ENSU Committee Meeting

STANDING COMMITTEE ON ENVIRONMENT AND SUSTAINABLE DEVELOPMENT

COMITÉ PERMANENT DE L'ENVIRONNEMENT ET DU DÉVELOPPEMENT DURABLE

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, June 2, 1998

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[English]

The Chairman (Mr. Charles Caccia (Davenport, Lib.)): Good morning, ladies and gentlemen. Welcome to our session on Bill C-32. We're now resuming consideration of the bill.

As required by the rules, I call clause 1.

(On clause 1—Short title)

The Chairman: Before proceeding to introducing our witnesses, a few announcements need to be made.

To begin with, the National Forum on Climate Change, which is a creature of the National Round Table on the Environment and the Economy, will hold at noon tomorrow, Wednesday, in room 112 North, a declaration ceremony. I'm reading from their press release, which may or may not reach your office; this is why I am bringing it to your attention. The clerk can provide further details. You may recall that this is a 25-member panel of Order of Canada recipients who were asked to examine climate change after Kyoto. I will stop there.

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There is a lunch in the New Zealand room today at noon for members of this committee, staff, and witnesses; it's sponsored by the World Wildlife Fund. Again, for that you may have received a notice at your office last week. There is an invitation.

The next announcement has to do with a briefing with John Moffatt to examine by way of comparison the existing CEPA, the report It's About Our Health!, the government reply, and then the various incarnations and readings of the bills leading to Bill C-32. We have scheduled a meeting for Monday afternoon so as to permit members who were late the last time or unable to attend for professional reasons and others to go through that exercise again, which could be invaluable in order to understand the functioning of the bill itself.

Then there is this question, which was raised in the House some weeks ago, of the native people in the Northwest Territories, in Delenhe, who in their younger years carried uranium on their backs. A high percentage of members in that community died of cancer. These were Dene men who carried these bags to load them on barges in the 1950s. The uranium was packed in cloth bags like sacks of flour, apparently. The nearby mine was the source of this uranium, which travelled from Port Radium to various destinations, such as Eldorado and other places, for processing.

It is an issue that certainly deserves parliamentary attention. We will first inquire with the committee on health and the committee on Indian and northern affairs as to whether they plan to visit this community to get a firsthand idea of this issue. If they do decide to go, we'll obtain a date and notify interested members who wish to join them. If they don't decide to travel and see this community in the fall, then we will put it on the agenda for discussion to determine whether this committee should go and find out more.

For those of you who are interested, I'm referring to the CBC radio program that took place on 16 May. You can get a copy of the transcript from the clerk, which is much more in detail than what I have provided now.

That concludes the announcements.

This is the first round of witnesses today, and I welcome them on behalf of the committee.

Mr. Muldoon, Mr. Winfield, and Mr. Shrybman, we are looking forward to your presentation.

As a novel feature of the work of this committee, in view of the fact that the number of witnesses will be quite large, we have introduced a timer, a beautiful Radio Shack dual timer, which will give a signal at eight minutes and then a rather rude signal at 10 minutes.

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We do that in order to set a rule that will apply to all witnesses, possibly. I know you are very disciplined and in control of your articulation of the issues, so the timer will be a just gentle background noise, but we thought we should introduce it as a measure so that it applies throughout the hearings. That means you have 10 minutes each, with a gentle warning at eight minutes.

The order of presentation is up to you. Please introduce yourselves. Again, we're glad to have you. Welcome to the committee.

Mr. Paul Muldoon (Executive Director, Canadian Environmental Law Association): Thank you very much, Mr. Chairman. My name is Paul Muldoon, and I'm executive director of the Canadian Environmental Law Association. I'll be speaking first.

With me are Dr. Mark Winfield, director of research for the Canadian Institute for Environmental Law and Policy; and Steven Shrybman, executive director of the West Coast Environmental Law Association.

Before you today is a joint submission of the Canadian Institute for Environmental Law and Policy and the Canadian Environmental Law Association. This is an overview of our views on the Canadian Environmental Protection Act, Bill C-32.

CELA and CELAP will be providing the standing committee with a detailed, clause-by-clause analysis of the bill, with recommendations for amendment in specific legal context, when the standing committee reconvenes for its clause-by-clause consideration of the bill in the fall. Today the best we can do is provide really just the highlights of the detailed submission we will be making. Moreover, even in our oral presentation, we'll just be making some very key points, and hopefully during questions we can further elaborate on them.

As you know, the Canadian Environmental Law Association is a public interest group formed in 1970. We've been involved in this issue really since the very start, including the existing CEPA and all the consultations leading up to this bill.

We are also the chair of the Toxics Caucus of the Canadian Environmental Network, and therefore the views we're expressing are reflective of many groups across Canada.

Let me just make some very general comments about the bill, and then I'm going to talk about the toxics provisions and the public participation provisions, again very briefly.

The Canadian Institute for Environmental Law and Policy and the Canadian Environmental Law Association cannot support the passage of Bill C-32 as it's currently drafted. The bill requires major amendments in a number of key areas. The enactment of the bill without significant changes would be a step backwards in the protection of the health and environment of Canadians.

We are particularly concerned about the bill's provisions dealing with the regulation of technology, toxic substances, environmental harmonization, citizens' rights, pollution prevention and chemical new substances.

It should be made clear that our organizations cannot support the passage of the bill, and therefore we'll be asking this committee to pursue a course of fairly radical amendments to gather the support of not only us but, as I said previously, I think of many public interest groups you'll be hearing from.

Let me start with public participation, part 2.

Part 2 of the bill does provide some new and improved rights for Canadians. For example, it provides for the establishment of an environmental registry, which is an important new tool and should be supported. However, the key point of the bill, which is the environmental protection action, in our view is problematic.

We've long supported the need for citizens' rights to enforce environmental laws. Clearly this part does provide a framework for citizen enforcement. However, it also has some real problems.

The purpose of it is to ensure citizen access to the courts involving non-compliance and enhanced governmental accountability for enforcement and compliance activities.

However, the primary problem with the proposed new citizen action is that it inappropriately incorporates far too many qualifications and restrictions. The effect of these qualifications and restrictions is that the environmental protection action will not be used and will not achieve the purposes outlined.

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Moreover, it omits two key features found in other laws across Canada, particularly the Ontario Environmental Bill of Rights Act.

First of all, while environmental protection action can be commenced where an individual alleges a contravention of Bill C-32, it omits the ability to commence an action when something is imminently about to happen. In other words, it is an after-the-fact right. It can only be started once damage has occurred, and cannot try to prevent it.

Second, it omits the ability of citizens to go to court in emergency situations without filing a prescribed investigation request. There are still another half a dozen qualifications to this action. In effect, Bill C-32 provides a right to go to court, but encumbers it so much that it's a hollow right that will not be used in practice, and really creates a façade of access and accountability.

It's our recommendation that the environmental protection provisions under Bill C-32 should be amended so citizens have effective, meaningful access to the courts, as in other legislation across the country.

I want to spend most of my short time dealing with the toxics provisions. As a general statement, the provisions governing toxic substances provide some positive improvement. However, there are a number of significant weaknesses in this part, and these weaknesses are so severe they must be amended.

I want to focus on clause 64 in particular, which deals with the definition of virtual elimination. One of the pleas and submissions of public interest groups over the last decade is that there are some substances that must be dealt with in a severe way and eliminated because of their impact on health and the environment.

If you look to the work of the International Joint Commission on the Great Lakes, the whole philosophy of zero discharge is well known and documented. The International Joint Commission has really led the charge on that. In fact, in the Great Lakes we've known for some time now that the best way to deal with substances of these kinds of concerns is to eliminate them. Certainly the Great Lakes Water Quality Agreement has that very notion. Article II of that agreement states that persistent toxic substances shall be virtually eliminated.

Clause 64 of Bill C-32 does use the term “virtual elimination” and defines it. Although we like the goal of virtual elimination, the definition must be rejected. The definition is incomprehensible and not practical. In effect, the definition says you are allowed to use and generate the most dangerous substances known to humans, as long as you do not let those substances leave the plant in detectable levels and cause harm. That means the practical implication of this definition is to legitimize the use and generation of the world's most dangerous substances forever, as long as they do not leave the plant at detectable levels, which is the whole issue of what is meant by detection, and as long as there is no causal connection between the impact of those substances and health.

How do you prove the impact of those substances in those amounts? So our view is that the definition of section 64 must be rejected. There are three reasons for that. One, as I've described, the definition as proposed is inconsistent with the concept of pollution prevention. How can the bill possibly, on one hand, declare pollution prevention a national goal, but on the other hand state that companies are allowed to use and generate the most dangerous substances, as long as they control them at the end of the pipe, so they are not released in detectable amounts? The bill sets up an inherent contradiction between the policy it wants to establish and the actual provisions.

