Proceedings of the Standing Senate Committee on
Energy, the
Environment and Natural Resources
Issue 20 - Evidence, August 24, 1999 (morning meeting)
OTTAWA, Tuesday, August 24, 1999
Métis 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: We now continue our study of Bill C-32. We met, of course, for two days prior to the summer break and once again we have witnesses representing the department to continue the discussion of the bill.
I should also mention that we have received answers in a response to our earlier questions and I understand there are some preliminary matters to be raised.
Senator Spivak: Mr. Chairman, I have not seen the response because it came yesterday when I was en route. Could we go over the answers to some of the questions that were raised? Also, some questions, which I and others had raised, were not answered. Moreover, having gone through the bill again, I noticed that many areas have not been explored fully. Perhaps we could go back and look at some of those areas that were not covered.
I apologize for this, but I must say that we are being asked to do in a very short time what it took four years and eight months to do in the other house. In any event, I have noted the questions, if that the way we will proceed. I know that, when we finished, we were just beginning to consider Part 4, and there are still other questions in my mind.
Would you allow us to go back, or how will you proceed?
The Chairman: Are there any comments on what Senator Spivak has raised?
Senator Taylor: I have trouble going back in the middle of the hearings. I think perhaps we should go through to the end with our witnesses and then go back through with questions at that time. In other words, I do not think this bill is made in such a way that each bit stands on its own. There is an interplay between the later parts and the first parts. I would rather go through the whole bill, asking questions as we go, and then at the end go back over it.
Senator Spivak: There are basic concepts in the preamble, which sets the stage for the bill, and I have two questions on that preamble, for example.
Senator Taylor: Would the preamble not be easier to debate after we have done everything?
Senator Spivak: It is not a question of debate. It is a question of a better understanding. I am at the will of the majority of the members here, but I repeat that we have been asked to do in 10 days or so what it took the other house eight months, in terms of clause-by-clause study. Are you suggesting that we would go through the bill clause by clause again at the end? This is a very large and complex bill. It is not like the other bills that I have encountered here. You have to look at each of the clauses carefully.
The Chairman: It seems to me that it is appropriate to proceed that way, if in the opinion of senators there are any questions outstanding as to interpretation or as to matters of preamble and the like, because there is so much interrelationship in the bill that the terms are very important to understand throughout it. We can start on that. I think, in fairness, we do want to move along. However, if there are areas where you need a better understanding, it would probably be useful for all members of the committee to do that.
With respect to the responses, perhaps we should have an opportunity to read them first, Senator Spivak, and then we may or may not have any questions. I just received the package as well. Perhaps we could hold back on dealing with the responses until members of the committee have had an opportunity to read the whole document. If they then have questions, they may ask them. As the same parties are before us both today and tomorrow afternoon as well, there will be an opportunity to do that.
If you have some preliminary questions by way of clarification, please ask them and then we will move through that to get on to Part 4.
Senator Spivak: Mr. Chairman, I have two questions on the preamble. I raise these questions because we received a document which shows the difference between the wording after committee stage and the wording after report stage. It is not usual that, after a committee has done that kind of work, the wording changes at the report stage. I think it is very important to understand that.
The first question I want to raise is on the sixth statement, which is with regard to cost-effectiveness. I have had a chance to talk to the Library of Parliament and other linguists. I understand why this particular statement is here saying "cost-effective" in English and "mesures effectives" in French. I know it comes from the Rio declaration. I know the government has chosen that particular definition. There are many other international conventions and versions that are different, and I will not go into them now. I am sure you know them as well as I, but the point is that "cost-effective" and "mesures effectives" do not have the same meaning.
There are many different ways in which this could have been done. This might be right from the Rio declaration, but the bill will have to be administered here in Canada, and the courts might have to interpret it, and when there is no definition of "cost-effective," and where you have a word in French that does not have the same meaning, how do you explain that? Do you not think this is an egregious error in the bill? You obviously do not, but I ask it any way. This is all repeated, in the administrative duties, so it is not just in the preamble and the interpretation parts. It is in the administrative duties in exactly the same way, in clause 2(1)(a).
Mr. Harvey Lerer, Director General, Office of the Canadian Environmental Protection Act, Department of the Environment: Yes, it is. As the senator pointed out, the bill uses the exact wording that is used in the Rio definition of the precautionary principle. It is a definition that has the weight of international agreement associated with it. I believe some 178 countries signed the convention and signed on to the Rio definition. The government's commitment to Rio was clear from the time of the government response to the initial standing committee report on reviewing the legislation, and was reconfirmed in the changes that were made in the particular language. The point of the Rio definition, which appears in the preamble and, as the senator indicated, in the administrative duties, is that action is taken regardless of the scientific uncertainty that may be associated with the identification of a problem.
With respect to the language, it is exactly the language, in English and in French, that was signed on to by the 178 countries that attended the Rio summit.
Senator Spivak: I have acknowledged that. You have not answered my question. I understand it is exactly the same. There are many other international conventions where the term "cost-effective" is not included, but the point is that "cost-effective" might be a limit on that action. Obviously it is a limit on that action. It is a constraint. There is no definition in the bill.
This bill will have to be administered and implemented in Canada, and the words in French and English are totally different. I could give you the notes that I received. They have different meanings. In fact, if you wanted the right meaning in French, it would have to be "efficient en termes de coûts" or "efficace par rapport aux coûts." That would be the exact meaning. It is not there. There is no definition of "cost-effective." In the Rio declaration, it was the Scandinavian countries who thought that "cost-effective" would mean that, if an action was irreversible, then it would always be cost-effective to take the precautionary principle. I am sure you are aware of that. It was a compromise. That was an international forum, but this act will have to be administered here in Canada, and the words are different.
You have not spoken to that. It is not the international aspect but the Canadian aspect that I am addressing.
Mr. Lerer: Let me speak first to your commentary on the lack of a definition of "cost-effective." This was discussed in the proceedings in the other place. There was a motion by, I believe, a Liberal member of the committee who was concerned about this, who also thought about including in the bill a definition of "cost-effective." After thinking about it for some time, that member introduced a motion, which was accepted by the committee and then subsequently accepted in the House.
In clause 2(1.1) on page 5 of the bill, the descriptors appear. Those particular clauses were put in as descriptors of the considerations associated with costs and benefits to be considered by the government in taking any action.
"Limitation" was also discussed. The resolution in the other place was to put forward an amendment at the standing committee.
With respect to the language, a policy decision was taken by government to be committed to the exact language of the Rio declaration. That language is referenced, by the way, in many other international agreements. The government has used the exact language from Rio in this bill.
The Chairman: I have trouble with your answer. The original bill in French had the proper wording. I am not bilingual but the meaning is obvious, "mesures efficientes." Senator Spivak referred to that wording as it appeared in the original bill. In the amended bill, the wording is improper. I do not understand why you would not want consistent wording? Would it not preclude ambiguity, which could cause trouble later on?
Mr. Lerer: I have answered to the best of my ability, senator. The government is committed to the exact language associated with the Rio definition of the precautionary principle.
The Chairman: Your department must administer this bill. Are you happy to have a different term in French than in English? Will that not cause great problems for you?
Mr. Lerer: No, we do not believe so, sir.
The Chairman: If a francophone comes before you and argues that the bill calls for cost efficiency and not cost-effectiveness, you say that that will not give trouble for your department? I am sorry but I would not want to be in your position. Perhaps your solicitor can help you. Have you no answer?
Mr. Duncan Cameron, Legal Counsel, Department of Justice: I have nothing to add, Mr. Chairman.
The Chairman: That is the position of the department? There are no further answers?
Mr. Lerer: That is correct, sir.
Senator Spivak: There is another basic question arising from the preamble. Your statement is that this term of "cost-effective" is not a limitation.
The Chairman: While on the same point, do you have a definition of "cost-effective"?
Mr. Lerer: There is no definition of "cost-effective" within the bill, senator.
The Chairman: Does that lack of definition not cause problems for you from an interpretative point of view in exercising your responsibilities?
Mr. Lerer: No, senator, it does not. In terms of setting out regulations, there is a regulatory policy that guides us on a case-by-case basis. The consideration of cost-effective measures is analyzed. We provided some description of that in the handouts and responses that were provided to the committee. It is a decision taken by the Governor in Council on the recommendations of ministers in terms of control actions. There is a government-wide policy on regulation that guides us in that analysis.
The Chairman: If someone conducting business in the industry reads the legislation and wants to know what is meant by "cost-effective," where does one go?
Mr. Lerer: To know what is meant by "cost-effective," one would go to the considerations that are outlined in the bill. I have indicated the location of some of those considerations. As well, one would go to the regulatory policy of the Government of Canada, which is available from the Treasury Board or from us. There is a regulatory policy that guides the analysis of costs and benefits when one is putting forward a recommendation to the Governor in Council associated with costs and benefits. That policy is available to anyone.
The Chairman: Do you have that here now? Can you show that to us?
Mr. Lerer: I believe we have a copy with us, senator.
The Chairman: Please provide it.
Senator Kenny: On the same subject, "cost-effective" has arisen before on other legislation. The alternative fuels act had that phrase in it. For the purposes of the committee, it effectively means that we are not seeing anything enshrined in legislation. My impression is that this is not unusual. We are seeing, though, the ability of the Governor in Council to determine from time to time what constitutes "cost-effective." By agreeing to this clause, we are in effect agreeing that the Governor in Council may want to vary the meaning of "cost-effective" from time to time as it sees fit. That is the principle or the issue that we are discussing here.
As I read the wording, we are essentially delegating that authority to the Governor in Council if we accept this clause as written. I did not say that in the form of a question, but perhaps I should have put a question mark at the end of it so that I am sure I understand how this conversation is going.
Mr. Lerer: Yes, senator. That is precisely on point. The Governor in Council decides on the regulation, including the analysis associated with it, on the recommendation of the ministers. If you are asking whether the considerations can vary on a case-by-case basis or over time, then the answer is yes.
Senator Kenny: There is a choice before the committee. We can agree that it is appropriate for that power to rest with the Governor in Council or we can choose not to delegate that power but rather seek to have something enshrined in the legislation.
The Chairman: Should cost-effectiveness even be included there? That is another part of the question.
Senator Kenny: That would be a fair point as well.
Senator Spivak: The third question is which version will be administered by your department. "Mesures effectives" is not the same as "cost-effective measures." That is the point that the Chairman was raising.
Senator Kenny: Frankly, I have less difficulty with that question because it will again fall back to the regulations. The words chosen, whatever they are, will refer people to the regulations which the Governor in Council will address.
Senator Spivak: It should be clear that the regulations will follow.
Senator Kenny: I hear what you are saying. As I understand it, both sets of words will cause the officials to go to the regulations as set by the Governor in Council. Is that correct?
Mr. Lerer: It is correct.
Senator Kenny: Either way, you will go back to the same set of regulations. Whether you want that authority to be vested in the Governor in Council is another question.
Senator Taylor: I have been involved for many years in industries that have certain polluting activities. "Cost-effectiveness" is a term used fairly commonly in operations in Alberta and in the North Sea off Holland. That is where I have run into the term.
