ENSU Committee Meeting

STANDING COMMITTEE ON ENVIRONMENT AND SUSTAINABLE DEVELOPMENT

COMITÉ PERMANENT DE L'ENVIRONNEMENT ET DU DÉVELOPPEMENT DURABLE

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, November 26, 1998

• 0919

[Translation]

The Chairman (Mr. Charles Caccia (Davenport, Lib.)): Good morning. Before proceeding, the committee must deal with a motion from Mr. Gilmour.

• 0920

[English]

The motion is from yesterday. He has given due notice.

The floor is yours, Mr. Gilmour.

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

My motion reads:

That, with regard to clause by clause study of Bill C-32, as of 9:00 a.m. Tuesday, December 1, 1998

—that's next Tuesday—

no additional amendments will be accepted by the Clerk on behalf of the committee, unless deemed appropriate by unanimous consent.

So I've left the door open should there be text changes or a change between the French and the English version, that type of thing.

This simply formalizes what we had agreed to a week ago Monday, that there would be the end of the amendments. I'm simply saying people will have until next Tuesday to get their amendments in, and that is the end of it. We'll deal with the bill with the amendments we have on hand.

The Chairman: Thank you, Mr. Gilmour.

Mr. Lincoln.

Mr. Clifford Lincoln (Lac-Saint-Louis, Lib.): Mr. Chairman, I agree that the general sense of it was that by a certain date we would produce amendments to the clerk, which is the usual format. At the same time, when you look at the scope and complexity of this bill, I think it's far too much to shut off the proceedings and say there will be no further amendments. I mean, these are complex issues, and we are in the process of studying clause-by-clause. A lot of these things are still in the air. Many clauses have been stood, requiring, perhaps, different types of amendments in the future.

So I would think this wouldn't be acceptable.

The Chairman: Thank you, Mr. Lincoln.

The chair tends to agree that from a procedural point of view, a motion of this kind would make the process more difficult, having to ask for unanimous consent every time. Then there would be debate whether this is just a technical change or not. Some members, for a very understandable reason, may want to deny their consent, and we would be in a jam, in a bottleneck, that would just be unnecessary.

Nevertheless, we can proceed with a vote.

Madam Torsney.

Ms. Paddy Torsney (Burlington, Lib.): I just wondered, in terms of process and regulation, does Beauchesne's talk about this at all in terms of the appropriateness of stopping amendments?

The Chairman: Not to my knowledge. I don't think there is any reference of this kind. The committee is the master of its own processes in terms of amendments. Beauchesne's actually does not even give a deadline. Two weekends ago I went through it very carefully to see whether there was anything that would come close to what we have attempted to do; in other words, to give members some kind of a deadline in order to facilitate the work of the clerks and so on, but Beauchesne's is silent.

I'm not an expert, but that's to the best of my knowledge.

In any case, if there are no further interventions, the motion has been put. Are you ready for the question?

(Motion negatived)

The Chairman: We will resume where we left off yesterday—namely, at the new clause 64, which was clause 65. There is a bundle of amendments, which the clerks and I reviewed a little while ago.

I'm referring to L-13.10, NDP-26.1, BQ-22.1, NDP-26.2, and PC-11.

I understand there might be an inclination to postpone discussion of these amendments to give members time to absorb them, and to study them further. Is that correct on the chair's part?

• 0925

I see the parliamentary secretary nodding. Therefore, we will stand this small bundle of amendments—namely, L-13.10, NDP-26.1, BQ-22.1, NDP-26.1 and PC-11. They are for the time being not moved.

The Chairman: We move on now to page 14—

Mrs. Karen Kraft Sloan (York North, Lib.): I'm sorry, Mr. Chair—you have to bear with me, because we've changed the clause numbers—but we haven't yet carried the clause for virtual elimination.

The Chairman: No. We are standing it, as I just indicated.

Mrs. Karen Kraft Sloan: Okay. Because I have an amendment.

So we're standing the virtual elimination.

The Chairman: Yes, we are standing that clause. Correct.

Mrs. Karen Kraft Sloan: And we are standing the definition of toxic as well.

The Chairman: We are now moving to the clause that was yesterday the object of discussion for a friendly amendment—namely, on page 14, the new government 5.5. You will recall that there were brief discussions almost before adjournment to the effect that a friendly amendment might be accepted.

Perhaps we should refresh the memories of the committee members as to what was said at that time, and pick it up from there.

Was it you, Madam Kraft Sloan, who was talking about a friendly amendment, or someone else?

Mrs. Karen Kraft Sloan: It was me.

It's under proposed subclause 65(3), achieving virtual elimination. I had recommended two changes yesterday, but today I'm only recommending one, that the fourth line would read:

and, in doing so, may take into account

The Chairman: Ms. Torsney.

Ms. Paddy Torsney: Didn't we just stand down the new clause 65 with that package of amendments so that we can come back to it on Tuesday? That's what I thought we had just done.

The Chairman: We have just stood the old clause 65, which is the definition of toxic. Now we are discussing the new clause 64. It could also be stood if that is the wish of the parliamentary secretary.

Ms. Paddy Torsney: I think that would be preferable at this time.

The Chairman: All right. That can be done.

We will stand, for further discussion, clause 65.

The Chairman: In that case, we go to page 138 in the book.

Madam Torsney, please.

Ms. Paddy Torsney: Sorry, Mr. Chair. I think it's the rain, or else getting locked in my office this morning, but I am a little mixed up here.

After further discussions with Mrs. Kraft Sloan, perhaps we can just clarify something. Yesterday we switched clause 65 to clause 64, and we passed 64. Correct? No? We just put the old clause 65 into 64, and then we also passed a new 64 in position 65, just a new one, and there are a number of amendments that would flow out of that. They have not been repackaged.

Is that correct?

• 0930

The Chairman: Correct—and they are still before us.

