Proceedings of the Standing Senate Committee on
Energy, the
Environment and Natural Resources
Issue 19 - Evidence, June 16, 1999
OTTAWA, Wednesday, June 16, 1999
The Standing Senate Committee on Energy, the Environment and Natural Resources, to which was referred Bill C-32, respecting pollution prevention and the protection of the environment and human health in order to contribute to sustainable development, met this day at 9:08 a.m. to give consideration to the bill.
Senator Ron Ghitter (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, this morning we will continue our discussion 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.
We welcome back the department officials this morning. I thank you for these outstanding materials that you have prepared to assist us in clause-by-clause study and in understanding the proposed legislation. They are very helpful in dealing with the complexities of the bill.
Senator Spivak: Mr. Chairman, I have not had a chance to look at those briefing books. Do they contain all the substantive amendments that were made at the report stage and the government's reasons for making them? That would be helpful.
Ms Karen Lloyd, Manager, Office of the Canadian Environmental Protection Act, Department of the Environment: Each clause that was amended is highlighted, showing the wording change and a brief explanation. We have also provided the chairman this morning with a list of all the substantive report stage changes. All the changes to correct the French and English concordance are not listed. You should also now have the table that lists all the changes, including the wording before and after.
Senator Spivak: Thank you. That is helpful. It does explain the reasons?
Ms Lloyd: Yes, the reasons are given, but briefly.
Senator Spivak: If we want more extensive explanations, we can obtain them by writing to you?
Ms Lloyd: Yes.
Mr. Harvey Lerer, Director General, Office of the Canadian Environmental Protection Act, Department of the Environment: In response to some of the questions that were raised yesterday, as Ms Lloyd has mentioned, we have provided to you, through the clerk, a table in both official languages outlining the key amendments to Bill C-32. It shows the wording after House committee stage in one column and the wording after House report stage in the other column.
This is our perception of the key amendments. If any amendments are missing, let us know and we will be glad to add to the table.
The Chairman: That has been circulated to members of the committee and is helpful. Thank you again.
Mr. Lerer: In response to a specific question from Senator Spivak regarding the persistent organic pollutants, I have brought with me the latest draft version of the draft protocol on the convention. It references the precautionary principle as contained in the Rio Declaration on Environment and Development. I will table this document for the committee.
Senator Spivak: Does it include cost effectiveness?
Mr. Lerer: It uses the Rio definition, which includes cost effectiveness. There is no definition in the protocol, but it references Principle 15 of the Rio declaration, which is the version of the precautionary principle used in this bill.
Senator Spivak: The Convention on Biological Diversity does not include cost effectiveness.
Mr. Lerer: I did not research that.
Senator Spivak: Canada signed it.
Mr. Lerer: That is fine. I simply do not know the answer to that question. I was asked specifically yesterday about the other matter.
Senator Spivak: I was mistaken. I thought that particular document also contained what the Convention on Biological Diversity contained. Can any one else verify that?
Mr. Lerer: Not at the moment, but we will look into that.
The Chairman: Our information is that Canada signed the biodiversity convention, which contains a definition of the precautionary principle that does not refer to cost effectiveness. That was the point I made yesterday. We were also informed that Canada is in the process of acceding to the protocol to the London Convention on disposals at sea, which defines the precautionary principle without reference to cost effectiveness. We discussed that briefly yesterday, as you may recall.
Mr. Lerer: Yes, I recall that. You have the information and it is probably correct. It was my mistake. I thought I was asked to talk about this.
Senator Spivak: No, it is not a mistake.
The Chairman: It is totally appropriate.
Mr. Lerer: With respect to your question, Mr. Chairman, regarding the Environmental Protection Act and the associated time limits, our office of enforcement is looking into that. We will respond in writing through the clerk, probably sometime next week.
There was also a question, as I recall, regarding the use of the term "sustainable development" in other jurisdictions. We have made some effort to look into that. My colleague, Steve Mongrain, is prepared to speak to that issue, if that is your pleasure.
The Chairman: Certainly.
Mr. Steve Mongrain, Representative, Office of the Canadian Environmental Protection Act, Department of the Environment: I looked at some recent provincial statutes to see if they use the term "sustainable development." As you will recall, the term came to the forefront in 1987 with the Brundtland commission, the World Commission on Environment and Development report. The Brundtland definition of "sustainable development" has been included in Bill C-32. I checked several statutes that have been developed since that time.
The Alberta Environmental Protection and Enhancement Act, 1992, references the principle of sustainable development and then goes on to state:
...which ensures that the use of resources and the environment today does not impair prospects for their use by future generations.
That is a slightly different twist on the concept, but they are referencing it and incorporating it into their law.
Interestingly, the Nova Scotia Environment Act, which was passed in 1995, uses the same definition that we have in Bill C-32.
Those are the two most recent provincial laws dealing with the same kind of subject matter as Bill C-32. Both included the concept -- one in a fashion identical to Bill C-32, the earlier in a somewhat different fashion.
I also looked at some intergovernmental agreements, both domestic and international, on the environment. The Canada-wide Accord on Environmental Harmonization contains the objective of promoting sustainable development. However, it does not define it in any fashion. The North American Agreement on Environmental Cooperation -- the NAFTA side agreement on environment -- also contains the objective of promoting sustainable development, but does not define it per se.
The Chairman: What about Ontario and Quebec? Did you have an opportunity, in that short period of time, to look at that?
Mr. Mongrain: The Quebec act dates back to the 1970s. It predates the Brundtland commission and the whole concept of sustainable development as articulated in the late 1980s and 1990s at Rio.
The Ontario Environmental Bill of Rights includes a statement that the purpose of the act is to provide for sustainability of the environment by the means provided in the act. As with Quebec, their broad environmental protection statute predates Brundtland, but they did pass their Bill of Rights in 1973, so it includes the concept.
The Ontario Crown Forest Sustainability Act, passed in 1995, also includes the concept. I will briefly read one of the purposes of that act into the record:
...to provide for the sustainability of Crown forests and, in accordance with that objective, to manage Crown forests to meet social, economic and environmental needs of present and future generations.
Once again, it captures the idea.
Senator Kroft: There is, or was, a federal government agency based in Winnipeg by the name of the Canadian institute of sustainable development. Since it is called that, it presumably has a definition.
Mr. Mongrain: That is the International Institute for Sustainable Development. I believe it received much of its seed money from the federal government, but I do not believe it is a federal agency per se. It is certainly federally funded but not controlled. I can check into that and see what sort of definition they use in their supporting documentation or mission statement.
Senator Spivak: Most of these statements are in the preamble; correct?
Mr. Mongrain: They are in the preamble, the purpose, that area.
Senator Spivak: We discussed the legal force of a statement like that in the preamble. What is the difference? What is your view of the legal force of statements such as these? Very often, we want to take something out of the preamble and put it into the body. I assume that is because it does not have the same legal force as if it were contained in a clause.
Mr. Mongrain: I will turn to my colleague from the Department of Justice for an answer to that question. However, we have tried to have the operational clauses of Bill C-32 reflect the principles of sustainable development and pollution prevention. They might not necessarily refer directly to sustainable development, but the theme of ensuring a healthy environment for future generations is a fundamental guiding principle and basis.
Senator Spivak: I understand.
Mr. Duncan Cameron, Legal Counsel, Department of Justice: Basically, a preamble is used as an interpretative aid to the substantive provisions of legislation. A preamble is part of the enactment, but does not in itself create any substantive rights or obligations.
Senator Spivak: If a member of the public brings a court case, for example, the court would use it for interpretation purposes in reaching a finding. Is that what you are saying?
Mr. Cameron: Usually, reference to the preamble is made only if there is some ambiguity in the body of the enactment. We only need to rely on interpretative aids if the language is somehow unclear.
You certainly do not see an automatic consideration of the preamble language in court cases, except where it can provide some assistance to the court in trying to ascertain Parliament's intent in the substantive provisions.
Mr. Lerer: I should like now to resume from where we left off yesterday. We would now begin on page 8 of the material you received, which is information gathering, objectives, guidelines, and codes of practice. We intend to proceed, with your permission, with a clause-by-clause overview.
