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, November 3, 1998

• 0914

[Translation]

The Chairman (Mr. Charles Caccia (Davenport, Lib.)): Good morning, Ladies and Gentlemen. Pursuant our study reference from the house dated 28 April, the committee will resume consideration of Bill C-32, an Act respecting pollution prevention and the protection of the environment and human health in order to contribute to sustainable development.

• 0915

[English]

The House, as you will remember, gave second reading on April 28. Since the time this bill reached committee, we have had some extensive and interesting hearings. We consider it today on the first day for clause-by-clause study, which will consist mainly of general discussion, discussion based on questions for the officials from those members who wish to do so, as some have already indicated to me, and discussion on the preamble in general terms.

The detailed work will begin tomorrow, when John Moffet will be able to join us and assist Monique Hébert, who is our main researcher and adviser on substantive matters related to the bill.

Once we have discussed these various aspects, we will have an examination of the preamble, as I've said, not a session to amend it, but simply a discussion for the time being. I hope you will concur with that approach, and I assume from your silence that you do.

Tomorrow, we'll receive officially the version en français et anglais of Monique Hébert's comparative analysis of the government response to your health bill and to Bill C-32. It is a booklet with a grey cover, which, some of you will recall, was issued in 1995, I believe. It is a document that reflects the government's position in response to the committee's report. Also, there will be another document circulated tomorrow—on virtual elimination—which was prepared by John Moffet.

Today you have three documents before you. There is a collection of amendments received by the clerk as of last night. The clerk informs me that he's expecting an additional avalanche of amendments, ranging in number anywhere between 100 and 200.

You also have an agenda, which briefly indicates that we must deal with every clause and every schedule of the bill. I'm told by the clerk that the codes from the amendments so far received are indicated under the appropriate clause.

And then you have the guidelines. And it may be that we should go through the guidelines together because there may be questions that you want to have clarified.

Before doing that, you may want to think about the possibility of an in camera meeting that would have the purpose of discussion of amendments before we begin the formal clause-by-clause exercise. If that is the case, then I would invite you to let me know, or let the clerk know, by the end of this meeting. If you wish to have an in camera meeting, it would take place on November 16, because at that time, then, the clerk, who is an optimist, hopes that he will have all the amendments ready.

..0920

If there are merits in that kind of in camera meeting, it is not absolutely necessary, and I will leave it to your judgment.

So let me then call on the guidelines and ask you to have a look at bullet 1. I will actually call the guidelines page by page so as to give everybody an opportunity to obtain clarification. Would you like to read page 1 and indicate to me whether you have any questions?

Mrs. Karen Kraft Sloan (York North, Lib.): Which package is it, Mr. Chair?

The Chairman: It's the procedural guidelines.

Mrs. Karen Kraft Sloan: Okay.

Mr. Clifford Lincoln (Lac-Saint-Louis, Lib.): Mr. Chairman, may I ask a question about guidelines?

The Chairman: Yes. If there are no questions on page 1, I will call page 2.

Madame Girard-Bujold, s'il vous plaît.

[Translation]

Ms. Jocelyne Girard-Bujold (Jonquière, BQ): Mr. Chairman, could you clarify the first point of the general rules of procedure for the clause-by-clause examination of Bill C-32. It says:

The written amendments the members intend to move are to reach the clerk of the committee on Monday, November 2, 6 p.m., at the latest.

Am I to draw the conclusion that any amendments we'd like to table at the last minute will be called out of order? If we were examining a clause in particular and wished to move an amendment, we couldn't do it?

The clerk of the committee: Mr. Chairman, it's not up to the clerk of the committee to set the committee's deadlines. We simply wrote this to make sure that the amendments that are going to be examined in committee today would be received before yesterday, 6 p.m. But it's up to the committee to set its own final deadlines.

The Chairman: Ms. Bujold, it's a matter of preference; we wished to have the amendments in hand before a given date.

Ms. Jocelyne Girard-Bujold: It's a matter of preference and not an obligation.

The Chairman: No, it's not an obligation. But if the members could co-operate, it would make the clerk's work easier.

Ms. Jocelyne Girard-Bujold: But we can still move other amendments?

The Chairman: Yes, that may be done.

Ms. Jocelyne Girard-Bujold: Fine, thank you, Mr. Chairman.

[English]

The Chairman: Merci, Madame.

If there are no further questions about page 1, may I perhaps ask you to look at page 2?

Keep in mind a rule that has been around for some time, namely, the one outlined with the fourth bullet, that is, if you make an amendment in committee and it is defeated of course it cannot then be raised in the House at the report stage as a normal rule unless the Speaker looks the other way or has reasons to accept it. As a general rule, that has to be kept in mind: what is defeated in committee is not likely to be accepted as an amendment in the House.

• 0925

Mr. Gilmour?

Mr. Bill Gilmour (Nanaimo—Alberni, Ref.): I think we should be setting a date when all the amendments should be in to prevent us from going back—

The Chairman: Definitely. By November 16 we would want to have all the amendments in, for sure, before the work becomes impossible. This is why, however, the date of November 2 is an invitation to accelerate the process.

Mr. Bill Gilmour: So after November 16 the door is closed?

The Chairman: Yes. We don't want to be undemocratic, but it is desirable that we draw a line, at that stake...

Mr. Bill Gilmour: Yes.

The Chairman: Any comments or question on page 2?

Mrs. Karen Kraft Sloan: I was wanting clarification on the first bullet, which appears to be very clear. It was my understanding that if you had moved an amendment you could move to withdraw it, but you need to have unanimous consent.

The Chairman: Yes. That is the normal practice. You ask the committee and usually the committee gives that consent very gladly. It is one less problem to deal with.

Mrs. Karen Kraft Sloan: But we can't be assured that we will have unanimous consent to withdraw our motion?

The Chairman: It's a procedural matter, but the clerk adds that it is only when the motion has already been moved. If the motion has not been moved, then there's no need to withdraw it.

Mrs. Karen Kraft Sloan: Can you have discussion around an amendment before it has been moved?

The Chairman: No. You put forward the amendment, then you have the discussion.

Mrs. Karen Kraft Sloan: I guess we were always really nice to Mr. Gilmour. When he put his amendments forward, we discussed them, and if he thought they weren't going to pass he withdrew them.

The Chairman: Well, he would be glad to reciprocate, I'm sure.

Mrs. Karen Kraft Sloan: I'm sure Mr. Gilmour and all of our colleagues will be happy to reciprocate.

The Chairman: Quite frankly, I never understood that rule myself, but the clerk has drawn it from the House rules. It's one of those rules that could easily be dispensed with.

Are there any other questions about page 2? If not, would you please look at page 3?

Mr. Lincoln.

Mr. Clifford Lincoln: Mr. Chairman, I see that under bullet number 5 the preamble will be discussed last. I understand that's the procedure. At the same time, I think, in this bill, which is so complex and complicated, the preamble almost sets out the spirit of the bill, the intent of the bill, the way it should be looked at. It would make much more sense to start with it rather than leave it until the end. I don't know if you require unanimous consent, but I would like to make a proposal that we look at the preamble first.

The Chairman: Do you mean discussion and amendments or just discussion?

Mr. Clifford Lincoln: Discussion and amendments.

The Chairman: The committee is the master of its own rules, in a sense. If the committee is unanimous in deciding to have a discussion and amendment at the very beginning, we could do that, but keep in mind that—the clerk is now looking up the rules—after having gone through the entire bill you may have some thoughts about the preamble as well and you may want to revisit it. It would mean then revisiting the preamble. However, let's see what is written in the rule book on preambles.

Would you like to read rule 705 to us?

The Clerk: Beauchesne's rule 705(1) reads:

When all the clauses and schedules have been agreed to, the preamble is considered; amendments may be moved thereto if rendered necessary by amendments made to the bill.

It continues, and says that amendments are admissible if they're required “for purposes of clarification or uniformity”.

So the committee would have some difficulty in amending the preamble at this stage, Mr. Chairman.

The Chairman: Madam Kraft Sloan and then Madam Torsney.