As an example, the legislature may have decided that, to just pick a number, 98 per cent of SO2 must be taken out of your emissions. Then they decide to increase their demand to a 99 per cent removal of SO2. The industry may look at that one percentage point and argue that it is not cost effective; that the cost to remove that extra one per cent will outstrip the benefits. If the government insists, the two parties may end up going before a board or a court to have the matter settled.
Spelling out the meaning of "cost-effective" is very difficult. The definition is always in the hands of the government. The government initiates the process by demanding a cut in some pollutant and the polluter argues that such cuts are not cost-effective. The polluter must try to prove his point, but the final decision rests with the government and with the Governor in Council. That is the process that is set up here.
This system works to the benefit of those who want the cleanest air possible. It is difficult to prove cost-ineffectiveness; if it cannot be proven, the polluter must shut down or get into a fight. The Governor in Council holds the power, and I think that is quite reasonable.
Senator Spivak: The difficulty here is that this is the first time in law that the precautionary principle is spelled out. We are talking here about a precautionary principle that means that, if there is uncertainty, we do not do anything. Cost-effectiveness is the limit on the precautionary principle. Do you know what I mean?
Mr. Lerer: The precautionary principle is as set out in the bill. That principle is construed in international agreements to mean that one takes action even in the face of scientific uncertainty. It does not mean that one does not take action until certainty is reached.
Senator Spivak: Wait a minute. The point is that you are preventing an action; you are preventing some substance from going into the environment even if the science is uncertain. That is the point. Perhaps the science is uncertain, or perhaps the substance definitely will have a deleterious effect but its removal is not cost-effective. That is the whole point. That is the whole principle. That is why it is so important to clarify the terms. I accept what you are saying, but there is the problem.
Mr. Lerer: Mr. Chairman, the decision to take an action is based on the science. The precautionary principle says that, even in the face of uncertainty, we will make that decision. The final decision on the specific measures to be taken must include consideration of the costs and benefits and other options available, but the initial decision to act is based on the science.
Senator Spivak: There is no question about that. Earlier you said that cost-effectiveness is not a limitation. Senator Taylor has very graphically and accurately pointed out that it is a limitation. This is my point, too. It is important to know what is meant by "cost-effective." Does "cost-effectiveness" mean that, if a certain action is taken, benefits will be created because health will not be adversely affected? Does "cost-effectiveness" mean that, if a certain action is taken, industry will incur a cost? That is exactly the point we are discussing. Cost-effectiveness is a limitation.
In making your decision, you must know that you are dealing with certain elements. First, you do not have a definition. Second, you have two different interpretations, one in French and one in English. Senator Taylor has accurately pointed out the problem.
Senator Taylor: That is the problem, but we can look at the solution in the same way. Sometimes a company can prove its case. If an action will cost $2 million and there is not that much money available, perhaps the government will share the cost of installing the equipment or whatever is involved.
If the government has said that the precautionary principles are going too far, then it is up to the polluters to prove their costs. Then decisions can be taken on a system of taxation or some other method to make the changes more cost-effective. A debate arises between the two sides, but, in the final analysis, if the polluters cannot prove their case, they must shut down.
Senator Spivak: I agree with Senator Taylor completely; however, in the absence of a clear definition and the correct interpretation in both French and English, there will be problems.
Senator Kenny: This is one of the key issues in the bill. Certainly, this issue attracts much interest to the bill.
I have less difficulty, Mr. Chairman, with the discrepancy between French and English, because both versions trigger the attention to the same set of regulations.
Is there any way that the witnesses can give comfort to the committee in addressing Senator Spivak's concerns? I have some reservations about whether any piece of legislation can anticipate every case coming forward and deal adequately with it. I also have some reservations about seeking a definition that would require the wisdom of Solomon in order to encompass every situation.
Having said that, what comfort is available from the officials here to let us as legislators feel confident in this process?
Mr. Lerer: Mr. Chairman, I refer members to the clauses that I mentioned before, which go beyond the policy of economic analysis that we have now tabled with you. Clause 2(1.1) states at page 5 of the bill:
The Government of Canada shall consider the following before taking any measure under paragraph (1)(a.1),
(a) the short- and long-term human and ecological benefits arising from the environmental protection measure;
(b) the positive economic impacts arising from the measure, including those cost-savings arising from health, environmental and technological advances and innovation, among others; and
(c) any other benefits accruing from the measure.
In that analysis, we are saying not only that these are the costs associated with any particular regulatory action but also that these are the costs associated with not taking any action and that these are the positive benefits associated with taking an action.
Senator Kenny: How transparent is this process? Is there public notice? Is there an opportunity for interested parties to scrutinize it? Do people have an opportunity to point out that something is being overlooked or to make a fuss in the media in order to try to get you to change your mind on some particular question?
Mr. Lerer: Yes, the process is absolutely transparent. In going forward with regulations, we have the Canada Gazette process first for the proposal, and then for the final product all the documents associated with the ministerial recommendations to the Governor in Council are publicly available.
Senator Kenny: If you are going through a cost-benefit analysis on Case "X," would Senator Spivak, for example, have any opportunity to intervene in that process, to make comments on it, to publicize her perception of the error of your ways, or to endeavour to bring public pressure on the government to change its course of action?
Mr. Lerer: Not only would she have that right, but the government would undertake the obligation to respond to her specific questions.
Senator Kenny: Is there any funding assistance for those people involved who take issue with what you are doing?
Mr. Lerer: I do not know that in particular, sir.
Senator Kenny: I am seeing heads shaking behind you vigorously.
Mr. Lerer: It is not in the bill.
Senator Kenny: Let the record show that heads are shaking.
Mr. Lerer: There are no such provisions in the bill. I cannot give you a firm answer on what our practice has been. I do know that we fund or help fund many organizations with particular interests in environmental matters.
Senator Spivak: I must make a small point. Look at administrative duties. Clause 2(1.1), the item that you were quoting, states:
The Government of Canada shall consider the following before taking any measure under paragraph (1)(a.1)...
That consideration actually applies to (a.1), not to (a), which has to do with "cost-effective." The other one is applying to "cost benefit." It says that the "Government of Canada shall consider the following before taking any measure under paragraph (1)(a.1)"; so it applies to (a.1), not to (a), at least not initially.
By the way, the remedy here, in my view, is to take out the words "cost-effective" and to make it the same as the French. It would be simple and clear.
The Chairman: Senator Chalifoux and Senator Adams at our last meeting expressed concerns as to what was happening in the North. Senator Chalifoux mentioned particularly the Great Slave Lake area. Let us assume the government becomes aware that there is degradation occurring as a result of mining going on there, not after the fact, but during the fact. They then take steps. Then they face the industry saying, "But this is not cost-effective. We cannot do this because it is not cost-effective." Yet, we know the degradation is occurring, and we are in the middle of these problems.
What do you do? If "cost-effective" was not there, you could act. The moment that "cost-effective" is there, a lawyer acting for the industry says, "Hold on. It is not cost-effective. We cannot do it."
Mr. Lerer: Mr. Chairman, that has been my experience during the 20 years I have spent in government, but it has not prevented us from taking action.
The Chairman: You have not had "cost-effective" in the legislation before. Why was action not taken in the North if you did not have problems doing it? Why was something not done?
Senator Spivak: I can give you 20 cases.
Mr. Lerer: I am not familiar with the specific example, but if you are speaking of argumentation, that debate goes on as one is developing a regulation, and the government takes the appropriate action. The example that I could perhaps use to explain how I interpret "cost-effective" is the recent announcement concerning the regulation of the sulphur content in gasoline. Would it have been possible, theoretically, for the minister to announce that the level of sulphur in gasoline would be lowered to 30 parts per million tomorrow? It would have been entirely theoretically possible. However, there were consequences to that in terms of the economics and to the benefits that might be construed. The decision was not whether action was necessary; it was that action was going to be taken. There was a decision made to phase in and allow time for the re-engineering to take place to allow the refineries and the distribution system to have this kind of low-sulphur gasoline available. I believe the date associated with that is something like 2002.
That is our interpretation of the way that "cost-effective" and the precautionary principle works. The decision to take action on sulphur in gasoline was made. How are we going to do this, being responsible and taking into account all the needs of Canadians as we move towards this protection measure? The decision was made that we would phase in that reduction of sulphur in gasoline, but that did not limit in any way the action that we were going to take to reduce the amount of sulphur in gasoline to 30 parts per million in order to protect the environment and the health and safety of Canadians.
The Chairman: You are still not responding to my inquiry. I will try another example. You have the Kyoto agreement in front of you. You know that in the province of Alberta gas-flaring is one of the greatest emitters of greenhouse gas emissions. Now you determine that you are going to ban flaring, or phase it out. The industry comes to you and says, "You cannot do that; it is not cost-effective." How are you going to do this? Now you have "cost-effective" facing you as another impediment to causing an action. I would like you to respond specifically to that situation.
Mr. Lerer: I will try to respond, Mr. Chairman. I believe that if you consider cost-effective analysis to be only the costs to industry, then you may have a problem. That is not the way that cost-effective analysis is conducted.
The Chairman: Where does it say that? Show me that.
Mr. Lerer: Is it a specific definition of cost-effective in the bill? No. Is it clearly specified that the government shall consider these things before it takes action to prevent, remediate, protect, enhance and restore the environment? Yes, it is, in the section to which I referred previously. It is also very clearly stated, I believe, in the regulatory policy which we have given to you this morning.
The Chairman: So what are you saying? Is it cost-effective to industry, government, or society generally? What is it?
Mr. Lerer: I am saying that, when one considers the costs and benefits associated with any action, one considers the costs and benefits not only to industry, but to government as well. One must consider the cost to society associated with doing it, and one must consider not only the costs of the regulatory measure that is under consideration but the costs and benefits associated with not taking action and the costs and benefits environmentally or health-wise that are associated with taking the measure that is under consideration. It is not a one-way street.
The Chairman: Let us look at the clause you presented to us for comfort, which is on page 5, subclause (1.1). Let us deal with the "flaring" example. Explain to me how that clause will help the government make a decision on flaring as an economic cost-effective matter. How would you use that clause to help you?
Mr. Lerer: Speaking theoretically, if there is scientific evidence that shows that flaring presents a short- or long-term problem for the environment or for human health, the analysis would not only consider the costs and benefits associated with stopping that flaring, but would also consider the costs and benefits of not taking that action and would consider what the costs and benefits would be to the environment and to human health, and the cost of future remediation, if that were required.
The Chairman: Let us talk about the first one. Assume that the answer is "yes." I think there is enough evidence to show that flaring does present ecological and environmental problems. Assume the answer is "yes." There is lots of science on that.
Go to (b), which is "the positive economic impacts arising from the measure"... There are no positive economic impacts, are there, in banning flaring?
Mr. Lerer: It says, "...including those cost-savings arising from health, environmental and technological advances and innovation, among others." And (c) is "any other benefits accruing from the measure."
The Chairman: The benefits are ecological.
Mr. Lerer: There may be ecological benefits. There may be innovation benefits or technological benefits.
Your reference to climate change is most interesting for me, sir, because, as you know, while I do not believe that there is still a scientific controversy associated with the causes of climate change, there are others who do.
There is still a tantalizing scientific debate going on in the world, but this government has decided to investigate the various courses of action, regardless of the scientific uncertainty that still exists in the world. That demonstrates the proper use of the precautionary principle.