The Chairman: May I trouble you to go back? There are a couple of questions on prior clauses that I meant to ask yesterday.
I wish to take you back to the proposed sections 28, 29, and 30. In clause 29, on the burden of proof, it states:
The offence alleged in an environmental protection action and the resulting significant harm are to be proved on a balance of probabilities.
That is found on page 20 of the bill, clause 29. In your view it is a legal question, but does the precautionary principle come into that? In other words, if you are looking at an action carried forward under environmental protection legislation, and at burden of proof on the balance of probabilities, does that mean the precautionary principle has a part to play there?
Mr. Cameron: I do not believe it does. The precautionary principle guides the actions of government; the government shall not delay taking steps to correct an environmental harm, or potential harm, even though all the scientific data may not be available. It is a guiding principle that applies to government.
Clause 29 refers to the burden of proof that a plaintiff must meet in an environmental protection action. As those of us who are legally trained are aware, the balance of probabilities is the standard of proof in a civil action, whereas in a criminal prosecution, it is proof beyond a reasonable doubt.
In clause 29, we have made it clear that we do not require proof beyond a reasonable doubt in an alleged offence, precisely because this is a civil action. Therefore, the typical test for civil actions is the appropriate legal test in these circumstances.
To summarize, I see the concepts of a precautionary principle and the burden of proof in a civil action as quite separate.
The Chairman: I am not sure that I would totally agree, however. I believe that once we bring in the precautionary principle, it sets a different standard within this proposed legislation. I would expect an astute counsel dealing with a action like this to raise that issue. That is an interesting point but I will not belabour it.
Later, in clause 30(1)(d), it states:
(d) the defence of officially induced mistake of law.
I do not know what that is and would like to know.
Mr. Cameron: It is a defence in law under which alleged violators can claim that they were officially induced to carry out the action in question because they believed that they were complying with the law as confirmed by an official of the state.
In other words, if an official of the state, say an enforcement officer, were to indicate to the alleged violator that such and such conduct would be in compliance with the law, but was mistaken, then in any subsequent civil action, the alleged offender would be able to rely on the fact that an enforcement officer had essentially stated that the conduct was legal.
The Chairman: This is an example of where ignorance of the law can be a defence if it is induced?
Mr. Cameron: It certainly can.
Mr. Lerer: A practical example would be operating under a permit where the attendant restrictions turned out not to meet the requirement of a release limit, or something of that nature. That would be officially induced.
The Chairman: Clause 34, dealing with the court order to negotiate a plan, requires that plan to provide for the areas described in paragraphs (a) to (e). Why should the plan not provide for specific damages to harmed parties?
It speaks to "the payment of money by the defendant as the court may direct to achieve the plan's purposes." Why would you not include the right to award damages to a harmed party outside of existing civil action remedies?
Mr. Mongrain: That was a policy decision to prevent "bounty hunting" -- for lack of a better term -- by those persons who do not suffer directly.
Those who suffer loss or damage directly can pursue an action under clause 39 of the bill and there is provision to provide damages in that instance.
The Chairman: However, to avoid the necessity for civil action and still provide a remedy that does not involve court action and hiring lawyers and so on, why not include it here? That may solve the problem.
Mr. Cameron: The answer lies in what the environmental protection action is designed to achieve. I draw your attention to clause 22(3), which lists all the remedies that may be available in an environmental protection action. That gives you a sense of what the action is all about. You will see that in paragraph (a), you can ask for a declaratory order; in (b), you can ask for an interlocutory order.
The Chairman: Look at paragraph (e), Mr. Cameron.
Mr. Cameron: That is what I wanted to bring to your attention. Clause 22(3)(e) states:
(e) any other appropriate relief, including the costs of the action, but not including damages.
The phrase "not including damages" speaks volumes about the purpose of an environmental protection action. It is a mechanism that allows individuals who are not directly harmed by a violation of CEPA to have standing before the court and to sue an alleged violator in civil court, but not for their personal gain. It would not allow them to seek money damages, but would allow them to seek an order, or other forms of redress that would correct the environmental harm. Therefore, damages have been deliberately left out of the available remedies here.
The Chairman: What if an individual initiates the process, not an interest group?
Mr. Cameron: I believe the same logic would apply.
The Chairman: There are so many different avenues available here. We have many alternatives, all of which have large costs for the person making the complaint. Why do we not try to narrow it down? If an individual has a complaint, and may also have suffered some damages, the bill provides for this protection order process. However, if he has suffered damages, he has to start a civil action, and who knows what else is in this proposed legislation. There are costs, time, frustration, and so on.
Why not include the damage aspect?
Mr. Cameron: If you were directly harmed by an alleged offence under CEPA, you would not bother with an environmental protection action, you would file a claim in negligence right away. That will give you the remedy you seek.
The Chairman: I suppose, but perhaps it is cheaper for me to go this route. You can obtain an injunction. Perhaps I could avoid all of that and save money by taking an easier route. Perhaps I do not want to go to all that cost. I might find this a better, more efficient, less costly way of doing it.
Mr. Cameron: I do not see this as being a quicker, less costly alternative.
The Chairman: Your comment speaks volumes.
Mr. Cameron: It is what it is. There is an injunction available at common law in negligence, but there is also an injunction available under clause 39, in a civil suit where personal damage has been suffered, to allow a plaintiff to go to a court and ask for an interlocutory or permanent injunction.
The Chairman: To conclude on the point, would it be detrimental to the bill to include such a measure so that a plaintiff has an alternative and could make his or her own judgment on which route to follow?
Mr. Cameron: It would fundamentally alter the nature of the kind of environmental action we have created.
Mr. Lerer: The thrust of the policy was to give standing to those who had not been affected directly and enable them to bring a civil action. There are always other civil remedies in law.
The essential policy thrust was to give standing to those who wanted to bring a civil action, but not for the purposes of personal gain. That is the way it has been translated into the proposed legislation.
Senator Spivak: Clause 42(3) states:
No claim for damage caused by a ship may be made under this Act to the extent that a claim for that damage may be made under the Canada Shipping Act...
That addresses ships. However, as I recall the Canada Shipping Act, it exempts, for example, the Port of Vancouver from any environmental assessment, et cetera. Have you any thoughts on that? Does this refer only to a ship and not the port? If the action of a port results in pollution of the waters, or whatever, can people still proceed under this proposed legislation? Does this clause relate specifically to ships?
Mr. Cameron: This is specific to ships, that is right. It was designed that way because there are other liability regimes established under international law that apply to ships. If a port is involved in an alleged violation of CEPA, it is in no way exempted by this clause.
Senator Spivak: Therefore, is it correct that this proposed legislation would take precedence over the Canada Shipping Act? I wish to clarify that. I know that the Vancouver port is exempt. I do not know why, but that was stated in the bill.
Assuming I am correct, would this proposed legislation take precedence?
Mr. Cameron: Are you talking about environmental assessment?
Senator Spivak: I am talking about environmental assessment. However, I am not sure exactly how the clause is worded. I am asking for the principle. The principle seems to refer only to ships and not to ports.
Mr. Cameron: That is correct.
Senator Spivak: Therefore, this proposed legislation would take precedence?
Mr. Lerer: This bill would apply.
Senator Spivak: It would take precedence.
The Chairman: In conclusion, I wish to leave you with a question. It goes back to equivalency and your response yesterday relating to clause 94 of the bill and the ability of the government to make interim orders affecting other provinces.
Rather than take the time of the committee, I will have this copied and circulated to members. I would like our witnesses to review this and provide us with a response. It is an important point, but I do not want to take the time of the committee at this point.
Mr. Lerer: We will do that, Mr. Chairman.
The Chairman: Please proceed with the next element of your presentation.
Ms Lloyd: Part 3 deals with the authorities and the obligations of the Minister of Environment, and in some cases the Minister of Health, in gathering information, conducting research, and publishing objectives, guidelines, and codes of practice.
The House of Commons amended many of the clauses in this part to make those mandatory upon the ministers rather than discretionary. For example, the Minister of the Environment must now develop an inventory to monitor environmental quality in Canada and publish the results. She must also periodically publish a report on the state of the Canadian environment.