Mrs. Karen Kraft Sloan: Because of the complexity of this bill, I think it might not be a bad idea if we have a discussion on the preamble.

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The Chairman: Oh yes, we are having a discussion. It's only a question of whether we also go beyond a discussion into amendments. That is the only point of this.

Madam Torsney.

Ms. Paddy Torsney (Burlington, Lib.): It's my understanding that you could have the discussion, stand it down and come back and do the amendments later if necessary.

The Chairman: Yes.

Ms. Paddy Torsney: That would be procedurally correct.

The Chairman: Yes, that's correct.

Ms. Paddy Torsney: So we might try that.

The Chairman: Are there any other thoughts?

Mr. Gilmour.

Mr. Bill Gilmour: I think it would be worthwhile to discuss it, but I don't think moving amendments on the preamble at the beginning would be helpful, because as we go through the bill we may have some different thoughts and we would just go back and revisit it.

[Translation]

The Chairman: Ms. Girard-Bujold, please.

Ms. Jocelyne Girard-Bujold: Mr. Chairman, I am agreeable to discussing the preamble first and looking at the amendments at the end.

[English]

The Chairman: Any other comments? That's it? Fine.

Are there any other questions on page 3 of the guidelines?

If you are comfortable with them, then, that takes care of the procedural guidelines. We have a good set and we are indebted to the clerk for having prepared them.

We could now entertain a discussion on the preamble, but I was asked before the meeting started for a session to permit some questions of the officials. The request came from Mr. Lincoln. Would you like to do that?

Madam Carroll.

Ms. Aileen Carroll (Barrie—Simcoe—Bradford, Lib.): Mr. Chair—sorry, Mr. Lincoln—I just wanted to clarify something. I have just one last question on the procedural guidelines.

The Chairman: Yes.

Ms. Aileen Carroll: At the first bullet it says that drafted amendments should be in to the clerk no later than 6 p.m. on November 2, which was yesterday, but I thought Mr. Gilmour mentioned November 16.

Mr. Bill Gilmour: The chair was saying that.

The Chairman: It would be desirable if this whole exercise were completed as soon as possible. Amendments can come in any day this week and any day next week, but please draw the line on November 16 so that we bring that exercise to a completion.

Ms. Aileen Carroll: Thank you.

The Chairman: Mr. Gilmour.

Mr. Bill Gilmour: Can we get an idea from the clerk how many amendments are in to date?

The Chairman: Mr. Clerk.

The Clerk: Mr. Chairman, you have to make the distinction between amendments and requests for amendments. The drafted amendments formally received as of 6 p.m. last night are in front of you. There are about 50 or so. Unofficially, we figure we may have as many as 200 requests that the legislative drafters are still working on and we're processing.

Mr. Bill Gilmour: Thank you.

The Clerk: Mr. Chairman, as you know, these will go back to the members. When the members send them to me, they then become part of the package which will be before the committee.

The Chairman: Thank you.

Now, there are questions on the entire bill or parts of it that could be entertained before we discuss the preamble.

Mr. Lincoln has the floor, having indicated his wish to do so, and of course the floor is open to other members who wish to do the same.

Mr. Clifford Lincoln: I wanted to ask a question about part 5, toxic substances, which is really the guts of the bill, and it follows on a question I put to CELA and CIELAP, the Canadian Environmental Law Association and the Canadian Institute for Environmental Law and Policy, whose representatives appeared before us very recently. They have made 30 recommendations for amendment to part 5, which was about one-third or one-quarter of all the amendments they produced, a substantial number.

I questioned Mr. Winfield first as to whether, if they have made 30 recommendations on part 5, which is the guts of the bill, it is fixable. Is part 5 fixable? Should it be rewritten? Should it be readdressed?

This what Mr. Winfield said inter alia,

I must admit as it's drafted, frankly, it's a mess. Even just trying to understand how the structure of the sections are drafted, how they would work, would be quite a job.

• 0935

I think that does reflect the degree to which that part is a mess. I asked him specifically what would strike him if he had to look at part 5 and assess it versus the government response. I asked him what areas he felt it has departed from. He mentioned as a key element the definition of virtual elimination, saying the definition in Bill C-32 is worse than what's in the government's response, even though they were not pleased with what was in the government response in the first place.

Then they mentioned new substances. Mr. Winfield said the other major change he noted is in relation to new substances. In the government response, there was absolutely no mention at all of any substantive change. He referred particularly to subclauses 81(7), 81(8) and 81(9).

They also mentioned recommendation 9.14 of the government response regarding the correlation between the TSMP, the toxic substances management policy, and Bill C-32. And this time, it was Mr. Muldoon who said he thought Bill C-32 goes way beyond that.

These are substantial differences, and as I say, they suggested 30 recommendations. The thrust was that it was almost unfixable. Do you agree with that opinion? Do you think part 5 should be rewritten or substantially fixed?

Mr. Harvey Lerer (Director General, Canadian Environmental Protection Act Office, Department of the Environment): Mr. Chairman, Mr. Lincoln, part 5 is most certainly complex, and it is, as Mr. Lincoln said, the central theme in terms of management of toxics. My view is that it is most certainly workable. With respect to the specific references that were made by the previous witnesses, as we get to clause by clause I think we will demonstrate that it is not inconsistent with the government response.

So if the question is whether I think it is a workable portion of the bill, my answer to you is yes, sir.

Mr. Clifford Lincoln: So in your view, part 5 as it stands today should not be amended substantially?

Mr. Harvey Lerer: I do not know what kinds of amendments will be brought forward by the committee. In my view, part 5, as it stands, is a workable section of the bill that is before you.

Mr. Clifford Lincoln: So the department is very satisfied with part 5 the way it is.

Mr. Harvey Lerer: The department is satisfied with part 5 as a workable component for toxics management.

Mr. Clifford Lincoln: Then we really have a problem.

The Chairman: Are there any further questions on part 5 or on other parts of the bill?

No? In which case, Mr. Lerer, may I ask you a question about the definition of virtual elimination in part 5? Have you discussed this definition with the International Joint Commission and have you been given assurances that its representatives are in agreement with this definition?

Mr. Harvey Lerer: I have not personally discussed it with the International Joint Commission. The definition as it stands—

The Chairman: Have any of your predecessors done so?

Mr. Harvey Lerer: I do not know that, sir.

The Chairman: And? Carry on.

Mr. Harvey Lerer: In regard to the definition of virtual elimination, we have looked at documents provided through the IJC and the Great Lakes Water Quality Agreement. We have not been able to find another definition of virtual elimination in those documents that we've looked at.

• 0940

We have seen references to virtual elimination in the Great Lakes Water Quality Agreement, in a section that refers specifically and only to discharges.

That is what I can tell you about our research on virtual elimination and the IJC, sir.

The Chairman: The definition reads:

the ultimate reduction of the quantity or concentration of the substance in the release below any measurable quantity or concentration that is at or approaching the level of quantification as defined by the regulations.

Are you satisfied with the clarity of this definition?

Mr. Harvey Lerer: Am I satisfied as to the clarity of it, sir? In purposes of statute, yes, sir.

The Chairman: What do you mean by “in purposes of statute”?

Mr. Harvey Lerer: Very often there are working definitions that are used in the scientific community, but for purposes of putting it into a statute, yes, sir, I am content with it.

The Chairman: Would you like, for our benefit, to translate the definition from the statutory language into plain language?

Mr. Harvey Lerer: Yes, sir, of course. Let me just turn to the appropriate page.

The Chairman: Page 37.

Mr. Harvey Lerer: The intent of the definition, as much as I can say in terms of the plain language of the definition, is that when one specifies virtual elimination one takes a look at how far the technology allows one to measure that particular substance. And that measurable quantity which approaches that technological limit will be, by regulation, the definition that is used for virtual elimination.

There are two aspects. One is the technological ability in standard analytical work to measure the substance. We can measure substances down quite a ways now. And having determined that, the level of quantification, that is the level that would be set.

Have I made it any clearer or have I made it even cloudier?

The Chairman: The latter rather than the former, but Madam Kraft Sloan has a question.

Mrs. Karen Kraft Sloan: So you're saying in terms of your interpretation of this statute that the definition of virtual elimination is set at just below or approaching what can be measured by technology.

