ENSU Committee Meeting

STANDING COMMITTEE ON ENVIRONMENT AND SUSTAINABLE DEVELOPMENT

COMITÉ PERMANENT DE L'ENVIRONNEMENT ET DU DÉVELOPPEMENT DURABLE

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, September 17, 1998

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[English]

The Chairman (Mr. Charles Caccia (Davenport, Lib.)): Bonjour. Good morning. We are continuing our study of our beloved Bill C-32, which as you know is a set of amendments intended to amend the existing Canadian Environmental Protection Act introduced roughly ten years ago. We've been at this study stage since the end of April. We are now approaching the conclusion of the study, probably by Thanksgiving Day. Subsequently we will go into a clause-by-clause examination of the bill. There are likely to be a number of amendments. As we discussed yesterday, there will be a need for, hopefully, a short pause to examine where we are and the amendments the committee would like to entertain.

This morning we have an opportunity to hear representatives and spokespersons for the Canadian Labour Congress. We welcome you all, gentlemen.

As I did yesterday, I welcome the new members of the committee.

I suppose Mr. Martin would be the lead speaker. He would like to introduce his colleagues and give us a brief outline of what he thinks of the legislation. Mr. Martin, welcome again.

Mr. Dick Martin (Secretary Treasurer, Canadian Labour Congress): Thank you, Mr. Caccia. I would like to introduce my colleagues: David Bennett is the director of our environment, safety, and health department of the Canadian Labour Congress; Colin Lambert is representing the Canadian Union of Public Employees; Mr. Louis Erlichman is with the International Association of Machinists and Aerospace Workers; and Paul Middleton is from the Service Employees International Union.

Mr. Chairman, we have three briefs here. I would ask Mr. Erlichman of the machinists to kick it off and present his, then Mr. Lambert, and then we'll present ours as the Canadian Labour Congress.

Mr. Louis Erlichman (Research Director for Canada, International Association of Machinists and Aerospace Workers): Thank you. I'm pleased to have the opportunity to present to this committee the views of the International Association of Machinists and Aerospace Workers on Bill C-32. The IAM represents 55,000 Canadian workers in a wide range of industries. A large part of our membership is in the air transport sector in the federal jurisdiction, but the scope of this legislation is so broad that it will have a major impact on all of our members and their families.

This bill begins with two pages of fine-sounding preamble and another page and a half of duties for the federal government filled with all kinds of wonderful language on pollution prevention and principles, like the polluter pays. Unfortunately, the rest of the bill does not follow up with a program that will effectively bring these principles to life.

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As this committee has itself recently pointed out, the current Canadian Environmental Protection Act is weakly enforced due to government cutbacks and a general lack of political will and commitment. This legislation further weakens the federal government's commitment to environmental leadership, enshrining the provisions of the harmonization agreement with the provinces without ensuring that the provincial equivalents in fact provide equivalent environmental protection or that there will be provincial enforcement even when the standards are adequate.

As this committee has said, we need a return to federal authority and accountability, not a further abdication of responsibility. The cornerstone of Bill C-32 is supposed to be pollution prevention and a focus on pollution prevention plans to avoid environmental damage rather than trying to clean up after the damage has been done. Unfortunately, this legislation does not make pollution prevention plans a standard requirement for companies in the federal jurisdiction. Pollution prevention plans may be required at the discretion of the minister for only a small group of toxic substances. The procedures involved in adding to the schedule of toxic substances ensure that it will take years for the list to be expanded significantly. Furthermore, the bill contains no clear standards for acceptable pollution prevention plans.

Given the shrinking federal regulatory resources and disappearing political will, the apparent promise of effective pollution prevention plans in this bill is a hollow one. We can applaud the extension of whistle-blower protection in this legislation to all workers in the federal jurisdiction, though we hope the procedures to protect whistle-blowers are straightforward and easily accessible, particularly for workers without union protection. There is little incentive for a worker to report on environmental crimes if the worker may face a long and expensive legal struggle to keep his or her job. An important complement to whistle-blower protection is a statutory right to refuse to pollute, a right that is missing from this bill.

Pollution prevention requires a much more active strategy than is provided for in this legislation. Every workplace, with the exclusion of the very smallest, should be required to develop a pollution prevention plan and to implement it. Mandatory joint labour-management committees would involve workers in the development and implementation of these plans.

In summary, this legislation is grossly inadequate to the task of defining an active and effective federal role in pollution prevention.

Finally, we would like to raise a central issue about sustainable development that is not dealt with in this legislation, except rhetorically in the preamble, which refers to the need to integrate environmental, economic, and social factors in the making of all decisions by government and private entities. CEPA deals rather ineffectively with a small piece of the process of sustainable development. If there's going to be serious environmental action, it will have significant effects on workers in communities, often communities whose current economic base may be destroyed by environmental protection requirements. It is unfair that small groups of workers and their families or specific communities be made to bear an inordinate share of the burden of environmental protection. There needs to be a clear recognition of this need and explicit programs must be developed to support transitions for affected workers and communities. It is essential that workers participate in the decisions that will affect them and their families.

Transitions do not take place in a vacuum. A transition program only makes sense if there are viable local employment alternatives. Economic policies that allow or encourage high levels of unemployment, particularly in certain vulnerable parts of Canada, will fundamentally undermine any transition program.

At the centre of any strategy of environmental protection and sustainable development is an economic policy that focuses on high levels of secure employment, a policy direction that we have not seen from our federal government in over two decades.

Now I'll pass it on to Colin.

Mr. Colin Lambert (National Director, Health and Safety Branch, Canadian Union of Public Employees): I'd like to thank you for this opportunity to address the committee. I'm speaking on behalf of our national environment committee, which has members from every province across the country, and it's their presentation I'm making, on their behalf.

CUPE has more than 450,000 members across the country and many of them play a very important role in the Canadian environment. We represent workers in the water treatment and sewage disposal sectors, in the garbage collection sectors, and in the municipal enforcement sectors. Many of our members are responsible for the enforcement of municipal bylaws that have environmental consequences for society as a whole. The garbage disposal and sewage treatment sectors have a great impact on the Canadian environment.

I'd like to say that CUPE endorses completely the other positions you will hear from the machinists and the CLC, and we're not going to repeat a lot of what they've said.

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We concur that there are some improvements contained in this bill that would enhance CEPA. We are encouraged that the principle of pollution prevention is recognized in this bill. However, the proposals contained in the bill will not drive the stated objective of the federal government to make pollution prevention a national goal. We believe these proposals indicate that this government has retreated from its commitment to make environmental protection in Canada a top priority. The proposals in the bill are completely inadequate, and we believe they amount to little more than political posturing by presenting them as a reform of CEPA.

Whistle-blower protection: We're extremely disappointed with the so-called whistle-blower protection proposal in the bill. This limited protection fails to address some of the underlying issues facing workers. The government has failed to understand that workers who do not have a legal right to do work that harms the environment are put in a real conflict of interest position. They have no legal right to refuse to pollute. However, if they do participate in an act that contravenes the law, they are required by the law to report that contravention to the authorities. They can be held accountable for their actions and be charged for participating in the contravention. We believe that their rights under the Constitution are violated. Every citizen has the right to invoke a section of our laws that provides protection against self-incrimination. Given this situation it's highly unlikely that workers will comply with the requirements to report unless they have the right to refuse to pollute. A good whistle-blowing law must go together with a good right to refuse.

Devolution of powers: The overall thrust of Bill C-32 permits the federal government to divest itself of many of its previous commitments to the environment. We believe this permits the federal government to hand off more and more of its responsibilities to the provinces. The harmonization agreement that was signed earlier this year was a clear indication that the federal government was downloading much of its powers over the environment to the provinces. We also believe that the 30% reduction in funds to Environment Canada has provided a rationale for the downloading of powers to the provinces. The cutbacks in the ministry and the proposed weakening of CEPA should not be viewed as isolated incidents. We believe they are closely tied to the handover of powers to the provinces.

What Canadians want: These actions are contrary to the wishes of the majority of Canadians. Polls have consistently shown that the public expects the federal government to take a lead in making improvements to the environment, not just to stop ecological damage but to take steps to improve and restore our ecosystems. These expectations extend to both the national and international levels.

Bill C-32 does not move the federal government forward towards the environmental goals of its citizens. For example, twenty-one percent of Canadians believe that environmental laws should be stricter despite government debt and cutbacks. Ninety percent of Canadians are concerned about the state of the environment, with most expressing serious concerns about potential damage brought by global warming and equally high levels of concern expressed about Canada not meeting its international commitments to reduce greenhouse gas emissions. Seventy-eight percent of Canadians believe that their children will experience great health problems because of a worsening environment. CUPE believes that any government who beefs up its environmental laws will receive a very large approval rating by the Canadian public. Not to do so will thwart the will of the people.