The House committee also added a new clause whereby the Minister of Environment and the Minister of Health must conduct research on hormone-disrupting substances.
There are also expanded information-gathering powers in this proposed section. The minister can send out notices requiring people to submit information in their possession. That could be in order to conduct risk assessments, develop the inventories that she requires, issue the guidelines and codes of practice, and help guide the monitoring and research that the department carries out.
There is now also a discretionary clause that requires the Minister of Health to conduct research into the role of substances in illness or health problems. That is now a mandatory obligation; previously it was discretionary.
There is now an explicit requirement in the proposed legislation to develop the national pollutant release inventory. Environment Canada had already established an inventory on the release of pollutants into the environment, but now it is explicitly stated in the bill that we must maintain that inventory. The minister may also use the information-gathering powers of the proposed legislation to collect needed information if necessary.
Senator Taylor: I am attempting to integrate your presentation with some knowledge that I have gained in the Agriculture Committee. In our meetings with interest groups in Europe and Canada, we learned of consumers' desire to know more about their food and its connection with genetic modification. We recently completed a study on hormones in milk.
Is there any clear boundary between the Department of Environment and the Department of Agriculture? What is happening in research? The Department of Agriculture seems to be captive to those who want to sell what we grow, no matter how it was produced, and genetically modified or not. Every bit of that so-called "Alberta beef" you buy came from a calf that had a hormone implanted in the ear when it was a few months old to ensure that it grew quickly. It seems we are insisting that people ingest genetically modified food by not even allowing proper labelling that would enable the consumer to make a choice.
In this chapter, I foresee the possibility of a confrontation between your department and the Department of Agriculture. However, the Department of Agriculture generally has more votes. How will this turn out?
Mr. Lerer: There is an obligation in this bill for the minister to carry out research on hormone-disrupting substances. We have actually done that a for number of years.
The focus of our research is on environmental exposure. There is currently a huge, international research effort under way on hormone-disrupting and endocrine-disrupting substances because scientists are concerned that they may have an adverse effect. This committee studied that issue in the agricultural area.
Our research is not conducted solely within the department. Science does not work that way now. It is an international and cooperative effort between governments and universities, and within the federal government, between departments. However, because of our obligations under this bill, our focus is on the potential release of these substances into the environment and the subsequent exposure of species of interest and humans to them. We do not believe there is a conflict. We believe it is broad-based research, and we have found our role and our niche in terms of our obligations. Other departments, specifically those responsible for food, will conduct their research and do what they must to fulfil their responsibilities and obligations.
Senator Taylor: That is why I am worried. You have a niche, but it might be so small that it is hidden. For example, let us take genetically modified corn. The U.S. has found that pollen from genetically modified plants spreads to insects and is killing monarch butterflies. I do not know why monarch butterflies would worry the Department of Environment, but I suspect that if it is killing monarch butterflies, it might not be good for other insects or animals. We are using genetic modification and terminator genes to produce food more quickly and cheaply. You say that you are in a niche, but I think you are in a direct confrontation zone.
I do not want you to back off here and it sounds a bit like that is what you are doing. I simply want to know, when push comes to shove, how will this be worked out?
Mr. Lerer: I do not mean to give the impression that I am backing off. That was not the message I wanted to leave with you.
Regardless of what bureaucrats do, scientists will talk to each other. That is the way they conduct their business.
Will there be differences of opinion as the science evolves? Of course there will. There will be discussions, not only amongst the scientists, but in places like this.
Will we resolve them? I am confident we will.
To give you an example, a $40 million research partnership program funded by the federal government was recently announced. The federal departments involved in that research initiative include Agriculture, Health, Environment, and Natural Resources.
I understand the point you are making, but let me conclude my comments by saying that regardless of what the bureaucrats do, I assure you that the scientists talk to each other and cooperate in their research efforts.
Senator Taylor: I do not want you to be too cooperative, actually. I want you to get out there and fight.
Mr. Lerer: You can always ask my colleagues in other departments to comment on how cooperative we are.
Senator Spivak: I want to ask you about proposed additions 47(2) and 47(3), which are limitations on the minister's power. It was one of the areas amended at report stage.
The minister must offer to consult with provincial and territorial governments, et cetera. However, the minister can only take action 60 days after the offer to consult has been made, and only if that offer was not accepted. This raises a number of questions.
I understand this is only the first of about 10 different clauses in which the offer to consult is mentioned. Given the Commissioner of Environment and Sustainable Development's criticism of the difficulties and impediments to taking action, is this not a new requirement? I should like you to explain why the government inserted this amendment. Will this not effectively limit the federal government's ability to take action in a timely manner? If the offer to consult were accepted, would the minister have to wait until all the consultations with all relevant parties were completed before taking action? What would the minister's options be if there was disagreement?
This strikes me as a very bureaucratic notion for not acting. How will you act after you have consulted with everyone? You can only act if the offer is not accepted. That is strange. Could you explain that and the reasons why the government introduced this amendment at report stage?
Mr. Lerer: I will try.
The original clause 47(2), the offer to consult, has been in the bill since it was tabled in the House of Commons. It is a recognition of the fact that many solutions to environmental problems require activity in partnership.
Senator Spivak: Is this the harmonization agreement?
Mr. Lerer: It respects the harmonization agreement, yes.
There was considerable debate in the standing committee. The 60 days is meant to be a limitation on how long the minister must wait for a response to the offer to consult.
Mr. Lincoln made many motions on each of these "offers to consult." He wanted to see the 60-day time limit on accepting the offer put into the bill. I understand that those motions were defeated in committee, but the government inserted them during consideration before report stage.
The offer to consult has always been in Bill C-32 and reflects the way we do business. The 60-day time limit is not on the consultation; it is a time limit during which the offer to consult must be taken up. The minister can proceed whether or not the offer to consult is taken up, and even if there is disagreement.
Senator Spivak: If the offer is not taken up in 60 days, the minister can act on any clause of the bill?
Mr. Lerer: Yes.
Senator Spivak: If the offer to consult is taken up, there is no time limit. For the parties that shall be consulted, there is no time limit.
Mr. Lerer: There is no limit on the consultation itself.
Senator Spivak: Therefore while the minister is consulting, she can act?
Mr. Lerer: Of course.
Senator Spivak: While she is asking the provinces whether she should act, she can act?
Why are consultations necessary on guidelines for the minister's own use?
Mr. Lerer: I will just finish my point and then I will turn it over to my colleagues.
Since Bill C-32 was first tabled in the House of Commons it has contained the notion of offering to consult; in this particular instance, offering to consult with the provinces and aboriginal governments. A concern arose during the standing committee process in the House of Commons that the lack of a time limit on the offer to consult could inadvertently be used as a delay.
Therefore, the government introduced a 60-day time limit on the offer to consult at report stage. However, it is merely a consultative body. The minister is not obligated to accept the advice given or to continue until everyone is satisfied. As long as the minister believes that she has consulted on a specific action, or on its timing, in good faith, there is nothing to diminish her responsibility or her power to act.
Senator Spivak: Do you think it is politically possibly for the minister to take action while she is consulting?
Mr. Lerer: If an offer to consult is taken up, I would expect the minister to act in good faith and allow that consultation to proceed. If there is a clear and present danger, there are other remedies. I would expect that if an offer to consult were taken up, the minister would enter into that consultation in good faith.
Senator Spivak: Why is she consulting on guidelines for her own use? This is a federal power.
Mr. Lerer: Yes, it is
Mr. Mongrain: I can respond to that. This deals with the information-gathering powers. Information gathering is an expensive undertaking for the government and for those who must provide the information, industry in particular. Provincial and territorial governments also gather a fair amount of information. It is sometimes more efficient for us to get the information from a province, if the province has it in hand, than to go directly to an entire group of industries.
It seemed natural to us to develop the guidelines for use of this power in consultation with the provinces, since we may be turning to them initially for the information we are seeking in many instances.
Senator Spivak: With all due respect, do you really need a law to enable the federal government to consult with the provinces on information? Is this not a little unreasonable? The federal government can do that at any time. What are we doing here?
