ENSU Committee Meeting

STANDING COMMITTEE ON ENVIRONMENT AND SUSTAINABLE DEVELOPMENT

COMITÉ PERMANENT DE L'ENVIRONNEMENT ET DU DÉVELOPPEMENT DURABLE

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, October 20, 1998

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[English]

The Chairman (Mr. Charles Caccia (Davenport, Lib.)): We now have a quorum and we can start the proceedings

[Translation]

on Bill C-32, an Act respecting pollution prevention and the protection of the environment and human health in order to contribute to sustainable development.

[English]

We are now in the final stage of reviewing the bill. We welcome today the representatives from the Canadian Environmental Law Association, the Canadian Environment Network, and the Canadian Institute for Environmental Law and Policy. I invite you to take the floor without delay in whichever sequence you wish.

Welcome to the committee.

Ms. Jane Inch (Coordinator, Toxics Caucus, Canadian Environment Network): Good morning. I'm Jane Inch with the Canadian Environment Network. I'll lead off with an introduction to the work of these people who have done detailed assessment of proposed changes to the bill.

The Canadian Environment Network is an organization that facilitates the work of individual environmental groups. In particular, it coordinates activities on federal initiates. The CEN has taken an active role in the past on proposed changes to the Environmental Protection Act. Four years ago we coordinated several submissions that are still available to you and have been in reference for work today.

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The CEN is a non-advocacy organization, so we do not take positions on issues on our own. However, we assess procedures for involvement—citizen participation in legal affairs and government initiatives. In that sense, we have one substantive comment on this CEPA review process. We feel that changing the period of review from five years to seven years is extending this too long in the face of the pace of changes to technology and advancements in the environmental field. I'm referring to subclause 343(1). We would like to propose that the existing five-year period be retained.

My next comments deal with general impressions we have heard from our vantage point of being able to keep in touch with groups across the country. I'd like to report that we have seen three significant concerns come up with respect to the CEPA review. The first one is harmonization. Many people are concerned that the effectiveness of the CEPA will be weakened in the face of the harmonization accord. I think we've heard that at this committee before, and I certainly want to emphasize that.

The next two comments deal with specific technical issues. The first is endocrine disrupters. We've heard many voices that want to ensure that endocrine-disrupting chemicals are captured in the language of this act and the provisions that will protect Canadian citizens from their effect.

Finally, in the field of biotechnology, many NGO groups are interested in seeing this area definitely mobilized and effectively captured within the Environmental Protection Act.

Specific comments on these will be dealt with by two gentlemen who have done a detailed assessment of these fields. I'd like to first turn this over to Paul Muldoon.

Mr. Paul Muldoon (Executive Director, Counsel, Canadian Environmental Law Association): Thank you very much for the opportunity of being here this morning to present our submission. My name is Paul Muldoon and I'm executive director of the Canadian Environmental Law Association. I'm going to allow Dr. Winfield to start, but I just want to make two opening comments.

First, our submission includes some 172 recommendations and over 385 pages of text, and we will not have the opportunity to go through each recommendation and point this morning. Our intention is to outline highlights of those recommendations, try to give some flavour and depth to our submission, and hopefully give some understanding of how we got to those recommendations.

The point I'd like to make is we did not make up 172 recommendations for something to do. It really shows our deep concern about the weaknesses of this bill. It is our view, and I think the view of many non-governmental groups from across Canada, that this bill should only be passed if many of these recommendations are accepted. The depth and length of our submission reflects our really profound concern about the weaknesses of this bill. I'll leave it at that point and allow Dr. Winfield to outline how we'll make our presentation.

Mr. Mark Winfield (Director of Research, Canadian Institute for Environmental Law and Policy): Thanks, Paul.

My understanding is that copies of our brief have been supplied to committee members. We're going to focus our opening remarks today on seven key areas: harmonization; the residualization of CEPA relative to other federal, environmental, and other legislation, with particular focus on biotechnology and new substances; citizens' rights; the definition of virtual elimination; the use of language related to cost-effectiveness in the bill; the issue of endocrine-disrupting substances; and the issue of pollution prevention and emergency planning requirements.

I'm going to deal with the four issues of harmonization, residualization, cost-effectiveness, and pollution prevention. Mr. Muldoon will address citizens' rights, virtual elimination, and endocrine disrupters.

The first issue I'd like to address is the theme of harmonization. This is a theme that was not present in the government's response to the standing committee's 1995 report on the review of the act. In fact, it wasn't present in the earlier draft of this bill, Bill C-74.

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We've seen the addition of a number of clauses related to harmonization in Bill C-32. First, there is a general clause in the administrative duties section, paragraph 2(1)(l), requiring that the act be administered in a manner consistent with intergovernmental agreements. The language of that section appears to make specific reference to the Accord on Environmental Harmonization that was signed in January of this year.

Other clauses appear at 13 other locations in the act that require consultation with the provinces before the taking of virtually any action under the act. These include clauses with respect to international air and water pollution; pollution prevention planning; guidelines for the implementation of the toxic substances provisions; fuels regulations; information gathering; land-based sources of marine pollution; environmental emergencies, objectives, guidelines, and codes of practice; federal lands and operations; economic instruments; and the development of the priority substances list. In our brief we've identified each of these sections.

In our view, the general clause in the administrative duties section should be deleted or modified, as per our recommendation 10, to make its application discretionary. We understand the committee has received draft language to amend this clause from the department. However, in our view, the department's changes are not adequate to make the clause discretionary.

The other 13 clauses that are scattered throughout the bill should be deleted or modified in a way to make their application discretionary, specifically by replacing the word “shall” with the word “may” where it occurs.

The second theme I would like to address this morning is the theme of residualization, or the effective subordination of CEPA to other acts of Parliament in the regulation of substances that may fall under its jurisdiction. Again, this is a theme that was not present in the government's response to the standing committee's report. As with harmonization, there is a general provision in the administrative duties section, subclause 2(2), and other instances are scattered throughout the act.

Among the most prominent are the proposed changes to the provisions dealing with biotechnology and new substances. What is proposed in the bill here is the removal of the requirement of the existing act that where biotechnology products or new substances are being regulated under another act of Parliament, they be subject to an evaluation of their potential toxicity that is at least as stringent as the evaluation that would occur under CEPA. Clauses of this nature also occur with respect to the regulation of toxic chemicals and, in clause 9, the federal House and order provisions.

The general clause in the administrative duties section should be removed or replaced with language we propose in recommendation 13 of our brief.

The biotechnology and chemical new substances sections should be restored to restore the language of the existing act. In both cases that involves the deletion of three clauses from clause 89 with respect to new substances and clause 106 with respect to biotechnology.

With respect to toxic substances and environmental management within the federal government, we believe the act should be amended so regulations made under CEPA take precedence in these areas over regulations made under other acts. These are recommendations 70, 71, and 125 of our brief.

I would like to touch very briefly on the use of language related to cost-effectiveness in the bill. This again is an issue that was not raised in the government's response to the standing committee's report. This language appears in the general administrative duties section of the bill, in the definition of the precautionary principle, and with respect to guidelines for information gathering.

If this language is incorporated into CEPA, it would be the first time Parliament would have explicitly mandated a cost-benefit approach to an environmental health or safety statute in Canada. My understanding is the committee has had some discussion of the Treasury Board regulatory policy.

I think it's very important to keep in mind that this is just a policy at this stage. It has not been endorsed by Parliament, and part of the concern is if Parliament incorporates this language about cost-effectiveness into the bill, in effect it would be sanctioning that Treasury Board policy. So in our view, these references to cost-effectiveness should be deleted from the bill. That's included in recommendations 3, 7, and 37 in our brief.

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Finally, very briefly, I'd like to address the provisions related to pollution prevention and emergency planning. These are in part 4 and part 9 of the bill.

Here there have been changes made between Bill C-32 and Bill C-74 that significantly narrow the triggers for pollution prevention and emergency planning. These changes have occurred in clause 56 and clause 199 of the bill. In our view, the language that was originally in Bill C-74 in this section should be restored.

Secondly, these clauses should be amended to make pollution prevention planning and emergency planning mandatory for the substances designated through these clauses. So where it says the minister may require pollution prevention planning and may require emergency planning, we think “may” should be changed to “shall” to make it a duty.

In addition, consideration should be given to expanding the pollution prevention requirements to include all substances on the national pollutant release inventory.

Now my colleague, Mr. Muldoon, will address the issue of citizens' rights, the definition of virtual elimination, and the issue of endocrine-disrupting substances.

Mr. Paul Muldoon: The first area I'd like to address includes clauses 12 and 13 of part 2 of Bill C-32, and that's discussed on approximately page 38 of our submission. Clauses 12 and 13 create an environment registry. Our proposal is that this registry be expanded to inform the public of notices, including notices of objections under the bill, the issuance of any approval, regulation, revision, or revocation regulation, or any order or other policy under Bill C-72.