Past experience has shown that environmental improvements are always driven by stricter laws. This is borne out by polls conducted in the past. These show that ninety percent of organizations polled admitted that their number one reason for having environmental programs was to comply with regulations. Sixty-six percent said they were motivated by the possibility that directors of the organizations could be held liable for violations of environmental acts and their regulations. Only sixteen percent said that Bill C-62, if passed, would not move the improvement of the environment forward.

The diminished government role. Bill C-32, together with the harmonization accord with the provinces, will provide those in society who are always reluctant to put the public good before their own with plenty of opportunity to avoid taking steps necessary to improve the state of our environment. Handing responsibilities off to the provinces, knowing about the tremendous cutbacks that have been forced upon provincial environment ministries or departments, is reckless. Across the country there have been wholesale cuts as environment officers are laid off, their branches eliminated and programs discontinued. These cuts extend further than the provincial level. We have seen staff cut from municipal environment agencies, we have seen conservation authorities decimated, and we have seen environmental groups have their funding vastly reduced.

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The federal government has led the charge with its massive cut of more than 30% to Environment Canada. In addition, Environment Canada's authority to manage the environment has been undermined as its responsibilities were handed over to other federal ministries who have completely different mandates. Often mandates are in conflict with the goal of environmental protection and improvement.

Bill C-32 will not enhance Environment Canada's ability to protect our environment and is better put to rest. CUPE believes the first priority for this government is to replace the cuts and to re-establish the role for Environment Canada to that of the lead ministry in environmental concerns. We believe this should be done at once.

An improved bill should be reintroduced later in the year. The new bill should contain many of the recommendations that were highlighted in your own report of 1995. It should also contain the recommendations labour has put forward today. We could support such a bill.

I'd like at this time to move into another area of concern. No matter how many improvements are made to CEPA to protect our environment, without a forceful and consistent enforcement policy and program we will continue to see degradation to our planet.

We would like to commend the standing committee for its latest report enforcing Canada's pollution laws. The public interest must come first. It was a comprehensive look at the issue of enforcement. It has been our experience in other areas that governments often deregulate, not by changing laws or by eliminating regulations, actions that are often politically difficult and fraught with future electoral damage to the government, but they often choose instead not to enforce their own legislation. Over the past ten years or more this has been the case in occupational health and safety. Money for enforcement programs is withheld. Policies are put in place to make the inspectorate facilitators rather than enforcement officers. The result is massive deregulation by default. In fact, quite often governments continue to pass stricter laws and regulations at the same time they deregulate by not applying the laws. This is now happening in the environmental field. Thousands of enforcement officers and their support staff have been cut. Whole programs that provide the information to support enforcement efforts have disappeared. Instead we see other initiatives designated to replace a proper enforcement program.

Voluntary compliance is one of the most favoured. The very name itself changes the concept of automatic acquiescence with the law. Voluntary compliance suggests that there's a choice of whether one obeys the law or not. It also suggests that complying with the law is somehow more than a civic duty and those who comply should be honoured. It turns the enforcement officer into a coach and then into a cheerleader for those who comply with the law. It offers no penalties for disobeying the law—perhaps we should say for voluntary non-compliance. Voluntary compliance is deregulation. It ties the hands of the enforcement officer and permits illegality.

We believe that the recommendations from your report clearly indicate what is required to put a proper enforcement policy in place.

We would like to offer a few simple guiding principles for an adequate enforcement policy: one, that the cost of violating the law must be greater than the cost of compliance; two, that there must be a high probability that those who violate the law will be detected and penalized when they violate the law; three, that repeat violations will result in escalating penalties; and four, and probably the most important, that enforcement officers who apply the policy will be supported by all of their management officials.

It is our belief that a vigorous and consistent enforcement is the key to improving our ecosystem. It is time to stop the economic blackmail that pretends that unbridled growth is the way to a secure future. Without a viable, healthy environment there is no future for society as we know it.

In conclusion, Bill C-32 does not advance the goals of protecting our environment. It's a regressive bill. It is a bill that advances the agenda of those in our society who believe that profits are more important than global security. The global agenda of multinational corporations is well served by this bill. It is not what the members of our union want, it is not what the majority of people across Canada want, and the government must withdraw this bill and replace it with a law that will reverse the harm being done to our planet, a harm that threatens the very survival of our species.

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The Chairman: Mr. Lambert, thank you very much. Some of us, at least in this committee, were not aware of the existence of the national environment committee. Regardless of whether it praises or clobbers us, we are certainly very impressed by the fact that CUPE put together such a committee and that you took the trouble of providing us with such a precise commentary. You certainly could not be accused of mincing words, could you?

Mr. Dick Martin: Mr. Chairman, you don't mince your words often either, so we're in good company.

Mr. Chairman and members of the committee, the Canadian Labour Congress is pleased to present the following submission. Bill C-32 is a huge piece of legislation that will set federal environmental policy for the next decade. However, there are a few positive changes from the existing CEPA, many provisions remain the same, as does the basic environmental philosophy of the bill, and there are a few changes that are positively unhelpful.

Many environmental organizations are pointing out these negative aspects of Bill C-32, and the CLC shares most of their concerns. However, we will confine ourselves to two important aspects of the bill: pollution prevention and workers' environmental rights.

CEPA part 4: pollution prevention. The subtitle of the bill draws attention to the importance of pollution prevention in the new era of CEPA, an act respecting pollution prevention and the protection of the environment and human health in order to contribute to sustainable development. In the preamble, the implementation of pollution prevention is designated as a national goal and the priority approach to environmental protection. However, the provisions of part 4 come nowhere near these grand declarations.

The scope of the pollution prevention provisions is very limited. The first concern about the priority accorded to pollution prevention concerns the scope of the pollution prevention provisions in Bill C-32. The production and implementation of a pollution prevention plan can apply only to substances on the list of toxic substances in schedule 1, section 56. There are currently only 26 substances on schedule 1 and not more than a couple of dozen will be added in the next 10 years. Of the current 26, most are already highly regulated, meaning there is little scope for pollution prevention planning, except possibly to punish those who may have violated the regulations, not the sort of proactive, positive program that pollution prevention is supposed to be.

Since pollution prevention planning can apply only to a ludicrously small range of individual substances, it is hard to see anything of a national goal for pollution prevention in Bill C-32. Pollution prevention is notoriously a discipline that applies to the whole range of toxic substances and production processes within whole workplaces. Pollution prevention cannot be done if it applies to single substances.

Further, and despite the report of the standing committee, It's About Our Health! Towards Pollution Prevention, pollution prevention plans are not mandatory but discretionary. The process of declaring a substance CEPA toxic and adding it to a schedule 1 reflects a deep flaw in CEPA, both as it stands and in Bill C-32. There is a long cumbersome process of identifying priority substances, assessing them for CEPA toxicity, determining strategic options, and putting them on schedule 1 for regulatory action. The number of regulated substances is far too small and the process for arriving at them ridiculously cumbersome and paralyzingly slow.

The Canadian Environmental Protection Act, Bill C-32, makes some attempt to speed up the process, but even then, arriving at a regulatory action on any given substance, even if it gets through the assessment process, could take around a decade because of over-long timeframes and because appeals can stop the clock before the substance is put on schedule 1. A chemical manufacturer or importer who wanted to avoid government intervention would be well advised to resist direct regulation by Environment Canada and insist on the procedures in part 5 for controlling toxic substances. By the time, if ever, the substance gets on schedule 1, the substance is likely to be obsolete and the damage to the Canadian environment done.

For the purposes of pollution prevention, this procedure is hopelessly inadequate because prevention is based on the concept of avoiding the creation of pollutants—section 3, definition of pollution prevention—which clearly cannot be done if substances are in circulation and in industrial use for a decade before pollution prevention planning even begins.

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The content and goals of pollution prevention plans are vague. Though there are rules for pollution prevention plans, there are no requirements over the content, aims, objectives and goals of such plans. The model plans and the guidelines over the conditions under which pollution prevention planning is appropriate have no legal force. Thus, there is no mechanism whereby the government can ensure that pollution prevention plans will be effective, since only the form of plans, not the content, is regulated.

Compliance with pollution prevention plans is not easily secured. Pollution prevention plans must be kept on site. Those required to prepare pollution prevention plans have to file a declaration with the minister that the plan has been prepared and is being implemented, then a declaration that the implementation of the plan has been completed. These declarations cannot determine the content of a plan, though the minister can stipulate the content of a declaration. Whether these declarations are public is not clear, but there are no circumstances under which pollution prevention plans are made public. The minister can order plans to be sent to the government to assess prevention and control measures and he may make these orders public, but not the plans themselves.