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The second reason it is inappropriate is, what is meant by “no measurable release”? This will confound the public and certainly take an enormous amount of time of the bureaucracy in debates with industry over what is meant by measurable release. I should add that even if these dangerous substances like dioxins and PCBs are released in no measurable amounts, they will still cumulatively amount to the quantity of substances being emitted into the environment.

If you accept this definition, you are by implication rejecting the history, evolution and words of the Great Lakes Water Quality Agreement. You are being asked to either accept this definition in support of Bill C-32, or reject the Great Lakes Water Quality Agreement. You have no choice but to choose between those two options, as you presently stand. I suggest it's an untenable, unworkable and perverse way to deal with policy.

The last point I would like to make on this provision is that if you read the statute closely, you will see that the number of substances that will be subject to virtual elimination is probably a handful, and certainly less than a dozen. It also means that many of these substances that are now known to affect the endocrine systems of both humans and wildlife will probably not be caught through that regime.

In my view, if the present statute bill is put in force, you will be assenting to, in effect, an antiquated view of science and those concerns being raised by scientists in terms of endocrine disrupters. The language must be changed to accommodate the phase-out of endocrine disrupters, in terms of both those substances that have already been identified as disrupting endocrine functions and those that will be identified in the future.

I'll just close with this comment. Bill C-32 rejects this committee's view that the definition of toxicity ought to be amended to include the concept of inherent toxicity. We recommend the toxicity definition be amended to include the concept of inherent toxicity. That is, toxicity should be determined on the basis of the inherent or intrinsic properties of some substances, so they do not have to cause harm before we act. In our view, that's completely consistent with the precautionary principle, which is a supposedly fundamental notion of this bill.

Thank you very much.

I'll turn the microphone now over to Mark Winfield.

The Chairman: Thank you, Mr. Muldoon.

Mr. Winfield, please.

Mr. Mark Winfield (Director of Research, Canadian Institute for Environmental Law and Policy): Thank you, Mr. Chairman.

The Canadian Institute for Environmental Law and Policy is an independent, not-for-profit environmental law and policy research organization, founded in 1970 as the Canadian Environmental Law Research Foundation.

The institute has been involved in the CEPA review process since the first consultations in the fall of 1993. In September 1994 we presented a major brief to the standing committee on the review of the act. We were also the co-author of the March 1996 responses of the biotechnology and toxics caucuses of the Canadian Environmental Network to the government response to the standing committee's report on the review of CEPA.

We were also a witness in the standing committee's study and round tables on the regulation of biotechnology in the spring and fall of 1996. We've also been following the environmental harmonization issue closely since its origins in the fall of 1993, and have prepared numerous commentaries and briefs on the initiatives.

As Paul indicated, the institute and the Canadian Environment Law Association cannot support the passage of Bill C-32 as it is presently drafted. The bill requires major amendments in key areas. As currently drafted, we would regard it as a step backwards from the existing legislation, and would prefer to stick with the existing legislation as opposed to this bill.

We are particularly concerned about the bill's provisions around biotechnology, the environmental harmonization issue and chemical new substances. Time permitting, I may comment briefly on the federal house in order provisions and some of the things in the miscellaneous section.

With respect to biotechnology, standing committee members may recall from their study of the regulation of biotechnology that the existing act establishes a rule that says all products of biotechnology, before they're imported or manufactured in Canada, have to undergo an assessment of their toxicity as defined by CEPA. That effectively means an evaluation of their potential environmental and human health impacts. The existing act says that this evaluation can happen under other acts of Parliament. It can happen under the Seeds Act for crop plants, for example. But that evaluation has to be at least as stringent as that which would occur under CEPA.

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Bill C-32 provides a mechanism to provide permanent exemptions from this equivalency requirement for evaluations of new products. This is provided in clause 106 of the bill. This is of particular concern to us given the growing body of scientific evidence regarding the negative environmental and human health impacts of biotechnology products, particularly in areas like agriculture and fisheries, which are precisely the areas that would be affected by this equivalency requirement or the removal of this requirement.

In our view, the regulatory framework for biotechnology products should be getting stronger, not weaker. In this context, we would recommend that the relevant clauses providing for this exemption mechanism should be removed from the bill, and the existing provisions should essentially be restored. Ideally, we would actually like to see the equivalency regime strengthened, as we recommended in our original brief to the standing committee in September 1994. But at a minimum, the existing requirements need to be restored.

We also note—I think this is very revealing—that the bill as currently drafted would exempt these orders in council. Exempting the regulation of products of biotechnology under other acts of Parliament from CEPA's standards is the only type of order in council that's exempted from the public notice and comment provisions of the bill, which is established in clause 332 to clause 334.

We'd also like to draw members' attention to the fact that similar changes are proposed in Bill C-32 for the chemical new substances provisions as well. Again, there's a mechanism for exempting products that are regulated under other acts of Parliament from CEPA's requirements around environmental and human health evaluations before manufacturing or import can occur in Canada.

We're also concerned with respect to the biotechnology part that it relies on the existing definition of toxicity under CEPA to establish regulatory authority over biotechnology products. In particular, we're concerned that the existing toxic definition is not broad enough to accommodate the requirements of article 8(g) of the United Nations Convention on Biological Diversity, which requires that parties to the convention incorporate provisions into their domestic law to protect the conservation and sustainable use of biological diversity from the use or release of products of biotechnology.

In this context we're recommending that a definition of toxicity specific to the biotechnology part be added and that it should make explicit reference to the conservation and sustainable use of biological diversity.

We're also concerned that the part is limited in scope to “living” or “animate products of biotechnology”. This is narrower than the existing provisions of the act. We're concerned that there is, as far as we can find, no legal definition of the word “living” in a Canadian statute or in common law that we have been able to uncover. In fact, we looked in other common law jurisdictions for a definition, but we couldn't find it there either. This will lead to endless confusion. We believe the part should cover all products of biotechnology as currently defined by CEPA.

The second aspect of the bill about which we are seriously concerned are its provisions related to the implementation of the Canada-Wide Accord on Environmental Harmonization that was signed by the Minister of the Environment in January 1998. We are particularly concerned by three provisions in this context.

The first is paragraph 2(1)(l) of the bill, which creates a legal duty to administer the act in a manner consistent with intergovernmental agreements. We understand that the committee is in possession of a memo from the CEPA office that indicates that the Department of Justice agrees with our interpretation of this clause of the bill, which is that it effectively incorporates the harmonization agreement into the bill by reference.

This is obviously of very serious concern given some of the language in the agreement, particularly the undertakings not to act and to do things like carrying out inspections and setting national standards. Again, we believe this clause should be removed from the bill.

We're also concerned that what we're calling a harmonization clause has been incorporated in numerous locations in the bill. This requires that the Minister of the Environment shall offer to consult with provinces and aboriginal members of the national advisory committee before taking virtually any action under the bill.

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We found that this clause appears at least nine times in the bill, dealing with information gathering, objectives, guidelines and codes of practice; pollution prevention; toxic substances priority substances list; protection of the marine environment; fuels; international air and water pollution; environmental emergencies; federal government operations; and economic instruments.

We are in possession of documents from the department that make it clear that this clause has been inserted in the bill as a result of the harmonization agreement. We regard this clause as an unnecessary barrier to action, and believe that it should be removed from the bill wherever it occurs.

We are also concerned about the provisions of the bill regarding equivalency and administrative agreements. In particular, we're concerned about the expansion of the potential use of equivalency agreements to include regulations on environmental emergencies, federal environmental management, and international air and water pollution.

We do not support an expansion of the authority to use equivalency agreements at this time, given the lack of an evaluation of the performance of the existing agreements. This is something that the committee, I think, has highlighted recently in its enforcement report and elsewhere.

We're also concerned that the conditions around the entering into of equivalency agreements don't make any reference to the whistle-blower protection provisions, which are being introduced into the bill, and the citizen suit provisions. If these are not required as a condition of equivalency, these protections are lost when equivalency agreements and orders are entered into.

We also note that there's a need for a five-year sunset clause on equivalency orders, as opposed to the agreements. The orders are the things that actually suspend the application in federal law in the jurisdiction in question.

We also recommend the expansion of the reporting requirements under equivalency and administrative agreements. It's clear that the current reports under these activities are virtually meaningless and that Parliament is going to have to prescribe specific contents of these reports.

We indicate some of the things that should go in. These are things like information on the number and types of actions taken by the provinces, the resources assigned to the enforcement of administered or equivalent regulations, and these kinds of things. Again, I think this is consistent with the committee's direction in its report on enforcement last week.