The Chairman: I have no objection to that course of action and it is totally appropriate. Cost-effectiveness is a great problem here for obvious reasons. I take no comfort from that clause; however, that is a matter of opinion. I do not want to debate it further.
Senator Spivak: Mr. Lerer, you are now talking about cost benefits. Why was that not put in the bill? "Cost-effective" is a different measure. You are right that one must look at the cost benefits. Senator Taylor mentioned that too. Why include "cost-effective" but ignore the cost benefits?
Mr. Lerer: The answer is the same as the answer that I have given before, senator.
Senator Spivak: That is fine.
Senator Chalifoux: My question refers to a different clause.
The Chairman: I think we have explored "cost-effective" sufficiently.
Senator Chalifoux: I have had some time to review this whole bill. According to clause 3.(1) on page 5, regarding the definition of "aboriginal government," it seems there is no need for the government to negotiate with, nor to consult, anyone who lives off-reserve. The Constitution of Canada recognizes three separate and distinct nations of aboriginal people, the First Nations, the Inuit and the Métis. This bill does not acknowledge the Métis nor the Inuit because neither group has ever been governed by the Indian Act. Although we are recognized in the Constitution under section 35, the Department of Indian Affairs has not recognized us. I would like an explanation on that one.
Clause 6(2)(c), at page 12, refers to the composition of committees as including:
(i) one representative for all aboriginal governments, except Inuit, in Newfoundland, Prince Edward Island, Nova Scotia and New Brunswick,
(ii) one representative for all aboriginal governments, except Inuit, in Quebec,
(iii) one representative for all aboriginal governments, except Inuit, in Ontario,
(iv) one representative for all aboriginal governments, except Inuit, in Manitoba, Saskatchewan, Alberta, the Northwest Territories and Nunavut,
(v) one representative for all aboriginal governments, except Inuit, in British Columbia and the Yukon Territory, and
(vi) one representative for all Inuit aboriginal governments.
Why does this bill not address the different nations of Inuit in these areas? Why does it not address the different concerns that can only be addressed completely by the representatives from those different regions? I would like your explanation on those two questions.
Mr. Cameron: We did not define the term "aboriginal people," precisely because it is defined in the Constitution Act. We rely on that definition, which, as the senator has pointed out, does include the Métis people and the Inuit of Canada.
Senator Chalifoux: In the interpretation clause, you have limited everything to only governments recognized under the Indian Act. Why was that decided? Clause 3(1) states:
"aboriginal land" means
(a) reserves, surrendered lands and any other lands that are set apart for the use and benefit of a band and that are subject to the Indian Act;
The Métis settlements in Alberta are not subject to the Indian Act; neither are the Métis communities; neither are the off-reserve settlements. Most of the lands in Canada that fall under the environmental protection of Canada are lands that are not on reserves. The Northwest Territories is one example. There are few reserves up there as such. The majority of the land is settled by the Métis and off-reserve aboriginal peoples. Why have you deliberately limited the consultation to people on reserves?
Mr. Lerer: Mr. Chairman, the bill deals with consultation and clause 6 establishes the "National Advisory Committee." The bill provides to ministers the enabling authority to consult with whomever they wish. They may strike as many advisory committees as they need. The committees can include any interested party or group.
The specific instance of the National Advisory Committee is a special case in that it is meant to be government-to-government consultation. In this clause, we have tried to do a number of things. First, for the purposes of the National Advisory Committee, which is a government-to-government group, we have tried to ensure that the representatives from aboriginal governments, as defined in the bill, would have equal place at the table with provincial representatives and territorial representatives.
In the case of the Inuit, should, for example, an Inuit person be selected to represent the Nunavut government, we have also tried to ensure that such selection would not prevent the inclusion of a representative of the actual Inuit or aboriginal government.
In regions where there is no aboriginal government, the law provides opportunity for a representative to be selected by aboriginal governments, and that will move through.
The National Advisory Committee is a government-to-government committee. The bill provides many instances of empowering consultation processes for administrative agreements and agreements respecting other matters associated with the bill, including advisory bodies. In our history, those consultation processes have in fact taken place.
Once again, the National Advisory Committee is stipulated to be a body for government-to-government consultation.
Regarding the senator's question on the definition of "aboriginal land," that definition exists only for the purposes of the federal provisions in Part 9.
Senator Chalifoux: I am still not satisfied. This bill is saying then that they do not recognize any Métis governments because they are not under the act. They do not recognize any Inuit governments because they are not under the act. That is how I am reading this. Under clause 3, "aboriginal land" definitely refers to lands that are subject to the Indian Act. I am questioning the lack of recognition for all aboriginal governments. Why not include those that are not subject to the Indian Act?
Ms Nadine Levin, Senior Policy Advisor, Office of the Canadian Environmental Protection Act: The definition of "aboriginal government" refers to a governing body established by or under or operating under an agreement with Her Majesty in right of Canada. One of the reasons this definition is present is to recognize the emerging role of aboriginal governments that are negotiating self-government agreements as well as comprehensive claim agreements with self-government provisions.
Senator Chalifoux: I understand that, but my concern is that this bill does not recognize the Métis governments or the Inuit governments, especially in the regions. In Alberta, for example, we have eight Métis settlements under an agreement with the provincial government. We also have dozens and dozens of Métis governments at the local and the regional levels that are not under that act.
This bill prevents those aboriginal governments from consulting and bringing forth issues. That is how I see it. It limits them. It is certainly a matter for debate, and I think it should be checked out.
Ms Levin: This definition does not recognize aboriginal governments that have been established under a bilateral agreement between an aboriginal group and a province.
Senator Chalifoux: I know. That is what I am saying. It does not. It also does not recognize any aboriginal governments at the local or regional level.
Ms Levin: It would if they operated under --
Senator Chalifoux: Under the Indian Act.
Ms Levin: No, under an agreement with Her Majesty in Right of Canada.
Senator Chalifoux: That is the Indian Act.
Ms Levin: No. The Cree-Naskapi of Quebec Act has enabled the creation of eight aboriginal governments in the Province of Quebec that are empowered.
Senator Chalifoux: That is only a treaty. I am not talking about a treaty. I am talking about two different nationalities of aboriginal people in this country, which are the Métis and the Inuit. They are not being recognized in this bill.
Ms Levin: In terms of governments that are created through negotiation of self-government agreements and then empowered, or through acts of Parliament like the Yukon First Nation Self-government Implementation Act, or the act that will be enacted for the Nisga'a, any aboriginal governments that are created through an agreement with a province are not recognized by this definition.
Senator Chalifoux: I would like you to define "aboriginal," because "aboriginal" is a generic term. There are three separate, distinct nations of aboriginal people in this country. When you talk about "aboriginal," you talk in a generic sense. It is not right. You must identify the nation; there are the Métis, the Inuit, and the First Nations. The majority of First Nations are under treaty. That gives them a certain status. It still remains that there are three separate distinct nations of aboriginal people. I think they must be defined.
The Chairman: Senator, did you have a thought as to how that could be improved?
Senator Chalifoux: Yes, I think it is very simple. You could identify the nations. "Aboriginal" is a generic term. "Aboriginal" does not define the nations that you are representing here in Canada as aboriginal nations. "Aboriginal" is generic.
The Chairman: That is in the definition clause.
Senator Chalifoux: It is in the interpretation clause, clause 3; the definitions are in subclause (1).
Mr. Cameron: If I may respond, as I said earlier, we did not think it was necessary to have that explicit definition with the three nations that you are referring to, because that is the definition in the Constitution. The Constitution term that is defined is "aboriginal people of Canada."
Senator Chalifoux: They are the Métis, the Inuit, and the First Nations. That is what the Constitution says, and that is what should be mentioned here.
Mr. Cameron: We use the same term. We say "aboriginal people."
Senator Chalifoux: That is generic.
Mr. Cameron: We believe the definition in the Constitution Act would prevail.
Senator Chalifoux: You did not go far enough in this bill with that constitutional definition. The definition in the Constitution says there are three separate distinct nations of aboriginal people: the Métis, the Inuit and the First Nations, and I am saying that that must be followed here in the definition clause.
Mr. Cameron: Again, I would simply make the point that I do not believe that that explicit definition is required in this bill, because the term "aboriginal people" would be interpreted in the same way as it is in the definition in the Constitution Act. In other words, it includes the three groups.
Senator Chalifoux: It does not include them. This only includes land under the Indian Act, and they are not all under the Indian Act; but you say "aboriginal land."
Ms Levin: The definition of aboriginal land relates to Part 9 of the bill, where the Governor in Council is able to make regulations to protect the environment.
Senator Spivak: At what page is that, please?
Ms Levin: It is on page 149. This is where the term "aboriginal land" is used. Once aboriginal people become self-governing, they may hold their land in fee simple. They may hold it in common. In fact, it still may remain land vested in Her Majesty as aboriginal land. This particular part has to do with the federal government's ability to protect the environment in relation to federal government departments and their activities, and federal works and undertakings, and to ensure protection of the environment on aboriginal land vested in Her Majesty and on federal land. It is not for other lands that may, under self-government agreements or comprehensive claim agreements, be held in fee simple by the aboriginal people who negotiate those agreements.
Senator Chalifoux: Here again, I wish to challenge you. You are only dealing with the treaties. You are not dealing with Métis lands and you are not dealing with Inuit lands. You are saying it yourself. You are only dealing with the lands that are under treaty. That is under self-government. That is why it is important that you look at the distinct separate nations so they have some representation under this bill and have a voice. In this act, they do not have a voice.
Senator Spivak: The limiting phrase here is "subject to the Indian Act." That is a restricting phrase. How can you interpret Part 9 in a broader sense when you have already limited it here in the interpretation? The interpretation is what governs your interpretation of the act.
Ms Levin: The definition has several paragraphs, including land, and including any water subject to a comprehensive or specific claim agreement or a self-government agreement, but where the land remains with Her Majesty in right of Canada. That is in the bill to deal with regulations that the federal government is making to fill what is commonly called the regulatory gap, where provincial regulations do not apply on federal land -- and, of course, aboriginal land that is vested in Her Majesty in right of Canada is still federal land.
Senator Taylor: Possibly there is an answer here. Although the Métis as a people are recognized in the Constitution, there is no Métis land. The Métis land is recognized under the provincial governments. Senator Chalifoux is only talking about federal land. There is no federal Métis land. There is federal Inuit land and federal Indian land, but there is no federal Métis land. There is a federal Métis people. Métis land and reserves as we have in Alberta, with which you and I are familiar, are under provincial government regulations. This only applies to federal lands.
Senator Chalifoux: It leaves out or omits the Métis. This bill, then, would omit any consultation with the Métis or the Inuit on the environment.
Senator Taylor: I do not think it does. The Métis lands would be grouped in with my land and your land and other land. There is no separation. We have representation as voters and people. Métis reserves in Alberta fall under the provincial government.
Senator Chalifoux: I know that. I am saying that in this bill there is no room for representation from any Métis or Inuit. They have one representation here on page 13 under the committees, and it says one representative for all Inuit and aboriginal governments. One representative, who is an Inuit from the Yukon, cannot deal with issues from an Inuit in Newfoundland. There must be some consideration of that.
