minister would have that advice coming from two committees and still would be the one who is actually making the decision. The key word here is “advisory”.

The Chairman: Right, but the composition of the two committees could be so different that it could lead to conflicting advice.

Mr. Glenn Allard: Yes, theoretically that is possible.

The Chairman: Yes, and not just theoretically; very practically, because you can stack a committee one way and another committee the other way.

Mr. Glenn Allard: If the minister were looking for advice on a particular topic, I'm not certain there would be particular interest in stacking the committee one way or another. I think we would be looking for a balanced perspective.

The Chairman: You may see the necessity of having a committee under subclause 7(1) that would be helpful in environmental terms because the committee under paragraphs 6(2)(a) and 6(2)(b) is giving you advice that you don't welcome.

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Mr. Glenn Allard: That again is conceptually possible.

The Chairman: All right.

Finally, is there anything in the bill that would empower the minister to reduce the sulphur content of gasoline in Ontario, which is the highest in the country, as we all know?

Mr. Glenn Allard: There is nothing specific to sulphur in gasoline in the bill. The fuel provision of the bill could be used to control the level of sulphur in gasoline.

The Chairman: I'm sure Ms. Levin is whispering something very interesting.

Mr. Glenn Allard: I'm not sure why I haven't answered your question. The fuels division of this legislation allows the minister to develop regulations to control the formulation of fuels as long as there is a significant contribution to air pollution.

In the case of sulphur in gasoline, the provisions are there for the minister, if there is a significant contribution to air pollution, to in fact control the sulphur level in gasoline. I don't know what more you want me to add.

The Chairman: At 500 parts per million sulphur content, as I understand is the present case in Ontario, is that a sufficiently high content to warrant an intervention on the part of the minister through the existing CEPA, and are the powers there?

Mr. Glenn Allard: I'm thinking back. I think the powers are already there and the powers remain there.

The Chairman: What is your assessment of 500 parts per million in terms of sulphur content?

Mr. Glenn Allard: You are putting me in very close to an untenable position.

The Chairman: Far from it.

Mr. Glenn Allard: Let me explain. We are doing a review now of the sulphur content of gasoline. We have a working group that will be making recommendations to the minister. There is a draft report, of which I know you have received a copy.

The minister has indicated in the House of Commons that she will be making a decision on this particular matter in the fall of this year, so I don't really think it's appropriate for me to tell you what I think her decision should be.

The Chairman: Fair enough.

My last question has to do with the federal house, the power now being with the Governor in Council. When you made your presentation, you drew our attention to the fact that in this bill, unlike the existing legislation, consultation with ministers is no longer required. However, this bill requires a Governor in Council decision. Isn't that virtually the equivalent?

Mr. Glenn Allard: No, I did not mean to leave the impression that there would not be consultation.

Our department does operate in a consultative mode. What I said was that there is no longer a concurrence. If you look at CEPA 1988, it specifically required the concurrence of any affected minister. Now the minister may bring forward the regulation, yes, through Governor in Council, as is any regulation, and it does have to go through that cabinet process, but there is not a formal sign-off required by every minister as is currently required in CEPA 1988.

The Chairman: Do you know of Governor in Council decisions where the precondition was not concurrence?

Mr. Glenn Allard: Yes.

The Chairman: Can you name one?

Mr. Glenn Allard: I don't think I should. It's a cabinet confidence.

The Chairman: Does it happen often?

Mr. Glenn Allard: I don't attend that many cabinet meetings on regulatory matters, but certainly in any cabinet structure there is not unanimity on every decision that is made. I think that should be clear to everyone.

The Chairman: Thank you.

We'll have a second round. Mr. Gilmour, please.

Mr. Bill Gilmour: In terms of the individual's right to sue, the concern I have is that a group of individuals...or perhaps you can advise me. Could a group of individuals get together and decide to use this legislation as a crusade either to advance their cause or to stop particular projects? How broad can this section be?

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Mr. Glenn Allard: I think it's probably appropriate that I go through some of the safeguards that are built into this. It starts in clause 22, entitled “Environmental Protection Action”. As the previous legislation did, this clause does have some safeguards in it.