Finally, I want to just very briefly draw members' attention to subclause 2(2) of the bill. This deals with the relationship between CEPA and other federal statutes. Essentially, it says that CEPA only applies where no other federal legislation applies. Essentially, it makes the bill subordinate to all other federal statutes.

Again, this is inconsistent with CEPA's position as the framework and flagship piece of federal environmental legislation. In our view, again, this clause should be removed.

I'll close there. I'll be very pleased to answer questions when the time comes.

The Chairman: Thank you, Mr. Winfield. That was in record time.

Mr. Shrybman.

Mr. Steven Shrybman (Executive Director, West Coast Environmental Law Association): Thank you very much, Mr. Chairman and members of the committee. It's a pleasure to be here today. I should begin by commending this committee in being one of the few available in Canada to us, as environmentalists, to express our views and know that they will be heard.

I'm the executive director of the West Coast Environmental Law Association. It was founded in 1974. I guess it took about two years for the good idea and precedent established by CELA to find its way to British Columbia.

I'm relatively new there, but my predecessor Bill Andrews and my colleagues, who also helped me prepare this brief that you have before you, have been a part of working from British Columbia's perspective on federal environmental law and policy initiatives since our organization was founded.

I'd like to provide you with just a brief overview of the several points we make in our brief.

We don't believe Canadians have been served well by CEPA or that it represents a credible response to the enormous environmental challenges we confront. While Bill C-32 would correct several deficiencies of the act and strengthen the federal role particularly in the areas of gathering and disseminating information, it leaves too many other weaknesses, and fundamental ones, unaddressed.

Canadians haven't been served well by federal environmental legislation or by the indifferent performance of governments responsible for its implementation and enforcement. Unless very substantial changes are made to Bill C-32—here I echo the comments of my colleagues—achieving critical environmental goals will remain almost as elusive in the future as they have since CEPA was passed by Parliament approximately ten years ago.

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We firmly believe in the need for strong and determined commitments to protect the environment, but as evidence grows as to the seriousness of the ecological crises we confront, unfortunately the political will of governments to address these challenges seems to be in retreat.

From our perspective, the single most important deficiency of Bill C-32 is its failure to prohibit as a matter of statutory law the release of toxic substances into the environment in a manner that may cause significant harm to the environment, human health, and animal or plant life. Indeed, the failure to prohibit such polluting activities even extends to the actions and operations of the federal government and within the federal house.

While we welcome the attention that this committee and others have recently paid to the issue of enforcement, the even more fundamental failure manifested by federal law and policy is the failure to establish law and regulation in the first instance. Rather than provide the people of Canada with this protection, Canadians must place their faith entirely in the willingness of political administrations to act from time to time to pass regulations for this purpose.

Surely the goodwill this government might have claimed, or Canadian governments might have claimed a decade ago, that they would move expeditiously to act on their mandates has by now been entirely exhausted. Moreover, proceeding at its current pace, it will take cabinet many decades yet to achieve the full mandate that this environmental statute promises.

The failure of CEPA and Bill C-32 to include a general prohibition against polluting activity effectively delegates this authority to cabinet. This represents, in our view, an arrogation of authority to cabinet that properly belongs with Parliament. We believe that Canadians deserve environmental laws that are developed and guarded by parliamentary process and that are not simply at the mercy of the political exigencies of the day.

Indeed, for years—and you will know this, Mr. Chairman members of the committee—many Canadian environmentalists have advocated that the right to environmental security should be enshrined by the Canadian Charter of Rights and Freedoms so that it can be removed yet once again from the political to and fro of parliamentary debate. To provide Canadians with anything less than this right as a full statutory matter deserving a statutory expression is simply, in our view, unacceptable.

The only other argument I would make in favour of actually writing into this statute a general prohibition against polluting activity would be a very practical reason, Mr. Chair and members of the committee. The slow pace of regulatory progress, we argue, is a direct consequence of the failure to include such a prohibition. Absent such a prohibition, if you happen to be an industry looking at considerable expenditure in order to meet obligations that regulations will bring, you will use your considerable resources to frustrate and slow the pace of that regulatory progress.

On the other hand, if the statute was to include a general prohibition, there would be little reason to frustrate such initiatives. Indeed, regulations that would define with greater precision the nature of your exposure to prosecution under the legislation might be welcomed by many sectors of the business community.

The single most significant incentive for regulatory progress, we believe, would be a general prohibition on polluting activity. That's our first recommendation.

This is an illustration of what we think is an endemic problem in this legislation, and that is that it confuses the role of Parliament, cabinet and the ministers. Put another way, it confuses the role of law, regulation and policy. It often arrogates to cabinet authority that belongs, we believe, with Parliament, but by the same token it elevates to the status of regulation and statutory provision a number of matters that don't belong in the statute at all. Promulgating guidelines and codes of practice that cannot be enforced under this statute is a matter of policy—at best, regulation. It doesn't need to be enshrined in the statute.

It's almost as if the drafters of this legislation believed its value would be measured by the number of provisions it contains or by its sheer weight. There's a lot in here that doesn't need to be here, and the most critical elements that belong in an environmental statute are absent.

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I think I'm running out of time. But the other introductory remark I wanted to make has to do with this whole issue of equivocation and qualification and apology, which you can find throughout the provisions of the statute. You don't need to look beyond clause 2, which obligates the Canadian government not to protect the environment, not to ensure that environmental laws are adequately and effectively enforced, but merely to endeavour to do so. It almost warns Canadians that they shouldn't expect their government to perform very well when it comes to the obligations that are set out in this statute. They may well fail. In fact, we're anticipating that failure and offering, in a kind of backhand way, an apology in the very opening provisions of this law.

But the most offensive qualification that is found in clause 2—subclause 2(1), I believe—is this notion that the federal government has the obligation to act to protect, enhance and restore the environment, but only to the extent that measures are cost-effective. What is “cost-effective” intended to mean in this notion? Is this the beginning and the end of Parliament's obligations to protect the environment and Canadian health in this country, when they can demonstrate that there will be some beneficial effect on somebody's balance sheet? Whose balance sheet? What costs? How are they to be measured? How do you deal with the impacts of inadequate environmental regulation on biodiversity laws when we haven't yet even identified the organisms that we're losing because of our poor stewardship?

It is, from our perspective, a fundamentally offensive concept. Canada's flagship environmental statute cannot begin with this qualification.

We go on in our brief, Mr. Chairman and members of the committee, to deal with a number of other issues in more detail. We talk about community right to know or, in other words, the confidentiality provisions of Bill C-32 that will prevent people in communities from gaining access to information about the release of toxic substances to their environment, because companies can claim the cloak of confidentiality with respect to those releases without having to justify that claim, having a unilateral right to appeal should the minister decline their request for confidentiality. There is no reciprocity to the benefit of communities that might want to offer a similar challenge when those requests for confidentiality are acceded to by the minister. It is fundamentally offensive, in our view, that Canadians be subject to the release of toxic substances and then be denied even the information that might advise them as to what they're exposed to.

We deal with the issue of pollution prevention, pollution prevention rules that ignore the issue of use. My colleague Paul Muldoon has raised this issue as well. It's unacceptable in our view. The statute should deal with the transfer of risks from one medium to another, from the environment to the workplace. The role of workers cannot be ignored.

We talk about government operations within the federal house, again the failure of the federal government to move on its regulatory mandate. It should be subject to a general prohibition against the release of toxic substances to the environment. We include in our brief a case study of clients we've represented in B.C. wrestling with a particularly egregious problem on federal land around the Esquimalt graving docks, which describes for you in some gory detail what it's like for communities trying to wrestle with the impacts of polluting activities from federal land, absent of any regulation or any interest either on the part of the provincial or federal government, or willingness or jurisdiction to intervene and actually address those problems.

Have I gone over? Thank you for your patience.

The Chairman: Thank you, Mr. Shrybman. You certainly endeavoured to stay within the 10-minute time and almost succeeded.

We'll have the usual round. Perhaps let's see whether we can have two good rounds of five minutes each also, starting with Mr. Gilmour, please.

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

Thank you all for appearing before us.

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Steven, in your last bit of your presentation there, I must say I share with you the concerns about the power—and it's not just in this legislation, it's in a lot of legislation. The power goes to the minister and to orders in council, and the elected members are becoming less and less relevant. It's not going to Parliament; it bypasses Parliament. I certainly share your concerns, and I appreciate your bringing those points forward.