It's our view that one of the concrete ways to include the public in the bill is by giving them access to information on what's going on under the proposed new act. The bill creates an infrastructure to do that called the environmental registry. It's easy to contemplate a cost-effective way of carrying that out and really guaranteeing public access.

So in this way we're proposing the expansion of that mechanism. A good precedent we could follow is the electronic registry under the Environmental Bill of Rights Act in Ontario, which goes as far, if not further, than the one we're suggesting, so we know it's practical and doable.

Next I'd like to address clauses 22 to 38 on the environmental protection action. My comments really commence on approximately page 44 of our submission in recommendation 29.

This is the provision in the bill that states citizens of Canada have the right to bring an action to enforce Bill C-32. Certainly public interest groups and individuals across Canada support the need for citizen enforcement. The report of this committee outlined the weaknesses of the federal government in enforcing its own environmental laws. We think an effective mechanism to allow citizens to enforce the act supplements, not supplants, government enforcement initiatives.

Moreover, there are many instances where, for a variety of reasons, the government either refuses or is unwilling to enforce the act and enforcement is appropriate, and that is another rationale for citizen enforcement suits.

Our organization and other organizations across Canada stringently defend the need for citizen enforcement actions. I regret to say that clauses 32 to 38 do not deliver on that mechanism. There are simply too many qualifications, encumbrances, and barriers to make this action meaningful and effective.

It is our submission that these provisions would be used in only the most extreme and unlikely circumstances. In effect, unless some of the recommendations we propose are put in effect, this is a very hollow right, and I do not think the people of Canada want a hollow right. You either give them an effective right to bring an action or you do not give them the right at all.

More specifically, Bill C-32 should be amended so the need for an investigation as a precedent to commencing an action is deleted, as well as the need for significant environmental harm.

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Many of the provisions of CEPA deal with reporting, access to information, and many issues that will be impossible in a court of law to direct directly to significant environmental harm. The reality is that the company can violate the act, and it would be very difficult for a public interest group to relate directly to the fact that this would lead to significant environmental harm. Although it would in practice, in a court of law it may be a different thing to establish that.

We also recommend that subclause 22(2) be amended. Right now, the act says you can only bring an action after the violation has occurred. It is our view that the action should be available when there's imminent contravention of the act, and we have suggested wording for that so that the act is more proactive and preventative, rather than completely and utterly reactionary.

We also suggest that subclause 22(3) be amended to allow for the awarding of damages to responsible ministers in cases where the harm to the environment cannot be restored or rehabilitated, or where the minister has incurred costs to address the harm to the environment.

Clause 24 states that the environmental protection action may not be brought if the alleged conduct was to correct or mitigate harm or risk of harm to the environment. Paragraph 24(b) states that no action be taken if the alleged conduct was reasonable and consistent with public safety. In our view, these qualifications will confuse and lead to much more litigation than what is contemplated. They should be removed from the act.

Clause 30 outlines the defences. The two defences included are a defence of due diligence and a defence of officially induced mistake of law. These are common-law defences and are already part of our jurisprudence. Articulating them in the bill is a signal to the courts that you are changing the common law, which will lead to confusion, the lack of predictability and certainty in the application of these provisions, and ultimately, more litigation over those provisions. They are redundant and unnecessary and, if I may say, confusing.

Clause 32 gives the court the power to stay the action if it is in the public interest to do so, and the factors are outlined in subclause 32(2). This clause should be deleted. There is inherent power of the court to control its own process. It's redundant, confusing, and will lead to a lack of predictability in the application of these provisions.

Finally, clause 38 deals with costs, and the usual cost rule will apply, according to these provisions, which means that if a public interest group brought an action and for some reason lost, it would be potentially subject to an adverse cost award. We suggest the cost should not be awarded to or against any party in an environmental protection action unless the court finds there are special reasons to make a cost award.

Those are my remarks dealing with part 2. I want to reiterate that our concern at this point is that it's a hollow right, a right that will be unlikely to be used, and unless these clauses can be rectified to make them effective, we do not believe Canadians want a hollow right.

I'd like now to move to clause 64 at approximately page 96 of our submission. This deals with part 5, which is toxic substances. I realize this committee has already heard many words about part 5, but we would like to at least consolidate our views on how to improve part 5, which in many respects is one of the cornerstones of Bill C-32.

Certainly, clause 64 is one of the key cornerstones, and I'm referring to recommendation 55 of our submission. One of the policy directions in the last 15 years or so was the recognition that there are substances in commercial use today in Canada that are so inherently problematic that they should be phased out in terms of the fact that there is no safe level for those substances. This has been recognized by the International Joint Commission within the Great Lakes. There certainly has been more and more acceptance of this, not only in North America but globally, of the need to address these inherently toxic substances.

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In our view, for those substances there is no safe level. Yet when we look at the definition in clause 64 of Bill C-32, we see the definition of “virtual elimination”. This definition, if one reads it carefully, will not phase out the most dangerous substances known to humans. These provisions will not address the long-term viability of not only the environment but human health. In fact, these provisions will allow the continued use and generation of the most dangerous substances known to humans, in perpetuity. We cannot believe this is the thrust of what the federal government would like to do with these substances.

In effect, our recommendation 55 uses the framework of clause 64 but casts it in a way that we believe is consistent with the Great Lakes Water Quality Agreement, that we believe is consistent with the interpretation of that agreement by the International Joint Commission, and that we believe really reflects what Canadians want, which is that those substances that are the most dangerous known and that are inherently toxic should simply be phased out.

I can address more specifically how that recommendation should go, but I want to leave it at that.

The next recommendation deals with clause 65, which is the definition of “toxicity”. We have always endorsed the recommendation from this committee in its 1995 report It's About Our Health! to change the existing section 11, or the proposed section 65 dealing with the definition of “toxicity”, so that the definition of toxicity incorporates the concept of inherent toxicity. We endorse that, we have proposed wording, and we think that recommendation should be furthered.

There are two other recommendations I'd like to refer to before I get on to my last area of endocrine disrupters, and that deals with subclause 67(2) and subclause 77(4). These deal with, in effect, attempting to remove metals and minerals from the definition of “virtual elimination” and from consideration within the bill.

I think there is this inherent philosophy underlying the bill that metals and minerals are somehow not as toxic and should be removed from the mainstream of the regulatory thrust of this bill. We do not think the human sources of metals and minerals ought to have that kind of special treatment, that special lax treatment. They are toxic, and if they do cause the harm as contemplated, then they ought to be subject to as severe a regulatory treatment as any other synthetic substance.

I again refer you to recommendations 58 and 70 of our submission, which deal with subclause 67(2) and paragraph 77(4)(c) of Bill C-32.

Finally, I'd like to conclude with a few comments on endocrine disrupters. As I mentioned, we spent the last decade and a half trying to convince policymakers of the need to recognize the concept of inherent toxicity. What we mean by that is that there are substances that are so problematic because of the chemical structure of their inherent properties that they ought to be dealt with very severely.

The case examples have always been those substances that are toxic, of course, but also are persistent in that they stay in the environment for a long time, and they bioaccumulate in that they accumulate in the fat cells of fish, wildlife, and humans. The bill addresses those, in part at any rate, by recognizing them as properties that are inherent. But no one from the NGO community and no one from the scientific community ever contemplated that they're the only inherently toxic substances. We realize that as science emerges there will be other characteristics we find to be so problematic that they fall within the definition of being inherently toxic.

All we're asking for, the thrust of our recommendation, is that the bill contemplate that we're smart enough over time to recognize that there will be more substances, other than those that are persistent and bioaccumulative, that would have this kind of severe treatment.

In effect, the bill closes the door on science, on the contemplation that we may find substances that are as problematic as persistent and bioaccumulative substances.

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The example we are using, the example on which this committee has heard evidence, is endocrine disrupters—those substances that affect endocrine functions of wildlife and humans. This class of substances is an example of where science is pointing out that there will be substances with inherent properties for which we want as severe treatment as possible, yet this act closes the door.

To address endocrine disrupters, we're suggesting—and I'm referring to our recommendation 14—that subclause 3(1) be amended to include a definition of what is a hormone-disrupting substance.

We also suggest, in recommendation 62, that paragraph 73(1)(c) be amended. This would allow, basically, that other properties be included in terms of looking at priority substances other than persistent and bioaccumulative substances, so the door is open to new science, so the act is organic rather than fixed.

In particular, recommendation 63 states that in effect, to realize this goal, we will categorize domestic substances for their ability to be not only persistent and bioaccumulative but also hormone disrupting, so that for the first time in Canada Canadians will know which substances are persistent and bioaccumulative but also which substances are in commercial use and have the potential to affect our endocrine systems.