Ms. Paddy Torsney: Could we just clarify what those would be? Then, in discussion with Ms. Kraft Sloan, maybe we should just deal with it.

The Chairman: Yes, we can do that.

Mr. Laliberte.

Mr. Rick Laliberte (Churchill River, NDP): I'd just like to suggest something for logistics. The numbers are confusing. Let's deal with the name, the terminology—“virtual elimination”, or “toxic substances”—so that everybody knows what they're talking about. Numbers are beyond comprehension now.

The Chairman: Okay. We can do that.

Ms. Paddy Torsney: That would be great.

If we could deal with what are the amendments on virtual elimination, then, that would be up for consideration this morning, would that be BQ-22 and Liberal 13.8?

Karen, did you pull 13.8? It has “withdrawn” written on the top.

Then there's 13.9.

The Chairman: In answer to your question, on on virtual elimination, the amendments that are in question and that are to be dealt with are L-13.8 and BQ-22.

I'm informed that L-13.8 was not withdrawn yesterday. It was not moved.

Mrs. Karen Kraft Sloan: Mine wasn't put on this.

The Clerk of the Committee: It was not moved.

Mrs. Karen Kraft Sloan: I yanked it out of the book. Let's rip it up.

The Clerk: It doesn't exist because it wasn't moved.

Mrs. Karen Kraft Sloan: Good. I'm very happy about that.

Ms. Paddy Torsney: Is 13.9 on this section or not?

The Chairman: No.

Ms. Paddy Torsney: Basically, then, the only amendment to virtual elimination—to make it easier—would be BQ-22?

The Chairman: Correct.

Mr. Clifford Lincoln: Plus one that Mrs. Kraft Sloan wanted to move this morning, if I understand it right.

The Chairman: It's the friendly amendment, is it?

Mrs. Karen Kraft Sloan: Yes.

The Chairman: Madam Kraft Sloan, please.

Mrs. Karen Kraft Sloan: I'm going to withdraw my amendment.

The Chairman: Your friendly amendment?

Mrs. Karen Kraft Sloan: My friendly amendment.

The Chairman: Fine. There was only talk about it, so there is no need to withdraw.

In light of that, we'll call—

Madam Girard-Bujold.

[Translation]

Ms. Jocelyne Girard-Bujold (Jonquière, BQ): I would like to withdraw our amendment BQ-22 because BQ-21 has been negativated. They both go together, so I want to withdraw amendment BQ-22.

The Chairman: The amendment on page 139?

Ms. Jocelyne Girard-Bujold: On page 129. The amendment BQ-21.1 has been rejected. Therefore, I withdraw amendment BQ-22 on page 129.

The Chairman: Your amendment on page 129 will not be put. The second one is the amendment on page 139?

Ms. Jocelyne Girard-Bujold: No, it's another one.

The Chairman: It's different. I agree. Amendment BQ-22 is withdrawn.

[English]

Ms. Paddy Torsney: In that case, Mr. Chairman, I wonder if we could close the virtual elimination, or the new clause.

• 0935

The Chairman: There's nothing more left on virtual elimination.

Shall clause 65 as amended carry?

(Clause 65 as amended agreed to)

(Clause 66 agreed to)

(On clause 67—Regulation of criteria)

The Chairman: I would therefore like to move to page 138, and an amendment in the name of Mr. Laliberte.

Mr. Rick Laliberte: Mr. Chair, I would move this.

For clarification for the committee, on page 39 is the substance of the change, deleting subclause 67(2). It would delete:

No regulation that is applicable to a mineral or metal may be made under subsection (1) unless the natural occurrence, properties and characteristics of that mineral or metal in the environment have been taken into consideration.

I would like to ask, to whoever can answer me, why this exemption is given to minerals and metals.

Ms. Karen Lloyd (Manager, CEPA Office, Department of the Environment): There are a couple of different reasons. Clause 67 is the first step in setting up how you will categorize substances on the domestic substances list, and setting the criteria for that.

One of the reasons you do categorize it that is if there are substances that are persistent and bioaccumulative and inherently toxic, at least to the environmental side, then you will be moving towards virtual elimination. There is a clear statement in the toxic substances management policy that substances that are naturally occurring, which would include most minerals and metals, would not be slated for virtual elimination.

There's also been a series of scientific conferences within the last couple of years where there's been a lot of focus on the persistence of metals and minerals in the environment. This clause would really capture the science that's taking place, all of the discussions, so that the people who will be setting these criteria do take into account the recent developments in that area.

The Chairman: How do you interpret, Ms. Lloyd, the language of “taking into consideration” on lines 15 and 16? What is the weight of those words from a scientific point of view?

Ms. Karen Lloyd: I would interpret them to mean that you're certainly aware of the science that's taking place right now, and whatever results are coming from that, you weigh in whatever criteria you would be developing under clause 67.

The Chairman: Mr. Lincoln.

Mr. Clifford Lincoln: Ms. Lloyd, I must say, I have a big problem with this thing, because it becomes so subjective. Let's take mercury as an example, and James Bay, where natural mercury became a poison in fish and human beings.

So really, what we're doing is trying to segregate, by some sort of research or opinion, this very thin line where the natural mercury becomes unnatural, you might say, and joins itself to the ecosystem and creates a toxic substance that is harmful to human beings and to species. Mercury is just one example of many.

In that case, then, how do we define that line?

Ms. Karen Lloyd: In that particular example?

• 0940

Mr. Clifford Lincoln: In that example, similar examples—how do you define that line if it becomes a legislative compulsion to do so? How do we know that we don't make a mistake, not on the precautionary side but on the other side?

Ms. Karen Lloyd: I agree. Certainly I would argue that the science that's being developed in this particular area is largely on the inorganic forms of the metals. You're talking, in that specific case, of an organic form, methyl mercury. That would largely be taken into this.

The science is suggesting that things might be different for the inorganic ones, not for the organic ones you're talking about.