Perhaps you can enlighten me. I'd like to talk about the citizen's right to sue. When the deputy minister was here I asked a similar question, and he was very comfortable with the way it is written now—that it is basically at an even point. My concern is that if we push it more towards the level of the citizen's right to sue, some group or organization or individual can use that to be obstructive.

I'll use the example of the spotted owl in Washington and Oregon, where the issue had little to do with saving the spotted owl, but a whole bunch to do with stopping logging. My concern is with the right to sue—that a group can use that as a vehicle to be obstructive.

Can you comment on that, and perhaps relieve some of my concerns that by going in that direction we are opening the door for a whole bunch of litigation?

Mr. Steven Shrybman: Mr. Chairman, I'm sure Paul will want to add something, but certainly in Canada we don't have the same type of tradition in terms of litigiousness that's been observable in the States for...well, probably since that country was founded. We also have rules of court that are pretty punishing when it comes to the allocation of costs to applicants and plaintiffs who do not have not only a strong case but a claim to really represent the public interest in some very bona fide way.

Those potential adverse cost orders have, from our perspective, operated as too great a constraint on the access of citizens to judicial processes in this country. You have to have very deep pockets—in fact, you have to be able to write off the costs of litigation as a business expense, and be sufficiently profitable in order to be able to afford to do so—before you can think seriously about engaging in any significant litigation in this country.

A concern about a floodgate of litigation or frivolous and vexatious litigation just isn't a realistic one, in our view. There is no history to support it, and indeed, the courts have very substantial tools with which to discourage that type of litigation.

Mr. Paul Muldoon: If I could just add for a moment on that, pages 6 and 7 of our submission go through that. In effect, though, I understand there have to be certain limits placed on access to the courts. Our submission is that the bill has encumbered the access to the degree to which, in my submission, it would be very unlikely this section will be used at all.

If anyone wants to use the courts for an ulterior purpose, that can happen with or without this section. The purpose of this section is this. Last week this committee released a report talking about the problems of enforcement of laws. This section says government can enforce all the laws all the time. There are times when it's appropriate that citizens enforce the laws, and they should enforce the laws in a meaningful way and an effective way.

That's what the intent of this provision is. It's only operative when someone or some facility is breaking a law. Even in that case, you must first ask the government to investigate it, and I counted 11 other preconditions before you get something at the end of the day.

As Steven Shrybman just stated, if you read clause 38, that is the kicker. Clause 38 basically states that if you lose, even though you are enforcing a national law, and even though you have no private gain, in fact you pay everything. If you lose, you only get nailed with the winner's costs. So this is a public interest lawsuit where the individual claimant, the individual plaintiff, is taking all the financial risk. The only thing clause 38 does is to say that “the court may consider any special circumstances, including whether the action is a test case or raises a novel point of law.”

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Who in their right mind really wants to sue a big company knowing that they're probably going to lose all their assets if they lose?

So I reject categorically, first of all, that this section will work, and second of all, that it provides too broad of access. In my view, it is a mirror of what it ought to be.

We have commented extensively about the problems on the Ontario Environmental Bill of Rights, which this section is modelled after. Since 1993, the number of times the Ontario section has been used is zero. So if it's not abused in Ontario—in fact, not used—I hardly think this one is going to be abused.

Mr. Bill Gilmour: That's right.

[Translation]

The Chairman: Mr. Bigras, please.

Mr. Bernard Bigras (Rosemont, BQ): My question is about Mr. Muldoon's presentation. On page 3 of your brief, under (a) "General", you mention the influence of the Canada-Wide Accord on Environmental Harmonization on Bill C-32 and you say:

... it is clear that the Accord will take precedence over CEPA; the bill creates a statutory duty that CEPA be administered in a manner consistent with the Harmonization Accord.

Given the statement you have just made, what will be the significance of the Supreme Court decision of September 1997 concerning Hydro-Québec? In fact, do you feel that once Bill C-32 is enacted, it will override the Hydro-Québec case of September 1997? Is that what I should make of it?

[English]

Mr. Paul Muldoon: No, I think it's the exact opposite. The Hydro-Quebec decision states that the federal jurisdiction of the environment is upheld in terms of the fact that section 91 of the Constitution not only allows the federal government to enact laws for the peace, order, and good government of Canada, but the federal government can also enact environmental laws under the criminal law power. So it extends federal jurisdiction to enact environmental laws affecting the nation as a whole. I read the Hydro-Quebec decision has extending federal jurisdiction.

My understanding and submission on the harmonization accord is that it retracts federal jurisdiction, and the practical effect is that it will download or hand off some of the jurisdiction of the federal government to the provinces.

So, all along, the view of our organization has been that there is a paradox. The Supreme Court of Canada says the federal government jurisdiction of the environment is in fact broader than was previously conceived, but the political decision being made is to devolve some of that authority and jurisdiction to the provinces.

Mr. Mark Winfield: I would agree with Mr. Muldoon's interpretation. It seems there's an irony or a perverseness here that precisely at the point where the Supreme Court affirms the federal government's environmental jurisdiction, and in fact even identifies it as a valid object of criminal law, the federal government is turning around in Bill C-32 and, in effect, agreeing to surrender that jurisdiction through numerous clauses in this bill.

There's the clause in the administrative duty section that effectively incorporates the accord into the bill, and as I say, the committee has an opinion based on a justice department opinion that confirms that interpretation of that clause as drafted and, indeed, inserts these other clauses that say, essentially, the federal Minister of the Environment can do nothing of any substance, can't even gather information or set non-binding guidelines or codes of practice without checking with the provinces first. It makes it almost impossible for the federal government to do anything.

[Translation]

Mr. Bernard Bigras: I am not a lawyer, but I would like to understand one thing. Whatever has been signed, given the Supreme Court decision, does the federal government have the power to take action? Will this judgment enable the federal government to act notwithstanding the accord and the bill as tabled?

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[English]

Mr. Mark Winfield: No, quite the opposite. It's establishing barriers to the federal government's exercise of the jurisdiction that the Supreme Court of Canada has upheld as valid.

The Chairman: Thank you. Mr. Herron, please.

Mr. John Herron (Fundy—Royal, PC): My question arises towards the end of Mr. Muldoon's presentation, so maybe I'll give you a bit more air time to expand on what you were trying to discuss.

The first point is that of no measurable release and your concerns with respect to that in the Great Lakes Water Quality Agreement. If there is identifiable cumulative detection, isn't that by definition ultimately a measurable release?

Mr. Paul Muldoon: The problem with many of these substances is that they're released in small amounts, like dioxin, PCBs, substances like that, and the problem is that first of all they persist in staying in the environment for a long time and they accumulate in the fat cells of fish, wildlife and humans. The fact that they accumulate and individuals get body burdens of these chemicals is clear, but that doesn't mean a particular facility would be breaking the law, because it's releasing stuff that you can measure but is below a legal definition of measurable.

Let me back up. With a legal definition of “measurable”, it doesn't mean it's not releasing anything. It means it's releasing some amount that we arbitrarily said is okay, or because of the test methodology.

That's really what is at issue. For instance, if wildlife around a particular facility is accumulating certain substances, that may not mean it's measurable, because the measure really will be from the stack, not from the environmental burden being created. That's one of the issues we're going to have to think about.

Mr. John Herron: Do you find that that, by definition, is contradicting the precautionary principle?

Mr. Paul Muldoon: Yes. The approach we would suggest is to ask a different question—not how much is being released at the end of the pipe, but why is a facility still using or generating a substance like that? Can we not find new and different processes? Can we not innovate to avoid the creation of pollutants rather than trying to go through the enormous effort of identifying and arguing about what's a measurable amount at the end of the pipe and wondering what health effects will occur because of that?

I think that definition is exactly in contradiction to the concept of pollution prevention.

Mr. John Herron: If I have time, would you expand a little bit more? I may have missed your comments with respect to innate or inherent toxicity.

Mr. Paul Muldoon: Essentially, it follows from a recommendation of this committee. Really, the point is that there are substances already, we know, that have inherent properties that are problematic because they're persistent bioaccumulative, because they affect endocrine systems of, again, either animals or humans, or they have some other character. In effect, we know they have a property we don't like.

The question is, do we have to wait for that substance to cause harm before we act upon it? Can we not deal with it before it's used and generated? In other words, does a chemical have to go out and cause a problem before it's convicted? Could we not convict a substance before it causes harm?

Somehow there's an inherent view that chemicals have rights, that they're free to act until they cause harm. I don't take that view. I take the view that science is sophisticated enough to identify characteristics of substances that we may not want in commerce in Canada now. For instance, few people would suggest that dioxin is something we really want. It's a by-product we want to avoid. Yet you'd have to go through this complex regime before it could be acted upon. In effect, the cause of inherent toxicity really identifies those substances that should be acted upon before harm occurs.