Senator Taylor: I was talking about the land. There is no such thing as federal Métis land. Certainly, I am not talking about the Métis people.
Senator Spivak: I am getting more and more confused here.
The Chairman: I think Senator Chalifoux explained it. She is asking for better representation, because this bill obviously does not provide it, considering that our greatest land mass, where we have the greatest concern about environmental protection, has the least representation.
The point that you are making is that that is just not appropriate.
Senator Chalifoux: Yes.
Senator Adams: I also have a question. Now that Nunavut can legislate just like the provinces, why has it been left out here?
Mr. Cameron: It has not been left out. Mr. Chairman, if we are talking about the membership of the National Advisory Committee, Nunavut would have its own representative on the committee under subclause 6(2)(b), which says that the committee shall consist of one representative of the government of each province. Then "province" is defined, Mr. Chairman, in clause 3 on page 9, as including the territories. Therefore, each of the provinces and each of the territories would have its own representative.
Senator Chalifoux: Getting back to that question, Mr. Chairman, on page 12, subclause 6(2) says that the committee shall consist of the following members, and at subparagraph (c)(iv) it provides for one representative for all aboriginal governments, except Inuit, in Manitoba, Saskatchewan, Alberta, the Northwest Territories and Nunavut.
Mr. Lerer: The intent of that, Mr. Chairman, is that, while each of the provinces that are mentioned and each of the territories that are mentioned, including Nunavut, has the right to a representative, and while the person selected may be aboriginal, Inuit, Métis or First Nation, the fact that that person is a representative of the territory or province does not exclude an additional representative being appointed to represent the aboriginal government.
Senator Chalifoux: The phrase used is "except Inuit." The word "except" should be taken out, in the context of Nunavut.
Mr. Steve Mongrain, Representative, Office of the Canadian Environmental Protection Act, Department of the Environment: Mr. Chairman, perhaps I can take a crack at explaining the National Advisory Committee. In the existing act, there is a federal-provincial advisory committee that consists of representatives of provinces and now the three territories, including Nunavut. I believe Nunavut has a member since achieving territorial status. This bill adds representatives of aboriginal governments in addition to the representatives of the governments of the provinces and the governments of the territories.
It is purely administrative, but we had to divide the country up into geographical sections so that the representatives of the aboriginal governments would be responsible for representing a particular geographical area. It is arbitrary, and we looked at this during the proceedings in the House of Commons. The question was how to carve up the country in order to provide adequate representation for each of the regions. The decision was to leave it as it was proposed in the bill that is before you now.
What we have is one representative, in subparagraph (iv), for all aboriginal governments except Inuit -- in other words the Métis and First Nations peoples -- and it excepts the Inuit because the Inuit are covered under subclause (vi). So that is why the "except Inuit" is in there. Manitoba, Saskatchewan, Alberta, the Northwest Territories and Nunavut are the geographic area. British Columbia and the Yukon is another region where there will be one representative of the aboriginal governments. The other geographic area is essentially what we think of as the Atlantic provinces, namely, Newfoundland, Prince Edward Island, Nova Scotia, and New Brunswick. There are representatives from each of the provinces plus a representative of all the aboriginal governments.
Senator Chalifoux: I am saying there is not enough representation as far as far as the Inuit are concerned because of the geographical area. You are providing one representative for all of the northern part of Canada. How can you do that? How can one representative address that? There is no representation from Inuit self-government. I think that that should be looked at.
Mr. Mongrain: There is one representative from Inuit self-governments under subparagraph (vi) in addition to the representatives from each of the territorial governments -- Nunavut, the Yukon and the Northwest Territories; so, in fact, the North has four representatives on the committee.
Senator Chalifoux: The government of Nunavut is not an aboriginal government. It is a public government.
Mr. Mongrain: That is correct.
Senator Chalifoux: Here again, we do not have the Inuit representation across all of Canada. When you look at the representation that you have in the southern half, and taking into account that a lot of the environmental concerns are in the mid-Canada corridor and the North, which are mostly populated by the First Nations, the Inuit and the Métis, there is hardly any representation for them under this bill. That is my comment.
Mr. Lerer: Mr. Chairman, if I may just add a comment, I would like to mention what we have done in this bill beyond the current act. We have always had federal-provincial advisory committees giving advice to the minister. We have added, beyond that representation, representation from aboriginal governments. If I understand the senator's point correctly, her view is that that is not sufficient. The point I want to make is that this is a specific consultative mechanism. It is not the only consultative mechanism. The minister and ministers have the authority within this bill to consult and to construct advisory bodies to themselves on any matter beyond what is simply in the National Advisory Committee. The senator has expressed a view on the representation on the National Advisory Committee, but it is not a limitation on the consultation process. That is the point I wanted to make.
I do understand the senator's point.
Senator Spivak: I have a question on the same point. Could you give us an opinion? Could the Métis form an aboriginal government under the meaning of the definition in subclause 3(1)?
Mr. Lerer: I believe so, yes.
Senator Spivak: They could. Okay.
The Chairman: They would have to enter into an agreement with the government, though.
Mr. Lerer: Yes.
The Chairman: In Saskatchewan, for example, how many aboriginal governments would there be?
Ms Levin: There are some groups negotiating self-government at the moment under the 1995 inherent right policy for the implementation of self-government by aboriginal people.
However, as far as I know, those negotiations are not yet concluded, so there is no final agreement for the establishment of an aboriginal self-government for any single group in Saskatchewan under the federal negotiation that is taking place.
The Chairman: It is the same in Manitoba and Alberta; so the aboriginal people do not have any representation.
Mr. Lerer: Mr. Chairman, there is a provision as one goes down through these clauses that, in the event that there is no aboriginal self-government, there is a process to allow for aboriginal peoples to come together in order to select a representative to be on this advisory committee. That is included in clause 6, subclauses (3) and (4).
The Chairman: If there are no aboriginal people as defined in this bill.
Mr. Lerer: No aboriginal government.
The Chairman: Then, by regulation, it will be set out as to how our aboriginal peoples in each of those provinces will be represented.
Mr. Lerer: The regulation is meant to set out a process by which they could select their representative, yes. It would not be a ministerial selection.
The Chairman: Thank you. Can we move on?
Senator Spivak: Mr. Chairman, I should like to refer to the thirteenth statement in the preamble. We have a situation where there was an amendment by the government at report stage from the committee. It is a key concept. I wish to ensure that we are clear on this.
The Chairman: To what are you referring?
Senator Spivak: It says:
Whereas the Government of Canada will endeavour to remove threats to biological diversity through pollution prevention, the control and management of the risk of any adverse effects of the use and release of toxic substances, pollutants and wastes, and the virtual elimination of persistent and bioaccumulative toxic substances;
Whereas the Government of Canada recognizes the need to protect the environment, including its biological diversity, and human health, by ensuring the safe and effective use of biotechnology;
This is a key concept. It had originally said:
Whereas the Government of Canada will endeavour to remove threats to biological diversity through pollution prevention, the control and management of any adverse effects of the use and release of toxic substances, products of biotechnology, pollutants, and other wastes and the virtual elimination of persistent and bioaccumulative toxic substances;
I do not want to get into the aspect of virtual elimination. The key point is the change in the wording. The words "products of biotechnology" have been removed so that biodiversity is protected by safe and effective use but not by preventing the use. In other words, this removes the products of biotechnology from being a threat to biodiversity, which is exactly Canada's obligation under Article 8(g) of the United Nations Convention on Biological Diversity.
This indicates to me that this amendment limits the action to simply safe and effective use, but not to the removal. I raise this point because in the new regulations that have just been published it is clear that biotechnology products are not seen as a threat to biological diversity.
I would like your version of why that amendment was put in at report stage. Why were the words "products of biotechnology" removed from the sentence, which talks about the Government of Canada endeavouring to remove threats to biological diversity. I raise this point because it is quite clear that products of biotechnology can be a tremendous threat to biological diversity. Furthermore, in the opinion of scientists -- not all of them -- their effects can be irreversible, because products of biotechnology are self-replicating. Once you let them out, there is no way to get them back in. It is not like toxics and other things. This is my understanding from looking through the bill and looking at the regulations and so forth. What is your understanding of why this change was made?
Senator Taylor: With the hormone-injected beef out there, that could explain all the Reform voters.
Senator Spivak: Let us not get into a discussion of hormone beef; I do not want to offend the delicate sensibilities of those who might have something to do with hormone beef, but it might have something to do with hormone beef.
The other change, of course, is the addition of the words "of the risk." In the committee wording, there was not the statement about risk. I take that to mean that, therefore, they were not as committed to risk assessment and risk management at the end of committee stage. They wanted to make it clear, whereas this is to ensure that we know it is risk assessment and risk management.
Again, that is an interesting concept with relation to products of biotechnology, because it is little different there. I would like to get your opinion of why those changes were made.
My other point has to do with generation and use. In the committee stage, there was an unbelievable amendment. It is a huge amendment. At committee stage, it had said that the Government of Canada acknowledged the need to phase out the generation and use of the most persistent and bioaccumulated toxic substances -- that related to the crops, I think -- and the need to control and manage, and so on. However, they struck out the words "generation and use" and added the words "virtual elimination." Virtual elimination, of course, means that there could be a small amount left. It is not the same as phasing out the generation and use.
I want to know why, in your opinion, the changes were made at report stage from the committee, and again I must reiterate that they studied this for four years and eight months, going through it clause by clause.
Mr. Lerer: Yes, I know, senator. I was there for a great deal of it.
Senator Spivak: This is like a chorus, a refrain: "Four years, eight months." We will have a skit here afterwards.
Mr. Lerer: The number I always refer to is 93 hours in clause-by-clause review.
Senator Spivak: I am glad you think that is as important as I do.
Mr. Lerer: Yes, I do. I lived it, along with my colleagues.
With respect to the removal of the phrase "biological diversity," I do not believe that the phrase is being removed.
Senator Spivak: The words "products of biotechnology" have been removed from the section that talks about threats to biodiversity.
Mr. Lerer: In the next section, it says:
Whereas the Government of Canada recognizes the need to protect the environment, including its biological diversity, and human health, by ensuring the safe and effective use of technology;
Senator Spivak: That is different from being a threat. That means you can always control it by safe and effective use. That is the point I am asking about.
Mr. Lerer: I am not sure if I agree with your interpretation of that phrase.
Senator Spivak: Why was the amendment made?
Mr. Lerer: There were several amendments made there. First, we wanted to separate and give special place to biotechnology in the preamble. It was removed also to ensure that there was no interpretation, as the original language was, that all products of biotechnology were pollutants and/or wastes.
Senator Spivak: It does not say all, just "products of biodiversity."
Senator Kenny: In fairness, the witness is trying to answer the question.
Senator Spivak: Thank you. I do tend to be over-exuberant.
Mr. Lerer: They were separated out to avoid any confusion that all products of biotechnology might somehow be pollutants or waste. That may be true of some, but most certainly it is not true as a generalization. It was also removed to give a special clause that was devoted to the biotechnology and its products.
We tried to ensure that the concept of the need to protect biological diversity was in both clauses, including both the chemical side and the biotechnology side.