Why the federal government is so timid over pollution prevention plans: Roughly, the federal government can only regulate substances of national concern. Further, pollution prevention requires action within workplaces, not at the end of the waste pipe. But processes, practices, procedures and action within workplaces are under provincial, not federal, jurisdiction. Taken together, this means that the federal government will attempt to regulate only individual substances, not workplaces, and it will do everything possible to avoid inspections and compliance measures over pollution prevention that would give rise to jurisdictional issues with the provinces. While plans must be kept on work sites, it is clear that the federal government has no intention whatsoever of entering work sites to scrutinize pollution prevention plans. The government can order plans to be submitted to Ottawa, but even then it has nothing but the word of the employer in the declarations to ensure that pollution prevention plans are adequate and are being properly implemented. In other words, verification is impossible.

To make the limited provisions over pollution prevention plans work, the federal government should appoint provincial inspectors as the agents of pollution prevention, much as it does under the Fisheries Act, with enforcement powers and obligations to report on the state of compliance. Some provinces might not welcome this arrangement because of its implicit recognition that the government has powers in workplaces under provincial jurisdiction.

Within the context of part 4, CEPA could still do more to make pollution prevention planning effective. It could: (1) speed up the process for determining whether substances are CEPA toxic and adding them to schedule 1; (2) liberalize the definition of CEPA toxic so that the number of substances on schedule 1 are substantially increased; (3) make pollution prevention planning mandatory; (4) specify the content and goals of pollution prevention plans; (5) make pollution prevention plan summaries available to the public; (6) disclose pollution prevention plans to the public in the event of non-compliance; and (7) empower provincial inspectors to enforce pollution prevention planning with reporting requirements over compliance records.

A new approach to pollution prevention: CEPA, part 9. Even with these moves, the federal government needs to acknowledge that its pollution prevention provisions in part 4 have reached a limit and that pollution prevention as a national goal cannot be realized in part 4 of CEPA. As it stands, part 4 is an isolated and feeble little program. There is no requirement to integrate pollution prevention into the national pollutant release inventory, and it bears no relation to the government's regulatory powers over toxic substances. A new approach to pollution prevention is needed.

The tools to do this are at hand. In part 9 of CEPA, the government has given itself the power to make regulations over pollution prevention and pollution prevention plans for the entire federal workplace jurisdiction, both public and private sectors, in the form of federal works and undertakings. Here the government can regulate the whole workplace, not just individual substances of national concern. The Canadian Labour Congress, in its National Pollution Prevention Strategy, has urged the federal government to exercise leadership by instituting strong pollution prevention requirements for federally regulated industries. The provinces should follow the federal model. A national standard of pollution prevention would be achieved by attacks on toxic chemicals, the revenue to be transferred to those provinces whose pollution prevention legislation and compliance policy meet the federal standard.

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Thus, the focus of attention on pollution prevention should be shifted from part 4 to part 9 and the government urged to bring forth pollution prevention regulation under part 9, with the improvements that we have noted in the context of part 4.

We cannot expect the government to move forward with a national scheme of taxing toxic chemicals right away. But the least it could do is to give itself the statutory power. It can do this by adding green taxes to the list of powers to institute economic instruments in clauses 322 to 328. To fail to do so would be to confine the federal program to yet another decade of obsolescence.

Workers' environmental rights: Bill C-32 does not institute the legal right to refuse to pollute; nor are there any provisions for joint union-employer activities, for example in the form of joint environment committees. This is particularly important because workers are required to report releases in contravention of regulations in clause 212 of CEPA, but have no legal right to refuse to break the law.

The bill does extend whistle-blower protection for employees who report violations of the act to inspectors, from the public sector to the whole federal workplace jurisdiction, public and private. This is a welcome move. It is found basically in clause 16, with similar language in such clauses as 96, 203 and 213.

An employer who disciplines, dismisses or harasses an employee for blowing the whistle is guilty of an offence under the act. However, the remedy for an aggrieved employee is not clear. They can demand from an inspector that the matter be investigated and legal action taken. An alternative is to demand an investigation and action on the part of the minister. But it is clear that neither clause 17 nor the enforcement provisions were designed to deal with discrimination against employees, as subclause 296(1) makes clear.

We need clarification in the terms of Bill C-32 as to how workers' rights are to be secured. By far the best method, used in other jurisdictions, is to have such cases heard by the labour boards, with full powers to order employers to reinstate dismissed employees, and to make them whole.

All of this is respectively submitted by the Canadian Labour Congress. Thank you.

We're prepared for questions, Mr. Chairman.

The Chairman: Will Mr. Middleton or Mr.—

Mr. Dick Martin: The service employees are part of our delegation. He has no brief. Thank you.

The Chairman: Thank you. Then we will start right away. There's a lot of material before us, for which we thank you.

I suppose Mr. Gilmour can go first. Please go ahead.

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

Each one of you in your briefs has expressed a desire that the bill should include the legal right for workers to refuse to pollute. It sounds noble, but the difficulty I have is how do we achieve it? We all drive a car, or most of us do, and they pollute. If you're a smoker you pollute, depending on whose definition you're using.

So the difficulty I see is trying to craft something that covers the ground we wish to cover but that then can't be abused on the other side. Perhaps you could enlighten us on how you see we would find that middle ground, to make it a legal right not to pollute but then not to have that abused.

Mr. Dick Martin: The Yukon legislation has this already, and to our knowledge it's working rather satisfactorily. I'd recommend the committee have a look at the Yukon legislation. I don't have it here with me, but I'd recommend that you have a look at it.

Mr. Louis Erlichman: I can understand the general notion, but I think you can limit it to say you should not be allowed— There are specific toxic substances. You can be more explicit about what pollution involves. Obviously, pollution at some level can be very broadly defined. But you can put within the legislation what constitutes dumping toxic substances, for example.

Our members, say, in the federal jurisdiction, working in an airport, should be in a position where, for example, if there are toxic wastes coming off an airplane— and again, it's not an easy thing, because they may not know what is exactly coming out of that airplane. But they should be in a position where they shouldn't have to pollute and potentially have some kind of liability themselves, as Colin said.

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So there is certainly a way to do it without just generalizing and saying, well, everybody smokes, people drive cars, they pollute. There are certain standards you have to set up within the legislation that people should have the right to avoid doing—

Mr. Colin Lambert: The dilemma is the same in the occupational health and safety legislation. Everyone has the right to refuse to do work they consider unsafe. But there are restrictions on what is safe and what isn't safe, very often governed by the law already in place. If you're exposed to a toxic substance that is above the limits that are spelled out in the law, you have the right to refuse to work in those conditions. What has happened over time is that the health and safety inspectors—and in this case it would be the environment inspectors—have become the arbitrators of what is right and what isn't. It's been the boast of many jurisdictions across the country that they'll respond immediately to a work refusal. It's much more difficult to get them in on a complaint about health and safety, but they respond immediately to a work refusal.

So all of the problems that were raised before the right to refuse came in never actually came to happen. In fact, there weren't massive shutdowns of workplaces all across the country and slowly we've seen the right to refuse become less and less. There was an initial flurry in the beginning, which wasn't huge, and it became less and less. Gradually there has built up some legal interpretations around what the right to refuse is, the same as there will be around the right not to pollute.

Mr. Bill Gilmour: I appreciate your answer, because I was having difficulty. In fact, one of you used the example of the airport, and de-icing the planes uses some fairly nasty chemicals. A worker could say, well, I don't feel I want to use those chemicals, because they're polluting the atmosphere or whatever. And the legislation would have to be crafted— and I appreciate your point that probably it would take arbitration on a number of cases to kind of meld it into the arena that we want to be in.

Mr. Louis Erlichman: That's a very good example. The de-icing fluid itself is ethylene glycol, which is the same as your windshield washer fluid. But they're getting fancier with the way they put it together. They have these nice gels that stick on the airplane until they reach take-off speed and then they slide off. It's very difficult even to find out—these are manufacturers' secrets—about what is actually contained in those things. We have doubts about how healthy those things are.

I think you're making a case for a requirement for broad pollution prevention requirements. Right now the only thing that constrains the release of those chemicals is that there's run-off from the airports that kills a certain proportion of fish in streams by the airports. Under the Fisheries Act there's nothing else stopping them from sticking God knows what on those wings, and it's certainly our members, amongst others, who are doing that. They're not terribly happy about doing that, but right now there's nothing in this legislation that would bring about some kind of strategy to stop those things being done.

Mr. Bill Gilmour: Thank you.

The Chairman: Mr. Casson.

Mr. Rick Casson (Lethbridge, Ref.): Mr. Erlichman, you mentioned in the final part of your presentation that there's something missing in this legislation regarding the effects some actions might have on communities and workers, and you suggest that explicit programs must be developed to support transitions for affected workers and communities. I'd like to know what you mean by that. Are you suggesting it be part of this bill?

Mr. Louis Erlichman: The congress actually has a working committee right now looking at developing strategies for transition. Whether or not it's specifically part of this bill, it clearly is an integral part of any kind of pollution prevention activity.

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If you decide a certain substance or a certain process has to change for the good of the environment, that has an impact; industrially it has an impact on a community. Some cases have to do with toxic substances; in some cases there are other environmental reasons.