Mr. John Herron: Thank you.

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The Chairman: Thank you, Mr. Herron.

Mr. Knutson, please.

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

Mr. Winfield, I just want to take you back to your comments about the equivalency provisions under biotechnology.

I apologize if I'm a little slow on the uptake. If we just import the language from the previous act, CEPA 1988, will that do?

Mr. Mark Winfield: Well, yes. That's essentially the minimum we would suggest—that you restore the existing provisions of CEPA 1988 by knocking out of both the biotechnology provisions of CEPA 1998 and the new chemical and substances provisions the clauses that establish this mechanism for exempting products being regulated under other acts of Parliament from the equivalency requirement of paragraph 26(3)(a) of the existing act.

The clauses in question with respect to biotechnology are clause 106, subclauses (7), (8) and (9). If you look at the way it's drafted, subclause 106(6) essentially repeats the language of paragraph 26(3)(a) of the existing act, but then it goes on to add these three additional subclauses (7), (8) and (9), which then provide a mechanism for exempting products regulated under other acts of Parliament from that equivalency test established now in paragraph 106(6)(a).

Mr. Gar Knutson: So would it be enough to just delete subclauses 106(7), (8) and (9)?

Mr. Mark Winfield: Yes, that would essentially restore the existing provisions. And as I say, you need to make the same amendment in the chemical new substances provisions, because they've done the same thing, and that's in clause 81. That would at least bring you back to CEPA 1988.

Our preference would be to actually strengthen the equivalency rule, but it would seem that at a minimum we would ask the committee to bring us back at least to where we are.

Mr. Gar Knutson: Okay.

Mr. Muldoon, it's been suggested to me that the whole debate around virtual elimination and the whole issue of releases.... I had an industry group in my office the other day, and they said if you want to ban something you can ban it, but you'd use a different section in the act.

Mr. Paul Muldoon: I think one has to go back to the intent of why the concept of virtual elimination and that whole set of provisions were put in. They were put in for a number of reasons. The most important was to accelerate the identification of a substance of concern and act upon the substance of concern. So it is a regime. There's a logical coherence to it. The problem is that it's not carried through.

I think the idea of virtual elimination is in fact a phase-out rather than a ban. The difference is, with a ban, you'd simply ban a substance. It's hard to ban dioxin because dioxin is the by-product of a number of industrial processes. So the idea of a phase-out is that you virtually eliminate, which means you eventually introduce new technologies and new innovations, whether it be raw particle substitution, process reform, product reform, or whatever, such that you gradually work through new technologies that avoid the use and creation of substances.

In other words, I think the idea was that you can't just ban some substances. You can if it's a synthetic substance being made, but other substances you can't.

The idea of a phase-out allows for transition, both for the companies but also of course for workers, and I think we do need some sort of transition plan to allow for innovation technologies to emerge, and that kind of incentive program.

There's a theory behind it, but it's not manifested. The term “virtual elimination” is manifested in the bill, but the context for it and the history and the evolution, as outlined by the International Joint Commission, is completely missed in here.

We could suggest to you that you simply ban them, put in the words that the minister shall ban substances of certain types, but I don't think that's going to fly, realistically. It doesn't reflect the complexity of the job.

Mr. Gar Knutson: If you wanted to get rid of a substance below a measurable quantity, if what you really wanted to do was to ban it, then there are other clauses in the bill that would allow you do that.

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Mr. Paul Muldoon: There are. But I don't want to get rid of substances below a measurable quantity; I want to avoid the use and creation of them, the use and generation of them.

Mr. Gar Knutson: Is that different from banning them?

Mr. Paul Muldoon: Well, I don't know how you ban dioxin, because dioxin is a by-product. I mean, you can do it. You can ban DDT, you can ban PCBs, because they are made. I think it is legally more complex when you start banning dioxin. I think what you have to do is ban certain industrial processes. Then you can do it.

In other words, I think if you merge those two ideas, you can come up with something realistic. The way it works now, in my view, in the bill, it doesn't work.

Mr. Gar Knutson: And you're going to give us some draft language on new clauses?

Mr. Paul Muldoon: Yes.

Mr. Mark Winfield: I was going to add to Paul's comment that one of the perverse aspects of the bill is that the way the virtual elimination provisions are written now, it actually in some ways makes it harder to do something about the substances that you would think are the highest-priority pollutants, the persistent bioaccumulative toxics, than it is to use other kind of pollutants. It's really quite a bizarre bit of drafting that's emerged, which in effect makes it harder to deal with those things that are put on the virtual elimination track than things that aren't on that track. It really reflects, frankly, the mess around those provisions of the bill.

The Chairman: Thank you.

Second round, Mr. Lincoln, please.

Mr. Clifford Lincoln (Lac-Saint-Louis, Lib.): I'd like to address this whole question of the subservience of the proposed act to provincial-federal harmonization agreements, to other ministers, and to the question of cost-effectiveness and economic and social factors, and to see them as a whole. I wonder what you, as lawyers and as people who have studied CEPA for a long time, would feel when we add all these things together.

I see, for instance, and I wonder if there's a significance to it, that the very first “whereas” talks about economic and social factors in making all decisions. Perhaps it's symptomatic also that the first administrative duty, paragraph 2(1)(a), talks about cost-effectiveness. If we were in a court of law, I wonder if they would say, well, there must be some special meaning for them to put these in as the first duties.

Then you add in there paragraph 2(1)(l), to “act in a manner that is consistent with the intent of intergovernmental agreements”; and also paragraph 2(1)(n) again talks about “a coordinated and cost-effective manner”. Then you have subclause 2(2), which sort of brings in a new dimension: “and the minister responsible for the other Act',' which never was there before.

If you tie this in also to biotech, which also makes CEPA subservient to other ministers, wouldn't you say this is a fundamental flaw in this bill, which we have to correct?

Taking this whole perspective into consideration, is this CEPA weaker than the present CEPA because of it, in your view? I'd like to get comments from the three of you, briefly, please.

Mr. Steven Shrybman: I share your concern. I believe the notion of cost-effectiveness is in the present CEPA. One of the things we haven't had a chance to do is to go through the legislation to discover in how many places this phrase is used, though it's used at other places in the act, and you bump into this from time to time.

It's a very interesting notion, and I think one that's fundamentally abhorrent when it comes to development of public policy. If you were to apply the test of cost-effectiveness to public policy, what would we make of health care for senior citizens? What would we make of child protection measures? There are many things we do in society because we believe there are compelling social, ethical and moral and societal reasons to do them. It isn't always and inevitably and finally the balance sheet.

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So to introduce that notion as, in a sense, the first principle that finds articulation in this statute is very discouraging, to say the least. It is, among other things, an invitation to litigation. The phrase isn't defined. It would probably be impossible to define. How do you measure costs or effectiveness when the costs may be to a corporation's balance sheet, or a foreign investor's for that matter, and the consequences, whether beneficial or otherwise, would be visited upon the Canadian health care system, the sense of security and well-being that Canadians might otherwise have, future generations, unknown communities of flora and fauna....

What could it accomplish, other than to create uncertainty and litigation, other than to demonstrate that when it comes to the environment, it's the environment last and the economy first?

Mr. Clifford Lincoln: What I want to find out is, when you accumulate all these things, when you accumulate the certain criteria so that before the Minister of the Environment can regulate new substances or take any measures she or he would have to prove cost-effectiveness, would have to be subjected to the rigours of the harmonization agreement, would have to consult with other ministers and see what there is in the specific acts, does that not make CEPA almost unworkable? That's what I want to find out, if I'm exaggerating or not.

Mr. Mark Winfield: No, we agree with that interpretation.

When one looks through, one finds endlessly these clauses and qualifiers and conditions. They're everywhere. Around federal-provincial related, we've pointed out at least nine times that “shall consult with the provinces” clauses occur.

Wherever there's a possibility of a conflict between a CEPA regulation and a regulation under another federal statute, CEPA always loses. That comes up over and over again.

I agree, this act is almost designed to create barriers to action, as opposed to facilitate action by the federal Minister of the Environment. As I said, as drafted, it is in our view unquestionably a step backwards from the existing act. Environmental protection in Canada will be weaker, not stronger, if this act is passed in its present form. It requires major amendments to deal with these problems, and those amendments would have to be extensive.

As Steven suggests, they will largely involve deleting things rather than adding things, deleting all of these clauses that create these barriers to action by the federal Minister of the Environment. But as it stands now, in our view it's clearly a step backwards from the status quo.