Mr. Harvey Lerer: It's set at what can be measured in a standard process through technology. There is always the development that is going on in the research laboratories, but this definition means standard, available, analytical procedures.

The Chairman: Whose standards are they?

Mr. Harvey Lerer: They would be the standards available to analytical laboratories in the country.

The Chairman: And who sets them?

Mr. Harvey Lerer: The scientific community.

The Chairman: These wouldn't be ISO standards, would they?

Mr. Harvey Lerer: Not necessarily, sir, no.

The Chairman: “Not necessarily” means...no?

Mr. Harvey Lerer: If it happens that an ISO standard is also what laboratories in the scientific community agree on, yes. I'm not familiar enough with the ISO process to know whether they have a standard or are developing a standard for every single substance under consideration for virtual elimination. The ISO process is most certainly a process that could be used.

The Chairman: That's very helpful.

Mr. Lerer, again within the definition, there are an (a) and a (b) attached. One is a ministerial discretion and the other is a ministerial discretion based on harmful effects. To what extent do these two qualifications modify the definition of virtual elimination?

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Mr. Harvey Lerer: I don't believe that they modify the definition of virtual elimination. First of all, (a)—“is specified by the Ministers or prescribed”—simply means that ministers will make a decision and tell people about it.

And in regard to (b), as the analytical technology gets better, there may be instances where the technology has outraced any result or imminent harmful effect, and that could be a prescription against, for example, lowering it simply for the sake of technology as opposed to an effect in the environment. That's what it is meant to address.

The Chairman: With respect to your definition of “the Ministers”, are they the two ministers in charge of the bill?

Mr. Harvey Lerer: Yes, sir, that's correct.

The Chairman: No other ministers?

Mr. Harvey Lerer: That is the defined term. The ministers are the Minister of the Environment and the Minister of Health.

The Chairman: Mr. Lincoln.

Mr. Clifford Lincoln: To come back to virtual elimination, do you agree that the definition in the bill right now in subclauses 64(1) and (2) is not the same as the one in the TSMP?

Mr. Harvey Lerer: I will check the document on the TSMP sir, but...

Mr. Clifford Lincoln: I just thought I'd read from the TSMP.

The Chairman: Can you give us a page number?

Mr. Clifford Lincoln: Pages 1 and 2:

virtual elimination from the environment of toxic substances that result predominantly from human activity and that are persistent and bioaccumulative.

That's Track 1.

And then comes Track 2:

management of other toxic substances and substances of concern, throughout the entire life cycles, to prevent or minimize their release into the environment.

It seems to me, the intention in the TSMP is very clear. For instance, there it says quantification as defined by the regulations, and if we tie this in to the regulation policy of 1995, it would be a real mess. We would have to prove risk. We would have to prove cost-effectiveness. We would have to prove cost benefits before we issue a regulation. Why didn't we take a much simpler and more direct route for virtual elimination, one which included persistency and bioaccumulation, instead of this definition here?

Mr. Harvey Lerer: Let me answer with a couple of points here. I believe that the definition you have in the bill is consistent with the toxic management substances policy.

In regard to the toxic substances management policy and the associated clauses in the bill, let me just go back. Track 1 says that if certain criteria are met... And we've talked about the criteria before: CEPA-toxic, mainly from anthropogenic sources, bioaccumulative and persistent. Track 1 says that if certain criteria are met there will be no debate about the ultimate goal: the ultimate goal will be virtual elimination. And we've defined virtual elimination for you in Bill C-32.

In those instances where all of those conditions are not met, then it's Track 2, the management of toxic substances. There, regardless of the track, especially in Track 2, there is nothing that prevents one from going toward almost-virtual elimination or virtual elimination. Those are not mutually exclusive tracks in terms of the result.

The other important point, I think, as we follow our way through the admittedly complex section of part 5, is that, if the virtual elimination of releases is not doable or has proven not to be effective, there is nothing... In fact, the minister has the authority, through clause 93, I believe, to take action on generation and use.

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As a philosophical point in terms of this bill, what we are saying is that our first point of attack is on releases, sir.

Mr. Clifford Lincoln: I understand what tracks 1 and 2 are trying to do. What I'm saying is this: it seems to me, if I read the TSMP and the policy and wording there, it makes sense to me as a person who reads English. If I read this—and you say the two are coordinated—it doesn't read the same. You say,

the ultimate reduction of the quantity or concentration of a substance in the release below any measurable quantity of concentration that is at or approaching the level of quantification, as defined by the regulations, and that is specified by the Ministers or prescribed,

and are you going to tell me that this makes sense? I believe it's a mess.

Who is going to understand this stuff? Who's going to understand that you have to prove there's a quantity, a concentration, a measurable quantity or concentration that is approaching a level of quantification as defined by regulations? I think we've tried to make this so obtuse that it will take a sort of magician to find out where that measurable quantity is and at what level. We'll just have a field day trying to prove where it is. It seems to me that there must be better wording than this. Is this the best we can come up with?

Mr. Duncan Cameron (Legal Counsel, Legal Services, Department of the Environment): Your comment that the policy reads differently than the statute is well taken, but of course one would expect that: policies are written in plain language whereas statutes are written in legalese, in legal language. They are drafted in s specific way.

One thing to keep in mind, if I may suggest, is that part 5 is clearly criminal law, and one would expect a very high degree of precision in the drafting of a criminal law statute. It's what the courts would require and it's what the charter requires. I believe that explains, in part, the difference in wording style and wording approach between the policy document and the statutory language.

Mr. Clifford Lincoln: Well, these people who made comments to us are also lawyers. They play with legislation all the time. They tell us that this virtual elimination description defies imagination and they say it has to be changed. And now you tell me that it has to be like this because of the requirements of—

A voice: Lawyers.

A voice: Gee.

Mr. Clifford Lincoln: These recommendations here—

The Chairman: What is your question, Mr. Lincoln?

Mr. Clifford Lincoln: My question is whether there is any way whereby this can be made understandable and at the same time follow the legal requirements of a statute so that we know exactly what it says. Or perhaps, Mr. Lerer, you can explain to us how you're going to decide on quantification and measurable concentrations. And this will not come into force until you have a regulation in place. How long will it take before that regulation happens? Where you talk about persistence or bioaccumulation, this has been tested over the years and we know what it is.

Mr. Harvey Lerer: Karen, do you want to speak to this?

Ms. Karen Lloyd (Manager, Canadian Environmental Protection Act Office, Department of the Environment): I can certainly speak to how long it will take to put a regulation in place. Certainly for each substance for which you propose virtual elimination, it will require a different regulation.

And just within practice within the department, before we go as far as proposing one officially there's a lot of work that's being done, and certainly the scientists are alerted in our department at the time that this is coming forward as a Track 1 substance for virtual elimination. They immediately start working on the level of quantification, getting the methods together and choosing which one would be appropriate and getting together with other scientists to help determine that.

So by the time a substance has been gazetted as Track 1, then they should be very close as well to having the regulation ready to go forward in terms of the level of quantification. There shouldn't be a huge gap in time between proposing it and getting it Track 1 and having the regulation in place.

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Mr. Clifford Lincoln: Now, if I may, I'll read this, because this is a key to the bill, really, which CIELAP and CELA have proposed. They propose that clause 64 should be redrafted as follows:

64.(1) In this Part, “virtual elimination” means the cessation of the intentional production, use, release, export, distribution or import of a substance or classes of substances.

(2) Where a substance is produced as a by-product of the production or use of another substance, virtual elimination means changes to processes, practices, substitution of materials or products to avoid the creation of a substance in question.

Is there anything wrong with that, with adopting a definition like this, which is most straightforward, which ties in much more closely with the IJC definition?

Second, to come back to regulations, would you have to take into account the regulatory policy of 1995 when you issue a regulation under the present system?

Mr. Harvey Lerer: Let me answer those questions in the order that you asked them.

You asked about the definition that you read out which was provided to you by CELA. The thing I did pick up—and I'm not sure it's the only one, but I will wish to speak to that the appropriate time—is that they talk about generation and use in terms of virtual elimination.