We need to develop programs to spread that burden and to make sure that, one, the individuals who are involved directly or indirectly in the process don't pay the price, and two, that often small, isolated communities that are dependent on particular activities also don't pay that price. It's only a practical matter. You're not going to get these changes unless you have that. The people directly affected are going to be fighting it. They're going to be put in this intolerable position of fighting to pollute if it means their jobs and their communities are going to be very adversely affected.

So it really should be an integral part of a pollution prevention program to look at what— If we make this change, let's say we decide this process or this chemical is toxic and is environmentally unhealthy, who does it affect directly? Who does it affect indirectly? How do we deal with that effect?

As politicians you should understand that you should be looking at how what you do affects people. It should be an integral part of pollution prevention plans. There isn't actually a lot of detail about pollution prevention plans in this legislation, and one wishes there were more.

Mr. Dick Martin: It's a good question, and Mr. Erlichman has given a good reply.

To elaborate a bit, I'm chairing a just transition committee, as pointed out, of the Canadian Labour Congress. This is in response to a number of issues, but certainly a response that we see on the horizon in the not-too-distant future to the issue of global warming, which is going to affect communities in coal mining, in the oil patch, in logging practices, in the automotive industry. When you start thinking about it, it's going to affect an awful lot of different industries throughout the country and, as you pointed out, at this point in time, communities based on natural resources. We've seen the problems in terms of logging at this point in time, trying to preserve the forests, at the same time trying to preserve communities, but sometimes there is no way around it and the community is decimated. Workers lose their jobs. Everybody in the community loses their homes, their largest investment. It's going to be seen across the country, from coast to coast.

We really think the government has to take a realistic and positive view of this if they're ever going to deal properly with the issue of global warming or other environmental things that we're addressing today. We're talking about funds for communities and displaced workers, their homes and such. As Mr. Erlichman pointed out, there's fierce opposition, by our members in many cases, to environmental change because their whole livelihoods, their whole future, their families are affected.

We think in every piece of legislation dealing with at least environmental issues, but sometimes even occupational health and safety issues or conservation, the issue of just transition should be addressed.

The Chairman: Mr. Charbonneau.

[Translation]

Mr. Yvon Charbonneau (Anjou—Rivière-des-Prairies, Lib.): Mr. Chairman, I would like to thank our witnesses who, on behalf of the Canadian Labour Congress and some of its member unions, have shared with us this morning very openly and honestly their views on the bill now before the committee. Thank you.

Their message to us is quite clear: to all intents and purposes, they have called for the withdrawal of this bill, painting it as an initiative which does not serve the public or workers very well and which is intended to serve some other purpose.

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There is one question that I would like us to discuss. As my colleague, Mr. Gilmour, mentioned, you would like the bill to give workers the right to refuse to pollute. You further suggest that the bill make provision for joint worker-industry committees. You want the federal government to assume some leadership, at least with respect to workers in sectors under federal jurisdiction. I believe these proposals warrant some consideration.

As unions, do you intend to make similar demands during your next round of collective bargaining? Does CUPE, which is very active in federally regulated industries or sectors, have plans to include these demands in its next contract talks?

I ask the question because history has shown that it is often gains secured by workers and enshrined in collective agreements that have paved the way for progressive laws. We have seen this happen in many areas, including health and safety. Often, collective agreements have laid the groundwork for legislative change.

Could you give us your analysis of the situation and tell us whether you intend to make these demands part of your next round of collective bargaining? Have you tried to make similar demands in the past and were your efforts successful or unsuccessful? If they were successful, it means that you were able to set some precedents. It would be interesting to see if, in a particular area or round of bargaining, you were able to get certain employers to make some concessions. That might help us understand the situation a little better and validate our efforts as parliamentarians to try and have laws acknowledge the kind of work you do.

[English]

Mr. Dick Martin: Mr. Chairman, I'll attempt an answer first.

It is the policy of the Canadian Labour Congress to urge our affiliated unions to make this demand at the bargaining table for joint employer-employee committees on the environment, very similar to what we have demanded in the past on occupational health and safety legislation, which has resulted in legislation basically across the country, with the exception of Alberta—not surprisingly.

We have also been successful in some places. The steelworkers have made some demands in some places and have achieved it, and the auto workers, in their bargaining with the auto makers, have achieved it. Some of the auto makers have joint committees on environmental issues.

So it is a policy and we are pressing forward and encouraging and urging our affiliates to make this one of the demands at bargaining.

I can let my colleagues speak for themselves on their particular areas.

Mr. Louis Erlichman: It's an excellent idea and it's something that we certainly are pursuing.

To come back—I talked a little bit about the airports—one of our problems at the airports, and it has to do with more than just environmental issues, is that it isn't necessarily our employers who are doing this. We're not necessarily dealing with employers. We are having problems even in terms of airport authorities that are now independent—I'm not sure exactly how you want to define them. We have airport authorities suspending our members for apparent breaches of security or breaches of driving regulations on the tarmac or something like that.

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We could have the best language in the world in our agreement. Our members may be working for an airline or for a service company; they're not working for the airport. So while it's a good idea to have joint committees and the right to refuse in your collective agreement, it still may not protect you, which is why it's important that it be in the legislation as well.

Mr. Paul Middleton (Union Representative, Service Employee International Union): I'd like to get in at this point just to point out to the member that our union, a member of the Canadian Labour Congress, was in receipt, actually this last week, of a document put together by the congress, which has three sub-documents as part of it, basically outlining in union collective bargaining agendas where you might put forward proposals on health and safety and environment. There are actually citations from a good number of unions across the spectre, both industrial and public sector endeavours, everyone from the United Food and Commercial Workers Union, the steelworkers, secondary school teachers, the Canadian Union of Public Employees, auto workers, nurses unions, and government service employees like our own union that have actually language of a genesis nature, just starting out, trying to carve out these sorts of jurisdictions.

Certainly it's an uphill battle, though, you must appreciate. In a day and age of government cutbacks, this is being reflected in the bargaining environment, whether it be provincially or locally. Our union in hospitals, for example, and nursing homes— although we will promote such language and are interested in doing so, the employer we meet with always has a ghost at the bargaining table and that ghost is the government that does the funding. So when we meet with an individual hospital employer or a municipal employer, they are most anxious about the downloading and the cuts they're faced with. They're not exactly open to even good endeavours in this regard. It's been a long, hard struggle over 10, 15, 20 years to get good strong health and safety language in contracts. Most of our contracts have good strong health and safety legislation, backed up, though, by hopefully very strong and stronger provincial and federal legislation.

I think at the very least what we would like to see as members of the union movement is not “you wait for us” but let's go forward together in tandem and hopefully all sing from the same song book.

The title of this document shows a canary liberating itself from a cage, and that goes back to the historical context of canaries in cages. Let's not make workers the canaries in the cages in the mines that have to bear the burden of the first onslaught for health and safety and environment. Do we have to sacrifice our workforce, whether it be in the mines or in the hospital hallways, before in fact public legislation catches up? We say no. Those historical contexts have proven that this is a very draconian way to advance social well-being in society. Let's try to anticipate. We have enough scientific data. We have enough good social and economic data to say this should be done. Let's not wait for the workplace to be sacrificed before we say oh, yes, it should be done. At least let's go forward in tandem.

I think these sorts of endeavours, where we're very appreciative that the labour movement is being consulted today, leads us to believe that that may very well be possible, and we look forward to that.

Thank you.

Mr. Colin Lambert: CUPE is attempting to get our health and safety activists, the people who already sit on joint committees, much more interested in the environment. We're fairly new to the environment as a national issue for us. Our first task has been trying to get the health and safety people more involved in environmental issues, and I think a natural outcome from that will be joint environment, health and safety committees in the workplace.

However, I'd like to raise another issue that has our union beginning to worry very much about collective bargaining agreements. A couple of recent rulings by courts in Saskatchewan, one involving one of our unions, have said that the officials who administer the occupational health and safety law have no right in the workplaces where collective bargaining agreements have health and safety language in them. The Government of Saskatchewan is appealing that, as are we and the Federation of Labour. But if this holds, it literally means that once you put something in your collective agreement, you lose your protection by the enforcers of the law of the country, that the courts are squashing orders written by those inspectors saying they've exceeded their jurisdiction. So it gives us great pause to think about where we're going with collective bargaining if it means it takes away all our members' rights from the laws of the land.

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It can be extended, of course, into the environment once you start putting those in. It started out with a worker's compensation case. It then went to a human rights case, and they were ruled against there, saying the Human Rights Commission had no right to hear it because there was contract language. Now the latest one is a health and safety issue, the right to refuse, and the order was quashed by the judge. So we have some real concerns about that, which your committee may like to think about.