The first thing that has to happen is that an individual or a group of individuals must indicate to the minister that there is a violation of one of the regulations, or one of the sections that has a sanction associated with it, in the Canadian Environmental Protection Act, and they must provide some evidence to the minister as to why they feel this violation is taking place.

At that point the minister is obligated to undertake an investigation of that particular claim. Then she is also required to report back to that individual as to what were the findings of that investigation.

If the individual can show that the minister did not take reasonable actions to investigate this and deal with the situation, they would then be in a position, where there is a significant harm to the environment, to proceed into the court system.

So a lot of preconditions have to be met before the individual can proceed to the court system.

If the minister fails to investigate, if the minister does not make a reasonable investigation and does not report back to the individual, if there is a significant harm to the environment, and if there is a violation of the legislation, then the individual can proceed to Federal Court.

I guess the way I answer this question when it's posed to me by the private sector is, “Is your company going to violate the regulations under the law?” Normally the answer is no. I then ask, “If it were pointed out to you that you were violating the law, would you in fact take corrective actions to address it?” They all answer yes. If they're going to do all these things, then this mechanism is going to be a safeguard to ensure that people will in fact comply with the law, and the likelihood that these citizens' actions will actually get into the courts is not a high probability, in my mind.

Mr. Bill Gilmour: I think in industry it's probably covered off, but what about, for example, in Victoria or in any other community that's putting raw sewage into a creek or an ocean, or mercury contamination from the flooding in northern Quebec? These are areas that probably could advance forward, and if a group or a number of groups wanted to push it, they could use this legislation to be quite....

For example, if they went after Hydro-Québec, there could be some huge ramifications. That's my concern—their taking it as a vehicle to advance their case as opposed to the greater good.

Mr. Glenn Allard: I think the answer is that in the two examples you've used, it's not possible to use this legislation. There clearly has to be something that is a violation of the legislation. The two examples you used are not covered under this particular act.

If there was in fact a requirement to limit the discharge from a municipality and the municipality was violating it, then, yes, that would be the case, but in the examples you've used, they are not items that are covered by the Canadian Environmental Protection Act.

So it's very key to understand that it's only when there is a violation of the legislation or a regulation under it that these actions can be entered into.

The Chairman: Thank you, Mr. Gilmour.

[Translation]

Mr. Bachand, please.

Mr. Claude Bachand: As you probably know, my role in the House of Commons has nothing to do with the environment. I am not the environment critic. However, I am the indian affairs critic and as such, my attention was drawn by...

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The Chairman: I suppose you are interested in human health.

Mr. Claude Bachand: Absolutely.

The Chairman: Welcome to the club.

Mr. Claude Bachand: I refer to clauses 206 to 215 of Part 9. The way I understand these clauses, the Minister is required to consult. I also understand that, whatever happens, the Minister can, following these consultations, do as she pleases.

However, the language of clause 210 is what I am interested in. I'm going to read it to you, and I'll tell you why I think that it might lead to a conflict. In other words, a number of requirements in this bill could just be removed and replaced by the following: “This is no concern of yours“

Let me read you clause 210:

210. Where provisions of any other Part of this Act or any other Act of Parliament, or regulations made under them, are in force in respect of an aspect of the environment and apply to a federal work or undertaking, federal land or aboriginal land, regulations made under this Part relating to the same aspect do not apply to to the federal work or undertaking, the federal land or the aboriginal land.

This is where I think there is a problem, unless you give me a good explanation. It says “any other Act of Parliament“. Right now, a number of laws creating independent governments either in Nunavut or Inuvialuit or in some other places, are being enacted. Many clauses, in this type of legislation, deal with the environment, particularly land and water management.

What I want to ask you is this: could an aboriginal group or an aboriginal community, having signed a self-government and land settlement agreement including clauses dealing with the protection of the environment, tell you that, based on clause 210, under another Act of Parliament, protection of the environment is a matter that they are entirely responsible for and that, consequently, the Minister cannot meddle in anything having to do with controlling the environment nor with any subject dealt with in Bill C-32? Could such a group say they are not concerned by Bill C-32 because there are, in other federal statutes already passed, some requirements which you are trying to deal with here?