In that particular case of the mobilization of methyl mercury as a result of the building of dams, it does mean that water's flowing over, and that the mercury that's been down in the sediments is now coming up again. The only way you can prevent that, of course, is not to have the water there that's causing the mercury to become mobilized.

But I certainly agree with you that methyl mercury is a problem in that instance, and that would definitely be taken into consideration.

Mr. Clifford Lincoln: I know, I know, but I think what we are talking about is how do you take it into consideration, and how do you define within.... Now you have legislation, and you have a clause in the bill that says you have to take it into consideration. How do you define that thin line between one and the other without taking into account that you have the precautionary principle on one side, and on the other side, almost this subjective opinion to give?

Obviously the people who produce toxic substances that are of a metal or a mineral—mining, for instance—that become toxic will say, well, it's a natural occurrence.

I mean, the other day we were talking about MMT. The first thing Ethyl Corporation says is, oh, no, MMT is not a poison; it's in the body of the human being.

So it becomes almost a subjective argument between one side and the other.

The Chairman: So that is one problem we would like to deal with, Mr. Lincoln's problem.

The problem the chair has is this one. Subclause 67(2) is phrased in a manner whereby it could be interpreted in a manner whereby if something occurs naturally, as in the case of mercury—the example just given—reasons could be given for justifying its occurrence as a result of human activities and as a product of human activities.

You could argue that since mercury happens in nature, there's nothing wrong in having mercury in substances that are produced by, and for the consumption of, humanity, since it is already there, in nature.

That is probably not the intent of those who drafted this particular clause, I'm sure, but it can be read that way, because no regulation that is applicable to so and so may be made unless the natural occurrence has been taken into consideration.

So a judge could say, oh, well, you're complaining about lead, but keep in mind that lead occurs also in nature.

You've proved to us the fact that since it occurs in nature, that occurrence cannot be justified by way of human activities. Therefore the construction of the clause—at least as it appears to me—does not convey the original intent of those who wrote it in the first place.

But I may be wrong, and therefore I'm asking you to examine both problems in your answer, please.

• 0945

Mr. Clifford Lincoln: Could I ask one question related to this, to perhaps Mr. Cameron or Mr. Mongrain?

Would you say this clause shifts the onus, which through the thrust and intent of the bill is a precautionary principle? In other words, if there is any doubt, we put the environment and human health ahead, and we don't wait for scientific certainty.

Doesn't this clause, where you say “unless the natural occurrence”, shift the onus now on the side of the “ministers here to prove almost that the natural occurrence is not pre-eminent? Doesn't it shift the onus of proof, to a degree? Doesn't it lessen, in any event, the precautionary principle by establishing a duty on the ministry to show?

Mr. Duncan Cameron (Legal Counsel, Legal Services, Department of the Environment): Perhaps I could speak to this question.

Legally, all I see in this subclause is a prerequisite to making regulations. To me, it reads as a procedural prerequisite as opposed to a substantive one in the sense that so long as the natural occurrence properties and characteristics have been taken into consideration, then regulations may be made for purposes of classification.

The concern I'm hearing is that a court might look at the substance of that consideration and review whether or not the natural occurrence was properly considered. And I'm not sure a court would go that far. I think it's a procedural requirement that when dealing with these natural metals and minerals, for the purposes of classification, so long as their natural occurrence is taken into account, then the Governor in Council would be free to develop regulations as the Governor in Council sees fit.

So I hear what you're saying, but I'm not sure the language would have the legal effect that is implied in your question.

Mr. Clifford Lincoln: But don't you assume then, Mr. Cameron, that taking into account and taking into consideration.... I mean, it's very subjective. How do you do this? It's not easy.

You could take lead, you could take mercury. Some of them have been proven. Some of them are clear. But in the case of manganese, for instance, which we're dealing with right now with MMT, even the ministry itself is using the argument, in withdrawing MMT, that, oh, no, this is part of the body of a human being. And some people say, oh, no, if you put manganese in gasoline, it's deadly. But others, including our ministry, are saying, oh, no, manganese....

I agree with you; if you take the regulation itself, fine; but your regulation is really consequential on an assessment that is extremely subjective until scientific proof has become irreversible, as in the case of lead and mercury, but in many cases, it isn't.

What I'm saying to you is that I think there's a conflict between that and the precautionary principle.

The Chairman: Are there any comments there?

Madam Torsney and Madam Girard-Bujold.

Ms. Paddy Torsney: My question is, if you're going to be regulating a substance, and the substance is naturally occurring, wouldn't it make sense that you have to think about the fact that the substance is naturally occurring in designing your regulation?

I mean, maybe there's something I don't understand, but it would seem to me that if I'm trying to regulate something that is being emitted, and there's something that's already naturally occurring, how I design those regulations, whether I be more aggressive or less aggressive, to determine an outcome, would be based on my understanding of what is naturally occurring and how that's has been changed by whether it's water or whatever else.

So it just makes sense to me that you would have to think about that. In terms of thinking about that in terms of a process—and perhaps it's a piece of paper that says, “Have we thought about this? Check Have we thought about that? Check”—it doesn't necessarily suggest to me that the weight would be necessarily in the opposite direction, totally in favour of the naturally occurring, versus the man-made.

• 0950

Mr. Clifford Lincoln: Yes, but if you ask the—

The Chairman: Just a moment.

Madam Girard-Bujold, Madam Kraft Sloan, Mr. Lincoln, and then the chair.

[Translation]

Ms. Jocelyne Girard-Bujold: Mr. Chairman, I would like to get Mr. Moffet's view about deleting lines 11 to 15 on page 39. Could Mr. Moffet give us his opinion about it? Does he think it is necessary? What would be, in his opinion, the impact of such an amendment?