Mr. Mongrain: This is not enabling, it is saying that the government will offer to consult. It seemed to make sense when the two levels of government are engaged in information gathering.
Senator Spivak: Do the provinces have the same obligation to consult with the federal government?
Mr. Mongrain: I am not aware of what is in their legislation.
Senator Spivak: I realize it is not in this bill, but I am asking about the harmonization accord.
The Chairman: Mr. Mongrain, there is no obligation to consult. I see "may consult."
Senator Spivak: It says "shall offer to consult" in clause 47(2).
The Chairman: I do not read it that way. It states:
In carrying out the duties under subsection (1), the Minister shall offer to consult...
Further on it says:
...and the members of the Committee who are representatives of aboriginal governments and may consult with a government department or agency...
What am I missing? I see one "shall" and one "may."
Mr. Mongrain: The "shall offer" applies in the case of provincial and territorial governments and the aboriginal government representatives on the national advisory committee. The "may" applies to everyone else.
Senator Spivak: I will want to raise this same matter on all the other 10 clauses to ensure that it is not an inhibiting piece of proposed legislation.
Senator Cochrane: Does this mean that the minister "shall" or the minister "may" require information disclosure from provincial cabinet ministers or provincial government departments? It states that they "shall."
Mr. Cameron: The obligation is on the offer. The minister must make the offer to her provincial and territorial counterparts and the representatives of aboriginal governments on the national advisory committee. She must make that offer to consult in the process of developing these guidelines. We will see this language repeated in 11 or 12 places in the bill. There is a legal obligation to make the offer.
If that offer is accepted, the consultations will unfold in the normal way. There is no obligation on the groups or governments being consulted to provide certain information. It is good-faith consultation where you sit down and exchange information and talk about how these guidelines will be developed.
The 60-day limitation is included simply to ensure that the minister is not unable to begin developing these guidelines if the offer has been made but not yet accepted.
Senator Cochrane: What happens if a provincial minister accepts the offer but prolongs the issue merely for the sake of delay?
What does the federal minister do?
Mr. Lerer: The minister acts. In my view, as long as it can be demonstrated that the minister consulted in good faith, then she has discharged her obligations and can act.
Senator Wilson: I need a little clarification. If there are 12 clauses that say the minister is obliged to consult, what is the role or the purpose of the national advisory committee?
Mr. Lerer: That may turn out to be the vehicle for that consultative purpose. That is the intent.
Senator Wilson: You have not said that. It sounds like that is a parallel process.
Mr. Lerer: It could very well be if a specific issue arises. Rather than convening the national advisory committee, which is generally composed of policy people, you may want an expert group to carry this out. You are not obligated to use one specific organization. It is not specifically referenced in order to provide that kind of flexibility.
Senator Wilson: It seemed to me like a double layer.
Mr. Lerer: It could be. Operationally, however, that is not the way it has been used. We have had this consultative mechanism in place since 1988 and it has not been used in that way.
It is being changed in Bill C-32, as we said yesterday, to ensure the inclusion of representation from aboriginal governments on an equivalent basis with the provinces.
Senator Kroft: I would like to move from the legal and administrative to the editorial. A context has existed since 1988 from which all this is drawn. I understand the "shall"s and the "may"s. What in fact has been the practice in Environment over recent years on these consultations? Is this designed to try to cure a problem or to institutionalize an existing practice? Are we dealing with a totally unsatisfactory situation or one that is working fairly well? Can you comment on that?
Mr. Lerer: Since our regulation authorities affect many facets of Canadian life, it has been our normal practice, in developing regulations and control options, to consult not only with provincial governments -- and now with aboriginal governments in Bill C-32 -- but also with experts in the field and those who will be affected. These are generally multi-stakeholder consultations.
In Bill C-32, we have provided that on some points it is only a declaration, while on other points it is an obligation to undertake consultations. That is common practice.
Senator Kroft: Was the 60-day period included because you typically found that you did not receive an answer?
Mr. Lerer: It is there because the members of the House felt that it could be used as a delaying tactic and they wanted a specific time limitation.
Senator Spivak: Could you provide, at some other time, a list of provincial governments or committees that have an obligation to consult under the harmonization accord or any other piece of legislation?
Mr. Lerer: Yes, we will.
The Chairman: Where does biodiversity come into play here? Can the minister not conduct research on biodiversity within this environmental data and research category, or is that contained in some other legislation? Can you help me with that? It is an important area.
Mr. Mongrain: Clause 46(1)(i) specifically allows for research dealing with wildlife or other species. When we gather information on substances that might be toxic or harmful, their effect on biological diversity is one of the considerations.
The Chairman: I should like you to be much broader than that. I know there are state-by-state examinations in the United States of the interrelationship between animal species, plants, and so on. They are doing an inventory in every state. I should like to see our Minister of Environment have the power to do the same. The clause to which you referred deals with matters that are harmful to the species. I am referring to research and information-gathering in the area of biodiversity. I do not see that here, and I am wondering why not.
Mr. Mongrain: That falls under obligations and requirements to do state-of-environment reporting. This deals with the authority and inventories. Clause 46 outlines some very specific powers in paragraphs (a) to (n), but it is also very permissive and broad.
The Chairman: I do not find it broad enough.
Ms Lloyd: Clause 46 is concerned with what we ask other people to do, and clause 44 with what we do ourselves.
The Chairman: Can you find biodiversity mentioned in clause 44?
Ms Lloyd: It does not specifically state "biodiversity," but Environment Canada does conduct research on ecosystem effects not just of chemicals, but of all stressors on wildlife and habitat.
The Chairman: As I look at this bill, it seems to me that in some areas you are very specific about what you can do. You even added this clause that the House wanted on hormone-disrupting substances. You are very specific about that because someone wanted to have it included, and it is important. However, on the other side of the coin, a broader but significant area like biodiversity is not even mentioned, other than by implication. Why is it not referred to more specifically in this bill so the minister can point to a proposed section and say, "I have the right and power to conduct research in this area"?
Ms Lloyd: A specific mention of biodiversity was added by the House of Commons to the definition of "toxic," which we will get to later in Part 5. Part of the definition on toxics deals with the effect of a substance on the environment, including its biodiversity. The words "including its biodiversity" have been specifically added.
We can conduct research or ask others to provide information on substances that are or may be toxic, and that is certainly specifically mentioned in clause 46.
The Chairman: I am talking about the department taking an inventory in the area of biodiversity so that we know what is happening out there. I am not talking about harmful or toxic substances, although of course that is important. I am referring to an inventory of what is occurring. Would there be an objection if "biodiversity" was expressly referred to in clause 44 in order to allow and encourage the minister to do that? Is there is reason why it is not included?
Ms Lloyd: I am not aware of a particular reason.
The Chairman: I will put a big "A" for amendment there. That is another area. Do you know of any reason why we should not make that change?
Ms Lloyd: No.
Mr. Lerer: No.
Mr. Mongrain: We certainly were not trying to limit our authority.
The Chairman: However, you are doing so. When you suddenly include a clause on hormone disruption, then you are beginning to enumerate things. If you are going to do that, then I want to see other areas included. I have made my point. I will put a big "A" beside that clause.
Mr. Lerer: There is nothing to prevent that; however, it is not a specific obligation, nor is it mentioned in those clauses.
Senator Spivak: It is important, for example, in forestry, because old growth forests, such as aspen forests in the boreal forest, are recognized by scientists as possessing the greatest biodiversity. That is a provincial jurisdiction and some provinces say, "Cut the old growth forest first because it is the most valuable." Is the federal government at all precluded from any kind of research on biodiversity in this clause, or is the research power absolute?
Ms Lloyd: I do not understand the question. Could you rephrase it?
Senator Spivak: I am asking you if the federal government, in looking at biodiversity, could specifically target old growth forests -- actually, the research already exists -- and verify that without limitations.
Mr. Lerer: There is no limitation on the research that the minister may undertake. This proposed section, as the chairman pointed out, enumerates certain areas.
Senator Spivak: All right.