Could aboriginal groups go as far as saying that the federal government cannot impose to them anything regarding Bill C-32, because other similar requirements exist in their own acts, passed by Parliament, and because clause 210 mentions “any other Act of Parliament“? Could they consider themselves an exception and say that this legislation, which is now before us, does not apply to them?

Ms. Nadine Levin: I believe it should be underlined, because it's very important, that this section of Bill C-32 deals with government operations, federal lands and aboriginal lands, but only with aboriginal lands which are still part of the federal lands. Clause 210 would not apply to the self-government agreements you just mentioned. For instance, the Nunavut is no longer part of the federal lands so, this section of the CEPA, or of Bill C-32, would not apply to these lands.

When we negotiate self-government agreements with aboriginal groups—because I am also involved in this area—we propose a model legislation whereby it is possible that federal laws and aboriginal laws, or laws passed by aboriginal governments, apply to the protection of the environment.

So, when we negotiate self-government agreements with aboriginal groups, the Environment Minister does propose that both federal laws and laws enacted by aboriginal governments coexist.

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In these agreements, it also says that federal laws are to have precedence, which is in conformity with Cabinet guidelines as well as the policy on negotiating self-government agreements issued by the government in 1995.

[English]

The Chairman: Mr. Knutson, followed by Mr. Gallaway.

Mr. Gar Knutson: Thanks very much, Mr. Chairman.

Mr. Allard, I just want to confirm that I concur, after looking at CEPA 1988 and this CEPA, that the language about how the minister shall set up this advisory board with the provinces, at least at a first reading, for all intents and purposes is the same. Maybe I could ask Mr. Cameron to provide us with an opinion, not right now, on whether you concur with that.

I'm not sure, though, that the language of clause 6 is not discretionary. It's “shall establish a National Advisory Committee”. The language that follows subsequently, where it says “the Minister shall offer to consult”, is fairly soft language. I'm not sure that provides the government much protection if a provincial government wants to challenge a regulation and use the argument that there wasn't proper consultation as required under clause 6. So maybe, Mr. Cameron, you could provide us with an opinion on that as well.

My general feeling is that broad consultations are important. They're necessary, they're required for good legislation, but I'm not sure that Parliament needs to pass a legal requirement for the department to do its job. I don't want to open up an unintended back door that gives polluters, whether it's a provincial utility or anyone else, the opportunity to challenge federal authority through this language that was intended for a different purpose.

The other thing, just to confirm, Mr. Cameron, is to ask that you provide us with an opinion on paragraph 2(1)(l), on what the courts might do in interpreting that. You can understand that as somebody who votes in the House of Commons, I'm trying to appreciate the full hypothetical impact of what law I'm passing, so I think I need as broad opinion as possible.

If I can turn to a different issue, the clause on international air pollution, clause 166, there's some concern in the province of Ontario. Ontario Hydro has said that as it closes down nuclear reactors it's going to fire up coal-generated plants, which will increase air pollution. Assuming that some of this is transboundary, would the federal government have the right to step in and say you're in breach of a federal law or a federal regulation, under this act or the previous act?

Mr. Glenn Allard: Well, obviously not in terms of closing down the nuclear plant. We'd have to deal with the new plant that was emitting more pollution from, let's say, a coal-fired plant that had more coal emissions. If in fact that emission were causing damage across the border in the United States, yes, this legislation could be used to in fact control that source, but there is the precondition that it has to be causing a problem in the United States.

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Mr. Gar Knutson: In a simple pollution problem?

Mr. Glenn Allard: It is defined. It talks about creating air pollution in a country other than Canada, and air pollution is defined in the legislation. So it obviously has to meet that test. It's on page 5 in the legislation and says:

“air pollution” means a condition of the air, arising wholly or partly from the presence in the air of any substance that directly or indirectly

And then it has all sorts of things, like endangering health, safety or welfare, etc.