One of the fundamental principles, and I know that many witnesses have spoken to it, is that the first point of attack in this bill—and it has been in the current CEPA—in terms of managing toxic substances is to deal with releases into the environment. And we provide—and have provided in the current act as well—the minister with the authority to manage, control and even ban the generation and use where controlling releases is not possible. That is one thing that was triggered when you read that definition to me, sir.

The other point I'm not sure about, because I have not been able to find a definition of virtual elimination from the IJC, other than a description that is used only in the section on discharges. And I believe that my predecessor wrote to the committee on this point. I'm not sure that we could call the CELA definition closer to the IJC's. I am just not sure about that.

With respect to regulation and the regulatory policy of 1995, I would like to draw the committee's attention to the toxic substances management policy, to page 5, at the top of the page, where it says quite categorically: there:

The ultimate objective of eliminating a Track 1 substance from the environment is set irrespective of socio-economic factors. Nevertheless, management plans such as targets and schedules to achieve that long-term objective will be based on analyses of environmental and human health risks as well as social, economic and technical considerations.

I have, perhaps rather ineloquently, tried to make that statement to the committee before. I have never in my experience known socio-economic considerations to come to the fore in terms of setting the ultimate objective. How does one go about it? What is the phase-in? Most certainly, what is the timing associated with it? But my own view is that's being responsible.

We have a number of examples like that. In the Montreal protocol, the world came to the conclusion that we were going to ban the use of CFCs, and gave developed countries, I believe, 10 years to achieve that objective because of socio-economic considerations. The developing countries have others... And I think the recent announcement by the minister regarding sulphur in gasoline and a phase-in approach is another example of socio-economic considerations which are responsible ones.

Once again, I will repeat, I have never in my experience known the environmental protection objective that is set to be influenced by cost-effectiveness or the regulatory policy.

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The Chairman: Your reference to CFCs inevitably prompts, then, the question of why the attack—as you stressed quite rightly, twice—on release in the definition and not also on use, as in the case of CFCs.

Mr. Harvey Lerer: I believe, but I stand to be corrected on this, that a determination was made with respect to releases that it was not going to be sufficient with respect to meeting the objectives of the Montreal protocol.

The Chairman: No. In this definition, why is the attack only on release and not also on use?

Mr. Harvey Lerer: I'm sorry, I'm not sure I understand.

The Chairman: The emphasis of this definition, as you quite rightly pointed out, is on attacking release.

Mr. Harvey Lerer: Yes.

The Chairman: It does not include use as well. Why is that so?

Mr. Harvey Lerer: Because the primary point is on release. And in the bill, where virtual elimination of releases is either insufficient or is not possible, we provide that the minister has the authority to deal with generation and use.

The Chairman: But the attack on release is predicated on closed systems—

Mr. Harvey Lerer: Yes, sir.

The Chairman: —and the existence of closed systems is debatable. Therefore, the fact that use is not included in the definition is predicated on an assumption which does not correspond with the reality out there, where use is a very important factor in the definition. But it's not included in the definition and the question is, why?

Ms. Karen Lloyd: I think the onus is on the industries involved. If they cannot demonstrate that they can get it down to no measurable release, then we will go to the next step and we will stop the use.

The Chairman: And why is the onus on industry and not on the legislators?

Ms. Karen Lloyd: Because it's industry that has to change the processes they have to get the compound down to no measurable release—

The Chairman: And if they don't change?

Ms. Karen Lloyd: —and if they can't do that, then you go to the next step and you ban the use of the compound.

The Chairman: So you wait until the release takes place in order to act.

Ms. Karen Lloyd: No.

Mr. Harvey Lerer: I think, sir, that the way to characterize this is that the initial step is a challenge: demonstrate to us that there will be no releases or that releases will be contained, and if you cannot, we intend to move on generation and use. It's a challenge, most certainly with new substances.

The Chairman: In the policy that you quoted earlier, namely, the toxic substance management policy, there are four criteria that have to be kept in mind, namely, persistent, bioaccumulative, toxic and primarily the result of human activity. Are these the four criteria that come into play in the definition of virtual elimination?

Ms. Karen Lloyd: Yes.

The Chairman: And they are specified where?

Ms. Karen Lloyd: There are regulations that are being developed to put in place the numbers that you see within the policy for persistence in bioaccumulation.

The Chairman: Why are they not in the bill, the four criteria?

A voice: They are.

The Chairman: Oh, in 77(4)? They are in the bill, I'm told.

Mr. Harvey Lerer: They are.

The Chairman: Are there any further questions on part 5 in general or in general?

Mr. Yvon Charbonneau (Anjou—Rivière-des-Prairies, Lib.): On the preamble.

The Chairman: We want to go to the preamble.

Madam Kraft-Sloan, for the last question.

Mrs. Karen Kraft Sloan: I would like some clarification here, please. Subclause 90(1) says that

the Governor in Council may, if satisfied that a substance is toxic, on the recommendation of the Ministers, make an order adding the substance to the List of Toxic Substances in Schedule 1.

That's 90(1). Now, if you go back to subclause 79(4), it is on the issue of virtual elimination planning. This talks about when a person has to comply with the statement or plan he's made on virtual elimination, if I understand this correctly. It says,

The period of time to be specified in the statement shall begin no earlier than the date on which the order is made under subsection 90(1).

• 1005

If I understand this correctly, you don't have to begin to implement your virtual elimination plan until the substance is listed on the list of toxic substances. We were told at an earlier committee meeting that for about 10 years, 20-odd substances have been identified as toxic but are not yet on the list. So none of these substances, if indeed they were targeted for virtual elimination, would need to have any kind of virtual elimination plan implemented.

Mr. Harvey Lerer: Once they are on the list of toxic substances, the virtual elimination planning kicks in. You are quite correct.

Mrs. Karen Kraft Sloan: Does the planning kick in or does the implementation of the plan kick in?

Mr. Harvey Lerer: The planning.

Mrs. Karen Kraft Sloan: So you don't have to make a virtual elimination plan until the substance is on the list?

Mr. Harvey Lerer: Yes. That's correct.

Mrs. Karen Kraft Sloan: So according to this legislation, those substances that have been identified as toxic—after the 10 years it has taken to identify them—but are not yet on the list of toxic substances, still do not have to begin the process of a virtual elimination plan. Is that correct?

Mr. Harvey Lerer: Well, first let me address the time issue. What this bill does is—

Mrs. Karen Kraft Sloan: No. Is that correct?

Mr. Harvey Lerer: If the question is whether the planning is required, it is only required after the substance is listed on the toxic substances list.

Mrs. Karen Kraft Sloan: So these substances, which it has taken a 10-year period to identify, are not yet on the list of toxic substances and there is no requirement yet for them to have a virtual elimination plan.

Ms. Karen Lloyd: But what's different about this bill that corrects part of what you're saying is that we now have it so that when the minister finds a substance is toxic, she must automatically recommend to the Governor in Council that it be added to the list of toxic substances. So it's not like what's happening in the current CEPA, where we did find substances toxic and it has taken two years to add them to the list. We've now corrected that in this bill so that the recommendation is automatically put on and it's on.

Mrs. Karen Kraft Sloan: But if we go back to subclause 90(1), it says the Governor in Council “may” make an order adding it to the list of toxic substances. That doesn't sound automatic to me.

Ms. Karen Lloyd: Do you want to answer, Duncan?

Mr. Duncan Cameron: You're quite right in your reading of the bill. There is discretion on the part of the Governor in Council.

Mrs. Karen Kraft Sloan: So a substance can be identified as toxic and the minister can make a recommendation that it be added to the list, but it's still at the discretion of the Governor in Council.

Mr. Duncan Cameron: Yes.

Mr. Harvey Lerer: Yes. The obligation is on the minister to make the recommendation, but—

Mrs. Karen Kraft Sloan: But there is no obligation for the Governor in Council to add it to the list.

Mr. Harvey Lerer: That's correct.

Mrs. Karen Kraft Sloan: So we have a situation where you don't even have to start virtual elimination plans even though a substance is identified as toxic and should be headed for Track 1. So we don't even have a plan.