The Chairman: On that point, in stating that the "minister shall" -- and I am back to clause 44 -- in order to ensure that, should there not be an umbrella clause at the end saying, "and such further and other research as the minister may, in her discretion, determine in order to fulfil her overall responsibilities"? Why is there no "catch-all" at the end?
Mr. Cameron: Because it is an obligation. Since the word "shall" is used, it seems to me that it may be legally enforceable. If you have an open-ended residual clause, as you are suggesting, you can imagine that that might lead to some legal uncertainty as to what the obligation is. The minister has these powers to conduct whatever research in whatever way she considers appropriate.
The Chairman: Where do I see those powers?
Mr. Cameron: That is inherent in her ability, under the Department of Environment Act and as a minister of the Crown, to organize her department in any way she deems appropriate.
The Chairman: If that is inherent, why are we spending time on proposed sections 44, 45, and 46? Why bother with the wording, why not just let her do that?
Mr. Cameron: It is because her mandate to conduct research is discretionary in the sense that it is not a legal obligation. It empowers her to do so. Clause 44 mandates her to conduct specific types of research. If, as you suggested, there are other areas that she feels would be helpful in carrying out her mandate, nothing in this clause prevents her from studying them.
The Chairman: In my legal days, I always believed that if a piece of legislation specifically outlined certain powers, then the argument that "if it is not there, you cannot do it," would prevail. Is that an invalid legal concept these days?
Mr. Cameron: No, it is certainly a very valid concept for certain purposes. I am not sure that it is a concept or a rule of interpretation that could ever be used to argue that these are the only powers the minister can exercise with respect to conducting research. In that case, you would rely on the departmental statute, for example, which gives her a broad power to organize her department in any way she sees fit.
We must understand that ministers of the Crown have powers that have not necessarily been delegated to them by Parliament. Crown officers have an inherent power, for example, to enter into contracts, and to organize the bureaucracy in a certain way. These are prerogative powers that do not necessarily need to be enshrined in legislation.
The Chairman: Until such time as Parliament then comes forward and passes legislation stating, "These are your powers in this specific category."
Mr. Cameron: Right.
The Chairman: Therefore, these are the powers to conduct research.
Mr. Cameron: I do not believe that this encompasses all of her powers.
The Chairman: Clause 44 states that these are the minister's powers in matters of research.
Senator Kenny: However, the witness just said that ministers have others powers that are not delegated by Parliament.
The Chairman: I appreciate that. However, now that Parliament is saying that in research you will do, (a) (b), (c), (d), and (e), I would regard that as limiting the minister. Is there not an argument there?
Mr. Cameron: There may be an argument, certainly; however, I am not sure that it is the best argument. I believe that she would have a residual power inherent in her office.
The Chairman: I now wish to address clause 45, regarding the Minister of Health. Again, we have a similar situation. I take it the Minister of Health has these powers by implication anyway?
Mr. Cameron: Yes. I agree with that.
The Chairman: Here we are again. The Minister of Health has these powers, but then we will specify a couple of them.
Mr. Cameron: That is correct.
The Chairman: Then I say, if that is the case, why not specify a couple more? For example, instead of just researching substances that may cause illness, why do we not include smoking or contaminated air? There are many aspects that could be included under environmental matters that may cause illness. I am sure Senator Adams can point to many things in Northern Canada related to that.
Why are we doing this? If the Minister of Health has all these powers, why are we suddenly specifying certain things in clause 45? I would like the Minister of Health to do all kinds of other things, and I am sure Senator Kenny would want smoking to be included. Are these clauses just thrown in to make us look good?
Mr. Mongrain: In fact, I do not believe we are adding powers, in the sense that these already existed in the CEPA passed in 1988. I believe the significant and important point is that Bill C-32 obligates the Minister of Health to conduct research in these areas.
The Chairman: I would then like to obligate the Minister of Health to conduct research into a whole list of other things in the environment that cause illness. Must I introduce a whole list of amendments, or are we saying that the Minister of Health is only required to do these, and they are the only ones of importance? I could enumerate many other more important ones.
Mr. Mongrain: Under this proposed legislation, which takes the substance-based approach, these are important and fairly broad areas.
The Chairman: Surely this bill is more than just a substance-based approach. We are talking about overall environmental legislation, which by definition is much broader than that.
Mr. Mongrain: By definition, "substance" is very broad. If you read clause 3, the definition of "substance" includes any inorganic or organic matter. We are concerned with substances that, when released into the environment, cause harm to that environment or to human health.
The Chairman: Does that include smoke?
Ms Lloyd: Yes, it could.
Mr. Mongrain: Yes.
The Chairman: I believe there are many other things that should be added if we are going to do this. That is another big "A" on the list.
Senator Spivak: I have a question on this point. Of course, the minister cannot look at any substances that are covered under the Pest Control Products Act. Is that correct?
Ms Lloyd: Not if their only use in Canada is as a pesticide, no; the Minister of Health does that. Although we do conduct research on pesticides in Environment Canada.
Senator Spivak: Is there not another clause stating that this does not apply if it is covered under that act?
Ms Lloyd: Our minister can conduct research on anything in the environment. If she wishes to study the effects of pesticides on the environment, then Environment Canada can do that.
Senator Spivak: The only thing she cannot do is act on it. She can study it, but she cannot act on it because that power is contained in other legislation and falls under the jurisdiction of another minister.
Mr. Lerer: Yes.
The Chairman: I should like to talk about the information-gathering side. When the Department of Environment knocks on industry's door and says, "We want the list of information," that process, as Mr. Mongrain said, can be expensive, not only for government, but also for the industry.
Is there any provision in this bill to allow the government to reimburse industry for some of those costs? It is their information-gathering process, and small businesses could be tied up providing information at great cost with no assistance from the government.
Is there any relief for industry in these situations?
Ms Lloyd: I do not think there is anything preventing us from doing that.
The Chairman: Is there anything specific in the proposed legislation ?
Ms Lloyd: Not that I am aware of.
Mr. Cameron: There is nothing.
The Chairman: Is that fair?
Ms Lloyd: Before we publish a notice in the Canada Gazette requiring people to submit information to us, we do attempt to consult with them first to ensure that what we are asking is feasible and reasonable from their point of view.
There may be cases where we do not really need the information and we may re-think what we are doing. In cases where we do need the data, we try to work out how best to obtain it.
Mr. Mongrain: For example, we have worked with industry to develop software that makes it easier for them to comply with requests for information required for our national Pollutants Inventory. They can comply with as little cost as possible while providing us with the information that we need.
The Chairman: In the end, there is no provision in the bill for industry to claim financial assistance from the government in these situations. They are expected to do this on a voluntary basis, even if they are not suspected of committing an offence under the proposed legislation.
Ms Lloyd: It will not be voluntary if the minister publishes a requirement to submit the information in the Canada Gazette and it is available.
The Chairman: If they do not submit the information, they are subject to a $1 million fine and three months imprisonment or, on summary conviction, $300,000 and a three-month incarceration.
Mr. Mongrain: That is no different from what Statistics Canada does under their legislation; namely, gather information for legitimate purposes.
Our department is frequently trying to find out if a substance is harmful to the environment or to human health, and whether it needs to be regulated or causes problems with biological diversity. It is a price we must all pay.
The Chairman: I have no trouble at all with the requirement for the information gathering. I understand that it is very important.
My only concern is the cost that may be imposed on industry to provide this information when they may be doing nothing wrong at all. They may be acting totally appropriately.
Mr. Mongrain: Certainly industry may be acting within the law, but as you pointed out, the information gathering is important in determining if something needs to be controlled. That is why there is a requirement to development guidelines on how we will use this power.
Mr. Lerer: The information gathering is not necessarily with respect to a violation of the law. It may be required in order to conduct an assessment on a substance and make a scientific determination as to whether it meets the criteria of "toxic" under the proposed legislation. These powers are designed to gather information that could reasonably be expected to be in the possession of the person from whom we are requesting it.
The Chairman: I appreciate that. However, I refer back to Mr. Mongrain's earlier comment that that can be a costly process.
Mr. Lerer: Most certainly, and it very often is.