Finally, I point you to recommendations 66 and 67 of our submission, which deal with subclauses 77(3) and 77(4). The thrust of these recommendations is that when we do find a substance to be of a hormone-disrupting nature, we can categorize that substance such that we can subject it to the goal of virtual elimination, so that those substances that are inherently toxic can be dealt with through the most severe treatment that the act allows, which is virtual elimination. That would require not only a definition change to virtual elimination but changes to subclauses 77(4) and 77(3).

As I mentioned in my opening remarks, there are many other recommendations and clauses we'd like amended, but in terms of citizen rights, toxic substances and endocrine disrupters, these recommendations, in our view, would go a long way to improving the bill and meeting the expectations of the environment and of Canadians.

Thank you very much.

The Chairman: Thank you, Mr. Muldoon and Dr. Winfield and Ms. Inch.

We have Mr. Gilmour, followed by Madame Kraft Sloan and Mr. Lincoln.

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

First of all, well done on a very large submission. I've only had the opportunity to flip through and pick out some of the highlights.

The impression I got, and correct me if I'm wrong, was that the direction this is moving in is more towards the old bill that died in the House in the last Parliament. Am I correct in that thought?

Mr. Paul Muldoon: Our view was that in terms of Bill C-74 this is a virtually identical version, with some exceptions. In most but not all of those exceptions, we'd suggest that it's weaker than Bill C-74, not stronger—with a few exceptions.

Mr. Bill Gilmour: Okay. The difficulty I have is that Bill C-74 didn't go through the House because it lacked support, among other reasons, and if this committee were to adopt this per se, we may run into that same roadblock of not having the support.

The Chairman: The chair must intervene here, since our witnesses were not in the House at that time but some of us were, to say that Bill C-74 did not go through the House for the simple reason that an election was called, not because of other reasons.

Mr. Bill Gilmour: Okay, I thought it was there for quite a while.

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At any rate, 172 recommendations are very onerous. It would help me, and perhaps it would help the committee, if you could priorize the key areas, grab the areas that are really of most importance to you, as opposed to looking at 172 that are on a level field. Would that be possible without causing you a huge amount of work, to hit on some of the areas you really feel we should be addressing when we go into clause-by-clause?

Mr. Mark Winfield: Hopefully we tried to do a little bit this morning. We would point to the seven we identified this morning.

Mr. Bill Gilmour: Okay.

Mr. Mark Winfield: Harmonization and residualization are clearly steps backwards not only from Bill C-74 but actually from the existing act, for example. Those are priorities. We have biotech and new substances again, because not only are you going backwards from Bill C-74, you're going backwards from the existing act, CEPA 1988. Then, as we said, there are citizen rights, and the definition of virtual elimination is quite important. This cost-effectiveness issue is very important because of the potential precedent it sets. There is the endocrine disrupter issue, I think, because it provides a way of making sure the bill can deal with new science. Then finally we have these relative minor changes around pollution prevention and emergency planning, which are simply bringing us back up to where we were in Bill C-74.

I would hope that a lot of the other changes we're proposing are not overlooked, because in many places what we're trying to do is suggest minor changes through which it might be possible, if it is the will of Parliament, to express that will more clearly in the bill. I recall Dr. Victor's presentation to the standing committee a couple of weeks ago in which he emphasized how important that was. There are just so many places scattered throughout the bill where the language is so wishy-washy, for lack of a better term. We think the committee, as parliamentarians, shouldn't overlook those opportunities to provide direction to the government. It's obviously up to committee members whether they choose to accept our suggestions as opposed to others they may hear.

Mr. Bill Gilmour: I think it was Mr. Muldoon who was saying that we have had many submissions on virtual elimination. Perhaps you can clarify that, because in your comments you're saying “below any measurable quantity”. I have some difficulty with the workability of that, because twenty years ago it was parts per million and then we went to parts per billion and parts per trillion and we're looking at parts per quadrillion, and as technology increases, I think the ability to measure any detectable amount will be well out there.

For example, a wood stove does produce minute quantities of dioxin. How do we handle something that has 0.1 with twenty zeros in front of the 1? The difficulty I have is seeing how it will work, so can you clarify it?

Mr. Paul Muldoon: Certainly. The answer is actually in the bill. The thrust of the bill, which we support, is to declare as a national goal the concept of pollution prevention. Pollution prevention states that the way to address pollution is not by creating it and then trying to deal with it at the end of the pipe by counting zeros, but by looking at different ways of producing material, different processes, different practices, that avoid the creation of pollutants in the first place. That we think is quintessentially correct. It's an international trend, and it's also a trend that has great economic benefits because it spurs innovation, it spurs efficiency and conservation.

But even though the front part of the bill says we will promote—in fact, we'll declare—pollution prevention as a national goal, it then goes to clause 64 and adopts a definition that is very much a pollution control approach, because it says you do not have to change your processes to get to virtual elimination; just basically use more pollution control technology so that your emissions or releases of these most dangerous substances known to humans are at a non-measurable level or non-detectable level.

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What we're saying in our recommendation is let's make the act consistent. You declared pollution prevention as the key priority, which we agree with. Then simply, in clause 64 dealing with the goal of virtual elimination, require industry to change its processes so it doesn't either use or generate those substances we want to target in the first place.

We're saying let's not count the molecules in the pipe; let's go up the pipe and change the process so those substances are neither used nor generated. There are many examples I can give you where industry is doing that on their own, given the right regulatory signals. We do not want them investing billions of dollars in pollution control. We want them investing money in pollution prevention, which we think will yield benefits over and over, so we can avoid this kind of numbers game at the end of the day.

Mr. Bill Gilmour: Okay, I'll go back to the wood stove example. That is the concern I have, and when you put it into an industrial application, that's fine. The concern I have is that the way it's written, it can cross the line where it goes beyond the intent of the bill—for example, again, people who heat their houses with wood. It could be legislated that you can't burn in a wood stove, again because of the very minute quantities of dioxin that are produced. That's the concern I have. It's finding the area where it addresses industry, but doesn't go into areas well beyond the intention of what we have in the bill today.

Mr. Mark Winfield: I think we've done a couple of things to try to get at this.

The first, in terms of defining virtual elimination, has been to... If you look at the way we've presented the wording, we've actually tried to separate situations where the substance is an actual product that you would use. My understanding is the committee has been told, for example, that you can't actually phase out uses of products because of problems with legally enforcing that.

What we've done is come up with language that we think actually makes that feasible. When the substance you're targeting for virtual elimination is a product, there's an element of intent there, which you can capture and produce enforceable language around. That's the first part of the definition we've proposed.

The second part deals with perhaps the more challenging situation, which is the one you talk about, where the substance is a by-product. It's a product of some other process that goes on and the substance is produced incidentally. If you look in the footnote, I think it is clear we're going to end up in a situation where the only way in which you can get at the by-products is through some sort of numerical standard around generation or release. That's perhaps where there would be a bit of flexibility around something like a wood stove.

Keep in mind also that this doesn't automatically turn into a direct legal requirement for virtual elimination. The way the bill is drafted, it simply mandates the development of plans to achieve virtual elimination once something is put into that track. So there are other places where there is some flexibility still left available to deal with those kinds of small sources and things like that.

Mr. Bill Gilmour: Thank you, Mr. Chair.

The Chairman: The description of pollution prevention Mr. Muldoon gave us coincides with the definition from the Rio convention. It is one the Government of Canada has committed itself to on several occasions and it's also reflected in the title of the bill.

Moving on to the next speakers, we have Madam Kraft Sloan, followed by Mr. Lincoln.

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

I guess I was rather shocked when I heard the representative from the Environmental Law Centre in Alberta suggest the citizens' suit section be struck from the bill if the committee is unable to amend it to get rid of some of the difficulties, because as Mr. Muldoon pointed out this morning, there are a number of organizations across this country, including CIELAP, CELA, and certainly the organizations involved with the CEN Toxics Caucus that have fought very hard for public participation. People have said to me that even though this section is a weak section, it's better to have it in than not have it there at all. So it seems rather shocking that the organizations you represent from across this country, who have fought so hard for public participation, would rather see this thing struck. I'm just wondering if you could comment on that.

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Mr. Paul Muldoon: Well, I think you've hit very much a raw nerve. Coming from an organization that spent 25 years fighting for citizens' rights, having personally sat on the environmental bill of rights task force that drafted the Ontario bill with other environmental groups, industry, and government, and having made use of many of these kinds of provisions in my practice, there is nothing more difficult, I can assure you, than sitting before you saying you should either fix the bill in terms of citizens' rights or remove the sections.

But let's back up and look at what we're facing. I don't think you're going to find many lawyers in Canada who are going to say that clauses 22 to 38 will create an effective citizens' rights provision. It is so encumbered and qualified, and ultimately prohibitive for public interest groups, that it will either not be used or will be used so rarely that it's not used at all. So the upside is that you have a potential but extremely unlikely right to sue. That's the upside.