Mr. Gar Knutson: Yes, I see that.

Mr. Glenn Allard: So it's a pretty broad definition.

Mr. Gar Knutson: Right. And is this available under the current act?

Mr. Glenn Allard: Yes. I think the definition is a little broader in this bill than it was in the previous act, but in essence, yes.

Mr. Gar Knutson: So if we had a problem with these old plants that are being reopened, assuming that their discharge float across the boundaries—

Mr. Glenn Allard: Yes, the border's there; it has to go across.

Mr. Gar Knutson: —we could step in.

Mr. Glenn Allard: That's correct.

Mr. Gar Knutson: That's all I have for now.

The Chairman: Thank you, Mr. Knutson.

Mr. Gallaway.

Mr. Roger Gallaway: I want to very briefly ask some questions about a phenomenon that exists in many parts of Ontario, I think, and that is, there are in fact what I would call “chemical dumps”. They exist; no one knows they're there; they've been there for a long time and they often pop up in the least expected places.

Let's assume that I've bought 50 acres of scrub land for recreational purposes and I've discovered that—I'll use Mr. Knutson's example—40 years ago Ontario Hydro dumped something that is less than desirable, that's toxic, into a pit on this property. What are my remedies under this legislation?

Ms. Nadine Levin: You may not have one under CEPA. In fact, maybe provincial legislation would apply. It would depend on what the substance is. If the substance isn't toxic under CEPA and there are no regulations that cover release, CEPA would not apply. CEPA does not specifically apply to contaminated lands under the jurisdiction of another level of government.

Mr. Roger Gallaway: All right. I'll change the example slightly. Let's assume that it was a federally regulated corporation such as CN. Does that change your answer?

Mr. Glenn Allard: I guess you're talking about what remedy you would have to get the land cleaned up. Is that what you're after?

Mr. Roger Gallaway: Yes, that's right.

Mr. Duncan Cameron: If I could just add something, let me say that we normally don't have retroactive application of legislation. In fact, only in very exceptional circumstances do we have that. And if you're talking about an event that occurred 40 years ago, then it would be the case that you would not, as my colleague Ms. Levin said, have a remedy specifically under CEPA.

There may, however, be common law remedies, depending on what kind of proprietary interest you have in the land. There may well be provincial regulations that could apply. It's a little difficult to answer in the abstract. You'd have to look at it from a variety of different perspectives.

But this legislation would not have retroactive effects. That's the main point I want to make.

Mr. Glenn Allard: But I think, in fairness, that in the case you're talking about you almost have a civil lawsuit against the person who has caused the damage in the first place.

Mr. Roger Gallaway: Let's now twist the example a few more degrees.

As a citizen under this act, let's assume that I'm aware that Company X is dumping toxic chemicals somewhere. What right would I have to enforce legislation to stop that, assuming that, for whatever reason, local or federal authorities will not do it?

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Mr. Duncan Cameron: If it's an offence regulated by CEPA?

Mr. Roger Gallaway: Yes, that's what I meant.

Mr. Duncan Cameron: Then you would have the right to ask the minister for an investigation.

Mr. Roger Gallaway: What clause would that be?

Mr. Glenn Allard: It's clause 22, on page 18.

Ms. Nadine Levin: It starts a little earlier.

Mr. Duncan Cameron: I'm sorry. The clause on investigation is on page 16.

Mr. Roger Gallaway: So there is what I would call a “remedy” for an individual as opposed to the individual being totally dependent upon local authorities. That answers that question. I think I'll have a future question at some point on the subject once I've read something about this, but I can't find the clause this morning.

The other part I want to ask you about is, I think, referred to in paragraph 2(1)(l), when you talk about “intergovernmental agreements”. In the definition section, the word “government” refers to a Canadian government, some brand of it. In that clause we talk about acting in a manner “that is consistent with the intent of intergovernmental agreements”. We have a number of international agreements—some of them trade agreements—that sometimes appear to conflict with the intent of the federal government. Do you foresee this legislation being subject to NAFTA, for example? Would you still experience challenges under NAFTA, such as you've had this year?