Senator Spivak: I would point out that this is not an inhibition on taking action because even while the minister is consulting, she may act if she so chooses.
Mr. Lerer: Once again, I will add my caveat to that, which is that I expect that the minister would consult in good faith, having made this offer.
Senator Spivak: Guidelines are an important matter for the provinces.
Mr. Lerer: Yes.
Senator Spivak: We know the record of the provinces in enforcement. The point is, this might take a long time. I can understand why she would want to consult -- I have no problem with that -- but in this case it could take a long time.
Mr. Lerer: I suppose, but not necessarily. We have conducted consultations in relatively short order while some have gone on for protracted periods of time. That is the history.
As to your original comment, I repeat what I said before -- I would expect that if a federal minister of the Crown offers to consult and that offer is accepted, that minister would consult in good faith and not proceed arbitrarily.
The Chairman: Let us proceed to Part 4.
Ms Lloyd: Part 4 is a new part to CEPA 1999, compared to CEPA 1988. The title page of the bill states that this is respecting pollution prevention. That is the cornerstone of this proposed legislation.
The bill provides the minister with the power to require pollution prevention plans from companies that are involved with toxic substances on the list in schedule 1 at the back of the bill.
The purpose of pollution prevention planning is to allow companies to self-select the measures that they feel are most appropriate for dealing with these toxic substances. The identified companies must develop and implement the plans. They are not normally required to submit those plans to the minister, but she has the authority to require that and would probably use it when she wanted to see if the desired impacts on environmental quality were being achieved. In this way, the minister could confirm whether there were other control measures that should be put in place.
Part 4 of the bill also encourages industries to voluntarily develop pollution prevention plans. The minister can publish model pollution prevention plans and establish an information clearing-house for data and information where different methods of pollution prevention can be shared.
The minister can establish guidelines for when pollution prevention planning is appropriate, and can also establish an awards program to recognize significant achievements in this area.
Senator Spivak: What is the rationale for involving the Governor in Council here?
Mr. Mongrain: There is ministerial authority to require the plan be submitted if the substance is on the list. The Governor in Council, under the existing CEPA and under Bill C-32, has the responsibility for adding to the list of toxic substances. We will get into that in detail in the next part of the bill.
Senator Spivak: This was part of a government amendment at report stage. Could you go through that for us?
Mr. Mongrain: That relates to international air and water pollution, which are later clauses that we will review with you in more detail.
Senator Wilson: I understand that in a previous life, in Bill C-74, the minister would have been allowed to require prevention plans not only for substances actually listed, but also for those recommended and assessed. Why was that provision dropped?
Mr. Mongrain: That was the way Bill C-74 was drafted.
Senator Wilson: Why has the idea been dropped?
Mr. Mongrain: That was a decision made by the government when reintroducing the bill.
Senator Wilson: I am asking why.
Mr. Lerer: Bill C-74 died on the Order Paper, as history will show. The government made a decision on how it would introduce Bill C-32.
Senator Wilson: Let us drop Bill C-74 then and ask the following question: Why is the minister not allowed to require prevention plans for substances that are assessed and recommended?
Mr. Lerer: I think that I am on the same ice I was on before.
The government made a decision on certain changes in tabling Bill C-32. With respect, that is the bill before you. I would hesitate to allow my colleagues or myself to speak to a bill that died on the Order Paper.
Senator Wilson: I tried to get you off that tangent, but obviously without success. I am sorry I mentioned it, since it is a red herring, but I would like an answer to my question. It seems to me that if the minister has to go to the Governor in Council for that authority, that slows down the whole process.
Ms Lloyd: We should perhaps consider the degree of effort required on the part of an industry to develop a pollution prevention plan. If the minister demands that it be developed and implemented, it could be at considerable cost to certain industries. I think it is only fair that the minister first do an assessment to ascertain that this is a substance for which there should be mechanisms in place to control the release.
If I were sitting on the other side of the table and being asked to control substances for which no one had shown there was a problem, I would have some concern. I think perhaps that is why the change was made.
Senator Wilson: Does this not have something to do with the whole issue of pollution prevention?
Ms Lloyd: I think that is why the other component of this part of the bill is encouraging industries to develop pollution prevention plans voluntarily, including for substances not on the list.
Senator Wilson: Our experience has been that it is more satisfactory to have it in legislation than to ask for voluntary compliance. Certainly that is my experience of corporate responsibility. There has been a lot of words but very little delivery.
Mr. Lerer: With respect to the senator's question about delay, as we go through the provisions of the bill, we will come to clauses that state when the minister declares a substance to be toxic, she is simultaneously obligated to recommend to the Governor in Council that it be placed on the list.
I am not sure that will cause delay. That was a problem in the previous bill. There is no such stipulation in the current act and there has very often been a delay in making a recommendation to the Governor in Council. This bill states that at the time of the declaration of toxicity, the minister shall recommend to the Governor in Council that the substance be added to the list.
Senator Wilson: Has the minister's recommendation ever been turned down?
Ms Lloyd: No.
Mr. Lerer: Not that I know of.
Senator Cochrane: Clause 56(1) of the bill states that:
...the Minister considers appropriate a notice requiring any person or class of persons described in the notice to prepare and implement a pollution prevention plan...
Could the minister impose this on provinces or municipalities?
Senator Spivak: That would be good.
Mr. Mongrain: No.
Mr. Cameron: The notice would be in respect of any person or class of persons. That is a legal term meaning an actual person or a legal entity such as a corporation and a province would be excluded from that definition. However, incorporated municipalities could conceivably fall within the legal definition of "person."
Senator Cochrane: Could the minister impose this on the municipality?
Mr. Cameron: Once the notice is published, there is an obligation to prepare and implement the plan. It is enforceable.
Senator Buchanan: Even though a municipality is a creature of the province? Municipalities exist only as a result of provincial law.
Mr. Cameron: That is right. It is an interesting question, but they are incorporated under the laws of the province and are persons in the legal sense. Federal law can apply to instruments of a provincial government.
I think you could argue there is the power to require a municipality to prepare and implement a pollution prevention plan to address an environmental problem if it was considered appropriate.
Senator Buchanan: I think I would argue the other side.
Mr. Cameron: I think there would be an argument on the other side, and I think we would proceed with caution in that area.
Senator Spivak: I have a supplementary to Senator Wilson's question about whether pollution plans are in fact enforceable, as well as a question about verifying compliance. What if corporations do not want to do this and are not required to submit a plan? What action could the department take? More importantly, how could the department verify compliance?
Mr. Mongrain: One of the requirements in these clauses is that the facility keep a pollution prevention plan on site. Our enforcement officers have authority to go to the site, examine the plan, and determine if it is being implemented. The facilities are required to submit a declaration that they have implemented the plan. These are safeguards to ensure that the plans are in fact prepared and implemented. There is enforcement authority.
Senator Spivak: What is the remedy if this is not done?
Mr. Mongrain: They would be charged with being in violation of the act.
Senator Spivak: There are probably no regulations yet, or perhaps they are in progress. Will you have new, different enforcement officers? Will the Department of the Environment add to its staff, which has been cut drastically? I believe it has been cut in half.
Mr. Mongrain: It is our enforcement officers who are designated under this bill and we will describe some of their new powers later in our presentation.
In the last budget, the government provided $43 million to the department for dealing with toxic substances. I assume that some of that money may end up in the enforcement budget, although I cannot predict that.
Senator Spivak: How many enforcement officers are there at the moment?
Mr. Lerer: I am not aware of the exact figure, but I could certainly supply that to you.
Senator Spivak: Thank you.
Senator Kenny: When we last looked at this issue, there were 12, one for each province and two spares.
Mr. Mongrain: There are considerably more than that. It is in the order of 50 or 60, but we will get you the exact figure.
Senator Spivak: Is this part of harmonization? Would the provinces undertake to enforce this? They have practically no enforcement officers.
Mr. Lerer: We have not considered that.
Senator Spivak: It is important to know whether enforcement is a provincial or federal responsibility in the bill.
Mr. Lerer: I am sorry, I did not understand your question. Enforcement is a federal responsibility under this bill.