[Translation]

Mr. Yvon Charbonneau: I want to thank our witnesses for shedding some light on the subject. I also congratulate those unions that succeeded in setting some precedents or in making some headway in this field. I urge them to renew their efforts to make known each of the precedents they may have set. This will help lawmakers assume their responsibilities. Thank you.

[English]

The Chairman: Mr. Bennett, very briefly, please.

Mr. Dave Bennett (National Director, Health, Safety and Environment, Canadian Labour Congress): Thank you, Mr. Chair. I'd like to just briefly add to what Dick Martin has said about the CLC's approach to joint environment committees in the workplace. The recommendations have been developed really over the last 10 years with the full participation of the CLC's own environment committee, and what we're recommending is that workers and unions attempt to set up joint environment committees in the workplace.

But they can do it in one of two ways. One, which Colin Lambert has mentioned, is to try to extend the mandate of existing health and safety committees to the environment. The other way is quite simply to regard environmental issues essentially as different from health and safety and to set up a new joint environment committee in the workplace. Some unions, and the steelworkers are the most important example, have chosen the former route, to extend the mandate of joint health and safety committees in the workplace. Other unions, such as the auto workers, have adopted a pragmatic approach whereby in some cases they have succeeded in extending the mandate of a joint health and safety committee.

In other cases they've had their own environment committees inside the workplace, that is, the union's environment committee. And incidentally, this requirement to set up a union environment committee within the local unit is included in the Canadian Auto Workers' constitution. The union then moves from that position of having their own committee to going to the employer and saying they now want to set up a joint environment committee in the workplace. In some cases that has been accepted by the employer, and the auto workers in fact have several examples of autonomous joint environment committees in the workplace.

So when Mr. Charbonneau asks for concrete examples, these concrete examples already exist. They're part of a move on the part of the congress to establish this pattern throughout the country so that when we come to your asking for legislation on the issue, we have a track record to demonstrate that in fact the congress is acting along these lines.

The Chairman: Thank you.

We'll now turn to Mr. Laliberte, followed by Madame Kraft Sloan, Madame Girard-Bujold, Mr. Pratt, Mr. Herron and the chair. Mr. Laliberte, please.

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

Mr. Martin, you raised an important comparison between part 4 and part 9, and I never quite looked at it that way. But the two issues of pollution prevention and whistle-blowing come under two separate jurisdictions here. Part 9 in the whistle-blower protection deals with the fact that federal undertakings or federal employees are completely in a different category than public. But federal lands and federal undertakings are very limited and, according to our government's role recently, more limited every year. They are being privatized or commercialized or contracted off or harmonized, decentralized.

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You're recommending that this act would be a lot stronger if we completely took the federal jurisdiction as an example and put it throughout for all Canadian jurisdictions. Why couldn't it be done? Is it possible? Have you looked at it? You seem to have discussed it, but I'm not sure— What's limiting us? What's stopping us from doing that?

Mr. Dick Martin: I'll let Mr. Bennett reply to part of it, but it's political willpower. First of all, you have this constant fight by the provinces on the federal jurisdiction, and we sympathize with the federal government in many of those cases and the never-ending battle over provincial-federal jurisdiction. At the same time, we believe the federal government could win that battle legislatively and even constitutionally if they really wanted to take it on.

The fact of the matter is that over history, the federal government was supposedly setting the lines, setting the stage, for different types of legislation in the country with a presumption that when it was set the provinces would follow. That's not necessarily so anymore. It's not necessarily so on the part of the federal government for not exercising their mandate and allowing the provinces to erode their jurisdiction. Perhaps some of it is a legality, but we don't think it really lies in the area of legality as much as it does in willpower.

Mr. Bennett might have something further.

Mr. Dave Bennett: I'd like to echo what Dick Martin has said. If the federal government wants to move in these directions, it really is a matter of political will.

If you actually look at the definitions in the bill and the requirements for federal works and undertakings in part 9, you'll see that it's quite clear that part 9 applies to all industries, activities, and lands under federal jurisdiction; that is, it applies to private industries as well as to federal lands and public sector undertakings such as crown corporations. What we're really dealing with in part 9 is exactly those industries that are covered by the Canada Labour Code, which is of course a national act. It's the federal jurisdiction over workplace health and safety. So here we're dealing with a very large number of industries, activities, and institutions.

As a matter of fact, the federal jurisdiction in workplace health and safety is actually the fourth largest in the country. It comes after Quebec, Ontario, and British Columbia, but it's ahead of Alberta actually. So you're dealing here with really a very substantial part of the federal authority over the environment.

The second thing to note here is, look, there is quite clearly an issue of the federal authority over the environment vis-à-vis the authority of the provinces and the territories. If the federal government were to move in the direction that the Canadian Labour Congress is suggesting, focusing its efforts on the federal workplace jurisdiction, there is surely no argument whatsoever that the federal government has the right and the authority to regulate, as one environmentalist put it, in its own backyard. The elegance, if you like, of what the CLC is suggesting is that we have a national scheme—we're proposing a national scheme—for the implementation of pollution prevention, but it's done in a way that does not offend provincial sensibilities.

To add to that, and in a sense to say something in the opposite direction, what we're proposing is a radical new and different approach to the implementation of pollution prevention by the federal government. What we have tried to do is give the committee arguments for supposing that the whole approach the federal government is taking over pollution prevention and its relation to parts 4 and 5 of CEPA is fundamentally misguided because there is a mismatch between the aims and the content of pollution prevention on one side and how the federal authority and the federal acts, namely CEPA, are trying to deal with it. What we're proposing is something that's really rather different from what many environmentalists are presenting to you now. We're suggesting that yes, there is more the federal government can do over pollution prevention under part 4, as it stands now, but basically if you try to do more this way you're not going to get anywhere. You need a fundamentally different approach, and that approach is embodied, Mr. Chair, in part 9.

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The Chairman: Thank you, Mr. Bennett. If that were the only mismatching on the federal scene, we would be in great shape. Nevertheless, let us try to avoid the temptation of transforming this session this morning into a mini federal-provincial conference. Otherwise, we will never come out of it.

Mr. Laliberte, do you have another question or can I move to the next—

Mr. Rick Laliberte: I think I just want to concur that the federal definition of departments, boards, agencies, federal works, undertakings, aboriginal land, federal land—it seems like the government is willing to exercise the full jurisdiction of CEPA. We would like to see it within its jurisdiction, but it's very small. When it's influenced by provincial politics and the industry lobby, we go into grey matter, but it's very clearly, in black and white, under federal jurisdiction on whistle-blower and environmental protection, pollution prevention. That's how you made it clear to me and I thank you for that.

The Chairman: Thank you, Mr. Laliberte. Madame Kraft Sloan, followed by Madame Girard.

Mrs. Karen Kraft Sloan (York North, Lib.): Thank you very much. I want to compliment you on your very comprehensive brief and the particular areas you've taken a look at.

Last spring, when we had some industry representatives come before the committee, they indicated they were quite pleased with the type and amount of consultation they had with Environment Canada officials outside of the committee process. All of the industry representatives have encouraged us to have speedy passage of this particular legislation.

I'm just wondering, because we're seeing you as national representatives of very large labour organizations, what kind of consultations you have had with Environment Canada officials outside of committee on Bill C-32.

Mr. Dick Martin: On this particular bill, C-32, not a heck of a lot. I have to say that the relationship of the Canadian Labour Congress with Environment Canada has gone from reasonably good to reasonably bad to bad, and it's not very existent these days at all. Of course, as everyone knows, with all the resignations and the shake-up, many of the officials we have had a relationship with are no longer there. In fact, I have just written a letter to the new deputy minister asking for a meeting with him to discuss a number of environmental issues that we're concerned with. Hopefully he'll respond in the positive and we can establish a better relationship and consultation. But it leaves an awful lot to be desired in the last few years.

Mrs. Karen Kraft Sloan: Mr. Lambert, in your brief you went into some very specific areas, particularly on whistle-blower protection and the right to refuse to pollute. I'm just wondering—when you referred to the committee report you saw some other kinds of things that the committee should consider in making amendments to this legislation—if you would care to cover a few of those points from the report, other than what you've covered in your brief.

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Mr. Colin Lambert: I was referring to your 1995 report where you made specific recommendations.

Mrs. Karen Kraft Sloan: It's About Our Health!

Mr. Colin Lambert: When we saw the recommendations that came out of the committee we were very optimistic that there would be some meaningful changes to CEPA. We think they're the basis for a really good environmental protection act. Your whole report is worthy of reintroducing, I think. I think that's the basis on which we could fully endorse a new CEPA.

Mrs. Karen Kraft Sloan: Okay, good. Are there any comments? I know Mr. Bennett and Mr. Martin came before the committee at that time.

Mr. Dick Martin: That's basically where we're at.

Mrs. Karen Kraft Sloan: Okay, good. Thank you very much, Mr. Chair.

The Chairman: Thank you.