[English]

Mr. John Moffet (Committee Researcher): I understand what the department is saying and what the parliamentary assistant is saying, that inevitably when developing these regulations under clause 67 they will think about the natural occurrence, properties and characteristics of the substances they're addressing. My concern about this subclause is that it appears to establish some type of legal threshold that has to be met before the department can promulgate a regulation. The threshold is established in the phrase, “deemed taken into consideration”.

I don't know what that threshold is, but it appears to establish some kind of a threshold. If it wasn't there, then the department would just go about its business and in the due course of its activities think about these things. By putting it into law, we're creating some type of legal threshold, but we're not defining precisely what that threshold is.

So I do have concerns about this subclause.

The Chairman: Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: This is the type of question I was looking to ask, Mr. Chair. It appears that this clause is very vague in terms of explaining what they mean by “taken into consideration”. Certainly Mr. Moffet has addressed it from a legal point of view, in terms of what kind of standard it sets.

We also have the 1995 regulatory making guidelines. It would seem to me these things are already taken into consideration when the government makes regulations. There is a regulatory making process that proponents get involved with, and many stakeholders get involved with.

Treasury Board has issued guidelines on making regulations, as I just mentioned. It seems that to put in legislation something like this, that lacks clarity, would require a higher burden of proof, and as Mr. Lincoln has pointed out, where is the onus? If the bill is a bill on pollution prevention, and one that believes in reverse onus, where is the onus and the burden of proof lying in here? Where is precaution?

I've heard so many times, when we've had witnesses come before the committee, well, you know this is a naturally occurring substance, and human beings need manganese—you know, it's a naturally occurring substance.

It seems to me that's an argument that is continually being used by certain self-interest groups, and I would fear that it would make the ability of the government to do regulations under this part particularly burdensome.

Mr. Clifford Lincoln: Mr. Chairman, just one comment.

The Chairman: Mr. Lincoln.

Mr. Clifford Lincoln: I have one last observation and then a question for one of the officials.

In fact, when I think of the 1995 regulatory framework, I think of it differently. I think it makes this clause even harsher, in a sense, because if you refer to the 1995 guidelines, they refer to risk. You have to prove risk. You have a lot of compulsion. So before you make a regulation here, I would say your onus would be even harsher.

To one of the officials, if you didn't have this clause there altogether, what difference would it make? If it wasn't there, what difference would it make to the powers of a minister under the act? If it were not necessary, why do you have it?

• 0955

Ms. Karen Lloyd: The purpose of clause 67 is to allow us to make the regulations that would set up the criteria for categorizing the 23,000 substances on the domestic substances list. That's the only purpose of clause 67.

The Chairman: It's not a minor one.

Ms. Karen Lloyd: I appreciate that, especially as I'm the person who has to go back and manage that program.

It allows us to set the criteria for persistence and bioaccumulation, which will be the numbers that are taken out of the TSMP, the toxic substances management policy.

There are 23,000 substances that are numerous types of chemicals. Some are metal, some are polymers, some are really vaguely described, and in some cases, we're not quite sure what they are, it seems. When you set up the regulations, although we have the numbers in the TSMP, the types of test methods you would use, and would put in the regulations or put in a guidance manual that the regulations would refer to, would depend on the type of chemical it is.

All this is doing is forcing the minister; for these types of chemicals, make sure you do that. It's strictly a scientific basis for this.

You know, I don't think it has anything to do with the precautionary principle. I'm a huge supporter of the precautionary principle, and that gets applied when you use these numbers in assessing.

Mr. Clifford Lincoln: But if you look at paragraphs 67(1)(a), (b), (c), and (d)—unless there's something I'm missing—tell me whether the minister does not already have the power to do all these things.

Ms. Karen Lloyd: She does. This would make sure she does it. It's clarity.

Mr. Clifford Lincoln: Why do we have to make sure on the side of certainty rather than the side of uncertainty, and potential harm? This is the point we're trying to make. Why should we give the minister an onus that is stronger than what it would be otherwise? Why don't we give her the flexibility to decide, with intelligence, as Minister of the Environment, or the Minister of Health besides, that there is potential harm? Of course she will check if it's a natural occurrence, but now—and I agree with Mr. Moffet—we've put a threshold that we haven't defined. We don't say what to take into consideration, what point is crossed. The point is, we don't know what point is crossed.

I give you the example of manganese, which your ministry says is okay when a lot of people say it's not okay. The argument used by the ministry is that it occurs in human beings, and that we use it every day.

Ms. Karen Lloyd: But this has nothing to with harm. This is setting up what is persistence, what is bioaccumulation, what are the numbers, and what are the test conditions that we want to use.

Mr. Clifford Lincoln: Exactly.

Ms. Karen Lloyd: It's not harm. It's the numbers, and how we are going to test. They will vary with different chemicals.

Mr. Clifford Lincoln: I agree.

Ms. Karen Lloyd: This is saying that because there's a lot of new science on these particular chemicals, make sure you're aware of it.

[Translation]

The Chairman: Ms. Girard-Bujold.

Ms. Jocelyne Girard-Bujold: Mr. Chairman, since the threshold is not defined in there, will the preamble of the act be used as a guide in that matter, or will it be only that clause? That is what I don't understand.

Mr. Moffet, could you also give me your opinion about that?

[English]

The Chairman: Madam Torsney.

Ms. Paddy Torsney: I'm not sure, but in terms of trying to help them answer the question, I think the question really is about the chair's amendment that we haven't come to yet, which would put the precautionary principle into the administrative duties. That would perhaps go some way towards addressing a concern you might have about the weight, checking off that box and making sure you're considering whether the substance is naturally occurring.

The Chairman: The chair would like to believe that, but he doesn't.

• 1000

Mr. John Moffet: I take it the question was in reference to my assertion that this establishes some type of threshold. The question is, how would a court interpret that threshold, and what guidance would it get from the preamble?