The Chairman: Before we start the second round,

[Translation]

I would like to make two announcements. The first one, for those committee members who arrived a little late, I want to say that we are all invited for lunch at noon in the New Zealand Room by the World Wildlife Fund. Our witnesses will be there and we should not get there later than 12:15 p.m.

[English]

The second announcement, also for those who arrived a little late, is that we will have an important replay on Monday afternoon—and the notice will go out—of the presentation by John Moffatt, and I urge members who are engaging with this kind of legislation for the first time to make a note in their diary and see whether they can attend, because it will make their task much easier when we go into the clause-by-clause analysis later on.

If there are no questions on that, Madam Kraft Sloan, please go ahead.

Mrs. Karen Kraft Sloan (York North, Lib.): Yes.

Last week we had officials from Environment Canada and Health Canada appear before the committee, and the official from Health Canada told the committee that he believed CEPA provides a safety net in general, and also that CEPA acts as a safety net in the biotechnology part. I know we've been talking about biotechnology this morning, but I'm wondering if you could give your opinion on whether CEPA, particularly in the biotechnology part, provides a safety net or not.

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Mr. Mark Winfield: In effect the bill as drafted provides a mechanism for shredding the safety net. It in effect provides a mechanism for putting holes in the safety net in the sense that it provides a mechanism for exempting products of biotechnology being regulated under other acts of Parliament—for example, pesticides being regulated by Health Canada under the Pest Control Products Act—from the requirement in the existing act that there be an evaluation of the potential toxicity of the product before it is imported into Canada or manufactured in Canada.

It's also very important to remember that the existing provisions are more than a safety net. They do more than simply capture things that aren't captured under other acts of Parliament. They also establish a standard of performance, a benchmark that has to be met when products are regulated under other acts of Parliament. So when, for example, the Pest Management Regulatory Agency is evaluating a bio-pesticide under the Pest Control Products Act, CEPA says that evaluation has to be as stringent as the one that would occur if the product were being regulated under CEPA.

So there are two dimensions to the existing provisions. One is the rule that everything has to be evaluated before it can be imported or manufactured, and the second part, which is the part the government keeps trying to read out in everything it's done, is it also establishes a benchmark and a standard for those evaluations that occur under acts of Parliament other than CEPA.

Mrs. Karen Kraft Sloan: The official from Health Canada said last week that he believes the biotechnology acts as a safety net because the part can do that by forming a certain standard of assessment through which hoop others must jump, in terms of equivalency.

Mr. Mark Winfield: Well, the problem is that subclause 106(6) essentially incorporates....

You see, what they've done is very clever. They took the language from paragraph 26(3)(a) of the existing act and put it into subclause 106(6) and subclause 81(6), with respect to chemical new substances, so they could say they had maintained the words of the existing act. But then they added three more clauses that provide a mechanism for exempting products being regulated under other acts of Parliament from the requirements established by paragraph 26(3)(a) of the existing act, as incorporated into subclauses 106(6) and 81(6) of this bill. So they can say they upheld it, but in reality they've actually provided an exemption mechanism.

One of the things they've done is they've set it up in such a way that once the exemption is given, it can only be taken away on the recommendation of the minister administering the other act. So once, for example, you give an exemption for genetically engineered plants being regulated by the Canadian Food Inspection Agency under the Seeds Act, the only person who can recommend the withdrawal of that recommendation is the Minister of Agriculture and Agri-Food. In fact we suspect that CFIA's and the Pest Management Regulatory Agency's fingerprints are on these clauses, and we can imagine that that will never happen.

[Translation]

The Chairman: Mr. Charbonneau, please.

Mr. Yvon Charbonneau (Anjou—Rivière-des-Prairies, Lib.): My question is fairly general in nature. The Environment minister introduced the bill by saying that it would improve a number of aspects: pollution prevention, public participation, etc.

We know that Environment Canada is considered by many, including the economic departments, as the voice of the environment within government. How do you explain the disparity between your appreciation of the new bill—judging by what you are saying, it is a significant step backwards—and the way it was presented by the minister, as a significant progress? How can you arrive at such divergent views on environmental protection?

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[English]

Mr. Paul Muldoon: I don't have a good explanation for you. All I can say is we've collectively made a number of submissions that in our view have been consistent since 1994, when the legislative review of CEPA started.

We were pleased with the standing committee's report, It's About Our Health! We thought that reflected the concerns and aspirations of Canadians. We were much less impressed with the government response in December 1995 to the standing committee's report.

Between December 1995 and December 1996, when Bill C-74 was introduced, something happened. I suspect that interdepartmental conflict and lobbying by industry really diluted the good intentions of the government response to come out with a bill that actually delivered a vehicle for public health and environmental health protection.

So I don't have a good explanation for you. I can assure you, though, that our views on these issues have been consistent for the last half-decade and before that.

Mr. Steven Shrybman: It was an error before, when I said the term “cost-effective”. It is in Bill C-74. It is not in CEPA. There's one example of a very substantial qualification introduced by this new legislation.

But I suppose in broad terms, the difference can be found in the shift of the political priorities of the federal government. In the late 1980s the environment was very high in public opinion priority. It is no longer the case. It has been a rough decade for those of us who believe there is the need for very substantial progress in the areas of protecting the environment, biodiversity, and dealing with climate change.

We lament the fact that as the challenges become clearer and clearer, as the body of scientific evidence in support of needing to take strong measures to respond to these challenges becomes virtually undeniable, governments are leaving the field. Largely and directly in consequence of their pursuit of economic policy objectives such as free trade, deregulation, and privatization, a context has been created that is very hostile indeed to the initiatives we believe are needed.

[Translation]

Mr. Yvon Charbonneau: But should we understand from your answers that, in your opinion, because of the economic context or the world context on the one hand, and because of the lobbying from interest groups on the other hand, the existing legislation has not been enforced thoroughly—we heard that from an earlier report—and, moreover, Environment Canada was bold enough to introduce more stringent legislation? At the end of the day, is this your reading of the circumstances?

[English]

Mr. Mark Winfield: This seems to be at the core of the problem. The will, at least in the department, does not appear to be present to do what needs to be done to secure the health and environmental future of Canadians.

Indeed the bill in many ways represents a triumph of an economic agenda that does not include environmental considerations. It's jobs and growth and economic development as previously understood, not in an environmentally sustainable forum. This is unfortunately typical of the environmental legislation we've seen in many jurisdictions over the last few years, which is actually moving backwards from where we were before.

The Chairman: Thank you. We'll start a second round very soon. I just have a couple of questions.

I think Mr. Shrybman is the one who engaged in an exercise with the word “endeavour”. Could we endeavour, you and I, to explore the word “endeavour”? The question is, what weight does it have in the legal world, the word “endeavour”? It appears six times in clause 2. How does a judge interpret that word?

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Mr. Steven Shrybman: The recommendation I make in I think recommendation 3 is simply that we remove that word and all of the other qualifying language that would somehow seek to ameliorate the obligations of the federal government to actually do the things that are enumerated there. I didn't bring the dictionary today, but it's to make an effort not to succeed, I suppose, and it anticipates failure. It is, I argue, to offer an apology even before the effort is made.

The Chairman: The elimination of the word “endeavour” would still leave a verb in each of these subclauses and make each subclause stronger.

Mr. Steven Shrybman: Yes, I agree. I think it's our recommendation 3:

The government's obligations to, inter alia, establish nationally consistent standards of environmental quality; protect the environment and biodiversity; and, to enforce the act in a predictable and consistent manner, must be stated without qualification or apology.

Those phrases stand quite well on their own.

The Chairman: Thank you.

On clause 64, when one reads subclause 64(1) for the first time, it doesn't strike one as being a bad clause at all because it advocates the ultimate reduction, and I'm reading now the text of 64(1): “the ultimate reduction of the quantity or concentration”, at the very least, “below any measurable quantity or concentration”.

The measurable quantity and concentrations these days are parts per trillion, we are told. That's pretty good if you examine it from that perspective. So then the question is what is wrong with that approach?

What I find troublesome is that in subclause 64(2), on lines 21 and 22, because it makes a reference to other relevant socioeconomic or technical measures, this spells trouble in the sense that one could look at short-term economic goals and then the whole virtual elimination could be thrown out of the window, so to speak.

But let us for a moment put subclause 64(2) aside. What is wrong in aiming at an elimination that will be below any measurable quantity?

Mr. Paul Muldoon: You have to read on, Mr. Chair. It says: “below any measurable quantity...as defined by the regulations”. So you presume it's parts per trillion. It may be, but that's a negotiation or challenge that will be put out for future discussions.

Let me just say that this will be the battleground for environmentalists, industry and government. All this clause does is set up a new battle of what is meant by “level of quantification” or “measurable quantity”, and that will be a very hard-fought battle.