[Translation]

Ms. Girard-Bujold, followed by Mr. Pratt.

Ms. Jocelyne Girard-Bujold (Jonquière, BQ): Thank you all for your very interesting briefs. I'm very pleased to make your acquaintance since you represent the workers who will be responsible for applying this legislation.

You state in your preamble that over the past several years, Environment Canada's budget has been slashed by 30 percent and that staff levels have also been reduced dramatically. You also note that this bill will not contribute to the attainment of environmental protection goals.

All of your submissions cover part 4 of the bill which deals with pollution prevention. The Canadian Labour Congress' brief in particular focuses on this subject, pointing out that the provisions respecting toxic substances are ridiculous. Currently, only 26 substances are categorized as toxic and over the next several decades, 12 more substances are expected to be added to this list. You say that there is no flexibility in terms of pollution prevention planning. You also alluded to prevention plans and to planning in general.

As worker representatives, do you believe the legislation should contain measures to prevent pollution, which is our ultimate objective? What provisions should be spelled out in these prevention plans? Thank you.

[English]

Mr. Dick Martin: Well, as we say in our brief, you can't just be focused at the end of the pipe, at the end of the waste. You have to be focused on the production; you have to be focused on the inside production. Our members are both at the waste end and at the production end. Consequently, there has to be a lot more inspection and enforcement inside the operation. There has to be strict legislation with regard to what chemicals or such are being manufactured, how they're being manufactured, and where they are sent to do with what. It's a matter of education, but it's a matter of enforcement.

If you look at page 4, we have a number of recommendations that could make pollution prevention planning effective. It's the second paragraph, where we go through seven items. If the committee put those in and the government accepted it, it would make it much more effective in terms of addressing what is hopefully the objective.

David, do you have—

Mr. Dave Bennett: I think the first and most obvious thing the government should do is spell out what is meant by a pollution prevention plan; spell out its contents, its expectations, and its goals. Then make these mandatory, both for individual substances in part 4 and for the whole federal workplace jurisdiction in part 9.

There has been some work done on the notion of a pollution prevention plan. A study was done by Resource Futures International on pollution prevention plans. I can't remember if it was done for government or whether it was done for this committee, but it really was a very feeble set of questions that RFI was asked to investigate, and the results of the study were equally feeble. If you ask the wrong questions, of course you're going to get the wrong answers.

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What should have been asked was— well, it shouldn't be questions like what are the formalities whereby a pollution prevention plan goes from the workplace to government, or arrives in the hands of a joint committee in the workplace, or questions like that. It should have been what is a pollution prevention plan? Look at its content, look at its goals, then look at how this pollution prevention plan will in fact be implemented in the workplace.

The irony is that there is a huge great amount of experience with pollution prevention plans, partly in northern Europe, partly in the United States, and in particular in the commonwealth of Massachusetts, which has a toxics use reduction act that requires pollution prevention planning and requires of employers at least three different types of pollution prevention plans.

Now, the director of the institute in Massachusetts, Dr. Ken Geiser, has been invited to Canada on many occasions. I've had the impression, first of all, that when he's asked, he's always asked to talk to the wrong people, because he's asked to talk to people who have no influence whatsoever in the implementation of pollution prevention plans; and secondly, whatever he recommends, whatever experiences he relates, seem to have made no impression whatsoever on anyone in the Canadian government, and even in the whole environmental constituency in Canada. So far, there's been a missed opportunity in actually finding out what pollution prevention plans are, how they work, and also, above all, what pollution prevention plans achieve.

The Chairman: Merci, madam.

Mr. Pratt, please, followed by Mr. Herron.

Mr. David Pratt (Nepean—Carleton, Lib.): Thank you, Mr. Chair.

I'd like to thank our witnesses as well for appearing here today. I have certainly found their comments interesting and helpful. I do, however, need some clarification with respect to the presentations that were given by Mr. Martin and especially Mr. Lambert.

Mr. Lambert, you mention in your presentation, under the heading of whistle-blower protection:

They

—referring to workers—

have no legal right to refuse to pollute, however, if they do participate in an act that contravenes the law, they are required to report the contravention to the authorities. They can then be held accountable for their actions and be charged for participating in the contravention. We believe that their rights under the Constitution are violated. Every citizen has the right to invoke the section of our laws that provides protection against self-incrimination. Given this situation, it is highly unlikely that workers will comply with the requirement to report unless they have the right to refuse to pollute.

Now, in Mr. Martin's presentation, he talks about the whole issue of whistle-blowers under workers' environmental rights, and says:

The Bill does extend whistle-blower protection for employees who report violations of the Act to inspectors, from the public sector to the whole federal workplace jurisdiction, public and private. This is a welcome move. It is to be found basically in Section 16, with similar language in such Sections as 96, 203 and 213.

Now, looking at clause 296, which talks about environmental protection alternative measures, subclause 296(3) says:

(3) No admission, confession or statement accepting responsibility for a given act or omission made by a person as a condition of being dealt with by environmental protection alternative measures is admissible in evidence against the person in any civil or criminal proceedings.

It's a very serious charge that you're making in terms of the right against self-incrimination, but I'm just trying to understand where you draw that conclusion. Is it an act of commission in terms of the legislation itself, or omission in terms of something that might have been left out?

Mr. Colin Lambert: I don't believe the whistle-blowing requirements that are spelled out in the bill will greatly affect what workers do in the workplace unless they have a legal protection against self-incrimination, and you say that's there, but also—

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Mr. David Pratt: I'm not aware— I'm just reading from that particular clause, and it appears to be, based on what I've read. But if you have other information that you could provide us, I'd certainly be interested in hearing about it.

Mr. Colin Lambert: No, I don't. I assume maybe you're right about that, but I have had this feeling that workers are not going to use their right to refuse, their right to blow the whistle, if they don't have the right to refuse to do it in the first place.

Two things are happening. One is that whistle-blowing legislation is an after-the-fact legislation, right? As we said, you can still end up on the wrong end of the stick, because if you've lost your job, even though you're protected under the act and you have to go through two years of arbitration to get it back, it's kind of useless and it will discourage workers from blowing the whistle.

It would be much better if they could have the right not to do it in the first place. If they believe there's something serious happening to the environment, so serious that they should be reporting it, they should have the right to refuse to do it in the first place and then have someone come in who can stop it. So without that right to refuse, which is similar to the health and safety legislation, there will not be many workers using the whistle-blowing sections of the legislation, I think.

Mr. David Pratt: Even though their anonymity appears to be protected under the legislation as well?

Mr. Colin Lambert: Well, it may be, but it certainly won't be protected from their employer. Their employer will know who blew the whistle. If you say it's protected under the legislation, then I'll bow to that opinion, but you're still stuck with the issue that discrimination will take place after that, because they don't have a right to refuse. I'm not sure that environmental inspectors will be able to really police that part, because it gets into the whole area of labour relations, in which environmental inspectors certainly have absolutely no expertise.

So if after you've blown the whistle you're protected by the law but you're then fired for some other reason—you were insubordinate, you swore when you did it, or all the other reasons for which they manage to get rid of you when they don't like the things you do—I don't think the environmental inspectors are going to have much success unless they have a good law similar to the occupational health and safety law, that gives them room to move, to write orders, to stop those kinds of contraventions.

Mr. David Pratt: Okay.

Mr. Dick Martin: Just to quickly elaborate on it, that's why we say in our brief there has to be better clarification in terms of Bill C-32. We're recommending that the labour board be empowered to reinstate dismissed workers, or make them whole, because we're addressing the issue that not everybody is unionized. Obviously if you're in a unionized workplace you have some recourse through the grievance and arbitration process, but if you're not organized you're really sitting out on a limb, exposed. Where do you go for assistance in the first place? How do you exercise your rights? How do you get hold of and go through the law?

That's what we think is critical. It seems to be there, but how do you put it together? As Colin says, they won't use it if they're not certain they can't be dismissed or discriminated against in some way.

Mr. David Pratt: I suppose in some respects the same outcome would apply. If a person refuses to do work in a particular area, if they're given that right to refuse to pollute, at some point in the future they may be the subject of some harassment or dismissal by their employer.

Mr. Dick Martin: Except that, once again, if you have a grievance and arbitration process you have a better chance of having justice. If you don't, you're once again sitting out there.

Mr. David Pratt: Well, there are remedies in the courts that apply in terms of unjust dismissal as well for people who aren't protected.

Mr. Dick Martin: I can assure you that for workers that's kind of remote, to be blunt about it.

Mr. David Pratt: I suppose it depends on the worker. It depends on the situation.

Mr. Colin Lambert: However, if it's similar to the occupational health and safety law, the onus is reversed. In fact, past jurisdiction allows the employee to make the accusation and the employer has to prove that he wasn't dismissed for blowing the whistle. So it's a different level of proof in arbitration cases, which has made a hell of a difference in discriminations in health and safety cases.

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Mr. David Pratt: Thank you.