Now, what do we do about implementation of the plan? Is there something in subclauses 79(1) to 79(4) that says we have to implement virtual elimination plans?

A voice: You have to implement before elimination plans? I don't know.

A voice: This is the foolishness of this bill.

Mr. Harvey Lerer: I'm sorry. The question?

Mrs. Karen Kraft Sloan: Is there a requirement to implement a virtual elimination plan?

Mr. Harvey Lerer: No, there is not.

Mrs. Karen Kraft Sloan: So if I understand this correctly, we have a process whereby it takes 10 years to identify 22 substances and then the minister automatically has to make a recommendation that it be listed, but the Governor in Council can decide whether it will be added to the list of toxic substances or not. So some of those things may be added and some of those things may not be added. And it's only at that point when they are added that we have to begin the process of a virtual elimination plan, and then we don't even have to implement it. That's terrific.

Thank you very much.

The Chairman: Would you like to comment?

• 1010

Mr. Harvey Lerer: Well...

Ms. Karen Lloyd: I would like to make one comment. I don't see where you're getting the ten years that it takes to identify substances. That's incorrect.

Mrs. Karen Kraft Sloan: That's what we were told by previous witnesses.

Ms. Karen Lloyd: Well, then, they were incorrect.

Mrs. Karen Kraft Sloan: Okay, that's fine.

Ms. Karen Lloyd: And as the bill is worded right now, it does require that they develop and submit the plan to us—

Mrs. Karen Kraft Sloan: But not until it's on the list—

A voice: Not until it's on the list.

Mrs. Karen Kraft Sloan: —and there's nothing that ensures that these things are put on the list, because those 22 substances that have been identified have not been put on the list yet.

Mr. Duncan Cameron: There's nothing to ensure it, but it—

A voice: It hasn't happened yet.

Mr. Duncan Cameron: —stands to reason that it would be very difficult to imagine a situation where the Ministers of Health and Environment are making a submission to a special committee of council to have something added to the TSL and the Governor in Council would essentially ignore that recommendation or would veto it in some way.

The Chairman: Or even oppose it. You don't think it is possible?

Mr. Duncan Cameron: Possible, yes, but—

Mrs. Karen Kraft Sloan: But don't we have these listed now?

Mr. Duncan Cameron: —likely? I question how likely it is that such a thing would happen.

The Chairman: However, theoretically it could be opposed by an industry minister.

Mr. Duncan Cameron: As I said, theoretically this is a possibility, but it—

The Chairman: Anyway, when we come to that clause, the members can put forward an amendment.

Are we going now into the preamble?

Madame Torsney, followed by Mr. Laliberte.

Ms. Paddy Torsney: All I wanted to check on is if this in fact isn't some legal language that's been used in other legislation, if that “may” is in fact some kind of thing related to the Governor in Council and how that system works. Maybe we can get some clarification on that from the legal counsel.

Mr. Duncan Cameron: I can tell you, having looked at this in the past, that you will not find in legislation an expression that the Governor in Council “shall” do something. One does not find that formulation in law. It's always written in a permissive and discretionary way. If the Governor in Council is to be the decision-maker, then there's almost a convention, if you will, that it is to be a discretionary power and not a mandatory one.

The Chairman: Mr. Cameron, may I refer you to subclause 2(1), which refers not to the Governor in Council but to the Government of Canada, where the term “shall” is used?

Mr. Duncan Cameron: Absolutely.

The Chairman: How would you equate the two?

Mr. Duncan Cameron: Quite easily, sir.

Clause 2 refers to administrative duties that are imposed on the government as a whole, whereas clause 93 deals with law-making power, a regulation-making power, or in other words, the ability of the executive to create subordinate legislation.

And because it's a legislative act, the convention that I was referring to is that it's always phrased in the form of a discretion. One does not see in legislation a requirement that a subordinate lawmaker, the Governor in Council, shall make laws in a certain way. There's a difference between a legislative power and a duty, sir.

The Chairman: Thank you, Mr. Cameron.

Mr. Laliberte is next, and then we'll go into the preamble.

Mr. Rick Laliberte (Churchill River, NDP): I'm intrigued by your statement that our witnesses were wrong with the process of 10 years that they were giving us an example of, so maybe you can take the opportunity to give us your short explanation of what the process would be. Does this new CEPA speed up processing and listing of toxic substances? And on the other side, along with this, in general we were talking about definition of virtual elimination, but what about the definition of elimination, period?

Mr. Harvey Lerer: I'll ask my colleague to speak to the timeframes introduced in C-32.

Ms. Karen Lloyd: There's one important change in C-32 to address how long it takes to develop risk management plans once a substance has been found toxic. There are deadlines now for the development of a plan to address the risk—two years—and then you have 18 months after that to finalize it.

So there are two years to develop the proposals, the options for managing the risk, and then 18 months to finalize that, having gone through the consultations and finalized it. In the current CEPA, there are no deadlines for that.

• 1015

In terms of assessing chemicals faster, there is now a requirement to look at the decisions of other countries where they have banned or severely restricted chemicals and see whether Canada should be taking action on those types of substances. There are also the categorization and screening assessments for the 23,000 chemicals on the domestic substances list. And, like the current act, there is a five-year timeline for substances on the priority substances list.

But certainly, when you look at the categorization and screening of the domestic substances list, the screening assessment would very likely be a less rigorous type of assessment than would be required on a priority substance, so it would take considerably less time than the five years.

Mr. Rick Laliberte: When you say two years to prepare a plan to manage, if somebody breaches that two years, does that mean the process starts all over again?

Mr. Duncan Cameron: Non-compliance with any of the provisions of the act is an offence. Therefore, if the person who submits the statement saying he is in compliance is either not telling the truth or it takes longer than two years, that may result in an enforcement action.

Mr. Harvey Lerer: As well, with these kinds of timeframes and the minister in her responsibility as the head, if there is a breach, she is always subject to judicial review.

The Chairman: Do you have more questions, Mr. Laliberte?

Mr. Rick Laliberte: Yes, on the issue of the definition of elimination.

Mr. Duncan Cameron: This is the discussion that this committee has had on a number of occasions regarding the possibility of setting virtual elimination at zero. It has been mentioned a number of times that there are legal difficulties surrounding the concept of zero. Maybe I could explain what they might be.

Legally it may be possible to eliminate something, but what we understand in practice is that there is an enforcement problem in determining whether or not there are trace elements or any element of a substance present in a mixture or in another compound. It's the enforcement difficulties that arise in that situation that create the legal uncertainly. That is why the concept of virtual elimination has been used as opposed to straight-out banning. It's very difficult to establish whether or not a compound has been eliminated entirely, whereas if the standard is the lowest measurable amount then you have an ability to verify whether or not someone is in compliance. That is the legal difficulty that has been referred to here a number of times.

The Chairman: All right?

Madam Karen Kraft Sloan to conclude.

Mrs. Karen Kraft Sloan: I just wanted to go back to 79(4) because this is different from CEPA '96, Bill C-74; it's also reflected in Bill C-74 in the pollution prevention planning section and in this section, where there was no requirement for listing, whereby once it was recommended for virtual elimination, virtual elimination plans had to be undertaken. Subclause 79(4) has been added, which certainly delays the process to begin the virtual elimination plan. I'm just wondering why there was this change between Bill C-74 and Bill C-32.

Mr. Harvey Lerer: As you say, this clause provides that virtual elimination plans are only started upon listing.

• 1020

There is a clock for the department in determining what management process it wants to undertake. That clock starts at the determination of toxicity. So the clock for the department in terms of setting out what the management options are going to be in order to deal with a toxic substance begins on the declaration of toxicity. The formal demand for a virtual elimination plan begins when the formal listing has taken place.

Mrs. Karen Kraft Sloan: But here's my question. In CEPA '96, virtual elimination planning had to start upon recommendation. There has been a change between CEPA '96 and CEPA '98. The change is subclause 79(4). This has been added. This delays the start of virtual elimination plans. I wanted to know why, not—

The Chairman: This may be very difficult for Mr. Lerer to answer because he was not there at the time—

Mrs. Karen Kraft Sloan: All right.