Senator Spivak: The harmonization accord does not alter that in any way? There is no delegation of those powers?
Mr. Lerer: No, not under the accord.
Senator Spivak: Are you sure?
Mr. Lerer: I am pretty sure, but I will check that. We will provide you with the number of enforcement officers and the legal ramifications of harmonization.
The Chairman: I will save you the work. I asked our clerk yesterday to get me that information because it has been alleged that there are not enough enforcement officers. You have 60. The national enforcement office employs 22 staff. There are 60 enforcement officers employed in the regions, 11 of whom occupy managerial positions, so I guess we cannot count on them to do any enforcing.
Mr. Lerer: That is what my staff tell me.
The Chairman: That hardly seems like a lot of people to accomplish this kind of task.
Senator Kenny: The last time we studied similar proposed legislation, I clearly recall that we were told there were 12. I would like the staff to examine the record. If that number has increased by five-fold, that is terrific, although it depends on what they are doing.
The Chairman: This is a very important point.
Senator Kenny: Could we check the testimony we heard last time?
The Chairman: Perhaps you can check your numbers and we will check ours.
Mr. Lerer: Your numbers sound very reasonable, Mr. Chairman.
The Chairman: Let us confirm that for Senator Kenny.
Senator Buchanan: Did I understand you to say that the enforcement officers are exclusively federal? We have provincial enforcement officers in Nova Scotia.
Mr. Lerer: No, sir. The question was about the responsibility for enforcement of this proposed legislation.
Senator Wilson: Which clause of the bill specifically deals with the issue of voluntary compliance?
Mr. Mongrain: The promotion of voluntary plans and so forth is in clause 63, which is subtitled "Other Initiatives." Clause 61 deals with model plans and guidelines.
The Chairman: Clause 2(1)(a), talks about "cost-effective" measures, and since we are now moving into the area of pollution prevention plans, I assume that we must consider whether they are in fact cost-effective measures. Is that the case now that these words have been inserted? If so, how will that work?
Mr. Mongrain: This is an innovative new tool. We consider the plans to be very cost effective, almost by definition. As Ms Lloyd pointed out in her presentation, it gives industries the opportunity to self-select measures that are appropriate to their circumstances.
We still hold the ultimate "hammer," if you will, of regulation, which comes with extra costs for government and, I believe, greater costs for industry in many instances. In general, and when deciding whether to go ahead with the pollution prevention planning option, these factors would be some of the variables in the decision-making process. We are hoping that pollution prevention will be very effective, as well as cost effective.
The Chairman: Perhaps I am not expressing my concern clearly. You have included the term "cost-effective" measures as a determinant when you require a pollution prevention program. However, if you do not have science on your side on a particular point, industry may say, "It is not a cost-effective measure. Go away."
Mr. Mongrain: That is an interesting point since the pollution prevention plans would be for toxic substances. We would argue that science is on our side.
The Chairman: I am old enough to know that you can find a scientist on either side of any argument, as you can an economist.
However, I would prefer not to see the words "cost-effective" measures. It seems to me to create a whole new area of argument and concern detrimental to progress in the areas in which I am sure your department wishes to progress.
Mr. Lerer, you may not want to comment on that because you may have to skate around this issue, but are we not introducing a whole new area of vagueness with the term "cost-effective" measures?
Mr. Lerer: These pollution prevention plans are required when substances have been scientifically determined to be toxic under the definition in the bill. Of course there are scientists who may disagree, but the determination has been made.
Senator Spivak: Are you talking about the 12?
Mr. Lerer: No, I am talking about any substance that is determined to be toxic. The 12 are a in a special category for which virtual elimination is required, and on which I am sure we will have an interesting discussion later.
When I am not appearing before committees, I am a toxics manager. As an example of cost effectiveness, after the recent announcement of a regulation on the sulphur content in gasoline, is it legally possible for the minister to stipulate that the level go to 30 parts per million tomorrow? Of course it is, but it would shut down every refinery in Canada.
The consideration of "cost-effective" led to a phasing-in of this approach so that companies could retool and the technology could be put in place. In giving advice on these matters to my minister, that is the way I use "cost-effective" in practice.
I do not use it in making a scientific determination on whether a substance is toxic or not. I use it in the risk-management component. I have employed that differentiation in my career, and I hope it is helpful to the committee.
The Chairman: Let me give you a less obvious example. I have seen correspondence from the Salt Institute.
Mr. Lerer: Yes.
The Chairman: I suppose salt can be regarded as toxic in large enough quantities, and we use tonnes of it on our roads.
Mr. Lerer: Yes, and road salt is currently on our priority substances list.
The Chairman: If you were to develop a plan to gradually remove salt from our roads in winter, it could be argued that that would not be cost effective for our municipalities and the like because there is nothing with which to replace it. As a result, you might be unable to deal with a toxic substance because it is not cost effective to eliminate it. Is that right?
Mr. Lerer: Yes, but that is one consideration in coming to a risk-management decision and not the sole determinant.
The Chairman: Yet in coming to that decision, you must now consider "cost-effective" measures, whereas you did not have to before.
Mr. Lerer: The effectiveness and the cost of any action are and always have been considered.
Senator Kenny: The words "cost-effective" also appear in the Alternative Fuels Act. The definition that is used there is if the cost to convert a vehicle will be recovered through fuel savings over the full life of that vehicle. It is fairly easy to calculate, although obviously there are guesses involved in terms of price.
"Cost-effective" is disturbing to some members of the committee because there appear to be many intangibles here. It does not appear to be amenable to reduction to as simple a definition as that in the Alternative Fuels Act. There is a fear that the words "cost-effective" may be applied to any number of factors in ways that would frustrate the objective of the bill.
Mr. Lerer: I understand that concern.
Senator Kenny: Can you allay it?
Senator Spivak: Can you explain the reasons as you are doing that?
Mr. Lerer: Can I allay that concern? I can say that as things like the regulations and their timing are being developed, a stakeholder process will be undertaken. There is a requirement to publicly declare your intent and to receive comment on that. That is a statutory obligation in all regulation development. If I can perhaps put one toe over the line, there is also the political process.
Can I allay the concern? I think that there are sufficient checks to ensure that the balance is not tipped in a direction that you would not like, sir.
Senator Kenny: If I may say so, Mr. Chairman, it is the political process that perhaps particularly concerns some members of this committee because we have the impression that environmental interests do not have the same political weight as economic interests. We all recognize that there must be a balance at some point, but we know how the balance works now, especially when no formula is included. If there were some formula or benchmark to give us some comfort in the future, then I think you would go a long way towards alleviating this concern. However, if your response is, "Well things will be worked out in the political process," we know who has the sway and the weight and how the decisions are made.
Mr. Lerer: I can make no response to that.
The Chairman: It is more a declaration than a question, but an important one.
Senator Cochrane: In clause 56(1), the minister considers "requiring any person or class of persons --" My question refers to "class of persons." You said the provinces are not included in "class of persons," but municipalities are. What about Crown corporations like Ontario Hydro or Hydro-Québec? Are they included here?
Mr. Cameron: I would have to go back to the answer I gave you before, which is that "person" is a legal term that includes both natural persons and entities that have legal personality, which would include corporations.
If a provincial municipality were incorporated -- and a provincial Crown corporation is incorporated by definition -- it would have legal personality. In fact, one of the reasons governments create Crown corporations in the first place is to give them the benefits of incorporation. A provincial Crown corporation would be a legal "person."
I see nothing in this statute, or in the law generally, that would prevent the federal minister from publishing a notice requiring such bodies to prepare and implement pollution prevention plans.
I would also say that, as a matter of practice, and perhaps my colleagues from Environment are better able to answer this, it seems to me quite logical that before intruding into the area of essentially regulating provincial Crown corporations, we would probably want to canvass other alternatives and proceed with caution, as I said before.
Mr. Mongrain just passed me a note reminding me that, in the case of Hydro-Québec, we not only regulated but also prosecuted a provincial Crown corporation for non-compliance. That case, which we won, went all the way to the Supreme Court. That the federal government has this authority is well established in law. I think it is clear that we could do it.