The Chairman: Thank you, Mr. Pratt, for bringing out these practical aspects also in this exchange on the question of whistle-blowing. Perhaps as a committee we should at least look at ways of improving the wording in the bill so as to make it more precise and possibly more effective. We'll certainly have a look at it to see what we are able to do ourselves at this stage.

Mr. Herron, followed by the chair.

Mr. John Herron (Fundy—Royal, PC): Thank you, Mr. Chair.

I have two questions I'd like to touch upon, one related to the voluntary approaches that we discussed as well, and later on one about the reference to devolution to the provinces and the department itself.

My first comment on voluntary compliance is that ultimately I think the objective of the legislation or regulation is to provide the greatest net benefit to Canadians and the environment. All of us have a problem with the term “voluntary approach”, and it has been discussed in this committee on previous occasions that it's too bad we can't come up with a word other than “voluntary”.

Essentially it was my understanding that what the government was looking at doing when they were visiting the voluntary approach issue was to demonstrate, first of all, whether a problem exists from an environmental perspective and whether federal intervention is justified, whether regulation is the best alternative, and whether the benefits outweigh the costs to Canadians, their government and their businesses. Ultimately the provision for voluntary approach is to enable the minister to consider other tools that may not be legally binding but are guidelines in practice that will provide a framework to obtain the net benefits we're looking towards.

There have been some successful programs in industry with respect to responsible care, and the ARET program has been used as well. Don't you see that there is a role for industry to be able to actually have a more flexible framework in order to obtain the net objectives that we're looking at?

Mr. Dick Martin: It becomes a somewhat philosophical discussion to some degree, but we think there is, first of all, certainly no verdict that the voluntary approach has been successful. I know the Canadian chemical manufacturers preach on and on about their program. It may be effective in some companies, but not necessarily in all companies; and our objective—and presumably the government's objective—is to protect all of society and our environment. Consequently, one company can boast about their record, but we have no track record; we don't have any evidence. In fact, we have simply the company's word that it's a fact, and no other evidence.

I've seen no other evidence that the voluntary approach is working. Why are they so concerned if legislation is put forward and they're meeting the legislation already? What is there to be concerned about? You have the legislation, the regulations, and the inspectors; if they're meeting that, why be so concerned?

It raises a flag every time we get into discussion of the voluntary approach as the only way to go. It says to us, well, why are they frightened of legislation if they're meeting the objectives already? You say it's a misnomer, to some degree, on the word “voluntary”, but the term they use all the time, “command and control”—I think I used it before this committee another time—makes us believe that a regulatory system is some kind of Stalinist regime of command and control, which is quite absurd. We're just saying we have to have effective legislation, effective regulations, and effective enforcement. They should not have much to worry about in terms of that if they're doing it already. If they're not doing it, they should have a lot to be worried about.

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Mr. John Herron: I just think ultimately that the two have to dovetail together, the voluntary approach and the regulation, in order to provide some flexibility.

Mr. Dick Martin: We always felt that you used common sense in terms of legislation. You're not going to ever be able to legislate every item that is a particular problem. We've even said, as you see in our brief, that you can use the item in terms of economic means, green taxes, for example, on toxic chemicals. There are other ways, but in general we think everybody should live under the rule of the land. We don't have voluntary highway laws. Presumably if it says 60 kilometres an hour, it's 60 kilometres an hour, whether you're the Prime Minister or a lowly labourer. We seem to have more legislation coming in on highway and traffic concerns, and rightly so in view of some of the tragic things that happen.

We have those who want tough law and order for youth, more legislation on that, but when it comes to polluting the environment, well, we'll just make it voluntary and that's okay. There's really a mixed message here that says to us, let's have tough legislation on the citizens, but we'll leave the corporations alone because they're really good people and don't do any pollution.

Mr. John Herron: You mentioned in your brief that the federal government has led the charge in environmental cutbacks by cutting the department by 30%. It was at one time the seventh largest department and today I think it's around the twenty-first largest department. With this in mind, why do you think handing off some environmental responsibilities would be reckless—I think that was the word used—as you stated in your brief? I know the provinces have actually had drastic cutbacks on a number of occasions as well. For example, in the province of Alberta, they have 700 employees in their respective department while the federal government, in terms of an enforcement perspective, only has two persons responsible for the entire province and for the territories. When I see those kinds of numbers, I'm not as spooked by it.

Mr. Dick Martin: First of all, let me respond, once again going back to the statement that we think the federal government should be leading the way on environmental protection and cleaning up the environment. On the other hand, it's absolutely true that a lot of the provinces demanded more responsibility for their environmental issues within the provinces. I wouldn't say they forced, but they certainly harassed the federal government to give jurisdiction to the provinces. Unfortunately, the federal government seemed more than willing to do that. I don't know for what reasons. I can only speculate. Obviously it was somewhat for economic reasons in terms of balancing the budget, but I think for other reasons, which are political, and I think also because of a lobby by a number of industries.

So we're going to end up with a mishmash of regulations and enforcement across the board. One industry is going to be able to blackmail one province that perhaps is doing a better job on environmental concerns than another province. We'll have them vying for jobs. They can pollute more than they can in the other province. Rather than trying to get a high standard throughout the country— This is a devolution that we take strong issue with. It doesn't, in our opinion, in finality, serve anybody's best interests, certainly not the citizenship.

The Chairman: Thank you, Mr. Herron.

Madame Carroll, followed by the chairman.

Ms. Aileen Carroll (Barrie—Simcoe—Bradford, Lib.): Thank you, Mr. Chair.

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Mr. Martin, I think you've just addressed the question I was about to pose. Mr. Herron moved in that direction, but it was the direction I was going in, which was to refer you to page 3 in your brief with regard to the point that the federal government will only attempt to regulate individual substances, not workplaces, and it will do everything possible to avoid inspections and compliance measures over pollution prevention that would give rise to jurisdictional issues with the provinces. I think you've probably already commented on that. I was wondering whether it would be a misplaced assumption on my part to conclude that you don't think the recent harmonization accord signed between the federal government and the provinces will rectify situations such as the one you described.

Mr. Dick Martin: You're correct.

Ms. Aileen Carroll: Thank you.

Did you wish to comment on that?

Mr. Dave Bennett: Yes. As a matter of technical information, the environmental accords and agreements signed so far don't deal with the relationship between the jurisdictions. They deal with the harmonization of, for example, standards and inspection procedures for the provinces vis-à-vis each other and for the provinces vis-à-vis the federal government. So, technically speaking, the harmonization accord doesn't address the issue that we have tried to cover here.

Ms. Aileen Carroll: That was what I understood.

Thank you, Mr. Bennett and Mr. Martin.

The Chairman: All right. There are a couple of questions from the chair.

Mr. Martin, on page 2 of your brief you make the statement that it could take around a decade to arrive at regulatory action on any given substance. I would like you to elaborate on this. It is our understanding that as proposed in the bill, clause 77, if you like, an appeal can only be taken when the minister decides not to recommend that the substance be listed in the schedule. So there is no appeal where the decision is to place a substance on the list.

How did you arrive at a decade? We are a bit worried about the lack of speed of the existing legislation. We interpret the proposed legislation to actually speed up the process, and here you come and put the pigeon amongst the cats by telling us that it could take a decade. Could you elaborate?

Mr. Dick Martin: I'll let Mr. Bennett respond.

Mr. Dave Bennett: I haven't got clause 77 in front of me, but I'll take your word that appeals can only take place on the grounds that a negative decision has been made by the minister. If that's the case, then you're right, we haven't got a case here.

Look at the experience of CEPA to date. If you look at those substances that have gone through the priority substances procedure, what do you have? You have one set of regulations quite possibly helpful and quite possibly important, but only one very limited set of regulations that are implementing the results of the whole priority substances exercise. I'm told there are draft regulations for a second one, I believe on degreasing agents.

If you look again at the huge amount of activity in terms of investigation, consultation, listing, priority assessment, strategic options, and then the important business of actually having to regulate, the track record of CEPA so far, when you compare the requirements of the legislation to what's actually happened and the amount of work that all parties have had to put into this process, is really very unimpressive.

We would like to reply in response, what is there in CEPA that is going to significantly speed up this process? Why have we any reason to expect that things will be different under the new regime of C-32 than what they have been under CEPA, which appeared in 1988? We can't see anything in the act that gives us any assurance that the process will in fact be speeded up.

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The Chairman: Going back to the record that you're referring to in your brief, there may be good reasons for you to make that statement, because we are told that when it comes to the proposed legislation, there is a clause that says that once the decision is made to list, then two years go by and then the publishing of the proposed legislation can take place after those two years. Eighteen months follow until the publishing of the final regulations is possible. So there you have three and a half years. I wonder whether you have any comments on that.