The downside, though, is that we have a provision that will be potentially impossible to amend in the future. After years of experience in Ontario with revisions that were much more liberal than this provision but have never been used in five years, we know how difficult it is to change those provisions once they're in law.

Second, it will set an enormously bad precedent for other federal legislation. They will copy this section, just as this is a copy of Ontario's Environmental Bill of Rights Act. But this is a very poor copy because it's more encumbered and qualified. The next version we see in another piece of legislation will probably be worse than this one.

Here's our view. What we wanted was something that was reflective of the approach used in the report of this committee in 1995, It's About Our Health!, in which you called for an environmental bill of rights that did include an effective citizens' enforcement right. Why should we give up that goal for something that's not even second or third best, but something that's virtually unusable?

So, symbolically, I'd love to sit here and say it's not as good as we want, so let's get on with it, but I can't even bring myself to do that. It's simply not workable. How can I convince my clients in my constituency to support a provision that's not going to work?

Ms. Kraft Sloan, it's very difficult for us to sit here, but we have consulted with our colleagues in the Toxics Caucus of the Canadian Environmental Network. It was a long, laborious discussion, but there does seem to be a view that unless these provisions can be fixed...

We're not asking for the moon here; we're just asking for the top of the trees. These provisions create a hollow right, a guise of citizen involvement, when in fact, in practice, it won't happen.

Mrs. Karen Kraft Sloan: The issue of endocrine disrupters, in my reading of the government response, hasn't been identified. It's one of those things. You said the bill closes the door on science. I think we have to be open to the fact—certainly there's Ms. Inch's concern about the seven-year review period—that science has evolved. Things do change and we discover new things.

I think we have to recognize the fine work of Environment Canada scientists over the past 20 years or so with wildlife in the Great Lakes basin in order to see the kind of work that's been done on endocrine-disrupting substances and on the health of this wildlife. I think the kind of work they have done has laid a lot of the groundwork for some of the international studies on endocrine disrupters.

So the information certainly is out there, and it's been out there for a while. As legislators, I think it's incumbent upon us that whenever we are amending, creating, or passing legislation, we want to make sure these issues are going to be able to be addressed.

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Now, some witnesses have come before the committee—you've certainly made a lot of recommendations about how we can better deal with endocrine-disrupting substances in this legislation—who say that the current Bill C-32 will be able to catch endocrine-disrupting substances. I'm just wondering if you can comment on why you think they would say something like this. Certainly your testimony and other testimony we've heard from health groups and other environmental law organizations seems to indicate otherwise. I'm wondering why there's a discrepancy here.

Mr. Mark Winfield: I think part of the concern turns on the structure of the bill as it's presently put together. It's very much constructed around a risk assessment model. That's evident in the definition of toxicity and elsewhere. The problem is that the whole risk assessment framework is constructed around assumptions about dose response such that the impact of a substance will be a function of the degree to which one is exposed to it.

The problem with endocrine-disrupting substances is that they don't work that way. The location or timing of exposure can be much more important than the quantity of exposure. That's really where the problem arises. The act, as structured, really doesn't contemplate that possibility.

Even where they're trying to talk about persistence in Bill C-32, they've gone so far as to accept persistence and bioaccumulation effectively as substitutes for exposure in risk assessment. Even there, that's still conceptualized along the lines of a traditional risk assessment, dose response model. In effect, what they're saying is that they assume we'll have dose because of persistence in bioaccumulation as opposed to direct exposure.

Again, this falls apart with endocrine-disrupting substances because they don't follow that dose-response model of risk assessment. As I say, what we know about them seems to suggest that the location of exposure and the time of exposure can be much more important in terms of the toxicity or impact of the substance than the quantity. That's why we're making some suggestions to open the language slightly to accommodate this possibility.

Mr. Paul Muldoon: Could I give you two specific examples? Please turn to clause 73. This is to give you a very concrete example of what I'm referring to, because unless we can find the detail, the thrust of the response will be lost.

Mr. Bill Gilmour: What page are you on?

Mr. Paul Muldoon: It's clause 73 of the bill or approximately page 69 of our submission.

The question put was, would not endocrine disrupters naturally fall within the regime of the bill? Certainly one could argue that if endocrine disrupters are deemed to be toxic, then the bill can deal with toxic substances. One could make that argument.

But look at clause 73. It's a direction by Parliament to the ministers asking them to please go through the domestic substances list and find or identify those substances that may present the greatest potential of exposure to Canadians or those that are persistent and bioaccumulative.

First of all, under subclause 73(1), you won't be looking for endocrine disrupters. So even though we know the science is there, Parliament is saying you shouldn't look for them. You should look for persistent and bioaccumulative ones, but not for hormone-disrupting ones. That's sort of a parliamentary decree.

Then if you go to subclause 77(4), it says that if you find persistent and bioaccumulative substances that are toxic, you should virtually eliminate them. But this bill specifically states it must be persistent and bioaccumulative. So if it's a hormone disrupter but doesn't meet the stringent criteria of persistent bioaccumulative, you can't virtually eliminate it. The bill says you can't, in a way.

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In effect, just as examples, these two sections create a bias towards strong action against persistent bioaccumulative toxic substances. That's good, but by implication they therefore suggest that other substances with inherently toxic properties ought not to receive that severe treatment. We're looking for the rationale for that. Why is there such a presumption that only persistent bioaccumulative substances ought to receive that treatment and not other inherently toxic substances like endocrine disrupters?

Mrs. Karen Kraft Sloan: How would endocrine disrupters be handled? Would they be totally ignored by this legislation?

Mr. Mark Winfield: It's conceivable that they could be found to be toxic, although that may be difficult given the existing definition of “toxicity” and the emphasis on a risk assessment model, as we've heard from the department over and over again.

Mrs. Karen Kraft Sloan: So they would have to have other attributes that would cause them to be found to be—

Mr. Mark Winfield: Possibly, yes. And with the way the bill is worded, unless they happen to have the properties of persistence in bioaccumulation—that's not necessarily the case with all endocrine disrupters—they would certainly go on to what's called track 2, as opposed to the virtual elimination track, regardless of how toxic they might actually be. This could be a substance that has a very severe effect at a particular point of exposure in the development of a human being or an animal, but it can't be put on the virtual elimination track because it doesn't have those properties of persistent bioaccumulation. That's the problem. It could conceivably be caught in the definition of “toxicity”, but it can't be put onto this more stringent track.

Mrs. Karen Kraft Sloan: And what would happen on track 2 then?

Mr. Mark Winfield: It's less clear what happens on track 2. The bill does require that there be some sort of management plan developed by the department within a timeframe in regard to track 2 substances, but it's not at all clear in terms of what that management plan has to achieve. It's not like the track 1 substances, for which there is a clear direction from Parliament in terms of virtual elimination. With track 2, it really is the fate of what came out of the original PSL assessments and where they've ended up. In terms of actual actions so far, there's virtually nothing.

Mr. Paul Muldoon: What we're asking for is this. You mention quite correctly that much of the groundbreaking work on the identification and understanding of endocrine-disrupting substances emanated in Canada, especially in the Great Lakes experience. All we're saying is that in the same way that Canadians have been innovators in science, we should be innovators in policy. Let's translate what we found in science into innovative policy responses. This is not it.

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

The Chairman: Mr. Lincoln, please.

Mr. Clifford Lincoln (Lac-Saint-Louis, Lib.): I'd like to concentrate on the administrative duties and preamble of the bill first.

I agree with you that, taking the perspective of the government response, certainly paragraph 2(1)(l) and subclause 2(2) are new departures. In other words, we never had them before, they're just new. In regard to 2(1)(l), do you agree that by putting in this reference—I think you have also alluded to it, but I just want to make sure I understand it correctly—the harmonization agreement, which is of course what's intended here, is now enshrined in legislation, enshrined in the act in a way, where before it was purely a political document?

Mr. Mark Winfield: No, that would be our interpretation of that paragraph, as it in effect creates a duty on the part of the minister to administer the act in a manner consistent with intergovernmental agreements. The language of the paragraph mirrors language in the harmonization agreement, which seems to imply an intent on Parliament's part to in fact require that the act be administered. In fact, it creates a legal duty that conceivably could be enforced in court. That's very problematic when one looks at the contents of the harmonization accord and when you see all kinds of language saying “The Minister shall not act”.

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Mr. Clifford Lincoln: In effect, it's a way of almost enshrining legally the harmonization agreement through the back door.

Mr. Mark Winfield: It almost incorporates it into the act by reference. That's essentially what that paragraph is doing.

Mr. Clifford Lincoln: Under subclause 2(2), if you look at the definition closely, all another minister with another act has to do is show that measures can be taken—not “need” to be taken, not “need” to be implemented, just “can be” taken under the act—which I imagine is very subjective anyway. Once that minister has indicated that measures can be taken under the act, regardless of whether they are or they're not, regardless of whether there are regulations to back them up or not, then our minister is effectively vetoed from using CEPA. Do you see it that way?