Senator Chalifoux: I find this very interesting. I would like to know what the effect of this bill would be in the very specific case of the arsenic going into Great Slave Lake. You spoke about cost effectiveness. There is a threat that about 280,000 tonnes of arsenic will be discharged into that lake and the gold mine responsible has some financial difficulties. How will this bill assist the government in dealing with that terrible pollution threat in a cost-effective manner? What is the responsibility of the corporation?
Ms Lloyd: I do know that arsenic is on the list of toxic substances, so we do have the authority to regulate or require pollution prevention plans, both under this bill and under our current act.
Senator Chalifoux: Who is responsible for cleaning it up? Can this bill force the corporation to take financial and legal responsibility for this mess?
Mr. Lerer: We are not familiar with that particular example, but we will undertake to look into it and answer the specific questions asked by Senator Chalifoux. We simply do not know the facts of the case. However, we will endeavour to answer those questions.
Senator Chalifoux: That is just one specific case. There are many of them involving the same issue across Canada and we have the same concerns about all of them. Who is responsible? Where in this bill does the government have the power to force the corporations, the companies, or whatever, to be responsible for the environmental clean-up?
Mr. Lerer: If a substance that has been declared toxic is causing a problem and a regulation that limits releases is violated, that is an offence under the proposed legislation. The guidelines under this bill allow a court to order that consideration be given to the cost of mitigation. There are also the civil remedies that we talked about previously.
With respect to your specific example, I prefer to educate myself first and then respond to the committee on that question.
The Chairman: Aside from the fact that Senator Chalifoux has raised a critical point, it would be an interesting test case. A calamity is occurring in the north. What are the processes involved in that situation? Providing an example for us to study would give us a better understanding of the bill.
Mr. Mongrain: Our hope and our intent with this proposed legislation is to prevent such tragedies from occurring in the future. That is very much why we have focused on pollution prevention.
The Chairman: I understand the company involved is bankrupt. The "polluter pay" principle is very good, but in this case the polluter does not have any money. The question then arises whether money to ensure rehabilitation should be put forward in advance, as, for example, in areas like Fort McMurray, where trees are being replanted and so on. That is the significance of the question put by Senator Chalifoux.
Senator Buchanan: I want to return to the discussion about cost effectiveness. I can understand the minister's order on sulphur in gasoline. It is a good one. However, I am told by people in the refining business that 1 cent a litre may not be realistic and that it may be a lot less.
You talked about salt. For 25 years, salt, and salt and sand mixtures, were most important items for politicians in wintertime. You would be taken to task if you did not put it on the roads, but if some of it got into a well, you would be sued. Are you now saying that if road salt gets into a well, the federal government could be sued?
Mr. Lerer: No. The chairman told me that he had had representation from the Salt Institute. I made the comment that road salt was now on the priority substances list for a scientific assessment of whether it, and the way it is used in Canada, is toxic under the definition.
Let us suppose that a scientific assessment found that road salt is toxic. We would then say, "If it is toxic, what are the management options available to us to protect human health and the environment?" The environment would come first. In that process, we would then have to consider the environmental and human benefits of the use of salt. We make these kinds of balancing decisions all the time, but we are nowhere near that stage with road salt. Currently, we are only at the stage of undertaking the scientific assessment.
Senator Buchanan: Are you not creating the potential for real problems in federal-provincial jurisdictions? Outside Halifax, and all over Nova Scotia, roads are paved with tar. Are you going to look at that and say, "Tar contains toxic chemicals. Therefore, you can no longer use it on highways"? Are you saying the same thing with salt?
Mr. Lerer: I am hoping that the result of the scientific assessment -- and I do not want to prejudge it -- will lead to a good dialogue and to good management options for dealing with these issues.
Senator Buchanan: If that were to occur, the people who work in the Pugwash salt mines would not be very happy; neither would the politicians.
Mr. Lerer: I expect that would be the case.
Ms Lloyd: The provinces are active with us on that particular risk assessment, especially the Province of Ontario. It is largely their expertise that we are using to do the assessment.
One should not assume that if a substance is found to pose a risk to the environment -- for example, road salt -- that it will be banned tomorrow. It may be enough to simply spur further research and development of alternatives. In the Province of Nova Scotia, there are numerous examples of where road salt is not used near sensitive streams. It may be that, for example, you cannot use it for seven miles on a stretch of road next to a stream.
Senator Buchanan: That is right. We use sand, and sometimes sand mixed with salt.
Mr. Lerer: That is true, but that is one of the management measures that could be undertaken -- namely, we simply do not use salt on the roads in sensitive areas, but use sand. That is what Nova Scotia has done.
Senator Buchanan: Yes. We have been doing that for years.
The Chairman: I am also advised that there was a judgment in the Province of Ontario against a municipality that did not put salt down and that resulted in an accident. There is a legal liability involved there and it is a difficult issue.
Senator Buchanan: That is why it may be better to have them sue the federal government!
Mr. Lerer: I was reminded yesterday that Hansard is read avidly by lawyers. I am sure we will have a number of interesting inquiries.
Senator Spivak: You use the terms "risk assessment" and "risk management" in connection with cost effectiveness. That is how you will proceed. There is a big difference between "risk assessment" and "risk management." Could you submit the definitions that you are using? Am I correct in stating that you will use those terms in looking at cost effectiveness?
Mr. Lerer: No. I was trying to say that cost effectiveness is not a determinant in risk assessment.
Senator Spivak: You said "risk management."
Mr. Lerer: It is a determinant in risk management.
Ms Lloyd: Cost is not considered at all in the scientific assessment.
Senator Spivak: That is correct. Risk management then takes place on the basis of the risk assessment. That is a little contradictory. Could you give us the department's definitions of those two terms? That will be critical. The European Union published a lengthy definition in its assessment of rBST.
Mr. Lerer: We will undertake to do that.
Senator Wilson: When you are reviewing the situation that Senator Chalifoux mentioned and the risk management -- it is far beyond risk assessment -- I presume that you would factor in cost effectiveness. There must be a dividing line between cost effectiveness to the industry and cost effectiveness to the citizen. I should like to know how you achieve a balance there. My experience on the nuclear waste committee was that it usually tipped in favour of the industry and cost effectiveness was only considered in economic terms.
Mr. Lerer: We will include that, Senator Wilson.
Senator Adams: I have the same concerns as Senator Chalifoux and Senator Wilson. I believe the Yellowknife mine opened in approximately 1930. At that time, we did not have very many regulations on pollution and arsenic emissions. Over the last 15 or 20 years, we have become very concerned about the tailing pond in Yellowknife.
The mining company now says it only has so much money to clean up the 230,000 tonnes of arsenic in that tailing pond. In the meantime, we only have a small amount of money that will not even take care of the tip of that problem. It is affecting the people who live in downtown Yellowknife.
In the future, we must come up with some way to ensure that clean-up money is in place. There should be something in Bill C-32 to require that a company creating toxic emissions that will affect people adversely in the future clean it up in some way. We must know what the government will do about that kind of situation.
There is a similar situation with the uranium mines that have been around since the Second World War, where some of the native people were exposed to uranium from mines developed by American companies. People take uranium away in their backpacks from the mine at the end of Slave Lake. People in the community have been dying for the last 15 or 20 years because of their exposure to the uranium. We must look into this matter.
There is another uranium mine at Baker Lake. Falconbridge mined it in the 1970s and 1980s, and finally the community realized that they did not know what might happen when the company just pulled out. In the meantime, that uranium is on the surface, animals may go in there and ingest it, and then we eat the meat. When we go caribou hunting, we do not have any tests available to find out if the animals have been affected by the uranium.
Perhaps Bill C-32 could do something about those issues and have that area fenced, for example, to prevent animals from entering the open pit uranium mine. That is my concern.
Mr. Lerer: Again, it is an important issue and I will try to find any information I can for the benefit of Senator Adams and the committee.
The Chairman: We very much appreciate our witnesses giving us their time, their knowledge, and their help, in dealing with this complex piece of proposed legislation. You will undoubtedly be back with us soon.
The committee will now meet in camera to determine how we will deal with this bill.
The committee continued in camera.