The Chairman: —and it is presumably quite possible that this addition is the result of negotiations with industry. Therefore, it happened before Mr. Lerer came on the scene.

May I remind members of this committee of Monique Hébert's paper, dated October 6, in which she deals with the differences between C-32 and C-74? In that paper, she recommends the deletion of this particular subclause, 79(4), and when we get there, members of the committee will have to decide which way they want to go.

But it is important to remember that there is that paper prepared by Monique Hébert, dated October 6, which is intended to provide members with a clear path, so to say, for those who wish to bring C-32 in line with C-74.

That would then conclude our round.

The inquisition is over, Mr. Lerer. You can relax now, at least for the time being, and we can engage in a good discussion on the preamble.

I will start, as is usually the case, with the members of the official opposition if they wish to express comments on the preamble, and if not, with Mr. Jordan and Monsieur Charbonneau.

Mr. Joe Jordan (Leeds—Grenville, Lib.): I have one question in terms of the rather contentious issue of the reference to cost-effective measures. One of the problems that I certainly have, as do some other members, is that when we started to explore what “cost-effective” meant and we worked our way back through the Treasury Board guidelines, it seemed to be heavily skewed towards impact assessment on jobs, on industry and on prices, and there was very little, if any, assessment of environmental costs.

I don't know whether just pulling the word “cost” out helps, but would it be appropriate to put in the interpretation section, under definitions, a definition of “cost-effective”? If cost-effective means that we look at the full environmental costs associated with action, if it means we look at the opportunity costs associated with environmental degradation... You take a tree out of the ground and you've incurred some costs.

I think the market seems to work well, but we need to be on equal footing in terms of how we define it. If we can somehow take the economic emphasis off the term and make sure that what we're really talking about is the full-costing assessment of action, maybe it is an appropriate term if it's defined properly. Does that sound like a reasonable approach?

• 1025

Mr. Harvey Lerer: It is perhaps a reasonable approach. The thing that I would ask you to consider as well if you are considering putting something like this forward, is that often in terms of our analysis we do not use a formal monetary analysis and there are values for the environment that at this point in time defy that kind of numerical, analytical approach. We would want to make sure that wasn't lost.

I think when I appeared before the committee along with my colleagues—

Mr. Joe Jordan: Excuse me. You're hoping that the fact you don't emphasize economics won't be lost. I'm trying to underscore the fact there are other things besides economics.

Mr. Harvey Lerer: Yes, but what I'm also saying is that a formal, analytical, numerical assessment is not always possible when one considers the benefits associated with the environmental values that Canadians hold. I wouldn't want to be constrained to the point that only numerical, analytical work would be seen to be sufficient to meet whatever test is set out in the legislation.

Mr. Joe Jordan: But it just seems to me right now that there is no definition, that there is no consensus around what that term means, other than what I've been able to track in the paper trail, and that's a highly economic definition.

Mr. Harvey Lerer: Most certainly.

Would there be benefit to that kind of definition? There may be, in fact, sir.

Mr. Duncan Cameron: Perhaps I could comment. One would normally only put a definition in legislation if the terms were ambiguous, if there was more than one way to understand them or if one was trying to describe or define the term in a way other than its ordinary meaning.

Mr. Joe Jordan: I think the first is correct and the second is exactly what I'm trying to do.

Mr. Duncan Cameron: Right.

Mr. Harvey Lerer: Oh, one other thing I would like to say is that in terms of the words you find in the preambular statement, they are exactly the words that are found in the Rio declaration.

Mr. Joe Jordan: I think it's a problem that maybe transcends our boundary. Thank you.

The Chairman: Well, we know what happened in Rio and how that word “cost-effective” crept in. It should be kept in mind that it was in the early hours of the morning. It was quite a scene. In order to arrive at a compromise, the word “cost-effective” was inserted in order to accommodate certain interests.

Mr. Harvey Lerer: I did not have the pleasure of being at Rio. I have been at a number of international forums, and very often agreements are reached in the early hours of the morning. Yes, sir.

The Chairman: It was hardly a pleasure, Mr. Lerer.

Voices: Oh, oh.

[Translation]

The Chairman: Mr. Charbonneau, please.

Mr. Yvon Charbonneau: Mr. Chairman, first of all, as a preamble to my comment on the preamble, I think that my colleague Jordan made a comment that's worth examining. When we question the expression “cost effective” and its French translation by the term “efficiente” and that all that can be said is: “Just have a look, it's in the Rio text”, as a francophone reading the bill, I find this answer to be unsatisfactory. When I see the word “efficient”, I don't necessarily think in terms of cost effective. There are many shadings to these definitions and they should be written down somewhere. I would suggest that the translation be done from French to English, this time, rather than the other way around.

Mr. Chairman, we have before us an immense and complex bill. Some of us here are veterans of bills and more particularly bills on the environment; for some others, it's their first experience. What I would like to say at the outset, for the information of everyone here around this table and everyone listening to us elsewhere, is that to date, on Bill C-32, all the parties involved have been consulted except the members around this table.

The Department of Environment and other departments have held numerous consultations with the stakeholders in this bill. That's fine. Our committee held public hearings for a number of weeks with a view to consulting all the interested parties. Even better. But no member around this table has written a word concerning this bill or has been involved in writing a single sentence of this bill. At the outset, it must be clear for anyone listening to us and who might be astonished because all of a sudden members are starting to ask questions and move amendments. I don't think astonishment has its place here, because this is the first time that we're asked to say anything about this bill. So far, we've only been allowed to put questions and listen to everyone else.

• 1030

Second, Mr. chairman, I would like to take this opportunity to comment on a preamble that is of some importance. Not all bills have a preamble as broad or wide-reaching as this one as this is a preamble that sets out the framework and the context of this bill.

I will share with you my reading of what's important in this preamble, in order of importance as I see it, and I will share with you what I am going to use to interpret whatever amendments are tabled and will help me to make up my mind on the bill as such.

We can see that the main trust of this bill is to “contribute to sustainable development” and we are being given a special way to do it, to wit “through pollution prevention”. I would like to take a moment here to look at the matter of sustainable development, as it is the main object of this bill as well as its keystone and I would refer you to the French definition on page 5 of the bill, or the English one, on page 8. The definition presented here is simple, easy to understand and, in my opinion, quite suitable. It reads as follows:

“Sustainable development” means development that meets the needs of the present without compromising the possibility of future generations to meet their own needs.

There are more complicated definitions of sustainable development but this one seems quite exemplary as to clarity. It goes straight to the core. It reminds us, Mr. Chairman, that the keystone to this bill, the mission of this bill is to define the responsibilities of the government, not just those of the Department of Environment or Health, who are the authors of this bill, but of the government as to the quality of our habitat and its perennity, and also our health and well-being over the short and long terms. Therefore, this is a bill of exceptional scope.

Secondly, it indicates that the preferred way to attempt this goal is through pollution prevention. So it seems to me this is the benchmark we should be constantly referring to during our discussions, the parameter we should always have in sight to evaluate the profile of this bill, its main aspects and whatever amendments are moved.

It's also important to note that in the first whereas of the bill, the matter of pollution prevention is raised but, at the same time also, other factors are taken into account such as the economic and social factors besides the environmental ones. We need a way to monitor whether all this is translated into the bill.

The second element that seems to be one of the main strengths of this bill is the affirmation of the Government of Canada's key role on the national level as concerns objectives, directives and codes of practice. As for the leadership that is set out in the bill, it immediately says that the powers of the other levels or orders of government must also be recognized and that it rests on co-operation with these other levels of government. It also says that this leadership should extend over the whole territory, including Crown lands and native lands. The responsibility being defined here is serious. It also says that this leadership must be shown within the context of Canada's international obligations.

Finally, it says that the risk of toxic substances in the environment is a matter of national concern. The borders between the provinces or territories or the levels of government must not be considered too rigid when toxic substances are involved: it's a matter of national interest, we are told.