Mr. Mark Winfield: Yes, that's certainly our reading of the subclause. If Parliament enacts this subclause, that would seem to be the signal Parliament would be sending to the environment ministers, health ministers, and other ministers. Effectively, action would only be taken under CEPA with the consent of ministers responsible for the administration of other acts that might be applicable.

Mr. Clifford Lincoln: So if we go from the standpoint of the government response, we have in effect introduced two huge changes to CEPA, and are in fact making it residual in two areas: residual to provincial agreements and residual to other ministry agreements.

Mr. Mark Winfield: Yes, that's our interpretation of the act. These are clearly major departures from the direction of the government response, which made no reference to either of these matters.

Mr. Clifford Lincoln: In regard to part 5, which is really the guts of the bill—we're talking about the very operative element of the bill, the toxic substances—I see that you have made something like over thirty recommendations. Some of them are touching the whole basis of what it is about. Is it workable the way it is? Should it be rewritten? In your view, is it fixable the way it is if you have to tackle thirty key parts of it and fix them?

Mr. Mark Winfield: I must admit that it's a mess as it's drafted, frankly. I had a real problem—Paul probably did too—just even trying to follow the structure of the sections and how they would work. I'd say the same thing about how they're drafted. How would they work? Some of our recommendations were just trying to sort some of that out, but I think it does reflect the degree to which that part is a mess.

It does require a lot of work for everybody to be able to understand what Parliament was trying to say when it drafted this part. That applies to industry, it applies to us, and it applies to the departments. This section is very problematic, hence the number of recommendations just to try to make clear what exactly we're trying to achieve here. It can be fixed, but it requires a lot of work.

Mr. Clifford Lincoln: If you had to look at part 5 and assess it versus the government response, what would strike you? In what areas do you feel it has departed from the government response? Is it possible for you to pinpoint that out of the key elements?

Mr. Paul Muldoon: Let's look at a few of the issues.

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In our view, the definition of “virtual elimination” is problematic in the government response, but the definition in Bill C-32 is worse, even though we were not pleased with what was in the government response in 1995.

Mr. Mark Winfield: The other major change that I note in the toxic substances section is in relation to new substances. There was absolutely no mention in the government response of any substantive change at all, yet in the bill we see a parallel change to the one that's being made with respect to biotechnology. It's essentially to provide a way out of the requirement of the existing act in that all new substances, from a toxicity perspective, are to be evaluated in a manner that's as rigorous as that which would occur if they were being regulated under CEPA.

Mr. Clifford Lincoln: Can you tell me what clause you are referring to, please?

Mr. Mark Winfield: Yes, it's clause 81 in the bill, and the particular subclauses in question are 81(7), 81(8), and 81(9). Subclause 81(6) essentially reproduces the existing language of paragraph 26(3)(a) of CEPA, but subclauses 81(7), 81(8), and 81(9) essentially provide this mechanism for exempting substances from the equivalency rule that is in the existing act. As I said, the government response was silent on this issue with respect to the general new substances provisions, so that's another very clear departure from what was in the response.

Mr. Paul Muldoon: Can I make one more comment, Mr. Lincoln? Recommendation 9.14 of the government response is, I think, indicative of it. It says, “The Government of Canada proposes to incorporate into CEPA key elements of the TSMP”, which is the toxic substances management policy. To me, that states there is some flexibility there in terms of how to interpret the TSMP and how to adopt it to a legislative framework. I think Bill C-32 goes way beyond that. It doesn't allow those kinds of adaptations that are needed for an effective regime. I think there has been a presumption that not only must we follow the TSMP, but we must go way beyond it. I think the government response is much more generous than that in allowing the flexibility and adaptability of the bill to the needs of good regulation.

Mr. Clifford Lincoln: I just have one last question.

I know we had already started part 6 in the government response. There was already a provision whereby other legislation from other ministries would make CEPA a so-called “safety net” or residual, so it was already there. As it is written, do you see it worsen from the perspective of the government response and C-74?

Mr. Mark Winfield: With respect to part 6, “Biotechnology”, it's the same as C-74. In our view, it's the worst possible interpretation of the government response. It really very clearly is designed to provide an escape hatch. Remember, the way paragraph 26(3)(a) of CEPA was drafted—and Parliament was very skilful in the way it drafted CEPA as it stands now—it didn't just create a safety net, it also created a standard of performance when it drafted paragraph 26(3)(a) of CEPA. It didn't just say things have to be regulated under other acts; it also said something about the standard of regulation or review that had to happen under those acts so that it had to be at least as rigorous as that which would happen under CEPA.

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That's really part of a way out that is being provided to other departments, to substances that are regulated under other acts. Certainly, it seems to me that the worst possible reading of what was in the government's response is what has ended up in the bill in terms of where they've gone with that.

Mr. Clifford Lincoln: In part 6, the way it is, does it have any impact, according to you, under the legislation? On “Biotechnology”, the way it is written now, does CEPA have any strength at all?

Mr. Mark Winfield: It has strength, but it's weaker actually than the way CEPA of 1988, the existing act, applies to biotechnology. The way the existing act was written, it was very carefully drafted in a way that, in effect, set a standard of evaluation for things being regulated by other departments under other acts.

Part 6 essentially reproduces language from the chemical new substances provisions of the act. Substantively, it's not that much progress over what's in the act now. There is this added problem that there is this undermining of the paragraph 26(3)(a) rule about the evaluation of new substances, including biotechnology products under other acts of Parliament. That we can see as being quite problematic.

We have highlighted a number of other things around that part, particularly the failure to develop a definition of toxicity that is specific to biotechnology, which in our view is necessary to fulfil the very explicit obligation under the Convention on Biological Diversity regarding the protection of biodiversity from biotechnology products. Thank you.

The Chairman: We have Madam Torsney followed by the chair.

Ms. Paddy Torsney (Burlington, Lib.): Certainly, part of the volume of recommendations is because some of them are consequential, based on things you are trying to change. So it was good that you identified a number of the main areas.

I wanted to pick up, though, on this whole endocrine disruption issue. I see in recommendation 62 that you are talking about opening the door to any emerging science and what have you. I wonder why, in the next nine recommendations, you want to limit it to just endocrine disruption. If you are concerned that the bill would be limiting you to act upon emerging science in any area, why then would you follow up by limiting it to endocrine disruption?

Mr. Paul Muldoon: That's actually a good point. If a number of places are amended to allow the cause of inherent toxicity to pervade the bill, it may then be duplicative to target endocrine disrupters all the way through also. That's a good point.

On the other hand, there are some provisions where I think you do need to specify endocrine disrupters. For instance, when you want to characterize the substances on the domestic substances list, you want to send a signal from Parliament to Environment Canada to please code those 23,000 substances and let's see which ones are affecting, potentially, our health. That's why they've targeted persistent biocumulative substances, and I think it is totally appropriate and needed to target endocrine disrupters.

Again, in terms of subclause 77(4), I think it is appropriate that if we do find those endocrine disrupters affecting environment or health, then they ought to be subject to virtual elimination. We might want to play with that and allow that to, again, be broadened. I think what you are finding is that there is a two-track strategy in our recommendations. Let's incorporate wholly and rationally the concept of inherent toxicity. If we can't do that, at least let's get the ones where science is telling us right now we have to go...

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Ms. Paddy Torsney: On that very issue, I've been talking to some of the scientists and they say that some of the science is still emerging. They're trying to figure out some of the things related to endocrine disruption. What I'm saying is when they figure it out and it's a little more solid, wouldn't you want it to be as broad a definition as you're talking about in 62 for that and for any other science? Shouldn't it perhaps be a policy or a regulation that deals with the more detailed inclusion of hormone disruption if the science isn't nailed down right this minute? Why would you want to limit it for these other things we might find tomorrow—and the science could even come on faster—that could be more serious to our health?

Mr. Paul Muldoon: With respect to your second point, I totally agree. We do not want to limit it, and I think the thrust of the recommendations is that we want to include persistent bioaccumulative substances and endocrine disrupters as the two target ones that we know about now. We want to move on and to keep the door open. So that's the philosophy of the recommendations.

With respect to your first point that science is still emerging, if you read the literature in the 1970s there was an enormous amount of literature about the environmental impact of persistent bioaccumulative substances, but it really didn't hit the policy field, despite the Great Lakes Water Quality Agreement, until the end of the 1980s. It took a decade and a half of harm before policy and regulatory action even recognized that this is what you have to do.

For endocrine disrupters I don't think we can wait. The act talks about the precautionary principle. I think there's enough science, and certainly the weight of evidence is there that we can act now. I'm afraid I just cannot accept the proposition of let's wait and see. I think it's there. We must act, and all we're asking is to allow the legislative base for action now and then let science maybe confirm what we expect. But at least let's put the legislative and policy basis in the act now, recognizing that there will never be a consensus, recognizing that there will never be a complete picture on endocrine disrupters. I think the weight of evidence would suggest that we can act now and we should put it in the act now.