Mr. Glenn Allard: Basically, I guess, the policies and the regulatory approaches we take under this legislation must be consistent with the international obligations that Canada takes on as a country. In all examples I can think of pertaining to items that we have regulated under this particular legislation, it is done in such a way that it would not run into contravention of NAFTA provisions.

In many cases here, we're using things such as the criminal law power, the right to protect the environment from significant damage or human health, and in that case, we have a right to do things within Canada to control human health or to provide protection for human health, for example, to the level that we choose to, and that's independent of what NAFTA requirements would be.

Mr. Roger Gallaway: I have one final question, because there are people from Health Canada here and I'd like to engage them in the process.

As I understand it, if the minister were to move by regulation to ban a substance, with one of the criteria being health reasons, Health Canada would obviously put on the table their understanding or the medical evidence. Who determines whether that triggers a threshold sufficient to ban a substance? Is it Health Canada or is it Environment Canada?

Dr. Tony Myers: The health assessment would be done by Health Canada, but we would be in consultation with our colleagues in Environment, just as they would do the environmental impact assessment but consult with us. We have our different areas of expertise, and clearly we consult, but we give precedence to whoever has the expertise. Clearly, for us, it's human health. For Environment, it's all the other species.

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Mr. Glenn Allard: I would like to add just a little bit to that. I think when we're at the stage of assessing whether something is a problem, there are two dimensions to it. Well, there are more than two, but let's say there are two. There's what's happening to the environment, and there's what's happening to human life. Very clearly, Health Canada looks at this risk assessment component for human life, while Environment Canada looks at the environmental component. There's very good cooperation while that assessment is being done.

Once that assessment is done and there's an understanding of what the degree of risk is, then there is what's called a risk management decision, which looks at what all the other factors are, such as social factors, economic factors, and whatnot. It tends to flow back into Environment Canada to work on that risk management question, as to how much of that risk you should control.

Mr. Roger Gallaway: Okay, thank you.

The Chairman: Thank you, Mr. Gallaway.

Judging from the situation around the table, it might be wise to conclude at this point.

I would like only, as a follow-up to Mr. Gallaway's question, to ask the Health Canada people why after 10 years has the CEPA legislation not managed to include lead as one of the substances that ought to be banned? It was banned in jurisdictions such as Denmark and Holland many years ago. Canada seems to be very hesitant about it. Would you know why?

Dr. Tony Myers: I think the situation is that we believe the risks of lead have been controlled and are being controlled reasonably well without having to resort to banning.

The Chairman: We banned it from gasoline, sir.

Dr. Tony Myers: Yes, we did. In fact, it was under CEPA that this was done. In fact, that did make a significant impact on human exposure.

The Chairman: So why didn't we go all the way?

Dr. Tony Myers: Go all the way? Well, I'm not sure I can give the answer to that, if there is one. We believe we made such progress over the years that we didn't need to resort to that final step. We have controls in consumer products, in the Food and Drugs Act, and under CEPA.

The Chairman: Thank you.

Mr. Glenn Allard: I would just like to add this. I think there have been a number of cases where lead has been looked at. We have dealt with it in situations where we believed there was a risk to human health. Certainly the lead content in paint is something that has been controlled, as well as lead in gasoline, as you indicated. Also, very early on, we looked at the discharge of lead from secondary smelters that are recycling lead-acid batteries.

I guess the reality is that there are still some very useful uses for lead, such as lead-acid batteries in your car, lead shields to protect people from X-ray machines, and things of that nature. I think we have looked at it from the perspective of dealing with those areas that are creating the most risk. We also recognized that there are some legitimate uses of lead that do not pose an undue risk.

The Chairman: Are there any further questions? If not, then we will continue in our next meeting with you on the week of May 25. I believe it's on a Wednesday. We look forward to another good round of questions. In the meantime, we thank you for your attendance and your helpful answers.

The meeting is adjourned.