The Chairman: Thank you.

The second round, Mr. Gilmour.

Mr. Bill Gilmour: As you are aware, Mr. Muldoon, at the committee report—and I'm not trying to put you on the spot, because I recognize that this is a lot of bill to go through and then our enforcement report too—we made a number of recommendations regarding enforcement. Do you see this new bill as being about the same as the last bill, or stronger or weaker, from the enforcement angle? We identified the resources and the people aspect, but I'm thinking more from the legislative point of view.

Mr. Paul Muldoon: I haven't completed the detailed analysis of comparing Bill C-32 to Bill C-74, but my understanding is they're roughly comparable.

I think the committee's report on enforcement is absolutely correct. It deals with capacity and resources. But I also alert you to recommendation 14 in your report, and that's the recommendation for the establishment of an independent centralized enforcement agency. That's not in the bill, and that sort of design question could be. It could be done otherwise also, but I think that there are other recommendations in the enforcement report that could be put in legislation to actually make it better, or could be implemented independently.

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But the reality is that I think it takes more than just resources. It's also the architecture of the department itself that needs to be revamped.

Mr. Bill Gilmour: I think what might quite helpful to the committee is if you could take a bit of time and compare the enforcement report and perhaps bring forward some recommendations of where the act could be changed or improved in line with those enforcement recommendations we made. That would be most helpful.

Mr. Steven Shrybman: The only other comment I would strongly encourage you to make is that I think most Canadians would be shocked to discover that in a statute of this size there are very few provisions that actually establish legally binding obligations that anyone must observe. The most glaring omission is the statutory requirement that you don't pollute. That's not here; it's purely a matter for the vicissitudes of the political process to deliver from time to time, and ten years later I don't think it's fair to ask Canadians to be patient any longer.

Mr. Mark Winfield: By comparison, for example, the Ontario Environmental Protection Act includes a clause that says explicitly that you shall not engage in activities that cause an adverse effect on the environment. And that basic prohibition stands regardless of any approvals or anything else that is issued under the act.

This bill provides no standard of performance of that nature, not even for federal government operations and activities. And we would think that some minimum form of standard of performance needs to be established, at least in terms of the federal house, if not more broadly, as Steven has suggested.

Mr. Steven Shrybman: And that same prohibition can be found in provincial legislation in B.C. and in most environmental statutes. There are a great many of them.

The Chairman: Thank you.

Mr. Bigras.

[Translation]

Mr. Bernard Bigras: My next question is about the scope of the Canada-U.S. Free Trade Agreement as well as the scope of a number of clauses in the bill. I would like to know whether you happen to have considered the implication of the Free Trade Agreement for clause 185(1)a) relating to prescribed fees that some Canadian companies in the area of environmental management of toxic substances would have to pay—we can't deny it because we have all heard their representations—as well as the impact this clause might have on businesses that are good environmental corporate citizens. I would like to know whether you have considered the impact of the Free Trade Agreement on the bill as a whole, and in particular on clause 185.

[English]

Mr. Mark Winfield: We haven't looked at clause 185 specifically, but we would draw members' attention to subclause 93(4), which requires consultation with the Minister of International Trade before, it seems, any form of action or regulation can be taken under the act in relation to a toxic substance that would interfere in any way with the international trade in the substance.

This is new, it is not in the existing act, and we can only assume that this is a direct result of the impact of the trade agreement on the drafting of this bill and the growth in the power of the Department of International Trade. This is effectively giving the Minister of International Trade a veto power over any regulation that may be made under the act in relation to a toxic substance that would in any way interfere in international trade in the substance.

Mr. Steven Shrybman: I believe the reason this provision is in here is that Canada is obligated, under the World Trade Organization Technical Barriers to Trade Agreement to advise all of its trading partners, all other members of the WTO of legislative or regulatory initiatives that might directly or indirectly interfere with trade, that advice must be given. There must be an opportunity for all other members of the WTO to comment and the minister must demonstrate how those comments have been taken into account before regulating.

In other words, the rights of the international community to be advised and comment on the development of Canadian law is, in many cases, stronger than the rights of Canadians.

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Moreover, if the government proceeds with a regulatory initiative in the face of complaints against it, it must provide foreign producers sufficient time to bring themselves into compliance with Canadian law. Those are solemn obligations. They can be found in the Technical Barriers to Trade Agreement of the WTO. That's why the minister has to be included in the loop, because Canada has undertaken these obligations in consequence of its treaty obligations around trade and investment.

The Chairman: Thank you.

[Translation]

Mr. Herron, please, followed by Mr. Lincoln.

[English]

Mr. John Herron: I'd like to seek some comments with respect to the alternative measures clauses that are...I guess the clauses are 295 to 309. Alternatively, do you support those particular initiatives as a more innovative way with respect to enforcement?

Mr. Mark Winfield: I think we're still at the stage of internally discussing our views on that. I think we need to chat with our.... CELA has staff who have experience as environmental prosecutors. I'm not sure we've reached a firm conclusion on those provisions yet. It's a more technical legal issue that I think we'll try to address in the clause-by-clause brief we present to the committee later on. I wouldn't want to give a definitive answer at this point. I'd say we're still trying to think about it ourselves.

Mr. John Herron: You'll let us into that loop as soon as you—

Mr. Mark Winfield: Yes, we'll be in touch with you.

Mr. John Herron: Thanks.

The Chairman: Mr. Lincoln.

Mr. Clifford Lincoln: Mr. Chairman, I have a comment based on what you picked up yourself about endeavour and not endeavour. Maybe I've become very cynical with age, but what I notice is that when we endeavour, we endeavour to establish nationally consistent standards. We endeavour to protect the environment and we endeavour to act expeditiously to assess whether existing substances are toxic. But when it comes to intergovernmental agreements, we don't endeavour, we just act. When it comes to avoiding duplication and providing whatever in a complementary manner, then we ensure, we don't endeavour. Again, when we have to provide information, we endeavour. When we have to be fair and predictable and consistent to apply the act, then we endeavour.

The whole thing just stinks. Looking at this thing and all the flaws in it, starting from the first whereas and going right through, you wonder if this is a kind of lemon that is unfixable. I wonder how you can fix this thing without chopping and changing and cutting every clause. Are we better off to stay with the known and existing quantity than to chop this thing in half? There are so many things that need fixing in it. I don't know where you start and where you end and whether it's possible.

The Chairman: I must ask you to give short answers because of the bell calling a vote.

Mr. Mark Winfield: Okay, Mr. Chairman.

I agree with Mr. Lincoln that the job in fixing this bill is enormous, but I don't think it's beyond the capacity of this committee to do. I think it will require a lot of work. I think we are looking at major changes to the bill. This is not going to be easy. I think repairing this bill is not a question of some technical amendments here and there. This is looking at a rewrite, but I would hope committee members would find the capacity and the will to consider undertaking that.

Mr. Steven Shrybman: I would support that entirely. I think this committee has emerged as an absolutely essential player in developing policy and law in Canada. It certainly has the capacity. CEPA 1988 isn't an adequate measure of statutory protection for the people of Canada for the environment. It needs to be improved. I would strongly encourage this committee to make its views very clearly known as to how that must happen.

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The Chairman: Thank you.

Mr. Knutson, followed by Madam Kraft Sloan, Mr. Charbonneau, Madam Carroll and the chair.

Mr. Gar Knutson: Thank you very much.

I want to go back to the question of the citizens' suits. Industry groups, when they come, will tell us that one concern they have is that there's no limitation. They'll also tells us that they don't work, that they haven't worked in the United States.

My question is in two parts. Mr. Muldoon, you've said it's never been used in Ontario. I'm wondering whether just having the provision to allow someone to ask for an investigation by the department, while it may not result in a court action, is in itself a useful thing.

The second part of my question is, can you gives us a reference? Is there some study or some evidence you can put in front of the committee to show that in fact they do work, or they have worked in the United States?

Mr. Paul Muldoon: With respect to the first question, the request for investigation is already in the existing CEPA. In Ontario there's also similar legislation, as well as in other territories. It's a very effective mechanism because the way that most citizens enforce laws now is by requesting investigation. If there's evidence of a violation, then one can proceed by way of private prosecution. The problem is that private prosecution is in criminal courts and the remedies available are unlike the remedies that would be available in something like this section or a set of provisions, if they worked.

There are many studies demonstrating the effectiveness of citizen suits. I can give you the references looking at both state and federal law. A whole enforcement strategy by government in the United States is in fact partly based on the fact that it relies upon citizen enforcement. So again, I think you're being misled.

Mr. Gar Knutson: Why would industry say they don't work, then?