Ms. Paddy Torsney: I'd be concerned if you thought I was trying to say wait until the science is nailed down. I'm actually thinking that a lot of the scientists who are pretty eager about some of this stuff are saying we're still not sure about what the details are, and I'm not talking about absolute certainty.

The other question I had is on part 6. One of my colleagues was talking about the implication of other acts, and I'm wondering, is it a bit of a philosophical debate about whether CEPA should be an umbrella or a safety net?

Mr. Mark Winfield: No. I think it's a very real debate because it has very clear implications in terms of the level of scrutiny that it will incur on biotechnology products that are being regulated under other acts of Parliament.

In the way the act is worded now, Parliament established an equivalency rule. It has said that everything has to be assessed before it's imported or manufactured, and there also has to be some quality to that assessment. Essentially it has to be an assessment of toxicity as defined by CEPA. So it does have a substantive impact. It sets a legal test in terms of the level of scrutiny that needs to occur. In our view, that addresses a potentially serious problem, because this is the only time Parliament has ever spoken in legislation to the regulation of biotechnology products. This is the only place it has ever happened. So it was a very clear expression of Parliament's will in this regard.

The other problem, and the reason we think it's so important that you set a benchmark, is that we and many other members of the civil society sector have raised serious concerns that some of the other departments that propose to regulate products of biotechnology under other acts are potentially in a conflict of interest; they have promotional functions as well as regulatory functions, and in some cases those functions are institutionally fused. This provides a way of making sure that there is some baseline level of scrutiny applied to these products.

It should be helpful to industry too in the sense that it provides a level playing field of assessment and scrutiny regardless of which statute the product happens to be regulated under. It means there's a common standard of assessment that's applied.

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So we do think this is more than an abstract debate. This does have concrete meaning.

Ms. Paddy Torsney: My last question is just strictly administrative. I'm not sure, Ms. Inch, that we got all of your presentation, because you mentioned five points and the fifth one is not on here. We only got one page.

Ms. Jane Inch: Thank you, you're right. We discussed it this morning and I added the last point. So it was a very brief...

Ms. Paddy Torsney: Okay. I just wanted to make sure we weren't missing page 2. Thank you.

The Chairman: Thank you, Ms. Torsney.

We have Mr. Knutson, followed by the chair, and then on a second round...

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

On this issue of residual, is it realistically possible that if regulation is passed under the new CEPA, a corporation could challenge that regulation on the basis that it could have been passed under another act and therefore it's ultra vires the act?

Mr. Mark Winfield: I think the problem is more intragovernmental in the sense of the signals Parliament is sending to the executive in terms of how things should be approached. The language itself is somewhat discretionary in some places. It's really more a question of how things will work inside the government, because in effect, in incorporating these clauses, Parliament is sending a signal to the system that it would prefer things be regulated under other acts of Parliament rather than CEPA.

In discussions among departments, and potentially among cabinet ministers, that will has to be considered. That expression of Parliament's apparent desire, at least as the bill is drafted now, I think would probably carry some weight. It would tend to mean that Environment Canada and Health Canada would stand down when there was a potential for other departments to act. I think that's the real concern there.

Mr. Gar Knutson: So you couldn't challenge a regulation on the basis that it could have been passed under another act?

Mr. Mark Winfield: One would need to look at each of the individual clauses. Actually, I believe one of the ones around toxic substances in 1996 actually says the lieutenant governor in council shall not make a regulation that's not discretionary. So potentially in that case there may well be the basis for a legal challenge.

In theory that should be picked up by the justice part of the Privy Council Office before the regulation is made, so it's unlikely the regulation would actually get made. The problem is more that it's this roadblock to the making of regulations under CEPA. The consistent problem with the bill is it's all for proscriptive things when it comes to making sure things don't happen, but it's very thin on actually mandating action.

Mr. Paul Muldoon: To respond to your question specifically, I think it's not inconceivable to suggest if a corporate interest saw a regulation under Bill C-32 that was less favourable than a regulation under another act by another department, it's only logical that they would at least try to test the waters to see if they could knock out the more stringent regulation to ensure the viability of the less stringent regulation. I think that's just a logical approach to looking at subclause 2(2).

Mr. Gar Knutson: Just by way of comment, Mr. Winfield, we were told in the enforcement hearings that some of our regulations passed under Environment Canada law weren't legally enforceable. They didn't want to tell us which ones because then people would just break them holus bolus. I don't have as much confidence in the Privy Council or the justice department...

Mr. Mark Winfield: It's hard to say without knowing the context within which the department was giving... Did they mean for resource reasons or did they mean because of legal drafting?

Mr. Gar Knutson: They meant because of legal drafting.

Mr. Mark Winfield: Really?

Mr. Gar Knutson: That's on the public record.

Mr. Mark Winfield: PCOJ's role, as I understand it, is to make sure the regulation lines up with the legal authority provided by Parliament.

Mr. Gar Knutson: Whatever.

Mr. Mark Winfield: In effect, it's providing assurance to the governor in council that the rule of law is upheld. I don't think they actually look at the practicality or workability of the regulation itself.

Mr. Gar Knutson: No.

Mr. Mark Winfield: That's my understanding.

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Mr. Gar Knutson: On the issue of paragraph 2(1)(l), the harmonization, have you read the response in a letter of May 26, 1998 from Mr. Glenn Allard, where he provided alternative language?

I'll read it to you. In his introduction, he says:

Environment Canada's position is that the Canada-wide Accord on Environmental Harmonization and its sub-agreements are intended to be political agreements. Our aim is to provide within the Administrative Duties of Bill C-32 a supporting clause for these arrangements without creating a legal obligation.

They're acknowledging that paragraph 2(1)(l) could have the unintended effect of making intergovernmental agreements and arrangements legally binding. So they're now suggesting that paragraph 2(1)(l) read:

2.(1)(l) endeavour to exercise its powers in a manner that is consistent with the intent of intergovernmental agreements...

We have somebody who will do that for you. That's his job.

Mr. Mark Winfield: It softens the language marginally. I think it's still potentially legally enforceable, and perhaps more importantly, it still expresses a very clear will on the part of Parliament to the executive that it act in a manner that is consistent with the intent of intergovernmental agreements.

In our view, that revision is not sufficient, particularly both from a legal perspective, but also, perhaps even more importantly, from an administrative perspective in terms of the signal Parliament sends to the executive.

Therefore, we have suggested two alternatives in relation to this paragraph. One is to delete it altogether and the other is to replace the words “consistent with” with the words “has regard to”, and again, we have some precedents in Ontario around those words, which make it quite clear that they're much less obligatory. So you might want to combine the department's language about “endeavour to exercise” with our language about “in a manner that has regard to the intent” in constructing a new clause.

We also have some doubt as to whether or not we share the view that the agreement is entirely political in nature. It may well create legal obligations on the part of the minister, and in fact my understanding is that that's actually a matter of litigation at the moment. So that's where we're at.

Mr. Gar Knutson: That's part of CEPA.

Mr. Mark Winfield: Yes, but with respect to the harmonization accord, they're subject to litigation. One of the key issues in litigation is, does it in fact have legal meaning? In that context, any signal from Parliament that would suggest going down that road is problematic.

I think we've put on the record clearly that we have very profound concerns about the accord, and in fact I think the committee did so as well.

The Chairman: Thank you, Mr. Knutson.

There will be a brief question from the chair and then we'll go for a second round.

This committee met several weeks ago with Treasury Board officials on the question of regulation, and you made a brief reference to regulations in your presentation this morning.

When we met, we discussed what had been, at least until then, to some of us, an obscure document issued in 1995 on the regulatory process as of that date, to be adopted by the Government of Canada. The title now escapes me, but it is a 1995 document that was adopted by Treasury Board for the writing of regulations flowing from statutes that would be adopted subsequently by Parliament. Some of us, having read the document thoroughly and having seen its emphasis on international commitments on trade, the writing of regulations that ought to take into account those commitments and the fact that international commitments on sustainable development, environmental protection, waste management or pollution prevention are not included in that document, became a bit nervous.

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My question is twofold. Are you familiar with the document, and if so, would you concur with the conclusion that regulations that will be written once this bill is passed will be heavily influenced, if not determined, by the content of that particular Treasury Board directive?

Mr. Mark Winfield: I have read the policy and commented on it in a document that was published by the environmental commissioner of Ontario's office in October 1996. I said something to the effect that it has been observed that these new requirements reinforce the previous government's move to establish barriers to the introduction of regulations that may adversely affect private sector economic interests. Indeed, the new policy may make it difficult, if not impossible, to introduce significant new regulatory requirements related to environmental quality, consumer protection, or public health.