As I stated in my presentation in May, I find the preamble to have so many different directions in it that I can't find a clear direction one way or the other. So I'm not clear that one can get a lot of guidance from the preamble in terms of how one would interpret this particular subclause.

On the other hand, of course, if an amendment that has been discussed—but that has not yet been passed—is putting the precautionary principle into the operational part of the bill, then we would have some clear direction. But even then, I tend to agree with Ms. Lloyd that the concept of the precautionary principle doesn't really have a strong bearing on this subclause (2), because this subclause (2) relates to clause 67, which is about the regulation of criteria, not about the regulation of action to control a substance, which is what the precautionary principle is about.

I'm sorry if I'm going around in circles here. My concern was not so much about the precautionary or lack of precautionary nature of this clause; it was just that it appears to establish a legal threshold that has to be crossed before a regulation has been passed, and I don't know what that threshold is.

If the department is saying it would do this anyway, then why do we have to put it in law? If they want to articulate a clear threshold for action, then I would like to understand precisely what that threshold is.

The Chairman: Thank you.

Madam Carroll and Mr. Laliberte.

Ms. Aileen Carroll (Barrie—Simcoe—Bradford, Lib.): Mr. Moffet's remarks lead directly to the question I was going ask of Mr. Cameron, as the lawyer with the ministry—that is, to respond on this, which appears to have a legal component. He's saying it appears to establish a legal threshold that must be crossed.

Can I hear from you?

Mr. Duncan Cameron: Certainly.

I think it's a factual threshold. The question is, quite simply, have these characteristics been taken into account, taken into consideration? If the answer is “yes”, the regulation can proceed. If the answer is “no”, then that prerequisite would not have been made. It's that simple, in my mind.

The Chairman: To that, I would say, Mr. Cameron, this bill is not a bill that is to take into account natural occurrences. This bill is to prevent pollution. That's the answer to your comment, Mr. Cameron.

Madam Girard-Bujold and then Mr. Laliberte.

[Translation]

Ms. Jocelyne Girard-Bujold: Then, Mr. Chairman, we should adopt the preamble first in order to know what to do with that clause.

The Chairman: No. We'd better do it towards the end, because we should have a better understanding of the whole issue then. There is also the Standing Orders that compel us to follow that procedure.

Ms. Jocelyne Girard-Bujold: I know. That's why I am very...

[English]

The Chairman: Mr. Laliberte.

Mr. Rick Laliberte: I believe the part we're dealing with is controlling toxic substances, and this clause is kind of controlling regulations.

On the question that Mr. Lincoln raised, Madam Lloyd did not answer him. Clause 67 is very self-explanatory. We understand the role of the Governor in Council and the ministers. But without subclause (2), is it needed? Because not only in minerals and metals are there natural occurrences or properties that may be toxic; a huge array of biota out there have toxics in their natural state.

Why were minerals and metals given a threshold there?

• 1005

Ms. Karen Lloyd: It is clarity. Is it necessary? No. But it makes it more obvious, and it forces the fact that we do consider it.

Again, it's to take the numbers that are in here, put them in the regulations so we have to use the numbers from the toxic substances management policy, and when we set up the methods that people use to go and conduct studies for us to see whether those criteria have been met, that's what this clause is for. It's not for regulating toxics in general; it's only the regulations to put these numbers, and so that we have to use them.

The Chairman: Are you saying these numbers cannot be put without this subclause (2)?

Ms. Karen Lloyd: They can be, yes. All it's saying is that when you—

The Chairman: Well, you'd better be careful, then, because you created the impression that these numbers could not be put unless this clause was in.

Ms. Karen Lloyd: No, that's certainly incorrect. I'm sorry if I misled you.

The Chairman: Thank you.

Mr. Lincoln.

Mr. Clifford Lincoln: I think Ms. Lloyd, if I heard her right, answered my question. She said, “Is it necessary? No. But...”.

Either it's necessary or it's not necessary. If it's not necessary, let's not put it in, because then we've created something that need not be there.

The Chairman: I think we have thrashed this item at length, and quite thoroughly. Are you ready for the question?

Mr. Laliberte.

Mr. Rick Laliberte: I just want to ask something in terms of interpretation. Paragraph 67(1)(b) reads:

prescribing substances...in respect of which the property or characteristic may be applicable;

That would deal with natural occurrences, as would (c), which reads:

prescribing the conditions under which...the property or characteristic may be applicable;

So all these characteristics and properties are part of your screening process in doing so, regardless of whether it's mineral or metal or any other substance. I think you're covered.

The concern is that you're creating an interpretation here that could be challenged.

The Chairman: Are there any further comments?

Madam Girard-Bujold.

[Translation]

Ms. Jocelyne Girard-Bujold: Mr. Chairman, couldn't we stand that whole clause?

[English]

The Chairman: Only the motion has been put. Unless the mover is willing to do that, we will proceed with the vote. To withdraw the motion, it would require unanimous consent. The motion has been put.

However, Mr. Laliberte, it's your choice.

Mr. Rick Laliberte: What's unclear? I could stand it, certainly, if people want more information, but if everybody is clear on the issue, I think it stands on itself that this clause is not necessary.

The Chairman: Mr. Gilmour would like to speak.

Mr. Bill Gilmour: I don't think we're getting the clarification we need to vote on this. I would prefer to stand it down until we can get some more clarification both from the department on the technical point of view and from the legal point of view, and leave that until Tuesday.

I think we're fumbling. I don't think we're clear. At least I'm not clear, in my mind, that I have all the information I need to make a meaningful vote. So I would like to stand it until at least Tuesday, until we can get that information from the department to clarify what would be the effect of removing that clause, and why that clause is in there specifically.

The Chairman: Thank you, Mr. Gilmour.

Mr. Herron.

Mr. John Herron (Fundy—Royal, PC): The departmental officials have been very clear with respect to their position on this. In lieu of the comments made by Mr. Laliberte and Mr. Lincoln, I think we've kicked this around long enough. I think it would be more prudent for us to proceed with this clause, because I don't think there would be anything else brought to the table.