Mr. Paul Muldoon: I don't know. I can't speak for industry, except for the fact that they don't like it because all of a sudden you have citizens enforcing laws against them. Quite frankly, some of the most important environmental litigation in Canada has come from a citizen taking an enforcement action by way of prosecution or some other remedy because government wouldn't. Often governments won't, for a whole number of reasons. I will undertake to give you the literature that shows the benefit of citizen enforcement actions.

The Chairman: Thank you.

Madam Kraft Sloan, please, followed by Mr. Charbonneau.

Mrs. Karen Kraft Sloan: Yes. Again, when I questioned Health Canada officials last week, I was told that the new revised CEPA has provisions in it to deal with endocrine disrupters adequately. I'm wondering if you could comment on that, please.

Mr. Paul Muldoon: I think the clearest comment is that what we were looking for was a regime that would allow the virtual elimination of endocrine disrupters, even if they are not persistent and bioaccumulative. Right now, the bill is focused on...for the virtual emission track, they must go through that criterion of being persistent and bioaccumulative. What happens if some of them are not? In our view, legislatively there's a barrier to dealing harshly with those types of substances. Our view all along, for both this bill and Bill C-74, was to define by regulation substances that should be subject to virtual elimination. I think that would do it. We'll make the exact wording proposal to you on that.

Mrs. Karen Kraft Sloan: Are you suggesting another track?

Mr. Paul Muldoon: No, the same track, but broaden the availability of that track to endocrine disrupters.

Mrs. Karen Kraft Sloan: Okay, thank you.

[Translation]

The Chairman: Thank you. Mr. Charbonneau.

Mr. Yvon Charbonneau: I would like our witnesses to tell us their views on some statements made in various constituencies, for example that there will be progress in environmental protection when businesses start learning sound management practices and wider strategic planning incorporating environmental dimensions. Basically, environmental protection is a matter of sound management.

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We hear many business leaders, as well as a lot of other people who know a thing or two about the environment, say that environmental management is basically a matter of economic common sense. We have heard a lot of evidence from big companies that have reduced their costs, opened up new markets and become more competitive because they have learned how to take care of the environment. They have developed or found new technologies that have contributed globally to their cost reductions. Environmentally-sensitive management is basically a matter of economic common sense and responsibility.

I understand that you do not really appreciate voluntary measures. You say that all these voluntary accountability measures for businesses are more or less a failure. Would you like to make a few comments about that? It seems to me that we cannot have an official from Environment Canada or an inspector in every single location. There are 60 inspectors for all of Canada. Even if there were 300 or 3,000, we must begin by making business managers accountable. We are regulating more and more, but we don't even know if people comply with the existing regulations. According to what you and other people are saying, we should have more regulations, regulations that should be more detailed, more specific and more stringent. We will certainly not meet this challenge by simply increasing the number of inspectors on the job and the amount of resources. There must be an avenue called accountability. I find that you do not stress accountability all that much. Now is your opportunity to do it.

[English]

Mr. Steven Shrybman: We've attached to our brief excerpts from a study that I know this committee is familiar with, by Peter Krahn Enforcement and Voluntary Compliance. He works for Environment Canada in the Pacific and Yukon region.

We attached the graphs and charts because we thought they were so persuasive in terms of illustrating the difference between voluntary measures and regulatory ones. This is the period of voluntary compliance; this is the point at which regulatory requirements are introduced for, I think, the antisapstain industry in British Columbia.

In the face of rather persuasive evidence that many of these changes are cost-effective, while certain leading companies in the business community take advantage of these opportunities, many do not. That reluctance has been documented by any number of studies, including a fairly well-known KPMG study that surveyed business managers in the corporate community.

The only thing I would add to that—and I've included this in our submissions around pollution prevention because, unfortunately, Bill C-32 doesn't require anyone to plan for pollution prevention—is reference to a New Jersey study that surveyed members of the New Jersey community both before and after a pollution prevention plan. They were asked, how much would pollution prevention generate by way of pollution reductions that are cost-effective? The manager said, well, they made an estimate; they did the study; it turned out to be twice as high. It's kind of a catch-22 situation. If they knew what could be achieved by pollution prevention planning, they would do it, but because they're not required to do it, they never realize or understand the potential.

The Chairman: Ms. Carroll, you have a full five minutes.

Ms. Aileen Carroll (Barrie—Simcoe—Bradford, Lib.): I can share that. I think my question was somewhat pre-empted by Mr. Lincoln—and no complaints.

My concern is, as I listened very carefully this morning to descriptions of this act being so flawed, I query the ability of this committee to rectify, in a clause-by-clause approach, a bill that is, as you described, the triumph of an economic agenda over an environmental one. That isn't to say I'm not optimistic, I'm always optimistic. I wouldn't have come to Ottawa if I wasn't. But I have some concerns about the task being accomplished if the will isn't there.

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Mr. Paul Muldoon: I think one of the problems is that the bill in part was written by committee. The committee, you would have thought, should have been Environment Canada, but in fact, I think Industry Canada, Natural Resources Canada, Agriculture Canada, and Finance lobbied very hard to include their views and sort of trade-offs in the bill. The result was a bill that in some sense doesn't make sense at all. It's just incomprehensible how it's going to work in practice. In other words, it works against environmental protection.

One of the reasons we did not have our submission ready for you in terms of clause-by-clause is because, in fact, it is a clause-by-clause analysis. There are very few clauses on which we do not have substantial comments. So in our view, the way to work with the bill is to go through it clause by clause and fix it. It's going to be a long, laborious process and a very controversial one.

It's very difficult, Mr. Chair, for my group to sit here and inform you that we cannot support an environmental bill. It's very difficult. It's embarrassing, quite frankly, but that's the position we're in. But like the member, we're optimistic that this committee will listen to our submissions and hopefully try to fix the bill so that it is in the public interest.

The Chairman: Madam Carroll, you have one question.

Ms. Aileen Carroll: Thank you for your input and your response. But the description of creating a bill by a variety of committees leads one to conclude.... I'm trying to remember an analogy that's escaping me. If everybody went off into a different room with the concept and then came back and cut and pasted it together, what would be the result of that? The description you're giving is almost exactly that.

But the task is there before us. The option to go back to stage one and create something that perhaps encompasses a philosophy is not ours to make. We don't have that choice. So the choice instead is to work with the bill before us and to go through it clause by clause. I see no other option; therefore, we will engage that one.

The Chairman: Thank you, Madam Carroll.

I have two brief questions from here, and then we have to go for the vote.

Could you briefly comment on the environmental protection alternative measures in clauses 295 to 304? Just roughly give a brief comment. Do you support their inclusion? Are they adequate?

Mr. Paul Muldoon: We have not done a detailed review of that, Mr. Chair. It seems to us that it's going in the right direction, but we will reserve our definitive submission until when we have a chance to review it more closely.

The Chairman: Fair enough.

Then can you briefly comment on this very extensive list that appears under subclause 93(5) on page 64? That's the exemption list under paragraph 93(5)(a). Tell the committee what you think of that when you read it in connection with clause 330, which is the regulation-making powers. What will it lead us to? What kind of picture will emerge across Canada?

Mr. Mark Winfield: Subclause 93(5) seems to be an extraordinarily broad exemption power.

The Chairman: Right.

Mr. Mark Winfield: It reminds me of the clauses that the Progressive Conservative government in Ontario put into the Ontario Environmental Protection Act. It's essentially a power to the cabinet to exempt anybody from anything under the act.

I think clauses like this go to the point of raising questions about the rule of law and the degree to which, as Mr. Gilmour suggested, the authority of the legislature is being usurped by the executive. I don't think we could be very comfortable with clauses like that. They're sort of magic wands that say the cabinet can do whatever it wants.

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Mr. Steven Shrybman: I think the committee's task is not quite as arduous as it might appear, because when you go through the statute, if you simply remove from it everything that is extraneous, all of the provisions that do nothing to protect the environment or create for anyone a legal obligation to do so, it becomes a lot thinner, a lot easier to manage, and a lot more accessible for Canadians who might want to understand what it means.

The Chairman: We have a vote in a few minutes. It would be wise if we go over, because by our calculation there should be something like five minutes left.

As for tomorrow—I don't think it's wise to keep you waiting, because we never know how many votes are expecting us—we will have in the afternoon, the clerk informs us, the Canadian Chamber of Commerce, Alliance of Manufacturers and Exporters Canada,

[Translation]

the Centre patronal de l'environnement du Québec,

[English]

and so on. So see whether you can make it tomorrow afternoon at 3.30 p.m. It will be quite an interesting event.

Thank you very much indeed for your appearance.

The meeting is adjourned.