With respect to the question regarding risk, I understand that amongst your witnesses will be members of the standing committee. I am sure that they will give you their views on whether they agree with the government position associated with risk assessment and risk management. Clearly, the government, in its law and in its regulating methods, subscribes to a risk-assessment/risk-management approach. That is clearly delineated now in the bill.
Some members of the house committee may have disagreed with that. You will have an opportunity to question them, but the government takes its own position.
A change was made to phase out "generation and use," changing it to "virtual elimination" for the most persistent bioaccumulative toxic substances. That change was made to be consistent with the provisions in the operational sections of the bill.
The operational sections of the bill talk about virtual elimination of the most persistent bioaccumulative substances. We felt that the preamble should reflect that, notwithstanding the fact that the minister has the authority to make a recommendation to the Governor in Council to ban generation and use of a product if virtual elimination is insufficient.
Senator Spivak: I want to get to that, but first can we talk about the biotechnology products? The committee wording did not refer to all products of biotechnology.
Canada has acknowledged that products of biotechnology can be a threat to biological diversity. I do not have the relevant United Nations convention article in front of me, but Canada has subscribed to that legally binding convention. That is different from saying that we can protect the environment by ensuring safe and effective use of biotechnology. There is a difference of emphasis.
The committee version clearly addresses a potentially dangerous threat -- which may or may not be the case because the science is very new -- to biological diversity. Perhaps the manufacturing of some products should never be allowed, but that question comes up later when we get to biotechnology. Rather, the phrase used is "ensuring the safe and effective use." The underlying premise is that "safe and effective use" of biotechnology products will not threaten biological diversity.
Those are two different concepts. The premise underlying the regulations and their implementation is that safe and effective use will not necessarily create a threat when by-products are let out into the environment. Do you agree that there is a difference? Is there a premise here that products of biotechnology can always be regulated by safe and effective use?
Mr. Lerer: No. The premise here is that the limitations placed on the safe and effective use of biotechnology products will be sufficient to protect the environment, including its biological diversity and human health. If those limiting conditions cannot be met, then the product will not be allowed for use in this country. That is the premise.
Senator Spivak: Will you point out later which sections of the act make that very clear?
Mr. Lerer: Yes.
Senator Spivak: You say the minister has the power to phase out the generation and use of a product, even though that is not written here. Is that also clearly stated in the bill?
Mr. Lerer: The minister has the authority not only to phase out but also to ban, if so required. Those authorities are listed in clause 93. The preamble statement is clause 93 of the bill in the toxics part.
Senator Spivak: We will get into that later.
Mr. Lerer: The preamble is the overall philosophy, one could say, of the bill. The preamble was changed to reference virtual elimination, which is the first point of attack. The authority does exist in clause 93, in the event it is necessary, to order phase-out of generation and use or, for that matter, to ban generation and use.
The Chairman: In looking at clause 65 and onward, we get into virtual elimination, and there are many impediments which the minister must overcome before he can take that decision. The whole approach is changed dramatically by the amendments, because, rather than phasing out or eliminating, the minister must look at a modified transitional situation. We will come to that when we discuss Part 4.
Senator Spivak: Do you have the relevant section of the United Nations convention that illustrates how this approach is different from the UN approach? I believe it is found in article 8(g). It would be instructive for us to have a copy of it.
Mr. Lerer: I do not have it here, but I can provide it to the committee tomorrow.
Senator Spivak: That is our key obligation. We will see later if this bill allows Canada to carry out its legal obligations under that article.
The Chairman: Honourable senators, let us now begin with Part 5.
Ms. Karen Lloyd, Manager, Office of the Canadian Environmental Protection Act, Department of the Environment: Part 5 starts at clause 64 and is entitled "Controlling Toxic Substances." This part provides the ministers with the authority to assess the risks that substances pose to the environment and to human health and to control those substances that pose the risk. Key to this part is the definition of "toxic," and that is the first clause in Part 5, clause 64, which states in part:
...a substance is toxic if it is entering or may enter the environment in a quantity or concentration or under conditions that
(a) have or may have an immediate or long-term harmful effect on the environment...
-- or on human health. The House of Commons committee made a change to the definition from the current CEPA. They added, after "the environment," the words "or its biological diversity."
The definition of "toxic" is key to understanding the rest of the things that we do in Part 5.
Senator Spivak: How did the committee amend this?
Ms Lloyd: They added, in 64(a), "or its biological diversity." Otherwise the definition is exactly the same as the one we have used since 1988 in the current CEPA. It includes effects on the environment and human health. In (b) we see "the environment on which life depends." Under that we consider things like stratosphere, ozone depletion, and ground-level ozone formation. It speaks of immediate effects and long-term effects.
Key to understanding this definition is knowing that it is a risks-based approach. We consider the concentration of a substance in the environment and the likelihood that that concentration will cause an effect. That is what we mean by risks-based. You look at the concentration and at the likelihood of its causing an effect on the environment.
Part 5 deals with substances that are already in use in Canada, substances that are on the Domestic Substances List, and substances that are not yet in Canadian commerce. We call those new substances.
I will go through how we look at the substances that are already here and then I will describe how we deal with substances that are new to Canada. They are both described in Part 5.
You should all have this diagram in front of you. I will use that as a reference to take you through how we look at existing substances; that is, those substances that are on the Domestic Substances List that are already either manufactured or used, or produced during a manufacturing process.
There are three different schemes for looking at existing substances: categorization of the Domestic Substances List, review of decisions of other jurisdictions, and the priority substance assessments. I will start with the priority substance assessments because that is in the current CEPA. The other parts are new to this bill.
Priority substances are the substances for which the ministers believe there should be some priority given to determine whether they are having an effect on the environment or human health. They usually select that list through expert consultations. Anyone can write requesting that a substance be put on the list. They must state their rationale and the minister must respond to that request.
There is a five-year deadline for finishing the assessments on the priority substances list. The purpose of doing an assessment is to determine whether the substance is toxic as defined in clause 64. The assessment is done jointly by Environment Canada, for the environmental part, and Health Canada, for the health part. Part 5 is jointly administered by the two departments.
Because priority substance assessments have in the past tended to be very large and lengthy, they came under much criticism. That is why two new schemes have been put in this bill to enable the examination of a larger volume of substances more quickly.
We can look at the categorization of substances on the Domestic Substances List. The Domestic Substances List is comprised of about 23,000 substances. The purpose of this is to quickly identify those which we should be looking at in depth. With regard to the categorization, you go through the 23,000 substances and if you are in Environment Canada you pick out those that are inherently toxic and it is up to the scientists to decide what the cut-off for "inherently toxic" will be. Then, of those, it must be decided which ones are persistent -- that is, will last in the environment for a long time -- and which ones are bioaccumulative -- that is, pass up to higher levels in the food chain.
Therefore, you sift through the 23,000, point out all those that are inherently toxic and then, if they are persistent or bioaccumulative, you do a risk assessment to determine whether they are toxic.
If you are in Health Canada and looking at it from the human health side, you do the same initial screen to determine which ones are inherently toxic to humans, and Health Canada and its stakeholders will decide what that means. In the alternative, you look at the ones that cause the greatest exposure to humans in Canada. You then take all of those and do a risk assessment to determine which are toxic to human health. In reality, it will probably end up that several thousand substances will be then kicked into what we call a screening assessment to determine whether the substances are toxic.
In terms of categorization, the House added a seven-year deadline on it. We have seven years in which to sift through the 23,000 substances in Health Canada and Environment Canada in order to decide which ones we will look at intensively to determine if they are toxic.
The third screen is the review of the decisions of other jurisdictions. That requires us to set up a mechanism to deal with other countries to find out what substances they have prohibited or substantially restricted, and then, where required, if it is posing a risk in that country, to determine if it is a substance that is posing a risk in this country as well. It also will help us set some priorities for action.
You have your three boxes across the top. You have done a risk assessment. You publish the proposed conclusion, and there is a 60-day comment period. Anyone can comment on the conclusion. The conclusion is either that it is toxic or that it is not. If it is toxic, then you would make immediate recommendations. One of your recommendations would be that you would add it to the list of toxic substances that is in Schedule 1 in the back of the bill. If it is not toxic, then your recommendation would be to take no further action, at least for now, anyway.
This bill also puts in a third category for the reviews of decisions of other jurisdictions, or the categorization and screening exercise. You could choose to put the substance on the priority substances list. The only instance I could really think of where you would want to do that is that perhaps you need more information or you need a more in-depth risk assessment. When I see the words "screening assessment" attached to categorization of the domestic substances list and the subsequent screening, that indicates a bit of a faster or less detailed risk assessment, and perhaps there are cases where there are several different uses or you need a lot of different information on a compound. In that case you would put it on the priority substances list.
In other words, you are either proposing that it is toxic and therefore it goes on the list of toxic substances or you are proposing that it is not a problem and you will not do anything, or you put it on the PSL and look at it harder.
You have had your 60-day comment period. You get everyone's comments back. Both departments look at the comments, decide how to handle them, and determine if they affect the conclusion or the measure you are proposing. Then you publish in the Canada Gazette your final conclusion and measure.
Once you have published your final conclusion that it is toxic -- and it is the Minister of Health and the Minister of the Environment who do that -- then new to this bill compared to the current CEPA is that the ministers must automatically recommend to the Governor in Council that it go on the list of toxic substances. In the current CEPA, there is nothing like that. You can take forever if you want to tell the Governor in Council to put it on the list. Now it is automatic. You have decided. You make a recommendation to these people to put it on the list.
Once you have published your final conclusion that it is toxic, it also kicks in new deadlines which do not exist in the current CEPA. From the moment that Canada Gazette notice is published there are two years for the Ministers of Environment and Health to come up with a proposed regulation or other instrument that they choose to use, and then they will publish that. Again there is a 60-day comment period. From that point they have another 18 months. This is a new deadline as well. There are no deadlines in the current act. You have another 18 months to finalize what it is you are to do and to get on with it.
Regardless of how you get into calling something toxic, from then on it is all the same. You have the new deadlines for action and a much faster mechanism for getting through the risk assessments.
That is the existing substances scheme. Do you want to ask questions on that, or should I go to the new scheme?
The Chairman: It seems to me that you are moving along very nicely. Why not keep it in context and then come back. We will try to be quiet as you go through your excellent explanation.
Senator Taylor: What is the position with respect to something like arsenic, which in minor amounts is beneficial but in larger amounts is toxic?
Ms Lloyd: Certainly, things like that are considered during the risk assessment. There are several chemicals that do occur naturally in the environment, and in certain cases the plants, animals and fish have adapted to those, and that aspect is taken into consideration in the assessment. However, if they do not naturally adapt to it when they are exposed to something new in their environment, you really have to weigh well the risk they are under. In certain circumstances, it is a problem. In other cases, it is not a problem. We then focus our regulations or other control mechanisms on the point where it is a problem.
Senator Spivak: Can you indicate where "generation and use" and "phasing out generation and use" are on your chart?
Ms Lloyd: That is in clause 93. It comes with the types of regulations that the minister can develop.
Senator Spivak:It is not in your chart here, though. That just shows you where it is on the priority list. It is not there.
Ms Lloyd: It would follow. I have not identified all the different clauses and how they feed into this particular thing.