I think Mrs. Lloyd agrees with me on that.

The Chairman: Madam Torsney.

Ms. Paddy Torsney: Whether we stand it or we don't stand it, I think we should decide.

I'm at the pleasure of the committee in terms of my own opinions. Stand it or don't stand it, but let's make a decision and move on to the next clause.

• 1010

The Chairman: Standing the motion requires the unanimous consent of the committee. Is there unanimous consent?

Some hon. members: No.

The Chairman: There is not unanimous consent. We'll proceed with the motion by Mr. Laliberte, NDP-27 on page 138.

Are you ready for the question?

(Amendment negatived—See Minutes of Proceedings)

The Chairman: Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: Mr. Chair, I have an amendment that might help satisfy both sides of this particular issue, to the same clause on page 39.

I don't have an amendment that's written up, but what I would like to suggest is that on page 39 of the bill, dealing with the second line of subclause 67(2), where it says, “may be made under subsection (1) unless”, I would be adding “in the opinion of the Ministers”.

The new subclause would read:

may be made under subsection (1) unless in the opinion of the Ministers the natural occurrence, properties and characteristics

And so on.

Ms. Paddy Torsney: That's on line 13.

Mrs. Karen Kraft Sloan: Yes.

This would help clarify that.

The Chairman: Have you completed your intervention?

Mrs. Karen Kraft Sloan: Yes.

The Chairman: Madam Torsney.

Ms. Paddy Torsney: If I'm not mistaken, we still have the option of standing down clause 67 so that we could get this in writing, and we could move on to clause 68. Is that still an option?

Mrs. Karen Kraft Sloan: Do you want a two-minute break?

The Chairman: It is a fairly straightforward motion, easily translated.

Mrs. Karen Kraft Sloan: It's very straightforward.

The Chairman: If is there unanimous consent to stand the motion, then we can do that.

Ms. Paddy Torsney: Can we hear it again, please?

Mrs. Karen Kraft Sloan: It's line 13:

unless in the opinion of the Ministers the natural occurrence, properties and characteristics

The Chairman: In other words, the motion is to the effect, at least in English, that six words would be inserted after “unless”—namely, “in the opinion of the ministers”. The rest of subclause (2) remains unchanged.

May I ask Madam Girard-Bujold whether she has been given an adequate translation so that she can absorb the essence of this amendment?

Ms. Jocelyne Girard-Bujold: No.

The Chairman: I'm informed by the clerk that we have amendments that would precede this line. Therefore, we should first deal with those amendments that are already in our binder—namely, BQ-22.2, which requires attention before we arrive at the line dealt with by this amendment.

• 1015

In any case, we will have to come back to this, one way or the other, but for an orderly process, may I ask you to turn to page 139, BQ-22.2.

I give the floor to Madam Girard-Bujold so that she can move her amendment.

Ms. Paddy Torsney: Mr. Chair, on a point of order, if I'm not mistaken, with regard to clause 67 of the bill we will have BQ-22.2 on page 139; L-13.11 on 140; PC-12 on 141; L-13.12 on page 142; and the proposal that Ms. Kraft Sloan is just making.

I'm wondering, for the sake of clarity and regrouping, if people would benefit from a three-minute pause so that they could examine these.

The Chairman: We can do that.

We'll have a suspension of the meeting.

• 1016

• 1028

The Chairman: All right, let's see whether we can move this supertanker ahead again.

[Translation]

On page 139, there is an amendment from the Bloc Québécois. Ms. Girard-Bujold, are you ready to put your motion?

Ms. Jocelyne Girard-Bujold: Mr. Chairman, I want to withdraw amendment BQ-22.2. I won't move it.

The Chairman: The amendment on page 139 has been withdrawn. Thank you.

We go to page 140.

• 1030

[English]

Mr. John Herron: Mr. Chair.

The Chairman: May I alert you, Mr. Herron, that your motion, PC-12, will be put if L-13.11 is defeated.

Mr. John Herron: We'll wait for that.

The Chairman: In the fullness of time, yes.

Please go ahead.

Mrs. Karen Kraft Sloan: I believe I had an amended suggestion to subclause 67(2) on page 39, which was to add, after the word “unless”, “in the opinion of the ministers”.

The Chairman: I'm sorry, but we are on page 140 of the binder, with your motion and L-13.11. That's where we're at right now.

Mrs. Karen Kraft Sloan: All right.

Well, I'm putting forward the other amendment, as I've suggested.

The Chairman: Which other amendment?

Mrs. Karen Kraft Sloan: Oh, I'm sorry; 140.

No, I'm pulling this one. I apologize. I'm not moving it.

The Chairman: Thank you.

Then we can call the amendment by Mr. Herron, on page 141.

The floor is yours.

Mr. John Herron: Mr. Chair, the intent of this particular amendment is to ensure that the minister would have the ability to make regulations regarding endocrine disrupters. It follows the same intent that 13.11 had before.

I'm happy to move this motion.

The Chairman: Thank you.

Any questions or comments? If not, are you ready for the question?

Mr. Laliberte.

Mr. Rick Laliberte: With the whole uncertainty of the following conditions that we debated heavily on, maybe a friendly amendment to this would be in order. I would beg some sort of response from the legal opinions.

Paragraph 67(a) reads:

respecting a property or characteristic of a substance, including, without limiting the generality of the foregoing, persistence and bioaccumulation;

We're also adding “hormone-disrupting ability and other chronic effects”. Why don't we add to this, “This is respecting but not limiting also natural occurrence”? Then that would delete the need for subclause (2).

Mr. John Herron: Ah; there's an idea.

• 1035

Mr. Rick Laliberte: It's a friendly amendment, adding that when a minister's making these recommendations, they take into account all these issues. Instead of subclause (2), we could add, through a friendly amendment, “natural occurrence” to this.