In my view, the policy has potential implications for any regulations made under the act, and this is, in particular, why we've highlighted the incorporation of language into the act related to cost-effectiveness, particularly in the administrative duties section. If that language is retained, Parliament would, in effect, be sanctioning the fairly rigid cost benefit analysis model that is contained in that Treasury Board directive. As it stands now, the policy is merely an administrative policy, and as I said in my opening remarks, that kind of cost benefit approach has, to my knowledge, never been sanctioned by Parliament in Canadian legislation related to health, safety, or the environment. The problem is if the policy is there, it will have an impact. That impact will be magnified if Parliament includes language around cost benefit requirements in the act or fails to take the opportunity to remove those clauses.

With respect to international trade, I would also draw Parliament's attention to subclause 93(4) of the bill, which requires consultation with the Minister of International Trade before the making of any regulation that would affect the import or export of a substance regulated under CEPA.

The Chairman: Has CELA ever made representations to Treasury Board on that document, or have you ever considered making representation in the future?

Mr. Mark Winfield: My understanding is that the paper that was published by the environmental commissioner's office has been circulated widely, but we've never actually made a direct submission to Treasury Board on the matter.

The Chairman: Following the meeting, this committee wrote to the President of the Treasury Board raising the points that were raised in the course of that meeting. When a reply is received, of course, it will be circulated amongst interested members.

Thank you.

Madam Kraft Sloan, please.

Mrs. Karen Kraft Sloan: Thank you very much.

When we had the witnesses appear before the committee on the issue of their regulatory policy, they indicated to us that departments would have a great deal of flexibility in interpreting these guidelines. Mr. Chair, have we received information from Environment Canada yet on how they interpret those guidelines?

The Chairman: Not yet, to my knowledge.

Mrs. Karen Kraft Sloan: You have said that if we keep cost-effectiveness in CEPA, the cost benefit analysis model, which is a very rigid model, would continue to be used.

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Do you know of any situations in government where this model has been applied more flexibly, especially around issues related to environmental economics? When you start to talk about the cost and benefits related to preservation of the integrity of ecosystems and things like that, you have to take into account different kinds of accounting. I'm just wondering how this might play out.

Mr. Mark Winfield: Our understanding has been that this is understood to be a fairly significant barrier to the taking of action with respect to health, safety, or environment regulation. The other precedent, of course, is in the United States. Under the Reagan administration, one of the first things they did was issue an executive order that mandated a rigid cost benefit model for the evaluation of proposed regulations.

It's interesting that one of the first things the Clinton administration did was issue a new executive order that essentially removed the rigid test and simply required the identification of the major costs and benefits. It also placed a very strong emphasis on distribution of costs and benefits. That is referenced in the paper I did for the environmental commissioner's office. So there is precedent for softer or more flexible applications of this kind of cost benefit requirement.

The real concern in this context is that if Parliament endorses the concept by retaining the cost benefit language, it would be seen to be reinforcing the existing policy in its current structure. I think that would be very problematic.

Mr. Paul Muldoon: There is an emerging discipline from environmental economists on how to do costed benefit the right way, in terms of looking at the social environmental benefits and costs in addition to the fiscal benefits and costs. There are various applications and case studies of where that's been done. So it's not as if some economists have been silent on how to do it right; it's just that they haven't been heard.

There are models out there to do it right, but the 1995 policy and the culture around that term suggests to us it's really one-sided. What are the hard costs of it, without looking at the benefits of environmental regulation, in terms of human health, environment, and other consequent benefits? So there's no barrier for doing it right. It's just that I don't think it will happen.

Mrs. Karen Kraft Sloan: Just on the issue of harmonization, are you aware of any provincial legislation that requires the province to consult with the federal government, under the terms of the legislation, like CEPA does?

Mr. Mark Winfield: The legislation we're most familiar with is Ontario's, but it tends to set the model for other jurisdictions. There are no clauses, to our knowledge, in any Ontario statutes related to the environment or natural resources management that would require consultation with another level of government before the taking of action. The standard language in these cases is to be permissive and provide the option of consultation, if the minister chooses to take it. But this kind of language is, in our experience, unprecedented.

Mrs. Karen Kraft Sloan: You indicated in your presentation changes to clauses 56 and 199 on pollution prevention planning and emergency planning. These changes are different from what was outlined in Bill C-74 and Bill C-32. I wonder if you could just go into a little more detail on what those changes are and the kind of impact they might have on actual pollution prevention measures.

Mr. Mark Winfield: The change is the same in both sections. Essentially, the way Bill C-74 was drafted, pollution prevention planning could be triggered on the basis of a statement by the minister that they intended to make a recommendation that a substance be added to the list of toxic substances under schedule 1 of the act. Essentially, it allowed pollution prevention planning to be required once a finding of toxicity had been made by Health Canada and Environment Canada under section 11 of the act.

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The new wording in Bill C-32 only allows for pollution prevention planning once the step has been taken of the lieutenant governor in council actually putting a substance onto schedule 1 of the act. In this context, it is very important to understand that none of the substances that were found toxic through the original PSL-1 assessment process have been put onto the list of toxic substances yet. Bill C-74 provided a way of triggering pollution prevention planning requirements and emergency planning requirements at a much earlier stage than Bill C-32 does, and a recommendation is simply to restore the language of Bill C-74 in these two sections.

Mr. Paul Muldoon: In effect, the change between Bill C-74 and Bill C-32 is that there's all likelihood that it would be more difficult for the exercise of ministerial discretion to impose pollution prevention plans under Bill C-32 because of the fact that those substances must be on the toxic substances list. So even though a substance may be toxic, the minister may not be able to exercise her discretion unless it's put on the toxic substances list.

What we are not clear about is why there is that additional hurdle. Constitutionally, once a substance is declared toxic, it then does evoke federal jurisdiction to act. It need not be placed on a toxic substance list also.

Mrs. Karen Kraft Sloan: So once it has been declared toxic, the federal government has the constitutional right, jurisdictionally speaking, to start undertaking action to manage the substance.

Mr. Paul Muldoon: That's our belief. It need not be placed on the list of toxic substances.

Again, that's just one huge hurdle the minister will have to go through before she can act, and we're not clear on the rationale for that hurdle. If it's toxic, let's get the pollution prevention planning in place as quickly as possible after.

Mrs. Karen Kraft Sloan: But as I understand it, the requirement for pollution prevention plans is still discretionary. It's not required that you must have a pollution prevention plan. Is that correct?

Mr. Mark Winfield: We are also making a recommendation that the discretionary language in clause 56 be replaced by mandatory language. Where it now says the minister “may, at any time, publish in the Canada Gazette”, we're recommending changing that to the minister “shall publish in the Canada Gazette”. So, in fact, pollution prevention planning would become mandatory for substances that are found to be toxic for the purposes of the act.

Mrs. Karen Kraft Sloan: Okay, and is the issue the same for emergency plans as well?

Mr. Mark Winfield: Yes. Exactly the same change was made between Bill C-32 and Bill C-74, and we would recommend the same two changes in section 199 with respect to emergency planning.

Mr. Paul Muldoon: One must ask, what are the practical implications of our recommendations?

It means that for the handful of substances that are declared to be toxic—I'm talking about a relatively few number of the 23,000 substances in commercial use—industries will be directed to look at their processes and decide how to prevent the use or creation of the most dangerous substances known. It's not as if this is a heavy-handed, expensive procedure we're advocating. We're saying if the federal government in its scientific wisdom finds a substance to be toxic, then certainly it's incumbent upon industry to look at its own processes and practices to determine how to avoid the use or creation of those substances. That's the implication.

Mrs. Karen Kraft Sloan: The other question I had was that you said none of the current PSL-1 has been put on the toxic substances list. How long has that process been from start to finish?

Mr. Mark Winfield: It's coming up on ten years.

Mrs. Karen Kraft Sloan: Ten years.

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Mr. Mark Winfield: I think the original PSL was in 1989. The determinations of the toxicity or non-toxicity of the substances came out mostly in 1993, 1994, and 1995. We're still waiting for the next step of putting the ones that were found to be toxic actually on the list of toxic substances.

Mrs. Karen Kraft Sloan: So even though it has taken ten years to identify substances as toxic, they're not on the toxic substances list. There is no requirement to even act in a discretionary way for pollution prevention plans.

It's rather intolerable. You wonder why the process was undertaken in the first place.

But second, on the issue of endocrine disrupters, Europe and the United States are already taking action on regulating these substances and trying to do something about them.

So if we have a track-2 process where something isn't even fast-tracked in a 10-year process that appears to be going nowhere, are we talking about dealing with endocrine disrupters in 20 or 30 years when other international regimes are currently taking action?

I guess I'm getting a little boiled up right now, but a lot of what we hear from representatives from industry is that they want to be compatible with international regimes. Well, maybe we should be.