Senator Spivak: All right, I will get into that later. I just wanted to note that it is not there.
The Chairman: Please carry on.
Ms Lloyd: New substances are those substances that are in not yet in use in Canada; the trigger for that is that they are not on the domestic substances list. The regulations in existence say that, if a company wants to import or manufacture or sell a substance new to Canada, then it must submit certain information to Environment Canada and Health Canada. In that information, the company first notifies us of what it is going to do.
The Chairman: You have lost me.
Ms Lloyd: I did not give you a diagram on new substances, but that is clause 80. Companies must submit a notice saying that they want to manufacture or import or use a substance that is not on the domestic substances list. We have regulations that say that, depending on the volume or the use, they must submit to us certain types of information; then we assess that information to determine whether the new substance is toxic. The maximum assessment period for that is 120 days, depending on the substance; sometimes it is considerably less because the data required are considerably less. If the substance is found to be toxic, the minister can impose conditions, and that must be done before the end of the assessment period.
Mr. Mongrain: After the minister puts in place conditions on a substance, there is a two-year period for the Governor in Council to publish a notice indicating its intent to regulate that substance. The initial conditions would eventually become a regulation.
Ms Lloyd: With respect to the regulation of toxic substances, the pertinent clauses in Part V go into great detail about the types of regulations that we can make, and I believe that addresses Senator Spivak's question. Clause 94, for example, deals with our powers to make interim orders if we believe there is an immediate danger, and in clauses 100 to 103 we address the types of substances that can be exported and imported.
Perhaps the real heart of this, in which most people are interested, is "virtual elimination." For substances that we find are toxic, regardless of what route we take to do that and whether it applies to a new or existing substance through any of the three schemes, if it is persistent and bioaccumulative -- and those terms are defined in the regulations that are currently out for public comment -- and is released into the environment largely through man-made activities, then the automatic control method is virtual elimination. There is no debate about that. There are no other options considered. Virtual elimination is always an option for any substance; but for those particular ones it is the only option.
The definition of "virtual elimination" was amended in the House of Commons committee to make it clear that it is a reduction in the releases below a level that we can measure. That is found in clause 65 and targets the release of a chemical that is toxic, persistent, bioaccumulative and released into the environment through man-made activities. Virtual elimination is the reduction and releases down to a level that we cannot measure using sensitive but routine analytical methods. The number we set for that is called the level of quantification, the definition of which was also added in the House.
When virtual elimination is the measure that the ministers have decided is appropriate, a mandatory requirement follows. The minister will require from certain industries virtual elimination plans. Once we set up the level of quantification, which is the number we want the industry to get down to, the companies will tell us how they will achieve that number and how long it will take, and they will list any other risk factors, including those to the environment, human health, social, economic or technical, that weigh into how they would achieve that number.
Senator Robichaud: Does cost-effectiveness arise?
Ms Lloyd: I assume they would put that in their plan.
Mr. Lerer: Whether we ask them to or not.
Ms Lloyd: The minister will then set the regulatory release limits. The LOQ, or level of quantification, is not a regulatory release limit. It would be set afterwards. I assume that they would be using these plans to figure out what the release limit is now, and perhaps five years from now, understanding that it will take time for some industries to get down to the specified level. The LOQ will also vary depending on whether they emit into the air or into the water, which is something that may differ among different sectors in terms of how long it will take to get down to virtual elimination. In doing that, we would certainly consider risk to the environment and to human health as part of the equation of how long one wants to take to get there.
Mr. Mongrain: The Minister of Health and the Minister of the Environment will set the regulatory release limit. It is not the Governor in Council. The regulations controlling the substance and supporting that release limit are set by the Governor in Council, as are all other toxicity regulations.
Senator Spivak: You said that the Minister of the Environment assesses the environmental risks and that the Minister of Health assesses the health risks.
Ms Lloyd: Yes. We collaborate on those assessments and share information.
Senator Spivak: Based on the regulations published in the July 3 Canada Gazette, the regulations published in 1997 under CEPA no longer apply. Now the Minister of Health, through the Canadian Food Inspection Agency, will assess the environmental consequences of biological products. I wish to signal that the approach is not consistent in all respects. In that instance, the Minister of Health is doing the environmental assessment through the Canadian Food Inspection Agency.
It is a puzzling question which, perhaps, we can get into later. However, it is not correct to say that all substances for toxicity are assessed by the Minister of the Environment for environmental assessment and the Minister of Health for health assessment.
Ms Lloyd: That will be the case under this legislation.
Senator Spivak: Of course that is the case in this bill. That is because what you have said in clause 66 of the bill is that the minister will maintain a list except for living organisms within the meaning of Part 6 of the bill. It is consequential within this bill that those substances are removed, after which they will be given environmental assessments under another act through the Minister of Health.
Therefore, it is not accurate to say that all toxic substances will be assessed by the Minister of the Environment for environmental assessment and the Minister of Health for food safety, because, for some strange reason not known to me, you have absolutely reversed that in the case of products of biotechnology. Is that not accurate?
I have read the regulations and that is exactly what they say.
Mr. Mongrain: Mr. Chairman, unfortunately, I have not read the regulations. However, I believe the regulations pertain to new products. If it is a food, it would come under the Food and Drugs Act.
Senator Spivak: Of course, but it is specifically exempted from this bill.
Mr. Mongrain: There is a difference between the two streams. As Ms Lloyd pointed out, there are 23,000 substances that currently exist and will be looked at under this bill. They are not exempt from being looked at under this bill. They will be looked at for their inherent toxicity, for their persistence and bioaccumulation.
Products that are new to Canada, whether a new seed, a new fertilizer, a new drug or a new food, come under different acts of Parliament.
Senator Spivak: What is even more confusing is that clause 66(2) states that things that are already in existence will be reviewed for environmental assessment under this legislation whereas the things that are new, such as living organisms, will be reviewed under the Food and Drugs Act by the Canadian Food Inspection Agency under the Minister of Health. We are talking about food, drugs and cosmetics. The regulations say "environmental assessment." I am puzzled.
Mr. Mongrain: Let me try again. This is not the Fertilizers Act.
Senator Spivak: I know this is not the Fertilizers Act. I am well aware of that. The Seeds Act, the Fertilizers Act, the Pest Control Products Act, the Plant Protection Act and others are exempt from this bill. I understand that clearly. Most of those things are going to be assessed for environmental assessment, which this bill is supposed to be all about, under different acts that have nothing to do with environmental assessment, but we will get into that later. The question I am asking is whether that is just for new substances, products of biotechnology, or is it just for those under the non-domestic substances list? Who is going to assess the products we have now for an environmental assessment? I quite understand that they are exempted for some strange reason. Do you know what I am asking? Am I not making myself clear? After all, we have to know what is on the domestic substances list and what is on the non-domestic substances list.
Ms Lloyd: All 23,000 substances on the domestic substances list will go through this process. What this bill says is that, if a substance is toxic, the Governor in Council cannot make a regulation that falls under another act of Parliament.
Let us take a substance that is currently now on the priority substances list, say ammonia in the aquatic environment. It enters that aquatic environment through several different sources. Some sources you would regulate under CEPA. For others, you would use the Fertilizers Act or other provincial legislation that has control over municipal waste-water treatment.
Senator Spivak: I understand what you are saying for the chemicals that are toxic. I am just clarifying for the biotechnology products. Are you saying, then, that, for risk assessment, all of these things that are exempt under Part 6 will be assessed under this bill? We have to know that.
Mr. Lerer: If they are part of the 23,000, yes.
Ms Lloyd: If something is part of the 23,000, it will go through the categorization process.
Senator Spivak: Do you know how many substances that would entail?
Ms Lloyd: I have no idea.
Senator Spivak: They are assessed under this legislation, but then those regulations may be in contradiction because they talk about environmental assessment, but we will get to that later.
Senator Buchanan: What is the difference between a toxic substance and an inherently toxic substance?
Ms Lloyd: One is the basis of a hazard assessment. One is the basis of a risk assessment.
This is something I did for my graduate work. You get your little flask, you put in a certain amount of mercury and some little invertebrates, and you find out how much it takes to kill them in a certain amount of time. That is the joy of toxicology. You decide that a certain number is a problem; it is just inherently toxic. It may be one drop or 100 drops. If it takes a lot of a particular substance to kill them, you would say that it is not inherently toxic; for something that takes a little, you would say it is inherently toxic.
Toxic, in the definition of the bill, however, means something a bit different. I know how much it took in my little jar in my lab, but I want to know the concentration in the environment in Canada in several different places. Then I compare that number to how much it took to kill them in the lab and then determine if those numbers are close. If they are very close together, the odds are that you are going to have problems in the environment. If they are very far apart, then perhaps there is no problem at all in the environment.
Senator Buchanan: Could you say that "inherently toxic" means that it is toxic, whereas "toxic" means that it may be toxic?
Ms Lloyd: No. It may be, but you have to look and see what the real concentration in the Canadian environment is -- or predict it, because often you do not know.
Senator Buchanan: What, in your opinion, is the definition that fits the tar ponds?
Ms Lloyd: I do know there are substances in the tar ponds that are on the list of toxic substances, so I guess I could safely say that those substances are toxic.
Senator Buchanan: I grew up within three blocks of the tar ponds. They have been there for 80 years. The strange thing about the tar ponds is that they just became an issue in the last 20 years or so. I do not know whether they are toxic or not. There probably are some toxic substances in there, but they sat there for 80 years and nobody even mentioned them. Now, all of a sudden, they are the biggest news item in Canada. It is the biggest toxic waste dump in Canada. I have often wondered how toxic that dump is. You do not know?
Ms Lloyd: I personally do not know, no.
Mr. Lerer: Are there substances in those ponds that are on the toxic substances list and that meet the definition in the current act and in Bill C-32? The answer is yes.
Senator Buchanan: That is interesting. We all know that there are. What percentage of that tar pond would be considered sufficiently toxic that it should be completely cleared up?
Mr. Lerer: I do not know what those percentages are precisely. In fact, I do not know at all what those percentages are. I do know that, with the community group, the joint action group, the provincial and federal governments are trying to determine the appropriate course of action for dealing with that site.
Senator Buchanan: On the news yesterday they showed a fellow with a big bucket starting to clear it out himself.
Mr. Lerer: I did see that on the news, yes.
The Chairman: I would like to deal with clause 65(3). These amendments have been highly criticized. My understanding of the criticism is that, rather than looking towards elimination, they look more towards interim targets. I have before me the brief of the Canadian Environmental Law Association. It is very critical of that clause. They say that the basic problem was that, rather than focusing on eliminating the use and generation of substances, the proposed definition focuses on how much of these substances industry could release.
The gist of what they say is that industry, rather than looking at this in terms of methods by which they can eliminate these substances, are instead now looking at it in terms of ways of controlling them, so that they still exist, still emanate into our environment and still will cause some concerns. The wording of the House committee clearly was looking at it in terms of actually moving towards elimination. However, because of the amendments that were made throughout these clauses we are now really talking in terms of interim targets of control. That concerns me, because it seems to me, if a substance is toxic, that the ultimate goal should be to eliminate it, not to control it. The amendments obviously are a watering down of what was proposed at the House committee stage.