Mr. Chairman, this principle which is written into the core of the bill is important to me. It seems important to monitor its actual implementation. When one speaks of leadership, would it be possible for the Canadian government to ensure real leadership when that leadership must be exercised in co-operation with others? If we are not satisfied with certain provisions, then we should say so immediately. Leadership also implies that there would be an important role for future generations.

• 1035

Third, we come to the royal road of this bill. We talk about preventing pollution. We say that the approach is based on ecosystems. It's important to mention that and we should monitor whether it's found everywhere else in the bill. There's also a concern about certain substances that threaten biological diversity. That is something of substance which is said at the very outset.

Now, how does one prevent pollution? First, we appeal to science. The role of science is mentioned and from lines 22 on, on page 2, there is a list of the other factors that must be considered. That's the second time this is being done. There was a mention of this in the first whereas and we are now dealing with social factors and economic factors as well as environmental factors.

So, we have science, and right after that, it says that it does happen that we can't have absolute science nor an absolute knowledge of situations. So a second complementary principle is called upon, that of prudence.

Third, it seems to me there is another important principle written in here and that is the responsibility of the users and producers of toxic substances. You can have all the scientific opinions you want, you can respect the principle of prudence as much as you want, nevertheless there is a recognition that, in practice, pollutants are being thrown into the environment, albeit in minimal quantities, and the producers and users have a responsibility in this respect.

That's where we should discuss the question of how far we should go in recognizing costs or the economic factor as well as the matter of quasi-elimination. When looking at the bill, we can see realism: science as much as possible, prudence when science doesn't lead us far enough and, in any case, recognition of the responsibility of the producers and users.

Where guidance is concerned, an effort was made to make it as complete as possible. What remains to be seen is whether it translates into the bill. Mr. Chairman, that is my understanding of the bill and its whole architecture.

In conclusion, I will tell you what my guiding principles will be in evaluating the bill and its amendments. First, are we going in the direction of the ultimate value of this bill on sustainable development: our habitat, our health, our well-being? Are we going in that direction or in another one?

Second, does the pollution prevention guideline apply in all aspects of the bill or do we sometimes stray from that guideline?

Third, in my opinion, the key role of the government of Canada must be preserved in certain of the functions given to the Department of Environment. I will be sensitive to that and I will try to see if the Department of Environment is gaining in authority, in responsibility, in clarification responsibilities or whether its authority is more diluted than before. There's also the key role of the government concerning its domestic as well as international obligations, all this in a spirit of co-operation with the other levels of government.

My fourth concern is the place given to science, its contribution as well as its limits. Is what we're being presented reasonable or too vague?

Fifth, is the accountability of the parties, whether producers, users or the general public, defined clearly enough? Are we making progress in terms of appealing to the responsibility of the different stakeholders?

Finally, I would like to say that this committee could try to write the “ultimate bill” here, the most beautiful piece of legislation in the world, but I would also like to say that it's often best to leave well enough alone. The way to express it in French is by saying that when you try to do things too well, you often wind up not managing to do them even reasonably well.

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On the other hand, this is an environmental Act that must enable the government, the Department of Environment, the Department of Health and the others to take actions on our habitat. Our habitat is important. From our habitat, we draw our life and our health in the short and long terms as well as our well-being and our quality of life.

What we have before us, Mr. Chairman, is an environmental Act. I understand that there are technical considerations because we are not unrealistic people. Technology is forever changing and we can measure factors better. There are also economic considerations. We live in the real world and we don't want to leap forward and jump any evolutionary stages, but technology and economics are evolving and they must be perceived as being at the service of our habitat, our health and our well-being.

It's with those concerns in mind, Mr. Chairman, that I will examine, with you all, this bill and its amendments. Thank you.

The Chairman: Thank you, Mr. Charbonneau. That was most interesting. Do any other members want the floor?

Mr. Laliberte, please.

[English]

Mr. Rick Laliberte: Specifically on the preamble, there are number of points that it covers. Pollution prevention in the whole context really focuses on release and does not expand itself to include generation and use of toxic substances. I think it's crucial to deal with it right at the outset.

When dealing with responsibilities, as with the Government of Canada, the word “establish” comes into play. As we opened up our discussions today, I think the word “implementation” does not come in, that is, the responsibility of implementation. We can establish these guidelines, but implementing is a major responsibility here and it should fall onto the Government of Canada. This act should empower us to do this.

There's also the role of science. The definition of role of science comes into this, but somehow social and economic considerations fall into this role and I don't see how science and social and economic considerations can be in the same line. As far as social and economic considerations are concerned—as you mentioned with the people who made the presentation this morning—the minister or the people making these decisions will set guidelines on social and economic considerations, but with science and regulations, it should be pretty clear that we shouldn't mix the two. It's like adding water to oil. They don't mix.

The preamble also touches on biological diversity and the control and management of toxic substances as related to biological diversity. However, it omits any control and managing of biological technology products. Any products that would impact our biological diversity aren't mentioned here.

The other part of the preamble that's interesting is the categorization of federal and aboriginal lands. I think the presenters have mentioned that this issue is quite contentious per se. Just specifically on aboriginal lands, you highlighted the role of science, but clarifying traditional knowledge is another aspect that's important here, because there are a lot of language barriers when you deal with aboriginal issues and perspectives, and the traditional knowledge of the land and its ecological diversity somehow has to be relevant.

With respect to the preamble, there are a lot of good intentions but I think we can work with the wording and the language and it could be a lot stronger. It could prevail to strengthen the whole act.

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I think the preamble plays a crucial role, as our colleague, Mr. Charbonneau, mentioned. I'm just new at the process, so I'm not sure when we are we going to come back to the preamble. That would be one question. There's a snag in my brain here; if we're not going to handle it now, when would we do it?

The Chairman: Mr. Laliberte, we will do that at the end when we have gone through the entire bill, so as to determine exactly what you were saying a moment ago—whether the preamble corresponds with the operative part of the bill, which is clause 2 to the end. At that point, members will have a clear picture as to whether the preamble fits like an umbrella on the operative part of the bill.

Mr. Rick Laliberte: Okay. Thank you.

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

Mr. Clifford Lincoln: I have just a few points to bring up in regard to the preamble, and maybe I'll ask for comments in a few areas.

I agree with my colleague, Mr. Laliberte, about generation and use of persistent toxic substances; that, I think, should be in paragraph 3 of the preamble.

In regard to paragraph 5, I see the need there to introduce the notion of environmental standards, but also, I notice a change between the present CEPA and this CEPA. I was going to ask Mr. Cameron about it.

The present CEPA says,

Whereas the Government of Canada, in demonstrating national leadership, should establish national environmental quality objectives

and so on.

Now it's been changed to say,

Whereas the Government of Canada will continue to demonstrate national leadership in establishing

and so on.

I think there's a subtle change there. I must say I prefer CEPA '88. That doesn't leave any room for discussion. In other words, the Government of Canada demonstrates national leadership and must establish, whereas in the other one Canada just continues to demonstrate national leadership in establishing ecosystem objectives. I don't know why it got changed. I'm just querying it because it doesn't seem as precise and positive to me. I would like to have a comment on that.

I'm also wondering about paragraph 6—and I agree with you about the Rio definition—and why, in Bill C-74, it was okay to have just “lack” of scientific certainty as sufficient, as acceptable, while we had to introduce “full” scientific certainty this time. It seems as if every time we introduce something we introduce it to make the environmental standards or enforcement more difficult, not easier.

I just can't accept this as a principle, that in C-74 we said “lack of scientific certainty”, and that was okay, and suddenly it becomes it “full scientific certainty”. Every time we introduce a change, it's never a change that favours the environment. We always look for some justification to make something more difficult for the environment.

And under paragraph 13, I really feel that we have to make a reference to substances and products of biotechnology.

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But I would like to have a comment from Mr. Cameron about paragraph 5 and why the definition was changed from the present CEPA. I noticed that it got changed in C-74 as well, but certainly I found it was much clearer in CEPA '88.

Also, I would like a comment about why we found it necessary to deviate from “lack of scientific certainty” in C-74 and introduce a notion on the basis that we discovered it was like this in the Rio definition. But somehow it was okay to deviate from the Rio definition in C-74 and nobody queried it then.