Mr. Dick Martin: Never mind our statement of ten years; three and a half years seems to me to be an incredibly long time to address something that we're talking about being toxic and should be addressed as quickly as possible. So let us take away that we're incorrect with the ten years, but maybe we're talking three and a half years or five years. Still, that's awesomely slow in addressing what I would consider a serious problem.

The Chairman: The committee probably will address this issue and decide whether or not to propose amendments to shorten this period of time, and the question is, what would be a reasonable length of time in your opinion?

Mr. Dick Martin: In knowing government and how it changes, it seems to me that a maximum would be somewhere in the vicinity of two years, giving due course to investigation and consideration and introducing the necessary rules and legislation. We haven't consulted on that, but off the top of my head that seems like a reasonable maximum limit.

The Chairman: You're doing very well off the top of your head, Mr. Martin, because that is what this committee recommended in 1995, two years.

Yes, Mr. Bennett.

Mr. Dave Bennett: But isn't it still true that the appeal mechanism that stops the clock is still an important part of the procedure? If the government makes a negative decision, that's surely an important part of government activity, and the appeal mechanism is no doubt designed to make sure the government does its job properly. But isn't it wrong that the clock can be stopped indefinitely while the appeal takes place? As far as I'm aware, there is no time limit for the government to deal with appeals, so if the government does nothing, then in theory it could be spread out to a period much longer than three and a half years for activity to be taken.

The Chairman: Thank you, Mr. Bennett.

We can start a quick second round for interested members. Are there any takers for a second round? Yes, Mr. Laliberte, quickly, go ahead.

Mr. Rick Laliberte: On the line of questioning that you had, I do have the clause in front of me, and I couldn't find the issue of a person filing a notice of objection under clause 333. Is that what you were referring to? I'm just trying to follow your line of questioning and understand it. It seems like—

The Chairman: I'm told that clause 91 has these time limitations, and the notice of objection is in subclause 77(8).

Mr. Rick Laliberte: So the minister could publish on a priority substance list, but any person can file a notice of objection and would delay the— That 10-year time limit seems to be quite a real number.

The Chairman: It could.

Would you like to comment?

Ms. Monique Hébert (Committee Researcher): It's my understanding, Mr. Laliberte, that there is a right of appeal only when the ministers determine that they're not going to recommend that the substance be added to the list of toxic substances. This is the negative decision. They're going to say, this substance is not toxic; we will not recommend its listing. And it's only in the case of a negative determination of this kind that there is a right of appeal. This in fact has been one of the concerns of industry. Where the ministers make a positive determination, where they want to list the substance on the schedule, industry feels they should have a right to appeal that decision, and they do not under the current act or under this bill.

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Mr. Rick Laliberte: Subclause 78(1), that's what troubling me. What is that? It seems the minister has made the list public, but any person can file a notice of objection. What is that?

Ms. Monique Hébert: This is one of the time lines in the bill. Basically the bill provides for five years within which to assess substances that are on the priority substances list. Now, if the ministers haven't managed to do their determination by that time, any person can request that a board of review be established to look into the non-action, if you will.

Mr. Rick Laliberte: Okay. Thank you.

The Chairman: If there are no further questions, I will briefly put this indirect question to Mr. Erlichman.

In your brief, Mr. Ritchie is quite right on page 2 to put the emphasis on transition and programs for the management of the transition. It's a subject that actually was discussed and developed at great length at the OECD in the 1980s—the management of transition when communities and workers are affected by technological change, actually. But that terminology can be expanded, if you like. On the Canadian scene, for instance, you have a transition program—you could call it that—in the case of TAGS, as it has been launched in the communities affected by the cod moratorium.

Transition is an important aspect, there's no doubt about that. And I like the way you put it in your brief:

If there is going to be serious environmental action, it will have significant effects on workers and communities, often communities whose current economic base may be destroyed by environmental protection requirements.

The question is, having learned that lesson, to what extent can we act on the preventive side so that in future we do not have communities affected by the necessity of introducing environmental action in order to correct damage caused by processes that have brought about that particular situation? Are you aware of any examples in North America?

Mr. Louis Erlichman: It's a very broad question. I guess in general terms the way you avoid it is to not convert processes to non-polluting situations. It's an argument for comprehensive pollution prevention plans as something integrated in the way companies do business, so that things are set up so you're not in a position after the fact of, first, having to deal with the environmental damage, but second, also dealing with the social damage, the community damage.

I'm trying to think of whether anybody else here has a concrete example to talk about it, because it really is something that has to be built into the way the process develops. And unfortunately, as unions, most of the time we're in a defensive posture; we're protecting our members, protecting our members' jobs, and to some degree protecting the communities they're in. And some of us have been put into a rather unpleasant situation of defending in fact environmentally unfriendly kinds of actions just because the alternative is that our members lose their jobs, their homes, their communities.

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So for us it's fundamental that the process start off, and we don't believe it's going to happen voluntarily. We believe for the most part it's going to have to be a requirement at pretty much every level, going down to reasonably small-sized workplaces, to be looking at how you make them environmentally sustainable. That's the way you try to minimize the transitional problems down the road.

When we were having this discussion about time spans under this legislation—and I guess if you're talking about three and a half years, that leaves out the whole front end of the process, when people are actually looking at the substances and making decisions and all that. If you have transitional provisions in place, it also is key that it be an integral part at the front end of the process in any kind of pollution prevention plan that you would be saying, okay, if we do this, if we change this process, if we stop producing the substance, if we stop using the substance, who does that affect? And it may extend well beyond the particular individual workplace. You have some time to get there if you put that right at the beginning of the process. If you put it at the end of the process, then at best you're kind of in a TAGS situation, where you're throwing some money at some people for whatever indefinite period of time to help them survive.

I'm not sure whether anybody has a better response than that.

The Chairman: It's not a subject that lends itself to easy answers.

Mr. Martin.

Mr. Dick Martin: The Canadian Labour Market Productivity Centre did a study about what labour and management had done in certain communities in response to particular environmental concerns, and it would be useful if you got that. I cannot remember, but the woodworkers were involved in it, the steelworkers were involved in it, and in fact I believe CUPE were involved in certain settings. It gives you an idea of the cooperation and the planning that took place. I don't have it, but if you contact the CLMPC, I'm sure they'd be happy to send that study to you.

The Chairman: Thank you.

Madame Kraft Sloan, please.

Mrs. Karen Kraft Sloan: When we had the discussion originally on the committee around the pollution prevention plan, I saw it as an opportunity to democratize the workplace. If you look at a parallel example—for example, employment equity plans that certain companies, because they are federally regulated or whatever, are forced to have—if employment equity plans are done in a meaningful way, it aids the democratization of the workplace because people are involved at all levels of the organization in making these plans.

Likewise, pollution prevention planning can have the same sort of effect within the work environment, because everybody who's involved—and I mean everyone from the shop floor to the office floor—has a contribution and has ideas for solutions so you can democratize the workplace. If you extend that further into the community, especially when you're dealing with single-resource communities and things like that, you have opportunities that engage people in those kinds of democratic discussions, which are very important and help them make that shift to sustainability.

I think the committee's strong endorsement of pollution prevention planning goes beyond just environmental protection, but shifts into improvements in the organization and can, if undertaken properly, work into the communities as well.

Mr. Dick Martin: We don't disagree with you, but I can tell you that reports from our various committee members of attempts— going back to the question about the joint committees and involvement, some employers fiercely resist any discussion about having a joint environment committee.

I took part in an international conference in Manchester, England, in which some of the British employers said, in a leaked memo, that the last thing you do is allow the union to have any say at all on environmental issues; that is critical. They didn't mind health and safety, but on the environment they figured we were going to find out what their processes were—there was some secrecy in the manufacturing of it—and it would give us a lot of direct say in the management of the company.

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So we don't disagree, but there's an awful lot of education to be done on the employer's side on this particular issue.

Mrs. Karen Kraft Sloan: That's why this process leads to democratization of the work environment, which is the whole process of undertaking meaningful pollution prevention plans. If they're done properly, that means everybody in the organization is involved, and they're involved in a way that gets rid of power imbalances within the work environment, because they have to feel comfortable in making their contribution.

It's like the issue of whistle-blower protection and the right to refuse to pollute. We can make legislation, and it's important for us to give the signal that this is what we're serious about and we're going to enforce it, but also it's easier to do this kind of stuff in an environment where power imbalances have been dealt with and people have comfort and they have opportunities to participate in a meaningful way. I know these are workplace design issues that are still a major problem, even on the verge of the 21st century.

Mr. Dick Martin: It's worth it, isn't it?

Mrs. Karen Kraft Sloan: Yes. But there are some good examples, and we appreciate the work that you guys do as well.

Mr. Dick Martin: Thank you.

The Chairman: Thank you.

We conclude this session, and we thank the witnesses this morning very much indeed. We've had a good two hours, a good exchange. Lots of good material has been brought forward.

This committee will resume at 1.30 p.m. sharp. Thank you.