The Canadian Environmental Law Association, or CELA, discuss three areas of concern. First, they say it fails to respond to ecological and human health threats. Second, they say the definition is inconsistent with the concept of pollution prevention. Third, they say the definition is inconsistent with the Great Lakes Water Quality Agreement. Those are serious allegations by a well-recognized environmental group in Canada. I would like to you respond to that. Is this a watering down?
Mr. Mongrain: Let me address those issues one by one, and I will put this in the context of how virtual elimination will work.
With respect to the claim that it does not really respond to ecological threats, I would argue the opposite. When a substance meets the criteria for virtual elimination, ministers have no option but to propose it for virtual elimination. We have learned that it is a small handful of substances that create problems that are difficult to correct. That is why we have virtual elimination as a precautionary approach.
The Chairman: Obviously, virtual elimination means something different to you than it does to me; as I read this legislation, virtual elimination is not a matter of phasing out, but is merely controlling.
Mr. Mongrain: We will agree that there is no option. Virtual elimination as defined in this bill is the only course of action for these substances. The definition in clause 65 is clear. Virtual elimination means the ultimate reduction to a point where we cannot measure it, which is the level of quantification. We are talking about extremely small amounts of substances. For example, our pulp and paper regulations right now are a case of virtual elimination: 15 parts per quadrillion. We cannot measure below 15 parts per quadrillion using sensitive but routine technology.
The definitional aspects of the clause are very clear. Virtual elimination means that it is below something that we cannot measure. When we get into the implementation of it, you must always recall that these are very small amounts that we are dealing with.
Senator Spivak: What clause is that?
Mr. Mongrain: Clause 65(3) deals with implementing virtual elimination.
We have the goal of what we know as virtual elimination. In implementing it, there may be instances where it is not immediately achievable. That happens with all sorts of substance that are regulated under this act. As my colleague Dr. Lerer pointed out with respect to sulphur in gasoline, we have taken a phased-in approach to allow industry time to re-engineer in order to achieve the limit of 30 parts per million.
There are significant social, economic and technical considerations that must be looked at when deciding how to proceed. In that respect, the definition, which deals with the level of quantification, is not inconsistent with the Great Lakes Water Quality Agreement or with the concept of pollution prevention.
Similarly, we have to take a common-sense approach to implementation. Theoretically, the minister, along with the Minister of Health, could set the release limit tomorrow at the level of quantification for a particular substance. That would not necessarily be very responsible if it was going to result in the shut-down of several industries, with loss of jobs and so on. What is responsible is to do it in a fashion where the ultimate objective is achieved in a reasonable amount of time, because we know these substances are dangerous, while taking into account these factors. The ultimate objective is always there.
The Chairman: I hear you. I recognize that there are industries that you have to phase out. You are talking in terms of what may be small quantities, but the ultimate objective, if it is toxic, is to find ways to eliminate it, to phase it out, but not to look at interim targets as an objective.
Why water down the bill? I am not arguing the point that it takes time to do this. I understand that, but what you have done here, or what the government has done here, is to take these sections throughout and change the emphasis from what is in clause 65 to an emphasis that is in clause 65(3). In clause 65(3) the emphasis is not on phasing out or on ultimate elimination. The emphasis there is on telling us how much we can put into the atmosphere. That is a very different approach. Not only is it different, but it sends out a different message to industry, because industry now does not think in terms of how to eliminate this toxic substance, but rather how can they persuade the government as to what are acceptable limits to release into the environment. That is the wrong message.
Mr. Mongrain: Mr. Chairman, in response I should like to take the committee back to two items. The first objective is the level of quantification. Secondly, if you look at the amendments to subclause 65(3), the language in the bill before it was amended at report stage in the House talked about "taking steps." That was removed, and the new language, which is currently before the committee, states that when the level of quantification for a substance has been specified, that brings to the front and centre the objective of achieving extremely low release limits that cannot be measured.
On the issue of banning and phasing out the generation and use of a substance, the government's toxic substance management policy is very clear: if measurable releases of a substance cannot be prevented, then banning or phasing out the generation and use are the appropriate steps.
CEPA is the tool to implement this policy. The regulatory authority to ban the generation and use of a substance is available in clause 93, as we have done under the existing act for chlorinated dioxins and furans, pulp and paper effluents. The authority is there. Our first point of attack will be the measurable releases; if it is not feasible to get them below the quantification level and there are serious environmental health risks, as there are with these substances, then all the authority necessary for the minister is available.
The Chairman: You have to go back to the preamble to get what seems to be the intention of the government, because again you are ignoring the amendments that were made to the preamble. Originally, when it came out of the House to the committee, the preamble said that the Government of Canada acknowledged the need to phase out the generation and use of the most persistent and widely used toxic substances. The final bill before us does not have that reference in the preamble. The government took out of the preamble the reference to phasing out the generation and use of the most persistent substances.
The government again is making a statement that their objective is not to phase out, that their objective is to control. I think that is the wrong direction. I think we were better off with the amendments that talked about phasing out. There is nothing obnoxious or inappropriate about phasing out. That gives industry time, but what I am hearing now, when I read this, is that we are no longer worried about phasing this out; we will just control it. I think that is the wrong message; you obviously do not.
Mr. Mongrain: Mr. Chairman, the intent of the preamble is to reflect the operational clauses in the bill. We have moved significantly ahead with this new category, this new special regime, with the review of legislation that does not exist elsewhere in OECD countries.This new special regime is for particular categories of small substances. The means of attack that we have taken are through the term "virtual elimination," and that is what the preamble reflects. There is no definition in the bill of "phase out of generation and use"; there is a definition of "virtual elimination."
The Chairman: I hear you; thank you.
Senator Spivak: Virtual elimination, under some definitions, means to totally phase out. That is not what is meant here. Taking out these steps was not meant to strengthen the bill but to weaken the bill. The goal of virtual elimination should really be to phase out a substance.
I am interested in the question of hormone-disrupting substances. Apparently, even minute amounts can cause a great deal of damage, according to some scientists. The United States is testing for 15,000 different endocrine-disrupting substances. In Canada we are just doing research. The 12 most important of these substances are called "the dirty dozen." These substances should be phased out, not controlled, because they are the most toxic substances on earth. I think Mr. Lerer said that 9 of the 12 are already banned. PCBs, dioxins, furans and HCB are not banned but are dealt with under pulp and paper effluents. They are not banned; their use is merely being controlled.
Mr. Lerer: I said nine substances are banned. You have named the others.
Senator Spivak: The other substances -- aldrin, dieldrin, chlordane, DDT, endrin, heptachlor -- are dealt with under the Pest Control Products Act. Have they been banned?
Mr. Lerer: Yes, they have been banned. Twelve substances have been banned for virtual elimination and nine of those twelve have been banned.
Senator Spivak: That means they are no longer in use and they cannot be manufactured?
Mr. Lerer: They are no longer in use in Canada. The others that you named are being managed in other ways and have not been banned. Of the dozen, nine have been banned and you were kind enough to list the ones that have not been banned.
Senator Spivak: You are saying that the minister, under clause 93(1), has the power to ban the generation and use of substances. Why not leave that statement in the preamble then? Would it have been less disingenuous to have put it right in there so that we know what we are addressing here?
The science in this area is not really definitive, so here we use the precautionary principle again. We are dealing with 23,000 bad chemicals. We are not just talking about the three worst chemicals that are left on this list. I do not understand this approach.
Is the pulp and paper industry refusing to switch to some other substance that would not have the same negative effects when put into the environment? This is very difficult for me to understand.
These are ugly substances, these PCBs and hexachlorobenzenes. This is not an idle question. Monsanto once told us that PCBs were good for us. Look at Agent Orange. This is a serious question. We are not just being picky and quibbling over the wording.
Mr. Lerer: I agree.
Senator Spivak: Why are not we phasing out the generation and use of such substances, instead of saying that it is okay to just put a little bit into the environment?
Mr. Lerer: At the risk of repeating myself, the government policy in this matter is that the first point of attack shall be to control and regulate the releases. We want to minimize the releases. The exposure component is the point of attack in a risk-management process. Where that approach is insufficient or where control cannot be effected, then options exist for phasing out or immediately taking action on the total, partial or conditional prohibition of the manufacture, use, processing, sale, offering for sale, import or export, of the substance or product containing it.
That is in clause 93(l). Because it is the first point of attack, virtual elimination has been set out in the preamble. I will not try to contest your opinion, because my opinion differs as to whether this is disingenuous or not.
Senator Spivak: I meant to say "ingenuous." I am asking if the wording could have been more forthright. The term "disingenuous" just seemed to roll off my tongue. Would it not have been more forthright and direct to refer to phasing out these things? That is the point.
Senator Taylor: I have a short, technical question. You said "virtual elimination" means that levels of a substance are so low that it cannot be measured any more. As an engineer, I have seen a lot of gas and water analyses that show tiny trace amounts of elements. Would such a trace be considered virtual elimination in an ordinary chemical analysis?
Mr. Lerer: The idea here is that one would be able to quantify the level. I am not sure that that would be considered as having met the LOQ. The LOQ definition is in clause 65(1).
Ms Lloyd: It refers to the lowest concentration that can be accurately measured.
Senator Taylor: A trace is relevant to the volume in which it is found. In one tonne of ore, you may find enough of one element to measure. If you analyze a lump of ore, you may only find a trace
Mr. Lerer: In my experience of chemical analysis, "trace" usually means we can confirm presence but not quantity.
The Chairman: I would like to go back to the precautionary principle for a moment. I refer you to clause 76.1 on page 48, which states that "the Ministers shall apply a weight of evidence approach and the precautionary principle."
I do not understand that. That seems to be contradictory.
Ms Lloyd: It is not at all contradictory.
The Chairman: The precautionary principle is not weight of evidence?
Ms Lloyd: It is saying that we must apply both approaches. In a weight-of-evidence approach to risk-assessment -- and this applies to all three different schemes of risk-assessments for existing substances -- you often do not have enough information to tell a great story and to reach a definite conclusion. Instead, you have little pieces left out of the puzzle. If you feel comfortable enough that those little pieces all point in the same direction, then under a weight-of-evidence approach you believe you can reach a conclusion on toxicity.
The Chairman: I thought that was the precautionary principle.
Ms Lloyd: That is why they go together. The precautionary principle also says that you do not wait until you have the whole picture: "If you have enough to point you in a direction, do not wait to take action; take it now." So we will take action without full scientific certainty. They are both saying the same thing.
The Chairman: That is where I am confused. Are we bringing in a new environmental principle when we speak of weight of evidence, or is this being redundant? Is that not just the precautionary principle?
Ms Lloyd: I do not see them as redundant. I see them as complementary. The weight-of-evidence approach is stated in the guidelines that we currently use to assess substances.
The Chairman: Does the weight-of-evidence approach include the concept of "cost-effective"?
Ms Lloyd: No. When you make a decision on whether a substance is toxic, it is strictly a scientific conclusion. There is no consideration of the cost of anything in that conclusion.
The Chairman: If the precautionary principle now applies, you are changing your approach, because now it must be cost-effective, whereas before it was only the weight of evidence.