Mr. Duncan Cameron: You've asked me a direct question, sir, so I will try to answer.

I really don't have any comment on paragraph 5 other than to point out that the Government of Canada has established standards. When the CEPA bill was first passed in 1988 it was the first time standards were envisaged under federal legislation, so one would expect that in this revision of CEPA you would see the language that we shall “continue” to do so. That is the only explanation that I can give for the change of language: the fact that this is a continuing process and the government is reaffirming its commitment to develop national standards.

Mr. Clifford Lincoln: I agree, Mr. Cameron. But I wonder why they didn't say... If you look at CEPA '88, you see, “Whereas the Government of Canada, continuing to demonstrate national leadership, should...” It would have been just as easy to do it that way, to follow exactly the same phraseology as before.

Mr. Duncan Cameron: It could have.

Mr. Clifford Lincoln: We get so cynical and a little defensive here that we wonder about all these little changes and what meaning they might have downwards.

Mr. Duncan Cameron: Of course, the other thing to keep in mind is that preambular language is a guideline only. It doesn't create the obligation.

Mr. Clifford Lincoln: I realize that.

Could you tell us, Mr. Lerer, why in C-32 they decided to bring in the notion of “full scientific certainty” versus what was in C-74?

Mr. Harvey Lerer: The intention, as I understand it from the time of the government response, was to use the Agenda 21 declaration, the Rio definition, and the word “full” is in the Rio declaration. This was a drafting error.

Mr. Clifford Lincoln: But C-74 appeared after the government response, right?

Mr. Harvey Lerer: Yes.

Mr. Clifford Lincoln: So, in C-74 you departed, thankfully...when the government response was tight, you made it a little looser, in favour of the environment. So that was okay. But now we go back to...

Mr. Harvey Lerer: What I'm trying to say, sir, is that from the time of the government response, the intent was always to use the Rio Agenda 21 definition of the precautionary principle, and if the word “full” was left out of the clause that you see in C-74, it was a drafting error.

Ms. Karen Lloyd: The reason it was left out was the drafting process, because if you're certain, how can you be more certain? The legal drafters felt that was redundant, that you perhaps didn't need the word “full”. If we stick to using the Rio, it does use “full scientific certainty”, and that's why it was put back in. I don't believe it makes it any more or less onerous. You're certain you're certain or you're not.

Voices: Oh, oh.

Mr. Clifford Lincoln: To my way of thinking, if you put it in, it certainly makes it more onerous. If it's “full” and “not full”, it's seems to me there's a big difference.

The Chairman: There are degrees of certainty, as we all know, and this is what this preamble is attempting to establish.

Mr. Lerer.

Mr. Harvey Lerer: I would just to make a comment. I would like to point out what the Rio declaration and what the bill before you say: “the lack of full scientific certainty shall not be used as a reason” for not taking cost-effective action.

I apologize... I can't apologize for the language used in Rio, and I remember the admonition of the chair from my previous meeting.

Voices: Oh, oh.

Mr. Harvey Lerer: What this is saying is that the lack of full scientific certainty shall not be used as an excuse for not taking cost-effective action. It shall not be used as an excuse for not taking cost-effective action. I'm not sure that's clear to everybody. It was most certainly not clear when I tried to explain it to other groups.

The Chairman: Thank you for that clarification.

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[Translation]

Ms. Girard-Bujold, followed by Ms. Kraft Sloan and the Chair.

Ms. Jocelyne Girard-Bujold: Mr. Chairman, my question is somewhat like Mr. Lincoln's. You used the word “absolu”. To my mind, something absolute goes beyond words. It's purity itself. Why is it so important to have the word “absolu” in there?

I don't fully understand your explanation. You say you are going by the Rio document, but to my mind, the word absolute, in French, does not mean that.

[English]

Mr. Harvey Lerer: Once again, the intent in the preamble was to use the language that was agreed to by the international community in Agenda 21 in the Rio declaration and that intent is met by the current language in C-32. You will find that was the intent in terms of putting it into the preamble; it is the wording that was agreed to by the international community and we wanted to reflect it within the environmental protection law in Canada.

[Translation]

Ms. Jocelyne Girard-Bujold: It says:

[...] a lack of full scientific certainty shall not be used as a reason for deferring effective measures to prevent environmental degradation;

That means that whoever would not want the department to act could go so far as to say: “you cannot give me the full or absolute proof that my intervention must be based on absolute evidence”. That's what that means.

[English]

Mr. Harvey Lerer: That's exactly what it means.

[Translation]

Ms. Jocelyne Girard-Bujold: Fine. I understand. Thank you.

The Chairman: Thank you, Ms. Girard-Bujold.

Ms. Kraft Sloan.

[English]

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

I don't want to belabour this, but if I understand Mr. Lincoln correctly, he was making two points: one, that C-74 had a deviation from the Rio definition, but we're not allowed to have a deviation from the Rio definition in C-32, and two, a point that is kind of like the definition of virtual elimination.

I always like to think of the second point as a limbo pole that you're trying to approach and not really knock off. You have one definition of virtual elimination which is set at what is technically measurable, but then you have two other qualifiers: one that is qualified by regulation or by what the ministers prescribe, and secondly, what is determined at that particular time to be harmful to human health, which may or may not capture things like endocrine disrupters. So you have a situation where you're approaching a limbo pole which is at three different heights, possibly, according to how this legislation deals with virtual elimination.

In this section here in the preamble, the differences may be very subtle. You're saying “lack of full scientific certainty”, but it seems that by changing this between the two pieces of legislation, you are increasing the height, which allows for more opportunity and barriers and greater argument. Anyway, I just thought that's what Mr. Lincoln was talking about.

My question actually deals with paragraph 11, which says, “Whereas the Government of Canada recognizes the integral role of science”, etc. and that “environmental or health risks and social, economic and technical matters are to be considered in that process”. That final bit—“environmental or health risks, social, economic and technical matters”—is a new addition, compared to C-74.

If you look at this particular paragraph in the preamble, originally the intent was that we look at the role of science in the process of decision-making, but now we've added all of the other qualifiers, which include environmental or health risks, and also include the social, economic and technical things that have to be included.

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C-74 seemed to be more science-based whereas this seems to be less science-based, and I'm wondering why there was a change here.

Mr. Harvey Lerer: In terms of why there was a change?

Mrs. Karen Kraft Sloan: Doesn't it have the effect that it is less science-based, then, than C-74?

Mr. Harvey Lerer: I do not believe so. The integral role of science in the process of making decisions is, I think, just as strong as if the phrasing at the end of that particular paragraph were to be removed. I don't read it as diminishing the role of science in any way.

Mrs. Karen Kraft Sloan: But now we have to consider economic and technical factors.

The Chairman: All right. Well, this is a matter of judgment at this point and I don't think we can prolong this examination further. The clerk informs me that another committeethat requires this room. I will make a brief conclusion, if I may, but will first ask a question of Mr. Cameron: to what extent does the preamble influence the thinking of a judge?

Mr. Duncan Cameron: The preamble is of course intended to guide the interpretation of substantive provisions in legislation. The preamble is not one of the substantive parts of an enactment, but is used as a guideline for the interpretation of substantive parts.

Generally speaking, if there is ambiguity in the substantive part then reference may be made to the preamble to try to resolve that ambiguity. However, if the substantive provision stands on its own and is not ambiguous, then one would not anticipate having to refer to the preamble to try to resolve or to interpret that substantive provision.

The Chairman: So clarity in the preamble can help.

Mr. Duncan Cameron: It certainly can help, primarily if there is ambiguity in the substantive provisions.

The Chairman: Fair enough.

Well, I wanted to make an intervention on the preamble as well, but time is not permitting that. We have to relinquish the room. The clerk informs me that tomorrow we may see the necessity of an in camera meeting before we start with clause 2. That will depend on amendments that are still in the pipeline with the drafters but have not yet reached the clerk.

So tomorrow be prepared for two possibilities: either an in camera meeting or a meeting to discuss and start with clause 2. That will be determined later on in the day or very early tomorrow morning.

This meeting, with many thanks to all of you in this room, is adjourned.