Mr. John Herron: Does that mean we're friends again?

Some hon. members: Oh, oh.

The Chairman: Would you write it down, please?

Mrs. Torsney.

Ms. Paddy Torsney: While Mr. Laliberte is writing that down, I wonder if Mr. Moffet could give us his advice as to what would be the impact of adding natural occurrence to (a). Or he could start thinking about it while it's being written down.

Mr. John Moffet: I could try.

On its face, the amendment would authorize the minister to make regulations respecting natural occurrence.

Ms. Paddy Torsney: So she could stop it from occurring in the environment?

Mr. John Moffet: I'm not sure.

So it would be a regulation respecting a characteristic of a substance relating to its natural occurrence. I'm not sure what that.... I can't envisage such a regulation.

Perhaps one of the officials can help me. I don't understand what this would do, I'm afraid.

Mr. Rick Laliberte: That was the sense of my inquiry here.

Mr. John Moffet: Okay.

Mr. Rick Laliberte: That's fine. I can withdraw it. But I would agree with his amendment that we should have hormone disrupting in here so that the minister can make appropriate regulations when needed.

The Chairman: Well, that type of insertion was proposed by the WWF when they appeared before us, but we need some text here.

Mr. Herron, you have to comment on this friendly amendment and indicate to the committee how you want to handle it.

Mr. John Herron: Mr. Chair, my hon. colleague has withdrawn his friendly amendment.

The Chairman: So we have the motion as written before us?

Mr. John Herron: Yes.

The Chairman: Thank you.

Are you ready for the question?

(Amendment negatived—See Minutes of Proceedings)

The Chairman: We go now to page 142.

Mrs. Karen Kraft Sloan: Now can I read my amendment?

The Chairman: Yes. It now would be proper line, apparently, for the one you suggested earlier.

May I take members of the committee to page 39, line 13. I believe the proposed amendment is to insert, after the word “unless”, the words, “in the opinion of the Ministers”.

Are there any questions? Are there any comments? Are you ready for the question?

[Translation]

Ms. Jocelyne Girard-Bujold: Mr. Chairman, I would like to know if clause...

[Editor's Note: Inaudible], if you please. I don't know.

The Chairman: The question has already been put. I'm sorry.

[English]

I did ask whether you were ready for the question, and I did not hear any objection. We are taking now the vote. The vote is on the insertion proposed by Madam Kraft Sloan on line 13, after the word “unless”, “in the opinion of the Ministers”. That's all. The rest of the clause remains untouched.

Can I proceed with the vote again? Thank you.

(Amendment agreed to)

• 1040

The Chairman: Shall clause 67 as amended carry?

Mr. John Herron: No. Are we going to do L-13.12?

The Chairman: That was already dealt with by the NDP amendment.

Mr. John Herron: So we're not going to move it?

The Chairman: No; it's a duplication.

Mr. John Herron: Given that I may have crashed and burned my hon. colleague's NDP-27, is there a chance for us to proceed with L-13.12 again?

The Chairman: It's the same thing.

Mr. John Herron: But can I move it if I want to?

The Chairman: No. It's been dealt with already. It's a duplication.

Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: I believe there was a situation where we had three amendments that came up that were defeated in succession.

Mr. John Herron: And we were going to look at 13.11 and PC-12 in the same fashion.

Mr. Rick Laliberte: Can I suggest standing this clause? I believe there might be a revelation on the legal standpoint of this clause. I think there is a creation of a threshold, and an issue that Madam Girard-Bujold had mentioned. It should take some new light here.

The Chairman: Let me be clear here. The committee decided not to delete lines 11 to 16 on page 39 earlier this morning. So the committee would be asked to make the same decision twice if we were to go and call L-13.12, which the chair does not intend to do.

Secondly, as far as standing clause 67, the chair did ask whether this clause should carry, did he not? And it was carried as amended.

Mr. John Herron: No, I interrupted you.

The Chairman: Okay. I am reminded that you did interrupt, in which case I stand corrected.

Mr. John Herron: My apologies, Mr. Chair. My intervention was only to see if we could have a second chance at 13.12.

The Chairman: I see.

Having cleared the item, and 13.12, because of its redundancy, I have to call again whether clause 67 carries as amended.

Mr. John Herron: I wish I had stood it, so I say no, if that means anything.

The Chairman: So it's agreed to on division.

(Clause 67 as amended agreed to)

• 1045

(Clause 68—Research, investigation and evaluation)

The Chairman: Moving on, the amendment by Madam Kraft Sloan is on page 143. We received, 10 to 15 minutes ago, some changes to that amendment.

Madam Kraft Sloan, would you like to explain your motion, please?

Mrs. Karen Kraft Sloan: With regard to amendment L-13.13, on page 143, I have three amendments to that amendment.

The Chairman: The amendment has been changed in three spots.

Mrs. Karen Kraft Sloan: Yes. The amendment has been changed in three spots.

The first spot occurs in the first line of the amendment. It changes “one of the Ministers shall” to “one of the Ministers may”.

Then, on page 144, I'm going to delete paragraph (b) of the amendment. It will be dealt with in another part of the bill.

Then there will be an additional proposed clause, 68.1, which reads:

The Ministers shall outline annually the research needs for section 68.

The Chairman: Thank you. Would you now like to explain the general thrust of amendment L-13.13, please?

Mrs. Karen Kraft Sloan: The final amendment I made ensures that we continue to ensure that information gathering is undertaken. When the minister has to report annually on research needs for this section, this ensures accountability mechanisms in the bill. We start to help to build the case for weight of evidence for some of the items that the minister is going to have to collect data on.

The Chairman: I'm told by the clerk that this amendment with the additional changes is acceptable. Therefore, I will ask whether there are any comments.

Madam Torsney.