Mr. Mark Winfield: The regime that would be proposed here, in fact both on pollution prevention and emergency planning, even with the amendments we're proposing, would be extremely modest compared to, for example, pollution prevention planning in Massachusetts, where they deal with 500 substances, or the emergency planning requirements that exist in the United States under the Comprehensive Environmental Response, Compensation and Liability Act, Super Fund Act Amendments, the Reauthorization Act of 1986, and the Clean Air Act. There are much more elaborate requirements there.

Mr. Paul Muldoon: Let me assure you that Canada is not out front. We are not leading the parade in any of these issues. So I don't think that, as parliamentarians, you have to worry about being too far in front of this act right now.

The Chairman: Next is Mr. Lincoln, followed by the chair.

Mr. Clifford Lincoln: I'd like to follow up on this question of endocrine disrupters, because the whole argument is whether or not we wait until science is proven. Do we move before it's proven?

It seems to me that we should start from the premise of the preamble:

Whereas the Government of Canada is committed to implementing the precautionary principle that, where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation;

That seems to me to be the answer here.

I think at this point we've got to show whether there's a threat of serious or irreversible damage. That's all we have to show.

Look at what's happening just in the United States right now. I wonder whether you have this information. I understand the U.S. has been studying this issue since 1996. There's a committee of users, the government, and scientists. I think they're supposed to be reporting by early 1999, when they will then take measures. It looks as if the science is building up into a formidable array of evidence now.

Can you comment on this first?

Mr. Paul Muldoon: The answer is yes. The documentation that's already before the committee on this issue is from the World Wildlife Fund. It goes through in some detail the work that's already going on in the United States dealing with the U.S. EPA's EDSTA process and other strategies dealing with trying to identify and screen for endocrine disrupters.

It relates to my earlier comment that I understand why industry appears before you saying they want to remain competitive internationally and don't want Canada to be too far out.

On the other hand, our response is that Canada is not far out in front. In fact, in many of these areas we're lagging behind. You quite rightly point out the work of the United States EPA in this regard. They are ahead of us scientifically, and now they are laying the foundation to act either through policy or regulation. It would seem to me that because so much of the science did come from our own scientists and because Canadians are in the same position as Americans in terms of being affected by these substances, it's only incumbent that we actually go as far as if not farther than them in this Bill C-32.

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Mr. Clifford Lincoln: I just came back from a meeting of the Arctic parliamentarians, the Standing Committee of Parliamentarians of the Arctic Region, where we heard evidence from the leading Norwegian scientist working with the Arctic Council. He said there's irreversible evidence that research on polar bears in Europe... He pointed out it's not been confirmed in Canada, it's a different picture in Canada, it's not as bad. But in the European Arctic the same thing is happening with bears that has been seen in Florida with alligators and so forth, hermaphrodite bears and definite evidence of endocrine disrupters being at work.

This information now comes in from the U.S., the Danes, the Scots, in England, and here. What are we doing here in regard to following up on the signs in correlation to what's happening in the United States?

Mr. Paul Muldoon: I think there is growing evidence from research in the Arctic that parallels the kind of research you referred to. In terms of what our response is, I think we're still trying to convince policy makers that in fact there is a problem. That's why I think there is an inherent inconsistency between the preamble, which adopts the precautionary principle, and the guts of the bill. If we believe in the precautionary principle and the weight of evidence, then it would seem to us you would have to accept the problem of endocrine disrupters and provide the policy and legislative ability to respond to it. That's the challenge.

The Chairman: Thank you.

Mr. Knutson, followed by the chair.

Mr. Gar Knutson: Thank you very much, Mr. Chair.

Mr. Muldoon, in regard to subclauses 91(1) and 92(1), these lay out the timelines for the regulations. Subclause 91(1) is on page 59 of the act. It mentions that the minister must act within two years of the publication of the minister's statement under paragraph 77(6)(b). Then under subclause 92(1) it uses the timeline of “substance shall be made and published in the Canada Gazette within 18 months”. I wondered if you have any comments on those timelines—or Mr. Winfield or Madam Inch.

Mr. Paul Muldoon: The context for those amendments is that criticism of the existing CEPA is that once a substance has been declared toxic or once it's put on the list of toxic substances, there is no requirement to act. These provisions attempt to clarify that and basically put a timeline in, requiring the minister or cabinet, as the case may be, to act. That's why we're supportive of these provisions.

Mr. Gar Knutson: All right. And you don't think two years is too long?

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Mr. Paul Muldoon: One side of me says it's too long and the other side says there has to be some reasonableness involved in it. I should go back to my own recommendation, but I think it's probably within the ballpark, yes.

Mr. Gar Knutson: Okay. Thank you.

The Chairman: Thank you. I have one brief question and one clarification.

Could you clarify to us, please, with respect to subclause 93(5), which is called the exemption clause, and which says “The Governor in Council may, on the recommendation of Ministers, make regulations providing for the exemption of the following activities”, and then it lists the activities in (a) and (b), which are quite a lengthy list, in view of the fact that you do not comment on them, whether you support them?

Mr. Paul Muldoon: One of the challenges of this process is the more we read the bill, the more we have to say. So we cut it off at 172 recommendations. But when we went through the bill and looked at subclause 93(5), the question was why is the clause here? Subclause 93(1) gives the cabinet, in effect, the broad power—and the constitutionally valid power—to do a broad array of activities dealing with substances.

The Chairman: You realize that you could drive a truck through this exemption.

Mr. Paul Muldoon: Exactly. So what subclause 93(1) giveth, subclause 93(5) taketh away.

What the rationale is, Mr. Chair, we simply do not know. If we did have the advantage of supplemental submissions and recommendations, we would simply ask that subclause 93(5) be deleted—and if not, at the very minimum, clarify what the intent of it was. Why that couldn't be worked into subclause 93(1), we're not clear.

Mr. Mark Winfield: It's particularly strange, given the lack of prohibitions in the bill, that they would then also have written in a clause like this, which essentially provides a blanket power to exempt anything from everything. It's very strange. I note here in my own copy I've got a large question mark in the margin next to it. I think it's maybe best to remove it, given that there are no actual prescribed regulatory actions required under the act. It's not an offence. It should be, perhaps, but it's not an offence, for example, to release a toxic substance unless it contradicts a regulation that's made under the act, for example.

The Chairman: Fair enough.

The other one is a question that brings us back to endocrine disrupters. There is a provision in the bill, subclause 75(3), which in essence says that we could, provided that other jurisdictions are dealing with endocrine disrupters, deal with the substances and put them on the fast track in Canada. Wouldn't that be a way of dealing with endocrine disrupters in a satisfactory manner—by invoking this clause and relying on the work done in other jurisdictions and somehow piggyback that into our jurisdiction?

Mr. Mark Winfield: There are actually, I notice, two problems with this particular clause. One is it simply mandates the minister to review the decision of the other jurisdiction. But the finding of toxicity is still based on the definitions found in part 5 of the bill generally, so that the problems we've identified before with the risk assessment models still may apply. The other thing, I just noticed—and this ties into Paul's comment earlier—is the following clause is another of these residualization clauses, which says they can't look at it if it's regulated under another act of Parliament that provides for environmental health protection. It doesn't make any comment even about the adequacy of that protection. So this is something—

The Chair: But does it preclude access to the international...?

Mr. Mark Winfield: No, no, it doesn't preclude access to the data, but the finding of toxicity is still going to have to go through the structure of the bill, as drafted.

The Chairman: All right. Thank you very much for clarifying this point for us. We thank you very much indeed—

Mr. Gar Knutson: May I just ask one question?

The Chairman: Yes, please, Mr. Knutson.

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Mr. Gar Knutson: I just have one point on subclause 93(5), the exemption clause. Is there similar language in the current 1988 CEPA?

Mr. Paul Muldoon: I know there is current language in Bill C-74. I can check for you on the current CEPA, but I don't know off the top of my head.

Mr. Gar Knutson: Fine, thanks.

The Chairman: We can have that researched for you.

All right. We thank the members of the committee and of course the witnesses this morning for this comprehensive and thorough submission.

Tomorrow we'll hear the Canadian Bar Association and on Thursday we will deal with the Kyoto negotiations and the Buenos Aires conference. The clerk has been successful in securing the presence of the Canadian negotiators for that panel discussion. So we have two interesting meetings ahead of us this week. We also have on Thursday afternoon the deputy ministers of the environment, as requested. So this week is quite exciting. Next week will be perhaps less exciting, but it will provide members with more time to dip into their knowledge of the bill.

I would like to also bring to your attention that on Tuesday, on the request of Mr. Charbonneau and others, we will deal with the biodiversity witnesses and the work they are doing and put that discussion on a constructive track.

Thank you all for your attention, support, and inquisitive spirit.

This meeting is adjourned.