Mr. Mongrain: In the precautionary principle, it is the type of measures you take to deal with the environmental threat that are modified by the words "cost-effective"; it is not the decision on whether to take action.
The Chairman: I am sorry, but the section says "and the precautionary principle." So, when they are conducting the assessment and interpreting the results, they are now taking in the precautionary principle. Ms Lloyd just told me that previously it was weight of evidence, which did not include "cost-effective."
Mr. Mongrain: If you read the full statement of the precautionary principle, the decision on whether action should be taken is premised on whether there is full scientific certainty. The precautionary principle states that you do not need full scientific certainty. You do not need full cause-and-effect proof before you decide to take action. That part of the precautionary principle is extremely relevant to the interpretation of results, and that is what occurs under clause 76.1, as does the weight of evidence. If you have three or four studies pointing in a certain direction, you do not need another dozen studies to confirm that. You proceed on the balance of the evidence pointing in that direction plus the precautionary principle, which reinforces the need to take action in the absence of full scientific certainty.
The cost-effective considerations come into play when we are deciding what to do. A regulation may be the appropriate measure. Pollution prevention planning may be more cost-effective in certain instances.
The Chairman: I am reading a different clause than you are, Mr. Mongrain. It starts off by saying "When the ministers are conducting and interpreting the results of...". Ms Lloyd said that previously they applied the weight of evidence, which had nothing to do with whether it was cost-effective, when conducting and interpreting the results. Now you have added the precautionary principle; so that means that when interpreting results it must be cost-effective. Something has been added.
Mr. Mongrain: I am looking at the words "precautionary principle" and then flipping back to the preamble, or clause 2, which contains the same statement, or the statement of the precautionary principle in the Rio Declaration. As you pointed out, clause 76.1 speaks of ministers interpreting the results.
The precautionary principle is that, where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. The decision of whether a substance is toxic or not is made through the interpretation of results. It is based on science. If the weight of evidence says the information you have is pointing in a certain direction, that should be sufficient. The precautionary principle reinforces that approach by saying: "Even if you do not have full scientific certainty, do not delay, because there may be a threat of serious degradation." That is the first step. So we have decided, under clause 76.1, that ultimately it funnels down to a determination of toxicity.
The Chairman: You left out two very important words.
Mr. Mongrain: I have purposely left them out.
The Chairman: Go on.
Mr. Mongrain: We have decided that the substance is toxic. The precautionary principle says "for postponing cost-effective measures." The measures we take to deal with the toxic substance can vary. We have a whole suite of tools available in this legislation. In particular cases some will be more appropriate than others; some will be more cost-effective than others. It seems reasonable to look at these with that consideration of cost in mind.
I will give you an example. If we want to reduce the level of sulphur in gasoline, we use a regulation to do so. That is a cost-effective means of doing so. Requiring a pollution prevention plan from every gasoline station to try to reduce sulphur is not a cost-effective way of proceeding. It is appropriate in other instances, but in the case of sulphur in gasoline going with a regulation that limits the amount that is permissible is the cost-effective way. It is the way the government has decided to proceed. The term "cost-effective" in this instance applies not to your decision whether the substance is toxic and needs action but to the type of action with which the government may choose to proceed.
The Chairman: With the greatest respect, I do not agree. Clause 74 says:
The Ministers shall conduct a screening assessment of a substance in order to determine whether the substance is toxic or capable of becoming toxic...
Clause 76.1 says:
When the ministers are conducting and interpreting the results...the Ministers shall apply a weight of evidence approach and the precautionary principle.
So they must examine the cost-effectiveness aspect when doing the screening assessment. If they receive an assessment that something is toxic, they could say that it is not cost-effective to get rid of it, because the precautionary principle applies, so forget about it. That is another example of why "cost-effective" should not be in this legislation. It causes confusion, it causes improper emphasis, and it is not needed, and this is just another example of that.
I guarantee that the debate that you and I are having right now will be repeated in some other forum. It is an unnecessary debate, and the only reason for it is that "cost-effective" is in this legislation.
Senator Hays: I want to ensure I understand this difference between you and the Chairman, Mr. Mongrain. The question you were asked is whether "cost-effective" determines how the science is interpreted, or whether "cost-effective" applies, once the science has determined whether it is toxic, to the manner in which you deal with virtually eliminating the substance from the environment. That is the difference that I hear.
For instance, one way to get rid of sulphur emissions would be to stop driving cars, but it would probably not be cost-effective. Do I understand this exchange correctly that cost-effective applies to the way in which you do it, and not to how you interpret the scientific results?
Mr. Mongrain: Yes, which is the first step. The first step is making the scientific determination. Once you have determined that a substance is a problem, you must determine what to do with it.
Senator Spivak: With respect to consultation, in looking at clause 69 I note that the offer to consult is different from all of the other clauses. Here, the minister can act any time after the sixtieth day, including while he or she is still consulting.
In all of the other clauses, the minister can act only if the offer is rejected to consult after the sixtieth day. This version was amended in committee for all of the offer-to-consult clauses, as I understand it. Is that correct? It was amended back the other way for all of the offer-to-consult clauses except for this one. All the others were amended back, but this one was not. Why?
Mr. Mongrain: I think I understand the question correctly.
Senator Spivak: Offers to consult throughout the rest of the bill have the other provision in it. Is that correct?
Mr. Lerer: Yes, that is correct.
Mr. Mongrain: Mr. Chairman, with your indulgence, I will revisit the sequence of events, and that may make it clear. Several amendments were put forward at committee stage in the House that were very similar to what appears under clause 69(2.1). They were defeated in every instance except this case. In the period between committee stage and report stage, the government reconsidered the issue and the concept of the issue, and it came up with the language that appears elsewhere in the bill. The uniqueness of clause 69 is that it deals with guidelines that the ministers may issue on the interpretation of Part 5. It is a less operational section. It is not a regulation controlling a particular substance.
Senator Spivak: That is very interesting. That means that the other offers to consult are a limitation on action. You have reaffirmed my feeling. Everywhere else, it may very well be that those consultations will go on for years, and the minister may not act. It is not that he is mandatorily not restrained from acting. We know the delicacy with which the federal government treats the provinces in any other issues. The practical application of that is that it may take a very long time for the minister to act. Therefore, the offer to consult is a constraint on the minister's action. If it is not here, it means you are saying this is just an interpretation, where the others are implementation. That reconfirms what I was thinking.
Mr. Mongrain: Mr. Chairman, the intent, which was clearly expressed by members of the House standing committee, was that they were afraid that an offer of consultation might end up in the ether zone, or in limbo, where it would not necessarily be accepted and that there would be no consultation under progress or under way, and that would delay action.
The offers of consultation as they stand now are the means through which Environment Canada has traditionally worked closely with the provinces, because it is very much an area of shared responsibility. We work very closely with them, and we benefit from the consultation and from each other's experience. The government report stage amendment which put the 60-day limit on the offer was to prevent a situation in which an offer was extended in good faith but was never taken up. This puts a deadline on the amount of time in which a province can take it up.
I would make one last point on the question of consultation with the provinces. It is not unusual in federal legislation to have this type of clause. It exists in the Immigration Act and the Telecommunications Act, in areas where there is a shared interest and a shared responsibility. Rather than as a barrier to action, it is, we think, an opportunity for more effective action.
Senator Spivak: I understand. It was Mr. Clifford Lincoln who did that, and I understand the motive behind what he was doing. However, in actual fact, it may turn out to be much more limiting. While the consultations are going on, it would be very unusual for the minister to act before those consultations were finished. Is there another clause within Part 5 that is different from this one?
Mr. Lerer: Clause 76, I believe, has another offer to consult.
Senator Spivak: Look at the definition of the priority substances list. What is placed on the priority substances list is fairly important. I imagine the provinces would be very interested in that.
Mr. Mongrain: They have participated in the past.
Senator Spivak: Right, but this could take a very long time. I would remind you that, of the 23,000 substances, only 44 have really been assessed up to now in the five years.
Ms Lloyd: Through the priority substances program, yes.
Senator Spivak: In the five years.
Mr. Lerer: No, 45 substances have been placed on the list of toxic substances. That is not the same number that have been assessed.
Senator Spivak: Nevertheless, the principle is the same. It is a slow process, and this is just making it slower.
Mr. Mongrain: That is why we added those two new streams of assessment and why we placed a time limitation on the take up of the offer to consult. The 60-day clauses are on the take-up of the offer to consult. The minister has an obligation to offer to consult, and the 60-day limitation is on the take-up of the offer to consult. It does not specify the length that a consultation period must be. That would be determined on a case-by-case basis. It is on the take-up of the offer to consult.
Senator Spivak: Right, where they agree to consult.
Mr. Lerer: They may refuse to consult.
Senator Spivak: They must agree within 60 days, but then they can consult for five years.
Mr. Lerer: That is true, or they could consult for a further 30 days.
Senator Hays: How do you describe the role of the National Advisory Committee in the context of the obligation to consult with mostly the same people? What is their role?
Mr. Lerer: My colleagues are looking up the specific clauses, but they provide advice on matters that pertain to assessments and to any measures that might be taken. They share information on measures that individual jurisdictions might be taking so that they can come together to avoid duplication and overlapping. There is also the general catch-all of any items of mutual interest. It is a mechanism to share the science, to find the most effective way of dealing with the issue that is before them, and to provide that advice on federal regulations and on federal action.
Senator Hays: I am just thinking it may be fair to say that you are in an ongoing consultative relationship with the National Advisory Committee, which may make it unnecessary for a province to respond when the offer to consult is made. Is there something reciprocal? Can you describe what obligations, if any, the provinces have under their legislation or in practice to consult with the federal government, when the onus is the other way around in terms of who is primarily responsible for dealing with this environmental issue, that would be covered by these clauses?
Mr. Lerer: There are two questions there. Could the National Advisory Committee be used as the vehicle to discharge the obligation to offer to consult? The answer is yes.
Are there other obligations from a consultative point of view in provincial legislation? That is part of the answer that we provided in the handout in our response to the Senate, and they are listed there. We have gone through the environmental protection legislation in the provinces. Yes, the National Advisory Committee could be the vehicle.
Are there provincial obligations to consult with the federal government? We have listed them specifically in the information that we provided to the Senate yesterday.
There was one important factor in terms of delays that Senator Spivak spoke to that I want to answer, and that is that there are legal time constraints on the minister for taking action; I refer to the two years and one month that my colleague mentioned, the concept that somehow a consultative effort could take years and years and years and years. The minister has a legal obligation to put things into place, and the offers to consult and the consultation process are within those timeframes. They are not extra to those timeframes.
Senator Spivak: What happens when there is disagreement?
Mr. Lerer: The minister has to make a decision.
Senator Spivak: There are recommendations here to go to the Federal Court. Is it under a different clause? I think it is under the participation clause.
Mr. Lerer: Who makes a decision? The minister or ministers are responsible for the administration of this act. Ultimately, the decision is theirs. Is there a right of judicial review on a ministerial decision? That exists for all legislation.
Senator Spivak: In other words, a person can go to court.
Mr. Lerer: There are also review processes here. There are boards of review and things of that nature.
Senator Spivak: I want to ask some questions on that, but I will do that this afternoon.
The Chairman: We will adjourn until 1:30.
The committee adjourned.