Ms. Paddy Torsney: I'm just concerned about what the implications of new clause 68.1 are. There seems to be some lacking of precision in terms of how the minister shall outline annually, and in what form. Is it through guidelines?

• 1050

Mrs. Karen Kraft Sloan: Is there a suggested friendly amendment from the government that can help give some clarity to that?

The Chairman: Well, if outline means a reporting, then perhaps the word “report”.

Mrs. Karen Kraft Sloan: Perhaps I can draw it to the attention of the committee that the original amendment said “shall”. I realize that you don't want to force the minister into a position to collect every teeny bit of data on a continual basis. But I think in terms of ensuring that there is accountability on data collection, it's important to have a mechanism that triggers this. That's why I have changed the “shall” to “may”, which reverts it back to the legislation, and then added this new clause 68.1.

If I can have some advice clarifying how the minister would report annually, that would be very helpful.

The Chairman: Mr. Lincoln.

Mr. Clifford Lincoln: Mr. Chairman, I was wondering whether, if it said, “The Ministers shall report annually on the state of the research relating to section 68”, or something like that, it would clarify it and have the same intent.

The Chairman: He suggests: “The Ministers shall report annually on the state of the research needs for section 68”.

Does that answer your question, Madam Torsney?

Ms. Paddy Torsney: Not completely. In terms of trying to identify a friendly amendment, I think I would need a little more time. I'm wondering if there's an opportunity to stand this until Tuesday so that we can get the clarity and everyone can understand what everyone else means.

Mrs. Karen Kraft Sloan: Mr. Chair, perhaps I could split this so that we would deal with everything up to 68.1, pass that, and then we'll get clarification on 68.1.

The Chairman: All right, we can do that. We can split the motion in the sense of moving the motion without the addition.

Mrs. Karen Kraft Sloan: Actually, I think we're going to stand it.

The Chairman: Ms. Torsney.

Ms. Paddy Torsney: You know what? I think there's another small problem. If Mrs. Kraft Sloan were interested in standing it, we could stand it and deal with it on Tuesday. We could clarify all the little peccadilloes and then we could get it on a piece of paper and everyone would see it.

The Chairman: Are you agreeable, Mrs. Kraft Sloan, to standing the motion entirely?

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

The Chairman: The motion is stood—with the consent of the committee, I hope.

(Amendment allowed to stand—See Minutes of Proceedings)

The Chairman: We will proceed, then, with PC-12.1, on page 146.

Mr. Herron.

Mr. John Herron: I think NDP-28 would have precedence over mine.

The Chairman: I apologize, Mr. Herron; I'm reminded that the motion by the NDP would come before yours, on page 145.

Mr. John Herron: Right.

The Chairman: Mr. Laliberte, please.

Both motions are identical, so it's a lottery as to whoever goes ahead. “N” happens to come before “P” in the alphabet.

Mr. Rick Laliberte: The contents of this clause have been stood for later discussion. I think I'd rather wait for that, because Madam Kraft Sloan is reconsidering hers.

The Chairman: All right. The motion is not moved.

Again, you have a motion on clause 68, Mr. Laliberte, on page 147. What is your pleasure?

• 1055

Mr. Rick Laliberte: Just to clarify the process here, Mr. Chair, if I say “stand”, does that mean I have to move the motion first, and then we stand it?

The Chairman: No.

Mr. Rick Laliberte: Just don't move it.

The Chairman: Right.

Mr. Rick Laliberte: Don't move it. Save it for later.

The Chairman: Pages 148 and 149, Mr. Laliberte.

Mr. Rick Laliberte: I'll save it; stand.

The Chairman: Page 150, Mr. Laliberte.

Mr. Rick Laliberte: I'll stand.

The Chairman: Page 151, Mr. Herron.

Mr. John Herron: It seems to be the same theme for clause 68. I'll stand, please.

The Chairman: Page 152, Mr. Laliberte.

Mr. Rick Laliberte: The clerk keeps saying “not moved”. Does that mean I'm not moving it and we're not coming back to it?

The Chairman: Oh, no; it is not moved today. It remains on the agenda.

Mr. Rick Laliberte: Great. Right on. Perfect. Lovely.

Ms. Paddy Torsney: My suggestion is that we stand clause 68.

The Chairman: We can stand the clause, yes.

(Clause 68 allowed to stand)

Ms. Paddy Torsney: We'd then move on to clause 69, with NDP-32, page 153.

(On clause 69—Formulation of guidelines by the Ministers)

The Chairman: We have an amendment, on page 153, by Mr. Laliberte.

Mr. Rick Laliberte: This clause deals with the formulation of guidelines by the ministers. I'd like to make the motion that we change “may” to “shall”.

When guidelines are issued for the purpose of interpretation and application, I believe this should require the minister to do so.

The Chairman: Do you so move?

Mr. Rick Laliberte: Yes.

The Chairman: Thank you. Madam Torsney.

Ms. Paddy Torsney: I just would like to point out to the member that my interpretation is that the effect of his amendment would be to require the minister to issue guidelines on how she would interpret her own act. And I'm not sure that would be what he would necessarily desire.

The Chairman: Thank you.

Are there any further comments or questions? If not, are you ready for the question?

(Amendment negatived—See Minutes of Proceedings)

The Chairman: Again on clause 69, page 154.

Mrs. Karen Kraft Sloan: This is Mr. Lincoln's amendment, and I believe this amendment will be stood.

The Chairman: Not moved.

Mrs. Karen Kraft Sloan: Are we going to have to stand the clause? Mr. Lincoln's amendment is on page 154. We'll have to stand the clause, correct?

The Chairman: We then move to page 155.

Mr. Rick Laliberte: I will make this motion—

Mrs. Karen Kraft Sloan: But it's the same as Mr. Lincoln's motion, which we're standing.

• 1100

The Chairman: The clock is showing 11 a.m. I think we had better adjourn at this point.

Thank you.